Joshua Kaplan Property Professor Wyman Spring 2005 Part I – Acquiring Property Property Theory (Not separate Syllabus Section) I. Reasons to allocate property rights a. Reducing Transactions costs b. Adding Value c. Personal value to one party d. Promoting trade and investment II. Locke – Labor justification for private property a. Property right arises from investment in the land  Self-ownership thesis i. I own my body ii. I own my labor (fruits of my body) iii. I have rights to objects mixed with my labor b. Limitations – don’t own everything labor mixes with i. Spoilage  Can only take as much as you can use. Money allows us to overcome this limitation. ii. Sufficiency Limitation (Proviso)  claim ownership provided there is enough and as good left in common for other (unclear) 1. In kind limitation – be care what you take and what is left 2. Self-Preservation – take as long as there is enough for neighbors to live c. Why we can have property when not every consented to private property  Social contract theory d. Rights based justification e. Shortcomings: i. Doesn’t explain how property first came into being ii. Takes notion of owning body for granted iii. What counts as labor?  1. broad parochial view (servants’ and animals’ appropriations count towards property 2. Discounts labor done by Native Americans (Johnson) Carol Rose (feminist theory) a. Possession as the Origin of Property – deals with First possession i. Possession as a clear Act – texts and sub-texts 1. text: what we say and do, “clear acts” 2. subtexts: a. Implication that text will be read by relevant audience at appropriate time b. Tacit supposition that there is such as thing as a “clear act,” or unequivocal statement that property is appropriated. ii. 2 purposes  Notice to others, rewarding useful labor iii. Possession is a kind of speech – says “This is mine” b. Property Rights are: i. Way of defining our relationships with other people 1. Exclusive property rights define who has what, and allow us to trade instead of wasting time. ii. Way to Mediate conflicts and make possible an even greater satisfaction of desires c. Property now based on neo-classical assumptions  i. Desire for scarce resources III. 1 of 57 Joshua Kaplan Property Professor Wyman Spring 2005 ii. Mediate conflicts so we can work/trade instead of fight iii. Assumes that people order preferences in certain way  more for me is better d. Rose’s Story fills in the gap left by neo-classical econonmists  How did people come together to get property rights in the first place? She refers to new characters i. John Does (orders himself over other people but shares before screwing) ii. King of the Mountain (just wants a lot - neoclassical) iii. Malice Aforethought (wants to screw you before anything else) 1. Mom (wants both to get a lot before screwing) 2. Portnoy’s Mom (wants to make sure you get a lot, sacrifices self) 3. Hit Me (screws himself/masochists) IV. Radin (personhood theory) a. Property is necessary for self-development and self-fulfillment b. Two types of property i. Fungible  used for achieving other goals (money) ii. Personal  have a connectin with the property; painful to lose (e.g. wedding ring) iii. How do we distinguish between the two? “Objective” moreal consensus requires some type of value judgment c. Problem of fetishism  over-valuing property that is not really personal V. Calabresi & Melamed a. Entitlement – whenever state is presented with conflicting interests of 2 or more people it must decide which of the conflicting parties will be entitled to prevail. Entitlement rights must be enforced by the state b. Three types of protection i. Property rules (ex., injunctions) – 1. holder of the right sets the value 2. someone who wishes to remove the entitlement from its holder must buy it from him in a voluntary transaction 3. least amount of state intervention: one the original entitlement is decided upon, the state doesn’t try to decide its value ii. Liability rule 1. Value determined “objectively” by the stat 2. someone may destroy the initial entitlement whenever he is willing to pay 3. additional level of state intervention: decides initial entitlement and value iii. Inalienable entitlements – 1. transfer isn’t permitted between a willing buyer and a willing seller – 2. highest level of state intervention: a. determine initial entitlement b. compensation if the entitlement is taken or destroyed c. forbid sale under some or all circumstanc

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