Property I Outline

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

Essays

· 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

Checklist

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

Accession

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

Lobbyists

Alienation

Waste

Property rights are relational

“Dead hand” shouldn’t puppeteer future

Policy

Policy Goals

Reward Productivity

Economic Efficiency

Simple & Enforceable Rules

Reflect Societal values

Fairness

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