PROPERTY (Section 1)
Spring Semester 2014
Assignments for January 20-24
Monday, January 20. No Class Meeting (Martin Luther King, Jr. Holiday)
Tuesday, January 21. In addition to pages 1-29, also read pages 43-55 (the United States Steel
case, the Singer excerpt just prior, and the notes following the case). Students up for Tuesday:
Blair Bopp; Nick Henry; Jeff Upp
Discussion questions to consider about United States Steel:
1.
First, a general question to keep in mind as you consider the more specific ones. On page
50, the court in United States Steel argues that the problem in the plaintiffs’ community property
theory is “one of authority.” The court proceeds to emphasize that nothing in the federal or state
constitutions, nor any federal or state statute, nor any prior federal or state court decision that
“would convey authority to this court” to prevent U.S. Steel from closing the plant. Is it really a
question of authority? Is the court saying it can’t? It shouldn’t? It won’t?
2.
The steelworkers make an argument that based on their longstanding relationship with the
company and the Youngstown community, the steelworkers have acquired a "property" right in
the plant that should entitle them to a proportionate share of the ownership of the plant's assets.
Professor Singer’s article, “The Reliance Interest in Property,” suggests that this situation is
somewhat analogous to the context of a divorce proceeding, in which courts typically do
reallocate property rights as between ex-spouses. If courts do this in the context of marital
dissolution all the time, why isn't the court willing to make that leap here? What would be the
potential consequences of such a ruling, and how might those consequences inform the court’s
reluctance?
3.
The steelworkers also made an estoppel argument (that the company should not be able to
close the plant as long as it was "profitable," based upon the company's promises and the
workers' reliance). If the court had granted the steelworkers' estoppel argument, would this
effectively have given the steelworkers a property interest in the plant? Why or why not?
4.
Do you think the court should have ruled in the steelworkers' favor on the estoppel
argument? Would the existence of the WARN Act (discussed in the Lawyering Exercise on
page 54), if it had been in effect at the time of the case, have been relevant to the court’s estoppel
analysis? Why or why not?
Wednesday, January 22. Reading assignment: Pages 71-89 (this assignment will probably
extend into Thursday’s class as well). Students up for Wednesday: Kayla Kemp; Stephen
Magers; Evan Richardson
Discussion Questions for this assignment:
1.
The common law traditionally allocated “ownership” rights (and prioritized competing
claims) based upon the principle of “first possession” (or “first-in-time”). In Pierson v. Post, we
see the court allocating ownership of a previously unowned object (the fox) to the party that
established “first possession.” Why is the concept of “possession” a suitable basis upon which to
allocate and prioritize property claims? Why not instead have the government issue title
certificates for all objects that establishes definitively who the owner of an object is?
2.
In Pierson, both parties are asking the court to apply the “first in time” rule, but each
party is asking the court to interpret that rule very differently. Why is Pierson claiming to be
“first”? Why is Post claiming to be “first”? What justifications did/could each of them advance
in support of their argument? Which party do you think has the more persuasive case?
3.
The dissenting judge in Pierson suggests that the court should resolve the dispute by
reference to the prevailing custom of hunters. Why might a court be inclined to use custom as a
decision rule (i.e., as a rule of law for resolving the dispute)? From your experience (or even this
reading assignment!), can you identify any legal rules that are established by custom? If hunting
customs in the area at the time dictated that “hot pursuit” gave a hunter the right “to take an
unimpeded first possession,” as Professor Richard Epstein has suggested (note 4, page 82), why
shouldn’t the court in Pierson have used that custom as the rule for deciding the case?
4.
Suppose that the actions in the Pierson dispute had occurred on Post's land, and that
Pierson had been hunting there without Post's permission. How would this have changed the
court’s analysis of the dispute, and why?
5.
Some questions for you to consider about Popov v. Hayashi:
(a) The court in Popov v. Hayashi analogizes the baseball to a wild animal. Is this a
sensible analogy? Why or why not?
(b) Is the court’s opinion in Popov v. Hayashi consistent with the “first possession” rule
articulated in Pierson v. Post?
(c) Do you believe that the court’s judgment in Popov is a good result? Is it a legally
defensible result? Is there (or should there be) a difference?
Thursday, January 23. Reading Assignment: In addition to the assignment for Wednesday,
also read pages 97-106 (Edwards v. Sims). Students up for Thursday: Greg Houeisen, Mark
Nolte, Jennifer Salisbury
Discussion questions for pages 97-106:
1.
In Edwards v. Sims, both Edwards and Lee base their respective claims to ownership of
the cave on the basis of “first in time.” How can this be?
2.
In Edwards v. Sims, what is the majority’s rationale for the applying the doctrine of cujus
est solum? Is the majority’s analogical reasoning sound? If Lee owns “from the center of the
earth to the sky,” then should he be able to get an injunction to stop American Airlines from
flying over his land at 35,000 feet? Why or why not?
3.
What is the rationale behind Judge Logan’s dissenting opinion? Judge Logan plainly
believes that Lee’s expectations of dominion and control over the portion of the cave lying under
his land are less deserving of protection than Lee’s expectations of dominion and control over
the surface of his land. Do you agree? Why or why not?
4.
Does the concept of “windfall” have any significance in how we allocate ownership of
the cave? Why or why not? To the extent this question seems oblique, ask yourself this:
Edwards is arguing that allocating ownership of part of the cave to Lee would constitute an
unmerited “windfall” to Lee. Why? If you were represented Lee, how would you respond to this
argument? Based on the ultimate resolution of the case (note 1, page 102), do you believe Lee
really got a “windfall”?
Friday, January 24. Reading Assignment: pages 106-130 (this assignment will continue over
into class on Monday, January 27). Students up for Friday: Julia Neidhardt, Diana Rosia, Paul
Schmanke
Discussion Questions for this material:
1.
Assume that the facts Joyce alleged in Joyce v. GMC are true (i.e., Halsey, only learned
of the idea indirectly, through his supervisor, who had learned about it only from Joyce’s
supervisor, who had discussed the idea with Joyce). If so, why shouldn't the law grant Joyce a
property right in the idea?
2.
If the common law did not recognize property rights in ideas, then why did legislatures
step in to create intangible property rights, such as patent rights?
3.
Is “first-in-time” an appropriate mechanism for registration of domain names? Why or
why not? If so, then why isn’t “cybersquatting” perfectly OK?
4.
Looking at the Lawyering Exercise on page 115, how would you respond to the demand
letter from Rivera’s management agency? Should O’Keefe’s conduct be viewed as
cybersquatting? Why or why not?
5.
Consider the Bette Midler example discussed on page 116. Are there any good reasons
that the law should protect Midler’s expectation that she should be able to “control” her identity
and its celebrity value as a property right? If so, what are they?
6.
In conjunction with the Saderup case and the limits of the right of publicity, consider the
following questions:
a. How would you explain the legal standard that the court fashions to express how the
first amendment limits the right of publicity? Does this seem like a good balance? Why
or why not?
b. Suppose that Saderup had done the same drawing of the Three Stooges, but the
drawing was against the backdrop of a mountain with the caption “Comedy’s Mt.
Rushmore," so that the faces appear to be carved out of the mountain. Would the case be
decided the same way, or would Saderup’s conduct be protected by the first amendment?
c. Consider examples (a) through (f) in note 1, pages 128-130. In which of these cases do
you think the plaintiff would have a viable right of publicity claim? In which of these
cases do you think the defendant would have a legitimate first amendment defense, based
upon the standard expressed in Saderup?