Property I Professor Donald J. Kochan

1. Property IProfessor Donald J. Kochan Class 1

2. Course Introduction Property I Fall 2010 Professor Donald J. KochanOffice: Kennedy Hall, 4th Floortel. (714) 628-2618; fax (714) 628-2576kochan@chapman.eduwww.donaldjkochan.com http://www.donaldjkochan.com/propertyI.htm Classroom 152 WF 10:15 a.m. – 11:30 a.m. Office Hours:  WF 9-10 a.m. and 3-5 p.m.; or by appointment. “There is nothing which so generally strikes the imagination, and engages the affections of mankind as the right of property; or that sole and despotic dominion which one man claims and exercises to the external things of the world, in the total exclusion of the right of any other individual in the universe. And yet there are very few, that will give themselves the trouble to consider the origin and foundation of this right. Pleased as we may be with the possession, we seem to be afraid to look back to the means by which it was acquired, as if fearful of some defects in our title; or at best we rest satisfied with the decision of the laws in our favor, without examining the reason or authority upon which those laws have been built.” William Blackstone, 2 Commentaries on the Law of England 2 (1766).

3. Course Materials Required Text: Older Editions are not acceptable Dukeminier, Krier, Alexander, & Schill, Property (7th ed. 2010). http://www.aspenlaw.com/product.asp?catalog_name=LegalEd&product_id=0735588996&tag=CTGSCasebooks%20%26%20Coursebooks Required Additional Materials: Powerpoints; Materials so designated posted on TWEN or Kochan website; All other things so designated in class Recommended Supplements: Note that purchasing a used older edition of these Supplements will likely do the job Hovenkamp & Kurtz, Principles of Property Law (6th ed. 2005) http://west.thomson.com/productdetail/128860/22048674/productdetail.aspx Singer, Property (3rd ed. 2009) http://www.aspenlaw.com/product.asp?catalog_name=LegalEd&product_id=0735589356&tag=SERSAspen%20Treatise%20Series

4. Syllabus, Grading, etc. Syllabus Available on TWEN and www.donaldjkochan.com Grading: • Fall final exam is 3 hours essay and possibly multiple choice or short answer. The exam will cover all materials assigned in Dukeminier & Krier et al., all materials covered in lectures, and any assigned supplemental material including handouts.  The examination is a modified open book examination – each student may use his/her text, any assigned supplemental materials, any notes or outlines which that student prepared, and any group notes or outlines to which he/she made a significant contribution in preparation.  No commercial outlines, treatises, or similar materials will be permitted for use during the examination. • Sample exam questions will be distributed mid-term; some past practice and final exams are available on my website. • All students must register on the TWEN page for this course, and must make themselves familiar with the Social Science Research Network (“SSRN”) and JSTOR.

5. Today’s Readings • Johnson v. McIntosh • Pierson v. Post • Ghen v. Rich

6. Johnson v. McIntosh • Identify the Necessity issues • Identify the Certainty issues • Is this just brutal Reality? • Or, just Brutality? • What is the role of Government in Defining Who Gets Property Rights? • Note the Role of Cultural Definitions of “property” in the formation of legal rules

7. Acquisition by Capture: Pierson v. Post • A

8. Pierson v. Post • What is the underlying holding and how does it relate to “reduction” of the wild into one’s own dominion? • How does it relate to Locke’s theory of labor? • Are leaves on a public street “wild”? • When is dominion established? In other words, when has something become exclusive? • Is a baseball in the bleachers wild? Barry Bonds ball – his, stadium’s, fan 1, or fan 2? • Analogies to corporate and real estate “poaching”

9. Ghen v. Rich • How is this different from Pierson? • Should custom play a role? • What does it take to reduce something into exclusive possession and establish dominion at the point that “ownership” has been established complete with the right to exclude? • How does this relate to the capture of mineral resources? • Consider later – is this consistent with your understanding of current law re acquisition by find?

10. Next:A Few Brief Words onFundamental Concepts • Do not worry, you do not need to understand yet what this all means • Revisit this introductory note every now and then throughout the semester and hopefully things will click in • My goal is to keep your mind in a comprehensive state, a coalescent state, as we move through some rather discrete and sometimes seemingly unconnected issues

11. Objectives of Property Law • The law of property at its very basic level seeks to define: • The definitions of OWNERSHIP • The parameters of DOMINION • The internalization of costs with the use of your property (i.e. the control of EXTERNALITIES) • Then initial ASSIGNMENTS of rights and the public or private means to manipulate those assignments to serve societal preferences and to serve human values

12. Priority and Dominion • Competition for priority of property rights will pervade every portion of this course • Who has priority and why and by what instrument? • Dominion, Dominion, Dominion • OWNERSHIP is all about dominion and the scope of it • At the heart is an understanding of the RIGHTS TO EXCLUDE (and the rights to include) • See Dolan v. City of Tigard, 512 U.S. 374, 384 (1994) ("[T]he right to exclude others" is "'one of the most essential sticks in the bundle of rights that are commonly characterized as property' ") (quoting Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979)); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (including "use" as one of the "[p]roperty rights in a physical thing" ).

13. Madison and “The Boxer” • You should learn and know the big picture of the concept of property explained by James Madison • It starts with you. This will become the “Boxer” lecture. • You should learn and know the meaning and relevance of these words and their meaning: assignment, dominion, right to exclude, and right to include. • You should get a foundational understanding of each from the Madison/Boxer lecture. The Madison essay is on TWEN and at the link below: http://press-pubs.uchicago.edu/founders/print_documents/v1ch16s23.html

14. “Sticks In The Bundle” • “Sticks in the Bundle” • As the U.S. Supreme Court has explained: “A common idiom describes property as a ‘bundle of sticks’ -a collection of individual rights which, in certain combinations, constitute property. See B. Cardozo, Paradoxes of Legal Science 129 (1928) (reprint 2000); see also Dickman v. Commissioner, 465 U.S. 330, 336 (1984).” United States v. Craft, 535 U.S. 274 (2002). • Very important to understand! Your “property” is not always and need not always be absolute dominion • What sticks does the party actually OWN – i.e. what does her bundle look like? • Some of the sticks you can give away, some you cannot, and some can be taken from you

15. “Hobbesian Man, Lockean World” • By the end of the semester, you should know and understand “Hobbesian Man, Lockean World” by Professor Richard Epstein – You will read this soon • At its core this idea conceptualizes the bases for private property rights and the necessity of a legal system that provides: • Neutral Enforceability, Avoidance of Self-Help, Predictability, Certainty, Confidence, Stability, Security, Investment, Improvement, Innovation, Consistency, and Rule of Law

16. Property Rights to Rewardand Incentivize Labor • Locke’s labor theory • The use of one’s efforts to reduce or convert something to his own ownership • Incentives – Why would one labor if they could not then own the product of their labor.

17. Sic Utere • You should understand this concept, for it is fundamental to all aspects of property law and its concepts of dominion and the right to exclude: “Sic utere tuo ut non laedas” So to use your own as not to injure another.“First: No man is to deprive another of his property,or disturb him in enjoying it.Secondly, every person is bound to take due care of his own property, so as the neglect thereof may not injure his neighbor. Thirdly, all persons must so use their right, that they donot ... damage their neighbor's property.” Giles Jacob 1729 (A New Law Dictionary)

18. Coase Theorem • By the end of the semester, you should grasp Coase • It is fundamentally about the initial ASSIGNMENT of property rights • Think of it as who gets to tell who what to do See TWEN for: http://lsolum.typepad.com/legal_theory_lexicon/2003/09/legal_theory_le_1.html and http://www.sfu.ca/~allen/CoaseJLE1960.pdf

19. A View From the Cathedral • By the end of the semester, you should grasp Calabresi & Malamed • The distinction between property rules, liability rules, and inalienability rules shapes the concept of dominion • And, it relates to the choice of remedy – particularly between injunctions and damages • Consider how these categories affect all of the topics studied • See TWEN for article

20. Cautionary Note • The historical and philosophical readings matter. Do not read them as archaic or irrelevant • Instead ask yourself how they contribute to where we are today • Sometimes this will require revisiting them after you learn more. We cannot know how we arrived to today if we don’t understand the voyage • My advice is to focus on WHY the older precedents helped form current law • Lastly, READ the footnotes in your text