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Property I
Temple University School of Law
Knauer, Nancy J.

Property Law Spring 2011 (Knauer)
FOCUS: What power does ownership give people?
FOCUS: When Courts talk about property, what do they say? Why courts talk more about classifications and consequences then power and people?
FOCUS: Types or Arguments being made, recognizing patterns in those arguments
Formalist à using the rules that exist to situations
Instrumentalist Reasoning à determining a goal and simply finding a way to get there
–          Fundamental Fairness
–          Utilitarianism – greatest good for the greatest number
–          EXAMPLE: what the “goal” might be that motivates a decision under instrumentalist reasoning, we saw a bunch throughout the semester too numerous to list here. Leading examples include, Discovery/First in Time, Capture, Labor, Lockian Labor Theory (combining First in Time with Labor), Certainty, Justice, Reliance, Competition, Investment, Co-modification, Conservation, Family, Gifts, and Need.
A. Property as power: trespass and the (non-absolute) right to exclude
1.    “Private” Property(103-116)
State v. Shack (1971) – p104
Facts à D’s entered upon the private property, against the orders of the owner of that property, to aid migrant farmworkers employed and housed there.
Rule of Law à Real property rights are not absolute; and “necessity, private or public, may justify entry upon the lands of another
Reasoning à
–          Property rights serve human values – “they are recognized to that end and limited by it
–          Must weight property rights of farmer with the dignity, destiny, and well-being of the migrant worker
1.      Legislation has spoke on this issue
–          Ownership rights do not trump more fundamental right of well-being
–          Migrant workers are “outside the mainstream of the communities in which they are housed and are unaware of their rights and opportunities…” –  have unequal bargaining power – this deficiency allows for entry upon the private property
Notes à
Zero-Sum – if migrants get what they need though gov’t workers’ right to access, owner doesn’t get his right to exclude – if he excludes, they don’t get the info – these right aren’t so much a balance, but a conflict
Property as Power – owner exercising power in a way that affects migrant’s “dignity and destiny” – those interest are greater than the owner’s interest in using property as wants
Bottom Line: this case complicated easy rule that ownership comes with absolute right to exclude (this is a fundamental right that property right conveys)
Desnick v. American Broadcasting Companies, Inc. (1995) – p108
Facts à ABC did an undercover investigation into some shady eye doctors who were ripping off old people and Medicare with unnecessary cataracts surgery
Issue à did the uncover journalist trespass? – NO
Reasoning à Although there is no general journalist’s right to trespass even when doing a public interest story – THERE IS NO TRESPASS HERE
–          Some cases deem consent effective even when procured by fraud
–          No invasion of any of the specific interests the tort of trespass seeks to protect – did not disrupt activities, invade privacy, or interfere with ownership of the land – the place was open to the public
–          Social good of exposing this sort of fraud
Notes à
–          Commercial Place – open to the public, Public Interest – protect the consumer
–          Testers of public service is NOT violating a property interest
–          Trespass – unprivileged intentional intrusion on property possessed by another EXCEPT when (1) consented to by owner (not usually valid if obtained by fraud), (2) necessity, (3) encouraged by public policy
–          Remedy to trespass – (a) nominal damages, (b) compensatory damages, (c) punitive damages, (d) injunction to cease wrong doing, (e) declaratory judgment (statement of legal right against party)
–          Criminal Trespass – to deter wrongful activities and punish those who engage in them; punishment can include fine, probation, or incarceration
Desnick à in order to trespass you have to infringe on a right that property law seeks to protect – HERE, the place was open to the public and they didn’t interfere with any essential functions
2.    “Property open to the public”
Uston v. Resorts International Hotel, Inc. (1982) – p116
Facts à Because P was well known for his ability to count cards, he was excluded from Resorts International Hotel’s casino
Rule of Law (minority rule) à Owners of property open to the public do not have the right to unreasonably exclude particular members of the public
–          When a property owner opens their premise to the general public in pursuit of their property rights (i.e. to make money) they have no right to unreasonably exclude people
1.      The more private property is open, the less rights the owners have to exclude
2.      Therefore is a person is disruptive of normal operations, dangerous, or a threat to security, they can be reasonably excluded
3.      Denying freedom of reasonable access in many states came around as a de facto to segregation (represents a freedom to arbitrarily exclude – Court doesn’t want to stand on those grounds)
Notes (from class) à
–          Desnick and Shack and Uston show exclusion from property is NOT an absolute right – Connection? – PUBLIC POLICY (protecting migrants AND ensuring the enforcement of anti-segregation statutes)
1.      Right to exclude is weaker in public
–          What about ABC? – to get ratings? – does this mean that Desnick isn’t a straight public policy case
–          Distinguish Uston from Shack à in Shack they were providing public service, he the guy is just gambling
1.      Concrete harm would occur from a failure to provide those services in Shack
Reasons underlying Uston à
(1)   Do most casino owner’s retain the right to exclude? – in most places YES, in NJ NO
(2)   However casino retains rights to expel patrons who disrupt casino operations…
(3)   We won’t have to argue about what constitutes a disruption of casino operation b/c we leave it to the Commission to form those rules
Spirit-Murdering the Messenger: The Discourse of Fingerpointing and the Law’s Response to Racism
Discussion à Author mad about the experience of getting denied after using a buzzer to enter store in New York City – feels mad and powerless
The Intelligent Baysian
Discussion à claims excluding people by race and sex is just playing the statistics – in the experience described above, the store cashiers was just “playing the odds”
(1)   Uston filed similar suit in NV – they found no

choose the law that will cause a socially beneficial result.
Notes (from class) à
–          What is the source of the US’s power to grant title?
1.      Acquired land through treaty w/ UK, sold title by France and Spain
–          Competing legal theories: natural law and positive law
1.      Marshal probably chooses POSITIVE LAW which makes a just ruling impossible (had to think about the effects of alternative theory – the nature of NA’s, and it would destabilize already granted title grants)
–          Another competing legal theory – NA Law – Marshall limits the reach of this law by saying P’s could get title in NA court, not US court
–          What is Marshall afraid will happen if he recognizes one of the alternative theories? – perpetual war with NA’s
–          Also factors in Tragedy of the Commons – if no one has property rights, no one will take care of common areas (this is how Marshall saw the NA way of life)
–          Two sources of Property Rights Emerge – Priority in Time, Priority in Conquest
2.    “Capture” and “Possession”
Pierson v. Post (1805 – NY) – p76 – possession of wild animals
Facts à P chasing fax with his dogs – D knew P was hunting fox but killed it and took it away
Issue à Did pursuit of fox with hounds give P right to fox? – NO
Holding à Pursuit alone is not enough – property of occupancy (possession) ONLY.
Rule of Law à property in wild animals occurs only through occupancy
i.    ACTAUL POSSESSION, or THING IN HAND (Justinian)  possession only when the animal is taken and killed
ii.   MORTALLY WOUNDED (Puffendorf)
iii.  DEPRIVATION OF LIBERTY (Barbeyrac): Trapping, ensnaring
iv.  MERE PURSUIT  not occupancy,
Both the majority and the dissent are attempting the PROMOTE the hunting of foxes
Dissent à should reward the pursuit of foxes – pursuit should confer possession
–          Reasonable prospect of capture should be enough – reward capture of noxious bears.
Notes (from class)à
–          Majority focuses on skill that hunters have and dissent on encouraging all hunters, skilled or not to KILL
–          Problem in Pierson: Defining Occupancy – majority includes actual possession, mortal wounding, and securing with nets – P wants pursuit included – ISSUE: how workable the rule really is (easier to ask a voter if he is 18 than if they have a working knowledge of the Constitution)
–          Modern American Legal Reasoning – Courts adopt a rule intended to serve their goal. Here, goals are predictable and stable
–          Up until this case, judges are choosing between rules of law. In this case, they are fighting over a term in the applicable law: occupancy.