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

Property – Prof. Bronin – Outline Fall

I. Introductory Matter
– Bundle of Rights Rights:
1. Right to Use
2. Right to Exclude
3. Right to Transfer
A. The Commons (95-102)
1. Open Access and the Commons –
a. Thrainn Eggertsson, Open Access vs. Common Property
– open access – effects supply and demand
– suppy: depletion and deinvestment
– demand: pick berry b 4 ripe
– rule of capture – immediately establishes ownership
– common property regime – complex structures that involve rules and enforcement mechanisms
– external effects – driver on open highway slows others down
– open access fisheries in int’l waters suffered ill effects
– tragedy of the commons
– Aristotle: “what is common to the greatest number has the least care bestowed upon it. Everyone thinks chiefly of his own, hardly at all of the common interest.”
– Eggertsson: a solution to open access problems, individual transferable quotas.
– Freedom in a commons brings ruins to all
– used to compare to our environment, air, ocean, internet
– ppl will act cooperatively if necessary: sml communities don’t abuse the commons
– much of the grazing lands were not open access they were common property w/ restrictions on use for those in the community; e.g. Boston Commons (but that was overgrazed)
b. Commons, Anticommons, and Semicommons
– anticommons: where too many people have the right to exclude and consequently no one is able to use a resource
– example: Russian street kiosks, Patents on genes
– benefits: veto power can help preserve the property
– tragedy of the anticommons: by exercising their right to exclude
– semicommons: occurs when a given resource is subject to private exclusion rights in some uses or along some dimensions, but is open access for other purposes or along other dimensions
– example: grazing commons, some will have a strip of land for part of the year, but then it’s open access for grazing other parts of the year/ copyright, allows fair use for some, but otherwise copyrighted
B. Coase Theorem (30-40)
1. The Coase Theorem – important in the economic analysis of property rights
a. Ronald H. Coase, The Problem of Social Cost
– main point is that ppl must bargain and will bargain to the most efficient result if there are no transaction costs: problem are holdouts
– they will do what is most efficient and bargain to the best of them both
– the initial assignment of rights is important
2. Resolving Property Disputes by Contract
– Consider contracts rather than litigation
– Contractual modifications of property rights (Coasean bargains) should be explored as an alternative to litigation, it may be cheaper and more satisfactory to all involved
– Problems w/ the Coase Theorem:
– based on assumptions: 1) there are no transaction costs involved (always is) e.g. bilateral monopoly and assembly problems (2) legal/law is involved, but can be reached w/o legal influence (3) ignores behavior psychology; ignores human emotion and relationships
– entitlement effect: pple w/ initial entitlement feel worse and stronger when they lose property than when they gain it
– externalities: factors outside of the transaction
– types: local, positive, negative
– assembly problems
– bilateral monopolies
– creation of bad blood
– Coasian Bargaining should take before things get too difficult
C. Property/Liability Rules (56-62)
1. Property Rules and Liability Rules
– injunctions vs. damages
– the allocation and protection of entitlements
a. Guido Calabresi & A. Douglas Melamed, Property Rules, Liability
Rules, and Inalienbility: One View of the Cathedral
– property rules: if you want to remove entitlement from owner, you must buy it from him (parties determine value) (A sells to B) – can’t be taken w/o the owners consent
– liability rules: someone may destroy the initial entitlement if they are willing to pay an objectively determined amount for it (state determines value) (eminent domain) – a forced sale
– inalienability entitlements: transfer is not permitted between a willing buyer and seller, the state intervenes to determine who is initially entitled and the compensation (drunk A) usually apply to persons (body parts, cultural patrimony)
– Cts 1st assign entitlement
– Cts 2nd choose to protect entitlement w/ property or liability rights
– 3 factors in judges decisions:
– economic efficiency
– distributional preferences
– other justice considerations
– when transactional costs are low: property rule
– when transactional costs are high: liability rule
– advantages:
– property rules – can provide clear rights, non need for administrative interference, takes into account other values besides money
– liability rules – helps split the remedy: both parties are benefited
D. Ex post/Ex Ante Distinctions (62-67)
1. Ex Ante/Ex Post Problem
– ex ante – analysis is more likely to consider incentives for future conduct
– ex post – analysis tends to focus on fairness and distributional concerns
– if the parties can bargain ex ante, they will bargain to the best result
– if they

inks to the bottom, only to float to the surface several days later. The plaintiff had harpooned a whale and, according to local custom, left his harpoon in the carcass for subsequent identification of ownership. Someone other than the plaintiff found the whale when it floated to the surface and sold it to the defendant, who then sold the whale oil.
Posture: The plaintiff sued the defendant to recover lost income.
Reasoning: The plaintiff did everything possible to mark the whale carcass, and it would ruin the industry to require him to do more before establishing possession (there being little incentive to hunt whales if you can’t claim them afterwards). Even though a whaler’s markings/claims on a dead whale were minimal, the custom of establishing ownership through bomb-lances was reasonable and efficient.
Holding: Judgment for the plaintiff, with each party paying its own court costs.
Class notes: What is the role of custom here? Did the industries and customs of the area impose certain obligations on the whale’s finder? Should customs ever affect the law? Doesn’t the law require context (illusion of self)?
– libel – a complaint in admiralty case
3. Keeble v. Hickeringill
Takeaway: One cannot engage in violent or malicious acts done to get in the way of another’s occupation, profession, or way of getting livelihood, including if that occupation attracts wild birds onto the property. However, one can interfere with another’s occupation, et cetera, in the course of business, such as establishing a competing business
Facts: Plaintiff owned decoy pond for business. On two separate occasions, the defendant went to the pond and shot his gun several times, driving away the wild birds. The Defendant did so willfully and maliciously and with the intention of driving away the birds.
Case History: Lower court for Plaintiff
Question: Did defendant’s actions violate Plaintiff’s property right?
Holding: Yes
Reasoning: Since P was lawfully engaged in making a decoy and participating in this trade was profitable to him, D’s act to get in the