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Property I
University of Pennsylvania School of Law
Pritchett, Wendell


A) Definitions
1) A person has a property interest if she has any right which the law will protect against infringement of others
(a) Real property: land and any structures on it
(b) Personal property: all other kinds
(c) Possession: when someone has dominion and control over property
(d) Title: “ownership”
2) Bundle of Rights: You might own, but not have the right to all six rights.
(a) Use
(b) Alter
(c) Exclude
(d) Transfer
(e) Possess
(f) Enjoy fruits à e.g. farm land
B) Regulating Institutions
1) Background legal principles (common law)
2) Social norms—way society organizes itself
3) Private contractual relations
4) Political institutions
1) At what point is possession achieved?
(a) Bernhardt: physical control over item + intent to control it & exclude others
(b) Brown: actual power over item + manifested intent to control
(c) Gray: person who caught ball; caught = having in possession when ball ceases momentum
(i) If dislodged by incidental conduct – 1st person to pick up has possession
(d) Analogous reasoning in hunting & retrieving shipwreck

II) THEORIES OF PROPERTY (4 theories, not mutually exclusive)
A) John Locke (theory connecting importance of private property to society)
1) Theory creates individual property rights and the government has a responsibility to protect these rights against property transfer without consent. Private property rights are crucial and must be protected in order to get people to put work into something.
2) Labor makes something your property – but you can only take as much as you can use effectively.
3) Problems: now things are already owned by people, less common space; did not address issues of storing or selling
B) Hegel
1) One can’t be a fully formed person w/o property
C) Professor Margaret Radin (theory connecting importance of private property to personhood)
1) Ongoing relationships w/prop are central to personhood (similar to Hegel)
2) Loss in things vs. loss in assets: Fungible v. personal
(a) Personal property defines a person and is more important than fungible property. Law should give special protection to personal property.
(b) Eminent domain – how can the govt decide how much a house is worth?
(c) Criticism:
(i) Very subjective. People have different valuations of their property
(ii) Sometimes, even if it’s personal, government has obligation to take property for the benefit of society
(iii) How do you create an efficient system for putting value on personal property
(iv) Strategic behavior: everything is “personal”
D) RAWLS (private property is a means to an end, not an end in & of itself)
1) Distributive Justice.
2) “Ideal Contradictarian” theory says that resources and opportunities should not depend on genes or family situation.
3) What would a reasonable person behind the “veil of ignorance” choose?
4) Rawls assume that people are risk-averse.
5) Wants a broader allocation of resources and property to have everyone participate because below a certain level of material and social wellbeing people cant take part in society.
6) “Difference principle”: wealth and “bases of self-respect” should be distributed to the least advantaged social class.
E) UTILITARIANISM (private property crucial to economy & society – generates social welfare)
1) Law should be focused on protecting property rights and fostering voluntary exchange of goods and services through contracts.
2) Free Market Competition will ensure an efficient allocation of resources.
3) Without property rights and legal protection there is no incentive to use resources efficiently because there is no assured reward. Property should be owned privately.
4) Goal of society is to allocate resources so as to maximize aggregate welfare/satisfaction for its citizen
5) Government should be concerned with average utility, not overall utility
6) People can only exclude if they don’t infringe on another
7) Property rights must be transferable to an individual who will make the most productive use of it.
8) 3 Criteria of an efficient system of property rights
(a) Universality – all resources owned by someone
(b) Exclusivity – complete control over your prop unless it results in a decline in aggregate welfare.
(c) Transferability – can transfer property rights
F) Ellickson??

A) Tragedy of the Commons
1) When all use the commons, individual gain outweighs loss, leading to individual benefiting but society suf

affect on downstream users
(ii) Artificial
· May not take water for artificial use until natural needs of all other riparian owners have fulfilled their natural uses
(iii) Evans v. Merriweather (1842)
· Use must be reasonable. Without a contract or grant, neither has a right to use all the water.
· Natural uses are absolutely necessary, and have the right to use all of it to satisfy natural wants. Priority.
· Artificial /commercial wants are for comfort and prosperity, not essential to existence.
F) Prior Appropriation
(a) 1st come, 1st serve (some states require a permit)
(b) Rationale à Water valuable commodity in dry states. Investors need to know water-related projects, which require large capital, will have their water rights protected
(c) Coffin v. Left Hand Ditch (CO, 1882)
· 1st appropriator (who uses it productively) wins. Right to water does NOT depend on location of land

1) Intellectual property: intangible, incorporeal
(a) News is not property – people just know – “common property”
(b) But writing IS property – AP exerting work, money, resources, etc
(c) Unfair trade/competition: INS misappropriating AP’s work; peculiar value of news is to spread it while its fresh
(d) 2 co’s that are competing must act in a way not to hurt one another – even if neither co owns the news, ea has an obligation to respect the “quasi-property” of the other
(e) Justice Holmes – dissent
(i) Just because something is valuable doesn’t mean it is property
(f) Justice Brandeis Dissent
(i) Fact that product of mind has cost time & labor and that has value for which others are willing to pay, may not be afforded legal protection of property

1) research is NOT copyrightable