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Property I
University of Denver School of Law
Cai, Phoenix X.F.

Property Outline
 
Introduction
            the right to exclude – stop other’s from using your property
            Certainty, efficiency, and fairness
            Relative title- who has better title between different claimants
            Constructive possession- possession because the thing in question is on a           certain person’s land
 
            Finder’s Law
            John Locke- in the beginning the world was up for grabs by force, discovery           by Europeans
 
            Property is “a bundle of sticks” “bouquet of flowers”, constituent rights of a piece  of property – to own anything you have the right to exclude people from using it in           some way – usually switches hands by voluntary trade
 
            Proudhoun- Property at right is robbery- thought that owning property was a           hideous and outrageous idea
           
            Johnson v. M’Intosh-
            -Δ’s win- Indians were there first, but they don’t count -according to Marshall-         general rule, discovery and conquest- non-Christian lands become European         lands on conquest, got to remain on the land, but had no property rights
            -Marshall articulates the rule of conquest as it is always applied over centuries in  Europe, but can’t apply it the same way- If the Indians were recognized as      having title, then Europe would not have property rights- Indians have use         rights, not title rights
            – the nature of jurisprudence- product of time, socially, and culture
            – ownership is culturally specific
            – application of the theoretical viewpoints- can be applied in both directions
            The sovereign was the only buyer empowered to purchase Indian lands. The         government was a so-called monopsonist- a sole buyer- and this fact helped                     reduce the price paid for the Indian title of occupancy.
            Property confers and rests upon power. The ethnocentric view of inferiority            of the Indian people was the root of the view that a tribe’s right to its homeland           constituted less than full fee simple title.
 
            Armory v. Delamirie-
            chimney sweep- Trover- getting the money for what you lost (the jewel)- today is  called conversion
            who has better title to the jewel? Finders keepers losers weepers
            chimney sweep has better title than the jeweler or his apprentice
            recognizing possession- first in time relative to the jewelers apprentice
            why don’t we seek out ownership?
            Bailment- voluntary consignment of temporary possession (parking garages)
            valuing possession- advances certainty, expectations, protecting the person in      possession, easier to assume rightful possession, social utility,
 
           
            Property By Creation
            first idea for it, it’s yours- first in time, first in right
            wealth maximizing- labor theory, encourage people to undertake labor
            Patent law- allows for innovative ideas as long as it’s new art
           
            Theories of Property

ple,             interpretation and meaning change depending on who is looking (supports        federal lands, building dams, mining rights)
           
            3- Discovery- the sighting or finding of hitherto unknown or uncharted territory; it  is frequently accompanied by a landing and the symbolic taking of possession,             acts that give rise to an inchoate title that must subsequently be perfected, within      a reasonable time, by settling in and making an effective occupation – not             relevant today
 
            4- Conquest- taking of possession of enemy territory through force, followed by a formal annexation of the defeated territory by the conqueror – not relevant today
           
            5- Law and Economics- Demsetz – Coase theorem- problem of social costs,       Nobel prize winner, in the absence of transaction costs, parties will achieve an            efficient result regardless of how the law assigns rights and liabilities- efficiency is      whoever values it the most – bargaining
            Transaction costs- collective action and agreement in order to transition
 
            Pierson v. Post- one of her favorite opinions in all of law school
            Illustrates fundamental principles in property law