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Property I
University of Connecticut School of Law
Berger, Bethany

Property Law – B. Berger Spring 2009
1. Introduction
a. What is property?
i. As distinct from contract law, it applies to non-parties
ii. Right to arbitrarily exclude anyone
iii. Right to use – can divide in time
iv. Right to transfer
v. Right to keep others from harming your own property interests
vi. All of these rights run into limitations
b. Goffman, “Asylums”
i. Total institutions – divide you from your property (i.e. monasteries, asylums)
ii. Do this for two reasons:
1. Allows them to control you
2. Reduces autonomy and strips you of part of your independent identity
iii. Property v. Possession
1. In the asylums you have immediate possession of some things (books, your issued clothing) but it is not your property. Doesn’t come with the bundle of rights
2. They do things explicitly to show that it is the institution’s property (inspections, labeling, shifting rooms in the monasteries)
iv. Inmates respond by trying to create property in territory
v. An example of how property can emerge without formal law but then take on a law-like status as people respect the order that has emerged
c. Territorial claims
i. First in time – has the advantage of stability, ordered expectations
ii. Repeated use
iii. Allowed to keep because of respect or need (distributive justice)
iv. Might makes right (these systems in the inmate setting tended to be the most volatile)
d. Why do we allow other to have property rights?
i. First in time rule – need something more, not a sole justification
ii. Labor investment – note that is limited to particular kinds of labor
iii. Positivist – what the state says it is (think Bentham/Hobbes Leviathan) but this requires a stable state that people will defer too. Also doesn’t answer the question of what the state ought to say counts.
iv. Settled expectations – sort of a combo of first in time and a lengthy holding of property. We want people to be able to order their behavior prospectively
v. Utilitarian – develop a legal system which maximizes the utility of property or maximizes the social welfare function.
vi. Distributive justice – need a wide and fair distribution of property
vii. Identity/personhood – property gets bound up in our personal identity to the extent it ought to be protected. Helps us orient ourselves w/ respect to the outside world
viii. Critical theories – CLS, CRT, etc. Property ordered to protect dominant groups.
e. Note property is fundamental to our lives. Gives us protection from change, helps generate wealth and identity
2. Acquisition through first possession
a. Pierson v. Post
i. Chasing the fox, other guy kills the fox and takes it
ii. rare case of property that is wholly unowned
iii. Everyone in the opinion agrees that you only get property by occupancy
iv. Majority comes in favor of a brightline rule (unless you’ve hurt it pretty bad, “hot pursuit” d/n give you any possessory rights) on the basis that the opposite rule would engender excessive litigation.
1. may lead to more fights outside of the law and spillover into other areas. Keep social context in mind.
v. Dissent argues that fox hunters would be best placed to decide
1. sort of an institutional competence argument.
2. Would say that if you had a reasonable shot at getting it, it’s yours.
vi. The farmers just wanted the foxes dead, which the hunters might have helped with but the horse and hound hunting method was also destructive to their farmland
vii. Tension between wealthy traditionalists and newcomers
viii. Can also see a rough division between fairness and efficiency justifications. Majority rule is nice for administrative efficiency. Dissent rule seems more fair, and also argues it better serves the public policy of killing foxes (though this is probably incorrect)
b. Popov v. Hayashi
i. Popov wants to argue that the ball is like a wild animal and that his rights vested as soon as it was in his glove
ii. Problem is there are intervening wrongdoers. Popov was set upon by what the judge calls “bandits” thus foreclosing his opportunity to complete the catch
iii. Judge rules that both Hayashi and Popov have a superior claim as against the world, but equal claims with one another.
iv. Orders ball sold and proceeds divided.
c. Elliff v. Texon
i. Elliff suing for damages resulting from a blowout gas well drilled by Texon. Sprayed gas and distillate everywhere, lots of which caught fire. Burned for years.
ii. Δ argues that by capture, πs had lost all property rights as soon as the gas migrated off their land
iii. We want to encourage people to invest in drilling, which was the justification for the rule of capture.
iv. Court instead creates a negligence rule, that you cannot waste the oil you take or take it in an reckless or irresponsible way
v. moving a strict rule (capture) to a flexible standard (reasonableness)
vi. Also the new rule mitigates the incentive to bring up the oil too quickly, which was wasteful.
vii. Applying rules to Exxon Valdez v. Fisheries
1. rule of capture – fisheries don’t own the fish ‘til they bring them up, therefore no cause of action
2. however, Exxon’s use of the fish was wasteful
d. Tragedy of the Commons
i. predicated on a rational self-interest model of human nature
ii. solved by private property. internalize the losses, therefore self-enforcing
iii. yet private property exacerbates open-access problems.
iv. idea of a 2nd best morality – want to cooperate but concerned with being taken advantage of. Splits the difference between a pure rational actor model and an idealized virtuous person
e. Acheson, Lobstermen of Maine
i. Have kind of a self-enforcing territorial limitation system
ii. not a pure open-access situation, which helps the problem somewhat because they can develop multi-round relationships with one another.
iii. mutual interest in sustainability that they know that they others know that they know… so they can trust people to defect

d property rights by fiat
v. Δ argues that b/c Indians did not have an idea of individual rights they could not have acquired title. Also, they had not sufficiently mixed labor with the property to acquire it through labor
vi. Marshall opinion:
1. begins w/ the European settlement. Conquest gives a title the courts of the conqueror will not deny. Property rights stem from the sovereign.
2. Need a fixed principle to sort out all of these property claims
3. Discovery doctrine – originally created to settle claims between European nations. Gets the right to ultimate title but the Indians maintain more limited rights of occupancy (kind of like a life estate). Europeans have sole right to transfer and extinguish title.
4. Creates a monopsony because only the USFG can buy the land from the natives
5. Court seems uneasy about the doctrine they end up with.
b. Current claims
i. USFG held exclusive rights to buy land but the states continued to buy it up illegally
ii. Indians bring a test case under Non-Intercourse Act
iii. SCOTUS finds the claim exists, no statute of limitations
iv. ultimately decide that the remedy is impossible even if the claim is legitimate
v. raises the question of what you do to correct past illegality when correcting it will lead to present injustice.
vi. Congress could step in, seeing as they’re allowed to extinguish title at any time.
vii. Courts have used the laches doctrine to drastically reduce chances that claims will be successful
c. Hurst – Squatters
i. people were on the land and created small governments. Illegal under Federal law.
ii. making a labor claim to the land. Settled and cultivated with great hardship and needed a rule of law
iii. labor claim is similar to that of the freed slaves in the Litwack article
5. Limits on Property Owners’ Rights to Exclude
a. Governmental allocation of rights can be in tension with our other norms (first possession, distro justice)
b. court may simply reifying the rights of those that already have power
c. Efficiency may trump injustice – counter arg is that justice may have long-run efficiency gains through social stability
d. law does not reflect the traditional property notion of absolute dominion over real estate. “Creeping socialism” encroaching on property rights, recognizing that society does have an interest in regulating individual property rights.
e. State v. Shack