Definition
(1)Replevin seeks to establish a right to possession and not legal title.
(2)Trover seeks payment for significant interference with P’s property. This is principally equivalent to a forced sale for the value of the property at the time and place of the interference.
(3)Conversion describes loss of an immediate right to property.
Moore v The Regents of the University of California (no action for conversion when, without P’s permission, D used cells from P’s spleen to develop a billion dollar pharmaceutical) There was no precedent for a right of action for conversion under these circumstances and various policy reasons weighed against allowing P to bring the action: (1) balance of patient’s right of autonomous medical decision with the encouragement of socially useful research weighs against allowing the action, (2) the complexity of the facts suggest that regulation is better left to congress, (3) patient has an alternative cause for breach of fiduciary duty.
(4) Trespass to land is absolute: action is available for any use without permission. Trespass to chattels is not absolute and must deprive the owner of some material interest in the property in order to support an action.
Foundation of Property Law
I. First Occupancy Theory (first in time, first in right): the first person to take occupancy or possession of something owns it. This theory is a fundamental part of American property law today, often blended with other theories. One major drawback of this theory is that while it helps explain how property rights evolved, it does not adequately justify the existence of private property.
- Johnson v. M’Intosh, (1823), the Supreme Court stressed that in deciding land claims based on Native American rights, it could only rely on laws adopted by the federal government, not on natural law or abstract justice.
- Johnson bought land from an Indian tribe
- M’Intosh has purchased land from a grant from the US gov’t.
- the Indian tribe was native to the land
- Rationale:
1.International law of discovery
a)first person there has right (have to occupy the land). First in time, first in right.
b)ignored rights of native people by saying they never truly desired to “own” the land as they are nomadic hunter/gatherers, not transforming the land in some way like by farming
c)difficult position to take today – transformative action requirement is imposing our ideas of possession onto another nation/ethnic group. Worry about legitimacy.
d)tries to represent this as an agreement among the nations of the world (NA’s did not assent to this rule and actually fought against it, but their claims were ignored)
2.Domestic law
a)“within whose chartered limits the land in controversy lay”. Virginia used to own IL and other states, then grants the land of IL to the government to form a new state.
b)passes Virginia act in 1779, but Johnson’s ancestors are getting the land in 1773 and 1775. The 1779 act then nullified all deeds made by Indians to individuals.
c)initial worries about this, but another act in 1762 appears to indicate Indians cannot grant or sell land to individuals so the later act and ownership transfer could be valid.
d)may still have worries about the legitimacy of these law (Indians not treated as equals, not given representation, no regard for impact on Indians already on the land)
3.John Locke’s theory of origin of property -> mixing labor with natural resources
a)Lockean types of uses of the land by the settlers and the NA.
b)“To leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people, was impossible.” (page 9)
c)Indians are just occupiers of the land and not owners – ignores Indian’s value in the land
d)became possible to establish “owned” property by doing work for it, using the land to extract full value (collecting acorns that have fallen – he who collects them can keep them for his own use)
e)definite Eurocentric idea of what it means to use the land; sees value of land in different ways (amount of money per acre of farmed land v. use natural resources in wilderness)
f)give land to highest value user!! (common theme we will see again and again in property cases). Maximize value of land!
4.Fait accompli/Settled expectations
a)Chief Justice says “maybe we made a mistake, but at some point we have to accept these settled expectations”.
b)if J had won (first in time, first in right – sale to J was valid), all of the land of the US would be invalid and chaos would ensue. Congress would likely pass statutes reinstating the grants. There are many constraints, and it is unclear what the white settlers would do (an armed population of settlers who would not be likely to give up land freely)
c)need people to feel secure in their ownership, use of property
II.Theories of Person and Property
A.The personhood perspective: A person has to have some controls over resources; there is some property that is bound up/attached to a person but also property that is purely instrumental in attaining other things (fungible property like money)
1.we consider someone so taken with material objects as lacking some important attribute of humanity (fetishism)
2.cannot be invest too much or too little in external objects
B.John Locke: “every man has a Property in his own Person”
1.“the labor of his hands are properly his” – create property rights through labor/creation
2.conveys idea of a continuum, moving from person to property
3.this idea can be extended to observe people make property choices that will reflect their character traits (at the extreme: loss of an object will mean loss of oneself)
4.if free market exists, land should end up in the hands of whoever can get the most economic use from it
a)absent things like zoning, best farmer wins if there is no free transfer of land
b)but Lockean idea collapses if land is freely transferred between parties
c)if land is freely transferred, there is no incentive to work to extract the most from the land for your own benefit
C.Hegel: “the person must give its freedom an external sphere in order to exist as Idea”
1.external sphere: the rest of the world, all that is outside the person
2.personhood in the richer sense of self-development and differentiation presupposes the context of human community
D.Utilitarian perspective: maximization of welfare is the ultimate goal, so property only exists where social welfare is maximized.
1.suggest the government must give all citizens the entitlements necessary for personhood (distribute property accordingly)
2.government should ensure the fungible property of some does not overwhelm opportunities for other to have personhood in their property
3.Posner: efficiency is maximized only when scarce resources are the subjects of entitlement
III.Tragedy of the Commons
A.Hardin:With an open field used by a number of ranchers, each rancher has an incentive to bring another animal onto the land for his own benefit (incentive to use as big a portion as possible). This incentive works against population control and the result is over-grazing of the field as each rancher brings a new cow onto the field…BIG net social loss!
1.once you wipe out a resource, it may not come back – so open access/laissez-faire system is probably not the best policy
2.Hardin prefers governmental regulations (taxes) but thinks other property regimes can achieve the same goals:
a)private property regimes (use lottery system, fee-based, auction-based) where each person has a defined # of resources…for each additional animal over what the resources can cover, then X absorbs more/all of the additional costs (net loss)
b)now X cares about both the positives and negatives of bringing that additional cow onto the field (limited to his portion of the field)
c)X may choose to overburden his land, but will be aware of consequences
B.Tribune Company Broadcasting Rights – Sovereign stepping in: If two radio signals are too close together, as the market gets crowed with more and more signals, interference makes it impossible to enjoy either station. The scarcity of usable broadcast signals creates the tragedy of the commons.
1.Remedies: governmental regulation -> Radio Act of 1927, try to regulate the commons; treat each radio signal as property right and divvy up the signals so each user gets a broadcasting signal, prevent overlap or crowding (like splitting up the pasture)
2.Distributional and efficiency concerns: if we assign property rights, we start to worry someone could buy up all of the signals and have a huge concentration of the signals (We value public choice and diversity! We don’t want concentration of media power. We like to encourage public discourse and that demands variety of ideas).
C.The Lobster Gangs of Maine – Quasi-private property regime: Communal property idea - fishermen break into “harbor gangs”, custom is to recognize fishing spots “owned” by each gang. Each member receives benefits associated with even dispersal of resources and protection of property rights by the rest of the gang. The gangs collectively defend their turf – anyone within the group can use the resources, but outsiders are not tolerated!!
1.benefits of communal approach: gang formation protects the interests of several individuals but in an informal way; get collective response to encroachment while still protecting individual interests
2.this creates a loose legal system (no formal law enforcement is involved) but fishermen agree on this custom system
3.method of preventing tragedy of the commons by loosely assigning something close to property rights and letting the pasture-users regulate crowding or overlap issues so each person gets a portion of resources for their own benefit
4.Not really a pure communal ownership regime b/c property rights are not formally recognized and there is an inherent hierarchy based on age and status within each gang
5.if the lobster fishing was treated as “open access” regime: limited resource (with some more lucrative areas and less lucrative areas) could be devastated as all descend onto the lucrative areas. The end result would be similar to over-fishing of particular waters (some species lost)!
6.if the lobster fishing was treated as private property regime: the private property owner would be tied to one place;limited area as individualas compared to being part of a group that can use larger portion of the gang turf (especially with migratory resource).
IV.Acquisition by Creation: “Any expenditure of mental or physical effort…there is created an entity, whether tangible or intangible” creates proprietary right to exploit that entity that is separate and independent from the ownership of it.
A.INS v. AP: Plaintiff (AP) and D (INS) are competing news sources…they collect news stories from around the globe and then compile the information for sale to their customers. AP accused INS of taking (or inducing release) of their collected news and appropriating into their medium for sale. AP says this misappropriation has occurred in 3 ways:
1.bribing AP employees to furnish collected news
2.inducing AP members for violate in-laws and permit INS to obtain pre-publication news
3.copying news from bulletin boards and from early editions (business practice is considered unfair competition because the opportunity for profit lies in that step – considered stealing from the bulletin boards)
4.AP is like sweeping up poop in Haslem v. Lockwood – have to give someone time to make use of their efforts gather up something (news stories in this case) (some custom also).
a)Improvement – taking scattered news stories from all over and compiling into a useful item.
B.The court held that because the AP and INS are business competitors, misappropriation of AP news stories is unfair competition. Each party has a duty to the other to conduct their own business in a way that does not injure that of the other. This creates “quasi-property”! Associate new property rights with the news stories when competition is involved. (no true property rights exist – just quasi-property rights as incentive for going out, collecting story, and packaging the news into a certain format/medium). INS is reaping what it did not sow, and that amounts to unfair competition and misappropriation of “goods” here is essentially misrepresenting someone else’s property as their own!
1.note contrast b/w INS (court says things turn on commercial competitor violates property rights, profit motive) and Keeble (H was not engaged in a trade so no ordinary business competition)
2.hard to tell the difference between spiteful speech and political speech, so 1st Amendment gives more protection to spiteful than competitive commercial speech…highest protection to political speech.
C.International News Service v The Associated Press (D gathered P’s news through bulletin boards and by bribing newspapermen) One theory advanced argued that there is property interest in the news. Another theory suggested unfair competition. The court held misappropriation of information, hinting at a property-like right. News, not the creation of the writer, cannot be copyrighted. But the value of the news industry depends on fast transmission. News is useful and firms have a duty to conduct their operations without harming each other. Thus, there is a quasi-property right with news between companies, but not between companies and the public! But P cannot exclude D altogether but only postpone D’s participation in order to prevent D from reaping the fruits of his labor. The holding here is different than typical unfair competition holdings because D isn’t selling his goods as P’s to benefit from P’s trademark. Indeed the reverse is true factually: D sells P’s products as D’s own. Holmes’ Concurrence “Property a creation of law, does not arise from value, although exchangeable—a mater of fact.” Property carries a right to exclude and there is no right with words, even if difficult to write.This is unfair trade, although the harm is less direct than usual. The ground for the action is D’s non-attribution to P and can be corrected attribution to P.Holmes thinks this case is about palming off. This grants P property right-like protection, without granting an actual property right. Brandeis’ Dissent Property must carry with it a right to exclude. If private, the right is absolute. If there is a public interest, the right is qualified. P has a qualified right with D due to their special relationship. Silence about the source of information is not necessarily misattribution. Courts are ill-equipped to investigate the effect of a new property law. This case continues to be important in modern law. The elements of misappropriation seem to be (a) a property interest through (b) industry, (c) value, (d) use without consent, and (e) injury. This case requires that P and D are competitors. With the Cubs v Rooftops case, parties are also competitors. There is a free speech issue lurking because INS is restricted from saying what it wants (based on what is reads from bulletin boards). There is also an antitrust issue since, with a property right, AP might gobble up competitors. The value in INS is fleeting. The court says that once the value has passed, the property passes as well. The argument that value indicates property, is weak. Perhaps property is like wild animals, or like Dapson’s interest in his decoy pond. Perhaps IP is more like the manure in Haslem: information alone is not valuable, but value attaches once work is invested. Perhaps it is like Prah and Maretti where one had a right to sunlight although one cannot exclude others from it (AP’s spite fence). Perhaps it is like Eads, where D’s claim to the wreckage was valid since he didn’t use P’s tree marks to find it. If INS didn’t use AP’s newspaper to discover the news, then they would be lawful like D in Eads. But if they did use AP’s treemarks, then they would be culpable.
D.Cheney Brothers v. Doris Silk Corp: Plaintiff designs and manufacturers silks…only a few of their designs become popular each season and the time constraints and other limitations make it impossible to protect them under intellectual property rights. ∆ is accused of copying π’s designs and marketing them for their own profit (cherry-picking the most popular designs to get them on the market fast). ∆ sold the copied silk at a lower cost (unfair competition issue! Just piggy-backing on plaintiff’s efforts)
1.Issue: Does plaintiff have proprietary rights in their silk designs that prevent another company from copying them for their own profit?
2.Conclusion: No, there is no legal bar to the defendant copying the manufactured and marketed silk designs. Judgment affirmed.
3.π’s property was limited to the chattels embodied in his invention, with no protection from the imitation of such property. To exclude others from the enjoyment of a chattel is one thing; to prevent any imitation of is to create a monopoly!! Only Congress has power to establish monopoly for a limited time.
4.this case is distinguished from INS v. AP because the AP case involved specific details that cannot be generalized to other issues regarding proprietary rights (the outcome would not make sense if not for the specific facts and details about the news story case)…Doris court is doing very close reading of INS v. AP!