Cornell Law - Property Outline (Sherwin, Spring 04)

Cornell Law - Property Outline (Sherwin, Spring 04) -...

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Property Outline Sherwin Chapter 1: What IS Property? I. Ownership is limited by many aspects and far from absolute. Owner of a car, for instance, cannot have the right to drive that car without proper license, and cannot even use the car until the taxes on it are paid, or else the car can be taken from her. II. Blackstone, “Commentaries on the Laws of England” (1809): a. “Sole and despotic dominion which one man claims and exercises over the external things of the world, a total exclusion of the rights” of others. III. Carol M. Rose, “Canons of Property Talk, or, Blackstone’s Anxiety” (1998) a. Property rights have always overlapped social claims with individual ones. b. One has to share one’s property rights with rights of neighbors at times. c. People only need property because others might contest control of scarce resources. IV. Bentham, “Theory of Legislation, Principles of the Civil Code” (1864) a. Property is a mere concept, an expectation. b. “Property and law are born together, and die together. Before laws were made there was no property.” V. Felix S. Cohen, “Dialogue on Private Property” (1954) a. Any definition of property must reflect that property merges the rights of government, contract, force and value. A diagram of different parties. VI. Garret Hardin, “The Tragedy of the Commons” (1968) a. Tragedy of the commons: Each person will maximize his own herd while using the public domain; the cost to him is only a fraction of what it will gain him, so that he will increase his herd indefinitely. Every herdsman would act the same way, thus completely destroying the public fields. b. Pollution is a reverse tragedy of the commons. Here it’s putting something into a public domain that didn’t belong there. VII. Notes: possible social control: privatization of the resources; auctioning off the right to use; allocating the right of use or access by lottery. VIII. Posner, “Economic Analysis of Law” (1973)—trading property into the hands that value them the most. IX. State v. Shack (1971): Limits on the Absolute Right of the Owner: government-rendered essential services cannot be refused by owner for people living on his land. a. Facts: D is a nonprofit attorney, and entered upon Tedesco’s land to render care and legal aid to two migrant workers living in housing provided by Tedesco. Tedesco offered to find the injured man and allow Tejeras to help him. Tedesco also offered to find the man needing legal advice and to allow D to consult with him as long as the meeting took place in Tedesco’s office. D refused to comply and entered the land anyway.. Tedesco filed formal complaints for trespass and had them removed by a state trooper. The lower court found both guilty of trespass. Ds appeal, challenging the trespass statute on several constitutional grounds.
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  • Summer '07
  • Law, Land, owner, Prior appropriation water rights, Riparian water rights

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