Property I Outline

Property Spring 2009 Outline

I. Property Rules
a. Two main considerations
i. Efficiency
1. How easy it is to resolve/avoid disputes?
2. Does it help avoid wasteful spending?
ii. Fairness
1. Moral/culture inclination of the correct answer
2. Keep disobedience down
3. Shift in distribution of wealth—who wants it can get it
b. Other:
i. John Locke: Labor Theory: if you put in the time and resources, it is yours
ii. Social Utility Theory?
II. Three main types of property
a. Real property
i. Any land or anything fixed to the land
ii. More valuable (usually)
iii. Cultural sense that land (home) has special meaning that gives it different rules
iv. Estates: those interests in land that give the owner a right to possess the land. Every “possessory” interest has an “estate”
b. Personal property
i. Something not fixed to the land
ii. Movable, less valuable
c. Intellectual property
i. Rights associated with intangible things or information
ii. Non-rivalorus: can own the same thing as someone else, not competing to use that property.
1. Can be sliced up to be used: picture of NBA guy w/ tattoo
iii. Some people don’t like: ideas should be free
iv. Types
1. Patents: rights in an invention, things that are functional
a. Gives incentive to invent things
b. No rights until the government grants the patent
c. Requirements:
i. Must be new and useful invention
d. File the application and prosecute violation
e. Patent pool: when there are a lot of pieces to one item (DVD player) come together to patent the item
i. Not against anti-trust laws
f. 20 years long
2. Trademarks: rights in a mark associated with goods or services
a. Businesses: slogan, name, jingle
b. A way for customers to know what they are buying, build good will
c. Example: Coach bag, can’t copy or something confusingly similar
d. If you aren’t aggressively defending it, you could lose it
i. Some things become so popular they become generic, companies lose their right to sue under trademark infringement
ii. Suing on trademark claim is both state and federal
3. Copyrights: rights in a creative work
a. Drawing, sculpture, painting, movie, musical work, play. Not machine
b. No rights in the book itself, but in copying-distributing
c. Doris silk dress design: hard to protect idea for fashion. Can trademark a label (business) but not a whole dress, hard to copyright a functional item, patents take too long
d. Length: Author’s life + 70 years
4. Personality: people want to control how their image is used, a property right in someone’s name, likeness or persona
a. When you are not well-known, you may have the right to privacy
b. Midler v. Ford: something iconic about her voice, Ford copied it intentionally. Distinction is not working harder/sounding better but rule of evidence.
5. Trade Secrets: rights to business information that is kept secret
a. New invention just for use in a factory
d. Not property
i. No property interest in a job
1. U.S. Steel: workers thought a property right had arisen from the long-established relation between community and closing steel company. But no equitable distribution here
2. Putting “work and effort” into an endeavor should create a property right? Not here
ii. The body: can’t use it to commit a crime or tort, can’t be a prostitute or sell pieces of it
1. Moore: there is no property right at all, because we can’t figure out who owned the cell
2. Informed consent: if doctor wants to do research, have people sign over property rights. Duty to operate in patients best interest
III. Rights to property: a “bundle of sticks”
a. Right of possession
i. Take it places and do things with it
ii. Exercise dominion and control, occupy and use
b. Right of exclusion
i. Other people don’t use your stuff, come onto land
1. Blackstone: sole, despotic owner
2. Some exceptions when it is not trespass but a legitimate purpose
c. Right of alienability
i. To transfer or give your rights to someone else
ii. Sell, give it away, give away a future interest, leave in a will
d. Exceptions:
i. Legitimate use is not trespass
1. State v. Shack: owner has right to exclude, except when human rights/dignity are at stake; they win. (gov’t workers, people in dire conditions policy interest)
2. No right to doctor, only lawyer unless there was a crime
ii. Eminent Domain
1. Another hole in the Blackstone theory of rights
2. The right of the government to take private property for public use, one way to make someone sacrifice for the good of the whole
a. 5th Amendment: private property cannot be taken for public use without just compensation
i. Usually market value
ii. In MO, if you have lived in your house that they are taking for 20 yrs, they have to tack on an extra 50%.
3. Kelo v. City of New London: Economic development is a public use
a. Dissent: pure private takings not allowed, private takings only allowed when current use is harmful,
b. Large corporations taking: imbalance of wealth
c. Makes it political, subject to lobbying
d. Aftermath
i. Little constitutional protection
ii. State’s have their own laws (limiting transfer, no econ development allowed, specific blighted areas, increase compensation).
4. Rational basis review—making sure a given use is a public use and is rational, not the court’s job to ensure that the plan actually makes sense.
5. Some states creating laws about what constitutes public use
6. Why can’t government just buy?
a