TOPIC II

TOPIC ID


D. A VERY BRIEF INTRODUCTION TO THE PROPERTY YOU CAN’T TOUCH
	1. Locke and the labor theory
		The constitution and copyright, patent, and trademark. The notion of “intellectual property.”
	2. INS vs. AP
		a. 1918 case, i.e., before Erie RR. b. The structure of the copyright act in 1918. c. What does the case hold? d. Is this a decision about property? The curious phrase “quasi- property.” pp. 126-7 among the murkiest paragraphs in the U.S. Reports e. What’s Holmes’s theory? A very narrow view of unfair competition. f. What’s Brandeis’s theory? Copyright is the exslusive remedy? g. How is this case like Keeble v. Hickeringill?
	3. Feist
		a. How does this case differ from INS? i. We’re dealing here with the copyright statute ii. Then why is INS cited on p. S44? b. Case holds?--Note that this was unanimous, and arguably a const. ruling i. Closer than it looks. 10th Cir. didn’t even write a published opinion. ii. “Sweat of the brow” and Mr. Locke iii. Court emphsizes the view of Congress and the Register c. The difference between “facts” and “expression” in a post-modern world Notice § 106(2) of the statute, dealing with derivative works. d. The anti-trust laws lurking in the background e. Copyright vs. plagiarism f. Databases

TOPIC II

I. CONVEYANCING (DEEDS)
	A. The Statute of Frauds
		1. The Conveyancing Process Today
			a. Contract b. Title insurance or assurance c. Money--mortgages d. Deed
		2. The S/F Requirements
			a. Name of grantor and grantee b. Description c. Words of conveyance d. Signature in writing
		3. Where does the Statute say that? (And why does the Statute say estate at will and not just void?)
		4. Which letter in Metzger did the job?
		5. The lessons of Metzger
			a. Necessity of litigation b. The Cal. statute c. The position of the custodian

*Hayes*
	1. Why would it be "manifest injustice"
		a. The widow ought to prevail b. Suppose the suit occurred in 1893? c. What more is being required? d. What is the purpose of these requirements?
			i. Part performance ii. Estoppel iii. UCC sec. 2-201 contrasted
	2. Why no adverse possession under MN's 15 yr. statute? 3. Metzger compared

B. Delivery and Recording
	1. Where do they fit in?
		a. Delivery as an outward manifestation of intent b. Recording as a title assurance mechanism -- what does the statute say? c. Problems in recording:
			i. A --> B not recorded ii. A --> C b.f.p. who records i. FH --> WH not delivered -- 1913 ii. FH --> Websters -- 1928 -- recorded iii. FH --> WH -- 1933 -- delivery of first deed
	2. Micklethwait
		a. The family setting -- who's Fulton? b. Holding? c. Application of the recording act? d. What if Marshall had forged the deed? e. What more could the bank have done? f. What more could Abigail M. have done?
	3. Hood
		a. Just like Micklethwait? b. Why are the Websters relying on the act? c. Common law priority and relation back d. Anything the Websters can do now?

II. ESTATES AND FUTURE INTERESTS
	1. Why study estates and future interests? 2. How to study estates and future interests? 3. What will be on the exam about estates and future interests?

A. Present Estates
	1. The fee simple
		a. G --> A b. G -->le A c. D --> A [note the problem is -->le A]
	2. The fsd/fscs
		a. G --> A provided that estate shall cease and determine if booze; G(D) --> B b. Storke
			i. Why did the court hold as it did? ii. What consequences if fsd? iii. What consequences if fscs w/ r/e? iv. Why hold fscs?

B. Future Interests
	1. c rdrs vs. v rdrs -- still w/ us
		a. G -->le A -->rdr B b. G -->le A -->rdr A's children - vrso if a child c. G -->le A -->rdr B if she survives A rvn in G d. G -->le A -->rdr B if she reaches 21, if not --> C A now dies before B reaches 21. e. G -->le A -->rdr B. If B fails to reach 21 -->rdr C
	2. G --> le A -->rdr B's children G --> le A -->rdr B's surviving children
		a. B dies during A's lifetime
			i. w/ children ii. w/o children
		b. then B's children --> C c. A dies during B's lifetime
			i. B w/children ii. w/o children
		d. B's child E --> F, both A & B being alive
	3. a. D --> le A -->rdr such of A's children who survive him D all the rest and residue --> A
		b. A --> C
	4. xi = any interest created in a party other than the G'or/D'or which cannot take effect after the natural expiration of the preceding estate
		a. G -->le A -->rdr A's children alive 5 yrs. after A's death
				i. can't do it before S/Uses at law ii. not destructible but subject to R/Perp
		b. G -->le A -->rdr B if he obtains a college degree -- the Rule in Purefoy v. Rogers c. G --> A 200 yrs. if he should live so long -->rdr B if he obtains a college degree
	5. G -->le A -->rdr such of A's children who reach 21 G -->le A -->rdr A's children but if none reaches 21 --> heirs of B
		a. A & B living. A w/o children. G --> A b. A & B living. A has a 5 yr. old C. G --> A. c. A & B living. C dies. Then A dies. d. A & B living. B dies. Then A dies survived by C. e. A & B living. A has a 22-yr. old D and an 18-yr. old E. f. Same as (e) Then B dies. Then A dies.
	6. James A. --> Clarissa B. and her heirs, to take effect upon my death if she survives me
		a. held
			i. cutting of timber is not waste ii. she did not have an interest that would give her the action
		b. the court is mistaken in its implication that this interest could not be created at c.1. c. charter of feoffment, will, bargain & sale, stat. form deed d. Clarissa B. lost the battle but won the war.

C. Perpetuities
	1. The Rule against Perpetuities -- No interest is good unless it must vest, if at all, within some life or lives in being at the effective date of the instrument plus 21 years.
		a. it must vest -- c rdr -- rvns --xi's b. the measuring lives -- implied & express G -->le A -->rdr le A's children -->rdr A's grandchildren
			i. if A is living at the effective date ii. if A is not living
		G -->le A -->rdr le A's children living at the effective date of this grant rdr -->A's grandchildren c. The "all or nothing" rule d. The "what might happen" approach (p 479)
			i. D -->le A -->rdr le A's children -->rdr A's grandchildren ii. D -->le A -->rdr le A's widow -->rdr A's children who survive both A & his widow iii. D -->to such of my lineal descendants who are alive at the probate of my will iv. D -->le A -->rdr such of A's grandchildren living at my death or born w/in yrs. thereafter as attain 21 v. D -->le A -->rdr such of A's children as attain 21 vi. same as (i) with statute removing presumption of fertility
		e. the consequence of invalidity - Brown
	2. The policy of the Rule
		a. economics b. dynasties c. internal contradiction d. the Rule today

*Ryan*
	1. D-->le A-->rdr B, C, D, and E, if they be living, or if they be not living, the share of any of them who is deceased to go to his or her exr or admr to be applied by such as if it formed a part of his or her estate. 2. Why does the court spend most of the opinion asking whether the remainder in the siblings was vested or contingent? 3. Is there any way to avoid this result? (Hint: does the ex'r or adm'r have a beneficial interest in the land?)
*Brown*
	1. State the case. 2. Any way to avoid this result?
		a. Interpret the fsd as a fscs b. Are p/rvtrs devisable? c. Why does R/Perp not apply to p/rvtrs? d. Did Sarah Converse intend to keep a p/rvtr? e. Statutory solutions

D. Concurrent Interests
	1. O --> A, B, and C
		a. At common law b. Modern law A --> X; C dies; what is the state of the title
	2. A --> A A --> A and B
		a. At common law b. Modern law
	3. What was the NH statute all about?
		a. An attempt to implement intent? b. The probate court clerks protective act? c. Case illustrates conflict between granting and habendum clauses
	4. Wisconsin statutes--the problem of retroactivity 5. G --> "to A, B, and C." A --> D, and then dies survived by his widow E to whom he was married at the time of the initial grant. 6. G --> "A and B, husband and wife." B --> D. How does this come out if the jurisdiction has passed a statute declaring that married women may hold and convey property as if they were femes soles?

E. Marital Property
	1. Holbrook
		a. What was the purpose of the conveyance? b. What does the court hold? c. A side note on the statute and on policy.

	F. Landlord and Tenant
	Implied Warranty of Habitability
		1. Lemle
				a. what does ct. hold on the facts? b. what does it say? why? i. opportunity to inspect ii. LL = mfg. iii. expectations of the parties c. how diff. from Brown, Phyfe
			2. Javins
					a. how diff. from what went before i. repair cov. vs. warranty ii. non-waivable iii. calculation of rent owing b. what arguments for extending cov. i. jack-of-all-trades ii. consumer protection cases iii. nature of the market iv. required by the code c. what arg. for making it unwaivable i. inequality of bargaining power ii. the codes d. the remedy - what is it? i. recission & rest? ii. damages for b/K? iii. a kind of spec. perf.?
				3. Javins questioned
				a. the problematic nature of the arguments b. it's not K i. non-waivable ii. remedy c. the problem of damages--K standard is value of what you bargained for less the value of what you got deducted from the contract price i. rent - (rent-value₂) ii. rent - (value₁-value₂) iii. rent - % of abatement
OVERALL EVALUATION
			1. The conditions under which the Ackerman analysis will work:
				a. Inelastic supply of housing at the margin b. Elastic demand at the margin c. There are a significant number of marginal tenants d. All units are earning rents e. Code enforcement does not improve landlords' ability to price discriminate f. Code enforcement will not shift the demand curve g. Transactions costs are relatively low
			2. Summary
				a. the empirical evidence is mixed--largely ineffective b. the moral point c. the racial point d. poor people are poor

RENT CONTROL
	1. Pennell
		a. What does the case hold? statute not facially unconstitutional under either due process or = protection clauses b. What does the dissent want to hold? by limiting the purposes under due process, this one is no good c. Can you think of an argument for the proposition that rent control statutes are unconstitutional?
	2. Braschi
		a. Suppose that a married couple didn't do any of the things that Blanchard and Braschi did, would the survivor not be entitled under the statute? b. Is Sullivan (p. 820) well distinguished? c. What is the argument about? courts vs. legislatures?

Download this outline.

[Home Page]
Please send comments to Rosemary Spang
URL: http://www.courses.law.harvard.edu/faculty/cdonahue/courses/prop/out/Topic2.out.html
last modified: 02/15/11