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Property I
University of Colorado School of Law
Desaultes-Stein, Justin

Property Outline – Professor Desautels-Stein – Spring 2018

Property Law – Big Picture & Generalities

General Outline:

The Eras of Property Law

The Classical View of Property
The Modern View of Property
The Contemporary View of Property

The Doctrines of Property Law

Possession and Exclusion
Adverse Possession
Fair Housing
Landlord – Tenant
Concurrent Forms of Ownership
Takings, Eminent Domain and Police Power

Styles of Argument & Methods for Arguing About Property Law:

Legal Formalism

Tenants of Legal Formalism

The law is scientific, with little room for disagreement.
Rules and common law are divine, and they come from nature and/or God.
Rigorously apply natural law, natural principles, and previous common law to new problems. There is never a need for new thought or new decisions because you already have all the tools you need to come up with an answer, like in math.

Philosophical Basis of Legal Formalism


The law contains terms such as “property” that are sufficiently elaborate to derive legal conclusions from them without any extrinsic aid

Example: The term “property” should allow a judge to determine whether something like a wild fox is property or not.


The law as a system hangs together and there can be no ambiguity

Example: Something is either property or not property. It can’t be both.


The law should be able to determine any question placed before it.

Example: A & B have a property dispute. A has installed solar panels on his roof. B buys the adjacent lot and constructs a five story home, blocking A’s panels for about half of the day. The law should be able to resolve their dispute.


Law occupies the field only subject to law

Example: If a new case arises for which there is not existing rule, it is possible to formulate a rule based on existing case law and principles to make a rule that fits the unique properties of the case at hand.

Critiques of Legal Formalism:

Natural law is made up and the logical form is a fantasy. You can make anything LOOK like it has a logical form but that doesn’t mean it actually does. Judges use legal formalism to judge on their own opinions and hide their true decision-making process.
Law is not math- it is real people, real disputes and real outcomes. “The life of the law is not logic, but experience.”

Legal Functionalism

What is the social need that society is trying to address?
How can the resolution of this dispute serve that social purpose?
Is there any expert or area of expertise that can help us figure that out?

A major part of the Modern Era of property law.
First developed by Oliver Wendell Holmes in his critique of classical era property.
Focused on practical outcomes, social interconnectedness, and heavy use of experts and expertise,

The Eras of Property Law

General Outline of Styles of The Eras of Property Law:

Classical Era
Modern Era
Contemporary Era


Classical Era = between the Civil War and World War 1.

Focused on the primacy of individual rights and natural law.
Based on the concept of a “state of nature” where there is no law and no government, but men make rules to guide themselves.

Three Essential Elements to Classical Era Thought:

1. Individual Rights / Equality / Free Hold Ideas
2. Private v Public Law
3. Legal Formalism

John Locke

Writing to justify the switch from the feudal system of land to the free-hold system of land ownership.
The question Locke begins with is “how can any person have a right to property?”

Offers equality, one of the cardinal features of property thought, we are all born into the world as equals.

Important and ironic, this was a time of slaves and many classes, of which only few had property.

Property ownership comes from mixing natural things with labor.

Step 1: If you don’t have a natural claim to property, do you have anything? Can you stay alive? You have natural claim to your body, owner of your physical person.
Step 2: If you come into this world with ownership over your body, you then have ownership over the fruits of your labor. As soon as your labor power is mixed with the natural thing being pursued, you have private property, a right to ownership

Labor is an expression of physical work IE the result of your own body. Therefore, you can own something by putting your own physical work into something that is natural. This triggers right to exclude.

Example: Apples.

Because all people have labor, therefore all people have property.

There are two limitations on property ownership in the state of nature.

1. Don’t take more resources than you need, don’t waste anything.
2. Leave enough so that everyone else has access to the resources they need.

Policy Justification: these exceptions are based off of equality and justice. Everyone has a right to do what they want with their property, but not so much that it harms others.

John Locke argued this as the same with all rights- your right to swing your fist ends where my nose begins.

Exception: an era of money

If society discovers the use of money, all bets are off, this notion of harms and limitations are not as important.

Equilibrium of resources is restored if otherwise wasted material is sold, rewarding those labors that gather more than consumable.
Invisible hand – should we be concerned about those who will starve without apples? No, we will be better off if people are profit-driven to gather valuable things to sell, as a result, there will certainly be inequality, but this is the price we pay to live in an industrious and specialized society.

The modern conception of money solves #1 (waste) because money is non-perishable. As long as you sell what you do not eat, and save the money for later, you are not wasting anything.
Money solves #2 (leave enough for others) because labor is now tradable. As long as there is something useful for everyone to do, everyone can make money, and everyone can have access to whatever resources they need.

Even if some people starve, or some people can’t pay for what they need, this is better in the long run because it incentivizes industriousness and hard work.

The purpose of government is to protect this natural order

Governments are born out of social contract to protect people’s property and individual rights

Because government is designed to promote individual rights, government is subservient to natural law and natural principles.

Government protection of property means deciding who really owns land, based off of who has mixed their labor with nature.
Why create government? Why not just stay in the state of nature?

Most of us in the natural world are not able to figure out resource allocation on our own. We need judges to explain the rules to us and the reasoning for those rules.

Locke needs to make two assumptions in order for his theories to work in the real world.

Plentiful resources
Societal agreement on beneficial use

John Dillon

Used Legal Formalism (for a rundown of that, go to the first page of this brief.)
“Sand into Gold”

John Dillon was writing in a time where communism and socialism were taking over much of the developed world, so his papers were highly American, and argued that capitalism and private property are what make America great.
Distinguished from John Locke in that property ownership isn’t defined by nature plus labor. Rather, it’s nature plus the right kind of labor, that turns sand into gold.

Must make sure people are actually establishing dominion and cultivating the land, making it into something better than they found it. Putting a fence around a plot is not enough.

Possession is what incentivizes people to cultivate land. Owners want to make things better- renters and public land users do not.
Room for debate: if a person is using the land for meditation and nature retreat, is that the right kind of labor?

The natural rules of property are essential foundations of our social fabric.

Dillion builds on Locke, claiming that ownership is the reason for America’s innovation and cultivation. “Owning land will make it into a garden, but renting even a garden will turn it into a desert.”
Possession requires cultivation, you have to work if you’re goin

functionalism, see page 1.)

Bundle of Sticks

In the modern era, property law isn’t treated as “Stuff.” Rather, it’s treated as a bundle of different rights that can be owned in entirety or can be given up piece by piece.

This is called the “bundle of sticks” approach because property is like a bundle of sticks.

Ex: If you own a house, you have the following rights:

Power to exclude
Power to sell
Power to lease
Power to transfer
Power to destroy

Ex: If you only rent the house, you have the following rights:

Power to exclude (to an extent)
Maybe a limited power to transfer

Approach established in US v Craft


Contemporary Era = era that came immediately after the modern era, is the era in which we are currently living. Characterized by the neoliberal political view, and a combination of classical and modern property thought.

Immediately after modern property thought, conservatives and neoliberals revitalized classical property thought, and applied it to the modern world

Renewed appreciation for legal formalism, emphasis on decreasing ad-hoc tests and rulings
Renewed love of individualism, contrasted with social needs
Renewed trust in the market and invisible hand

Return to the idea of self-regulating market

Suspicion of government

Suspicion of police power
Sharper public-private divide compared with modern legal thought

The police power is a grotesque monstrosity, that’s grown so far for so long
Need to cut down on all government

No more need for experts

Neoliberal View

Neoliberal view of property came to represent the contemporary method of viewing property law

Individualism AND social interdependence both valued

Property rights are individual rights. Society is an artificial construct, and the role of government is to protect individual rights, not the general welfare.
Individualism seen as the source of property law, social interdependence seen as huge influence on outcomes

Legal formalism AND legal functionalism

In contemporary legal thought, the lawyer pragmatically shifts between formalism and functionalism modes as the situation demands. Doesn’t actually believe in the truth of formalism or functionalism, but uses them as tools that should both be used.

Functionalism gives judges a warrant to bring politics into legal analysis. That is activism, and results based adjudication. The true course for judges is to follow the rule of law and respect the expectations of citizenry.
However, must still consider outcomes

A return to exclusionary strategies.

The true nature of property law is best served by exclusionary strategies. A right to exclude facilitates our interests in autonomy and freedom. This is the proper baseline for societal governance of property. Property defines thigs using an exclusion strategy.
If the right to exclude is the foundation of architecture, the superstructure includes a different sort of means. These are called governance strategies.

We do have to deal with some things and laws that didn’t exist under John Locke, but that should be more like a fuzzy haze around the strong ideas of individual rights and right to exclude.

Can see property as either things or bundles of rights!
Some public private distinctions are sharp, others are blurry