Property Exam Outline

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...