Property Outline PDF

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Property Outline (Bilder) Spring 2019

Part I. The Relationship of Persons, Property, and the State Class 2: How do we think about Property? Overview: 1. Judges struggle with Property in the Body: Moore (75 (start with “c”)-87 n.1) 2. Describing the Facts; Describing the Law 3. Describing Property and “Ownership”: Bundle of Rights (37-39, 87-88 n.2) 4. Worldview, Assumptions, Policies: labor theory (20-21 n.4), commodification (88 n.4), gender, race, and socio-economic power (88-89), privacy (89) … 5. Practical Implications: Advanced health care directives (CS) 6. Intellectual Property: patent, copyright, trademark (89-90, 95-96, 113-114)

Property in One’s Person: Body Parts (75) “Every man has property in his own person.” – Locke 1. Judges struggle with property in the body

Moore v. Regents of the University of California (76) Facts: Moore possessed unique sells and following a spleen removal, defendants kept the organ and tissue from following visits for medical research w/o consent/knowledge and profited from the research. Moore sued for conversion alleging the tissue was his tangible personal property. Holding: Complaint states a cause of action for breach of the physician’s disclosure obligations but not for conversion Reasoning: Failing to disclose extent of research and economic interests equals breach of fiduciary duty and lack of informed consent. Moore did not retain an ownership interest in the cells. It is inappropriate to impose liability for conversion here as: 1.) a fair balancing of the relevant policy considerations counsels against extending the tort, 2.) problems in this area are better suited for legislative resolution, and 3.) the tort of conversion is not necessary to protect patient’s rights.

3 .Describing property and Ownership as a Bundle of Rights (37-39, 87-88 n.2) “Property is a bundle of rights and other legal relations available between persons… property is a mere conclusion, a label we affix to a cluster of entitlements that result from intelligent policymaking” -Smith

4. Worldview, Assumptions, Polices: Labor theory (20-21) Why should first possession confer property rights in unowned resources? One answer is labor theory of property commonly attributed to Locke. One acquires property right when they mix in their labor. Humans have natural property right in their body and by extension the labor of their body. Commodification (88 n.4)- to what extent can property/labor be commodified? Prostitution, child labor, slavery cannot be commodified. Gender, Race, and socio-economic power: The Case of Henrietta Lacks: A black woman raised in a former slave cabin had cells removed from her tumor w/o permission or knowledge, these cells multiplied rapidly making them valuable and

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created a cell line named “HeLa” line which eventually helped create a polio vaccine. The Lacks family was shut out from the multi-billion-dollar industry around the cells. In 2013, agreement was reached that put two family members on committee that approves research with the cell line being concerned with protecting their privacy interest in the genetic material.

6. Intellectual Property (89-90, 95-96, 113-114) Patent Law: Rooted in utilitarian purposes to “promote the Progress of Science and the useful arts” Art. I §8. Patent law grants a limited monopoly on the assumption it creates an incentive to engage in creative and socially useful enterprise. Grants right to prevent others from using, selling, making, etc. the invention during the patent length. Must meet 5 requirements for a patent: 1. Patentability- invention fits in one of the general categories of patentable subject matter limited to: process, machine, manufacture, or any composition of matter 2. Novelty- has not been preceded in identical form in public prior art. 3. Utility- minimal requirement that is met so long as the invention offers some actual benefit. 4. Non-obviousness- whether the invention is a sufficiently big technical advance over the prior art. 5. Enablement- patent application to describe the invention in sufficient detail so that “one of ordinary skill in the art” would be able to use the invention. Copyright Law: Utilitarian purpose. Serves the goal of Art. I §8 by creating incentives for creativity by granting the reward of a limited monopoly. Right to prevent others from reproducing the work, creating derivative works, distributing copies of the work to the public, performing the work publicly, displaying the work publicly, and performing the work by digital audio transmission. May assign a license or transfer the copyright. Protects expressions, not ideas. 3 requirements: 1. Originality- the work must be an independent creation of the author and must demonstrate at least some minimal degree of creativity. 2. Work of authorship- broad term, federal statute identifies 8 types: literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audio-visual works; sound recordings; and architectural works. 3. Fixation- the work must be fixed in some kind of tangible medium. Trademark Law: Trademark is defined as any “word, name, or symbol, or device” used by any person “to identify his or her goods” from those sold by others, and “to identify the source of the goods.” Right of publicity. Protects the first to use a distinctive mark in commerce. Three policies underlie trademark law: exclusive rights prevent consumer confusion about the origin of the product, encourage owner to invest in and maintain consistent level of quality, and prevent competitors from freeriding. Originally matter of state common law, now supplemented by federal Lanham Act based on Commerce Clause. Act allows trademark owner to register the mark with Patent and Trademark Office, but registration is not required for mark’s validity. 3 requirements: 1. Distinctiveness- must distinguish the good or service of one person from those of another.

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2. Non-functionality- does not protect on the basis of functionality. That is what patent law does. If an aspect of a good is exclusively functional, it cannot be protected by trademark law. 3. First use in trade- exclusive right to use a mark requires first use, not just first adoption, of the mark in a particular geographic market. Under Lanham Act, use must be in commerce. Class 3: Possession: Property and “Things” Overview: 1. Acquisition by “First Possession” (3, introductory section before “A”) 2. Pierson v. Post (13-19) 3. Important concepts a. Constructive Possession (22 n.1) b. Relativity of Title (22 n.2) 4. Exceptions/Distinctions: Domestication (22 nn.3-4) 5. Why else might it matter today? a. Analogies: Popov (27-32) b. Fugitive resources (oil, gas, water) (32-34) c. Tragedy of the common, externalities, economic theory of property (34-36)

1. Acquisition by “First Possession” First come, first served –Henry Brinklow (c. 1545) 2.

Pierson v. Post (14) Facts: Two fox hunters. Post was pursuing fox with hounds and Pierson came in and stole the kill. Trial court found for Post. Did Post have a property right to the fox to sustain an action against Pierson? Is pursuit of a wild animal sufficient to grant possession? Holding: Reversed Reasoning: Allowing Post to assert a claim to the fox w/o having wounded, circumvented, or ensnared the fox thus subjecting them to the control of the pursuer would prove a fertile source for future litigation. While Pierson may have acted w/o courtesy, his act was productive of no injury or damage for which a legal remedy can be applied. Ferae naturae- things in the wild are unclaimed and belong to no one. Must bring animal within control. Dissent (Livingston): Property over animals may be acquired w/o bodily touch provided the pursuer be within reach or have reasonable prospect of taking what he has discovered with an intention of converting to his own use.

3. Important Concepts Constructive Possession- a landowner is considered as being in possession of a resource that is on or in their land even if they do not have physical possession of it. Relativity of Title- who has better title. Original owner. Rule of Capture- complete control

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4. Exceptions/Distinctions (22 n. 3,4) 5. Why else it might matter today? Analogies Popov v. Hayashi (27) Facts: Barry Bonds homerun record ball. Stopped by glove of Plaintiff who lost it in rush of people and defendant recovered it. Unsure if Plaintiff secured the ball. Plaintiff brings action for conversion, trespass to chattel, injunction relief, and constructive trust. Holding: Equitable division Reasoning: Actor must retain control of the ball after incidental contact with people and things. Plaintiff has not established he would have retained control and consequently did not achieve full possession. Out of fairness, Plaintiff was attacked and should have had the opportunity to try and complete his catch. Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property. That pre-possessory interest constitutes a qualified right to possession which can support a cause of action for conversion. Defendant has done everything necessary to claim possession, but the ball is laden with prepossessory interest. Unfair to deny either, so it is split. Pre-possessory Interest: When an actor undertakes significant but incomplete steps to achieve possession of abandoned personal prop and the effort is interrupted by unlawful acts of others, the actors has a pre-possessory interest in the property; this interest doesn’t establish a full right of possession that is protected from a subsequent legitimate claim

Fugitive Resources Courts have extended the analogy of wild animals to “fugitive” (wander from place to place) resources using the rule of capture as the means of acquiring property rights. Oil and gas- oil and gas in natural underground reservoirs are not considered owned by anyone until reduced to physical possession. Any surface owner is free to pump so long as the drilling remains within the imaginary column of space projected down from the boundaries of his land. Slant drilling is a trespass. Water- two categories: surface and groundwater.  Surface water: two systems governing water in a defined channel or body 1. Riparianism- Assigns water rights on the basis of ownership of riparian land (land that abuts the watercourse). Under this system water rights are derivative of rights to the land. Each owner of riparian land has a right to use the water, subject to the rights of other riparians. 2. Prior appropriation- Person who first appropriates water and puts it to reasonable and beneficial use has a right superior to later appropriators.

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Tragedy of the Commons and Economic Theory of Property Limited-access commons- limits access to members of a small group with equal privileges to resources. Right to exclude outsiders. Open-access commons- no single individual nor group has right to exclude and the land is open for anyone to use. Rational actors pursuing their best interest will over graze thus diminishing the commons as a whole. Solution according to Hardin is government intervention through either a system of regulation or private property rights. Externalities – exist whenever some person makes a decision about how to use resources without taking full account of the effects of the decision. Effects are external to the actor. As a consequence, resources tend to be misused or misallocated, used in one way when another would make society better off. Can be negative or positive. Economic theory of property- the purpose of property rights is to enhance social welfare by maximizing the value of scarce resources. Property rights perform valuemaximizing by internalizing externalities. Bringing the cost of the resources use to bear on the user. Class 4: Trespass, Exclusion, and Limits: Property as Power Overview: 1. Endorsement by the State (CS) 2. Trespass (44 n.1) 3. “Courts of the conqueror”? Johnson v. M'Intosh (3-13) 4. The power of remedies: Jacque (39-42) 5. The power of legal rules: State v. Shack (42-45)

1.Endorsement by the state No definition can be more precise than the subject permits. Aristotle remarks that it is a mark of immaturity to expect the same degree of precision in human affairs as in mathematics. Any definition of property, to be useful, must reflect the fact that property merges by imperceptible degrees into government, contract, force and value.

2.Trespass Cause of action that involves the right to exclude Civil Trespass- consists of an unprivileged intentional encroachment upon property owned by another. “Intentional” means engaged in a voluntary act. Trespass is unprivileged when the encroachment is: 1.) without owner’s consent; 2.) lacks necessity as a justification; 3.) is not otherwise justified by public policy. Criminal Trespass- when the defendant enters another’s land knowing they lack a privilege to do so, or if the defendant refuses to leave after being told to do so. 3. Courts of the conqueror Johnson v. M’Intosh (3) Facts: Plaintiff has a grant for land awarded by an Indian tribe while defendant has a grant awarded by the US government for the same land. First judgment for the defendant. Holding: Affirmed

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Reasoning: Plaintiff does not exhibit title that can be sustained in the Courts of the US. An absolute title to lands cannot exist at the same time in different persons or in different governments. An absolute title must be an exclusive title or at least a title which excludes all others not compatible with it. The US having superior authority can negate agreements by tribes for land. Under conquest and discovery theory, the government can claim the land and the tribes merely occupy. Natives have a right to occupancy and nothing else. American title comes from the government. Chain of Title- resolves conflicting claims to the same parcel. Each link represents a different owner. Each chain is traced back, link by link, until we reach the “root title”. If both claims trace back to the same root title, i.e. common grantor, the party whose predecessor was the prior grantee from the common grantor prevails. Later grantee takes nothing because grantor cannot convey what they don’t have. Nemo dat quod non habet (you cannot give that which you do not have) 4. The power of remedies Jacque v. Steenberg Homes, Inc. (39) Facts: Plaintiffs owned land that defendants wanted to cross to deliver a trailer to a neighboring property. The Plaintiffs denied them access but defendants decided to cross anyways and cut a path through the land. Jury awarded $1 in nominal damages and $100k in punitive damages but the circuit court set aside the punitive damages and court of appeals affirmed. Issue is whether an award for nominal damages for intentional trespass supports punitive damages and if the $100k is excessive. Holding: Reversed Reasoning: Individuals and society have significant interest in deterring intentional trespass regardless of lack of harm. Owners right to exclude is essential to property rights and the $1 nominal and $30 fine is not enough to deter future violations. The rights have no practical meaning if not protected by the state and $31 does not equal protection. Supreme Court has ruled previously that the right to exclude others from his or her land is one of the most essential sticks in the bundle of rights that are commonly characterized as property. Society has an interest in punishing and deterring intentional trespassers beyond that of protecting the interests of the individual landowner. Society has an interest in preserving the integrity of the legal system. Private landowners should feel confident that wrongdoers who trespass upon their land will be appropriately punished. Ruling is a deterrence to others. 5. The power of legal rules State v. Shack (42) Facts: Government aid workers entered private farmland to consult migrant workers there. The owner of the farm met with them and asked for the meeting to take place under his supervision. The government workers refused and the owner executed a formal complaint charging violation of trespass statute. Holding: Reversed Reasoning: Under state law the ownership of real property does not include the right to bar access to government services available to them, hence no trespass.

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Title to property cannot include dominion over the destiny of persons owner permits to come upon the premises. Necessity, private or public, may justify entry. State law the ownership of real property does not include the right to bar access to governmental services available to migrant workers and hence there was no trespass within the meaning of the penal statute. Property rights serve human values. Migrant farmworkers are a community within but apart from the local scene. They are rootless and isolated… they are unorganized and without political or economic power. A man's right in his real property of course is not absolute. It was a maxim of common law that one should so use his property as not to injure the rights of others. Class 5: Relativity of Title (The Doctrine of Finders) Overview: 1. Old Common Law Rule & Modern Rationales--Armory (121-124) 2. Bailments (123-124 n.5) 3. Factual Distinctions disfavoring finders (& weak reasoning): Hannah (124-129) 4. Analyzing by Categories: Lost/Place owner vs lost/mislaid; Abandoned (130 n. 3) 5. Alternative Remedies (130-131) 1. Old Common Law Rules & modern relations Armory v. Delamirie (122) Facts: Chimney sweep finds a jewel and brings it to the defendant who is a goldsmith. Defendant removed the stones for weighing and offered money. Boy refused payment and wanted jewel back but was given it w/o the stones. Holding: For Plaintiff Reasoning: Though plaintiff does not have absolute property or ownership, he has such property as will enable him to keep the item from all but the rightful owner. Finder is treated as true owner until proven otherwise.

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finder’s law: finder has title as against the whole world except the true owner and prior possessors -a type of involuntary bailment Trover: old common law action for money damages resulting from defendant’s conversion to his own use of a chattel owned or possessed by the plaintiff. bailment: when possession is split from ownership so you can legally possess something that is owned by someone else. Bailor owns the object and Bailee is given the object. Bailee has possession but no title. Bailments are voluntary or involuntary. Voluntary example includes giving keys to a valet. Involuntary example is a finder of a lost or mislaid chattel. relativity of title: notion of who, between a series of people, has better title -might not be the best or true owner, but the fact of prior possession puts you in a better standpoint than the latest finder -don’t usually need to know who has absolute best title in the world, just who has better title between two people

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3. Factual distinctions disfavoring finders & weak reasoning Hannah v. Peel (124) Facts: Brooch found in house never occupied by the owner by quartered soldier. Case for who gets the brooch. Holding: For Plaintiff Reasoning: A man does not necessarily possess a thing which is lying unattached on the surface of his land even though it is not possessed by someone else. Defendant was never physically in possession of the premises where the brooch was found. The brooch was never his in the ordinary acceptation of the term in that he never had prior possession. Owner wins when: something was buried in the land or a fixture on the land, an agent or employee of the owner finds something on the land, and if the landowner actually occupies the land. 4. Analyzing by categories Lost- when the owner inadvertently loses possession Mislaid- when the owner intentionally placed it in some location and then forgot to retrieve it. Lost property usually goes to finder because the true owner who does ...