16 the oxford introductions to u.s. law: property
Finally, property has long been attacked on the ground that it promotes inequality. Property, at least if it is well managed, tends to beget more property. This is because property, by allowing the owner to exclude others, permits the owner to capture the fruits of the property, to reap what has been sown. Much of the captured “fruit” is attributable the skill and industry of the owner—but not all. Some is attributable to rising demand for resources generally, and to sheer luck. The component that can be ascribed to luck or general conditions of scarcity represents a kind of built-in multiplier whereby those who have property get more property, without regard to their individual desert. If we combine this with a general right of inheritance, then a robust system of private property can create conditions where the rich generally get richer. This is not to say that abolishing property would create greater equality. Communist systems were notorious for providing special perks for party leaders that gave them a lavish lifestyle far beyond what ordinary workers could aspire to enjoy. But it does suggest a rationale for imposing higher burdens of taxation on those with significant property to offset the dynamic tendency toward greater inequality. Whether this greater burden should be greater than proportionate with wealth or income (i.e. progressive), and if so, how much so, has been a topic of lively debate—as has the question of whether to use taxes or the rules of property itself to achieve distributive ends.
• Further Reading
C.B. Macpherson, ed., Property: Mainstream and Critical Positions (1978) (includes key readings from Locke, Bentham, Marx, Mill, and others).
Th omas W. Merrill & Henry E. Smith, What Happened to Property in Law and Economics?, 111 Yale L.J. 357 (2001) (argues that lawyers and economists have overlooked the in rem feature of property rights).
• two
Original Acquisition and the Scope
of Property Claims
how does property get started? We are familiar with the process by which someone acquires private property in some external thing by transfer (sale, gift, will, etc.) from a previous owner. But where did that owner get the property? Most likely through another such transfer. How do such chains of title begin? What is the process by which something that is unowned enters into the world of owned things?
Property theorists have long been concerned about the need to justify the origins of property. Perhaps most famously, John Locke theorized that in the beginning all resources were held in common; private property came into being when one person mixed his or her labor with some portion of these common resources, and in so doing claimed it as his or her own.1 Locke thought that this story justified the institution of private property. Most of the value of the appropriated thing, Locke claimed, was attributable to the labor expended in appropriating it. As long as the appropriator left “enough and as good” for others and did not engage in waste, it was only just to award the thing to the person who labored to acquire it.
Locke’s tale is of course a fable. No one knows exactly how the institution of property arose in human societies in prehistory. The best we can do is examine the modes of original acquisition that exist today, together with those from the past that are reasonably
1.John Locke, Two Treatises of Government 285–302 (Peter Laslett ed., Cambridge Univ. Press 1988) (1690).
17
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well documented, and consider why they have been adopted for initiating claims of title to property.
• First Possession
The most general mode of original acquisition is first possession. Possession, as we will see, is a ubiquitous concept in property, with different shades of meaning depending on context. Generally speaking, to possess some thing means to be in control of it. Control implies intention. One does not generally control some thing one does not know one has, or one is trying to throw away. Control also implies power. To possess some thing is to have power or dominion over it. The basic idea of first possession is that the first person to possess an otherwise unowned object becomes the owner. This means, generally speaking, that the first person who both intends to assert control over the object and who establishes a significant degree of power over the object is deemed to be the owner— provided no one else has any claim of ownership to it.
Courts that have applied the concept of first possession have sought to identify the required acts that demonstrate the appropriate intention and degree of power over the contested object. Pierson v. Post,2 the most famous case in property law and a frequent starting point for the course, struggles to specify the acts that define first possession in the context of acquiring original ownership of a wild fox. Post was pursuing a fox as part of an organized hunting party on a “beach,” which apparently was stipulated to be wild and unpossessed in order to remove issues of claims by the landowner. Pierson, knowing Post was in pursuit of the fox, killed the fox and took it away. Post sued and won at trial, and Pierson appealed.
The court assumed that foxes are wild animals (ferae naturae), and that ownership of such an animal is established by the rule of
2. 3 Cai. R. 175 (N.Y. Sup. Ct. 1805).
original acquisition and the scope of property claims 19
capture, which is a version of first possession. The issue that divided the parties and the justices was how close one must be to capture in order to be deemed in possession of a fox. Clearly, killing the fox and bagging it would count. But what acts short of this also would do the trick? The majority and the dissent agreed that merely spotting the fox or pursuing it would not be enough. But between mere pursuit and bagging the fox, the opinions diverge. Justice Tompkins’s majority opinion requires certain control, which in the case of a fox means at least mortal wounding coupled with continuation of the chase. Justice Livingston’s dissent would have required only a reasonable prospect of capture, which here would mean close pursuit.
In arguing for their respective positions, the majority and dissent stressed different authorities. Justice Tompkins relied almost exclusively on legal treatises, ranging from Justinian’s Institutes of the Roman Empire, to European writers such as Pufendorf and Bijnkershoek, to old English authorities such as Bracton. The assumption seems to be that there is a universal definition of possession, true in all times and places, which can be determined as a matter of law. The dissent also cited treatises, but in addition tossed off the suggestion that the dispute should be submitted for resolution to the arbitration of sportsmen—who would presumably find for Post, the hunter. This implies that the definition of possession varies from one time and place to another, and should be regarded as a question of fact.
The justices also engaged in a debate about the policy implications of different rules. The majority stressed the need for a clear rule in order to reduce conflicts in the future, suggesting that the dissent’s “reasonable prospect” rule would produce too many disputes. The dissent makes much of the need for incentives to encourage the killing of foxes and the importance of protecting investments by people like Post in the institution of fox hunting.
Pierson thus raises issues of institutional design and incentives, but the questions are more complicated than either of the justices acknowledges. It is an empirical question whether imposing clear
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rules is more likely to prevent conflict than following customs, and many have suspected that Justice Livingston was right that the customs of hunters favored Post. It is also an empirical question whether protecting a pursuer would lead to more or fewer dead foxes, either by encouraging hunts or by making the Posts of the world overly complacent. Analogous issues arise throughout property law, and are prominent in recent controversies over intellectual property: What level of patent protection promotes the most invention without stifling the process?
The case has about it a contrived air, and recent scholarship underlines the artificial nature of the conflict and the opinion. The fox itself was not worth much and seems to be symbolic in some way, perhaps as a flash point in the struggle between nouveaux riches like the Posts and old elites like the Piersons.3 Also, it turns out that foxes, unlike wild animals in general, were regarded as vermin that could be killed wherever found. Fox hunting was primarily a recreational activity, so much so that in some places hunters even paid farmers to raise foxes.4
Even if incentives to engage in fox hunting were important, the rules for determining when possession has been established perform another important function—notice to others. Recall that property is in rem: At the end of the process of original acquisition, a right is good against all others. An important part of the process of acquisition, then, must be notice to others that such a claim is being asserted. So, for example, even if it turned out that awarding exclusive rights to the first to spot the fox would encourage fox hunting, such a rule, without more, would provide very little notice to others. The lack of notice might lead others to compete with the original hunter—not to mention the possibility that more than one
3.Bethany R. Berger, It’s Not About the Fox: The Untold History of Pierson v. Post, 55 Duke L.J. 1089 (2006).
4.Andrea McDowell, Legal Fictions in Pierson v. Post, 105 Mich. L. Rev. 735 (2007).
original acquisition and the scope of property claims 21
hunter would claim to have spotted the fox first—thereby leading to wasted time and resources.
These two issues, of incentives and notice, are deeply entwined with the potential problems of the commons. The term “commons” is associated with ambiguity: We will distinguish between an open-access commons and a limited-access commons. The wellknown problem of resource depletion dubbed the “Tragedy of the Commons” is characteristic of the open-access commons.5 For example, fishers in an open-access fishery obtain the full benefit from each fish taken from the sea, whereas leaving fish for another day (perhaps to reproduce) redounds to the benefit of all the fishers. Only a tiny fraction of this benefit inures to the fisher making the decision to forbear. Given this set of incentives, each fisher has an incentive to overfish, and a group (especially one open to additional members) can easily exploit the resource to ruin. Many problems from road congestion to air pollution have this structure that tends toward overuse. By contrast, a limited-access commons such as the medieval grazing commons (mistakenly cited by Hardin as an open-access commons) were not tragic in this sense: The set of farmers with access was limited, and their behavior was further controlled by the group in the interest of resource preservation.6
In light of the tragedy of the commons, why is first possession ever the rule in property law? For one thing, the end result of first possession is private property, and to the extent that private property has advantages in terms of security of expectation, investment, planning, and so on, a process that gets us into the realm of private property gains some favor. A further advantage of the first possession rule is its simplicity: It decentralizes the process to the
5.Garrett Hardin, The Tragedy of the Commons, 162 Science 1243 (1968); see also
Thráinn Eggertsson, Open Access versus Common Property, in Terry L. Anderson & Fred S. McChesney, Property Rights: Cooperation, Conflict, and Law 73 (2003).
6.See generally Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (1990).
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appropriators who decide whether to engage in the pursuit. And here is where notice comes in: first possession is much less wasteful of resources if a clear winner emerges early on in the process of appropriation. If among those pursuing the fox or staking a homestead claim, one can tell relatively early which appropriator is likely to win, the others will give up and the wasteful race will be cut short. By contrast, where many are equally well-positioned to win the race, competition can remain fierce until the end—the end being tragic overall. It is an empirical question, and often a difficult one, whether first possession is beneficial or tragic and which first possession rule—certain control, reasonable prospect, or something else—will be most cost-effective.
Might custom be a way out of this thicket of empirical issues? Some have hypothesized that close-knit groups will develop customs that are efficient, as applied to that group.7 And in the historic example of medieval grazing commons, this seems to have been the case; the appropriators prevented the tragedy of the commons through custom. Some fisheries, too, have been maintained in part through customs among fishers. Nevertheless, if the resource is not entirely under the control of the group, the custom may work well for the group but cause externalities or a larger tragedy of the commons. Whalers may have had customs that regulated their interactions but collectively still tended to drive whales toward extinction. To return to Pierson, hunter customs fail to take into account the wishes of preservationists or animal rights activists—not to mention those of foxes. Some of the impact on out-group actors is informational: If expert fox hunters are the only ones likely to encounter a fox, the custom need only be known to hunters. But if nonhunters come upon a fox, the law is asking a lot by requiring the nonexpert to know the custom, at the pain of expending fruitless effort in getting the fox. Whether people should be expected to know of a custom is relevant to its suitability for incorporation into the law.
7. Robert C. Ellickson, Order Without Law 167–83 (1991).