Verchick-Fall 2002
Property Outline
A. Most POLICY is animated by what works rather than where the law comes from (an ought over an is). At what point does the court take the common law and put into it what ought to be in it.
B. Where does the law come from (post enlightenment ideas)?
First Principles-there are ideas that are true even before the law is created and are non-negotiable. The body is sacred. (Justice Arabia)
Rights-Pre-exists law, rights are there whether the government gives them to you or not. (Blackstone theory)
–Rights associated with property:
Right to occupy/possess
Right to exclude others
Right to alienate, sell, transfer
Right to use
Legal realism/Utilitarianism/Pragmatism-principle comes from the law.
Cts started to make a more practical approach to the law.
-Private property is always regulated by the government.
C. How do we acquire property?
1. Force
2. Consensual agreement
3. Possession/occupancy (Tompkins)
4. Labor (Livingston, Locke)
Locke: your body belongs to you, if you invest your body with labor in property, the property belongs to you
5. Method of use
I.ACQUIRING PROPERTY RIGHTS
POLICY!
1. Property is a bundle of sticks.
2. We want to encourage development.
3. Reward exploration and labor
4. Maintain Order
5. 1st in time
ACQUISITION by DISCOVERY AND CONQUEST
DISCOVERY=title, subject to (allowing) occupation of indigenous people
CONQUEST=right to extinguish occupancy of native people, which gives right tot the conqueror to claim possession of lands taken and held by force.
A. (Johnson v. M’Intosh)
1. Rule: By discovery, because it presumes the land has no other owner, the US has legal right subject to the aboriginal right of occupancy. The right to occupancy can be extinguished by voluntary transfer or conquest. Also, US acquired title from British, who conquered the Indians.
2. Policy: Protect the Indians from outside intruders. The US knows what is best for the country. So early on in the country’s history, there was a policy to keep the country together and have everyone question their title. Justice Marshall decided against fairness and natural law, but honest and expedient to the conqueror.
a. Case’s rationale (paternalistic): prevent Indians from being preyed upon, forced off their land. US govt allows them to retain occupancy.
b. Rewards: exploration, maintain order with “first in time” rule, encourage development, we acquire property through possession/occupancy.
c. John Locke: “In the beginning, all was America.” 18th century view that America was a commons, a land waiting to be discovered, with everything for the taking.
B. (Tee-Hit-Ton Indians v. U.S.)
1. Rule: Occupancy alone will not insure control over your land.
Original Indian title can be taken by the US without compensation because aboriginal title did not constitute private property within the meaning of the 5th amend.
2. Policy: US knows the best for the Indians-efficient use of the land. If they aren’t using the trees and we want them we can take them. This was a political question that the court avoided answering.
3. Cf. Johnson: further delineanates rights:
Discovery=title, subject to Indians’ right to occupy
Conquest=right to extinguish Indians’ occupancy
Indians claim they got right of occupancy from Johnson which cannot be taken away until we voluntarily give or involuntary conquest. Congress claims they conquered them with the law.
By ACQUISITION AND POSSESSION (CAPTURE)
A. ANIMALS (Pierson v. Post)
1. Rule: Property in wild animals (ferae naturae) is only acquired through occupancy and cannot be acquired by pursuit only. Wild animals become the property of the first person to reduce them to possession. Complete capture which could be extended to mortal wounding while in pursuit.
2. Policy: Law of capture gets a social object accomplished efficiently. BRIGHT LINE RULE: Easy to administer, stable. Efficient for the Court (procedurally). Promotes social goals (gets rid of foxes).
Dissent-law must change with the times.
A. NEWS (International News Service v. AP)
1. Rule: Decided you own a specific recollection of the events. News agency has a quasi-property interest in news it has gathered and can prohibit competitors from disseminating the news until its commercial value as news has passed away.
2. Policy: Protecting labor under the law of UNFAIR COMPETITION. The news is such a precious resource as we do not want to abuse it. Making the news quasi property, as a property interest against those you are in competition with, but not against the whole world (judges can and do make up the common law as they go along) serves our social objective, which is to reward those who go and gather the news.
3. Rationale: Principle (labor+market+value) and policy (unfair competition and efficiency). This contradicts Post in that a labor here—property and AP does the labor and wins. Fundamental commons.
Dissent-Brandeis-the most important thing about life is the commons, and the collective or the public will always win.
B. HUMAN GENES (Moore v. Regents of the University of Calif.)
1. Rule: Property rights do not extend to human organs and cell lines. (no precedent on point). The doctors who created the cell line acquired original ownership. Should the demand for body parts be satisfied through the traditional market mechanism?
2. Policy: These cell lines are too important to medical development to make property rights in them. Drug companies need incentives to labor to find miracle drugs. Will not make a precedent that is incongruent with the greater public policy.
3. Relativity of Title: Definition of property depends on the two people who are arguing it.
