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Parker – Property Fall 2016 Outline

Nature of Property

What is property?
Rights and responsibilities imposed by items?
Items recognized by the state as being owned?
Justifications for property
Rewards and incentivizes labor and market efficiency
“Fairness” aspect of first ownership
Promotes social order
Promotes “flourishing”
Labor
First ownership
Theories of property
Labor theory of property (Locke)
Mixing of labor and unowned things creates property
Hegelian theory
“You are because you own”
You realize yourself as an individual through property; law recognizes you as an individual that owns (true ownership shapes the individual)
Non-contractual quality; no unifying set of rules for what comes with what is bought and sold
Can waive specific attributes of what you buy and sell
Right to property is not unity, it is several rights together that can be disaggregated
“Bundle of sticks”
Right to use
Right to exclude
Right to transfer (=sell)
Limitations: if you’re leasing; in many countries, cannot transfer antiques; cannot sell certain things to convicted felons
Right to alienate
Right to bequeath (=devise)
Limitations: cannot disinherit your spouse (some exceptions)
Right to immunity from damages/peaceful enjoyment
Immunity from state appropriation (=right to compensation for takings)
More or less loosely held together – can shorten or remove one stick and maintain the bundle
All rights are relative to others
What constitutes ownership?
= the state will back your claim (most important aspect of what it means to have a property right – only one that gives the others meaning)
Property rights involve legal protection of an interest
All property rights emanate from the state
Property rights all rely upon the state for enforcement
Possession is particularly important for smaller items; titles and deeds, etc., for larger items
Title = state’s recognition of your right to property → state’s commitment to defending your right over the rights of other individuals
Taft reading
Works with a certain conception of property, different from the bundle of sticks
Believes property rights emanate from natural law (what you earn is yours)
The Constitution merely declares what is natural (Locke type idea)
“Block of wood” conception: you’re either for private property or against it

Limitations on right to use

“Your responsibility to stop your car at red lights also gives you the right to go unimpeded at a green light”
Vs. pure restrictions, such as having to slow down in a school zone in order to serve rights unrelated to yours
Restrictions enhance rights overall
Sometimes, the rights of others will trump your right (e.g., slower speed limit in a school zone – no benefit to you personally)
If you were not limited, no one else would be

Right to exclude and Rights of access

Trespass = unprivileged intentional intrusion on property possessed by another
Intent here is general; you need to intend to be somewhere, not intend to trespass
Merely has to be a voluntary act
Exceptions: consent, privilege, necessity

Right to exclude is significant but limited. Trespass deals with the balance between the right to access and the right to exclude. Prior to the Civil Rights Act, the oldest common law position was that commercial businesses could not exclude at all (exceptions being for those that would disrupt the business), because they had to be authorized by the government and were seen as public enterprises. There was a transition towards only businesses deemed “necessary” (e.g., inns and common carriers) being required to give access. After the Civil War, common law went towards equal protection, but granted businesses the right to exclude.

Sources of limitations on right to exclude:

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