Week 4 Flashcards
Public trust limits the __
power of govt to convert public property into private
Public trust is grounded in ___
state common law
____ are central to the public trust doctrine because of the ___
Navigable waters, huge transportation cost problem
Public trust is not part of the discussion with ___
airspace/public highways
Public highways are governed by ___
political process
Public trust doctrine is overall undefined doctrine that says Court can ___
say yes or no to projects somewhat related to navigable waters
Illinois Central says that the state holds ____
title to submerged lands in navigable waters in trust for the people so can’t transfer it away permanently
Illinois Central says prior transfer was ___
merely revocable license
Public trust ___ to federal govt
does not apply
Illinois Central says that the state may be able to transfer ___ OR ___
small parcels that promote the public interest, don’t substantially impair the public trust
Illinois Central says that the project here is ___
too large to meet small parcel requirement
Public trust doctrine is ____ in Illinois
most developed
In Paepke, Illinois began to protect ___
recreational uses with public trust
In Illinois, Courts have blocked _____ under the public trust
attempts to approve changes in use for previously water filled land
Public trust in NY says that public trust is ___ and requires that the ___
a presumption, leg speak explicitly before privatization of trust resources can take place
WI says that public trust comes from ___ so __
state constitution, requires approval from state DNR
HI says that public trust comes from ___ so ___
state constitution, establishes state ownership of all water sources
In Hawaii, ___ is a public resource
groundwater
In CA, grants of public trust land pass absolute title when ____ but if not _____
when promote navigation and commerce, grant gives title subject to the public trust
In CA, public trust includes ___ and __
Mono Lake (navigable), streams
____ are the most contested public rights issue
beaches
In Michigan, all ____ is in the public trust
land within highwater mark
In almost every state ____ is public but ______ is controversial
wet beach, up to vegetation line
Thorton says that state can ____
restrict property owner’s use of dry sand area
Thornton cites no ___
single Oregon case where custom invoked
Thorton explores different options like ____ but settles on ___ establishing public rights
prescriptive easements/implied dedication, common law custom
Thornton applies to ____
all wet sand beaches in Oregon
If Thorton applied a public prescriptive easement it would require ___
parcel by parcel litigation
Blackstone’s common law doctrine of custom
(1) ancient
(2) right exercised w/o interruption
(3) peaceable and free from dispute
(4) reasonableness
(5) certainty (subject to visible boundaries)
(6) obligatory
(7) not inconsistent with other customs or the law
What does Blackstone mean by obligatory
individual LOs can’t decide whether to allow public to use dry sands adjacent to property
Certain interests may be inappropriate for treatment as property because they are ___
too closely connected with personhood
Body parts and fluids inside the body are ___
not thought of as property
Penner separation thesis says that __
things separate from owners are “things” and can be property
Once completely separated we can treat body parts as property like ___
lock of hair, ashes, Moore’s spleen cells in the doctor’s hands
What is the zone of controversy with body parts
transition from being part of living body to complete separation
Moore says that there is a cause of action for ____ but NOT ___
fiduciary duty and disclosure obligations, conversion
Moore says UCLA had ___
property rights in the spleen cells
Moore says once cells ___ she no longer has ___
leave a person’s body after surgery, sufficient ownership rights to uphold claim for conversion )no property no conversion)
Moore court is very concerned about ____
medical research policy problems if P prevails/windfall
To date ___ has allowed conversion action for use of patient cells in medical research
no court
Generally, removed cells are treated as ___ and patients have ___
medical waste under statute, no ongoing property interest
Current doctrine suggests researches have ___ to patient cells
Lockean right
Moore court is worried that conversion makes ___ so better to __
third parties liable whether or not they knew, wipe out property than mess with conversion
One criticism of Moore is that if patients not informed maybe ___
no true intent to abandon property
What are problems with potentially applying accession to body parts?
(1) difficulty with determining market value
(2) doctors not in bad faith, following norms
One problem with Moore is that it _____ Leg
leaves no pressure on the
Moore does not address who has the rights when ___
spleen cells on the operating table
Hecht held that sperm cells ___
were property for probate purposes
Hecht suggests that people have ___
strong interest in their gametic material
Generally with frozen embryos either party can ___
back out and veto the use of the embryos at any time before implantation
Newman holds that people have ___ in their deceased children’s bodies that follows ____
quasi-property, duty on next of kin to make burial arrangements
Newman prohibited ___
coroners from removing corneas for donation
Like in Conroy Courts have generally rejected claims based on _____
mishandling of dead bodies
Courts generally reject claims based on mishandling of dead bodies because ___
next of kin have insufficient property rights in body of deceased to support such actions
Flynn says that blood can be ____ and marrow is ___
sold for consideration, subpart of blood that can be bought and sold
Flynn distinguishes blood from other organs because __
it can be regenerated (allowing it to be commodified)
Flynn says statute doesn’t prohibit collection of bone marrow through this method because ___
bone marrow not organ donation
Demsetz says that property rights emerge in response to ___
increasing value in certain objects and increasing associated externalities and need to internalize those
Demsetz says that property rights develop when their implementation becomes ___
cost-effective
Demsetz suggest that there will an extension of property rights to organs as ___
technological availability of organs increases
Radin distinguishes between ___
personhood property vs. fungible property
Radin says property closer to personhood should ___
receive greater protection
Radin would say once body parts removed they are ___
more fungible
Radin’s theory explains ____ differentiation
gametic
Radin domino theory of anti-commodication
want to preserve uncommodified version and allowing commodification will make this impossible
Radin prophylactic theory of anti-commodification
can’t tell if people being coerced into commodifying personhood property so prohibit it as protection
Radin prohibition theory of anti-commodification
something contrary to human flourishing about making a certain thing commodifiable
Nemo dat means that __
no one can give that which one does not have
Usually first possession gives title, but discovery gives ___
right to extinguish title
Federal public domain land now seen as __
owned by fed govt rather than open access land
US govt as trustee until ___
settlement and/or extinguish native rights
Johnson says that titles ___
transferred from tribe to private individuals before American Revolution not recognized under American law
Johnson reflects idea that native Americans __
don’t understand property or have property system incompatible with Europeans
Johnson prioritizes ___ title based on ___ over __
sovereign (dominion), discovery, indigenous title (occupancy) based on possession
Johnson says can’t give up land to another without __
consent from the Govt
Discovery brings right to obtain title by ____ OR ___
purchase, conquest which extinguishes other property rights
In Johnson, occupancy was ___
extinguished by treaty with USA
McGirt says only Congress has ___
authority to abrogate promises made to tribes in form of a treaty
McGirt suggests that extinguishing rights is a space ___ because ___
where only Fed govt can act, not the States, States agreed to cede land to federal public domain
Corrow says that NAGPRA is ___ because defendant was ___
not void for vagueness, knowledgeable enough about Navajo culture to be aware of customs and inalienability of the masks
Corrow relies on ____ to satisfy scienter requirement
defendant’s knowledge of custom
Corrow says that due process does not require ___
all citizens to receive actual notice of all criminal laws and their meanings
Custom test for protected cultural item under NAGPRA
(1) not owned by individual Native American ie community ownership
(2) could not be alienated, appropriated or conveyed by an individual (in tribe’s custom)
(3) ongoing historical, cultural or traditional importance central to Native American group
If on notice that _____ AND ___ then guilty under NAGPRA
item has characteristics of the test, buy/sell it
Smith v. James is about __
Hopi land dispute
Smith says that ______ is required
non-adversarial fact-finding hearing to ascertain village custom (find out controlling law) __ before going to evidentiary stage
Smith says that Courts need to determine -__
custom before hearing the dispute
Public trust doctrine does not require ___
paying owners for loss of exclusion
Why is custom more flexible than public trust
(1) Leg can override
(2) expandable to other resources
Public trust is not a public easement based on AP because __
would require finding of adversity
Airspace is controlled by ___
federal statute
Highways and streets are controlled by ____ NOT ___
public pressure/state reg/local govt, federal statute
If Fed govt creates dredge or dock then ___ because ___
no compensation necessary (anti takings), Con right to remove obstructions
Except ____ there is no Constitutional right to public trust
navigable waters (navigation servitude under CC)
