1) Property as power: Trespass and the Right to Exclude
a) Private Property
(1) Traditionally Land was the only source of wealth
(a) English social order was completely determined by the property ownership
(b) The system died out but the rules have remained
(c) Modern property law struggles with the old rules, mainly because the social order has disappeared.
(2) Think of Property as Power
(a) Who has what power, and to what extent?
(1) State v. Shack
(a) Holding: New Jersey Criminal trespass § does not apply to D.
(b) Facts: D entered farm to aid migrant farm workers
(i) There are no absolute rights.
(ii) Barring the aid workers from the property would deny the farm-workers dignity, well-being. Therefore, there is a conflict of rights.
b) Property Open to the Public
(1) Uston v. International Hotel
(a) Holding: A Casino owner can not bar Uston from Casino (The more property is held out to public use, the more it must accommodate.)
(b) Facts: Uston taught “card counting”, and was removed from the casino because of who he was.
(c) Rule: When property owners open their premises to the general public in the pursuit of their own property interests, they have no right to exclude arbitrarily. (YOU CAN ONLY EXCLUDE IF EXCLUSION IS REASONABLE)
(i) There was a “right of reasonable” access, by which the owner of a “place of amusement” can exclude persons arbitrarily.
(ii) That rule had since been rejected by a majority of jurisdictions, in light of the post-civil war amendments.
(iii)If Uston were causing some sort of danger, it would be completely different.
2) Sources of Property Rights
a) Discovery and Conquest
(1) The European conquest of North America began a long struggle of property struggles
(2) There were pretty fundamental differences in what the Indians and Europeans understood property rights to be
(a) Indians=temporary use
(3) After the US got title to the land, they would then transfer it to individual claimants
(4) All land in the US held by non-Indians theoretically can be traced to the title ultimately derived from the US govt or a prior colonial power, which in turn obtained title by conquest, coercion, voluntary cession, or judicial fiat from an American Indian nation.
(1) Johnson v. M’Intosh
(a) Holding: Title derived from the Indians is not valid.
(b) Facts: Each party had title to the land. The one conveyed to the plaintiff
re “unfair competition”
(b) Facts: P is suing D for selling “news” that they had already distributed
(c) Rule: Publication for profit of news obtained by another is “unfair competition”
(i) under c-l there is no “private” property right in news
(ii) undercutting the “labor” of P may undermine the profit motivation of companies to “gather news”
(iii) This case does not turn on a definition of a property “right” per se
(2) Moore v. Regents (82)
(a) Holding: this is not a conversion of property because there was no property interest in cells when they are “generic”
(b) Facts: P is suing D for conversion, after P’s cells were used in creating a “cell line”
(c) Rule: A person does not have a property interest in his cell tissue
(i) there was a cause of action based on a breech of his fiduciary duty
(ii) holding otherwise would hinder research by limiting access to “raw materials”
(iii)“labor theory” would give researcher’s right to the property
d) Need Fault and Family