Contents

POLICY, RATIONALES 3

1. Rationales for property 3

1.1 Labor theory - Locke, Second Treatise on Government 3

1.2 Personhood theory - Radin 3

1.3 Distributive justice - Rawls, Wilson 4

1.4 Utilitarianism - Bentham, Posner 4

1.5 Autonomy/ Freedom - Charles Reich 5

1.6 Tragedy of the Commons (Hardin) 5

2. Property and prosperity - Do Utilitarian Property Rights Work? 6

3. Problems with Private Property 7

4. Evolution of property rights 8

5. Evolution of property rights Indians and European Settlers) 11

ACQUISITION 14

1. Introduction 14

2. Wild animals 14

3. America 17

4. Oil and water 18

5. Intellectual property 20

5.1 Introduction 20

5.2 Patent 21

5.3 Copyright 22

5.4 News, music, persona, etc. 24

5.5 Alternatives to Intellectual Property 25

6. Adverse possession 26

7. Finders 28

FORMS OF OWNERSHIP 29

1. Present interests - Fee simple, life estates, defeasible fees 29

2. Future interest 31

3. RAP and Rule against restraints on alienation 32

4. Buying a house 35

5. Concurrent interests 35

LANDLORD TENANT LAW 39

1. LL’s rights and remedy 39

2. T’s rights and remedy 40

CONFLICTING RIGHTS 43

Judicial rules 43

1. Externalities, Transaction Costs, and Remedies 43

2. Trespass, Nuisance, and Remedies 44

Neighbor’s rule 46

3. Social Norms 46

4. Easement 48

5. Real Covenant 50

6. Equitable servitudes 53

7. Home owner association 53

Administrative rule 54

8. Zoning 54

9. Takings 56

POLICY, RATIONALES

Rationales for property

Labor theory - Locke, Second Treatise on Government

1. Every person owns his body. Thus, each person owns the labor that his body performs. So when a person labors to change something in nature for his benefit, he mixes his labor with the thing, and by this mixing process, he thereby acquires rights in the thing.

   1. Examples: cultivation, ideas, discovery

2. Limits on the labor theory

   1. The degree of labor required is uncertain. The theory should permit a person to receive the value that his or her labor adds to a thing, not title to the thing itself.

   2. It is not clear whether or not we really own ourselves. We cannot sell our organs and we do not have full autonomy. We cannot sell certain types of our labor such as sex.

   3. Where there are multiple laborers, the theory does not provide a method to apportion the property.

   4. They may be ownership without use, such as natural conservatory

   5. Sufficiency condition: labor vests ownership where there is enough, and as good as left in common for others. This condition can only be satisfied if labor enlarges the pie. In this sense the labor theory is similar to utilitarianism.

Personhood theory - Radin

1. The purpose of law should be to promote flourishing and dignity of the individual.

2. Personhood spectrum:

   1. fetish (care so much of property relationship that it is unhealthy)

   2. personal (property essential to your flourishing as individual)

   3. fungible (indifferent between that property or cash)

3. 5^th amendment “takings with just compensation” does not privilege personal property. However, some parts of the personhood theory is reflected in law: 3^rd amendment (special protection for private homes against government quartering soldiers) and 13^th amendment (prohibiting involuntary servitude/slavery)

4. Problems:

   1. The personhood theory is too subjective, it is difficult to measure and prove. A ring could be fungible to someone, personal to others, and fetish to yet some other people

   2. Too anthropocentric – interpreting everything in terms of human experiences and values

Distributive justice - Rawls, Wilson

1. Focused on community, not individual

2. Maximin principle: maximize the welfare of the least well-off : distribution of “primary goods” (wealth, income, opportunities for work/leisure, and bases of self-respect) should be of maximal advantage to the least advantaged social class

3. Problems

   1. Total social value (aggregate welfare) is not always maximized; instead, might be better to take utilitarian approach and partly redistribute the greater aggregate gain to compensate the least well-off

   2. Loss of incentive to produce

   3. It’s difficult to define primary goods

   4. Conflicting sense of what is just (veil of ignorance)

      1. Assumes we are averse to risk (want to make bottom as attractive as possible in case you end up there)

      2. However, a just society is one in which inequalities in wealth are acceptable as long as direct correlation to effort and skill (match rewards to contribution)

Utilitarianism - Bentham, Posner

1. Focused on community, not individual

2. Society’s goal should be greatest happiness for the greatest number – maximize aggregate utility (Bentham) – Democratizing Idea

3. Consequentialist Framework: what is morally good = what produces utility

4. Problems:

   1. Whose values count?

      1. Even if the size of the pie increases, the size of each person’s pie does not necessarily increase. Utilitarianism may tend to perpetuate the existing unequal distribution of wealth.

   2. How do we measure utility? Critics charge that utilitarian theory is effectively meaningless because it is impossible to assess happiness.

      1. Interpersonal utility comparisons – willingness to pay (WTP)

         1. Stated Preference (ask people) or Revealed Preference (observe people)

         2. Not true measure of utility (irrational behavior, lack of information about what paying for, WTP conditioned by ability to pay)

         3. WTP < WTA (willingness to accept): people feel great utility reduction to lose something. endowment effect; loss aversion

            1. Personhood explanation: we are more attached to what we already have

   3. Aggregate utility cannot necessarily justify a wrong. Utilitarianism for some people presents profound moral questions.

5. Bentham

   1. Property is social institution that is means to an end (maximizing social welfare).

   2. Property is expectation, relation, claim for enforcement – it is conceptual, metaphysical (not a preexisting natural right)

   3. Property and law “born together and die together”

   4. Reason for property law: Crucial for incentive to invest (utilitarian – dominant rationale for American property...

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