Prof. Sinden Spring 2011
a. Types of Property
1) Real Property
– Lands and Building
2) Personal Property
b. Conceptions/Philosophies of Law
1) Positive Law – Law is what the government says it is
– Subset: Utilitarianism (Consequential in form: rule x will be good because… something good
– Subset: Economic Theory
2) Natural Law – Law is innate and grounded in human nature; law predates any govt. or society
c. Functions of Property Law
– Facilitate commerce/trading
– Incentive to improve/innovate
– Prevent Chaos
d. Attributes of “Property:
1) Right to Possess
2) Right to Exclude
3) Right to Transfer
e. Types of legal arguments/reasoning:
1) Formalism – figure out if this situation belongs to a certain class and if so, put it in that box
2) Instrumentalism – doesn’t try to group things, Identifies a social goal and chooses the outcome that
best promotes that social goal.
f. Popular, Contemporary Substantive Principles of Property Law
1) 1st Possession
5) Need: Use your share, but not the injury of others
g. Change in time = Change in Legal Thinking
– 19th Century = Formalistic & Natural Law embraced
– 20th Century = Legal Realism & Natural Law largely rejected
– Embraced Positive Law approach
– Realists usually Utilitarianism as a basis for arguments
II. THE RIGHT TO EXCLUDE OTHERS: TRESPASS
A. Public Policy Limitations on the Right to Exclude.
State v. Shack (Farmer tries to exclude legal aide workers to migrant workers on his farm)
o Ct used an instrumentalist approach and balanced the interest of the farmer, in his right to exclude, and the farm workers in their rights to medical care, legal aid etc…
o Ct said public policy dictates that the aides to migrant workers be allowed to enter onto the property.
Uston v. Resorts International Hotels, Inc (Casino tries to ban card counter from entering)
o Right of Reasonable Access to Property Open to the Public
o Card counter could not be denied access to casino because the casino has opened its doors to the public at large, as such, can’t arbitrarily exclude someone (card counting is NOT illegal), if he broke the law, maybe they’d be allowed to exclude him, but as is, its just too arbitrary.
III. ORIGINAL ALLOCATION, CREATION, AND ACQUISITION OF PROPERTY
1. Property Rights Derived from Competing Sovereigns
Johnson v. M’Intosh (Question regarding whether a native American title to land or a title granted by the U.S. controls.)
o Holding: European discoverer gets title (“limited sovereignty”) as against other Europeans, BUT, that title is subject to Indian Right of Occupancy
o That Right of Occupancy can be extinguished by the discoverer through Conquest or Purchase
o Ct rejects Locke’s idea of Labor+1st Possession , didn’t think what the Indians did with the land was labor
o Big part of decision was the Nation’s reliance on titles granted from the U.S.
2. John Locke, The Second Treatise of Government
o Locke is a prototypical Natural law thinker
o Rooted in religion
o Locke’s main theo
to whether the use is “natural or artificial:
Natural Use Artificial Use
Drinking Irrigation (if not necessary)
Etc… Cleaning, Etc…
o Rule: The guy upstream can use as much water as he wants as long as it is put to a Reasonable Use
o If both owners wanted it for artificial use, jury would decide
b) Coffin v. Left Hand Ditch Co (West coast case) (guy who owned land first takes all water for irrigation)
o Holding: 1st appropriator (time-wise, not upstream) of water from a natural stream for beneficial purposes has a prior right to the water only to the extent of the appropriation.
o Must be for beneficial purposes.
o Use it or lose it, if you took 10 gal 1st time, and 5 gal 2nd time, after that your limited to 5
International News Service v. Associated Press (AP sues INS for passing off AP’s news as its own.)
o INS argues that news is public property, can be argued about at water cooler
o Ct says AP’s quasi-property right in the news applies only against other news outlets, such as INS, due to the competition of business
o This is an Instrumentalist decisions – early delivery of important news would be hard if AP couldn’t recoup $ for its delivery of that news
o Decision also promotes equity in business.