Documents

Mitchell Property Spring 2014

Description
property outline
Categories
Published
of 116
All materials on our website are shared by users. If you have any questions about copyright issues, please report us to resolve them. We are always happy to assist you.
Related Documents
Share
Transcript
  Thomas Mitchell_Property_Spring_2014 FINAL PROPERTY OUTLINE CONCEPT OF PROPERTY  A. 5 Theories of Property 1. First possession    Principle: 1 st  come, 1 st  serve     Advantages of 1 st  Poss. Over Labor o   Clear title facilitates trade   benefits society o   Minimizes resource wasting conflict as to who has better claim    Difficulties/Challenges o   must understand clear acts of possession; o   Not necessarily utilitarian    Exceptions    failure to maintain communication of property rights over time may result in losing them — doctrine of adverse possession   Pierson v Post   (SC of NY - 1805) [You think you got the fox, fuck you  –   it’s dead and mine]   Holding : Court decided that pursuit of an animal is not enough to constitute occupancy (physical taking) or deprivation of liberty so much so that it is an actionable claim; Post wins 2. Locke’s Labor Model       Principle (Economic) o   Encourage labor to improve land to establish title/ownership o   Possessor has claim to his labor(meritorious ownership)   o   Property rights came first, government followed      Critiques/Questions o   How much labor must be expended to claim possession?    Subjective/objective test o   Initial Entitlement   2    should srcinal title holders should retain possession when successors do all the work? o   Distribution    Who owns when combined labor? Johnso n v M’Intosh [Pre -legalization a land acquisition company bought land from Indian tribes, then feds did and subsequently sold it to other buyer, srcinal co. sued]  Issue : Does the US federal court recognize the sale and transfer of the land? Analysis : The Court appears to have taken the ownership by occupation right and separated it from the other rights, namely the right to transfer, from the Native Americans. By doing so the court logic seems as follows: Without a state to conquer there can exist no legal positivism that creates  property rights, therefore the only entity that could have acquired the title to the land would have been the state.   Doctrine of Discovery : by allowing first discovery to determine claims of ownership, the various European powers avoid unnecessary wars (sorta works) John Locke Treatise  A. Wasteland will result if the property is not allowed to be individually cultivated; limitations: i.   ―…Whatever is beyond this is more than his share, and belongs to others.‖  ii.   If the whole of the land would be worse if partially enclosed, not entitled to it B. Money allows acquisition of land in excess of what one could cultivate  –  this can preempt waste by allowing transactions of perishable goods (apples, etc.) i.   Inequalities are consented to by man 3. Utilitarianism  A. Property should be allocated in such a way that produces the greatest amount of benefit to society B. Law and economics perspective — property seen as efficient method of allocating valuable resources in order to maximize economic wealth 4. Jeffersonian Model  A. Principle: Ensure democracy   3 B. Views: Only men who own their own property can exercise the independent political judgment that is vital for a true democracy 5. Personhood Principle: What property is important to self-development   o   Facilitate development and personal attachment to things (ex. Wedding ring, house)   o   To achieve proper self-development, an individual needs some control over the resources in the external environment   o   Replaceable goods are not protectable by personhood   Question/critiques o   recognition that not all property is important to self-development; therefore necessary to discern   which property is important to one’s development   White v Samsung Electronics  (9 th  1993) [Samsung ran magazine ads featuring a robot that reminded viewers of Vanna White without her permission]  Facts : Ct award for Vanna White, b/c Samsung was found to have appropriated her identity which was protected by CA law Analysis/Holding : Court rejects statutory definition of right of publicity (Eastwood case), invokes the common law definition, which is more inclusive than the CA statute (harmonizes).―… The common law right of publicity   reaches means of appropriation other than name or likeness…does not require that appropriations of identity be accomplished through particular means to be actionable.‖ Invoked to protect commercial value of celebrities Dissent : argues that Vanna White’s ―identity‖ is ambiguous, o   Ct say that her right to it (not allowing persons to create images that remind the viewer of her), is at the expense of a richer public domain ( Utilitarian Theory )  –      supports notion that intellectual progress and development is by accretion, not great leaps Conflicts of Theories Personhood v. Utilitarian v. Labor Moore v Regents of California   [patient with rare leukemia is taken to hospital, certain tissue samples are removed and processed into a lucrative line, w/o patient’s knowledge or consent] –  Article on profit sharing of   4 cell cultures Issue 1 : Was there a breach of fiduciary duty and lack of consent  –  Yes Issue 2 : Was there conversion (where his cells possessed illegally)? No  –   ―Where plaintiff neither has title to the property alleged to have been converted (his cells), nor possession thereof (doctors had them), he cannot maintain an action for conversion.‖  No  –  Moore argues, if likeness/persona is tort, why not genetic material  –   but court states Moore isn’t actually that unique, and legislature limits say in cells after excision, and court finds cell line to be an invention, independent of Moore’s ―raw material‖  Should tort of conversion be expanded thusly? No  –   not necessary to protect patient’s rights (consent, etc do a good job); to do so might discourage socially useful researchers from their work for fear of liability Concurring : Do not mix the sacred (body) and the profane (commercial interest)! Dissent : Decision is not equitable; Moore could have shopped around and gotten more money for samples Property Rights Bundle of Sticks/Rights  A. Bundle of Sticks (ownership is ―bundle of sticks‖)      Ownership is not absolute    –  Exceptions o   cannot violate law o   especially when use of property affects others o   Nuisance o   Intentional harm to other’s property      Sources of limitation: Constitution, statute, common law    Rights can become unbundled voluntarily (leases) or involuntary (em domain) B. 4 Most Important Rights 1.   Exclude  A. Jacque v Steenberg Homs, Inc [Delivery of mobile home went across man’s land who had repeatedly denied consent to cross his land]  Issue/Holding:  can punitive damages be awarded where compensatory damages are nominal?  –   HOLD:  Yes, Court allows it, when punitive damages would set an example. Other rationale; right to exclude is meaningless if not endorsed by the State!
We Need Your Support
Thank you for visiting our website and your interest in our free products and services. We are nonprofit website to share and download documents. To the running of this website, we need your help to support us.

Thanks to everyone for your continued support.

No, Thanks