Property law tries to serve values of
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- A. ALLOCATING RESOURCES THROUGH THE LAW OF PROPERTY
- Why society protects private property
PROPERTY OUTLINE
Property law tries to serve values of:Rewarding productivity and fostering efficiency Creating simple, easily enforceable rules Creating property rules that are consistent with societal habits and customs – provides notice Produce fairness in terms of prevailing cultural expectations of fairness Types of property actions: Conversion: Tort that is the wrongful exercise of ownership rights over the personal property of another (e.g. Moore-claimed but no c/a found) Trespass on the case [ex. Throw out a log and immediately hit someone -) trespass; if someone later stumbled on the log -) trespass on the case. (e.g. Pierson v. Post, Keeble). Trover – suit for damages for the conversion of personal property Can divide rights differently (Property as a bundle of sticks) Possession - One person can own surface, one can own minerals beneath Use – one can use, one can live (Lutz) Exclude Dispose Time Timeshare Ownership to A during A’s life and then to B after A dies (Estate system) Johnson v. M’Intosh -- NAs get the land until US acquires by force or purchase Determining what constitutes property is a policy judgment (Charles Reich – The New Property (1964)) Government provided property in the form of benefits, licenses, subsidies Wealth taking the form of professional status rather then tangible goods Wanted the govt. to protect these kind of property – procedural and substantive rts. Intangible rts. like profession have significance in the family law context particularly because many people do not have significant assets when they divorce Essentially what constitutes property is a conclusion based on policy Property rights don’t have to be transferrable Liability v. Property rule Awarding damages rather then injunction (liability rule): allows losing party to make the decision on whether to pay the damages or stop the offending behavior Decreases transaction costs – if an injunction is granted and it would be more efficient for the behavior to continue, then strategic bargaining is necessary and there will be transaction costs. Forces redistribution of property Property rule preferable: Courts may face difficulty in valuing injunctions, so leaves valuation to the parties A. ALLOCATING RESOURCES THROUGH THE LAW OF PROPERTYWays Resources can be ownedPrivate property – individuals make decisions Commons property – everyone can use and no one has the right to exclude Open access No one’s excluded, e.g. fisheries beyond 200 mi. limit “Tragedy of the commons” usually refers to open access regime Communal property Defined community of users Can excluded non-members from using the resource. State property Resources answerable to needs of society rather than needs of individuals Less significant post-1989. Others – anticommons and private commons Anti-commons is a critique of too much private property: proliferation of private property owners who can each hold-out, so creates risk of under-utilization E.g. Moscow store front example – so many people had rights and vetos over their use that no products were sold discussed as a risk of recognizing small numbers of rights in cases like Moore) Why society protects private propertyWealth maximizing (Demsetz) – Prevents tragedy of the commons Emergence of new property rights in response to the desires for adjustment to new benefit-cost possibilities Private property evolves if the benefits of internalization of externalities exceed the costs Can happen because value of property increases (new market, scarcity) or the costs of implementing private property regime decrease (new technology). Often due to change in the market or technology (e.g. invention of barbed wire promoted enclosure in the American West) Costs involved include defining private property rights, policing and adjudicating disputes Increase in the number of owners leads to an increase in the costs of internalizing Large costs of defining private property rights may explain why it’s difficult to develop private property in relation to oil, gas, and air. Private property reduces externalities Communal property leads to overuse b/c can maximize personal gain and impose costs on others PP reduces transaction cost of negotiating over remaining externalities Present owner will take into consideration future costs Ex. Pollution – if emit fumes from apartment, impose external costs on others Ex. Develop house with landscaping so that value of neighbors house goes up – externality benefit Example of Montagne Indians Finds correlation between increase in the value of the fur that led to growth of private hunting territory – husbanding deceased risk of poaching Distinguishes from SW NA tribe: no plains animals of comparable market value and wander over large tracts of land – so value low and cost of developing private property high =) no private property rights Example – Tribe of 100 members that own forest of 1000 trees in common. Each member of the tribe owns 1/100th interest in 1000 trees. Every member of the tribe has a right to any of the trees (communal property regime) If x chops down a tree and puts it to his own use, he gets exclusive control over the tree and each other member of the tribe loses 1/100th of 999 If each member gains more from chopping then from leaving it: Assuming there’s no external market, everyone will probably use sustainably If external market develops, incentive to cut down as many trees as possible. Collective goods like conservation would not be realized because even though society as a whole would be better off, individuals have an incentive to cheat (prisoners’ dilemma, tragedy of the commons) Conservation is prevented by transaction costs – negotiating, holdout problems, enforcement, free rider problem (conservation provides non-exclusive benefit so no one has strong incentive to contribute to the solution Private ownership provides more incentives to preserve ownership for future generations then does public/ communal ownership Partially compensates the individual for costs and benefits Cost of negotiating over the remaining externalities reduced – less people that have to bring together Results: Loss of sustainable resources Over-investment in technology to cut down trees Undervaluing – the resource might be worth more in the future Private property also facilitates trade and minimizes conflict Uncertainty about what you’ll be able to keep may provide an over-incentive for protection Criticisms of Demsetz Rose Theory relies on the notion that private property developed because people are rational utility maximizing individuals who want the most for themselves and the least for others, meaning that collective property regime won’t work At the same time assumes people have been able to cooperate in order to develop and maintain property system Gives up too quickly on communal property – assumes CP necessarily involves right of capture – it is possible to have CP system where individuals do not have right to appropriate resources for personal use Such a system requires community cohesion to avoid monitoring problems. Other Alternatives: In communal property regime, could have use rights In dictatorship, state property Implications of Demsetz’ argument is concentration of ownership in 1 or a few hands b/c that would reduce transaction costs Anthropological issue – in spite of existence of NA private property, there was a sig. drop in the number of beavers =) suggests conservation efforts didn’t work. Distributional Concerns Prestige/Power reasons– distribution to reward supporters of a regime Equity reasons Locke’s labor theory (discussed in AP v. INS) Because you own your own labor, when you mix that labor with something unowned by anyone, you own the resulting mixture Should award productivity (e.g. Keeble) May not be sufficient in situations of scarcity Probs. does not set boundaries or determine whether you should get full value of property or the increment that you added (tomato juice into the sea example) Property as Personhood (Radin) Connections with particular items on a subjective basis that generates a ‘hierarchy of entitlements’ – the closer a the property is to personhood, the higher the entitlement Distinction between personhood property and fungible property Personhood property-property that one needs in order to develop as a person Fungible property – property that one needs to achieve certain goals Probs.: Not clear how one distinguishes between the two Could be underinclusive Can always monetize – difference in valuation Custom – customs may develop that maximize aggregate wealth of the customary participants (e.g. whaling in Ghen v. Rich) Directory: sites -> default -> files -> upload documents upload documents -> Torts Outline Daniel Ricks upload documents -> Torts outline Functions of Tort Law upload documents -> Constitutional Law (Yoshino, Fall 2009) Table of Contents upload documents -> Arrest: (1) pc? (2) Warrant required? upload documents -> Civil procedure outline upload documents -> Criminal Procedure: Police Investigation upload documents -> Regulation of Agricultural gmos in China upload documents -> Rodriguez Con Law Outline Judicial Review and Constitutional Interpretation upload documents -> Standing Justiciability (§ 501 Legal/beneficial owner of exclusive right? “Arising under” jx?) 46 Statute of Limitations Run? 46 Is Π an Author? 14 Is this a Work of Joint Authorship? 14 Is it a Work for Hire? upload documents -> Fed Courts Outline: 26 Pages Download 0.61 Mb. Share with your friends:
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