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Property I
University of Connecticut School of Law
Bronin, Sara C.

Property Outline May 2010, Bronin
I.                    Introductory Material
a.       Property rights- the main sticks in the bundle
                                                               i.      Right to use
1.      Open access- is there truly open access?? High Seas or Outer Space- it’s a governance problem
a.       Open Access vs. the Commons
                                                                                                                                       i.      Is OA really common property or limited access-
                                                                                                                                     ii.      Does thr tragedy of the commons (over consumption- too many people) result from too much freedom
                                                                                                                                   iii.      Alternatives to Open Access
1.      Set up a system of rules
2.      Allocate Exclusive rights
3.      Individual transferable quotas (fishing rights)
                                                                                                                                   iv.      Anti-commons
1.      Too many people can exclude so you end up with an underconsumption- Genetics, Wilderness areas
                                                                                                                                     v.      Semi Commons
1.      Fish before they are caught are Open access a
2.      Fish after they are caught are Private Property
2.      Common property: Limited access/communal property- may be publicly owned but controlled and limited to a certain group of people. Exclusion may be by one person and can exclude outside group
3.      Private property- owner has right to use/exclude/transfer but can be limited. Governance is by the owner
                                                             ii.      Right to exclude
                                                           iii.      Right to transfer
                                                           iv.      Right to quiet enjoyment
b.      Coase Theorem
                                                               i.      Seeks lowest possible transaction costs. Basically states that in a perfect world without transaction costs, parties will always negotiate to the best result (most efficient)
                                                             ii.      Coase says not really, just minimize transaction costs
c.       Property vs. Liability rules
                                                               i.      Property rules deal with rights and the property (injunctions) where liability rules deal with damages.
                                                             ii.      Property rule can destroy the initial entitlement only if holder agrees to release it
                                                           iii.      Liability can destroy the entitlement only if they would pay a determined amount to destroy it
                                                           iv.      Inalienability rule- the initial entitlement cant be destroyed because it is entwined in the identity of the holder-
1.      See body parts, body for sex, self
                                                             v.      Four (4) Possible rules
1.      Property rule in the Plaintiff-
a.       P gets injunction, D needs to consent
2.      Liability rule in the P
a.       P can’t enjoin D, But has some right to damages
3.      Property rule in the D
a.       D has right to property (i.e. build dam) No injunction
4.      Liability right in the D
a.       P has to pay D to prevent D’s use (i.e. P pay D to NOT build)
                                                           vi.      Property rules usually applied when transaction costs are low and Liability rules usually when costs are High
d.      Ex-post/Ex-ante
                                                               i.      When the situation is analyzed before or after some critical even takes place will determine also whether a property or liability rule is applied
II.                  Acquiring Property
a.       Ways to Acquire
                                                               i.      First possession—you can first poses things that are not owned- but there aren’t many. Maybe wild animals or shipwrecks- Discovery, Creation, Accession, Adverse Possession
1.      Owning Soil on which the thing exists (minerals, timber oil- etc)
2.      Posting sign the confirms ownership (fence, flagging)
3.      Put work into it- (labor) to make it profitable
4.      Wounding an animal
5.      Capturing an object (pursuit not enough)
                                                           ii.      Pierson v Post
1.      The Fox Hunting Case- Post was hunting on beach, Pierson came and ended up with the fox
2.      Holding: Wounding and pursuit of the animal may not be enough to claim possession- NEED the body
a.       More labor- Pierson cant reap where he has not sewn
b.      Looks to norms of hunters
                                                                                                                                       i.      Taking possession of the animal
                                                                                                                                     ii.      Certain control of the animal (mortally wounding)
                                                                                                                                   iii.      Dissent says hunter has the right to prospect of capture
                                                         iii.      Ghen v. Rich
1.      Whale Case- Issue of how do you know you own the whale? Whale marked when caught at sea then washes up on shore- Someone else finds it and then sells it back to Rich
2.      Holding: Norms of Whaling Community- there is a lot involved in catching the whale- Is signaling with an iron enough? Yes- Looks at “iron holds the whale” can attach to boat, fast fish loose fish
3.      Remedy here was damages and proceeds back to original finder
                                                         iv.      Keeble v. Hickeringill
1.      Duck case- neighbors making decoy to catch duck and the other is firing guns scaring them away
2.      Malicious interference- D was preventing P from his livelihood

orneas here- not a full property right in body- goes back to the origin of how a body was buried by church then had to be taken care of by decedents
                                                         iii.      Moore v. Reagents
1.      Spleen Cells, Drs took out spleen and did not inform Moore that cells would be used in research.
2.      Court- no right to spleen cells as a property right. Does have a right to informed consent that they would be used in research, but no right to make money off of them
3.      What about the fact that the University and MDs did make money?
                                                         iv.      Hecht
1.      Posthumous Sperm fight. Bill Kane told girlfriend that she could take frozen sperm and have his kids after suicide,
2.      Court says that there is a quasi right here because could create life. It is “due greater respect than other tissue”- But there are restrictions on use
                                                             v.      Whey should there be a property right in Sperm more than Stem Cells????
c.       Artists Moral Rights
                                                               i.      VARA- Federal Moral rights prevent destruction of artists work
1.      Protects against destruction or mutilation of work, showing it against authors wishes,
2.      Does not cover works for hire or commercially protected works
                                                           ii.      Moakely v. Eastwick
1.      Mural Case- State law about artist’s rights. Church wants to destroy a mural that artist painted because it was offensive to them.
2.      The problem here is act was enacted after the work was created- should it be applied retroactively
a.       NOT
d.      Cultural Patrimony
                                                               i.      NAGPRA- Gives back to Native Americans
1.      Protects – found on Federal tribal Lands
a.       Human remains (funerary remain) and
b.      Cultural patrimony (So centrally associated with a group)
                                                                                                                                       i.      not owned by an individual
                                                                                                                                     ii.      Cant be given away- inalienable
                                                                                                                                   iii.      Ongoing historical, traditional importance
2.      Objects to be repatriated