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Property I
University of Connecticut School of Law
Berger, Bethany


Professor Berger

University of Connecticut School of Law

Fall of 2013

Property – Bundle of entitlements (use, exclude, transfer, prevent harm) that define relationships among people with respect to things.

Justification for Property

Positivism – who does the government say the property belongs to?

The positive here is predictability (efficiency)

Justified Expectations

Efficiently/ social welfare

Who is going to use the land most productively? That’s why we want to be able to transfer land to those who can maximize their use (free market)


Distributive Justice/ Equality

Income and wealth inequality

Labor / Investment

I’ve worked for it, so it should be mine.

Not fair if someone else gets it

Personhood / Identity Interest

How do you put a price on sentimental/emotional value?

That’s where my family live. It’s important to me.

Possession and occupancy

Especially who got it first. I’m here and I used it first, so it’s mine.

Simple might may make right (power justification)

Erving Goffman Asylums.

How do members establish territory?

First in time – getting there first+ marking territory

Settled expectations (he goes there all the time)

Distributive justice (it’s a pretty good pace. He’s elderly and people respect that)

Labor justification (those who have done work get a little more)

Might makes right

Government allocation (positivism – because government said it was so)

Governmental allocation as a source of property.



Sense of security

Efficiency because of security

On the other hand, government allocation as a source of property:

May violate other rights or expectations

May violate notions of distributive justice

Johnson v. M’Intosh (1823) – Johnson (P) claimed title to property conveyed by the chiefs Indian nations. Justice Marshall held that U.S. government claim to the land trumps that of Johnson’s ancestors even though the latter clearly purchased the land first.

P’s argues:

Sovereign doesn’t have authority over Indians.

Indians have property, so they can sell it.

P has vested rights (justified expectations). Once you have it, the government can’t take it away.

D argues:

Positivist argument: Indians are not civilized. There is no sovereign, so there is no property. They did not possess that property.

Power: Even if they had that right, they lost it to U.S. government

Distributive justice argument: Indians don’t really need it as much, so they don’t get it

Insufficient labor: Maybe there is labor, but there was not enough of it.

Marshall: doesn’t deal with hose arguments much. Not for the courts to question whether it was right for the British to have that title.

Positivism – law is just what the sovereign says it is. Not about morality or

natural rights. (Marshall cares about stability and reliance)

o Discovery: European discovery and conquest give them exclusive right to extinguish title.

o Indians retain a bundle of rights: to use, to exclude. But they don’t have the power to transfer. Indian land sales are only valid if they’re recognized by the U.S. Native Americans cannot sell their land to a private party. They can only sell to the government.

Economic argument: One policy justification for Discovery rule: when U.S. acquired the sole power to purchase land, it avoided bidding competition between settlers and thus the rule allowed it the sale of land at the lowest possible cost (the federal government received the monopsony for sale. Lowered the prices compared to free market).

Acquisition by Labor and Investment; Intellectual Property

o Locke’s labor theory: if you expend labor in property, you should get rewards from that labor. He qualifies this to build in distribution in there. This goes counter to government source of property.

o Dilemma in intellectual property: how do you reward individual creativity and labor without creating monopolies (International New Service v. Associated Press)

· RULE: Under common law, the general rule is that copying is fair game. The news itself is not property, but a news agency has “quasi-property” (labeling something “quasi-property” protects original owner’s rights).

Fairness arguments Social Utility arguments

In favor of property rights for news In favor of property rights for news

-They work for it, so it should be theirs -creates incentive to invest capital and resources into news making

Against property rights for news Against of property rights for news

-It’s fair to let others in the market. -Creates monopoly

International News Service v. Associated Press (1918): AP sued International News Service for re-publishing AP’s news from bulletin boards and early editions of AP’s affiliates.

The court held that there are quasi-property rights in news, but those property rights are between individual competitors, not to the public at large, and only necessarily to maintain business model.

Majority Opinion argument (didn’t cover this)

Value: AP made expenditures gathering the info, and International News Service is a freeloader. (Lockean Argument: One should own the fruit of one’s labor. This rule provides incentive to labor and investment, and therefore is in the public interest.)

News have market value and therefore it resembles other type of property. INS’s rule would lead to loss of public information because of loss of an incentive to gather it. Would not make a workable business model for AP.

Utilitarian argument. If AP is not protected, there would be no economic incentive to expend the effort to gather the news. Therefore, the public won’t receive the benefits of being able to read worldwide news in the local paper.

Dissent by Brandeis:

This is just a what happens in a free market. Brandies thinks AP should lose.

Legislature is best positioned to give balance competing public policy inte

necessarily be good for the society as a whole.

· In contrast to the killing of the whales case, fox hunters do it for recreational purposes. Killing of whales is done for commercial reasons, so the industry there is more likely to know how to do this more efficiently. Here, custom is more appropriate than the fox’s case where the majority did not custom

§ (2) Fox is a brutal creature that should be killed. We don’t want to discourage productive labor. Post had already invested significant effort in catching the fox

· Also, if we want to encourage hunters to kill foxes, let’s encourage productive killing. Not just reward efforts.

Baseball (Popov v. Hayashi) – Popov wanted to argue that the ball is like a wild animal and that he had possession rights as soon as the ball was in his glove. The problem is threre are intervening wrongdoers who foreclosed his opportunity compete the catch. Popov didn’t establish that he would’ve retained control of the ball after all momentum and incidental contact with people and things ceased. Thus, he didn’t satisfy the rule of possession. However, Hayashi came upon the ball while it had a “cloud over it” and thus, both are entitled to half.)

o Rule of Capture: an actor must retain control of the ball after incidental contact with people and things.

· Difference with the Fox – not much need to incentivize catching baseballs.

· Relativity of title concept here.

Oil and gas

RULE: owners of land are free to extract (oil, gas, minerals, etc) from their property as long as they do so reasonably and limit waste – even if much of a liquid or gas resource flows over from beneath their neighbor’s land.

Elliff v. Texon Drilling Co (Tex. 1948) Elliff and Texon each owned property that shared underground oil deposits. Texon negligently withdrew oil and caused this joint oil to catch fire.

“A strict capture rule” would incentivize investment and extraction, but can also lead to waste, so the court here redefines a strict bright line rule of capture into a reasonableness standard (requirement to not be negligent)

This rule still encourages investment in oil drilling because one can take it from others, but limits free-rider overconsumption problem by reasonableness standard

Lost and Found Property Categories.

· Lost Property: owner accidently misplaced it

· Mislaid property: owner intentionally left it somewhere and then forgets where he put it.

· Abandoned property: owner had intent to relinquish all rights in property