Spring 2015 – Professor Bronin
I. INTRODUCTION TO PROPERTY
A. Basic Notions
1. Property rules come from social norms.
2. Property law = State law (comes from the states, concepts common to the states).
II. WHAT IS SUBJECT TO OWNERSHIP?
A. What is “the Commons”?
1. RULE: When you have property, you have certain rights; like the right to exclude: hallmark right of property ownership.
2. Another right is the right to use.
B. Distinction Between the Different Types of Property:
Oceans, atmosphere, outer space.
State parks (outside can be excluded, shared by a defined group in a community) = LIMITED ACCESS
C. Open Access.
1. Definition: The kinds of property anyone can use; can’t prevent anyone from using them.
2. RULE: With open access, you do not have the right to exclude.
D. Limited Access.
1. Governance Structure (open access and private property do not have this).
2. How do you know that you own the property?
– RULE: Governance; the ability to exclude and identify what the property is. Entitlement.
3. The Coarse Theorem:
– In a world with no transactional costs, people will bargain to the best result.
E. Property Rules and Liability Rules. (59)
a. Rule 1 (no dam)
b. Rule 2
Defendant (dam builder)
c. Rule 3 (dam)
d. Rule 4
– (b) If the dam is built and causes damages, then the P can collect compensation.
– (c) D can build dam.
– (a) + (c) In these, they can sell their rights.
– (d) D can get $ (P pays D to stop building dam)
2. Entitlement: Who has the right to begin with (the original right to the property)
– PROPERTY RULE: Someone can destroy the initial entitlement only if the original owner agrees to it.
– LIABILITY RULE: Someone can destroy the initial entitlement if they pay for it.
– This is why who has the initial rights is important.
F. How to Own Physical Items on Your Land:
1. RULE: If you own the ground/land on which an object sits, you own the object. (for ex; trees, buildings, etc.) You can also own the land/soil on which the object sits.
2. RULE: (capture): You can also own something if you capture it. Ex; cutting down a tree.
3. RULE: If you exert labor to acquire the property, you may be entitled to ownership rights.
4. Case Examples:
a. Keeble v. Hickeringill: Malicious interference, D got gun and scared the fowl away that P was hunting.
b. Pierson v. Post: Fox was awarded to the person who actually killed the fox and captured it. Labor was not awarded to the one who has chasing down/hunting the fox (one person got all of the glory)
c. Ghen v. Rich: What is the custom? Who owns the whale and how are our social norms enshrined into the law? This spear whaling case = signal of ownership. Court had a split remedy here; the finder of the whale also got a reward.
d. Eads v. Brazelton: Shipwreck case; finder abandoned it for another l
on-obvious: patented processes, products.
– RULE: A patent doesn’t give you the right to make the product. Gives you the right to exclude, but not necessarily the right to use?????
1. RULE: There are certain interests that cannot be treated as property because they are too closely connected with personhood.
2. There are rights that are inalienable (not able to be transferred or sold), thus everyone is excluded when it comes to personhood things.
· body parts, dead bodies, organs.
· Fruits of certain kinds of labor
· Cultural objects: Those so associated with the group/culture that they have to be protected as well.
– RULE: Taking property from someone else requires due process (such as a notice and hearing)
b. Newman v. Sathyavaglswaran: Case about who had initial entitlement to the corneas of two deceased children. Court held that the parents had property interests in the corneas of their deceased children, protected by the Due Process Clause of the 14th Amendment.
– Conversion Claim: A personal property tort.
c. Moore v. Regents of the University of Cali: Case about a conversion claim, debating whether the P had an expectation of keeping cells extracted from a spleen. Court held that the P’s complaint stated a cause of action for breach of fiduciary duty (or lack of informed consent) but not for the conversion claim.