Rules Flashcards
Rule of Creation
Property in One’s Idea–Intellectual property. Quasi-property is when an owner may not hold property rights against the public, but may maintain property rights against specific individuals (competitors). (INS v. AP) Follows along with Labor Theory. (See also, Moore v. Regents) because the doctors and medical researchers created something from Moore’s blood and thus, Moore did not have right to what they did to it after it left her body, but the doctors did have a duty to disclose research and economic interests.
Acquisition by Conquest
not relevant to fugitive resources or ferae nature.
The winner in battle vests title to the land. Remember in McIntosh, courts do not recognize the capacity of the natives to contract.
Acquisition by Discovery
not relevant to fugitive resources or ferae nature.
First in time, first in right can acquire title. (Johnson v. McIntosh).
Rule of Capture: ferae naturae
Mere pursuit of a wild animal is insufficient to vest title in the hunter, the hunter has to “occupy” it to acquire title. Advances the goal of the society to capture wild animals, foster competition, and award catching the ferae nature. Easy to adminster b/c its easy to determine who captured the wild animal. “Robs it of its natural rights”. Represents efficiency, but possibly unfair to hunters who put in the effort. Can discourage hunters who feir prey will be taken at last moment. Majority rule in Pierson v. Post. Dissent addopts Locke’s approach.
Rule of Custom: ferae nature
Award the animal to the party who used the proper custom of the hunt, not who ultimately captures it. We should follow custom b/c it’s been accepted by the community to well serve its purpose. The downside to custom is that it is difficult to determine where/when hunting begins and to compare the amount of effort contributed by the parties. Promotes fairness. Also supports Locke’s Labor Theory b/c hunter’s effort should be rewarded to create incentives for people to continue the hunt without fear that animal will be ultimately taken at last minute. (Ghen v. Rich).
Acquisition by Gift: Causa Mortis
A gift made in contemplation of an in execution of impending death. If donor lives from the imminence of death, then revocable. (Newman v. Bost - housekeeper claimed causa mortis gift but lost because there wasn’t actual or constructive delivery and symbolic delivery is not enough).
Tragedy of the Commons
Exploitation will result when everyone has a right to use and isn’t used effectively. Finite resources with open access to public. Consumption enjoyed by individual, but costs are shared by all.
Acquisition by Gift: Basic Elements
A gift is a voluntary transfer of property to another without consideration. 1) Intent 2) Delivery 3) Acceptance… elements do not need to be in order, just complete–pearl ring hypo
Rule of Capture: Fugitive Resources
Oil and Gas: Courts used the rule of capture. Water Rights-Surface Water: Riparian Rights-person has right to water based on fact that the land adjoins the water. Prior Appropriation-based on seniority, not on location(first to reasonable and beneficial use. Some jurisdiction are a riparian/appropriation hybrid like Texas. Groundwater-CL rule of capture, first to pull put water gets to use it (English Rule). American Rule-first in possession AND reasonable use of resource (if harmed neighbor then unreasonable).
Locke’s Labor Theory
Who put in the most time and energy. Who put work into it. Who labored upon the land. Who created through innovation the thing has title. (Dissent in Pierson) Also supported by Ghen Whale case because it awarded the hunter who first struck the whale.
