Property Outline: Fall 2006-Professor Beard § 1
Day 1-2 – Preface from the First Edition – P. xxxi
– Perspectives (primarily economic) on Property – P. 35-50. keep in mind the following broad questions – What IS property? What is “wrong” with Communal Property? What is “wrong” with Private Property? Is it fair to say that “Property is what the state says it is?”
– Acquisition By Discovery – P. 1-17. Would the Piankeshaw agree that the title received from them was inferior to that received from the US gov’t? Who, in every “normal” sense, was “first in time?” Do you think Justice Marshall believed in the justice of these rules? If not, why did he apply the rules he did? Whose rules are being applied in this case?
I. Property rights: are instruments of society; they convey the right to benefit or harm oneself or others and they specify how persons may be benefited or harmed. They were developed to internalize externalities when the cost of internalization is less than the gains produced. [Bundle of sticks]
A. Externalities-the misuse or misallocation of property; when property used in another way would be more beneficial to society as a whole.
B. Forms of ownership
1. Communal-a right that can be exercised by all members of the community (sidewalk)
2. Private-implies that the community recognizes the right of the owner to exclude others from exercising the owner’s private rights
3. State-implies that the state may exclude anyone from the use of a right as long as the state follows accepted political procedures for determining who may not use state-owned property
C. Public Policy on Property Law
1. Property law regards relationships b/w people not just person and property.
2. Property rights are relative (first in time).
3. Goal of property law is certainty.
II. First Possession: Acquisition by Discovery
A. Johnson v. M’Intosh
1. P sues to eject U.S. land grant owner from land he purchased from Indians. Issue—Who had legal right to the land? U.S. government inherited its title to the land from England’s discovery of the land. Indians had aboriginal title – the right to occupy the land but not title to the land, “mere occupancy.” Classified as “domestic dependent nations” in Cherokee v. Georgia. This case sets precedent that U.S. government has the only right to convey land (and this ability was retroactive in that all land “possessed” by Indians was taken). This precedent is important because it legitimized the power of the U.S., and it established a standard for organization of land.
2. First in time: the first person who takes possession of a thing owns it
3. Discovery: entails the sighting or finding of unknown or uncharted territory
4. Conquest: the taking of possession of enemy territory through force
5. Occupancy theory: person who first captures and puts it to reasonable use
6. Property and Power: property confers and rests upon power
7. Labor Theory and John Locke: when land is mixed w/ man’s labor, it becomes his property and excludes the common right of other men
Day 3-4 – Acquisition by Capture – P. 17-35. What is the purpose of the rules (both majority and dissent) stated in Pierson? In Pierson, do the majority and dissent agree as to the fundamental purpose? Are the rules advocated by each of the majority and the dissent the best tailored to accomplish the instrumental ends sought by the proponent? Are Ghen and Keeble consistent with Pierson? What other considerations are taken into account in Ghen? In Keeble? How do you reconcile these decisions? Note the application of the rule of capture by analogy to other resources. Is this appropriate?
III. Acquisition by Capture
A. First person to take physical possession of a wild animal through (1)physically capturing it, (2)mortally wounding it, or (3)depriving it of its natural liberty, has property rights in that animal.
1. “Mere pursuit” does not constitute possession.
a) Ancient legal scholars determine that capture and mortal wounding constitutes possession. DISSENT said a reasonable prospect constitutes possession.
2. Peace and order will be preserved if a very clear rule is established (reduce litigation and shape people’s behavior). DISSENT pushed for an instrumental outcome – to encourage socially useful behavior (killing the awful beasts).
3. Ratione Soli (“right of soil”)- The landowner would have the primary right to capture and it protected the owner’s land from trespassing. At the time the fox left a landowner’s land, the fox was no longer that owner’s property. Since the fox was not on someone’s land, it was subject to the right of capture.
a) Animous revertendi-For animals that have the intent to return, then the rule is that it remains yours even though it has left your land. Problem: How is a hunter to know what is in an animals mind.
b) Rule of increase-The person who owns the parent, owns the offspring.
B. Pierson v. Post
Facts – Π (Post) hunted fox with dogs and a horse, through the wild. Δ (Pierson), knowing the fox was hunted, killed it and took possession. Δ eventually wins the fox.
Issue – Whether Π, by pursuit and intent to possess, took possession
Rule – An entitycan only become property through occupancy. Pursuit alone cannot grant occupancy or right to the property.
Reasoning – By only pursuing the fox, Π had not deprived the fox of its “natural right” to liberty. The fact that the fox could still get away; he hadn’t demonstratably removed it from the realm of “ferae naturae.”
Notes – the dissent wanted this argument to go before arbitration instead of a court, by having the regulators of the industry’s rules apply.
C. Ghen v. Rich
Facts – Π (Ghen) shot (bomb-lanced) and instantly killed a whale with a bomb-lance. Days later when the whale washed ashore, Δ bought, at auction, the remains from Ellis, some joe who found the dead carcass. Finding out that his kill had been sold, Π brought suit.
Issue – Whether Π took the necessary steps towards possession to sustain a claim for conversion
Rule – Ownership requires physical possession, except where the normal means of possession cannot practically be applied. In such cases taking those steps to appropriation customary to the trade will be sufficient for possession.
Reasoning – In an industry such as whaling, the nature of the hunt is such that to effectively capture a whale, one can only hope to initially kill the whale and hope that its remains will rise for tow or be washed ashore. By killing the whale with the intention of possessing it, Π effectively established a future claim to the whale. Δ seeing that it had been mortally wounded should have known it wasn’t his to sell.
D. Keeble v. Hickeringill
Facts – Π built a decoy pond for catching wild fowl, which he sold for profit. Δ, spitefully, tried to scare the wild fowl away effectively hurting Π. Π sues Δ for conversion.
Issue – Whether Δ’s malicious interference with Π’s opportunity to catch the wild fowl is a cause for action.
Rule – Where one maliciously hinders another in his pursuit of possession, he will be held liable.
Reasoning – He who at his own expense performs a trade, and furnishes the market place for his livelihood, should be awarded encouragement for so doing, for he provides a valuable service to the world.
Ratione Soli – an owner of land has posses
f, may obtain a patent therefore, subject to the conditions and requirements of this title.
6. White v. Samsung Electronics America, Inc.
Facts – Π was depicted in a Samsung advertisement (by use of a robot w/blond wig, dress, and wheel of fortune board). She’s suing for violation of her common-law right of publicity and violation of the Lanham Act
Procedural History – Trial court granted summary judgment against White on each of her claims, but Appeals Court reversed in part, holding that issues of material fact precluded a summary judgment against her claims
Dissent – by holding for White, the balance between interests of the celebrity and those of the public is skewed towards the celebrity.
The Right to Publicity – we have a the right to protect our persona (phrases, photos, nicknames). There is a licensing fee and the commercial loss for licensing their identity are often the expected damages for such case.
7. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.
Facts – Δ distributed free software products that allow computer users to share electronic files through p2p networks, which allows transfer of copyrighted material. They took steps to encourage infringement.
Issue – Whether supplying such software imposes liability for criminal acts performed using such software.
Rule – Where something has no use except infringement, there is no injustice in presuming or imputing an intent to infringe. Conversely, where it has both lawful and unlawful uses, no liability will be lessened or removed.
Holding – Because of majority use of infringement and the company’s own promotion of infringement, it was determined that the unlawful purposes outweighed the lawful ones.
Day 5-6 – Property in One’s Own Person P.69-93. Do you “own” your body? Does the concept of tort liability in Mooreadequately protect one’s interest in one’s own body? Does the majority in Mooreapply any rule that justifies termination of the recognized interest in one’s body parts while still a part of the body? How does the concept of a “right to exclude” play in the analysis of the remedies available for a wrong such as was suffered by Moore.
B. Property in One’s Person
1. Moore v. Regents of the University of California
Facts – Π (Moore) sought treatment for hairy-cell leukemia at Δ’s facility. Π consented to a splenectomy and seven years of follow-up tests, where his spleen was retained for research purposes w/out his knowledge or consent. He was later informed that his cells were being used for research, but not of the commercial value of the research. Δ established a cell line from Moore’s cells and received a patent. Lots of money was made. Π sues for conversion
Issue – Whether Π’s right to his own cells supports an action for conversion.
Rule – Remains following conclusion of scientific use shall be disposed of by interment, incineration, or any other method determined by the state department to protect the public health and safety.
