Defn of property; Justifications

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Property Test Notes

Professor Fried – Spring 1999
Defn of property; Justifications
Blackstone’s traditional view of property – dominion over things

Modern viewrealist view; interests can be divided

Basic ownership rights

  1. to possess

  2. to use

  3. to transfer

  4. to exclude

Never absolute

Conflicting interests among owners

Autonomy/personality theory – property ownership is linked to one’s sense of self

Utilitarian – property ownership maximizes social welfare; gives people incentive;

people will negotiate with each other to produce the best outcome for


Problem – transactions costs prevent this; utility value of $ - people value $

differently depending on how much they have – makes bargaining hard

for poorer people

Laboryou put labor into it, it becomes yours; whoever gave the thing value has a

right to it. (Locke)

Law of accession – you take something and contribute a lot to it, you

probably get it – then you’d just have to give the owner the value of the original thing

Locke – sacrifice theory – I worked hard to get it so I deserve it)

Essentialist view – what you put your labor into becomes part of you

Problem – if resources are scarce, Locke’s idea that private property doesn’t

infringe on the rights of others doesn’t hold when resources are scarce

(always); If the ownership right didn’t infringe on anyone else’s rights,

the stuff would be so abundant, no one would care about owning it.

Nozick’s response – If future generations aren’t left worse off – no

conflicting interests because private ownership increases the

value for future generations

Will – Who wants it the most gets it (I took it because I wanted it)

Efficiency – private owners use property most efficiently

Certaintyabsolute, recognized rules reduce conflict (like in 1st possession rule)

Eccentricity – Reich – private property allows/protects individuality

Hardin - Tragedy of the commons – common land gets overused because each person

has an incentive to use it more to benefit themselves and externalizes

the cost to others

Demsetz – Private property creates

  1. optimal use of property in owner’s generation (has to bear the costs of overuse)

  2. owner has incentive to use land in a sustainable way (to sell it later or pass it on)

  3. optimal use of property generally (b/c of transactions costs of negotiating with a group of communal owners to do anything)

Unowned Land
1st Discovery Rule – you discover, you get sole right to take it, build on it (possession

perfects title – if not, adverse possession possible)

(Johnson v. M’Intosh)

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