PROPERTY (BLAIS) – CLASS NOTES AND OUTLINE
Blais_Property_Fall_2009.docx
Wed. Aug. 30:
Class intro and general remarks. Property is a commonlaw subject, great variation from state to state, much more so than e.g. Contracts, no uniform code.
What is property? Various types.
Patent vs copyright: patent protects first inventor even against independent discovery by others; copyright only protects the copying of your expression.
How is property valued?
Exclusivity: its value to you depends on your power to exclude others from using it.
Asset value. Use value. Nonmarket value (sentimental, aesthetic). One’s reputation can be a valuable “property”.
Tues. Sept. 5: Johnson v. M’Intosh, Discovery as Foundation of Title
Johnson v. M’Intosh 1823
Why did it reach SCOTUS? Back then, looser limits on fed court jurisdiction; issue touched power of fed govt to grant land. SCOTUS justices went out on circuits.
In 1823: 7 (?) justices, 3 appellate circuits (east, middle, south); 1 District court per state. (Today: 11 app circuits plus DC and fed circuits, 13 total; 94 districts, some of which have multiple divisions; 278 divisions in all.)
Case was action of ejectment, to recover property from a defendant who is currently in possession of it. Possession is 9/10ths of law; current possessor has presumption of right; opponent has burden of proof to overcome this presumption.
First-in-time: a question of law, not physical fact.
Johnson: bases claim on “first in time”, which means first in legal conveyance, not occupancy, since Indians were there before him.
M’Intosh: “first in time” for him is actual possession, at least w/respect to Johnson.
Indians: physically first and have right of occupancy, but not right to convey; can only convey to US govt on US terms. Justification: Lockean argument that what you do with land affects your ability to claim title; do you put it to productive use (cultivation) or do you leave it in “state of nature”, as (Europeans then believed) Indians did?
Advantages of first-in-time? It encourages people to acquire, take possession, develop land (a “third-in-time” rule would encourage people to hold back and wait); it makes settlement of disputes easier. Labor theory of value: the one there first has been working land the longest.
Disadvantages: First user may not be making most efficient use of the land. Sometimes difficult to define “first”, i.e. what counts as first? It rewards luck, accident, chance discovery. Requires you to trace chain of title far back into past; may be difficult.
“Ownership” too vague a term: what rights does someone have in a property, and against whom are these rights enforced? Property law is relationships between entities with regard to a thing. Think in terms of “bundles” of specific rights.
Discovery as source of title: first-in-time with regard to other European powers (though not Indians) – you have exclusive right to conquer Indians therein and dispose of land as you see fit.
J. Marshall argues this from positive (explicit, formal) law, rather than “natural law” principles: chain-of-title argument, shows step by step how the US govt acquired title to land. All land titles trace back to crown grants which in turn rest on discovery; US govt took over rights of British crown after Revolution (by right of conquest and/or by treaty). Marshall inconsistent in defining what counts as “first in time”; property rights trace back to grant by sovereign, but why didn’t Indians have own sovereignty? Still, this is a widely held principle in US and European legal systems, and Marshall bound by it. He also explores various “pragmatic” arguments as to why Indians don’t count.
General Issues in Property Cases:
Chain of Title: you can’t pass on more rights than you had in the first place, although you can give less.
Severability of Title: different rights in different circumstances; can have some but not others; e.g. possession, occupancy, conveyance, use and enjoyment.
Relativity: your rights are defined in relation to another. A’s title better than B’s, but weaker than C’s.
Possession as legal conclusion, not fact.
In deciding possession, some facts count more than others. (Intensity and visibility of use might be a factor e.g. in adverse possession case.)
Source of property rights:
Natural Law
Positive (formal) Law
Wed. Sept. 6:
Pierson v. Post
Question is what counts as “occupancy”, i.e. possession, for wild animals?
“Possession” can be unclear here; rather, what acts are sufficient to confer a property right in the wild animal? What gives Post the right to have a case against Pierson for taking the fox?
Court majority:
Precedent from actual cases is lacking b/c of unusual situation here that no one owns the land. (Most hunting cases are hunter/poacher v. landowner.) English cases were governed by statute, which is lacking here. Other cases must be distinguished – how were facts different in a manner that is relevant to legal question at issue – is the analogy warranted by the principle?
So, look to ancient authorities (“natural law scholars”), opinions of experts in law. Why use these? For continuity, certainty; objectivity, as opposed to those directly involved in case. They are not binding, but are instructive/persuasive, like cases from other jurisdictions.
They say possession is either actual capture, or mortal wounding plus continued pursuit. This rule avoids a lot of “who saw it first” arguments; clear rule favors predictability.
Dissent:
Favors instead a standard based on reasonable efforts at pursuit and reasonable prospect of capturing. Harder to negotiate about, as parties will disagree on what was “reasonable”; e.g. it seems to matter whether they pursue with big dogs or with beagles.
Rule vs. Standard:
Rule is clear but won’t work justly in all cases (here, appears to reward bad behavior by Pierson). A rule will either be overbroad or underinclusive; a “reasonable” standard (or “rule of reason”) allows more flexibility, good if fairness and efficiency are important.
Custom: dissent wants to leave it to arbitration of sportsmen.
Advantages: expertise; different rules for different sports, since different sports have different goals (some may favor speed or efficiency, others style.
But, there may be contrary public interest (e.g. society wants foxes killed). Consequential argument: if someone else can snatch their prey, hunters won’t have incentive to put effort into hunting.
But: aristocratic fox hunting with dogs and horses is not most “efficient” way of killing foxes, compared to shooting or trapping; they are not hunting for economic gain.
es court decide whether a given activity is socially useful enough to justify making it a basis for a property right?
Tuesday Sept 12: Popov v. Hayashi baseball case; begin Hammonds
Barry Bonds home run ball, estimated at time to be worth 1 million. Hits Popov’s glove, then he’s mobbed and evidence unclear; ends up with Hayashi. Baseball team relinquishes ownership when ball flies into stands, so it’s “wild” and un-owned while in flight.
Possible rules to apply:
Rule of Capture (Pierson): first capture, or wounding plus continued pursuit.
Keeble: the effort to secure property for socially useful purposes should be protected against malicious interference.
Possible exception to 1.) to take account of particular customs.
Since Hayashi now has ball, Popov must sue to assert rights in it.
Popov arguments: (from class)
P arrested flight of ball, thus “depriving it of its natural liberty” (ball’s motion being what justifies analogy to wild animal). He attempted to continue pursuit of it, and would have captured it but for malicious interference by mob. He acquires property right by first possession.
Analogy: owneràtrespasser 1àtrespasser 2 is like
PopovàmobàHayashi
Must the “malicious interference” be by the defendant (of which there was no evidence), or can it be by third parties?
Social interest: preventing/not rewarding mob violence.
Sportsmen custom: no reason why rules of baseball as applied to players (catch and secure) should apply to spectators – “the stands are not the sport”
Hayashi arguments: (from class)
The custom of the sport (baseball, and also most other sports that involve catching balls) is that it only counts as a “catch” if it stays in the hand – i.e. catch and secure it. Custom also binds those in the stands – they behave a certain way when a home run is hit. (Also, it’s assumed that those in stands are baseball fans and therefore familiar with rules and customs of the sport).
Analogy: owneràtrespasser 1àtrespasser 2 is like
Barry BondsàPopovàHayashi
Social interest: either way, someone gets a million dollars – society doesn’t really care who gets it. Typically there will be a mob scene in the stands regardless of whether the ball stays in first person’s hand.
Actual case:
Judge found Hayashi possessed it, but Popov had “quasi-property right” in it. H was to sell it and split proceeds with P. Ball actually sold for only 450k (time had passed while case in court, and the then-record homerun had since been surpassed). Popov got 225k, but owed 475k to his lawyer, who sued him! (P’s lawyer on hourly, but H’s on contingency.)
