This is an extract of our Allocating Resources 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:
Rules of Allocating Resources 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
- 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
Good for: predictability to insiders, keeping the peace between the most powerful, efficient use of resources (depending on first-to-what)
- 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
Bad for: distributive justice, rewarding 'efficiency' which is not necessarily the best policy concern
Capture can be trumped by policy, a seen in problem whe 1) govt fines for killing a goose whic
The Commons (Demsetz)
Fairness using resources efficiently
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 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)
of kill). Shows ambiguity of the rule
it says is a species th govt properly has control over; 2) govt refuses to pay for damage goose has o land
- 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
- Equitable distribution
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