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 b
ing is determined by rule and can lead to overfishing
§ Ex. Why is hunting regulated?
· To make sure the resources don’t get depleted.
o Trespassing
§ Owners are best able to shepherd valuable resources on their land
§ Allowing trespassing would make owning too expensive
·Non-owners would try to trespass, owners would spend money to protect their land
o Trespassing law acts as a general barrier
§ Law has some costs (enforcement and monitoring) but cheaper than individual enforcement
§ Non-owners can buy resources through the market, not by stealing them
§ Trespassing Problems
· What if I park my Rolls-Royce in your garage, should the judge have to see who would pay the most to leave their car in the garage?
o Need to enforce property rights (garage is inalienable)
§ Property rights changes value of products
· Can get the garage to the Rolls-Royce owner on the market
o Market transaction can be more accurate in determining value than judge
§ Transaction and assessment costs of court case are too high
· T captures a wild animal from O’s land and confines it on T’s land. Then T1 captures the animal from T’s land. T sues T1 to get back the animal. T1 says that T had no rights of ownership over the animal because T had to trespass to get it. Who gets the animal, T or T1?
o T because of the rule of first possession.
§ T is protected from T1
o If O sues for possession of the animal from T, who gets it, O or T?
§ O. O had constructive possession 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.
