Property Outline – Professor Flournoy, Spring 2011
Thursday, January 20, 2011
9:32 PM
Property – “That is property to which the following label can be attached. To the world: Keep off unless you have my permission, which I may grant or withhold. Signed: Private Citizen. Endorsed: The State.”
What distinguishes property rights from personal rights is that property rights (1) relate to things – land, chattels, and intangible things – and (2) are usually protected by law against an indefinitely large number of persons – the world.
Restatement – the totality of interests (rights, privileges, powers, and immunities) which it is legally possible to have with respect to a thing other than those interests which exist in a person merely because he is a member of society, constitutes “complete property” in the thing.
I. Acquisition of rights to property
A. Acquisition by Discovery
1. Discovery Rule – as to land, first Christian to see the land gets the right to buy or conquer the property from the Native Americans
· Why not just conquer? May be cheaper just to buy it.
· Native Americans have right of occupancy – you can use it and live on it, but you can't sell it. You have the right until the Europeans say you don't.
· First in Time – The first person to take possession or occupancy of something owns it.
Johnson v. M'Intosh – Piankeshaw Indians sold land to Johnshon, U.S grants land to M'Intosh. Supreme Court says that Johnson doesn't have a claim, as the Indians don't have the right to transfer title to the land, they merely have right of occupancy. England discovered the land (Discovery Rule) and ceded it to the U.S. by treaty after the Revolutionary War. Our property rights come from the English way of doing things – if we don't uphold it, it could unravel all our claims to title. Sovereign is the only buyer empowered to purchase Indian lands.
Locke – You are your own property, as is your labor. If, by your labor, you take something nature has provided and alter it, that makes it your property, excluding the claims of other people. Rests on labor being unquestionably your own property.
· Useful only where there is a commons, something that is unowned – what if you alter someone else's property?
· Big qualification that there must be enough left over after one's own labor
· May privilege the strong
B. Acquisition by Capture
Pierson v. Post – Post was chasing a fox with his dogs. Pierson, knowing that Post was hunting the fox on the beach, killed it and took it for himself. Post sued and won in lower court, Appeals court overturned. “As will sustain” – does Post have enough of an interest in the fox that he can sue? Whose rights are superior? Relativity of title
Majority
Dissent
· You have to take away the wild animal's freedom by harming, capturing it, etc. This indicates intent, continued pursuit
· The above gives you occupancy
· Policy is certainty – encourage investment, simply understood, efficiency of the courts (less litigation) – these lead to peace and order.
· Usually would have been handled by huntsman's custom – little or no case law
· Capture or reasonable prospect of capture should be sufficient to grant an interest to Post (is reasonable objective or subjective?) – less certain than majority rule
· Constructive Possession – you may not have possession but we're going to say you do.
· Let the huntsmen's tradition handle this.
· I want to reward labor – utilitarian – external benefit to Post's conduct (clearing out predators like foxes).
Ratione soli (by reason of the soil) – common law right to take wild animals on your land
Keeble v. Hickeringill – Δ shoots off guns, scaring ducks away from π's duck decoy pond. Land is owned by the π, he has a right to create the pond to catch ducks. Can't hinder another in trade. You can engage in competition but you can't maliciously interfere with another's livelihood. Court values the benefit of the caught ducks to society.
Demsetz – The main function of property rights is the internalization of beneficial and harmful effects. There are several underlying assumptions
· Everyone has perfect information about the decisions they are making
· People are rational, self-interested, and profit-maximizing
· Decisions are quantifiable
Individual property rights develop from communal property among the Montagne because if no one considered the externalities, everyone is going to try to maximize their take of beaver, thus wiping out the supply. It was a method of husbanding resources. The externality is the cost to e
consent. Balance of patients rights with value of medical research.
Majority
Arabian
Mosk
· In order to have conversion, you have to have property
· Proprietary interest in your own person, likeness – why not genetic material? End result has none of his genetic material
· Statute says that once tissue is out of your body, it isn't yours anymore.
· Cell line can't be Moore's property – it is distinct factually and legally – it is the inventive effort that patent law rewards
· Recognition of property rights in one's cells would entail a “right to sell one's own body tissue for profit” which would be undesirable.
· Legislature more appropriate to decide here
Huge moral risks in commodifying the human body.
· Bundle of rights – Property rights include the right to possess, use, exclude others from, and dispose of property by sale or gift. If one stick in the bundle doesn't work, another may.
· At the time of his tissue's excision, he had the right to do with his own tissue whatever the Δs did.
· This is exploitation that is a descendent of slavery and indentured servitude
· Statute that says destroy the tissue means no one owns it, not that the originator doesn't own it.
· Large disparity of bargaining power, informed consent doesn't protect the patient's rights – doesn't allow him to sell and share in the proceeds, only to refuse consent.
· Turns moral argument around – maybe there's risk in commodifying the human body, but letting UC have it doesn't seem any more fair.
III. Right to Exclude
Owner's right to include (permit) or exclude (deny) use or possession of the owned property by other people.
· These two rights together are the necessary and sufficient conditions of transferability
