1. responsibilites/ liabilities
2. Right to use (freedom to do, or not to do, what you want with it) and continue to (or even control the use, pass use to somebody else).
correspondance with value, but not one of the concrete characteristics.
3. Right to transfer ownership – right of “alienability”
4. Right to exclude (totally different from #2)
5. Immunity (right to not have it taken away) from expropriation
takens clause- private property can’t be taken away without consent unless it’s for public use and there is a just reason
6. Right to destroy (theoretically is an attribute). Ex: it’s my book so it’s my right to burn it.
– right to defend (to what degree matters) can be filed under “right to exclude.” At the very least is the right to call the police.
Relational theory of property is related to relativity of property.
7. Right to pass on your property (could arguably be embraced in right to transfer but death is special). Death has special vocabulary (devise, inherit, est.)
I. Initial Acquisition
Native American Land
Their land was regarded as spiritual. Specific areas were connected to specific tribes by history and spiritual linkages.
Not possible to own land in the sense used by non-Indians.
Far more oriented to sharing.
Property conceptualized less in terms of ownership than limited use rights. There were many borders.
Property was not generally sold in way that gave full powers and uses of property would overlap.
Positivism and legal Realism
Positivist theories ID law with the “commands of the sovereign” or rules promulgated by authoritative govt officials for reason of public policy.
May be intended to protect individual rights, promote the general welfare, increase social wealth, or maximize social utility.
Judge s directed to apply law promulgated by govt and lawmakers and exercise discretion when gaps, conflict, or ambiguities in the law.
Property exists in the extent the law will protect it.
Positivists separate law and morals and analyze legal rules in the way a “bad man” would – simply want to predict what legal sanctions would be imposed if he engaged in prohibited conduct.
All lawyers and judges are positivists because they predict how rules fit into situations. Judges determine existing rules and whether they apply to situation , as well as techniques of statutory interpretation and analysis of precedent, and conception about proper role of courts in lawmaking process
Justice and Fairness.
Positivists criticized by people who thought judges should not exercises untrammeled discretion in filling ambiguities.
They should interpet gaps, conflicts, and ambiguities in the manner to protect indiv. Rights, promote fairness, or ensure justice.
Rights theorist try t
property, sharing, and deregulation.
Relations among persons regarding control of valued resources.
Legal rights are correlative and every entitlement is limited by the competing rights of others.
Property rights are delegations of sovereign power to indiv. by state; and should therefore be defined to accommodate conflicting interest of social actors.
Social relations can shape access to property or vice versa (feminist legal theory, critical race theory, etc.)
Race, class, and gender may play role in shaping the concepts with which we understand human relations.
Property has traditionally been associated w/ ideas of autonomy w/in boundaries (ex: we assume people are free to do what they want within the borders of their land)
Argue replace idea of boundary with idea of relationship.
Obligations emerge over time o ut of relationships of interdependence.
Idea of power in property law
Alien land law that denied ownership to Japenese immigrants and provided precursor to WWII.
Communitarians and environmentalists emphasize importance of community life as well as indiv. rights.