Week 1 Flashcards
Jacques holding
Nominal damages but still okay to win punitive damages
Jacques says that proving trespass does not ___
require harm
Jacques says a person in _____ has a right to bring a trespass action
constructive OR active possession
Jacques treats refusal to enter property as ___
absolute right, don’t need reasonable basis
Reasons for punitive damages in Jacques
(1) actual harm not damage to land but lost right to exclude others
(2) preserves integrity of legal system
(3) protect privacy in way trivial fine wouldn’t
(4) prevent self-help
(5) commercial aspect
Jacques does not mention right to exclude as ___
incentive to maintain/enhance
Why is Jacques worried about the commercial defendant
(1) could be repeat player
(2) express denial of permission
(3) anti take and pay
Hinman is about ___
one man vs. celebrity airport
Hinman holding
Despite ad coleum, H not entitled to injunctive relief. LO owns as much of space above him as he actually uses it, everything else belongs to the world
Hinman suggests that ad coleum is limited when the owner ____
is not using the space and suffers no harm
Butler is about ___
telephone company strings wire over land
Butler holding
Company must tear down line
American courts have also said swinging crane on land ____ trespass
is NOT
Butler reasoning
(1) wire fixed, but airplanes move
(2) maybe certain level above and below not in possession but have right to possess
(3) wire interferes with right to possess in the future
RST: Private nuisance only if conduct is a legal cause of invasion in ____ and invasion is either a) ____ or ______
private use and enjoyment, intentional and unreasonable, unintentional and otherwise actionable
Unreasonable under RST means ___
social harm of activity outweighs social utility
Invasion is intentional if ____ or ____
acts for purpose of causing, or knows/substantially certain
Trepass requires ___ and ___ but NOT ___
intentionality, tangibility, Reasonableness
Trespass is an ___ strategy
exclusion
Nuisance requires ____ but not ____
reasonableness, intentionality or tangibility
Examples of mini trespass not being required for nuisance
Pole in Hinman, well in Stalnaker
Stalnaker is about __
septic tank battle
Stalnaker holding
S made a reasonable use of his property by putting in septic tank
Stalnaker nuisance rule
Nuisance is (1) intentional (2) unreasonable and (3) results in some sort of harm
In Stalnaker the actual injury is ___
the regulation (but suing person who triggers the regulation)
Problem with CBA/RST approach for nuisance
expensive and requires expert witnesses not present in garden variety case
In Stalnaker, the ___ are pretty equal but S wins because ___
social value pretty equal, he got to it first
In Stalnaker, unreasonableness is a ____
balancing test resolved by balancing interests of the parties
Pardee is about __
timber on land cut
Pardee holding
Damages would be inadequate so injunction awarded.
Pardee rule
Courts will generally award equitable relief only when the presumptive form of relief “at law” is inadequate
Pardee reasoning
(1) Can’t reassemble cut trees
(2) Equity protects rights in land and trees part of the land
(3) change in social norms (old rule cutting trees was doing a favor)
Pardee says that stare decisis is _____ so as to ___
especially strong in property, not disrupt rights
But why does Pardee not ultimately follow stare decisis
changing relief does not disrupt property rights, it actually reinforces them by preventing take and pay
Example of arbitrary lines for personal property and equity
equity for heirloom, damages for killed horse
Merrill view of property
in rem (rights against a thing)
Property essentialists are focused on ___
the right to exclude
Property essentialists view property as _____ from persons unlike ___
always separate, Locke (own person so own labor and entitled to what acquired through labor)
Property essentialists view property as imposing duties on ___
large and indefinite number of persons
Property essentialists view exclusion as a means to ___
secure and create incentives
Gray/Skeptic view of property
malleable bundle of sticks
The Gray/Skeptic view of property is the ____ among scholars
more common view
Gray points out that a thing can have ____ so must focus on ___
multiple owners, limited rights to property of each co-owner
Gray points out that most property today are no longer actual things (___) so ownership really just ___
complex set of abstract claims
Gray points out that there are different types of property (real, personal, intangible) with ___
different remedies and audiences
Coasean theorem
where transaction costs are zero, the placement of burden/rights does not matter, the ultimate result and allocation of resources is the same
Coase sees ____ as useful vehicles for allocating rights
contract law and ex ante negotiations
Critiques of Coase theorem
(1) transaction costs never zero
(2) People not rational maximizers
(3) initial distribution still affects flow of wealth
(4) assumes property rights all tradeable
(5) in rem rights problem
What is first possession
establish possession over something unclaimed and first to possess that thing
For first possession must intend _____ AND ____
to assert control, establish significant degree of power over it
Merrill says a person has possession of a physical thing if the person has established (1) _______ and _______ (2)
effective control over that thing and manifests an intent to maintain such control to the exclusion of others
Merrill says that establishing control and manifesting intent to maintain control require ___
signaling and reliance on social norms
Control depends on ___
context
English law said that game was the _____ of LO but wild animals can be ____
exclusive right, pursued onto someone else’s land
Ratione soli
game killed on your property is yours
Pierson is case about ___
fox on the wastelands
Pierson asks ____
how much control is needed to establish possession
Pierson rule
Mere chase is not enough. Hot pursuit + mortal wounding might be
Pierson reasoning
(1) No injury done to Post
(2) Possession w/o maiming would open floodgates of litigation
(3) presupposes natural law
Pierson dissent emphasizes ___
custom and reasonable prospect of capture
Dissent argues that killing foxes should be incentivized but the majority decision makes ___
attempts less valuable
Pierson says that the right rules depend ____
on community context
Pierson majority and dissent both agree that ___
first possession means ownership in rem
Popov holding
two involved in catching home run ball should split profits
Why is Popov approach different than patent approach
windfall/less productive
Ghen rule
As long as fisherman done all he could to make whale his, he gets to keep it. Custom says the killer of the whale gets it but pays fee to the finder
Ghen is worried that if ignore customs the Court would effectively ___
kill whale hunting industry with free rider problem
Difference between Ghen and Pierson
Ghen defers more to custom (maybe because more important industry with more developed customs)
Ghen imposes _____ on the finder
notice requirement (must know customs)
In Ghen there are different conceptions of first possession for ___
different kinds of whales
In Ghen, the first person to establish control over the whale wins but that control ___
might involve different actions
Keeble rule
One can compete but cannot hinder another person from competing in a zero sum way
Keeble says that zero sum competition is ____ but negative sum competition ___
allowed and encouraged, is not
Why no ratione soli in Keeble
no capture of ducks here
Difference between Keeble and Pierson
livelihood in Keeble vs amateur hunting in Pierson, also Pierson maybe different if didn’t actually kill the fox just let it get away
Keeble indicates a right to _____
complete possession of wild animals against unfair action
How does Keeble define fair
action that increases total market of ducks in London
Merrill says that “fair” is ___
social good subject to change over time
____ limits competition for first possession
Fairness/equity
What is moral concern in Keeble
not even benefiting, malicious and zero sum
Law of finds (sunken ships)
if owner abandoned the vessel (and doesn’t claim) the salvor is the new owner
what does abandon mean
owner manifests an intent to relinquish all future claims
Law of salvage
If not abandoned, salvor can claim a generous portion of the value of the vessel and has a right to engage in salvage without interference
Brazelton holding
buoys/markings show intent to control but unable to actually save the property so no effective control
Possession is used _____ property
extensively as a proxy
Possession sometimes_____ property rights
trumps
