PROPERTY OUTLINE
Professor Andrews, Winter 2011
Smith, Larson, Nagle, Kidwell (2nd ed. 2008)
PROPERTY
A) What is Property?
1. Blackstone
i. The free use, enjoyment, and disposal of all acquisitions, without any control or diminution
ii. As long as there isn’t a law prohibiting it, then I can do what I want with my property
2. Restatements
i. Property is the legal relation between people and objects
3. Today’s Modern View
i. A bundle of rights
1. The bundle of sticks example
a. Each stick is some separable aspect of the whole
B) Classical Perspectives on Property
1. Occupancy – Henry Maine
i. Advisedly taking possession of that which at the moment is the property of no man, with the view of acquiring property in it for yourself
2. Natural Law – Thomas Aquinas
i. God Rules all…
ii. Man has the power to procure and dispense of things
3. Labor – John Locke
i. A man may own what the labor of his body and the work of his hands.
ii. Property begins with the taking of any part of what is common, and removing it out of the state of nature
1. The limit should lie where one can make use of it to any advantage of life before it spoils
4. Utilitarianism – Jeremy Bentham
i. The basic goal is the greatest good for the greatest number
ii. Property is created by the law
iii. Private Property can be justified because it serves the function of maximizing the utility, or wealth, of individuals
iv. The rightness of every action depends SOLELY on its consequences
1. Produce pleasure
2. Prevent pain
5. Economics – Adam Smith
i. There is a natural right to property rooted in the labor theory of value
RIGHT OF PUBLICITY
A) Rules
a. There is a right to publicity
i. State of Tennessee ex rel. Elvis Presley Memorial Foundation v. Crowell p. 12
1. People are using Elvis’ name w/out the authorization of the estate. The π sued to get the ∆ to stop using the name. The issue was whether this right is descendible. The court held that it was (probably b/c it was Elvis)
2. 6 Policy reasons for the right’s existence
a. The right to will is crucial
b. One cannot reap the rewards of another’s efforts
c. A celebrity’s status creates value for them and their families
d. People have the right to contract out their goodwill
e. It sends a clear signal to the public as to the sponsorship of goods and limits dilution of the goodwill
f. Reduces unfair competition by trademark infringement
b. This right allows one to control his name and image, and commercial exploitation thereof
i. State of Tennessee ex rel. Elvis Presley Memorial Foundation v. Crowell
c. This right is descendible
i. State of Tennessee ex rel. Elvis Presley Memorial Foundation v. Crowell
d. This right might not extend to criminals
i. Maritote v. Desilu Productions p. 23
1. Al Capone’s son and widow bring a claim of invasion of privacy due to a TV show’s portrayal of Capone. The court held that their rights were not invaded since they are not mentioned in the show. Moreover, the court held that there was no right of publicity for Capone. He’s infamous, NOT famous
e. This right allows to exclude others from using a celebrities’ likeliness
i. Midler v. Ford Motor Company p. 29
1. The court held that the likeliness of a voice will be protected under 3 circumstances:
a. When the distinctive voice of a PROFESSIONAL singer
b. Which is widely known
c. And is deliberately imitated.
ECONOMIC & POLICY CONSIDERATIONS
A) Tragedy of the Commons (p. 17)
a. Rational beings seek to maximize their gain, but they tend to ignore the negative consequences of their actions and are prone to overusing common property.
b. Multiple owners are endowed with the privilege to use a given resource, and no one has the right to exclude another.
c. Heard & common pasture example
i. They will ask themselves “What is the utility to me of adding one more animal to my heard
1. Positive component
a. A function of the increment of one animal
b. The heardsman receives all the proceeds from the sale of an additional animal (+1)
2. Negative component
a. A function of the increment of the additional grazing created by one more animal
b. Since the effects of overgrazing are shared, the negative utility is only a fraction of the –1.
3. Result
a. Every heardsman believes that it’s in his best interest to add one more cattle, and that results in the destruction of the commons.
B) Tragedy of the Anti-Commons (p. 23)
a. Multiple owners are endowed with the right to exclude others from a scarce resource, and no one has an effective privilege of use.
b. The resource is prone to underuse, which is the tragedy of the anti-common.
c. Moscow Storefront owners example
i. Each owner has the right to exclude others on the block from using the space as a storefront. No one can set-up shop without collecting the consent of all other owners.
C) Law & Economics (p. 39)
a. Utility
i. What is the value a person attaches to a particular good, service, or activity (wealth)
b. Revealed Preference
i. In most exchanges, the price paid for goods is used to identify the parties’ preferences
c. Marginal Utility
i. A person’s desire for particular goods or services often varies according to that person’s existing ownership or consumption of the commodity in question. (Note that marginal utility declines as a person acquires more of the commodity)
d. Utility maximization
i. People want to maximize their utility.
e. Efficiency
i. A particular choice, state of affairs, or legal rule is said to be efficient if it maintains or increases utility. The inverse is considered inefficient.
ii. Efficiency = Maximization of utility
f. Rationality
i. People try to maximize their own utility, by evaluating information that is available to them, as they go about their daily lives.
g. Pareto Efficiency
i. A change is Pareto efficient if it makes at least one person better off and no one worse off.
ii. Examples
1. Voluntary exchanges
2. Removal of governmental regulations that restrict people but benefit no one. (A rule against pink houses)
h. Pareto Optimality
i. There are no Pareto efficiency enhancing changes possible.
i. Kaldor-Hicks Efficiency
i. A change that increases society’s aggregate utility (Total Gains > Total Los
ownership against everyone except the true owner.
ii. If the property is found in public area, then the Armory rule applies
i. Bridges v. Hawkesworth p. 61
a. π found £55 on the floor of the front room of the ∆’s shop. Because the bills were found in the common area of the shop, and because the owner of the shop was unaware of their presence, the finder gets to keep them.
iii. If a person discovers property as an agent of another, then he cannot keep it.
i. South Staffordshire Water Co. v. Sharman p. 62
a. A worker found rings at the bottom of the pool and the real owners cannot be found. The court held that the owner of the locus in quo should get the ring because:
i. The finder was an employee of the π
ii. π was the owner of the locus in quo
iii. The pool & its contents were under the control of the π
b. Why would dishonesty be encouraged by not enforcing the owner’s superior right?
i. The one who discovers it, if he knows he’s got a right ahead of the land owner, he’ll just pocket it
ii. The other is why he could be dead wrong! Since the finder knows he has a right to it, he is more likely to report it. If no one claims it, he gets it.
iv. A finder may get to keep property found on the land of another if the other was never in control of that land
i. Hannah v. Peel p. 64
a. Soldier was stationed in a house and he found a brooch. When the real owner cannot be found, the ∆ decides to sell the brooch. The owner of the locus in quo sued for the value. The court held that the finder could keep it b/c:
i. The finder was not an employee of the π
ii. The house was never under the physical control of the ∆
iii. The finder was more meritorious by coming forward with his find.
v. If property is embedded in the soil and it has been put there on purpose, then the owner of the locus in quo has defacto title.
i. Morgan v. Wiser p. 66
a. Trespassers w/ metal detectors found a stash of gold. The owner of the locus in quo sued to get them back. The court held that the old treasure trove rule would invite trespassers and that property embedded in the soil that was not lost belongs to the owner of the locus in quo. (In TN only***)
vi. If an object is abandoned, then the finder gets to keep it.
i. Columbus-America Disc. Group v. Atlantic Mutual Insurance p. 70
a. π found gold in a shipwreck at sea and sought a declaratory judgment. The court held that it was not clear from the record whether the ∆ abandoned the wreck, and that lapse of time was not sufficient to constitute abandonment.
