Select Page

Property I
University of Illinois School of Law
Kesan, Jay P.

Acquisition of Property
First-in-time can be trumped by other considerations.
Very clear and simple
Gives too many rights to the first
Unfair advantage for some
Lockean Labor Theory and Utilitarian rationale trumped first-in-time
ANIMALS – Corporal possession, mortal wounding, or trapping constitutes possession
The Certaintycreated by ‘bright line rules’
Reduces quarrels and litigation
Allows parties to enter into transactions and to operate with confidence 
Encourage property owners to develop and invest in the same.
There does not have to be a bright line rule; the fox could have been shared. 
Upholding industry customsto encourage the industry to operate with certainty
More likely to be complied with
Reduces litigation and so forth
The law tends to differ to customs in the event that these customs are beneficial to the industry and society as a whole. 
First-in-time can be trumped by the customs that exist in an industry. 
You cannot interfere with a competitor’s ability to operate their business, unless you use the same means to interfere as you use to go about your business on a normal basis
WANT TO ENCOURAGE PARTIES TO INVEST AND DEVELOP THEIR ENTERPRISES so we disallow interference in order to increase certainty and confidence
If your trying to strike a balance in consumption and conservation of resources, then you need to incentivise.
Law tries to internalize costs so that a person cannot impose his costs on others
It is efficient to have a system of individual property rights, communal system of property does not incentivise enough.
Transaction costs, free-riding, and holdouts are minimized through assigning property rights
Convert social costs into private costs – so individuals have an interest in minimizing costs because it minimizes his own costs.
Goal of law is to reduce transaction costs so that you can facilitate coustian trade – the lowest cost solution to problems is enabled
(INS v. AP) – Lockean Labor Desert Theory applies Court says that news should be public knowledge, however, AP has a right against its competitor INS (news are AP’s ducks, they invested money and time into collecting news and then INS comes and just takes it)
Could also argue first-in-time
There is no copyright that attaches to facts
INS’ practices amount to unfair competition – reaping where they have not sown – the Δ misappropriated, not the actual words, but the π effort, resources, time and money by taking their news and selling them
1) Nonrivalrious consumption – two people are not rivals when they are consuming the same good if the good is information
a. Public goods are goods where their consumption is basically inexhaustible. These goods are susceptible to free riding.
Doris Silk
UTILITARIAN RATIONALEcan trump both first in time and lockean labor desert theory
Allowing Doris to copy the pattern and selling the product for a cheaper price is good for competition and therefore good for the market and consequently society.
The general rule is that we compete….
Balance the incentive to invest in creation of new goods with competition to reduce prices
The rule is first-to-file owns, unless somebody else has a trademark in that name
We want to have an ordered market place
Property rights formalize the set of relations between parties
Moore v. Regents of Cal  
LOCKEAN LABOR DESERT THEORY – The patent is for the process of manufacturing the lymphocytes, not for the cells themselves
UTILITARAIN RATIONALE – it would have a chilling effect on research to recognize property rights in Moore’s cells
Right to exclude – Court reinstated punitive damages to vindicate the property rights of Π
Encourages property owners to maximize use of property – less risk in investing if landowners know that they are protected by law

3)Carry out expectations of the parties (What would someone in Peel’s circumstances expect?) – split the value of the brooch – also applies to #1
·         LIMITED PURPOSE case – This is the case where Sharman was invited in for the purpose of cleaning the pool and nothing else
Mislaid Property
Does it make sense to distinguish between lost and mislaid? Was the brooch in Hannah v. Peel lost or mislaid? NO – does not reward honest finder – counterproductive
Abandoned Property
First person to claim abandoned property is the rightful owner – valid against everyone, including the previous owner
Acquisition by Adverse Possession
Elements of Adverse Possession
1- Actual and exclusive possession
Actual: must enter onto land – Places owner on notice
Exclusive: adverse possessor can’t share that land w/ the true owner or the public
2- Open and notorious
Acts must look like those of a typical owner of property (i.e. partial fence lines, paying taxes on land, objects of development, etc.) Fencing the land or living on land are not necessary
NOTE: ignorance of the owner is no defense; owner has obligation to periodically check his property.
3- Possession must be adverse/hostile and under a claim of right (title) – NOT PERMISSIVE
Silence is not permissive – Need affirmative permission
Where AP enters into possession of only a part of the property, actual possession of only part of the land is constructive possession of all the land 
4- Possession must be continuous
(does not have to be every day)
Rationale for AP
Utilitarian rationale- Property rights go to that person who values it the most