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Property I
Temple University School of Law
Mandel, Gregory N.

Professor Gregory Mandel
I.                  Introduction-
a.       Property Class is about the legal relationship between entities with respect to things.
                                                               i.       Legal Relationship- Relationship AMONG entities with respect to things
1.      Can acquire title to land and things
                                                             ii.      Entities-Could be people, business, corporations
                                                            iii.      Things (mostly tangible)- Land (Real)
1.      intangible (IP)-Non physical things, but you own right to copy (e.g. Play the music)
b.      4 general Fundamental Property rights (What can I do with my property?–>BUNDLE OF STICKS)
                                                               i.      Exclude-(most important one)
                                                             ii.      Alienate-Right to do as I please (e.g. I own property book and you can’t have it)
                                                            iii.      Use
1.      Limited often times (E.g. Can’t copy and resell book that you own.)
                                                           iv.      Possess
1.      Can transfer property as well (E.g. but cannot transfer for crack)
2.      Hard to define possession and hard to PROVE TITLE
1.      Often times I possess it and hence I Own it.
3.      Bundle of sticks can be limited and you might own some rights but not others
a.      Possession is a legal conclusion based on instrumental or social goals and means what we want to use  to achieve certain goals. Not a factual matter.
b.      Acquisition by Discovery and Conquest (One recognizes previous,
                                                               i.      “First in Time, First in Right” general rule that does not always apply.
1.      e.g. SCOTUS in 1800s did not recognize land rights sold to another by “occupying” Native Americans. Land granted by U.S. was seen as legitimate under the Rule of Law
1.      Rule of Law is powerful tool used to justify existence and actions of U.S.
2.      Native Americans didn’t have a government behind it to protect property (which is essential). Gov’t needed to protect property rights.
                                                                                                                                       i.      Lo
3.      There was a legal, not factual difference to how Native Americans used land
                                                                                                                                       i.      Can argue that under conquest, Indian perception of land doesn’t matter
1.      Europeans saw it as original acquisition since Indians did not conceptualize property rights in the same way.
                                                                                                                                     ii.      Under discovery, then Indians perception would matter.
4.      Recognized theory of conquest and distinguish right of occupancy from ability to convey title.
c.       Acquisition by Capture-Capture definition based on different analysis
                                                               i.      Majority Rule: “Certain Control”- Pursuit itself is not enough to establish possession without control (need mortally wounding, and physically obtaining).
1.      Majority decision in Pierson v. Post in that guy who was chasing fox on neutral land but didn’t capture it (Δ did) was NOT entitled to title. This went against hunting custom
1.      Policy: Majority says it will reduce endless litigation and disputes
2.      Under custom, the hunter Pierson who chased fox would have won.
                                                             ii.      Minority Rule: “Reasonable Prospect of Capture”-More instrumental and functional analysis
1.      Dissent in Pierson v. Post says his rule would lead to more capture of foxes (policy goal) as it would encourage hunting. Goal of killing foxes!
1.      Dissent says majority rule has flaws:
                                                                                                                                       i.      No concrete rule. When you have multiple parties there could be conflict
                                                                                                                                     ii.      Will encourage less hunting
                                                                                                                                    iii.      Might lead to more confrontations with hunters

2.      Internalization-allows each individual to make rational cost/benefit analysis for his OWN land. Promotes free market economy (those who manage better might buy out those who don’t manage as well).
1.      Criticisms of Densetz:
                                                                                                                                       i.      Still have transactional costs (e.g. need to build fences)
                                                                                                                                     ii.      Still need a government to protect rights of individuals
                                                                                                                                    iii.      Need to come together to form private property
2.      Alternatives sometimes might be better depending on situation: What is best is highly CONTEXTUAL and depends on individual fact pattern
                                                                                                                                       i.      Governmental solution (not discussed by Densetz)
1.      Government owns and regulates land (still more government action than with private land)
                                                                                                                                     ii.      Collective organization
1.      e.g. fisheries where everybody knows each other.
                                                                                                                                    iii.      Communal- Use but can’t exclude (tragedy of the commons).
                                                                                                                                   iv.      Private- Demsetz’s preference
3.      GOALS: We want EFFICIENCY and EQUITY. Sometimes those two are in tension with each other.