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Date Submitted: 11/19/2011 09:26 PM
Property Final Exam Outline
Part I: Justification, creation, and allocation of property rights
I. Property in Information
• What is property is not conceptual question independent of facts. What we’re trying to look at is a set of conditions and decide if one party will have power to control resources against another. Then we argue whether they should have that power.
o This is the Realist approach to law.
• Who in any transaction can act or has to wait for permission? Decision about where to place rights makes a difference on structure of resulting market.
• INS v. AP (Supp 1 1)
o Pitney Majority: Quasi-property right in news as against competitors.
Grant right because incentive needed in order to keep the news industry going and incentivize gathering news.
Property right because there is value
Property right because Lockean labor theory about infusing labor to create property.
o Holmes: Just because there is value doesn’t mean property. Property is just a creation of law and value is just a matter of fact that arises because we decided there is property.
o Brandeis: This is a matter for the legislature. Courts aren’t good at deciding what should be incentives, taking into account the whole context.
Realist effort where he’s looking at the practical effect of decision and trying to figure out what would happen. Now that he predicts result, deciding if that’s a good or bad outcome.
o Pitney remedy is injunction until value disappears.
This remedy emphasizes value over incentives. For incentives, would need deeper study about what actually is proper incentive.
o Holmes remedy is injunction unless give credit.
o Pitney’s remedy is a property rule where AP can exclude. Holmes’ remedy is a liability rule where INS can decide if want to publish and either give credit or be liable.
Where you place the right has an effect on how market structured.
II. Property in Land
• Johnson v. Mc’Intosh (3): Positivism, Stability...