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Law Outlines Real Property Outlines

Allocating Resources Outline

Updated Allocating Resources Notes

Real Property Outlines

Real Property

Approximately 28 pages

In depth outline of real property course laid out in easy to read charts. Outline explains how federal and California courts categorize property interest types (tenancies in common, joint tenancies, tenancies by the entirety) and their rules for determining property interests (first in time, conquering, the commons/splitting the commons, finding, adverse possession). The policy considerations outline will help you to maximize points on your exam, as it will help you to show your Professor that yo...

The following is a more accessible 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:

Rules of Allocating Resources Advantages Disadvantages Cases Policy Arguments
First in time

- simple and easy to administer. Gives notice to those who understand the rule

-encourages planning ahead

-autonomous (don’t need to rely on anyone else, don’t need mediator)

- doesn’t reflect true need

- exceptions could account for what first in time doesn’t address, however those exceptions take away the advantages of simplicity

- may allocate too much to the first person

-ambiguous: first to do what?

- self-help (no mediator) could lead to violence

- subjected to bias. Rich/fast/powerful can take all.

- may not be clear to outsiders

- Johnson v. M’Intosh, pg 3: Europeans recognize first in time, although Native Americans not entitled to the land because they did not mix their labor with it, and mere presence is not enough for first in time. First in time should be honored because it has been done this way for a long time: stability & predictability – one of the policy concerns of property. Avoids disputes.

- Pierson v. Post, pg 18: Where although Post was first to spot/track the fox, Pierson was first to successfully mix his labor with the fox. Clarity and administrability. Dissent notes that if we encourage ‘stealing’ of others’ labor, we will discourage investment in labor.

- Ghen v Rich, pg 26: Ghen receives value of whale because he killed it first. Left his mark, custom in industry.

- Popov v Hayashi – encounters problem of identifying first to what. Shows ambiguity of the rule.

- Intellectual property – first to think of idea? First to expand on the idea? How broad/narrow does the idea have to be? Is there always a ‘first’ person?

- copyrights attach as soon as the work enters the public forum

Good for: predictability to insiders, keeping the peace between the most powerful, efficient use of resources (depending on first-to-what)

Bad for: distributive justice, rewarding ‘efficiency’ which is not necessarily the best policy concern

Conquering/Capture - encourages labor
- administrability (but see : confusion in deciding when something is acquired)

- When is something properly considered acquired? You ‘acquire’ a fox in a different manner than whale. Depends on type of property. (you must demonstrate control over fox, but not whale)

- Pre possessory interest? When can this be established? And when does this count as possession?

- physical relation + intent

- Pierson v Post
- Ghen v. Rich

- Popov v Hayashi – when is the appropriate time of capture? This changes depending on the type of property –baseball & fox (full control), whale (time of kill). Shows ambiguity of the rule

Capture can be trumped by policy, as seen in problem where 1) govt fines for killing a goose which it says is a species the govt properly has control over; 2) govt refuses to pay for damage goose has on land
The Commons (Demsetz) Fairness
using resources efficiently

The tragedy: everyone uses the commons to the full extent possible, not taking into account overuse. Not reasonable for one person to use ‘reasonably’, while everyone else overuses – then he gives up his profit, and the overall quality of land does not benefit.

- threat of overuse

- threat of underuse (no one person may be willing to cultivate all the corn if everyone reaps the benefits)

- Demsetz: “ Communal property results in great externalities. The full costs of the activities of an owner of a communal property right are not borne directly by him, nor can they be called to his attention easily by willingness of others to pay him an appropriate sum.”

- Heller & Eisenberg: Biomedical research – govt incentivizes a commons of research, which developers can freely use to product beneficial products (this, however, is not the way it works)

- overcultivization is not a concern for intellectual property, but underuse is. If you create something but everyone else gets the benefit of that creation, you will not have incentive (or resources) to continue to create things (or to have created it in the first place). Paradox = patents incentivize creation while simultaneously blocking future creation

- White v Samsung dissent: emphasize importance of public domain. Private land, for instance, is far more useful if separated

from other private lands by public streets,

roads, and highways. Public parks, utility

rights-of-way and sewers reduce the

amount of land in private hands, but vastly

enhance the value of the property that

remains.”

- Equitable distribution
Splitting the commons (right to exclusion)

-each individual internalizes the costs and benefits
-owner can exlude others, can reap rewards associated with increasing fertility of his land
-concentration of benefits and costs on owners creates incentives to utilize resources more efficiently

- easier for dispute resolution – can come to settled agreement, rather than one of many is misusing communal property. In case that peaceful settlement is not possible, we’ll have a rule of liability that X must pay Y for damages which will prevent X from socially undesirable behavior.

- solves overuse

- May not be equitable
- by setting too many limits we may be promoting underuse – giving individuals to many rights to exclude others

- Coase theorem: you don't need that rule necessarily in order to get that socially...

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