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Property I
University of California, Hastings School of Law
Williams, Joan C.

Joan Williams – Property-2013

Visions of Property

Finders Keepers

· Finder’s title is good against the whole world except the true owner and prior finders

o Does have rights against true owner if finder gains property by adverse possession

o Both the finder and true owner “own” what is lost—relativity of title

· Ex: Chimney sweep finds a jewel, brings into the appraiser, the jewelers apprentice removed the gem and refuses to return it

· The jewel had no prior owner, the chimney sweep became the effective owner, won

· Finders law introduces the concept of relativity of title, disintegration of property rights, and the intuitive image of property

Finder’s Law in Relation to Landowner

· Finder doesn’t own in relation to the landowner if found on the landowner’s property

· Ex: Williams walks in the woods, find a jewel, belongs to Keisha

1. Intuitive Image

· Not accurate, doesn’t describe property rights and never has

· Either you own property and can do everything with it or you don’t own it

· “On and off” switch

· Different from property being an idea of bundle of rights

· Invented by Blackstone—property rights are absolute and you can’t change them

Bundle of Sticks

i. The government can take away the right to profit

Andrus v. Allard

o P dealt in Indian artifacts, wanted to sell the artifacts, but Migratory Bird Act, prohibited the sale of artifacts that had feathers from the birds

o “Be possessed or transported,” statute took away some important sticks in the bundle, but some remained, two very skinny sticks

o Supreme Court said no taking, can still use this property, i.e. exhibit

o The take away of important sticks is not unconstitutional

o Property rights were created to benefit the common good

ii. The government cannot take away the right to leave property for your heirs

Hodel

o Rights were transferred to U.S. in trust, for use of Sioux nation

o Effectively abolished rights to pass property to heirs

o More and more people born, ownership became fractionated, rights eliminated of small owners

o Supreme Court said that’s one stick you can’t take away

2. Republican Vision

· Why can you regulate property to achieve common good?

Key words: citizens, independent, virtue, common good

· The function of property in republicanism is to guarantee the citizen his independence

o Saves him from political dependence upon others and cultivates civic virtue

· Independence enables citizens to pursue the common good instead of concentrating on their own self-interests

o Property was valued insofar as its distribution aided the citizenry in the free pursuit of this good

· Perfect example is the American desire to own a home: a metaphor for personal and family security leading to higher rates of political participation

Elitist strain

· Sought to limit civic participation to white male propertied voters

Egalitarian strain

· Jefferson—widespread distribution of property

· In order to sustain a republic, citizens need independence so they would have virtue to pursue the common good, opposite was dependence of feudalism

· Landless citizens are going to be dependent like feudal serfs, will look out for their own self-interest

o Land required they would work the land and bond

· Fear of those who have too much property, they will distort the government

Pennsylvania Coal Co.

o The statute that prevented mining that would cause subsidence was deemed unconstitutional

o “Destroy previously existing rights of property and contract”

o Brandeis instead says statute is for the benefit of the public, including public safety

§ Property rights exist for the common good

o Holmes begins with republican vision, “government could hardly go on…” and “implied limitation”

§ Continues with liberal vision of property, government should not interfere with property

3. Liberal Vision

· Self-interest vs. banding together of republican vision

· If you have private property, you’re going to work harder and create more wealth

· If everyone pursues thei

conversion he must have retained an ownership interest in them…”

o Conversion: a tort that protects against interference with possessory and ownership interest in personal property

o Removed cells not property…

1. CA statute eliminates so many of the sticks in the bundle of rights that what is left, is not “property” or “ownership”

§ Intuitive image of property

o Moore argues that if you have the right to control your image, you have the right to control your body

o The court counters with argument that lymphokines have same molecular structure in all humans

2. if researchers are allowed to research there will be more effective treatment for everyone

§ Property rights motivate researchers to pursue the common good

o Liberal economic argument: let everyone pursue their self-interest, don’t meddle, best interests for everyone will be achieved

o Mosk (dissenting) states there are enough sticks in the bundle here for Moore to have a right

Should genes be patentable?

· Need to be able to protect research in order to do it

o Liberal economic argument for Myriad

· Minority women will be disadvantaged if you allow Myriad to control genes

· Myriad put serious money and effort into it, they have the right to benefit here – liberal economic strain

· If they didn’t have the ability to benefit from it, wouldn’t have put money and research into it

Should organs be sold?

· Liberal economic strain

o Market will supply because there is a demand

· Liberal dignity strain

o When you allow people to sell parts of themselves the rich will be benefitting and the poor will be dying having sold their organs