Property Outline
Professor J. Wegner, Fall 2009
Theories of Property
A. Protect First Possession (Pierson v. Post majority opinion is an example of this)
a. Historical development: In a setting where resources are plentiful, like the early US; this “first-in-time” approach describes how things came to be owned very often.
b. “first-in-time” does not necessarily adequately justify property as a general matter
c. description of how, but not why it makes sense for society to recognize property rights.
B. Encourage Labor: John Locke propounded this view
a. each person is entitled to the property produced through his own labor.
i. Mixing natural resources (unowned) with labor (owned) allowed the laborer to acquire property rights in the mixture.
ii. Makes sense in 18th century N. America.
iii. Potential limitations of labor theory of property:
1. How does it apply where everything is owned already?
2. Copyrights? Patents?
C. Maximize Societal Happiness –
a. Traditional utilitarian theory (J. Bentham) we recognize property to maximize overall happiness of society.
i. Property is a means toward an end.
ii. To best promote the welfare of all citizens.
iii. Illustrated by the “tragedy of the commons”? Ownership would encourage effective use of the resource in some situations.
b. “Law & Economics” variant of traditional utilitarian theory
i. property as an efficient method of allocating valuable resources to maximize one facet of societal happiness – wealth.
ii. Three characteristics of property are needed to maximize production:
1. Universality: all valuable, scarce resources must be owned by someone
2. Exclusivity: owner must be able to exclude others from the use & enjoyment of property; otherwise no incentive to improve
3. Transferability: must be able to buy & sell. For example: otherwise no incentive to “flip” or improve real estate if you are just stuck with it.
iii. Property exists to ensure owners use resources in an efficient manner – to maximize economic value defined as person’s willingness to pay.
D. Ensure Democracy – Civic Republican Theory
a. Civic republican theory posits that property facilitates democracy
b. Historical situation leading to the above conclusion
i. English “rotton boroughs” – small electoral districts, mostly tenant farmers; which led to sham elections.
ii. Jefferson envisioned free “yeoman” farmers who owned their own lands, and could thus exercise independent political judgment vital for true democracy.
c. Civic Republican Theory – recognize ownership of land because it provides a person with economic security to make political decisions that serve the common good.
i. Ex: where private property does not exist, citizens come to the government as beggars, not rightholders. Any power challenge leads to withdrawal of goods by the government. This situation leads to corruption of officials, bribes, and favors.
E. Facilitate Personal Development
a. Property is necessary for an individuals’ personal development.
b. Personhood theory posits that a person’s rights in a piece of property merit protection as the person is extended through the property.
c. To achieve self-development individual needs to control resources in external environment.
i. Those necessary assurances and control take the form of property rights.
What is Property? – The Bundle of Rights
Property: Rights among people concerning things (p25, casebook)
Property is best described as a “bundle of rights commonly characterized as property”
4 key implications of the “rights” approach
1. Property rights defined by government – basic concept of legal positivism
2. Property rights are relative, not absolute – some rights in the bundle conflict with others in another’s bundle.
3. Property rights can be divided – ex: split rightsàrental property (right to use), owner (right to transfer)
4. Property rights subject to change as law changesàstability of title is core concept, but the nature and scope of property rights does evolve slowly over time. (i.e. – innovation of airplane ended concept that a property owner owns all the air over their land).
The bundle of rights that are “property”
I. Right to Transfer- “alienability”: as a general rule, any owner may freely transfer or alienate any of his property to anyone
a. Generally
i. Limitations – for public policy reasons
ii. Who may transfer (limited) – i.e. insane people
iii. What may be transferred – i.e. military pensions may not be transferred
iv. How transfer may occur – i.e. a will is
e subsequent US government is claiming sovereignty as well. The court could not recognize a ruling from a prior “sovereign” if that sovereign was currently (at the time of the case) without power. To do so would recognize the power of the previous sovereign over the current sovereign. The court’s power emanated from the sovereignty of the US government and the court recognized that. Thus, the “title” of the recipients of the Native American’s conveyance was no good.
d. Fundamental differences in “Property” – Body Parts
i. Property rights to one’s body parts are granted by statutory and regulatory authority in specific cases of organ and tissue donation.
1. Uniform Anatomical Gift Act & National Organ Transplant Act (federal legislation) has been understood to all that while one’s organs are in one’s own body, one may direct their use.
ii. In the United States, one is not permitted to sell one’s organs for profit; rather one may donate or gift them. One may, however, sell one’s tissue, such as blood, for profit.
iii. In the Moore case, the court held that once one’s organ is excised from one’s body during surgery one no longer can dictate its use.
1. Public Interest –
a. Scientific Progress – There is a public policy interest in allowing science to proceed forward in use of organs and tissues for scientific discovery. If use was limited, then scientific discovery would be stalled.
b. Public Health – Public interest in preventing spread of disease – states have laws regarding disposal of property sui generis à for the interest of public health
c. Black Market – Justice Arabian wants to discourage the development of a black market in human parts – does not want to commodify human tissue and organs.
2. One should, however, have the capability to consent before the operation to the organ’s use afterward.
