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Property I
Wayne State University Law School
Dolan, John

Chapter 1: What is Property
“Relation of the individual to the community with regard to the use and exploitation of resources”
–          Not property: Human beings, etc…
“Mary and the automobile” p.2
–          Ownership & property is framed by the law through Remedies & Limitations
–          Blackstone:
o       Passion; our notions of ourselves that we have something
“Theory of Legislation,” Bentham
–          No such thing as natural property à Property is entirely the work of law
–          Property and law are born together à without law, property ceases
“The Tragedy of Commons,” Garrett Hardin
–          A rational actor seeks to maximize his gain
–          He does so by asking, “What is the utility of adding one more?”
o       Positive component specific to actor
o       Negative component which many will burden
–          That rational individuals, acting separately, may collectively over-utilize a scarce resource
–          “Anti-commons Property”
o       Hypothetical situation where rational individuals (acting separately) collectively waste a given resource by under-utilizing it
Economic Theory of Property Rights
–          Important economic rights in determining property (Posner, leading regimes,). Efficient system of property rights
o       Transferability
§         To shift property from a less productive to a more productive use through voluntary exchange
o       Exclusivity
§         The more exclusive the property right, the greater the incentive to invest the right amount of resources in the development of the property
o       Universality
§         Ideally all resources should be owned or ownable by someone except resources so plentiful that everybody can consume as much of them as he wants without reducing consumption by someone else
–          Externalizing Costs: ex. Steel Mill polluting the air
–          Economic function of prop rights to
–          Resource Efficiency: Individuals making improvements to maximize the value of land
o       Done through incentives
§         (Mentioned above as ‘rights’)
–          Broadcast Frequencies
o       Incomplete à Transferability and difficulty obtaining rights for future use
–          Transaction Costs:
o       Sometimes interfere with the allocation of property
Why do we have property rights?
–          Efficiency
–          Blackstone: People want to own stuff
State v. Shack: efficiency, but limited by fairness
–          Title to real prop cannot includedominion over destiny of persons owner permits to come upon premise
–          “There are limits to your rights!” You can own property but there is a limit to what you can do
–          Pro: private actors can more efficiently deliver many goods/service than govt (free market competition)
–          Anti: Alleged lack of incentive for governments to ensure that enterprises they own are well run, on the basis of the idea that governments are proxy owners answerable to the people
Chapter 2: Attributes of Property
“Incorporeal Property in Primitive Society,” Lowie
–          Primitive here meaning earlier
–          Lowie disagrees with Morgan’s view
o       Morgan: Primitive society’s did have property notions, but earlier on prop was inconsiderable
–          Lowie examined the differences between ethical and legal principles in regard to property rights
o       Examine the differences and how to justify each
“Principles of Economics,” Seligman
–          Occupation Theory
o       Property belongs to those who seize it first
–          Natural Rights Theory
o       Property as a part of the law of nature
§         Here, slaves were had as a natural right
§         Those who allow themselves to be conquered naturally belong to his conqueror
o       The natural order of things will protect its interest
–          The Labor Theory
o       Property derives from the toil and trouble experienced in creating it
–          Legal Theory
o       NOT an economic doctrine, tells us what property is, not why it is, nor what it should be
–          Social Utility Theory
o       Utilitarian view of “good for society”
o       Social betterment will be taken into account when forming the rules
“The Method of Freedom,” Lippmann
–          Private property was the original source of freedom
–          A balance is necessary between private rights and government ownerships
“Property and Contract in Their Relation to the Distribution of Wealth,” Ely
–          Property is exclusive in its nature and not absolute (Have rights but not absolute)
–          “An absolute right of property … would result in the dissolution of society”
“Property and Sovereignty,” Morris R. Cohen
–          Men have inalienable rights. Theory of natural rights of individual took not only an absolute but a negative form: (in order of significance)
o       1) Restraint on absolute freedom of testamentary disposition
§         Alienability not subject to someone who is no longer alive
o       2) Limitations of the use of property
§         Must be restrictions not only in the interests of other property owners, but also in the interests of health, safety, religion, morals, and general welfare of the whole community.
o       3) Civilized legal systems recognize Just Exploration/Confiscation w/o any direct compensation
§         Although, State has no right to deprive an individual of property to which he is so attached that he refuses any money for it
§         Cohen believes it is generally advisable in order not to disturb the general feeling of security, no absolute principle of justice require it
Jones v. Alfred H. Mayer Co. [32](Discrimination)Respondents refused to sell petitioner a home because he was black
–          Pursuant to the Thirteenth Amendment, Congress had the power to draft effective legislation, such as § 1982, to eradicate the badges of slavery
–          Enabling Clause: For that clause clothed Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States
–          13th: “Congress shall have the power to enforce this article by appropriate legislation”
o       Objective of equality; this statute was within scope; Ownership of prop gives rights of equality
Chapter 3: Traditional Objects and Classifications of Property 
Types; (legal relation among people in regard to things):
–          Chattel: Real, tangible, movable, personal property
o       If a particular article, formerly a chattel has become part of the realty (arise in several diff ways)
§         The owner of land and building may buy and install therein a new improvement
§         Owner of a chattel may annex it to land of another, or to land which another has interest
§         Annexor of the chattel may not own the same, or his ownership may be e

ourt held that conversion was not a valid claim because this tort claim is based on property concepts
–          This cause of action was denied because he had no right to possess the cell line, and certainly didn’t expect to retain the possession of the cell line after the surgery. Lastly, they claim that the extension of conversion law into this area will hinder research by restricting access to necessary raw materials
Dissent (PROF)
–          They claim every individual has a protected interest in his own body and products. And he says that science should not be entirely for profit
–          A dignity and sanctity that come with human body, and should not be used for a marketable profit
–          An unjust enrichment arg, in which docs made a profit, unfair to not compensate MOORE for it
–          “Right to Property”
o       Remedy through injunction
o       Is this a conversion through a right to the subsequent property of oneself
o       Examine exploitation as when
Chapter 5: Role of Property in Society
Johnson v. McIntosh [63] Natives granted land to Johnson. Here, Land speculation (Supreme Court: Land belongs to Sovereign)
–          Right of Occupancy: Fish, mine, settle, etc…
–          Lot of these deeds predated the constitution; Proclamation wasn’t the law; Marshall used custom to decide this case (have to get the land from the sovereign)
–          Grant/Deed are conveyances
o       How does one convey something if they don’t own it
§         Nemo Doctrine “One cannot give what one does not have”(“no more principle,” principle of conveyances, first rule of conveyances)
·         Fraudulent Conveyance Exception
*We will decide what is property in order to achieve some efficiencies (answer to “Where to draw line?”)
Shelly v. Kraemer[69]Neighborhood enacted a restrictive covenant which declared that property here would only be sold to those of Caucasian race. Shelly (buyers) are of another race and did not know of the covenant
–          The restrictive agreements standing alone cannot be regarded as a violation of any rights guaranteed to petitioners by the 14th amendment so long as the purpose of the agreements are effectuated by voluntary adherence to their terms
o       Court rules that court enforcement of these covenants does constitute state action and is forbidden by the 14th amendment
“Covenants run with the land”
Economic Rationale against restricting the sale of real estate based on race:
–          Short-term: Property value may be worth more to certain individuals
–          Long-term: It will depress the value, less buyers, less competition
Social Rationales against:
–          By allowing…
Grantor à Grantee (immediately)
Grantor à A à B à Grantee (mediately)