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Property I
Temple University School of Law
Sinden, Amy

a. Property rights
i. Right to exclude
ii. Right to transfer
iii. Right to possess
1. None of the rights are actually absolute

B. Styles of legal reasoning
a. Instrumentalism – law aimed at establishing a certain goal or social value. 2 step process
i. Identify the result desired
ii. Pick the rule best suited to promote that result.
b. Formalism – fitting the facts into certain categories based on law and precedents and coming up with a result based on those categories.

C. Right to Exclude
a. State v. Shack -Farmer who would not let social workers on his land to visit is workers
i. Right to exclude is not absolute
1. Government workers who had work on the land could not be excluded
2. Farm workers were like landlord tenant relationship
i. Tenants have right to receive visitors on their land
3. Ultimate decision was based on balancing of interests (instrumentalist reasoning)
i. Rejects formalistic approach of forcing people into categories of trespasser/ non trespasser.
4. Narrow reading – public workers have right of access. Broad reading – right to exclude is not absolute.

B. Uston v. Resort International – Casino which kicked out card counter
a. Once property has been opened to the public, cannot exclude unreasonably
b. Reasonable exclusion – if harm is being caused to property, if function of property is being disrupted.
c. Court said Uston was not disrupting casinos’s functioning.
i. Arguable, he was because he was making Casino lose money
d. Uston had right of reasonable access
i. Traditionally, at common law, right of reasonable access applied only to inns – had to serve unless they had a good reason for not allowing people in
1. They could have monopoly
2. Could place patrons at risk of being robbed if out on the street
3. Represents themselves as a place open to public, and people relied on that.

a. Locke – when property is mixed with labor
i. Labor is a virtue
ii. Maximizes use of land.

B. Philosophies of law
a. Natural law – transcendent, exists from god. Locke believed labor theory of possession was natural law from god
b. Positivism – law is what the government/legislature says it is
c. Utilitarianism – promoting the best good for the most no of people. By nature is positivist
d. Consequentialist – form of utilitarianism. Looks at the consequences of a decision and makes a decision based on consequences to society as a whole.

C. Johnson v. McIntosh – two competing claims for ownership of land, one from the Indians, one from the US government (later on)
a. Black letter – [European] discover gets title subject to the Indian right of occupancy which the discoverer has the exclusive right to extinguish by purchase or conquest.
b. Indians can only transfer to US government. Indians do not have absolute right to transfer.
c. Competing philosophies of law
i. Natural law – property should belong to those who will best use the land. Indians are savages and will waste the land and should not have it
ii. Positivist – the king made the law that Indians have right to occupancy not to transfer so we should stand by that rule.
1. Does not want to upset the reliance that people have on the land
2. Not having the right to transfer is against a natural law.

D. Post v. Pierson – two guys hunting a fox, one guy swoops in and steals the kill from the other guy
a. Mere pursuit of animal does not give you property rights
i. Must manifest some kind of intent – mortal wounding, or pursuing after injuring
ii. Property right in wild animal is by occupancy.
iii. Looks at precedence to decide what was occupancy – decides wounding is
b. Dissent – looks at more instrumentalist approach
i. Want to encourage people to kill foxes
ii. Giving rights to the one in pursuit encourages pursuit of foxes.

E. Eliff v. Texon – oil drilling which cause rig on neighbor’s property to explode
a. Two rules regarding minerals when the mineral depot is under multiple properties
i. Law of capture – you own whatever you can draw.
1. Encourages maximizing use of resources
2. BUT encourages people to be wasteful and get all the minerals out before the other guys
ii. Absolute ownership – you draw imaginary lines and you own only what is under you property
1. Doe

g – Says news is property (has value) because it has legal rights/protection, but then again, it has legal rights/protection because we are calling it property(giving it value).
d. Types of analysis
i. Instrumentalist analysis – we want people to get news, if news was not protected, news agencies would lose incentive
ii. Formalism – finding a box in which news can fit in. finds this “quasi property” box.
e. Dissent – (HOLMES)
i. Property is what the law says is property (positivist)
ii. Seems unfair that INS is getting money for something it doesn’t deserve (naturalist)
f. Dissent – (Brandeis)
i. Positivist – should be left to legislature.

I. Moore v. Regents of the University of CA – patient’s spleen cells were harvested without his consent an a lucrative cell line spun off them
a. You do not have a property interest in your own cells
i. Formalistically
1. Raw materials are not property
2. All cells are the same, therefore nothing distinct or unique about these cells
3. Rule of capture – applied to cells
A. These particular cells were different/special
B. Property is property, unique or not
C. Without Moore’s contribution, would not have cells.
D. Different from stumbling upon raw materials
E. Ignoring first possession – cells were taken from Moore
B. Instrumentally
a. Don’t want to deter pharma companies from researching
b. Patients could be holding out for money, hurting thousands of other people
C. Perhaps best left to legislature
ii. Concurrence – Arabian – Commodifying body debases it
iii. Dissent – Mosk – we are allowing the researchers to commodify the body.
a. Difference between self determination and letting others decide for yourself what to do with your body.