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Property I
Temple University School of Law
Sinden, Amy

Amy Sinden
Spring 2014
 I.            Introduction
Types of Property:
Tangible: real property (land, structures on land) and personal property (everything else)
Intangible: cash, stocks, bank accounts, brand names, business goodwill, IP
Not everything tangible is property (people, sometimes natural resources)
Characteristics of Property: (“sticks in the bundle” of property entitlements)
-Right to use/possess
-Right to exclude others
-Right to transfer
These entitlements can be disentangled… can give up some “sticks in the bundle,” keep others
Property rights are NOT absolute – are limited by other people and their property rights
Styles of Legal Reasoning/Argument:
·         Formalism: Identify the legal category the case falls into, use the law that applies to that category (i.e., trespass).  Put the case in a category, then use the Constitution, federal statute, & case precedent to determine what rule to apply.  Category decides outcome of case.  Offers predictability in the legal system.
·         Instrumentalism: Court looks at public policy concerns underlying the area of the law, then applies the underlying public policy in a new way.
1.       Identify the social goal
2.       Choose the rule/case outcome that best promotes that social goal
Philosophies of Law:
·         Natural Law: The law is fundamental to how things are, whether comes from humans or God.  Pre-exists and comes before government.  Labor is a virtue.  Closely linked to morality, fairness, right/wrong, justice.  Locke's labor theory of property.
·         Positive Law: Comes from sovereign/government, whatever they declare the law to be.  Has begun taking ascendance in 20-21st C, but still many elements of natural law.
·         Utilitarian Law: The rules that'll be best for society overall, maximize social welfare.  Contextual, considers economic theory.
-Thought of as a subset of positive law, but can be differentiated as an ethical approach as well
-Focus on incentives and consequences of legal rules
Justification for Property Rights:
1.       Market economy – incentives for ppl to make their property as valuable as possible & to trade it amongst each other.  System of private property rights essential for that system to function.
2.       Keeping the peace, avoid disputes and waste of time trying to keep people off your land, promotes stability.
3.       Basis for citizenship in a democracy (Jefferson).  Creates bulwark for civil liberty, against power of state/government. Gives people a stake in the country, level of individual autonomy.  Essential for functioning of a democracy.
-All of these things are contestable.
II.            The Right To Exclude Others: Trespass
A.      Public Policy Limitations on the Right to Exclude (the Right to Exclude is NOT absolute)
State v. Shack – Property rights (right to exclude others) may be limited in favor of public policy
Court held that property owner didn't have right to exclude those providing governmental service to individuals residing on his land, Ds had right to unsupervised visits in their living quarters.  In common law, trespass is privileged if done with consent of owner, justified by necessity to prevent more serious harm to persons of property; or entry is otherwise encouraged by public policy.
PP justification: migrant workers are an isolated communi

used as way to exclude minorities, circumvent 14th Amend.)
III.            Original Allocation, Creation, and Acquisition of Property Rights
A.      Conquest
1.       Property Rights Derived from Competing Sovereigns – Johnson v. M'Intosh – J inherited land bought from Indians, seeks to evict M, who secured land in grant from U.S. government. Competing land claims.  Issue: which title is valid?  Holding: court recognized titled granted by government as “true” title.
Rule: Discovery doctrine – (European) discoverer gets title to the land (against other European nations), subject to Native right of occupancy, which discoverer has exclusive right to extinguish by purchase or conquest.
Opinion: Europeans have title subject to natives' right of occupancy. This occupancy is inferior to that of Europeans, not developing the land. They were lawful occupiers/possessors, but their right of occupancy could be purchased or extinguished by discoverers. Now title has passed to U.S. government through war, purchase from France, Spain. U.S. will protect native-inhabited land from invasion by other European powers, but U.S. has gained title to disputed lands, so only grants from U.S. government will be recognized.
Indians being treated like tenants: right of possession, but Europeans are like landlords, can evict or sell to someone else when lease is up.