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Property I
University of California, Hastings School of Law
Rao, Radhika D.

                                                       Property – OUTLINE
Normative Approaches to Property:
–       American Indian Concept: Land is spiritual and cannot be owned
–       Positivism: law is posited by people – not by ‘natural’ or ‘inherent’ rules
o    motivated by public policy considerations (eg, rights, welfare, increase social wealth, maximize social utility)
o    Holmes: Positivists separate law from morals
o    Gov’t promulgates law based on public policy (protect individual rights, promote general welfare, increase social wealth, maximize social utility)
–       Legal Realism: law is what officials do to resolve disputes (Llewellyn)
o    Bentham: property is nothing but a basis of expectation, which can only be derived from laws
§ Without law, property doesn’t exist – it is not material, but metaphysical
o    Judges rely on statutory interpretations to apply rules as they were intended; law is independent of morals
–       Justice & Fairness:
o    Rights Theorists: individual interests may override public policy considerations
§ Certain interests are so important morally that they deserve legal protection, and override general public policy
§ Rights are defined by justice, common values, historic traditions, natural rights (human nature), desire to protect all members of society, individual autonomy and human needs
·         First Possession & Labor: the one who does the work is entitled to its benefits
·         Desert: labor gives ownership
o    Rights: Natural Rights: particular interests are fundamental from a rational/moral perspective
o    Universalized: every person in similar circumstances would have similar protection
o    Social Contract: decision making process affects the decisions we make
o    Distributive Justice: if one person owned all property, they would be dictator
–       Utilitarianism: maximize social welfare and efficiency; focus on consequence of legal rule (cost/benefit analysis);
o    individual property rights increase efficiency by granting security and creating incentives to use resources efficiently – the goal is to maximize the aggregate level of satisfaction
o    people won’t invest if they think the products of their labor will be taken away
–       Social Relations: property rights are relational rather than absolute
o    They involve & create social statues; they should be defined to accommodate conflicting interests of social actors (eg, feminist legal theory)
–       Absolute Theory: property is an absolute, individualistic concept
o    Property is a basic right: ‘Life, liberty and property’
Blackstone: There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual, in the universe
Prudhomme: All property is theft
Rousseau: Property is evil
Bentham: property is nothing but a basis of expectation, which can only be derived from laws
Llewellyn: Law is what officials do to resolve disputes
Locke: Labor is the foundation of property
Margaret Jane Radin: To be a person… an individual needs some control over resources in the external environment (commodification argument)
Property is a bundle of rights backed by the State:
–       Right to possess
–       Right to control and use (modify and destroy)
–       Right to transfer (alienability)
–       Right to exclude
–       Right to bequeath or devise
–       Right to be liable for
–       Right to be immune from expropriation
o    How many rights must be present to qualify as property?
o    Property is a legal conclusion: the product of a system
Conquest and Government Distribution of Land
–       The discovery rule: The discovering nation has the right to assume lands either by conquest or purchase
o    conquest gives a title with the courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be respecting the original justice of the claim
§ Johnson v. M’Intosh– Indians had title of occupancy, but the US gov’t has the ultimate title; to be protected… while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others.
·         Homestead Acts/Land Grants – US gov’t gave away tracts of land; actual possessors had supreme rights over native occupants
o    Relativity of title: rights of property may be shared by many
·         Indians were tenants: they could use/transfer use, but not transfer title
o    Protected from individuals and states, but not the US gov’t
Capture and Prior Appropriation
–       The rule of capture: as pertains to wild animals, capture (depriving the animal of its natural liberty) is necessary to claim ownership.
o    pursuit is not sufficient to claim ownership (of an animal ferae naturae)
§ Pierson v. Post –Post did the work, Pierson captured the fox
·         Dissent: reward should go to those who labor for it
o    legal norms don’t always reflect social norms; courts are concerned with both the legal and social consequences of their ruling
§ Policy:
·         Clear rule is easier to administer
·         Encourages citizens to exterminate foxes
o    Moby Dick: loose fish (anyone can take) vs. fast fish (belongs to the person in pursuit)
o    Popov v Hayashi– Barry Bonds’ 73rd home run ball
§ rule of capture suggests ∆ owns the ball; court says each has a superior claim against the rest of the world à split the profits
–       The rule of capture is limited by negligence
o    Under the law of capture, there is no liability for reasonable and legitimate drainage from the common pool however liability will be imposed for negligent waste or destruction of the oil & gas
§ Eliff v.

      Brandeis – INS conduct may be unfair, but not illegal; this is a problem for the legislature
o    Both: Circular argument: ∆ relies on the value of the news to give it legal property protection; legal property justification gives it value
–       Unfair business competition
o    Business competitors have a duty to conduct their business so as not to unfairly injure another
o    Cheney Bros. v. Doris Silk Corp. – a business may imitate its competitors products so as not to allow a monopoly
Body Parts and Genetic Material
–       The law treats your cells like wild animals – once removed from you, they are no longer property. 
o    Moore v. Regents of the University of California- can I sell my cells? 
o    Patents are awarded to human ingenuity only (not naturally occurring organs)
o    Conversion: protects against interference with possessory and ownership interests in personal property à does not apply here. 
§ Elements:
·         Unauthorized and wrongful exercise of dominion and control over another’s personal property
·         To the exclusion of or inconsistent with the rights of the owner
o    Breach of fiduciary duty/lack of informed consent claims are justified
§ Protects s autonomy over his spleen, without giving property rights
o    Policy reasons for limiting property status of organs
§ CA statutory law limits patient control over excised cells to promote scientific research
§ State regulates disposal of tissue so as to diminish their status as property
§ Fear that a ruling allowing  to sell his diseased spleen would open the door to trafficking in body parts
·         In the interest of the state to promote donations over sale
Policy discussion:
–       Reasons for lifting the ban on selling organs:
o    The black market could be regulated
o    There is a huge demand and supply
o    The current system is flawed (the waiting lists are huge)
o    It’s paternalistic to not allow people to control their bodies
–       Reasons to keep the ban on selling organs:
o    The market would benefit the wealthy at the expense of the poor
o    Donations would be discouraged
o    Economic coercion of the poor: they may exploit their children, or undergo a risky procedure (studies that show safety are set in idealized circumstances)
o    Commodification devalues human life (Professor Margaret Jane Radin)