Property Class Notes
Tuesday, January 15, 2019
The Theories
• Natural Law Theory
o Thomas Aquinas
o The notion that law and morality are discoverable like science and math. Logic compels
the recognition of property.
• Utilitarianism
o Bentham
o Means of maximizing societal benefits
o Optimization requires universality, exclusivity, and transferability
o The law should try to figure out what is best for society
§ Best way to maximize the wealth of society
§ $$
• Labor Theory
o Locke
o Mixing labor with property is what creates value
o Individuals have a natural right to fruits of labor
o You have special rights because the property is something you created or added value to
• Democracy
o Thomas Jefferson among others
o Necessary to avoid dependence on state to extent cannot risk dissent
o Property is about how to maintain the balance between individuals and government
What is Property? à ownership rights we recognize (so far)
• Land (real estate)
o Residential, commercial, public, mineral
o Also counts things that are permanently affixed to the land
o Oil and gas included
• Personal stuff (Chattels)
o Things, money, pets, claims
• Ideas (IP)
o Copyright, trademark, patent, trade secret
Thursday, January 17, 2019
The fox–hunt case
• Procedural Posture:
o Verdict having been rendered for the plaintiff, the defendant there sued out a certiorari,
and now assigned for error, that the declaration and the matters therein contained
were not sufficient in law to maintain an action.
• Possession establishes ownership
o “occupy”
• Laws of capture on unowned land apply to things such as oil and gas
• Mere pursuit is not enough = mere pursuit is not capture
• On the rule of capture, there is a line that says mere pursuit is not enough
• Dissent:
Property Class Notes
o Hunters will not invest the labor needed to hunt if others can intercept them just before
the kill
Tuesday, January 22, 2019
Right of publicity
• Elements of right of publicity claim:
o Defendant’s use of the plaintiff’s identity
o The appropriation of plaintiff’s name or likeness to defendant’s advantage,
commercially or otherwise
o Lack of consent; and
o Resulting injury
• Texas Law Right to Publicity:
o Appropriation of the plaintiff’s “name or likeness for the value associated with it”;
o The plaintiff can be identified from the publication; and
o The defendant received “some advantage or benefit”
**common law right during lifetime and statutory right for 50 years following death—
common law ends when you kick the bucket
White v. Samsung Electronics
• Lost on first, statutory claim
