Chapter 2 - Defining Common Law Property in Different Contexts

Question 1

Who defined the 2 primary theories of using property in the 18th century?

Answer 1

Morton Horowitz

Question 2

What methods of using property uses does Horowitz identify?

Answer 2

1. Anti-Development Theory (use reserved for natural purposes) 2. Priority of Development Theory

Question 2

What defines common property?

Answer 2

The fact that it is not owned by an individual (ie, that it is not private property)

Question 3

Common property should only be available to ____

Answer 3

Natural persons

Question 4

Private property can only be owned by

Answer 4

Individuals or corporations

Question 5

This instrument allows the state to profit off of common property

Answer 5

Licenses

Question 6

This case provided the rule that there is no property in a spectacle

Answer 6

Victoria Park Racing v Taylor

Question 7

Under what conditions would a spectacle become property?

Answer 7

If it is obscured from view

Question 8

Why did Victoria Park believe it could win it’s case?

Answer 8

Because it put both money and labor into the event

Question 9

In Victoria Park, the plaintiff attempted to assert…

Answer 9

the tort of nuisance due to infringement of enjoyment of property

Question 10

International News Service v Associated Press proved that

Answer 10

News is not property. Once information its freely broadcast, it become common property.

Question 11

What is the exception to the rule of International News Service v Associated Press?

Answer 11

Creative works (ideas, patents) will still enjoy the protections of property

Question 12

Are reproductive materials property?

Answer 12

Depends. If parties have treated the materials as property in the past, then they will likely be found to be property. this is what occurred in JCM v ANA

Question 13

A Pret a Prendre is…

Answer 13

A non-possessatory interest for someone to come onto another’s land, and take something (water, animals, and so on)

Question 14

Is a license in and of itself property?

Answer 14

Generally, no. However, if a license is tied to tangible assets, and/or is treated as though it I property, then court may deem it to be property. this point is what was debated in

Question 15

Is a license in and of itself property?

Answer 15

Generally, no. However, if a license is tied to tangible assets, and/or is treated as though it I property, then court may deem it to be property. this point is what was debated in

Question 16

In Sauliner, court held that the plaintiff’s license was not a profit a prefer because…

Answer 16

It was an agreement between an Individual and the State, as opposed to two individuals. And, becasue the fishing market wass vastly larger than any resource that could be found on private property.

Question 17

Give the 3 components of the Commercial Realities Test:

Answer 17

1) only proprietary entitlements are marketable,
- 2) the law should facilitate markets, and
- 3) where there are willing buyers

Question 18

what is the paradox of the Commercial Realities Test?

Answer 18

For people to be wiling buyers, the thing must already be considered property