CHAPTER 1: The Concept of Property Flashcards
What are the 5 theories of property?
- Protect First Possession
- Encourage Labor
- Maximize Societal Happiness
- Ensure Democracy
- Facilitate Personal Development
Definition of property theory of “Maximize Societal Happiness”
Jeremy Bentham argued that under the utilitarian theory that distributing and defining property rights promotes the welfare of all citizens
3 elements needed for “maximizing societal happiness”
Universality, Exclusivity, Transferability
Define “universality”
All available scarce resources are owned by someone
Define “exclusivity”
The owner can exclude others from using the property
Define “transferability”
Gains can be made from the transfer of property
Definition of property theory of “ensures democracy”
People who have independence from government power own property will make decisions that reflect their needs
Rule of capture from Pierson v. Post
Right of first capture - deprive the animal of its “natural liberty” - answers how unowned things becomes property
Dissent: Protect investments - promotes the destruction of foxes
How to show violation of right to publicity from White v. Samsung
Right to publicity: (1) D’s use of P’s identity (2) the appropriation of P’s name or likeness to D’s advantage (3) lack of consent (4) resulting injury
Dissent: Rule will stifle creative forces
Define Legal Positivism
The view that rights only arise through the government
Right to Transfer
Rule of transfer from Johnson v. M’Intosh
Upheld legal positivism, the law consists of what the government says; not what is just. Native people only had right to transfer to government and right of occupancy
Right to Exclude
Rule of trespass from Jacque v. Steenberg Homes, Inc.
Courts recognize the legal right to exclude others from your real property and punitive damages may be added to nominal damages for the purpose of making an example of the defendant
Right to Exclude
Rule of trespass from State v. Shack
“Property rights serve human values” - The ownership of property does include the right to bar access to a party’s needs (medical, legal advice, etc.)
Right to Use
Rule of nuisance from Prah v. Maretti
When a landowner’s use of property unreasonably and subsantially interferes with the use or enjoyment of another’s property, that use is said to be a private nuisance
Right to Destroy
Rule of right to destroy from Eyerman v. Mercantile Trust
The right to destroy is not absolute; the state may foreclose the right based on economic reasons, status of owner, etc.
