MannsPropertySpring 2011

THEMES TO CONSIDER

  • Social Context
  • Formal vs. informal sources of rights
  • Alienability dilemma
  • Contractual freedom and minimum standards
  • Social welfare
  • Justified expectations
  • Distributive justice
  • Utilitarianism/Cost-Benefit analysis

PROPERTY RIGHTS

Bundle of Rights – limited and relative

  1. Question to ask:What set of rights and duties does the owner have with respect to which people and vice versa?
  2. Three ways to think about protecting property rights
  3. Property Rule- protect owners entitlement- owner must give consent before entitlement can be taken away (Jaque v. Steemer)
  4. Liability Rule- entitlement can be taken away without the entitlement-holder’s consent, only upon payment of the court-appointed damages
  5. Inalienability Rule- can’t sell entitlement (at least not at the time)
  6. Privilege to use
  7. Limits- Can’t harm others in the use of your property (externalities)
  8. Potential nuisance effect
  9. Right to exclude & right to control use of property (MOST IMPORTANT RIGHT) “Your home is your castle”
  10. Theft, trespass- legal protections
  11. Can order injunctions, order to remove, damages
  12. Limits- necessity, emergency
  13. Public policy- government can potentially trump private property rights if the activity has a public purpose and just compensation is given (takings law)
  14. Things to recognize
  15. Competing policies and social context
  16. Fact that property rights are limited and relative as rights and duties are always exercised in a rational way
  17. Significance of right to exclude
  18. Security- property used effectively because owner doesn’t fear interference or ouster (no short-term focus of stripping the land of all its value as quickly as you can)
  19. Prevents allowing anyone to use/exploit property
  20. Invest time and labor and funds into property
  21. If don’t have security in exercising property rights, won’t invest in it (detriment to society)
  22. Efficiency- guard against overuse of land
  23. Other facets of property rights turn on exclusion power
  24. Extent to which you use your property determines your right to exclude others
  25. Everything in your property is your own dominion, so have absolute right to exclude private parties
  26. Jacque v. Steenberg
  27. The more you open up your property by letting more people on, the more you open up to letting people exercise their own rights on the property
  28. State v. Shack
  29. Common carriers, innkeepers open up property to the public for more expansive use
  30. Uston v. Resorts International
  31. Power to transfer ownership
  32. Complete or partial sales
  33. Easement- right of access
  34. Transfer whole property for period of time
  35. Lease
  36. Enforceability
  37. Recording system for real property- legal recording system in each jurisdiction
  38. State recognizes new owner or designate
  39. Limits- can’t impermissibly discriminate on who you rent/sell to
  40. Immunity/freedomfromtakingordamage without consent
  41. Protection from encroachment by others, from state conducting actual seizures, from regulatory takings (effective occupation of property through regulation)
  42. Limits- statute of limitations, need for blameworthy activity (negligence or intent to damage); police can seize contraband without compensation, forfeiture of property used to commit a crime

1-PRIVILEGE TO USE AND ENJOY

(most basic right)

  1. Factors:
  2. Intent to Control – mental state
  3. Notice of Control – physical acts of demonstrating control
  4. Effective Exploitation Through Control – whether/to what degree social value is produced
  5. Default = Rule of Capture First in time, first in right
  6. Possession leading to ownership
  7. Policy
  8. Simple, universal rule (clearly determine who owns what)
  9. Easily administrated objective rules
  10. Lockean labor dimension
  11. Incentivize and protect investment in resources
  12. Potential problems:
  13. Wasteful competition
  14. There isn’t always a clear winner
  15. Is there constructive possession?
  16. First in time, First in right
  17. Wild Animals:
  18. Have to mortally wound, even if not the one in pursuit
  19. Factors:
  20. Social Customs
  21. Productivity Incentives
  22. Right to Exclude:
  23. If you’re trespassing, the rule of capture doesn’t apply
  24. Pierson v. Post:Post is closing in on a fox, Pierson intervenes and kills it
  25. Have to mortally wound the fox to possess it
  26. Spectrum of possible PROXIMITY rules to establish possession
  27. Spotting
  28. Pursuing (putting others on notice that you want it)
  29. Closing in (DISSENT)

(A)Pursuit within reasonable prospect of capture

(B)He invested energy and time, and was closing in on the wild animal

(C)Other party has moral duty not to interfere with the pursuit he sees in progress

  1. Wounding (MAJORITY)

(A)Mortal wounding by not abandoning pursuit

(B)No right to claim exclusive possession until successfully reduce it to his possession through mortal wounding

(C)About results, not effort

(D)Property should go to those who succeed in actually producing something of value (not just who works the hardest to get it)

  1. Trapping
  2. Killing
  1. Dissent: Lockean theory- Post invested time and energy
  1. Policy Considerations:
  2. Eliminate dispute about ownership- mortally wounding is bright-line rule
  3. Decreases litigation
  4. What about awarding fox to owner of land?
  1. Personal Property:
  2. Was there malicious interference?
  3. Property must be intentionally abandoned
  4. Possession requires physical control and intent to control or exclude others
  5. Popov v. Hobayashi:P caught Bonds’ 73rd homerun ball- not clear that ball was secure, lost his balance, attacked by crowd, H got the ball. P sued H for conversion
  6. Ball is like a wild animal- when it was hit, it became intentionally abandoned property
  7. Court decides on basis of pre-possessory interest- sell the ball
  8. Policy Considerations:
  9. Preserve social peace
  10. Promote investment in industries
  11. Reward and encourage due diligence
  12. Problems with Rule of Capture:
  13. Supply-side:
  14. No incentive to cultivate open-access resources
  15. Demand-side:
  16. Likely to generate waste
  17. Tragedy of the Commons
  1. Open Access:
  2. Tragedy of the Commons:
  3. Resource held in common is vulnerable to overexploitation
  4. No exclusions or governance
  5. Community Property:
  6. Restricted to access by members of a particular community
  7. Governed by strong sense of social norms
  8. Is there a pre-possessory interest?:
  9. If you’ve made a significant but incomplete effort, you’re considered to have the interests
  10. Water Rights: Surface or Groundwater? Eastern or Western State?
  11. Challenges presented by water rights
  12. Fugitive – often not in one place
  13. Replenishable
  14. Volume always changing
  15. Issue of ongoing right to use
  16. Different contexts – Regulations vary by region (where water is in a given place)
  17. Surface waters
  18. Aquifiers/Groundwater
  19. Surface Waters:
  20. Eastern States- Riparianism:
  21. Land is adjacent to water- riparian rights are tied to (appurtenant) the land and can’t be alienated separately
  22. Factors to Balance:
  23. Social value of use
  24. Cost-benefit analysis for affected parties
  25. Extent of potential harm
  26. Natural use takes priority over artificial use
  27. i.e. drinking, household use, livestock take precedence over irrigation, power, dams
  28. Rights are shared- tied to the land
  29. Western States- Prior Appropriation:
  30. First in time, first in right
  31. First to use the water has first right to that increment of water for that activity
  32. “Waterfall” of property rights
  33. Appropriator can divert water out of original basin
  34. Water use must be beneficial to owner
  35. Rights terminate if beneficial use stops
  36. Unlike Riparian rights
  37. The nature of the benefit need not be the same over time
  38. Transferability is allowed but limited
  39. Extensive regulation and oversight by water boards
  40. Minority Rule- Mixed Riparianism and Prior Appropriation:
  41. First in time/first in right, combined with riparian reasonableness concerning water use
  42. Balancing test of broader beneficial use and potential harm if there are competing claims
  43. Riparianism is middle ground between Prior Appropriation and Rule of Capture - vested right in the water, but limited right of capture
  44. Requires sharing
  45. Balance relative utility of competing uses
  46. Reasonable use without waste
  47. Aquifers/Groundwater:
  48. Aquifer:
  49. Natural well of water, can rapidly be consumed
  50. Less replenishable than rivers and streams
  51. Use of one aquifer on one property may come at the expense of other neighbors as water levels go down
  52. Three forms of regulation
  53. Minority Rule- Free Use/Absolute Ownership:
  54. Each surface owner can withdraw as much water as he wants
  55. Prohibition of waste
  56. Eastern States- Reasonable Use:
  57. Owners of surface land can engage in reasonable use if they use the water on their surface tracts
  58. Correlative Rights:

(A)Shared use as each owner can use water in equitable way

  1. Liable if your withdrawal unreasonably harms neighbors or exceeds reasonable share
  1. Western States- Prior Appropriation:
  2. First in time, first in right
  3. First to use the water has the first right
  1. Finders: Is there a string of finders or takers?
  2. Absent evidence of superior title, law presumes in favor of possession
  3. Willcox v. Stroup:W found Confederate military papers in attic, SC state archive got restraining order against him selling them
  4. Absent superior title, law presumes in favor of possession
  5. Possession is evidence of ownership in cases where no party can establish title by preponderance of evidence
  6. Possession is 9/10 of the law
  7. Policy Considerations:
  8. Promotes stability
  9. Incentivizes possessors to invest in use of their property
  10. If possession meant uncertainty, would under-invest, not maintain the property
  11. Finder wins over subsequent possessor, even w/out official title
  12. Policy Considerations:
  13. Entrusting goods to another is efficient practice
  14. Prior possessors expect to prevail- law is just
  15. Protection of peaceable possession- deter disruptions that would be invitations for stealing property from finders
  16. Protecting a finder who reports the find rewards honesty
  17. Protecting a finder rewards returning useful item to society
  18. Finder v. Owner of Premises:
  19. Owner claims actual or constructive possession
  20. Propertyowners have stronger claims over things found on premises than the finder
  21. Someone who’s allowed on the property is effectively a licensee – can’t just take things that are found there
  22. When finder is trespasser:
  23. Landownerwins
  24. Discourage trespass and unauthorized entries
  25. When finder is employee:
  26. Employer wins
  27. When finder is on premises for limited purposes:
  28. Landownerwins
  29. When object is found under the soil:
  30. Landowner wins
  31. Owners of land expect that the objects under the soil belong to them
  32. Exception- Treasure trove:
  33. Finder wins unless trespassing
  34. When object is found in private home:
  35. Owner wins
  36. Homeowners intend to exclude everyone and admit only for specific limited purposes that don’t include finding property
  37. Owners has strong expectations that everything in their home is theirs
  38. When owner is not in possession of the property:
  39. If invitee finds it- he keeps it
  40. Native American artifacts:
  41. When found on tribal or federal lands, belong to tribe with strongest connection
  42. Is the property Lost or Mislaid?:
  43. Lost:
  44. Accidentally and casually lost
  45. Finder owns
  46. Mislaid:
  47. Intentionally place and then forgotten
  48. Owner retains title
  49. More likely to come back and look for mislaid property
  50. Finder’s Statutes:
  51. Require finder to report find to the police, then aware finder with the property after the statutory period is satisfied
  52. Abandoned:
  53. Anyone can claim abandoned property
  54. Hard to know what’s abandoned- unless there is unequivocal indication (like a note)
  55. Relativity of Title (See p. ____)PRIOR POSSESSOR WINS
  56. Prior peaceable possessor ousted by subsequent possessor has the right to recover possession even if the prior possessor cannot demonstrate that she has title
  57. Proof of title isn’t necessary to dispossess second possessor
  58. All that matters is whether the prior possessor has stronger claim to the property than the other party
  59. Rule applies to object acquired through theft, trespass, or ouster
  60. Policy:
  61. Concern about violent self-help if give second possessor a stronger claim
  62. Administration costs – prior possessors would face costly litigation to prove that they’re not theives
  63. Genetic/Personal Information:
  64. Property Rights in Cells/Genetic Information: Can property right be owned by others but not independently alienable?
  65. Inalienable to individual, alienable to patent-holder researchers
  66. Moore v. Regents of UCLA: M was treated at UCLA, cells were taken from his spleen and used to develop patented cell line. M sued for conversion, breach of fiduciary duty, and breach of informed consent
  67. UCLA breached fiduciary duty and informed consent
  68. M doesn’t have property interest in his cells- No conversion
  69. People don’t general consciously retain property rights in removed body parts
  70. No expectation to retain right to excised cells
  71. The cell line at issue is factually and legally distinct from M’s excised cells
  72. Policy Considerations:
  73. Lockean – cells gain value when they’re transformed by doctors
  74. Balance interests

(A) 3rd party information costs

(B)Scientists might not always be able to know who exactly cells came from

  1. NumerusClausus issue- leave property law (definitions of what is property) up to the legislature, not the courts
  2. Disclosure obligations protect patients, don’t need tort liability for conversion

(A)As long as the doctor discloses research and economic interest that may affect his judgment

  1. Where do body parts lie on the spectrum of what’s actual property and what’s alienable?

(A)Personhood concerns about commodifying body parts

(B)Concern of exploitation of the poor and body harvesting

(C)Loss of control absent effective property rights protection

  1. Dissent
  2. Property is complicated – there’s no catch-all principles for different sorts of cases
  3. Law doesn’t expressly prohibit sale of body parts or fluids for research (and M is being prevented from being able to sell his cells if he wanted to)
  1. Right of Publicity:
  2. Assignable during life and is inheritable and devisable
  3. Protects private citizens from reproductions of their likeness without consent
  4. MLK Center for Social Change v. American Heritage Products:AHP sold plastic busts of MLK, MLK’s wife sued for injunction for violation of right of publicity
  5. Right of publicity is logical extension of right of privacy to protect public figures
  6. Protect private citizens from reproductions of their likeness without consent
  7. Right of publicity is assignable during one’s life and is inheritable and devisable
  8. Policy Considerations:
  9. Encourages effort and creativity- productive use of one’s life
  10. Inheritable to protect against loss of value if one dies early in life
  11. Right to protect reputation from effects of commercialexploitation
  12. Labor and Investments: Did someone create something that got stolen?
  13. Lockean labor theory as basis for awarding property rights
  14. You only reap what you sow
  15. Intl News Service v. Associated Press:INS took competitor AP’s news stories about WWI, AP sought an injunction
  16. Property analysis focuses on P’s rights- created news through their efforts
  17. Right to exclude others from hot news
  18. Copying hot news is unique- product is valuable for only a short period of time
  19. Case for Legislative Expertise:
  20. Broad power of investigation
  21. Legislature can provide clearer definitions of permitted and unpermitted actions (aren’t limited to creating a rule from the case at hand)
  22. Time limits on rights and remedies and proscribe penalties and remedies

2-RIGHT TO EXCLUDE AND CONTROL (most important right)

  1. Recognize competing policies and social context and fact that property rights are limited and relative
  2. Default rule for right to exclude: generally there is a right to exclude those you don’t want on your property if you don’t open it up to outsiders
  3. Doesn’t matter why owner says people can’t come onto his property
  4. The more property is opened to the public, the greater the legal obligations may be imposed on owner to allow access (the more the owner’s privacy and right to exclude diminishes)
  5. Land closed off to others
  6. Land open to certain people
  7. Land open to the general public
  8. Do you have the right to exclude?
  9. Absolute right? (strict liability for trespassers)
  10. Right to control what you own
  11. Autonomy, privacy, dignity
  12. Efficiency grounds – maximize social welfare by delineating property right
  13. Laws guard against violent self-help (recourse to judicial injunctions)
  14. Jacque v. Steenberg 1997 (p. 28)- Alternative, lawful route for D to take was dangerous and expensive, so crossed P’s property without damaging it.
  15. Principles to consider regarding right to exclude
  16. Personal autonomy- court imposes strict liability for privacy incursion (sense of security should be free from violation)
  17. Societal interest in protecting real property and deterring intentional trespass
  18. Deter self-help- trespass protection designed to prevent owners from doing extreme things like building tall wall or fence
  19. Freedom to contract- intentional disregard for property rights would make people allow contracting process
  20. Deterrent value- damages need to be substantial enough to deter people from trespassing (if the fine is more than what trespasser will benefit, will be deterred)
  21. Did you open up the property to other residents?
  22. Right to exclude may not be absolute
  23. Can exclude visitors of other residents of the property
  24. Balance competing interests of owner and resident
  25. Owner’s right to use and security vs. resident’s right of privacy and free association
  26. State v. Shack 1971 – Ambiguous state of migrant workers. People trying to help migrant workers entered Tedesco’s farm without permission to speak with migrant workers (not tenants). They were told to leave because they wouldn’t meet with the workers in Tedesco’s presence. Charged with trespass.
  27. Narrow holding- under NJ common law, real property owners don’t have the right to bar access to government services available to migrant workers
  28. Competing interests at stake in determining property rights- opening property to the public erodes right to exclude.
  29. Migrants’ interests vs. property owner’s interests
  30. Considerations
  31. Accommodate right of owner and right of people on the property
  32. Migrants shouldn’t be insulated from government-funded or other charitable efforts to help them
  33. Migrants should be entitled to rights of privacy and non-interference with right to live with dignity
  34. Farmer’s rights:
  35. To farm without interference
  36. Interest in his own and employees’ security
  37. Right to exclude (balanced against rights and interests of the workers)
  38. Migrant workers’ interests:
  39. Not being isolated
  40. Being allowed to receive visitors
  41. Live with dignity and enjoy associations customary among citizens
  42. Privacy
  43. Did you open up a business to the public?
  44. Majority Rule:
  45. Businesses open to the public- unrestricted right to exclude except for common carrier and innkeepers
  46. Minority Rule:
  47. All business owners who open premise to public have no right to exclude people unreasonably
  48. Uston v. Resorts International Hotel 1982 (p. 16) Card counter excluded from casino. Court holds that all property owners (not just common carriers) who open premises to the general public have no right to unreasonably exclude people. No laws against card counting. (*minority rule- most hold that as long as not unlawfully discriminating, can refuse people from business premises)
  49. Majority rule- businesses open to the public have unrestricted right to exclude
  50. Exception

(A)Common carriers/innkeepers- for whom public has a right of reasonable access