Property I Outline

BECK PROPERTY FALL 2010

FULL OUTLINE

1. What is Property?

a. Socially contingent, relationship between people with respect to things, not between persons and things

b. Theories

i. Labor: arising from natural law of owning self, idea of changing the land into one’s own through work, lends moral weight to ownership (Johnson; Halsem v. Lockwood, where P raked unowned manure, left without intent to abandon but to find means to carry off, became his in the interim, D not able to claim legally)

ii. Utilitarianism: acquiescence to legal rules is for protection of our own, settling of disputes, furthering society despite giving one man rights over another based on where they are.

iii. Economic Efficiency: favoring personal property over communal property tends to “internalize” costs of maintenance (v. depletion resources) when personal property owner will pass onto heirs/whatever

iv. Custom

1. Can color meaning of possession, abandoning property (Ghen v. Rich)

c. Doctrines: use, exclusive possession, dispose or transfer, right to eject

d. Powers granted by property ownership

i. Natural resources, degree of sovereignty, power over ppls rights on your property if not owning

ii. Right to exclude

iii. Right to destroy

e. Values regularly followed by property law

i. Rewarding productivity/economic efficiency

ii. Simple, enforceable rules

iii. Consistent with society/custom

iv. Fairness in terms of expectations, labor

2. Acquisition by Possession

a. Physical act v. legal conclusion

b. Discovery: first possession (e.g. undiscovered land) with unowned property

i. Vests absolute title (Johnson v. M’intosh, where natives given rights of occupation, unable to transfer title because absolute title taken by “discoverers”)

ii. Labor theory or conquest as to Johnson?

c. Capture mostly wild animals

i. Defining possession: some degree of certainty of acquiring the animal exclusively

ii. Mere pursuit not enough (Pierson v Post, need actual deprivation of liberty, mortally wounding and continuing chase, BUT dissent certainty of capture without other elements, hunter custom not considered in majority)

iii. Fact specific, but when all that is practicable in order to secure a wild animal is done, it becomes property under sufficient personal control

1. Ghen v. Rich: common practice to hit whale with proprietary marked lance, let whale sink wash up on shore, made whaler first possessor when custom showed all practicable, therefore D recipient of whale in auction when he and seller/finder knew of proprietary mark practice not legally holding whale

a. Decided partially by custom because of irregular market, strong economic considerations

iv. Extension to ferae naturae: property of owner of land on which FN reside so long as still on the land

1. Keeble v. Hickeringill: intentional interference with use of land when D scared off ducks with shotgun blasts

2. BUT see different rule with tamed animals, still property if enters unowned land, private property prevails over first possession (ties into McIntosh)

v. FN rule extends to natural resources, but often undermines important policy of efficient use, preservation

vi. Policy: stronger incentive to protect market, protect against fruitless claims,

d. Creation: applying first in time principles, but with an economic twist/requirement

i. Cannot give same right to exclude rights without appropriate policy incentives, characteristics (INS V. AP; news is only copyrightable insofar as it involves competing companies relying on beating others deadlines, for profit use)

ii. Statutorily created requirement: if person cannot obtain patent/copyright, cannot recover for “misappropriation” by copying (Cheney Brothers v. Doris Silk Corp, silk design unpatentable because impractical to figure which, of hundreds, were profitable when changing every season, copyright office told them uncopyrightable)

iii. Limited monopoly as right to exclude from imitation/competition: must weigh promotion of incentive useful science/arts against public use (e.g. Smith v. Chanel, offering comparable perfume is vital to public good of competition, also Chanel unpatented, so just spending money on it does not meet INS test)

1. Themes/ideas in artistic works are not protected, compared to narrower expressions (Nichols v. Universal Pictures; D’s using of same clash of same cultures and basic character archetypes is more like using the same stock ideas the P drew from than misappropriate of P’s personal property)

2. Things found in nature, laws of physics, like abstract ideas above, too broad to receive limited monopolies (BUT SEE Diamond v. Chakrabarty where microorganism, although genetically engineered, determined human made because not otherwise existing in nature, although totally organic and not