1

Claimants Whalers persons own -------> Martin persons bear -------> Guy who hurts tree persons ------become-> claimant <------------s Powells & Whites Moore Cheney AP Payne Johnson (Illinois & Piankeshaw) Post Harpooners Decoyer Green Peace Sierra Club Mineral King I, we, you, they Tree in GA Defendants Florida, Dr.s Call, Bd of Regents, Golde, Doris Silk, INS Tennessee McIntosh (US > VA > English) Normans, Saxons, Jews, Romans, Celts, Henge builders Pierson Whale Finders Scaver Claimed stuff (legally protected...) rights stuff < stuff can become corneas spleens Info in spleens tie designs news blood, serum, cell line, info encoded in DNA law? (stare d.) NA Continent land in Illinois possess use transfer Method Transference - All - Any Foxes - hard Whales (1800s) easy Whales (2000) harder Ducks - easy Mts, otters, owls, ouzels, apples - weird Horses - neat Pug dogs (MIB) Androids foxes - booty hehe What criteria distinguish persons from stuff? Who determines what criteria? Sources of Law Big N : Law of Nature natural law -Marshalls abstract principles X is right, good, just (in itself, indep. of you) [-x] is wrong, bad, etc So you should do x (no matter what) If you (like &) want x, then to get x, do Y. (eg. newspapers, wild animals, firewood) International law Custom - First Occupancy - unoccupied - occupy Power - alone? effective occupancy Treaty Legislation National law Federal const. statute case law old new reasons? power? theory? State Law const. statute

Stuff >Interest > Rights body intact just say no sell, give take use sell (sale gift inheritance ) ^ can be done inside or outside of your group.

case law old cases new cases: Common Law - Old Qs: cases in books (stare d) New Qs: reason (power) Patrimony

Results/Relief/ Remedies Opinion! (of ct. accounting for what they Injunction (stip; put it did) (e.g. Johnson) back, etc.) Public Opinion Declaration (bad boy, girl, Self definition law, act, etc) See Marbary Fast fish/loose fish Damages (pay - how Self Definition much, for what, why?) [explanatory reasons]

I. Introduction A. What Law School Is Not 1. Prologue on the Socratic Method. Eldridge Cleaver, Soul on Ice (supp 1)
He was a devout catholic and juvi. delinquent. He was in catechism class and the priest asked if anyone present understood the mystery of the Holy Trinity. Eldridges hand shot up and he was shot down with not even the pope understood the godhead. He had been used by the priest trying to make the point that the trinity is not to be taken lightly. It was probably for the best since he was going to use the analogy of 3-in-1 oil.

B. What Law is Not 1. M. Riesman, Law from the Policy Perspective (supp 2-4)
Sheikh Ibrahim of Darab is sending his son, Fuad, to college in the US and wants us to tell him how Theta fraternities work. He wouldnt be satisfied if we just compiled a list of by-laws and officers of Theta, just as we wouldnt be satisfied if we asked how Darab works and he sent us the Koran. The living law. Ex) the rules say that cheating is grounds for expulsion, yet they have a drawer of old papers for sharing and the only kid who ratted out a cheater was expelled from the frat. Also, a 1926 rule said girls couldnt be there past 9pm or they had to pay $10. They kept the rule and guys always pay the shack fee and throw a Devils Ball with the proceeds. Supplying Ibrahim with a list of expectations, how norms are created, sustained over time, challenged, reviewed, and applied would be the best option. Sometimes Theta law and University law contradict, but that is normal in a society. C. What Law is Like - Legal realism - Law = system of [rational?] social order backed by sanctions.

1. W. H. Auden, Law Like Love (supp 4a-b)

Poem showing that different people use law to describe whatever they want it to, to serve their purposes. They end by saying its like love - confusing, untamable, flighty, sometimes bad.

D. Why Property is the Central Course in Your Law School Education 1. Epstein, Takings (supp 5)
It seems as if the law seems to only apply to the parties involved, but there is always a societal element.

E. What Property Is and Why it Matters - Bundle of Twigs. Property is legally protected interest in stuff. Property isnt the
stuff or the legal title of entitlement. It is the bundle of entitlements (or rights), you can have some and not all. Nobody really

owns anything, you just have more or less twigs in your bundle. You can divy up your twigs. Each twig is a legally protected interest and you never have all of the twigs for an item. (See bottom of page 89, in 5th edition casebook).

1. Preface to 1st ed. of casebook (xxxv)

Property is a modern subject with antiquated origins. It has been changed, but not revolutionized. To study it is to study social history, relations, and reform. (1981)

2. Preface to 4th ed. of casebook (xxxiii)

Everything holds true from the first edition preface today. (1997)

3. State v. Powell, The Invasion of the Body Snatchers (supp 6-11)

Procedure - The parents of J. White (dead) and A. Powell (dead) sued separately against many ) s alleging the wrongful removal of their sons corneas and seeking a judgement declaring the statutes that allowed it unconstitutional. Their actions were consolidated and came before the trial J on motions for summary judgement. The trial J found 732.9185 to be constitutional, but 732.9185 was unconstitutional. Some ) s appealed. The DCA certified and gave it directly to the FL Supr. Ct. Facts - White drowned accidently in a pool and Powell died in a car accident. Autopsies were performed on both bodies, during which their corneas were removed. The MEs did so w/o giving notice or obtaining consent from the parents. Corneal transplants are an highly effective way of restoring sight to the functionally blind, but the tissue cant be removed (isnt viable) 10+ hrs after death. Issue - Is 732.9185 of the FL statutes, which authorizes medical examiners to remove corneal tissue from decedents during statutorily required autopsies, unconstitutional? Holding - No, 732.9185 is constitutional because it rationally promotes the permissible state objective of restoring sight to the blind. Order reversed, remanded with directions to enter judgement consistent with this opinion. Reasoning - They also took into account the increasing number of old people needing these transplants as well as the importance of the transplants in babies during the critical few months of life when the brain learns to see. Also that the quality of tissue from organ donors (many are old when they die and dont have good corneas). The MEs also dont take everyones corneas, but only when there is a request from the eye bank. There are no property rights in the body to the next of kin, nor do the dead have any constitutional privacy rights to be infringed upon. The laws regarding the removal of human tissues for transplantation implicate moral, ethical, theological, philosophical, and economic concerns which do not readily lend themselves to analysis w/in a trad. legal framework. Applying constitutional standards of review to 732.9185 obscures the fact that at the heart of the issue lies a policy question which calls for a delicate balancing of societal needs and individual concerns more appropriately accomplished by the legislature. Class Notes - Equal Protection (none stated for the parents of dead boys), Due Process (the statute is not stupid, the ends and means are justified), so is there a property right? This was focused on in the Powell case. The Dr.s interest is a desire for transplants and their right is the statute. Ps have an interest in stuff claimed, need to see if they have a right to it. The ct. says that the ct. mistakenly called it a property right in Dunahoo. But they dont care if its a property right or not, they just want whatever it was that they had in that case. The ct. says there is no property right only a [definition of property right]. Ct. gets it wrong that economics arent important. It doesnt matter who has the bundle of twigs (owns the stuff) to start with, because the people w/ $$ will end up w/it. The majority and the dissent

says there are no twigs, no property interests, or rights to be protected, but they are wrong. Its ok to say they dont have that right, fine, but dont say I dont have a property interest.

4. Moore v. Regents (pg. 66-79)

Procedure - Moore sued the Drs and Regents of the medical center of UCLA. The ) s filed a motion to dismiss the conversion cause of action and the trial ct. dismissed. The ct. of appeal reversed, finding Moore had adequate cause for conversion. The ) s petitioned the California Supreme Ct to review the ct. of appeals judgement. Facts - Moore () sought treatment for leukemia at ) s hospital. Moore was told that his condition was life threatening and that his spleen should be removed. They did not tell Moore that his cells were unique and that access to them was of great scientific and commercial value. Moore consented to the splenectomy and 7 years of follow-up tests and procedures that he believed were important to his treatment. His spleen was retained for research w/o his knowledge or consent. At some point he was informed that his bodily substances were being used for research, but he was not told of the value of the ) s financial interest in it. The ) s established a cell line for Moores cells, named it after him, patented it, and made lots of money off of it, with the potential of making billions. Moore sued for conversion, lack of informed consent, breach of fiduciary duty, distress, negligent misrep., etc. Conversion is the wrongful exercise of ownership rights over the personal property of another and Moore claims this since his blood, bodily substances, and cell line are his personal property. He states that the ) s repeatedly failed to disclose the extent of his research and economic interests, before obtaining consent to the medical procedures. Moore claims he used, or directed the use of his cells after they were removed, so he must have a proprietary interest in each of the products that might ever be created from his cells or the cell line. Issue - Did Moore state a cause of action against the ) s for using his cells in potentially lucrative medical research w/o his permission? Holding - Partly yes, partly no. The complaint states a cause of action for breach of the physicians disclosure obligations (such as breach of fiduciary duty or lack of informed consent), but not for conversion. Reasoning - Failure to disclose the extent of research and economic interests, before obtaining consent to the medical procedures, states a case for breach of fiduciary duty or the performance of medical procedures w/o first having obtained the patients informed consent. Moore is asking the ct. to impose a tort duty on scientists to investigate the consensual pedigree of each human cell sample used in research. To establish conversion, must establish an actual interference with his ownership or right of possession. Where neither has title to the property alleged to have been converted, nor possession thereof, he cannot maintain an action of conversion. It is specialized statutes, not the law of conversion, to which cts ordinarily should and do look for guidance on the disposition of human biological materials. Only property can be converted. The stuff they made from his cells is not unique to him, but is the same in all humans, so he has no right to the patented material. 3 reasons conversion is inappropriate: fair balancing of policy considerations, problems in this area are better suited to legislative resolution, and the tort of conversion isnt necessary to protect patients rights. Dissent - Agrees w/the ct. of appeal - property is broad and abstract. Class Notes - Atkinson thinks that the guy got defrauded out of his spleen, so he should be able to only go after the Dr and not the researchers (conversion) but the ct. doesnt see it that way.

5. Notes and Questions: Property Rights in Bodies (pg. 80-86)

A recognition of a property right in your cells would also give people a right to sell their tissues for profit which would give rise to other difficulties. Property is not material things, but rights or relationships among people with respect to things. Some of the twigs are called: right to possess, use, exclude, transfer. A dialogue on the pros and cons of selling organs.

II. Sometimes You Can Get What You Want (Without Paying) - Acquisition of Property Other Than by Voluntary Transfer (pg. 1-3) A. Getting All Sorts of Things That Nobody (Like You) Ever Had 1. Creation - Getting Property the Old Fashioned Way (pg. 59-60)
A foreign observer said that this is part of our common law: If we create something then it most certainly is ours alone to exploit. But, the trouble is that the fruits of our labor are not always ours alone to exploit.

a. Cheney Brothers v. Doris Silk and Notes (pg. 60-66)

Procedure - Doris filed suit against Cheney for injuries due to Cheney copying one of their designs. Facts - Doris () makes silks in many new patterns each season. About a fifth of their patterns catch the public fancy. ) copied one of the popular designs one season and sold it at a cheaper price. ) claims they did not know it was the s design, but the ct. decided to charge the ) with knowledge. Issue - Does Doris Silk have a claim against Cheney Brothers when they copied the s design? Holding - No, there are no rules of law stating the Cheney Brothers couldnt copy a design. The order is affirmed, and the bill may be dismissed if the ) so desires. Reasoning - A mans property is limited to the chattels which embody his invention. Others may imitate these at their pleasure. Class Notes - LH says they can do anything short of taking the ties themselves. They can copy down the designs all they want. Unowned stuff he says is out there for anyone to take. Power triumphed over reason.

b. International News Service v. Associated Press (supp 12-18)

Procedure - AP filed suit against INS for unfair competition. The District Ct. granted AP a preliminary injunction, but refused to restrain the ) s practices entirely, and decided to wait until the outcome of the appeal. The Ct. of Appeals modified and sustained (supported) the injunction. Facts - Both and ) are competing gatherers and distributors of the daily news to many states in the US. AP gathers news from all over the world and posts it on bulletin boards for easy dissemination to their employees. The ) was taking the news meant for the s employees off of the bulletin boards and from the s early editions on the east coast to put into their own newspapers, simultaneously or earlier than the .The ) s claim that the s have no right to control the information once it is available to the public, and it becomes common possession of all to whom it is accessible. AP claims that knowledge so acquired (news) is property, because it costs money and labor to produce and because it has value, for those who dont have it are ready to pay for it. s news matter is not copyrighted. Issue - Can the ) lawfully be restrained from appropriating news taken from bulletins issued by or from their newspapers, for the purpose of selling it to ) s clients?

Holding - Yes, the ) should be restrained because the taking of such news is unfair trade. The decree of the Circuit Ct of Appeals is affirmed. Reasoning - The parties are competitors, and where the rights or privileges of the one are liable to conflict with those of the other, each party is under a duty so to conduct its own business as not unnecessarily or unfairly to injure that of the other. This court believes that the news of current events is common property, but the business of making it known to the world is different. The ) shows a habitual failure to give credit to the for that which is taken, and that is significant to the unfair competition claim. Class Notes - AP claims it is property because they put work into its capture. Your right is to make just enough money to make more news. Goods in their store and they can lock the door. But that didnt work for Pitney, who wants them to leave their door open for other people to take your stuff and sell it after a certain amount of time. They werent protecting APs right in the news because it was theirs, but because thats the way well get the most news cheaply. Reaping where you havent sown. Yes, AP, its yours, but only to the extent nec. to get what we want done. Pitney knew who should win because he found out a lot about the news business and what it took to keep it going. 1) Cheney v. Doris & INS v. AP - Chronological and hierarchical order is important. AP came first and came from the Supreme Ct. Cheney came later from a district court. Stare decisis. IN AP, the copiers lose, and in Cheney, the copiers win. So if you see both, which do you buy, the cheaper one. Knockoff ties and news are cheaper, even though they are the same. They say that the pirating will cause the industry to collapse the same as the news industry would. Whats the point of trying? LH must have some ties, but he probably doesnt care about the issue of ties. But he reads the paper and cares about getting it cheap. If the gain of protecting the interest is greater than the cost or hassle, well protect it.

c. Perspectives on Private Property (supp 19-23)

First occupancy theory was dumb because it leads to the whole world eventually being owned privately with nothing left. Lockes labor theory - if you remove something out of nature, mix your labor with it, and join to it something of your own, it thereby becomes your property. said that when there is unowned stuff out there, and you mix it with your own labor, it becomes your stuff. A new unowned place is yours -or- it belongs to the public. Just because it doesnt belong to any particular person, doesnt mean that no one at all owns it. Get it straight w/humankind before you take it as yours. Where did you get your tools and ideas. Its not your stuff, its stuff were letting you use as long as it suits us. Like parents and their kids stuff. Is labor your own....not if you have a navel. Pulling yourself up by your bootstraps...whered you get the boots, who taught you to tie them, did you invent the language youre explaining it in? You have to mix your labor enough to kill an animal in Pierson. Different with the horses. INS - mix your labor with the news you get some property interest in it. Labor-desert theory - when people deserve a benefit for their labor and nothing but property in the things produced will do, then they deserve property in those things. Law of accession - When A takes Bs property and adds labor, making its value increase, who then owns it? Depends how much the value increased. If its a lot then A keeps it and has to pay B what it was worth unchanged sometimes. Personality theory of Hegel and Kant - occupancy is the means by which individuals could translate their abstract wills in

the external world. You cant take what is already the property of another... what?? Hes mixing up what you can physically do and what you are supposed to do. Personality theory explains everything. A person must translate his freedom into an external sphere in order to exist as Idea. Utilitarian theory by Hume - dominant view today; private ownership and its laws have no other origin or justification than utility. Men obey them b/c its to their common interest to do so. Critical Legal Studies - law is never separate from politics and cant be objective or politically neutral.

d. Solzhenitsyn, One Day in the Life of Ivan Denisovich (supp 24-25)

Prisoners collected bits of firewood while they were out working, and some of them were frisked for it on their way back in at night. It worked for everyone, as long as the guards let some of them through with wood they would keep collecting it. That way the guards got some too. Incentive plan works better than slave labor. If you want people to use their stuff in a socially productive way, you have to let them keep some of their stuff. Ties in w/ the utilitarian notion, make people productive, they need a constant, protected interest in stuff. You need to honor contracts and protect property.

e. Payne v. Tennessee (supp 26-30)

Procedure - This came from an appeal from the Supreme Ct. of Tennessees judgement overruling Booth and Gathers, which stated that it was unconstitutional for victim impact evidence be introduced during the penalty phase of a capital trial. Its now in front of the US Supreme Ct. Facts Issue - Should the state permit the admission of victim impact evidence and prosecutorial argument during death penalty sentencing hearings? Holding - Yes, Booth and Gathers are now overruled. Reasoning - They dont want to overrule Booth and Gathers immediately because stare decisis promotes evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decision, and contributes to the actual and perceived integrity of the judicial process. However, those cases were decided on a narrow margin to begin with and have been debated and sometimes not followed ever since, so they are going to overrule them now - it imposed a constitutional rule that had no basis in constitutional text, historical practice, or logic. Adherence to a law that goes contrary to public sense of justice diminishes respect for the courts and law. Dissent - Not following stare decisis doesnt make sense here because the only thing that has changed since those 5-4 decisions is the personnel of this ct. Now it seems that any close decision can be overruled when the Js change. Class Notes - Earlier cases (this is 91) said that victim impact statements were over the top, violated the 8th amendment, cruel and unusual punishment. It would skew the jurys ideas on what to do with the bad guy. Marshall dissents. Every case becomes a new case, clog the dockets with cases we dont know if they should be there. Sometimes a law is just too obscure, and it cant be followed. Stare decisis is supposed to stop chaos, and if it causes its own chaos, it should be changed. Strong dissent, narrow margins - allow for overrule. The Meta Move - moving beyond. Rehnquist might be changing the law about changing the law. He has found a politically invisible group and used it to rewrite law about changing the law. This case is about affirmative

action, victims rights, right to choose, a whole bunch of things where the govt just made laws that they now want to reverse. The courts have to be able to say their Opinion is Reason and not Power.

2. Acquisition of Land Masses and Their Appurtenances a. McDougal et al, Claims Relating to the Modalities of Establishing Exclusive Appropriation (supp 47-56)
Controlling future space resources will probably be more akin to the appropriation of the polar areas and oceanic islands than to the colonization of populated areas. Lately, symbolic acts are insufficient to establish exclusive appropriation of large land masses. What will constitute effective occupation then? Shown as needed when England kept taking effective occupation of lands annexed by Spain, France, etc. Some things that have worked: stationing of soldiers, forts, maintenance of public order, warships, post offices, postage stamps, granting licenses for exploiting resources, granting land rights, making treaties w/ native populations, organizing local govt., exploration and mapping, educating natives, hospitals, trading with natives, tilling, bringing in people, roads and harbors. If you arent there enough and arent willing to fight a war, anyone else can take it.

b. Note on Myers S. McDougal (pg. 717-718, n.24)

He was outraged with the failure to reform property doctrines to serve modern needs. His imaginative writings greatly influence the way property law is taught.

c. Johnson v. MIntosh (pg. 3-19)

The lower ct. found for the ) and appealed to this ct. Facts - Johnson claimed he got the transfer from the Indians, and MIntosh said he got it from the US govt. Issue - Can a title gained from land grants by chiefs of Indian tribes be recognized by the courts of the US? Holding - No. The s do not exhibit a title which can be sustained in the Cts of the US; Judgment affirmed. Reasoning - All the nations of Europe who acquired territory here recognized in others, the exclusive right to appropriate the lands occupied by the Indians and grant it out to people. The exclusive right to purchase from the Indians resided in the US govt. Class Notes -. The Indians get the bundle of twigs that say they can possess, use, occupy, and transfer it (with a bunch of conditions). Indian title can only be extinguished by our nation, not by redneck farmers, states, etc. Andrew Jackson said, ok, now try to enforce it. Jackson rounded up the Cherokee and shipped them West. Andrew Jackson was evil and couldnt have come from SC. Recognition by other nations is critical. You gain continents by effective occupation. Improve it somehow. Having children there counts. Kill people and collect taxes. How much is enough? Enough so other people cant come in, sorry no room for you. If you try to interfere with the land we occupy, well shoot you. Those who have the most force can take anything. Law as a restraint on force ceases to exist. Do stuff on the land that looks like the country you came from. Title by conquest, you dont kill them all, you just take their stuff. First Occupancy falls apart when force is involved. Power or reason? We are enjoying America because we came up with the A-bomb first and Osama doesnt have enough Anthrax yet. The case said that they didnt have the power to transfer land outside of their tribe, but they meant only to the US federal govt. It can upset people w/in and outside of your regime (fame and

power injuries). You should be able to trace your land back to its original owner. Who is the real owner of the twigs, who can transfer it?

d. W. Bradford, Of Plymouth Plantation (supp 57)

The pilgrims showed up in a desolate country with nothing to welcome them but wild beasts and wild men. They only survived because of god.

e. Speech of Red Jacket (supp 58-59)

The white men fled to this country to enjoy their religion. They were greeted as friends and a small seat was granted to them. More came and we didnt fear them and called them brothers. Finally we realized they wanted the country, wars were fought, and many died. Now that you have it you want to force your religion on us too. You say theres only one religion and one way to practice it, then why are you always fighting about it when you all have the book? We too have a religion handed down from our forefathers, but we dont quarrel about it. We hear you are preaching to the white people who are here now; we will wait and see what effect it has on them. If we see that it does them good, makes them honest, and less disposed to cheat us, we will then consider what youve said.

f. G. Wills, Goodbye Columbus (supp 60)

Columbus conquest is now being seen as an opportunity for Christian to sin against their own religion than to share it with others.

g. Deuteronomy 20: 10-20, 21:10-14 (supp 61)

When you go to a city to fight it: if it doesnt want to fight, just force the people to work for you. If they want to fight, kill all the men and take the women, kids, cattle etc as booty. In a war against a non-Palestine city just kill everything that breathes and dont let them teach you their ways.

h. McDougal et al, Potential Interaction with Advanced Forms of Non-Earth Life (supp 62-69)
A strategy of minimum interference is correctly applied when it steers between total absence of pressure for change and a demoralizing tempo of innovation. If not as advanced as us, we wont hesitate to colonize sparsely populated areas or putting a few colonists into more populated areas to bring them up to speed. A more advanced culture would look to us in the same way. They might choose to isolate us until we are up to speed. During that probation our leaders will have all sorts of trouble keeping the peace here. They may take our kids away to bring them up their way.

3. Rule of Capture a. The Basis: Whos chasing Whats 1) Pierson v. Post (pg. 19-25)
Procedure - P sued D. Ct ruled in favor of P. D appealed. Facts - Post and his dogs were chasing a wild fox on unclaimed land. Pierson saw this and caught, killed, and carried off that same fox. Issue - Did Post, by pursuit of his hounds, acquire a right to, or property in, the fox, as will sustain an action against Pierson for killing and taking him away? Holding - No, Pierson should keep the fox he killed. Reversed.

Rules - Bynkershoek & Puffendorf: Occupancy of wild animals is the actual corporal possession of them. Barbeyrac: Actual bodily seizure is not, in all cases, necessary to constitute possession of wild animals. Reasoning Dissent Class Notes - If you want X, then to get X do Y. In Post no one argued that X was a good thing, just how do you do Y. Which approach to interpret the rule of capture is the one that best achieves the end. Tompkins was into what the learned thought, and Livingston wanted to let the sportsman to decide. The right answer doesnt matter much, just encouraging chasing. 2)

Ghen v. Rich (pg. 26-30)

Procedure - Ps sued Ds to recover the value of a whale. Facts - P fisherman fired a bomb-lance at a fin-back whale, but their tag didnt stick as it normally does. The whales sink immediately and then pop up a few days later and wash ashore. Usually people find them and alert the fisherman who are indicated on the tag for a finders fee. This whale was found and sold to the Ds who tried out the oil for themselves. Issue - Is a whale still property of the people who originally killed it when it washes ashore several days later without a tag that says it belongs to them? Holding - Yes, the customary usage that the P claims is correct. The D must pay them the value of the oil obtained less the cost of preparing it for the market, Reasoning - The usage of the bomb-lance should have alerted the Ds that the whale belonged to someone else. No one would engage in this useful trade if the fruits of his labor could be appropriated by any chance finder. The finders fee thing works well customarily in the industry which has grown up under it. The Ps did everything they could to secure it. Notes After - Moby Dick: What was American in 1492 but a Loose-Fish, in which Columbus struck the Spanish standard by way of waifing it for his royal master and mistress? and What is the great globe itself but a Loose-Fish? And what are you, reader, but a Loose-Fish and a Fast-Fish? Green Peace putting their boats in between whalers and the whales. The whalers sue like the decoyer did. You maliciously interfered with business. Now whaling is not important, more like foxhunting. More money is being made in whale sightseeing than in whaling. Class Notes - You cant just take a rule of law and apply it to a case. Take the rule from Pierson v. Post and apply it to Ghen v. Rich. The finders said I dont think so, wild stuff, no one owned it, we rendered it into oil, it was our whale. The harpooners actually killed the whale and the Finders just scooped it up. The harpoons deprived it of its natural liberty. Puffendorf in Pierson says that a wild beast mortally wounded, or greatly maimed, cant be fairly intercepted by another, whilst the pursuit continues. But here it wasnt really an interception.

3) Keeble v. Hickeringill (pg. 30-36)

Procedure Facts -

Issue Holding Reasoning Class Notes - It would be ok for Hickeringill to be engaged in a similar occupation as Keeble, he just cant maliciously interfere with Keebles occupation. Well, then what about the whale case?? If you award interferers you will have no newspapers and no light to read them by. The ct. in the whale case says that fin-backs arent like other whales, they always go to the bottom and they always go somewhere else, and the only way to reduce them to lamp oil is the way they do it. Pierson was the other way, but no ones trade was relying upon it. No one cares about neckties or foxes, but they dont play that game with lamp oil and newspapers. If an interloper got to keep foxes, it wouldnt end the foxhunting game, probably wouldnt even discourage them. Even if whale hunting wasnt important for light, the hunting would end. I want my client to have money even if the entire industry collapses. Need to come up with a rule that encourages the industry without deciding who owns the animal. You decide who owns the animal by making a rule that encourages the industry. Encouragement of competition. If you are doing something for the pure spite of it, or if it only makes your client happy and the rest of the world unhappy, it doesnt matter how much black letter law is on your side, the law will probably change if it has to, to keep that client from winning.

4) Llewelyn and Hoebel, The Cheyenne Way (supp 73)

When the group was out traveling, and not on a horse-taking raid, whoever spotted the tracks of a stray horse laid claim to it. But, when two people saw the same horses from different directions there was a dispute and one killed the horses so the other couldnt get them. But the killer said that if the other guy had been willing to split them that wouldve been ok. If a horse was stolen, but recovered in pursuit before the getaway was complete, it went back to the original owner. If the theft was successful, the title passed to the enemy. However, a former owner could plead a case of having a personal bond with a horse and that was never refused. In order to be a real man among the Cheyenne and not be a mere woman, you needed to have a horse.

b. What for Whom and for what 1) Sierra Club v. Morton (Douglas dissent) (supp 74-77)
Procedure - Sierra club sued the secretary of the interior for injunction to restrain federal officials from approving an extensive skiing development in a national forest. The district ct. granted a temp. injunction. The ct. of appeals reversed, holding that the club lacked standing and had not shown irreparable injury. Facts - Sierra Club maintained that the project would adversely change the areas aesthetics and ecology. Issue & Holding - A person has standing to seek judicial review under the AP Act only if he can show that he himself has suffered or will suffer injury, whether economic or otherwise. In this case, where petitioners asserted no individualized harm to itself or its members, it lacked standing to maintain the action. Affirmed.

Dissent - Douglas thinks that there should be a federal rule allowing issues to be litigated in the name of inanimate objects about to be despoiled, etc. Boats and corporations can sue, why not meadows and air? The river would speak for the ecological unit of life that is part of it, etc. It would be like appointing a guardian ad litem. Class Notes - The hills are alive with the sound of legal claims. Frutarianism. Moving stuff from the stuff claimed category to the category.

2) Notes on Standing (supp 78)

The standing to sue, in regards to Douglas dissent. Poem about it. ...How can I rest beneath a tree If it may soon be suing me?

3) Leon County Tree Ordinance (supp 79-81)

Why trees are important to us. Objectives hoped to be achieved by the ordinance. List of protected canopy roads. What you cant do to or around the trees. Description of a protected tree.

4) Deuteronomy 20:19-20 (Another Tree Ordinance) (supp 61)

When youre fighting for a long time, you can only cut down non-fruit bearing trees.

5) Deuteronomy 22:6-7 (More Early Environmental Law) (supp 82)

If you come across a nest of eggs or young with the mother present, you can only eat the eggs and young. Similar to Ivans thing. The mother left alone will produce more eggs, but if you eat the mom then the chicks will die. What do the birds think about this? Its not recorded.

c. From Who to What, and back 1) P. Williams, Alchemical Notes (supp 70-71)
He ran across papers listing his great-great-grandmother along with other evidence of wealth in a census. Compares her to the fox in Pierson, never the owner, rights filtered down to them not vested in them.

2) Deuteronomy 21:10-14 (Another rule of capture) (supp 61)

How to acquire foxes...foxy ladies? When you see a beautiful woman among your captives, you can marry her (take her home, shave her head, cut her nails, etc). If you dont like her then let her go, but dont treat her as a slave and sell her since youve humiliated her.

3) Somerset v. Stewart (supp 31) Procedure Facts Issue Holding Reasoning Class Notes - Stewart had a slave in VA (Somerset), sent him w/Knowles who went ashore in
England and didnt come back. Someone held him in the hold of Captain Knowles ship to send him to Jamaica to be sold. Stewart had been a slave belonging to Somerset. Habeas corpus on behalf of Somerset. If they didnt believe in slavery in land, then why this case? We have no idea what the

holding is. Narrowly read, Knowles couldnt be sent from there to be sold in Jamaica, but probably wasnt set free. Slavery is power over reason, no justification for it in natural law. Natural Law - a physical law of nature; a philosophical system of legal and moral principles purportedly deriving from a universalized conception of human nature or divine justice rather than from legislative or judicial action moral law embodied in principles of right and wrong.

4) R. Cover, Justice Accused (supp 32-42) 5) Robin v. Hardaway (supp 43-46) Procedure Facts Issue Holding Reasoning Class Notes - can there be Indian slaves? No. Abolished by VA statute. At some point Indians had
been kept as slaves, could their descendants be?

6) Star Trek, The Next Generation, The Case of Lt. Data (film)
Judge Phillipa didnt want to be an enslaver. 3 part test for Mattox in it, intelligence, selfawareness, consciousness - sentient being, not stuff, not the object of property but the subject of property. If we use that - its over inclusive. A lot of animals could fit, should we exclude them? She didnt apply that test. Dogs can show a sense of loss just as Data did. Geese mate for life. Thats not nothing.

7) Henry Louis Gates, Race, Writing, and Difference (supp 82a-b)

The legal prohibition against the literacy-training of slaves. If one can establish that the Negro intellect is fully equal to that of the white race, you not only take away the best argument for keeping him in subjection, but you take away the possibility of doing so. Phillis Wheatleys book of poetry and her trial to get it published. Slave of a prominent Boston family. They just didnt have plantation slavery in the North. It was illegal in SC to teach black people to read and write, but they were also saying that it was impossible. They probably wanted to prove she wrote them because they were abolitionists.

8) Melville, Moby Dick (supp 72)

A fast-fish belongs to the party fast to it. A loose-fish is fair game for anybody who can soonest catch. Case of some whalers who had managed to harpoon a whale but where tossed overboard. The Ds came up in front of them and killed and took the whale, along with their harpoon, line, and boat which was still attached to the whale. The Ps sued to recover the value of all of it. The J awarded the boat to the Ps b/c they had abandoned it to save their lives. But the whale, harpoons, and line belonged to the Ds. The whale because it was a loose-fish, the harpoons and line because the fish made off with them and the fish acquired a property in those articles. He then makes other loose and fast fish analogies, like slaves and poor people being fast fish to society. The globe and I are loose-fish.

d. From Ours to Mine and Yours

1) The Rule of Capture and Other Fugitive Resources (pg. 36-40)

Oil, gas, and water are often governed under the same rules as wild animals. If its under more than one persons or countrys land it belongs to whoever captures it, until its gone, w/o regard for his neighbors. Hammonds case has been criticized and rejected a lot. The Central Kentucky Natural Gas Company is next to her house. She has a root cellar. The CKNG gets out crude oil. Unbeknownst to her, the CKNG sucked all of the oil and natural gas from underneath both of their properties. Now they are pumping gas back in and she finds out. She doesnt want them putting the gas in her cellar, in a storage tank on her land, or in the caverns under there already. The ct.s would agree w/ the tank and her cellar, but they wont let her have a claim to that underground cavern. Their gas is trespassing in her underground cavern. They say no, they say its her gas now. Its easier to put in storage under her land than to pay her to cross her land to put it in a tank or to fly over it to put it in a tank. Ms. Hammonds can just suck the unowned gas out if she wants it. But if planes start to fly so low they bother her chickens, she can sue them. If the govt wants anything of hers they can take it, they just have to pay her for it. You cant make me worse off, you can only make others better off. Problem w/ the rule of capture. Saddam says that the Emir is selling the oil too fast. The opinion says its not their oil and free for the taking, but later this Hammonds case was reversed, that the oil/gas belongs to CKNG. Shell goes up to her and gives her 2 options: $2/cubic foot today or $3/cubic foot later. If you take $3 today, they show up on 12/31 and nothing comes out of the well, it means that Im in breach of contract for not delivering it. CKNG probably sold it already. $2 assured today is better than maybe $3 tomorrow. When you have a book you dont use (Atkinsons Gilberts book w/ his outline in it), it is less than good because it is taking up valuable space. There might be something better you could do with it rather than throw it away though. Caballero is willing to pay $5 for it. He also knows that Chipman is willing to pay $50 for it. What if Caballero needs it more than Chipman? For groundwater, there is an English rule that says each landowner can draw from it w/o regard. There was a more common American Rule of reasonable use now. Wasteful uses of water that harm neighbors were considered unreasonable and unlawful. Surface water in western states is on a first in time basis called prior appropriation. The first person to capture it and puts it to reasonable and beneficial use has a right superior to later appropriators. More than one can use it, but the problem is if one starts to use it and then a second does, but the second finishes first, who was actually first? Eastern states use riparian rights - each owner of land along a water source has aright to use the water, subject to the rights of other riparians.

2) R. Heinlein, The Man Who Sold the Moon (supp 83)

The idea that you own a wedge down to the center of the earth under your property and a certain space above your land as well. One guy argues that you still own that wedge upward in the sky, you just dont have the right to charge people for passage in it. The moon stays over latitude 29 N at all times, so if someone owned the whole strip, they would theoretically own the moon as well. 3) Demsetz, Toward a Theory of Property Rights (pg. 40-47) Close relationship between property and externalities. No harmful or beneficial effect is external to the world, someone always suffers or enjoys them. Internalizing these effects refers to a process that

enables these effects to bear on all interacting persons. A primary function of property rights is guiding incentives to achieve a greater internalization of externalities. The over-hunting of game is an example. The advent of the fur trade had two effects - the value of furs and the scale of hunting them shot up. The Indians figured it out pretty quick and sectioned off agreed-upon hunting areas, with actions against trespass, and animal husbandry within. Communal ownership - a right that can be exercised by all members of the community, like the right to walk the city sidewalk is communally owned. The community denies the right to interfere w/ any persons exercise of those rights. 4) Note: Externalities (pg. 47-59) They exist when a person makes a decision about how to use resources w/o taking full account of the effects of the decision. As a consequence of them, resources tend to be misused or misallocated - used in a way that doesnt better society. The use that would make them all the best off is the efficient or value-maximizing one. Freeriding arises when efforts are made to extract contributions from members of a group in order to carry out transactions that will confer collective benefits on the group. Freeriding occasions high transaction costs. Holding out can frustrate transactions that would be beneficial to al concerned.

5) Hardin, The Tragedy of the Commons (supp 84)

If a pasture is open to all and its expected that each herdsman will try to keep as many cattle as possible on the commons. This may work fine for centuries, but eventually it doesnt work anymore. Each herdsman tries to max. his gain. If he adds one more cow its a positive thing for him and the negative is shared amongst everyone else, so its only a fraction to him. The only rational conclusion is to keep adding animals, but everyone else has that same idea. Ruin is a destination toward which all men rush. Freedom in a commons brings ruin to all.

Property Regimes: Common (res nullius) - thing of no one; a thing that can belong to no one; Atkinson on Wilsons Lake bearing down on a
poor unsuspecting otter. He didnt shoot because it yawned and he felt sorry for it. This is what the Demsetz article is about. An otter pelt delivered tomorrow is $2, if its delivered to the club on Xmas day itll be $3 for the pelt. The otters feed themselves, it doesnt cost anything to keep it in the pond. If you wait, it might not be there. So when you look at $2 vs. $0, you go for $2. The Gambles, Stuckeys, and Chandlers have an otter storage tank. If we can all wait, then we all get $3, but we all have to wait. Tragedy of the commons. We all have a right to hunt the otters, and no one can forbid others to take them. They are the property of no one, common until captured. Since you cant depend on the other people not taking them, you ignore the external cost of wasting the storage facility, and take the $2. If I dont shoot it, they will. When the Europeans show up, the otters are worth more and press the otters toward extinction. Private - Theres a better way out there, but it is hard to rationalize. If you buy up all the other families, you then have all of the incentive to wait and take them 2 by 2 over the years. You move from common to private property. No more externality. If a person wont sell their stuff, they are already in the hands of the person who values it highest. If you put it up for sale and no one else buys it, then you still value it highest. You could try and buy their otter twig from them. implies that the community

recognizes the right of the owner to exclude others. This internalizes many of the external costs associated w/ communal ownership. But he then has no incentive to economize the use of his land in a way that takes into account the effects he produces on the land rights of others. State - state is just a subset of the collective regime; implies the state may exclude anyone from the use of a right. Collective (res communus) - common things; things common to all; things that cannot be owned or appropriated, such as light, air, and the sea. Dont get the collective regime confused with the common regime. Common is pure rule of capture. Everyone has an interest in the stuff, but can only make it personal on terms agreed to by the group.

Transition from one regime to another: Method Reason - getting permission Power- The Indians made boundaries - privatizing hunting territories. They didnt pay anyone. They just marked it
and defended it for their family. Through the exercise of power. In order to privatize, you have to talk to the other commoners - unless you have a lot of firepower.

III. What You Call It When You Get It (And What You Really Got) D. Feudalism Revisited 2. State v. Shack (pg. 87-97)
Procedure Facts Issue Holding Reasoning Class Notes - The state came onto Tedescos land to tell his migrant workers about their benefits. Landowner sues for trespass. If you have a right, its no good if you dont know you have the right. If you dont know the emancipation proclamation exists a slave could be kept a slave and wouldnt know better. Seed - you know you can plant it and protect it while you live. Elementary school kids bought up an acre of rainforest, but they didnt know where it was and it wasnt actually protected. You would want to plant the tree near a school so kids would make sure it was protected. State of NJ represented by the Att. General is there to defend the constitutionality of the trespass statute. Arguing about the right to exclude from the farm v. the right to enter. Shack is a lawyer on a legal mission from the Office of economic opportunity - OEO. These are the people who are supposed to be doing our pro bono work. He represents Tejeras here, as do local NJ lawyers. Marsh v. Alabama: company-owned town threw Jehovahs witnesses out of their town. Hugo Black said that you cant do that with a town. Then the Logan Valley case with the Hari Krishnas. The manager says they are bugging their clients and the Hari Krishnas say you cant throw us out. Ct. agrees, if you invite everyone else to come there you cant exclude them. The ct. has to decide if they are mere employees, which can be forbidden from having visitors on the factory floor. But, if they are tenants, under landlordtenant law, then they get to have guests. This case could go either way - employee or tenant. NJ lawyer wants them to put it in the tenant box because then my client wins. Not a very good argument, need a reason to put it in that box. Tedesco argues for the right of absolute exclusion, what human value does that serve? If you go up to Tedescos house

to ask to use the phone and he asks you to leave twice and then sues for agg. trespass. He wont win. Just like untying a trespassers boat from your dock during a storm. Even if you have the fullest possible bundle of twigs, you dont have that twig. The right to exclude is not absolute. How can he claim that letting the OEO onto his farm interfere with the growing of crops? Can he claim it invades his privacy since he lives there too? You can always exclude solicitors from your home. The NJ supreme ct. probably could keep them out during work hours because it disrupts work. The farmer just doesnt want them to know about their rights, like workers comp, minimum wage, torts, etc. OSHA. Rights are meaningless if you dont know you have them. Many of their rights are counter-intuitive. Kant w/o property your spirit cant realize its place in the world. You need to know how to trade your labor in a market economy if you are going to participate in a market economy. You cant have a robust market economy w/o a floor.

5. Virginia Woolf, A Room of Ones Own (1929) (supp 165-171)

She inherited some money and she finds it to be more important than her right to vote. Womens work was difficult and they made very little money, and she used to be very bitter about it. Now, its starting to wear off. She doesnt need to hate or fear or flatter men, so she is gaining a new attitude about them. The great poets werent poor men, poor poets havent a dogs chance. A poor kid in England had no chance of becoming a great writer. Intellectual freedom depends upon material things, and women have always been poor. Women, therefore, didnt have a dogs chance of writing poetry either. That is why she has laid so much stress on money and a room of ones own.

E. Feudalism - Revered and Reviled 1. From Monty Python, The Holy Grail (video)
ARTHUR: Old woman! DENNIS: Man! ARTHUR: Man, sorry. What knight lives in that castle over there? DENNIS: I'm thirty seven. ARTHUR: What? DENNIS: I'm thirty seven -- I'm not old! ARTHUR: Well, I can't just call you `Man'. DENNIS: Well, you could say `Dennis'. ARTHUR: Well, I didn't know you were called `Dennis.' DENNIS: Well, you didn't bother to find out, did you? ARTHUR: I did say sorry about the `old woman,' but from the behind you looked-DENNIS: What I object to is you automatically treat me like an inferior! ARTHUR: Well, I AM king... DENNIS: Oh king, eh, very nice. An' how'd you get that, eh? By exploitin' the workers -- by 'angin' on to outdated imperialist dogma which perpetuates the economic an' social differences in our society! ....If there's ever going to be any progress-WOMAN: Dennis, there's some lovely filth down here. Oh -- how d'you do? ARTHUR: How do you do, good lady. I am Arthur, King of the Britons. Who's castle is that? WOMAN: King of the who? ARTHUR: The Britons. WOMAN: Who are the Britons?

ARTHUR: Well, we all are. we're all Britons and I am your king. WOMAN: I didn't know we had a king. I thought we were an autonomous collective. DENNIS: You're fooling yourself. We're living in a dictatorship. ..... A self-perpetuating autocracy in which the working classes-WOMAN: Oh there you go, bringing class into it again. DENNIS: That's what it's all about if only people would-ARTHUR: Please, please good people. I am in haste. Who lives in that castle? WOMAN: No one lives there. ARTHUR: Then who is your lord? WOMAN: We don't have a lord. ARTHUR: What? DENNIS: I told you. We're an anarcho-syndicalist commune. We take it in turns to act as a sort of executive officer for the week. ARTHUR: Yes. DENNIS: But all the decisions of that officer have to be ratified at a special biweekly meeting. ARTHUR: Yes, I see. DENNIS: By a simple majority in the case of purely internal affairs,-ARTHUR: Be quiet! DENNIS: --but by a two-thirds majority in the case of more-ARTHUR: Be quiet! I order you to be quiet! WOMAN: Order, eh -- who does he think he is? ARTHUR: I am your king! WOMAN: Well, I didn't vote for you. ARTHUR: You don't vote for kings. WOMAN: Well, 'ow did you become king then? ARTHUR: The Lady of the Lake, [angels sing] her arm clad in the purest shimmering samite, held aloft Excalibur from the bosom of the water signifying by Divine Providence that I, Arthur, was to carry Excalibur. [singing stops] That is why I am your king! DENNIS: Listen -- strange women lying in ponds distributing swords is no basis for a system of government. Supreme executive power derives from a mandate from the masses, not from some farcical aquatic ceremony. ARTHUR: Be quiet! DENNIS: Well you can't expect to wield supreme executive power just 'cause some watery tart threw a sword at you! ARTHUR: Shut up! DENNIS: I mean, if I went around sayin' I was an empereror just because some moistened bink had lobbed a scimitar at me they'd put me away! ARTHUR: Shut up! Will you shut up! DENNIS: Ah, now we see the violence inherent in the system. ARTHUR: Shut up! DENNIS: Oh! Come and see the violence inherent in the system! --- HELP! HELP! I'm being repressed! ARTHUR: Bloody peasant!

DENNIS: Oh, what a give away. Did you here that, did you hear that, eh?.... That's what I'm on about -- did you see him repressing me, you saw it didn't you?

1III. What You Call It When You Get It (And What You Really Got) A. The System of Estates (Leaseholds Aside) (pg. 185) B. Present [Possessory] Interests (pg. 187) 1. Lewis Grassic Gibbon, Sunset Song, Prelude (supp 128-129) a. Up From Feudalism (pg. 187-199) b. Rice, Landlord and Tenant, from Foundations of Early Modern Europe (supp 130-131) c. Anon., [Contemporary Commentary on the Enclosure Movement] (supp 132) 2. The Fee Simple a. How the Fee Simple Developed (pg. 199-205) b. Creation of a Fee Simple (pg. 202) c. Inheritance of a Fee Simple (pg. 204) 3. The Fee Tail (pg. 205-210) a. Leviticus 25:1-34 (Jubilee) (supp 133-134) 4. The Life Estate (pg. 210-218) a. Note: Seisin (pg 228) 5. Leasehold Estates (pg. 229) 6. Defeasible Estates (pg. 229-240) a. Note: Defeasible Life Estates (pg. 253-255) C. Future [Possessory] Interest 1. Weidner, Future Interests in a Pea (supp 135-140) History (& Law, Economics, Politics, and Religion) of the World, Part II (1066-2001):
[Old] Feudalism > Liberalism/Old Property [Family][Individual] contract status 1660-1960 1066-1660 Statute of tenures (1660) Decl. of Ind. (1796) Decl. of rts of man & citizen N.W. Ordinance (1787) -------> 13,14,15th amendments (1866) -| 40 acres & a mule | Married Womens | Property Acts (1850+) | Abuses/Problems: Public Interest State: Today: Public interest old property majority interest Thatcher, Reagan Quacks, Charletons > FL Bar, Dept. Prof. Reg. GHW Bush RR Monopolies --------> ICC * Blacks [Irsish, Jews, > EEOL Al Gore Catholic, women] FDA New Feudalism * we are here

1660 - King restored on the condition of the Statute of Tenures. Serf system abolished. King admitted he was subject to parliamentary stuff. End of the English revolution. Critical status was the individual contract. Free citizen. Locke wrote around 1688 or so. Each persons labor is their natural right, and what you do with it is up to you. Which is in the Decl. of Ind. Johnson v. MIntosh - pooled all the land into a big fund to be divvied out to people willing to farm it. 40 acres and a mule people who wanted to be like Jefferson. Another myth is lifting yourself by your bootstraps, Abe Lincoln built his own log cabin or something. NW Ordinance - farmers spread out across the west, how do they get it to market? 1867 - the railroads joined by rail. The RR company charges you, there was only one company, one rail since you didnt need 2. They could set their prices as high as they could w/o losing customers. Interstate Commerce Commission - pure unregulated market wont give sensible prices b/c of monopolies. Charged as much as the market could bear. Not a good way to run a RR, so the ICC set prices, but trucks broke the monopoly so the ICC doesnt exist anymore. The amendments, no slavery, no servitude, equal protection of the law. By the late 19th century, end of WWII, it was clear you couldnt sustain yourself on 40 acres & a mule as a middle class person. The cotton picker machine comes along and huge numbers of black southerners moved north to the cities. But they found that equal protection was just against state stuff, not private companies. Blacks, Irish, Jewish, Catholics, and women need not apply. You couldnt get jobs unless you were a white Anglo-Saxon protestant male. Huge national economy. You dont know the people youre buying from anymore. Lots of quacks turned out extremely dubious products. People could put whatever they wanted in their medicines. At this time the FDA came around. Also people saying they could cure anything mental or physical and the Dept. of Prof. Regulation. How to deal with this, not possible w/o a complex regulatory mechanism. In the 50's you apply to the FL Bar and they ask if you are or ever were a member of the communist party. They wouldnt let you in. They also asked about homosexual acts. The public interest state made the dangerous assumption of public interest = majority interest. Today, virtually no one is involved in agriculture since it doesnt take many people to feed everyone. Its no threat to say I dont like my job so Im going to go be independent, farmer. The FCC is another example. No one has a farm, we get much of our stuff from the govt. If you can make it into professional school, especially med. school, you can vault your way up the ladder even if your parents didnt finish high school. 2 problems, if you take too much from the rich, they will become less productive. If you make things too cushy at the bottom they will decline to climb the social ladder. How do you keep the safety net from become a hammock, we dont know how to fix it. We have incentive problems. We dont want to cause resent amongst the wealthy. No one is calling for the New Feudalism/Old Socialism. There is some in Eastern Europe. No one is calling for old Reaganism. He almost was going to abolish social security but they wouldve killed him so he assured people it was safe. Common Law System of Estates (in Land) I. Present (possessory) interests A. Freehold Estates 1. Fee (inheritable) estates a. Fees simple (1) absolute (2) defeasible (a) fee simple --------determinable (x)

(b) fee simple subject to/on condition subsequent(x re-entry) II. Future (possessory) interests A. In Grantor (A=Atkinson) 1. reversion ---------------- 2. possibility of reverter ---------------- 3. power of termination/ right of entry B. In grantee (B, C, etc) 1. remainders - naturally arises after privie estate a. vested - taker known and no unnatural conditions b. unvested - taker unknown or unnatural conditions ---------------- 2. Executory interests: a. springing - cuts off grantor (A) b. shifting - cuts off grantee (B, C, etc) b. pur otre vie (for another life)

(c) fee simple subject to executory limitation -------------b. Fees tail 2. Life estates a. For life of Life Tenant B. Non-freehold (leasehold) estates

I. Present (possessory) Interests - the privilege is present and not merely future; entitles the holder to immediate possession; If
you create any present possessory interests, something is kept back; A to B for life, then B to C: When A > B its giving away the present possessory twig, holds back all of the other future possessory interests - called a reversion; A has kept back a reversion, always, even if you give away an absolute fee simple. A. Freehold Estates - an estate in land held in fee simple, in fee tail, or for term of life; at common law, these estates were all created by enfeoffment w/ livery of seisin; granted to church people or knights, parts of the original fees for services system; we can inherit these or not. 1. Fees (fiefs) - inheritable estates a. Fee Simple - An interest in land that, being the broadest property interest allowed by law, endures until the current holder dies w/o heirs; inheritable by the class of heirs general; became possible after Stt QE; give it to his kids in death or he could transfer it to anybody he wanted during life; you can do anything you want while alive, and it goes to whoever you want it to in your will, and if you dont have a will it goes to the statutory designation of heirs; fee=estate, simple=inherited generally

(1) Absolute - an estate of indefinite or potentially infinite duration; (e.g. To B and his heirs)
Thats the magic language to create a fee simple; If B then transfers it to J and his heirs while alive. J is then sued by the heirs of B, who say read the deed! J says its mine. Words of limitation and not words of purchase. It doesnt create any enforceable interest for those heirs. Only if B dies, having not transferred it and still owning the property, will the heirs get it. Bs heirs get nothing when B dies because B had nothing when he died (in regard to property); Atkinson has FS in a deed that says to A and his heirs and A dies w/o having conveyed or transferred interest in it and w/o a will - it just goes to legal heirs; biggest possible bundle of twigs, inherited by heirs generally if not specified to anyone in particular; If A dies in a crash w/ wife and kids - where does it go? Then goes to ancestors, if none of those then to collateral kin - brothers/sisters and then to cousins. It tries down, then up, then sideways, then to the state. A fee simple absolute is almost never going to end; always lets me exclude anyone I want to. (2) Defeasible - an estate that ends either because there are no more heirs of the person to whom it is granted or because a special limitation, condition subsequent, or executory limitation takes effect before the line of heirs runs out; Aunt Ila had a store in SC, died and left her farm to Atkinsons father-in-law, Richard. Fee simple, its yours and theres no way it isnt yours unless you choose to get rid of it yourself. The store was given to her nephew to Thomas and his heirs, while no alcohol is sold there. If they do it anyways, their interest is defeasible, defeased if they do it, poof, not theirs anymore. The present possessory estate ceases to exist and a new regime comes into effect. (a) F.S. determinable - an estate that will automatically end and revert to the grantor if some specified event occurs; Its a FSDeterm. in Thomas and his heirs; The Possibility of Reverter and Fee Simple Determinable are always linked; A to B and her heirs (fee simple) provided no firearm is ever used on the premises (possibility of reverter). A hasnt given everything to B. It will be Bs to transfer to whomever she wants to during life. (b) F.S. subject to condition subsequent - an estate subject to the grantors power to end the estate if some specified event happens (e.g. To B and his heirs, upon condition that no alcohol is sold on the premises); Fee Simple Subject to Condition Subsequent goes with Power of termination/right of entry. (c) F.S. subject to executory limitation - a fee simple defeasible that is subject to divestment in favor of someone other than the grantor if a specified event happens (e.g. To B and his heirs, but if the property is ever used as a parking lot, then to C); always tied with

future executory interests in the grantee (3d person). b. Fee tail - an estate that is inheritable only by specified descendants of the original grantee, and that
endures until its current holder dies w/o issue (e.g. To B and the heirs of his body); Most jurisdictions have abolished it, except DE, ME, Mass, and RI.; to Rob and his children by my daughter Stephanie - specially tailored; Jubilee; Caballero Sr. is suspicious of Caballero Jr., which creates problems under QE - any fee simple owner can transfer it out during their lives. Bad if the FS owner wants their kid just to be the next link in their generation. To Caballero and the heirs of his body. Caballero can transfer it during his life, but cant

cut his heirs out of it by transferring it to J during his life. When the last Caballero dies out, it goes back to A, or the state; These fees are specially tailored to fit a familys needs. From A to K and the heirs of her body, and then to F. K cant dispose of the land outside of her family, outside of her heirs. When it goes through the entire K line, it goes to F, and when F dies out it goes back to A. If no F had been named, it would then revert back to A. Popular among the landed gentry, but the king didnt like it. Fee tails were also big in Israel year of jubilee. It was divided up among like 7 big families with a head. There was just a giant turnover of land every 50 years, every generation. You can transfer out your land until the year of jubilee only, then it reverts back to the head of the family. Levites (educated religious urban land) and rural land was everything else - only rural land was subject to jubilee. If A dies in a crash w/ wife and kids - where does it go? (If it had been a tail it would be over). 2. Life estate - an estate held only for the duration of a specified persons life, usually the possessors; the person got to live there as long as they lived and behaved; (e.g. to B for life); If A to B for life and then B dies, and A is dead, it reverts back to As heirs; If A to B for life: B can transfer it to C while B is alive, it reverts back to A when B dies. B. Non-freehold (leasehold) estates - any estate in real property w/o seisin, such as an estate for year, from period to period, at will, or at sufferance; any estate except the fee simple, fee tail, or life estate; were at the bottom of the pyramid, the peasants. Their rights in land was whatever their overlord gave them, very loosely held rights. They were given enough security to make them productive. After the plagues, peasant labor became very valuable and they had to make sure they didnt run off for a better job. They began to have access to more stuff. Their land right became leases. Gratuitous transfers (giveaways) and commercial transactions - you dont grant a lease to the Gap for the managers lifetime. II. Future (possessory) interests - the privilege of possession or of other enjoyment is future and not present; what is left back when you create any present possessory interests A. In Grantor - All future interests in the grantor are called reversionary interests. 1. Reversion - a future interest in land arising by operation of law whenever an estate owner grants to another a particular estate (limited duration), such as a life estate or a term of years, but doesnt dispose of the entire interest; occurs automatically upon termination of the prior estate, as when a life tenant dies; A to B for life, then B to C: When A > B its giving away the present possessory twig, holds back all of the other future possessory interests called a reversion; reversionary interest in Atkinson acre left to D; a reversion is a general interest kept back by the grantor - kept back interest isnt specified. The other 2 kinds are very specific. When A gives away everything and doesnt specify about the kept back - almost always reversion. 99% of defeasible fee simples are worded that way; In a fee tail, the reversion is As right to get it all back when the line dies out. 2. possibility of reverter - a future interest retained by a grantor after conveying a fee simple determinable, so that the grantees estate terminates automatically and reverts to the grantor if the terminating event ever occurs; the grantor transfers an estate whose maximum potential duration equals that of the grantors own estate and attaches a special limitation that operates in the grantors favor; The Possibility of Reverter and Fee Simple Determinable are always linked; A to B and her heirs provided no firearm is ever used on the premises, if that happens it goes to C and his heirs. or A to church, provided it is only used for church purposes. If they dont use it for such purposes it goes back to As heirs. She (A) kept back a possibility of reverter. Centuries later they stop using it for church purposes, it

is defeased when that defeasing condition is met in a fee simple determinable. Their fee is poofed. Some heir of A would get it, probably have to come forward for it. 3. right of entry/power of termination - the right of taking or resuming possession of real property in a peaceable manner; the right to go into anothers real property for a special purpose w/o committing trespass. / A future interest retained by a grantor after conveying a fee simple subject to a condition subsequent, so that the grantees estate terminates (upon breach of the condition) only if the grantor exercises the right to retake it; A to Thomas and heirs provided no alcohol is served, then if it is Rob has the right to go back and reclaim the premises - only way Rob to get it is if alcohol is served, Rob has a right of entry; as long as no firearms are used is the power to terminate and the right of a person to enter then and take over. B. In Grantee - Most action in future interest of grantee is remainders 1. Remainder - a future interest arising in a 3rd person (someone other than the creator of the estate or the creators heirs) who is intended to take after the natural termination of the preceding estate; Remainders are future interests that become possessory upon the natural termination of the prior estate - almost always the death of the present possessor to C for life, and then to F. If fee tails were still used, to C and the heirs of her body, and then to F. F has a remainder interest. What if F dies before C? Future possessory interest that F has will go to Fs heirs, F could have transferred it during Fs life, or Fs will could say who gets it; all are capable of becoming possessory on natural termination of prior estate. a. Vested - a remainder that is given to an ascertained person and that is not subject to a condition precedent (e.g. To B for life, and then to C); From A to C for life, and then to F: It probably would go to Fs heirs or divisees (people named in his will) when F dies; if the person who will take it is known and there are no other conditions to be met (no unnatural conditions), its a vested remainder. A to C for life, then to F - vested. All F has to do is take it when C is gone. b. contingent - a remainder that is either given to an un-ascertained person or made subject to a condition precedent (e.g. To B for life, and then, if C has married before B dies, then to C); Unknown taker or unnatural condition = contingent remainder, negate one of the conditions of a vested remainder. Unknown taker - A to C for life, then to As grandchild (who doesnt have any) or Unnatural condition - A to C for life, then to F if F graduates from law school. 1) Destructibility of contingent remainders - A to C for life, and then to her eldest son when he reaches 21. C dies w/ only a 2 yr old son who has the fee simple now, and if he doesnt make it to 21 it reverts back to A. Contingent remainder to Cs son. If the next thing wasnt met, the contingent remainder is destroyed. 2. Executory Interests - a future interest, held by a 3rd person, that either cuts off anothers interest or begins after the natural termination of a preceding estate; Depending who has it when its cut off its either springing or shifting; A to B and her heirs until guns fired, then to F - when defeasence occurs, it doesnt revert to A and heirs, interest is not in grantor, therefore its executory interest; always tied with Fee simple subject to executory limitation a. springing - a use that arises on the occurrence of a future event; A to me when I graduate - when A dies tomorrow, I dont get possessory interest immediately, it goes to devisees (will people) or heirs. When I do graduate a new fee simple springs out and I get it.

b. shifting - a use arising from the occurrence of a certain event that terminates the preceding use; A to B &
her heirs, provided no guns fired, if so then to F Future possessory interest is not kept by A, its given to F. It doesnt cut off A, it cuts off B - so its shifting, because B is a grantee.

Heirs are simply those who the law designates as the takers of real property when the fee holder dies. At common law it was their
oldest son. All states have a statute who says who your heirs are, depends who you die survived by. If you die w/ no spouse and no descendants, it goes to your parents. If you die truly alone in the world, the state gets your stuff - escheat, survived from the feudal system and William I the conqueror. What if he doesnt want it to go to his heirs? You couldnt right a will from 1285-1536. You cant chose your land to go to others than your heirs designated by law on your death.

Feudal Tenures - System of Estates King (William I - the Norman the Conqueror, the Bastard) / \ / \ Tenant-inTenant-inChief (Baron Chief (Baron of Wessex) of Nessex) / \ / \ Mesne Lord Mesne Lord Duke of Oxford Duke of York / / | \ \ / / | \ \ Bishop of Lord Lord Lord Lord Oxford of East of S. of W. of N. York York York York ----------------------------------------Peasants, Serfs, Villeins, Knaves (boy) Land traded for services. King divided up his land amongst the tenants in chief, in exchange of coming up with the army. If there were four tenants in chief, they each had to come up w/ a quarter of the military. Total pyramid scheme, except it has a bottom. No Normans were going to be doing the farming. They didnt bring the laborers with them, they probably owned the land before you took it from them. They probably farmed it for some Saxon warlord before the Normans got there. There was no change in religion then, but there was a change in language. Beef, pork, mutton are the French indoor words for the food. The Anglo-Saxons just called them chickens and cows, etc outside. Villeins were just villagers. Knave meant boy. All meant

rural workers in the village, but all became associated with the lower class. They did the actual farming, but the people above them with tenure: the lords, didnt do that. Ideology by the bishops kept everyone in line. They had their own serfs. Atkinson grants Essex to Caballero and Caballero goes off to war and dies. Early on, after taking on a mighty oath to take control of the land, he got the estate for life only. There is a chunk of administrative kingdom that needs a leader. Atkinson needs another worthy knight. If Caballeros son was of that sort, that would be ok, Atkinson probably knew the son or at least hoped he was a chip off the old block. Later, it became presumptive. The kid has to take the oath, but also had to pay some money. But if the enemy tries to buy off the son, then Atkinson will probably just kill that son and take the land back. But what if Jr. is just a baby when daddy dies. The problem is not solved. Jr. is the ward of Baron Atkinson. In the meantime, Baron gets all the proceeds. He gets to collect all the rent for the people below the young Mesne lord Jr. What happens when Jr. wants to get married at 18, they cant do it without permission. The Baron has the right of wardship and marriage. It helped with dynastic alliances. What if Caballero has no kids? Escheat - the land comes back to the Baron and he gives it to someone else. There is no law about how much you can take from the peasants growing all of your grain, but you do have to leave them some. The oldest son was usually chosen, because women werent possible, and the oldest was the biggest, best trained, and best able to take over for his father usually. The principle service the king needed was to keep the celts in line. Then they started looking toward Normandy. They needed more regular soldiers, more modern and permanent ones. So they were hired. (the guards at the Vatican are Swiss) They hired the Scots. You got your debts which used to be paid in home guards got transferred into money. Forget about the 100 knights you owe me, just give me $100. Dying w/ young heirs. Wardship/marriage rights means the lord got to keep the land and use it until the kid grew up. A few centuries later, they didnt need these knights at home. They needed full-time warriors to fight in other countries. So they converted the services to money and hired mercenaries. In return for dropping the showing up for knight stuff they had to give 4 pieces of gold. But because of inflation, it was a problem. His military service for land was converted to land and money was eroded. Relief, wardship/marriage werent paid in $ amounts and could be negotiated. It became collecting feudal incidents. Caballero is worried about his kid just sitting by while the lord collects all the revenues of his land. Tax evasion was big. Death of tenant incident - make sure the tenant in possession never dies. He will transfer his stuff to his fellow dukes of the realm, give them legal title to it, get a promise that they will always hold it for use by his heirs. The promise is invisible. That class of friends never dies out. The land is owned by a constantly replenishing class. So when Caballero dies, they try to collect, and find that he didnt own it. That went on for a while, but they finally put a stop to it. Huge remnants of that exist in our estate/trust system. That mode of tax avoidance is easy to understand. But before that was more difficult to understand. So a tenant had to provide 1000 knights, so he brought in people below him to grow knights. Parceled out land in an expanding pyramid. Getting around the incidents. L holds T for knight services, eventually converted to $s, which erode. You couldnt sell your land, because the Lord had to approve it. You could bring in someone below you to get out. You had a sub-holder of your land, for a bundle of money, in exchange for a rose on midsummer. When Caballero dies, he is looking to see what Caballero got from his insubordinate - and finds that its only a rose. The king wanted to make sure that there was real stuff - so he passed Statute Quia Emptores. Critical legally significant elements you want the person just below the king to be a proper field general. They needed to be competent. You dont want your subordinates to be insubordinate