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Property-Wyman-Sp05 - NYU Law School Property Professor...

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NYU Law School Professor Wyman Property Spring 2005 Part I – Acquiring Property Property Theory (Not separate Syllabus Section) I. Reasons to allocate property rights a. Reducing Transactions costs b. Adding Value c. Personal value to one party d. Promoting trade and investment II. Locke – Labor justification for private property a. Property right arises from investment in the land Self-ownership thesis i. I own my body ii. I own my labor (fruits of my body) iii. I have rights to objects mixed with my labor b. Limitations – don’t own everything labor mixes with i. Spoilage Can only take as much as you can use. Money allows us to overcome this limitation. ii. Sufficiency Limitation (Proviso) claim ownership provided there is enough and as good left in common for other (unclear) 1. In kind limitation – be care what you take and what is left 2. Self-Preservation – take as long as there is enough for neighbors to live c. Why we can have property when not every consented to private property Social contract theory d. Rights based justification e. Shortcomings: i. Doesn’t explain how property first came into being ii. Takes notion of owning body for granted iii. What counts as labor? 1. broad parochial view (servants’ and animals’ appropriations count towards property 2. Discounts labor done by Native Americans ( Johnson ) III. Carol Rose (feminist theory) a. Possession as the Origin of Property – deals with First possession i. Possession as a clear Act – texts and sub-texts 1. text: what we say and do, “clear acts” 2. subtexts: a. Implication that text will be read by relevant audience at appropriate time b. Tacit supposition that there is such as thing as a “clear act,” or unequivocal statement that property is appropriated. ii. 2 purposes Notice to others, rewarding useful labor iii. Possession is a kind of speech – says “This is mine” b. Property Rights are: i. Way of defining our relationships with other people 1. Exclusive property rights define who has what, and allow us to trade instead of wasting time. ii. Way to Mediate conflicts and make possible an even greater satisfaction of desires 1 of 61
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NYU Law School Professor Wyman Property Spring 2005 c. Property now based on neo-classical assumptions i. Desire for scarce resources ii. Mediate conflicts so we can work/trade instead of fight iii. Assumes that people order preferences in certain way more for me is better d. Rose’s Story fills in the gap left by neo-classical econonmists How did people come together to get property rights in the first place? She refers to new characters i. John Does (orders himself over other people but shares before screwing) ii. King of the Mountain (just wants a lot - neoclassical) iii. Malice Aforethought (wants to screw you before anything else) iv. Mom (wants both to get a lot before screwing) v. Portnoy’s Mom (wants to make sure you get a lot, sacrifices self) vi. Hit Me (screws himself/masochists) IV.
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