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What is the Nature of Property?

What is "property"? Who gets to "own" property, and why? What kinds of "things" get protected? These basic questions will be addressed in the practical context of controversies over ownership of news, sports scores, genetic materials and even human beings ...

We're going to start the term with "Introductions" (to me, to each other and to the course). The only reading you have to do for this is on the web. Explore this site, get to know about prezis, sign up for a BlackBoard Learn account, and, if you want, follow me on Twitter.

The title of our first class substantive class together is: "The Properties of Property." Read pages 1-19 of the casebookBasically, we're going to ask ourselves, "what is property?" And we'll do that by talking about the story of Yanner v Eaton (you'll be grateful for the edited version in the casebook if you glance at the full-length version on the High Court of Australia's website), in which the HCA was called on to interpret the meaning of the word "property" found in a potentially relevant statute. (Actually, whether the statute was or was not relevant to the case depended on the interpretation of the word "property.") 

Most of us began to assert our rights to exclude others from particular objects as toddlers. Western society, at least, seems solidly wedded to the idea of "I, Me, Mine". But what does it mean to say something is "mine"? In this class, we'll explore that question. The extracts of Thomas Merrill's article in the casebook lay out a helpful taxonomy of schools of thought about the meaning of property, arguing that it must revolve around the right to exclude. I realize that Merrill makes reference to a number of property scholars who you're likely not familiar with. Sometimes it helps to put faces to names, so you might want to quickly surf through these pages on Blackstone, Honore, Hohfeld, Waldron and Grey. Yanner v Eaton gives us a chance to put these scholars' theories, and Merrill's taxonomy, into practice.

Imagine no possessions. Is it easy if you try? In the second class, we'll talk about why we have such a concept as property. Readings are on pages 32-47 of the casebook. In that context, again, many of you will be introduced to new names like Bentham, Hardin, de Soto, Posner, Heller, Hegel, Radin, Reich, Nozick, and Locke. Those are just a few of the philosophers and legal scholars whose views on property you'll get to know throughout the course. We're going to dissect the main justificatory theories of private property along 2 broad lines: (1) those that see property as a creature of positive law and (2) those that treat property as a natural or "God-given" right. The former includes utilitarian theories, and perspectives from the sub-discipline of "law and economics" in particular. The latter includes theories premised on labour, personhood, freedom and related grounds.

The third and fourth classes address novel claims. To prepare for our discussion of property rights in information (a class that I've titled "I read the news today, oh boy," after another one of my favourite Beatles tunes) I want you to read pages 47-60 of the casebook. Just from reading the INS and Victoria Park cases you may not appreciate that there are stories about real people and real businesses underlying the decisions. I'll be sure to tell you during class about the fascinating behind-the-scenes history of INS v. AP. For "Biotech & Property in Body Parts," read pages 60-78. You also need to skim the patent at issue in the Moore case.

Chapter 1 is a tough slog, especially if you don't have a background in philosophy or political studies. If you're confused, I'd encourage you to also read Chapter 1 of the supplemental textbook before or after class. It should help you get this stuff. You'll need a firm grasp on these materials to have a good chance of success throughout the rest of the course.