PROPERTY I OUTLINE
I. The Purpose of Property Law
A. Need for property law stems from the fact that the world contains a finite number of things in it.
1. Concerned with the ways society acknowledges individual claims
to limited resources.
2. Provide guidelines for competition for limited resources.
B. How should society protect private property rights?
1. Depends largely on the political, social, and economic views of the
person providing the answer
a. Blackstone- Property is the sole dominion which one person claims and exercises over the external things of the world in total exclusion of the right of any other individual.
b. Jeremy Bentham- Property is the “basis of expectation”-
person’s mindset is a relevant part- have to have an
expectation that a thing is theirs
c. Marx and Engels- property arises from the antagonism between capital and wage labor
d. Jean Jacques Rousseau- Property arose when a person enclosed a piece of land and said “this is mine”. It has led to war, crime, and murder. The earth should not belong to any individual, but to us all.
2. Property law is contextual
a. As the context changes, think about changing the rules as well
C. General Questions about Property Law
1. Why did a particular rule of law to govern claims to scarce resources develop the way it did?
2. Have the political, social, or economic factors that initially shaped
the rule changed?
a. If so, should the rule now be changed?
b. If so, how?
3. What kinds of incentives does the modern property law system create in terms of the use of scarce, valuable resources?
a. Does property law encourage resource exploitation or conservation?
b. Does property law facilitate constructive use of scarce resources or reward destructive use?
4. To what extent can modern property laws be explained by a desire
to promote efficient use of scarce resources?
a. Are there countervailing values or objectives which, in certain circumstances, should be regarded as more important than efficient resource allocation?
b. If so, what are they?
D. Important Questions Concerning Acquisition of Property other than by Purchase
1. What are the differences between ownership and possession?
2. What are the reasons that
3) To property of P (even if not in P’s possession) or
to some non-property interest of P
4) Negligence and nuisance are modern day examples
– Post filed a trespass on the case against Pierson and won in trial
court. Pierce appealed- certiorari- an order issued by the
Appeals court back down to the trial court to get the records to see if errors were made
– Issue: Whether the pursuit of a wild animal applies to occupancy in acquiring property rights to wild animals.
e. Arguments of the parties:
1. D- did not have physical possession, so no property
2. P- pursuit constituted occupancy; not limited to seizure, but includes pursuit in this manner. Got there first, never gave up.