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Considerations Outline

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This is an extract of our Considerations document, which we sell as part of our Real Property Outlines collection written by the top tier of U.C. Berkeley School Of Law (Boalt Hall) students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Real Property Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Policy Distributive justice

Notes
-Providing for needs = social stability
- possibly impossible to achieve - ones who make the rules gain the most power and property by enforcing rules which perpetuate that.
- Concentration of wealth and power as a result of property is bad.

Application
- Pierson v Post - dog owners vs saucy intruders?
- African land reform: Certain types of rules will just keep piling things on to the people who are making the rules. And once they have all that stuff, it's easiest for them to say that they're using the land most efficiently since they're the ones with the factory, etc... (just think, the man with the horses, with the guns, with the hounds is already at an advantage to catch the fox). Note the black family that got the land had access to education and resources, while the black poor village did not get the land they requested.
- Popov v Hayashi - principle of equitable division
- Keron v Cashman - (boys find sock full of money) - principle of equitable division
- BUT economy of scale may be useful: a concentration of wealth can be beneficial to everyone. What if we want to raise buffalo, which is more lucrative than owning sheep. But the buffalo herder needs more land. If land is distributed evenly, the buffalo herder must deal with every land owner, even if the land owner is not using their land at all (because maybe the land is split so much, that each small plot is not even enough for sheep). Sometimes, contrary to demsetz, creating property distribution creates transaction costs.
- Benefits of sharing = division of labor & specialization
- Adverse possession - gives others besides the wealthy/powerful a chance to access ownership by alternative means

- concern for contingent interests (tenancy in entirety) Problems for black farm

owners who often die intestate because they do not trust the legal system. After many generations, the land is split among so many people. A white person will buy the interest from one, then, because it is so small, petition for a partition in sale. Because the land is so split, the first requirement of partition in kind is not met.

Using resources most efficiently

-productivity = good for

-Pierson v Post - ensuring whales get found and used

society
- must avoid the tragedy of the commons
- must avoid the tragedy of the anticommons
- free transferability - allow resources to be moved from lower to higher uses.

- Keeble v. Hickeringhill - Keeble used the land most efficiently, discourage malicious behavior which unfairly obstructs production. In the best interest of productivity. If someone can just come in and scare all your ducks away, then that dissuades people from entering the duck hunting trade
- Says who? African Land reform Johnson v. M'Intyre
- Demsetz - tragedy of the commons, utilitarian view
- Heller & Eisenberg - tragedy of the anticommons (biomedical research)

-Heller & Eisenberg: purpose of intellectual property = encourage new technologies, artistic expressions and inventions while promoting economic growth. BUT most people only make small discoveries. To make the entire research process into a commons, may disincentive research. Patents mean that ALL discoveries, not just big ones = $$$.
- White v Samsung - anticommons = people cannot use intellectual resources, harms society culturally & economically
- key justification if IP = promoting cultivation (although it can also block cultivation)
- Moore v Regents of U of C: contrary to benefit of society to allow cells/research to be private property of the body from which it came - will block out development. Socially useful activities > full bundle of sticks rights to cells
- But Jacque v Steenberg Homes - right to exclude kept land from being used efficiently (well, not really because the moving company used it anyway) for no real reason.

- Adverse possession
- White v Brown: although the will specifically states that the house is to be lived in and not sold, that the language does not specifically allocate a life estate = the biggest estate (FSA) is always favored in light of confusion. "attempted restraint on alienation must be declared void as inconsistent with the incidents and nature of the estate devised and contrary to public policy." Why?? Because alienability ensures efficient use. Limits dead hand control.

- Baker v Weedon: although children have future interest (remainder) in the land, the court finds the widow with a life estate should be able to sell the property, against requests of children who realize property is appreciating in value, to prevent waste and to achieve needs of widow.

Predictability/administrability

-Respecting settled expectations = keeping the peace
- People only use resources effectively only when they know they can benefit from the investment
- capture vs pursuit, custom
- old rules vs new rules
- how long do we have to faith in the system to promote solid investments? Maybe we

- Dead hand control - contingent interests may not make most efficient use of land. Makes land inalienable. Dissuades investment (buyers unwilling to purchase sticks less than FSA). Inefficient/quirky interests of dead shouldn't trump those of living. Keeps wealth concentrated.
- Symphony Space v Pergola: court allowed Rule Against Perpetuities to apply to business transfer, although the intent was clear in the drafting of the contract, because it is contrary to policy interest to keep the property from being alienable for such a long period of time " "Underlying both early and modern rules restricting future dispositions of property is the principle that it is socially undesirable for property to be inalienable for an unreasonable period of time. These rules thus seek 'to ensure the productive use and development of property by its current beneficial owners"
- The Trust allows for dead hand control & solves problem of inalienability. Many states don't subject trusts to RAP.
- Joint Tenancy in Copyright
- Pierson v Post
- Ghen v Rich - customary that first to kill gets the $$$
-Keeble v. Hickeringhill - one who invests in his land should be able to reap benefit from that investment
- But see African Land Reform, and the problems which this change has caused
- Popov v Hayashi - people expect possession to occur only once fan retains full control over ball? Custom?
- Heller & Eisenberg: too much privatization, although predictable, can block effective investment
- Trademarks - these can't be about incentivizing creation - nothing novel or interesting about an orange box/the word Tide. Justified under interstate commerce clause, to protect consumers from confusion, to promote high quality goods, and to prompting disclosure as

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