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Property I
University of Pennsylvania School of Law
Pritchett, Wendell

I.                   Philosophical Approaches to Property
A.     Locke 
                                                   i.      The government should enforce property rights
                                                 ii.      Property is the product of man mixing his labor with nature
                                                iii.      Own body is personal property
                                               iv.      Every man has the right to make his property everything he can convert to productive use
1.      Limitations: anything you can’t consume is not yours
                                                 v.      Implications of Locke
1.      Creates individual property rights
2.      Supports productive use
3.      Government’s responsibility is to protect property rights
                                               vi.      Potential Criticisms
1.      Assumes that nature is unlimited
2.      Assumes that all parts of nature are equal to each other
3.      Nobody has control over your entire body
4.      Does not address competing rights
Eminent Domain: (1) supports productive use and could arguably support ED for productive developments. (2) defends property rights for those who have invested in their property (arguably against the gov’t being allowed to take that away from people).
Intellectual Property: (1) rewards those that have invested effort (domain names), (2) however, he could arguably support corporate America by arguing that a corporation may make the most use of a URL.
CIC: (1) arguably would be against restrictions set forth by CIC boards—every man has the right to make his property everything he can for productive use.
Zoning: (1) Locke is typically against restrictions unless one is spoiling the land (archaic) from others enjoyment…you can argue that industrial zones are productive use and do not spoil the land but rather enrich the resources for profitable use.
                                Adverse Posession: (1) Locke would want the land to be used in the most
effective/product way and AP can definitely accomplish this. [VERY PRO AP], (2)
person who originally owned it doesn’t have a strong claim to the land b/c they neglected
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
B.     Radin
                                                   i.      Property is necessary for self development – everybody needs property to define themselves (taking ones self from abstract notion of being by injecting environment)
                                                 ii.      Communities also need property to define themselves
                                                iii.      Two types of property
1.      Personal – Bound with the person (see Calabresi/Melamed inalienable entitlement)
a.       i.e. wedding ring
2.      Fungible – Can be traded for something of equal value (see calabresi & melamed property entitlement)
a.       i.e. money
                                               iv.      Relates to takings/divisions – easier to accomplish with fungible property than with personal property
                                                 v.      Criticisms
1.      People exist without interacting without property
2.      Doesn’t really address competing property claims
Eminent Domain: (1) very against eminent domain of ones personal property. Property is essential to ones personhood and if the government seizes someone’s property, they are essentially taking away part of a person’s existence and character. (2) very weak counterargument: If the government seizes abandoned property to develop a residential zone, then Radin would most likely agree with the

t to zone in areas of low-income housing and likely push them to the fringe of the community. Zoning also has the effect of segregating society and he finds it problematic to allow for such socio-economic stratification among our residential communities.
CIC: Rawls, arguably (1) is against communities that take away public land from the community and thus ostracize the poor. Rawls would further support a system of exactions to make developers contribute to the community’s community housing needs.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
D.    Utilitarianism
                                                   i.      Property should be allocated to maximize productive use of resources in society
1.      Property must be allocated in a system with:
a.       Universality (all property is owned)
b.      Exclusivity (property-owners can exclude others from usage)
c.       Transferability (property-owners can transfer property freely)
2.      Best accomplished through the free market system
3.      Criticism: Doesn’t capture all types of property
·        Legal protection of property rights has an important economic function—to create incentives to use resources efficiently.
·         Creation of property rights is necessary rather than sufficient condition for the efficient use of resources.
Example: If A can generate only $100 from a piece of land and B can generate $150….
·        B owning the land will be better for both parties.