Carrillo Section 2 Exam Preparation Outline.
Mistake that people make with legal writing – the part that gets left out of answers written under time pressure is the RULE, the most important part. GET THE RULE IN THE PAPER
First, establish the TYPE of property and why you are using it.
Give reason why something could be considered any type of property
Then, write the rule and why the rule applies to this situation
Always talk about Policy/externalities (use in economic policy rationale – helps include all )
This outline is intended to guide you in your exam preparation studies.
CAUSES of ACTION
Practice writing out an answer to each of the problems. Each answer should fill a 50-60 minute WRITING period. Important reminders:
· State rules concisely and accurately where relevant – state the rules in the text of you answer. Don’t forget to include the governing rules. Forgetting to demonstrate knowledge of rules is a common mistake that students make in the time rush of an actual exam. Knowledge of rules and ability to state relevant rule language concisely is one indication of proficiency in a subject area.
· Keep to the analysis. Don’t wander off in unusual directions. This is the course. Stick to the course. Start at point A and write your way to the end point, and do this for each problem. It’s an important skill to be able to stay on point – staying on point when writing out an answer to a problem is one indication of proficiency in that subject area.
· Add information if you think it’s relevant. You can certainly improve on the basic outline if you wish. Don’t be shy to demonstrate your knowledge. I want you to shine!
· But don’t omit key parts of the analysis. This is the basic template for this kind of problem – I give it to you this day to make it yours. Don’t shrink it – but do feel free to expand on it. The limit of your elaborative ability will be time. Do not write for a period that is longer than 60 minutes.
· Don’t skimp on the rule analysis in order to discuss policy. This is another mistake that students tend to make. When understanding flags, students tend to want to default to policy discussions. Keep your policy discussions brief, controlled, and to the point, unless the answer is clearly one that invites you discuss policy at length.
· Make time your friend. Get comfortable with the 50-60 minute writing period. It’s a very short period of time, nota long period of time – as too many students think. Depth of analysis should be calibrated for the 50-60 minute time period.
· You can create a template for any of the types of problems we’ve discussed in this course.
· If you’ve been in class and if you’ve tuned in from time to time – and you have – then the exam will be a very doable exercise. The exam will test you on the basics. My standard for exam composition is this: what is it that I think every lawyer – no matter his or her specialty – should know about property law?
What follows is a solid – complete – analysis that would allow its writer to clearly demonstrate her or his knowledge and understanding of the tension that exists between the FSA and the LE in legal form (i.e. outside of trust).
General notes on the nature of property
4 Property Rights
Right to Use
Right to Possess
Right to exclude others from touching using, appropriating, etc.
Right to Transfer/Sell the item
Property rights do not define rights to the “thing”, but order relationships among actors in regards to the thing.
In Post v. Pierson, post is trying to make Pierson relinquish possession of the fox.
Property rules are stable, secure, rules. Property right is core right in American system.
Property right is very difficult to change – Can be changed by LEGISLATION or by CONTRACT
Example – in CA, marriage brings with it community property rights. These rights can be changed/opted out of by contract.
Open Source Property – ANYONE can appropriate pro
Ghen v. Rich (pp. 23-35): Did the U.S. District Court of Massachusetts apply the rule of capture in this case? (No.) What factors persuades the court that this fin-back whaler’s usage, which is unique to the Provincetown area, is as reasonable as the case law, which applies across geographical areas (Taber, (p. 24), Bartlett (p. 24), and Swift (p. 25)? Is it that the Provincetown usage – which is recognized in Provincetown, acquiesced to by the whalers of Provincetown, and necessary to the survival of this type of whaling in Provincetown, and fair to all – is of “extremely limited” application? What is a usage? Again, list the five reasons why the court adopted the Provincetown usage in this case. In this context, what is the difference between a legal rule, a usage, and a usage that has been incorporated into the common law?
There are 6 Philosophical principals justifying Private Property:
1. Occupancy (note 3, page 11). Aka possession.
a. In PvP, notion that chase equaled reasonable chance of occupancy
2. Labor theory (page 14)
a. In Pierson v. Post, argument that Post worked towards possession of fox falls under this theory
3. Utilitarianism (note 6, page 16) – aka “Power Rationale”
a. It will be good for society if I have
4. Natural Law (Note 7, Page 17) – “It’s the way it has always been”
5. Economic (Pages 35-50) – what makes the most people happy
6. Environmental justification