美国财产法property-the concept of property

Chapter 1: the concept of property

A.Why recognize property?

a.Property exists only to the extent that it is recognized by the government, an

approach called legal positivism.( property is a human invention)Natural law has little impact on property law.

b.Five theories of property( that seek to justify the recognition of property rights)

1.Protect first possession :how unowned things came to be owned, in a setting

where resources were plentiful but people were few, has less relevance today, but can be seen in everyday life

2.Encourage labor: Locke. When a person mixed his own labor with natural

resources (which were unowned), he acquired property rights in the mixture.

Also less relevance today.

3.Maximize societal happiness (utilitarian theory): ensure that owners use

resources in an efficient manner that best promotes the welfare of all citizens.

The law and economics variant of utilitarianism has been a particularly powerful influence in recent years.

4.Ensure democracy: recognize the ownership of someone, because it provides

him with the economic security necessary to make political decisions that serve the common good.

5.Facilitate personal development (personhood theory): each person has a close

emotional connection to certain tangible things which virtually become part of one’s self.

c.Pierson v. Post

1.Issue: what acts amount to occupancy, applied to acquiring right to wild

animal?

2.Rule: Pursuit alone vests no property or right in the huntsman. Property rights

in a wild animal are acquired only through capturing or killing the animal.

(deprive them of their natural liberty, and render escape impossible)

3.Policy: reduce litigation and quarrels by providing certainty.

d.White v. Samsung Electronics America, Inc.(creation as a source of property)

1.Issue: whether the district court erred in granting summary judgment to

defendants on White’s common law right of publicity claim?

2.Rule: The common law right of publicity is not limited to the appropriation of

“name and likeness”. It is also about the appropriation of identity.

3.Dissent: Overprotection to intellectual property would injury future creators

and the public at large. The majority was creating a new and broader property right unknown in California law.

B.What is property?

a. A bundle of rights( not things)

b.The most important rights: the right to transfer, exclude, use, destroy.

c.Four key implications: Property rights are defined by government, are not

absolute, can be divided, and evolve as law changes.

d.Right to transfer(alienability)

1.Function: Right to transfer is vital for efficiency in our market economy,

because it helps to ensure that property is devoted to its most valuable use.

2.Problem: Under what specific circumstances should alienation be restricted?

3.Johnson v. M’ Intosh:

Issue: whether Indian has the right to transfer the land they possess?

Rule: Under the law of the United States, the Native Americans did not have the right to transfer title to their ancestral land, just had the right of possession.

(legal positivism)

Policy: (1) If Johnson won, those who had acquired title from Indian before the case would have higher title than the U.S. government. Create a mess. (2)And also, U.S. government would have no right to sell the land. (3)Indians cannot use the land efficiently.

Addition :(1) In this case, Indian’s right is against the federal government of U.S.

So if against the state government, the result may be different. (2) U.S.

government is the source of all land title. (3)Property right of land can also be acquired by capture. (4)The best explanation for the ruling in this case is not policy, but the laws of the United States.

4.Moore v. Regents of the University of California

Issue: Should conversion liability be extended?

Rule: No.

Policy: (1) We should protect the patients’ right to make medical decisions on his own.

(2) The key policy concern: Protect medical research

(3) Better cause of action, like breach of fiduciary duty or lack of informed

consent