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Property I
University of California, Hastings School of Law
Feldman Harry, Robin



Legal Reasoning- Most important thing
Moore v. Regents.:


Moore goes for leukemia treatment, UCLA removes tissue and creates a cell line that they sold for billions


Section A

Breach of fiduciary duty
Lack of informed consent

Section B

“Conversion” -ownership rights, change of status: i.e. taking ownership

Does Moore have ownership rights to the cells of his own body?


The cells had already been removed from Moore’s body.
Health and Safety Code:

“Tissue shall be safely disposed of to protect public health and safety”

It’s illegal to sell body parts

Limitation in CA law

Majority: “If your rights of disposition are as circumscribed as they are in this case, we cannot say that you have property rights”

Limited Disposition


Cells must be disposed of
Could have contracted with research company for himself
Moore could have said “No”

Could lead to caste of body sellers

A Bundle of Rights: Particular rights depend on nature and circumstances- elements of Property- Things you can do with what you own.- (at least some, but not all”




Do You Have Property Rights to Your Own Body?

Moore v. Regents

If a body part may be re-attached, you may have some rights.
Bundle of Rights-

i. Majority:
1. You might have rights while the cells are in your body, but maybe not outside. Approaches the question the same way as dissent, although they reach different conclusions.
2. Consent-
3. How do you define property rights?
a. Possession
b. Rights to possession

Property Rights Cannot Be Used to Exercise Dominion:

Moore, Shack, Jacque:

The right to exclude from your land is not absolute (Jacque).
Court did not find it that way in Jacque
Court would not find right to exclude if someone would die in a fire.
Right to exclude cannot include dominion over those you invite (Shack):

Specific: Landowner cannot exclude those who are trying to inform migrant workers about their rights.
Broadly: Right to exclude is not absolute
Broadliest: Property rights are not absolute

Property rights are not absolute. They are limited in some ways.



Private Property (Current System)

i. Preserves Peace/Security
ii. Leads to efficiency, by offering ownership

State Owns Everything
No Ownership

i. Leads to armies

Works on assumption that legal rules should be developed by examining the consequences of those rules (Consequentialism/ Utilitarianism)

Non-consequentialists- work from moral absolutes

Johnson v. McIntosh

Indians had some rights:

Limited Right of Disposition:

Right to sell.

Theories of Property:

First Possession
Natural right

Read gifts: gruen, etc.


No right to ask for it

after the chase, kills and takes the fox. Lower court gives it to Post. NY Supreme Court overturns, awards Post.
Sources Authority:

i. Justinian Institute- need actual taking, pursuit is not enough, wounding is not enough.
ii. Puffendorf- pursuit plus wounding may be enough
iii. Barbeyrac- 3 elements
1. “unequivocal Intent” to use/possess
2. Deprived of natural liberty
3. Certain control
iv. No ownership of land issue, like in other cases

Issue: When will pursuit ripen into possession for the purposes of property rights in animals? What constitutes occupancy or possession for the purposes of acquiring property rights for an animal?
Holding: When pursuing an animal with unequivocal intention, having deprived them of their natural liberty and subjecting them to certain control, you have acquired property rights. Pursuit alone is not enough.
Dissent: The rule ought to be that “pursuit short of that leading to possession is sufficient for acquiring property rights, as long as there is intent, labor, and being close to success.

a. Facts: A boat full of lead sinks. Eads finds it, marks trees to find it. Sets temporary bouy. Is gone for six months. Second finder locates wreck, sets boat over it and begins salvaging. First finder sought damages.
b. Court treated cargo as abandoned:
i. Abandoned: “Item knowingly and voluntarily relinquished without further intent for future property rights.”
ii. Court infers intent from inaction