Good_Property - Property Krier `07 Property Outline 2004...

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Property – Krier ’07 Christopher Page Property Outline 2004 Chapter 1: First Possession: Acquisition of Property by Discovery, Capture, and Creation 1. 19-26 Acquisition by Capture Pierson v. Post [1805 – NY] (p.19-23) Post (Π – sportsman) and Pierson (Δ – hunter). Post was hunting a fox on wild land, and Pierson, aware of Post’s pursuit, killed the fox and carried it away. P. sues because he claims that his chase gave him a possessory interest in the fox, and that it was his property. Key Concepts: Want to promote capture of foxes. A fox is an animal ferae naturae, and such property is acquired by occupancy only. Majority (Thompkins): Rule: Because the land owner was not party to the suit, the court ruled on the basis of occupancy, which it defined from precedents as including physical possession and constructive possession (mortal wounding and continued chase). Court applies the Rule of Capture. Held: Pierson wins because he was the first to capture (and thus possess) the fox. Post was just pursuing him. If he had wounded it or mortally wounded it, things would have been different. Rationale: This is a rule of first in time. Ownership from a state of nature depends on who possessed it first. Societal goal of killing foxes. Transformation of Common Property into Private Property. ‘First in Time’ as the dominant rule. Rule of Capture as leading to 1) overinvestment in technological means of capture; 2) depletion of common resource => Collective Action Problem. o Mode of Logic Formalist approach (doctrinal), which is based on ancient authority rather than logic. Judges did not make law, they found it. But also instrumentalist in that promoted peace and order and certainty. It was easier to figure out who owned the fox if the rule was whoever caught it. o Stated objectives Possession is defined as: depriving of natural liberty, mortal wounding, or trapping Certainty and “peace and order” is reason for majority decision Claims administrative ease – sight or pursuit possession would increase litigation o Consequences : Promotes catching and increases efficiency at catching. What is good about first in time? Efficiency – getting the most output from a given level of input. Max. the value of production. (Has little to do with the fairness of distribution. Distribution – who gets goods of what value.) Also good because if the person who captures the fox isn’t the person who values it the most, he can sell it—and therefore still maximize value. (Problems? Transaction costs.) Krier : Rule of capture promotes hunting and possibly overinvestment in new technology to kill before anyone can get there, promotes consumption and overinvestment because foxes are owned as common property. Dissent (Livingston) o Logic: Functional or Instrumental approach (consequences – what do we want to promote), dismissing the doctrinal analysis of the majority. Functional analysis is aware of social consequences, and take those into account in their rulings.
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