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PROPERTYNOTES - INTRO 14:53:00 ← Johnson v McIntosh(1823...

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Unformatted text preview: INTRO 06/11/2007 14:53:00 ← Johnson v McIntosh (1823) Supreme Court, Marshall opinion: • 1773/75 = Natives Johnson’s Predecessors*Validity of this grant? • 1795= land went from GB to US (various states) • 1818= US Marshall • 1819= Johnson’s predecessors Johnson ← Who has title? Start w/: Who has possession? ← Johnson is plaintiff bc MacIntosh was in Possession (and assumed to have title) ← Superior title: First in Time (J’s predecessors) and chain of title passed from them. ← Natives’ conveyance to Johnson’s predecessors is invalid. ← ← Rule of DISCOVERY : Nations of Europe- Gives them exclusive rights vis a vis other European nations ← ← Rule of CONQUEST : Discovering European Nation has the exclusive right to acquire property from the native Americans by purchase or conquest. ← ← 2 Titles to the property: • Occupancy - No right to convey title • Dominion – extensive, absolute right to convey title ← Opinion: 2 elements: • The authority is v. well established- grand principles understood in international law. • The instrumental reasoning – the alternative is chaos. ← At best, it’s a weak point because it’s a conclusory assertion. ← ← Locke’s Labor Theory : “Whatsoever then he removes out of the state that nature has provided, and left it in, he has mixed his labor with, and joined to it something that is his own, and thereby makes it his property.” ← ← THEMES IN PROPERTY: • Chain of Title – depends on ancestor’s claims • Relativity of Title – think of property as relationships. Definition of ownership based on this relationship. • Severability of Title – When there is ownership, there is a bundle of rights – don’t need all the “sticks” to own it • Possession is a legal conclusion, not a fact • Some facts count more than others • Sources of Property Rights ← ← Types of Legal Argument: • Authority (custom, precedent, influential thinkers) • Analogy (analogy warranting principle) • Instrumental/Consequential (policy) • Institutional Legitimacy (i.e. Johnson v McIntosh) • Institutional Competence (Polycentric arguments) • Foundational Principles (fairness/labor theory of value/first in time) • Administrative Ease (Evidenciary problems/fewer lawsuits [Rule or Standard]) ← ← Structural Hierarchy of Legal Obligations (Right to Exclude examples) • Fed Constitution (Marsh) <-> Public trust doctrine (Mathews) • Fed statutes -> regulations – civil rights statutes • Federal common law – nonexistent except maybe maritime/admiralty • State constitutions (aaron’s women’s clinic) • State statutes -> regulations (Maguire v Yanke, Uston v Resorts)...
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PROPERTYNOTES - INTRO 14:53:00 ← Johnson v McIntosh(1823...

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