Property Outline
Property
(Ely, 53) a means of distributing and redistributing the wealth of a society
Utilitarian view of property predominant (Hume, Bentham)
o Break from natural rights view (Locke)
§ All property in the US is owned by someone
· Ownership and possession are relative terms
o Have to judge claims against each other
§ Land was originally acquired by first possession
· Land can’t be initially possessed anymore
o Johnson v. M’Intosh – Native Americans were occupants, not possessors
o Planets and satellites are governed by treaty.
o Land can’t be abandoned
Private property
(Reich, 53) “nourishes individuality and healthy diversity”
(Friedman, 53) essential to political freedom
Is freely transferable.
o Allows transfer of property according to value
Aren’t allowed to illegally interfere with private property
o Allowed to compete as long as you don’t interfere in private property.
§ Competition “increases the welfare of mankind”
§ Interference inhibits trade and welfare of the nation
· Ex. Keeble v. Hickeringill
§ Problem: There are 2 schools. Can the 2nd one lure students away from the 1st school by having better teachers?
· Yes. It doesn’t matter which school was 1st.
· Could the 2nd school compete by shooting at the 1st school, thus scaring away the students?
o No. Illegal interference in the performance of the 1st school. Luring is ok. Terrorizing isn’t.
Equality vs. Efficency
Equality claim: distributive justice
o No orthodox definition of fairness
§ à Liberal tradition of fairness
· Rules that are progressively distributed
o Equal opportunity can work well on fairness grounds if the resources are abundant.
§ Diachronic equalization
· Over time, do the negative effects even out?
Efficiency claim: maximizing resources
o Courts are a way to manage resources.
§ Cases are used to avoid future cases on the same topic
· Channels behavior in ways that are socially productive
· Allows people to make more accurate predictions of consequences
o Having property travel freely makes it more valuable
§ Property travels to the person who values it the most
o When social norms change, courts change their instrumental ends.
§ Ex. When an animal becomes scarce
· hunting à preserving
Different Modes of Judicial Reasoning
Formalism or Doctrinal Approach
o Ex. Majority in Pierson v. Post
o Finding the Rule that best determined social order
o Used to be the dominant mode of analysis
o Judges liked to hide their formalist thinking
o They “found” the law; they didn’t make it
o Not determined by logic or consequentialism (find the end and determine the means to get there)
· Instrumental or Functional Approach
o What is the desired end and how can it be obtained?
o Now the predominant mode of analysis
o Judges are more aware of social consequences
o Ex. Dissent in Pierson v. Post (Livingston)
· Foxes should be killed to protect chickens
o Goal: to put chickens on the table
Use of custom
§ Ex. Dissent in Pierson (hunting) and majority in Ghen (whaling)
§ Uses empirical guesses to determine socially desirable ends
§ Custom should only count when it takes into account the effects on all relevant 3rd parties
· Be wary of cases decided by custom, unless it’s a custom that includes all affected parties
o Industry’s first interest is industry
§ No good assumption that they would take into account the interests of people outside the industry
o Customs rarely take into account future generations
§ Future generations usually get screwed in custom decisions
· Ex. Ghen does whaling custom take into account future generations and whale lovers?
· Problem: If cab driver using custom drives on sidewalk and 2 people are hurt (passenger and bystander) are the claims different?
o Yes. Bystanders aren’t part of the custom
§ For bystanders, custom shouldn’t count
· Passengers can withhold their participation from custom
o Would the competing cab companies have the same practice?
§ Probably, because the costs and benefits would even out.
o Reasoning by analogy
§ Moves from familiar to new
· Standard practice for lawyers and judges for cases of first impression
o Used in fugitive resources
§ Wild animals are like natural resources (oil, gas, H2O) à all are fugitive resources
o Certainty v. Uncertainty
§ Benefits to certainty
· Predictive
· Makes litigation cheaper
· Easier to guide behavior
· Takes less time to decide
· Best when there aren’t many variables and the stakes are low
o Ex. Stopping at every stop sign regardless of the amount of traffic
· Allows peace and order
o Discourages revolution
§ Drawbacks to certainty
· Produces less finely tuned results
· Decisions are secondary to the rules
· Not good if there are a lot of variables or high stakes
· Can make a mistake and some variables will dominate
o Ex. Allowing drug companies to make bad dru
session first, so O is the original owner.
§ If O goes on T’s land and takes the animal back and T sues for the animal’s return, who would get it, O or T?
· Sometimes T. Trespassing as trump card.
· Sometimes O. Principle of self-help.
o 2 different questions. Who has the right to the animal and who is liable for trespass?
o Rule of Capture Alternatives
§ First to Pursue
· Ex. Dissent in Pierson v. Post used First to Pursue to establish First in Time
o Rule of Reasonable Prospect
§ Harder to use than first to capture
§ More variables to input and decide about
§ Difficult to determine and resolve outside of litigation
· Not effective in channeling behavior
§ Sharing
· Reduces incentive to pursue and decreases innovation
o Property claims are rarely resolved by sharing
o Fugitive Resources
§ Ferae naturae (wild animals)
· Pierson v. Post à property is acquired by occupancy (20)
o Have to have actual or constructive possession
§ Constructive possession (treated like actual)
· “We will treat A like B because we want to deal with B and A is similar enough to B”
o Don’t always have to have animals in hand to have possession
§ Can keep possession through taming or marking.
§ à Ex. Mortal wounding of whale in Ghen
§ à Exception: Menagerie cases.
· Government regulates hunting of wild animals
o State is a different type of “owner” than individual
§ State “ownership” is legal fiction to guard against exploitation of resource
· Not liable for damages caused by wild animals
o Problem: If X tracks down a deer on an open piece of land and just as X is about to shoot, Y kills it, who gets the deer?
§ Y. Y was the first to take possession of the deer. Pierson
§ What if Y shot X and then shot the deer. Does Y get the deer?
· No. Y is impeding X from competing. Keeble
§ What if Y isn’t a hunter but an animal lover that frightens the deer away. Does X get the deer?
· Yes. The animal lover is interfering with the hunting. Keeble
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