Vangilder Property Outline- Collins

Vangilder Property Outline- Collins - PROPERTY OUTLINE Prof...

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PROPERTY OUTLINE VanGilder 1 Prof. Collins Theories A. Demsetz’s theory of Externalities 1. Failure to consider full range of effects when making a decision about how to use resources because the costs or benefits fall on others 2. Externalities encourage the misuse or inefficient use of resources a. Private ownership and property rights will promote efficient use of resources by encouraging internalization of the external costs associated with communal ownership B. Coase Theorem 1. In the absence of transaction costs it is irrelevant from the stand point of efficiency who is liable/ in possession—resources will be put to efficient use in either event Bundle of Property Rights —Relationships among people with respect to things A. Right to possess B. Right to use C. Right to transfer (the following two conditions are necessary and sufficient) 1. Right to exclude a. Jacque v. Steenberg Homes (mobile home delivery)—a private landowner’s right to exclude others from his or her land is one of the most essential sticks in the bundle of rights that are commonly characterized as property. Society has an interest in punishing and deterring intentional trespassers so PUNITIVE damages may be awarded b. Limits on the right to exclude 1) State v. Shack (aid to migrant farm workers)—A man’s right in his real property is not absolute. He cannot use his property so as to injure the rights of others, and therefore, cannot bar access to governmental services available to migrant workers 2) No right to exclude card counters from casinos in NJ 3) Civil Rights legislation makes it illegal to exclude certain protected groups 2. Right to include First Possession A. Acquisition by Discovery 1. Johnson v. M’Intosh (private purchase from an Indian Nation)—Indian nations can only sell land with the consent of the U.S. government a. Element of conquest, even though not violent, was that the U.S. legal system was imposed on the Indians without their consent b. Even though the Indian nations may have received more money for their land if the U.S. government allowed competition from private buyers, the Indians probably would have been subjected to violent conquests from settlers and the ordinary access to court was not open to Indians (no legal redress) B. Acquisition by Capture (often applied to wild animals and fugitive resources) 1. Considerations: prior possession, bodily seizure, mortal wounding, hot pursuit, social custom, custom of trade 2. Pierson v. Post (pursuit of fox on uninhabited land)—Mere chase is insufficient to confer rights of first possession; mortal wounding, circumventing, or ensnaring an animal deprives it of its natural liberty and grants property rights under rule of capture (and first possession under law) a. Majority held as it did “for the sake of certainty, and preserving peace and order in society.” First sight or pursuit would be a standard that is too easy to claim and too hard to prove,
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PROPERTY OUTLINE VanGilder 2 Prof. Collins
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