Property_Blais_Fall_2004 - Property Outline Blais Fall 2004...

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Property Outline Blais – Fall 2004 I. The Basis of Property Rights a. Creating Property Rights i. By “Discovery” 1. Can something be property and if so, was it actually your property in the first place? 2. Property law is defined at the state level 3. Property overlaps with several other classes. We have to determine if the dispute is over property and who the property belongs to before we can make any other decision. 4. Johnson v. M’Intosh a. Johnson received land from Piankeshaw Indians-plaintiff, M’Intosh received same land from United States-defendant, Johnson says his chain of title owned land first and seeks ejectment of M’Intosh who says that the Indians did not have a right to sell the land and the chain of title was invalid b. Right to occupy/possess for Indians limited by government right through conquest/forced purchase c. Indians believed they were first in time so they owned the land, but US believe that according to Eurocentric view, they discovered the land first so it is theirs i. The Indians were physically present first, but that does not count as possessing the land because the Indians did not develop and use the land (i.e. for farming) ii. Europeans agree that the right of conquest allows for discovery and they are Christians and Indians were heathens thus they cannot morally own the land d. Marshall makes positive arguments (outcome-based arguments) stating that if these older European rules are not followed then chaos would ensue i. Also makes normative arguments (what would be best) that state that rules were decided by sovereignty and therefore cannot be questioned. This is the rule of property as we know it and it is not for us to question. Property is purely a function of laws e. The courts must continue to instill institutional confidence as far as property is concerned i. Institutional competence – court is not good at making this kind of decision ii. Institutional legitimacy – this is not the role of courts in our society f. Separation of rights within the idea of ownership i. right to sell to US/not Murray ii. right to occupy/possess 1. limited by government right of conquest/forced purchase g. first in time/first in time discovery i. different “acts” count as first in time 5. Main Property Themes a. Chain of title - the rights you have are only as good as the person you got title from b. Relativity of title – I have different rights depending on who my opposition is. My rights depend on who is challenging those rights. (i.e. McIntosh had a superior claim over Johnson, but Johnson would have a superior claim over the Indians who sold him the land) c. Possession as a legal conclusion; not observable fact - What acts justify the reward of a property right? d.
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This note was uploaded on 08/28/2008 for the course LAW 431 taught by Professor Dzienkowski during the Spring '08 term at University of Texas at Austin.

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Property_Blais_Fall_2004 - Property Outline Blais Fall 2004...

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