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Property I
University of California, Hastings School of Law
Leshy, John D.

Property Leshy, Fall 2013

Special Instructions

How to do it:

1. Read call of question

2. Read once, then again and get facts

3. Outline answers, then reread facts before writing


· Look at call of question

· Include issues that may be rendered moot by resolution of another issue

· Identify when jurisdictions disagree, and say which approach you favor and why

· If you need more facts to reach a conclusion, say what they are

· Economic and social policies underlying law: use policy to resolve the issues

Multiple Choice

· #2 pencil

· ID# = 4-digit exam number

· Name = John Leshy

· Subject = Property I

· Date = Blank


Do jurisdictions disagree? Which is better?

Use policy to resolve issues

Bundle of Sticks

Human Invention

Utilitarian theory -> Instrumental View

Property is the relationship among people, with respect to things

Right to Exclude

Public Overlay

Labor Theory


Rule vs. Standard

Constructive possession

Numerus Clausus Principle

Law is conversation across generations and culture

Inertia of the law

Applying old laws to new cases: “Plodding Positivist” vs. “Pragmatic Judge”

Examples of tragedy of commons & anticommons




Property rights are relational

“Dead hand” shouldn’t puppeteer future


Policy Goals

Reward Productivity

Economic Efficiency

Simple & Enforceable Rules

Reflect Societal values


Utilitarian Theory

· Property is a human invention to serve human values.

Instrumentalist view of property

· Human values

o Economic efficiency

Restraints on transfer

Negative: could prevent economic efficiency

Positive: sale of human organs, ticket-scalpers, patent trolls, redistributing wealth

Human Values

· Instrumental view of property (ex : right to exclude)

Labor Theory by John Locke

· Gives first occupancy theory greater moral weight

· Since the labor of our body is our own property, then anything in nature that we transform from its original state through our labor has been ‘mixed’ with our labor, and thereby is our property.

· Ex : Haslem v Lockwood (1871) – plaintiff rakes manure in streets into heaps, and defendant took it those heaps before plaintiff had arrived to take it; court ruled in favor of plaintiff.

Ambiguity in Accession

o What if multiple people worked on one thing?

Rule (crystal) vs. Standard (mud)

· Rules are strict and standards are a little looser (crystal vs. mud)

· Rules are more predictable and allow you to tailor your behavior to meet the rule, but standards are usually more fair because they consider the particular facts of the case

· Rule : you must reduce wild animal to physical possession in order to gain title

· Standard : you must have nearly captured the animal to have possession

Applying old laws to new cases: “Plodding Positivist” vs. “Pragmatic Judge”

· Posner said a “plodding positivist” would solve a new problem by starting with similar cases, comparing them to the current situation, and seeing if the new problem justifies similar treatment (he was particularly talking about capture applied to oil/gas) However, he said the “pragmatic judge” would listen to economists and engineers, and use data to come to a solution the best fits society’s needs.

I personally prefer the “pragmatic” style because I believe the purpose of the law is reflect society’s values, and the fact is culture and societal values are always changing. Therefore, looking to the past, while useful, should not be determinative, especially in cases where there have been drastic technological advances and changes in culture.

One might expect that the legislature could correct the mistakes of the “plodding positivist”, but as Posner pointed out, American legislatures are sluggish and there is a lot of inertia in the law (as is all too evident by our recent government shutdown, where legislation isn’t just sluggish, but is stopped, all because of one new law).

· In Moore: Politically savy court would have let legislature overrule a decision in favor of Moore. Passing off the legislature first is dangerous because legislatures are sluggish.

Compensation for taking of someone’s property interest

· Under property rules, interest cannot be taken from owner without owner’s consent

· Under liability rules, interest of owner can be taken without owner’s consent, but damages are rewarded

Rationales for protecting private property

o Enhance economic efficiency

o Protest privacy, freedom and independence

o Rewarding labor and effort

o Distributing wealth fairly and evenly

Right to Exclude

Prevent Trespassing

Punitive Damages Awarded, even without Property Damage

Ø Jacque v. Steenberg Homes, Inc. (1997)

o Facts: D moved mobile home across P’s land without causing damage to property

o Rule: When nominal damages are awarded for an intentional trespass to land, punitive damages may, in the discretion of the jury, be awarded – even when there is no actual damage to the property.

o Policy

o Deterrence. Right to exclude is a “hollow right” if only give compensatory damages

o Economic e

gmatic” vs. “plodding positivist” judge types: Politically savy court would have let legislature overrule a decision in favor of Moore. Passing off the legislature first is dangerous because legislatures are sluggish.

o Recently, in CA: Governor Brown said women’s eggs can’t be harvested for research for profit and vetoed the bill.

Acquisition by Creation

· International News Service v. Associated Press (1918) : It is unfair competition when one party interferes with another’s business in order to profit from the other’s work

o Must not confuse the right of the public with the rights of the other party. Just because A posts something to the public, doesn’t mean that A’s competitor B can copy it for commercial use.

o Also, difference between buying newspaper and buying newspaper to compete with person who made it.

o As Douglas Baird noted, ‘competition depends on imitation’, and competition makes the public as a whole better off

· Cheney Brothers v. Doris Silk Corp (1930) : In absence of some recognized right at common law, or under a statute (such as patents and copyright), a man’s property right is limited to the actual chattels that embody his invention.

o Today, anything expressive can be copyrighted (back then, fabric designs couldn’t be). Still, while a fabric design can be copyrighted, a dress design cannot.

· Smith v. Chanel, Inc (1968) : In the absence of such a monopoly as a patent confers, any persons may reproduce the articles and sell them under the representation that they are the same article, if they exclude the notion that they are the plaintiff’s goods.

o ‘imitation is lifeblood of competition’

o Competitor may ‘take a free ride’

White v. Samsung Electronics America, Inc. (1993) : Appropriation of a person’s identity without consent is an invasion of the right to privacy. (even if it is not exactly the person, as in a robot version of Vanna White). This right extends beyond the use of just one’s name/image.

Strong dissent from Judge Kozinski, saying that it makes it illegal just to remind the viewer of the celebrity. He says it violates our first amendment right by controlling our thoughts. Also analogizes to ‘fair use’ allowances in copyright.