Class Themes
1)Due Process Clause: The constitutional guarantee of due process of law, found in the Fifth and Fourteenth Amendments to the U.S. Constitution, prohibits all levels of government from arbitrarily or unfairly depriving individuals of their basic constitutional rights to life, liberty, and property.
2)WITH DUE PROCESS THERE IS EXTREME DEFERENCE TO LEGISLATORS
3)Can keep property in family by giving yourself a life estate for life, then give brother a life estate for his life and then give remainder in fee simple to someone else in family
4)Another way to keep in family: I would advise W to give H the life estate to the inheritance set up as a trust, and make W's brother B the trustee so that he can manage the property and also get the remainder interest once H dies
5)WHEN TRYING TO KEEP STUFF AWAY FROM SPOUSE. BE CAREFUL OF STRONG V. WOOD
6)Bundle of rights: right to contract, right to exclude, right to dispose of property, right to derive economic value of property
7)Tension between property rights are very important versus government has to regulate for the common good (Calder v. Bull)
8)Ownership v. possession
9)Relativity of title: who has the better right
10)Property is composed of an aggregate of rights. Takings cases can include disaggregating property sticks
11)Family property
12)Will substitutes. How far should cts go into in validating will substitutes?
13)What is the proper balance between freedom of testation (freedom to choose where property should go) versus family protection policies?
14)What is the right balance between clear bright line rules and discretionary factor tests? On margin of clear rules there is always
15)How should law treat nonmarital cohabitation? Property model (I take my stuff and you take yours)? Contract model? Divorce model (treat us like we were married and are getting divorced)?
16)Real estate
17)Landlord/tenant law: commercial (commercial law and governed by UCC (lawyer-made law. Have to interpret contract language and these cases don’t get into court that often.)) versus residential law (consumer/regulatory law. Lots of restrictions on contracts))
18)What about people who rent a store and live in an apt above the store
19)Fundamental property rights
a)Right to exclude
b)Right to pass down land
20)Conclusion: the Supreme Court generally defers to the state/local government (vertical balance of powers), generally defers to the legislature, with minimal scrutiny of its regulations (horizontal balance of powers), generally construes the Constitution formally and is reluctant to impose judicial activism, and prioritizes the right to derive economic value from property (not necessarily of persons) especially if it's investment-backed.
21)Ways to modify taking rules: taken from Property exam F2007
a)Such a rule would categorize as a taking any government regulation or statute depriving an owner of his property (to any degree) except for those regulations aimed at specific common law nuisances.
b)A second and quite opposite approach would be to articulate an expansive view of the police power that leaves little question as to the regulatory nature of most takings. If police power is viewed broadly enough, there would be no room to quibble over investment backed expectations and conceptual severance
Basic Concepts of Property
1)Basic Concepts of Property
a)Definition: Body of law that concerns relations between persons (individual & corp.) with respect to things that can be the subject of ownership. (Morris Cohen)
b)Most property law is transactional-planning and prevention of disputes
c)If you stay clear of the criminal justice system, property is the only other time people really deal with lawyers
i)Wills (disposition of property upon death)
ii)Buying and selling property (real estate)
iii)Divorce
2)“The Second Treatise of Government” by John Locke: Chapter 5: “Of Property” S-1 p. 3
a)Main idea: there are rights (life, liberty, and estate) that exist outside of the state. These rights are pre-political (rights that came b4 government). So not all our rights came from government
b)Locke starts with the state of nature: In state of nature have equality and can take as much land as you need as long as you leave some for others and don’t let stuff spoil. In state of nature everyone enforces stuff themselves…there is not one judge or executive
c)BUT, we leave the state of nature so we can preserve our property and be more secure with our property. Want mutual preservation of lives, liberties, and estates
d)Overall problems: people take more land than they need
i)There is also a scarcity of land and there is money: sell perishable goods for money, get more land, so in a sense you mix your labor with it, but yields inequality of opportunity and distribution
3)“Commentaries on the Law of England” by William Blackstone S-1 p. 35
a)Main Idea: Right of property is absolute but it can be taken away, however, only with just compensation
b)Blackstone considered property an absolute individual right like life and liberty yet property right was something that could be taken away by gov’t
c)Blackstone’s theory of acquisition of property
i)1st user of land (occupying/mixing labor) acquired transient property = right of poss. in the land that continued only so long as the act of possession (the use) lasted - no permanent property at first
ii)But, due to habitation, permanent food supply and agriculture needs, permanent property developed. “
iii)"Necessity begat property" and to ensure property, we took to relying on civil society, government, laws, etc.
iv)Ownership included right to exclude all others, right to free use, enjoyment and disposal of and without interference except by state
v)As people decided that they like someone else's property better, developed commercial traffic, reciprocal transfer of property by sale, grant, or conveyance
4)The Declaration of IndependenceS-1 p. 43
a)We no longer have life, liberty, and property, but have life, liberty and pursuit of happiness
i)These are unalienable rights and are pre-political. Trying to appeal to loftier values and the common people who did not have as many concerns with property. Locke uses “happiness” and is an idea that subsumes property
ii)Pursuit of happiness: more general than property, which is better during this time of slavery (a divisive issue)
b)Some Lockean ideas in DOI: we enter into gov’t to protect these pre-political rights
i)Also when gov’t doesn’t protect these pre-political rights, we can overthrow this government
c)Locke equated happiness as more like general welfare: the pursuit of good and orderly living
5)The US Constitution S-1 p. 45
a)Amendments (Bill of Rights) dealing with property:
i)3 (quartering of troops),
ii)4 (the right of people to be secure in their houses (unreasonable searches and seizures))
iii)5 (eminent domain, due process),
iv)14 (due process clause…no person shall be denied of life, liberty or property without due process of law,
v)8 (excessive bail)
6)“Notes on the State of Virginia” by Thomas Jefferson S-1 p. 47
a)Said keep the manufacturing and cities in Europe. We will be landed men and will have the materials
b)Jefferson’s IDEAL SOCIETY: small, agrarian, democratic society
i)He believed that everyone should work in the field - "[farmers] are the chosen people of God,” also the most virtuous and moral people good influence on government
ii)Workers in cities are like sores to public government, full of corruption/venality -- they destroy laws, the Constitution
7)“Theory of Legislation” by Jeremy Bentham (very into regulatory law) S-1 p. 49
a)Legal positivist: no natural rights, rights are a creation of law
b)“Property is nothing but a basis of expectation: the expectation of deriving certain advantages from a thing which we are said to possess”
c)Unlike Locke, he says that “property and law are born together and die together. Before laws were made there was no property.”
i)He is moving towards the idea that there is no property unless you have law to back it up
d)Property cannot exist without law. There is no such thing as natural property. Very opposed to Locke
8)“Property and Sovereignty” by Morris Cohen S-1 p. 51
a)Definition of property becomes very popular: Property is the relation between persons with reference to “things”
b)Property is not a thing, but certain rights
i)The essence of property rights is the right to exclude others
ii)Law doesn’t guarantee you can use property, just helps exclude others from it
c)He is interested in the rise of entrepreneurial power. He is interested in the power that property gives over others
9)“Transcendental Nonsense and the Functional Approach” (1935), “Dialogue on Private Property” (1954) by Felix Cohen S-1 p. 53
a)Economic value of property depends on the extent to which it will be legally protected; has no value if doesn’t have power of state behind it
i)Considers property in economic terms
ii)The value of property is created by the law, not property itself (as Bentham argues)
iii)Right to property is defined by the state
b)Circular reasoning: legal protection based upon economic value, but economic value depends upon the extent to which it will be legally protected
10) “The Last Metaphysical Right” by Richard Weaver S-1 p. 57
a)Writing against utilitarianism, which he thought destroyed everything socially useful, and in response to New Deal; against finance capitalism, monopoly, big business, big state
b)Right of private property is metaphysical insofar as it does not depend on any test of social usefulness -- people have it regardless of social utility -- ownership of property was absolute, independent of the public. This one inviolable right served as a basis for all other rights and as a framework for evaluating them
11) “Constitutionalism after the New Deal” by Cass Sunstein S-1 p. 71
a)New deal gave more power to the federal gov’t as opposed to the state gov’t. and gave more power to the executive (agencies) instead of the legislature and judiciary
b)The New Deal was a threepart critique of traditional constitutional framework:
c)1) Different conception of legal rights, rejecting common law because it was a mechanism for protecting the existing distribution of wealth and entitlements at expense of poor, disadvantaged, elderly, etc.
(1)Property was overly protected, while poor were under-protected
d)2) Create institutional entities not burdened by tripartite government (separation of powers makes it hard for government to act)
i)Increase presidential authority and create regulatory agencies to react flexibly and rapidly to protect poor from economic flux.
ii)Saw original const. structure as reflecting the framers desire to protect existing distribution of wealth and entitlements (a.k.a. property)
e)3) Reject traditional notions of federalism in favor of increase in fed. regulation
i)States couldn't solve economic problems on own due to massive interconnectedness of economy; competition among states produced paralysis
12) “The Greening of America” by Charles Reich S-1 p. 65
a)New property is status. You are identified by your status and get happiness through status. Overall, government is a status dispensing organization. Statuses deal with relationships: I am the CEO of Apple and thus, I have people who work underneath me
b)Statuses are an important part of what is important and valuable to people
c)Status determines the kind of people that you are
d)New legislature is this new power that employers have: can tell you whether to wear a hat, cut your facial hair etc…
e)Status as property
i)becomes chief goal of life for most people
ii)they become a substitute self, and a person loses individual liberty
(1)statuses, the new property, imply a tie to an organization, including require a tie to the fate of that organization
(2)thus, lose liberty and ability to chose subject to power of org
The Acquisition of Property
- Basic Concepts from Our Readings
1)“Feudal Society” by Mark Bloch S-1 p. 109
a)Through the whole of the feudal era, it was very rare for anyone to speak on ownership. If a lawsuit didn’t turn on ownership, then what did it turn on? It turns on possession
b)Possession: What counts is possession followed up by long usage (seisin)? Better yet, if you can prove that your ancestors used it and so did their families, then it is yours. Lawsuits turn not on who owns, but who has a better right of possession.
c)Seisin-possession made venerable by the lapse of time-memory is important to protect; title deeds used to assist memory to show transfer of seisin
2)Excerpts from the Book of DeuteronomyS-1 p. 107
a)Property ownership carries with it many legal responsibilities
b)Relaxation of debt every 7 yrs (bankruptcy)
c)Care for neighbors property, return it if know who it belongs to, or keep it until they claim it
d)When you harvest your land, you leave some for the widow, alien, and orphan
e)“You may eat as many of his grapes as you wish, but do not put them in your basket.”- Use property for sustenance (food) but not for profit
3)The Swedish Allmanratt:
a)Allemansratt: freedom to walk on another’s land, collect berries and use the water for drinking, boating etc.…
b)In Sweden, you can walk on another’s land and collect berries, foods etc.… you can walk on another’s land and take wild things, not cultivated things
4)The 1st Rights Movement (17th and 18th century)
a)UK 1688: transition from monarchy to constitutional monarchy. Life, liberty, property. And the greatest of these are properties. This is a Lockean idea. Locke but still quiet because no single constitutional document
i)Magna Carta: gov’t shouldn’t take property unless he compensates
b)US 1776 (Declaration of Independence): life, liberty and pursuit of happiness. Is much more broad than property
i)But property comes back in the Constitution (1787). Get federalism in constitution
ii)1791: Bill of Rights: Property is back
c)France 1789: revolution that flew the flag of liberty, equality and fraternity. Declaration of Rights and Man wanted a lot of reallocation. Several constitutions in the 1790s.
d)Germany (1795): welfare state: it is the responsibility of the state to provide for those who can’t provide for themselves. Prussian General Code
5)“The Social Contract” by Rousseau S-1 p. 81
a)All men have a natural right to what is necessary to them. But can’t take more than what they need
b)Rousseau says that all civil society is illegitimate because it deals more with hitting someone over their head and taking the property away instead of an agreement
c)He believes that legitimacy comes from agreement
d)In social contract, you give all your pre-political property to the community to protect it from all the neighboring communities. So it does help preserve property (this is different than Locke)
e)Communitarianism: Communal strength is stronger than private strength
i)State is therefore the source of property rights
f)Slavery is invalid because meaningless-slavery and rights are contradictory; can’t be a person with rights and liberty and then surrender them
6)Declaration of the Rights of Man and Citizen (France) S-1 p. 85
a)See combination of Lockean idea of natural rights (aim of government is preservation of natural rights, including property)- Article 2
b)Article 17 (property is a sacred and inviolable right) is Rousseau’s idea of property
c)There is a lot of reference to equality in this document
d)No mention of what happens if someone violates these rules
7)“Prussian General Code of 1794” in The Old Regime and the French Revolution by Alexis de Tocqueville S-1 p. 87
a)Goal of state is the welfare of the commonwealth
b)Individual rights subordinated to public rights-however, individual rights cannot be restrained except for public utility
c)Welfare notion: state responsibility to provide for those who can’t provide for themselves (food, work, wages, etc.)
d)Recognition of individual rights derived from nature: influenced by Locke and Voltaire
e)Every citizen entitled to state protection of individual property
8)The Industrial Revolution (late 19th century to 20th century)
a)Germany (1871): first country to make a social security system. Lots of social services
b)UK, France and Germany: all have parliamentary supremacy. All have universal (women can’t vote) suffrage. Lots of social legislation
c)US struck down quite a bit of social legislation in the “Lochner era” because interfered with the right to contract (violates 14th amendment). In the New Deal, we start to get it back (start getting social legislation back)
i)We get social legislation but get it quite a bit later than UK, France and Germany
9)The Second Rights Moment (Post WWI)
a)Overall, many countries get judicial review. Many countries adopted constitutions, or revised their constitutions. Also, many countries made bills of rights.
b)We get the beginning of the universal global rights phenomenon beginning with the Universal Declaration of Human Rights (UDHR)
c)UK: spend a lot of time helping to draft the UDHR. UDHR doesn’t property. Is no longer saying that property is pre-political. Says property is the creature of statute
d)France: makes two constitutions. One in 1946 and one in 1958. No judicial review
e)Germany: you have the German Basic Law of 1949.
i)Property and the right of inheritance are guaranteed, but their contents and limits shall be determined by law.
ii)Property imposes duties
iii)Property backed up by judicial review
10)West German Constitution of 1949 (Basic Law) S-1 p. 89
a)Property and the right of inheritance are guaranteed. Their content and limits shall be determined by the laws
b)Property imposes duties. It should also serve the public weal (advantage)
c)Land, natural resources and means of production may, for the purpose of socialization, be transferred to public ownership, yet again, must have compensation
11) “The Constitutional Jurisprudence of the Federal Republic of Germany” by Donald Kommers S-1 p. 91
a)Says that the three traditions that have shaped the German constitution are classic-liberalism, socialism, and Christian-natural law
b)In the Basic Law there is a sense of people:
(1)Basic Law’s Image of Man
(a)Entrepreneurial freedom can exist only if it does not violate the rights of others, the law, nor morality
(b)Coordination and interdependence with the community without touching the intrinsic value of the person
(c)Limits on freedom in order to maintain society. Different degrees of constitutional protection for different types of property