Property Outline – Sinden
I. Theories of Legal Reasoning
A.Formalism – articulate the law in terms of categories. Which box do the facts of this case fit into, and that is how you get your answer
B.Instrumentalism – two part process
i. What is the broader social goal we want to achieve? – To identify that social goal we sometimes have to look beyond the facts of the case.
ii. Which rule would best promote the social goal we have identified?
II. Layers of Law
A.Black Letter, the holding of the case
B.What General Principles are at work?
C.What are the values and assumptions that underlie those principles?
III. Theories of Law
A.Positivist – Law is law because government made it law. Law is simply what the sovereign says it is.
B.Natural Law – Law comes from God or nature, sense of right and wrong, moral notion of law. – sometimes take a more formalistic approach
C.Utilitarianism – greatest good for the greatest number
IV. Theories of Property – Property is a bundle of rights – they are not necessarily all held by the same person at the same time. Ex. A landlord has the right to sell, but not to use the apartment or exclude the lessee’s guests.
A.The right to use or possess
B.The right to transfer (buy, sell, inherit)
C.The right to exclude
V. Theories of Possession of Property
A.First Possession or Discovery – “finders keepers”
B.Labor Theory – John Locke – you are mixing you labor with the land, that is what gives you possession. Land in a state of nature is worthless, it is not until people come along and use the land for agriculture, or mining or whatever, that it become valuable
D. Reliance (adverse possession)
E.Need (water rights)
F.Concept of property culturally specific – Native American concept of property different – hunting was pleasure, not work for Europeans, thus Natives were not working the land. Is land really more valuable once it has been developed?
VI. The Right to Exclude Others: Trespass
A.Public Policy Limitations on the Right to Exclude – property rights are not absolute
● State v. Shack (1971) – The ownership of real property does not incl
e reading – not discussed
B.Labor, Investment and Possession
i. Wild Animals
● Pierson v. Post (1805) – mere pursuit did not give the plaintiff the right to the fox, the fox became the property of the defendant, interceptor, when he killed it, his un-courteous conduct did not produce an injury for which there could be a legal remedy. Example of law of capture.
ii. Oil and Gas
1. Capture – whoever drills the oil first gets it, but this could be inefficient “haste makes waste”
2. Absolute ownership – you own what ever resources are on your property
3. Tragedy of the Commons – commonly owned resources are wasted, because the individual sees all of the benefit and only a fraction of the cost.
● Elliff v. Texon Drilling Co. (1948) – Neighbor negligently drilled and caused a fire that burned up all the gas under their own, and their neighbor’s,