Topics, Philosophers, & Theorists

Question 1

Hobbes

Answer 1

” . . . the life of man, solitary, poor, nasty, brutish, and short.” Property = order

Question 2

Locke

Answer 2

Liberty of Owner (one who labors) “His labour hath taken it out of the hands of Nature, where it was common, and belong’d equally to all her Children, and hath thereby appropriated it to himself.” –Man has an equal right to the fruits of his own labor. –Labor increases the value of property. –Unlimited amount of property is a natural right.

Question 3

Rousseau

Answer 3

Democracy & Community Participation “From the cultivation of land, its division necessarily followed; and from property once recognized, the first rules of justice.” –Against unlimited amount of property (deprives others) –Man was happy working for his own needs, then community led to hoarding, equality disappeared, property was introduced, labor became necessary. –Property arose from manual labor. –There is inequality because men’s talents are unequal. –For fear of reprisal, those with property set up government to protect themselves by turning their attackers into their guards –Property that a man could reasonably work on by himself is a sacred right. –Laws and society destroy natural freedom

Question 4

Bentham

Answer 4

Efficiency “To lay down as a principle that all men ought to enjoy a perfect equality of rights, would be, by a necessary connection of consequences, to render all legislation impossible” –The market assesses utility for society. –“Utility”, the greatest happiness for the greatest number, and this requires the institution of unequal property. * Happiness consists in four subordinate ends: 1. Security (most important) 2. Subsistence 3. Equality 4. Abundance * Evils resulting from violations of property: 1. Evil of Non-Possession 2. Pain of Losing 3. Fear of Losing 4. Deadening of Industry

Question 5

Marx

Answer 5

Equality – Labor is a form of property; the only form that it cannot be separated from its owner/producer. – The problem is exploitation, not property; some people will take the labor of others to create value for themselves.

Question 6

Radin

Answer 6

Relationships between Person and Object (subjective value) –People become bound up with things, both good and bad to be materialistic. –Certain objects are almost part of themselves. –One may gauge the significance of someone’s relationship with an object by the pain that would be occasioned by its loss. –Identity also tied to community (lose community=lose identity)

Question 7

Freud

Answer 7

Floodgates Tool –His view of the communists: the right to own property is an instrument of aggression; but, if we take this right away we will still have the aggression.

Question 8

Custom becomes . . . Community becomes . . .

Answer 8

Commodity. Contract.

Question 9

2 Abraham Axioms of Property

Answer 9

1. Can only sell as much as you own. 2. Property rights are not absolute, existing only relative to others.

Question 10

The Need for Justificatory Theories

Answer 10

1. Property is a right in the sense of an enforceable claim
2. While its enforceability is what makes it a legal right, the enforceability depends on a society’s belief that it is a moral right

Question 11

Theory of Property upon Discovery of New Lands

Answer 11

European discoverer acquired the right of pre-emption:

1. The right to acquire title to soil from the natives in the area by purchase–if the natives were willing to sell–or by conquest.
2. The right to succeed the natives in occupancy of the soil if they should voluntarily leave the country or become extinct.

Question 12

Belligerent Occupation

Answer 12

–Military occupation is actually the self-defense occupation of a territory –What converts a military occupation into conquest is the insertion of civilians into the occupation for permanent residence

Question 13

Possessio Pedis

Answer 13

“Foothold”–Exclusive dominion & control “It is clearly established, both by reason and authority, that the acts of ownership and dominion over land which may be sufficient to constitute and actual possession, very according to the condition, size and locality of the tract”

Question 14

ACQUIRING OWNERSHIP FROM THE COMMONS AND OTHERS AND IDEOLOGY THEREOF

Answer 14

Applicable cases:

Brumagim v. Bradshaw ->turn cattle in the Potrero

• do enough labor to provide notice of dominion
• Possessio Pedis

Question 15

Relativity of Title

Answer 15

You have to show that you are entitled to the land, not that the other person is NOT entitled to it.

Question 16

Demsetz–In a world where the cost of exchanging property rights and policing the rights are zero, there are three implications:

Answer 16

1. The value of all harmful and beneficial effects of uses of property rights will be brought to bear on their owners;
2. Property right will therefore be used efficiently
3. Output will be independent of distribution of property rights. Changes in the distribution of wealth will affect only demand patterns.

Question 17

Posner–Property rights are never exclusive, when it comes to relative values of competing uses:

Answer 17

Whatever the relative values of competing uses, it seems that the initial assignment of legal rights does not affect which use ultimately prevails. The efficient/value maximizing use will be chosen, whichever party is granted legal right.

Question 18

Coase Theorem–Preferred legal rule is . . .

Answer 18

The rule that minimizes the effects of transaction costs. In affect, if residents have the right to clean air, a factory should legally pay for the pollution.

Question 19

Sword & Shield

Answer 19

Property rights can be used as a defense (shield) and as a means of attack (sword).

Question 20

Rights v. Privilege

Answer 20

Rights are protected relationships. Privileges are protected actions. NO LONGER VALID. –Flemming v. Nestor

Question 21

Feudal concept of property

Answer 21

Relationships among individuals concerning land constituted the basic fabric of medieval society, assigning wealth and power and shaping the system of government. The key to medieval society was the estate, a term derived from the word “status.” An individual’s status was defined by tenurial relations between grantors and grantees. “He who has land, is said to hold it rather than to own it.”

Question 22

Right v. Duty

Answer 22

Right is a legally enforceable claim. Duty is a correlative of right, not to do or not to do something or there will be legal consequences. ALI

Question 23

Gravity of Harm

Answer 23

Should consider:

• the extent of the harm involved
• the character of the harm
• the social value attached to the type of use or enjoyment invaded
• the suitability of the particular use and enjoyment to the character of the locality
• the burden on the person harmed of avoiding the harm

Question 24

The Utility of Conduct

Answer 24

Factors to consider:

• social value that the law attaches to the purpose of the conduct
• the suitability of the conduct to character of locality
• the impracticability of preventing or avoiding the invasion

Question 25

First in time . . .

Answer 25

. . . first in right.

Question 26

Private deal is . . .

Answer 26

. . . private, regardless of who is selling to whom. (Johnson v. M’Intosh)

Question 27

Mechanisms of Control

Answer 27

• Privatization
• Regulation (state coercion)
• Community solidarity norms

Question 28

2 step javins test

Answer 28

1. Did the alleged violations exist during the period of time for which the past-due rent is claimed
2. If so, what portion (if any, part, or all) of the tenant’s obligation to pay rent was suspended by landlord’s breach of contract Javins D is not waivable.

Question 29

Reasoning/Implications behind Housing Standard

Answer 29

Policy Reasons to have Strict Housing Standard:

1. General public safety: People could get really hurt and then have to go to the hospital and city would have to pay for hospital bills → city paying more money
2. Housing is a basic necessity
3. There is unequal bargaining power in favor of the landlord.

• May increase prices. Costs will be placed on the tenants. or move properties out of the market
• Solution :

1. Rent Subsidy: landlords must improve apartments and can increase rent to get what they are worth. But the money will not come solely from the tenants, instead from government aid.
2. Tax breaks: creates a problem with the budget because if no one pays money, there is no money there.
3. Subsidized loans available to landlords.
4. Rent controls: landlords can’t raise rent unless there have been changes that require it, such as improvements.
5. Subsidize Fair Housing Act.
6. Cheapen Ownership: make it easier for people to get out of the tenant-landlord relationship by buying their own home.
7. Mixed zoning and use
8. Compel construction of lower cost units
9. Publicly funded repairs

Question 30

4 step Gentrification process

Answer 30

4-step process:

1. Landlords get rid of tenants like Mrs. Robinson
2. People move in who do not care so much about public schools (young 20s-30s)
3. As rents increases, the lower income people move out
4. Increased tax base leads to improved schools and eventually a community that is friendly to affluent families

Question 31

What’s a taking? When is it a taking? Stds of Review

Answer 31

Police Power (regulate/no taking) v. Eminent Domain (taking/compensation)

1. Time to time, civilized life needs police power to regulate business/property for public purpose.
2. However it can go “too far.” When does a statute go “too far”? Choose std based on the type/class of right restrict
3. If “suspect category” (fundamental right ->race/religion/gender)->strict scrutiny
4. If socio-economic->rat’l basis (HSMW)
5. Stds of Review (Rational basis v. Strict Scrutiny) Rationally related for public purpose Compelling public purpose narrowly tailored (no undue burden).

Question 32

King Leer/wills

Answer 32

Don’t give yourself away until you die!

Question 33

Housing Human Rights and Stds of Review

Answer 33

East Cleveland Case and Village of Belle Terre

Rationally related to legit public purpose

Every legislation has to draw a line; successive decisions dictate where the line is (when looked at out of context, the case drawing the line will look arbitrary)

Village of Belle Terre v. Boraas (1974)->students wanted to live together; against ordinance; claims of: (LL) taking w/o compensation (violation of due 14th Am/due process; (students) Right of assembly; SCOTUS: nope

Moore v. East Cleveland (1977)->GMA took in grandson/extended family (poor people); against ordinance;

Ordinance was rationally related based on Belle Terre.

SCOTUS: Nope. That was concerning unrelated people. You are tearing up a family. Family/marriage is a “quasi-suspect class” that must have a strict scrutiny std of review