Exam 1 Study Guide

Analytical Issues (in Property Philosophy)

Questions concerning the meaning and use of core concepts in property law, such as "private property" and "ownership".

Normative/Justificatory Issues (in Property Philosophy)

Questions concerning the moral justification for giving individuals exclusive rights to resources and the principles for allocating those resources.

Three Systems of Property

Common Property: Resources are available for use by all members of a society (e.g., a public park).

Collective Property: The community as a whole, through a central body, determines how resources are to be used (e.g., a military base).

Private Property: Resources are assigned to the authority of specific individuals who decide on their use (e.g., a privately owned factory) .

"Bundle of Rights" Theory of Ownership

The concept that ownership is not a single right but a collection of distinct rights, including the liberty of use, the right to exclude, and the power of transfer.

"Tragedy of the Commons" Justification

The utilitarian argument that private property is necessary because resources held in common will be overused and depleted, as no individual has an incentive to conserve them.

Goldberg v. Kelly (1970) - Holding

The Supreme Court ruled that welfare benefits are a "statutory entitlement" akin to property and are therefore protected by the Due Process Clause. This requires the state to provide an evidentiary hearing

Statutory Entitlement

A government benefit that, for persons qualified to receive it, is treated as a form of property, not a mere "privilege" or charity. Its termination requires procedural due process.

Pre-Termination Hearing Requirements

As established in Goldberg v. Kelly, the minimum procedures required before welfare benefits can be stopped, including timely notice, the right to appear orally, the right to confront witnesses, and the right to retain an attorney.

Coase Theorem

The proposition that if transaction costs are zero, the initial allocation of a legal right will not affect the efficient allocation of resources, because parties will bargain to reach the most efficient outcome.

Transaction Costs

The costs associated with bargaining and enforcing agreements. Ellickson shows these are often very high and include the cost of learning the law, hiring lawyers, and damaging social relationships.

Ellickson's Central Finding

Rural neighbors in Shasta County resolve cattle-trespass disputes based on informal norms of neighborliness and largely ignore the formal law . This happens because the transaction costs of using the law are high, not low.

Norm of Neighborliness

The informal, overarching social rule in Shasta County that neighbors should cooperate. The key lower-level norm is that a livestock owner is responsible for damage caused by their animals, regardless of the formal law.

"Lumping"

The informal norm of simply accepting minor, isolated damages from a neighbor's trespass without seeking compensation, as part of a "live-and-let-live" philosophy.

Self-Help (in Shasta County)

The primary method for enforcing norms against deviants. It includes non-violent sanctions like negative gossip and, in more extreme cases, physical retaliation like threatening or harming trespassing animals.

Legal Positivism

A theory of law holding that there is no necessary connection between law and morality. A law's validity depends on its social source (how it was made), not its moral merit.

H.L.A. Hart's Model of Law

A positivist theory that a legal system is a union of primary and secondary rules. This model is based on officials' acceptance of social rules, not on Austin's idea of commands backed by threats.

Primary Rules

Rules of obligation that directly govern conduct, telling people what they must or must not do (e.g., a law against robbery).

Secondary Rules

Rules about the primary rules that specify how they are created, changed, and identified. The most important is the Rule of Recognition.

Rule of Recognition

The master secondary rule of a legal system that sets the ultimate criteria for legal validity. It is a social rule that exists because it is accepted and practiced by legal officials.

The Plain-Fact View

Dworkin's term for legal positivism, the view that law is only a matter of historical fact about what legal institutions have decided in the past.

Propositions of Law

Statements and claims about what the law permits, prohibits, or entitles people to have (e.g., "The law forbids murderers from inheriting").

Empirical Disagreement

A dispute about law where parties agree on the grounds of law but disagree about whether those grounds are factually met (e.g., disagreeing about what words are actually in a statute book).

Theoretical Disagreement

A fundamental dispute about the grounds of law themselves. Parties disagree about what criteria determine the truth of a legal proposition (e.g., whether moral principles can be part of the grounds of law).

Elmer's Case (Riggs v. Palmer)

Dworkin's key example of a theoretical disagreement . Judges disagreed about whether the "grounds of law" for interpreting a will included only the statute's plain text or also background principles of justice like "no one shall profit from his own wrong" .

Natural Law Theory

A school of legal philosophy which argues that there is a necessary connection between law and morality. It posits that there are objective moral truths ("higher law") that can override human-made ("positive") law.

"An Unjust Law Is No Law at All" (lex injusta non est lex)

The famous maxim of natural law theory, meaning that a grossly unjust law fails to create a binding moral obligation to obey. It may be a "law" in a technical sense but lacks the moral force of a true law.

Tort

A system of law that imposes legal liability on persons who harm certain protected interests of others, typically through a bilateral lawsuit between a plaintiff and a defendant.

Compensatory Damages

The standard, backward-looking remedy in tort law that requires a defendant to pay money to place the plaintiff back in the position they would have been in if the tort had not occurred.

Negligence

A fault-based standard of liability for unintentional harm, where a defendant is liable for failing to act with the appropriate degree of care of a "reasonable person".

Strict Liability

A no-fault standard where a defendant is held liable for the harm their conduct caused, regardless of how careful they were.

Risk

The possibility or probability of a future harm. In tort law, it is the central concept for analyzing unintentional harm and is objective, based on what a "reasonable person" would have foreseen.

Economic Theories of Tort

Instrumentalist views that see tort law as a means to achieve collective goals like deterrence (minimizing accident costs) or loss spreading (distributing losses widely).

Rights-Based Theories of Tort

Theories that see tort law as a matter of corrective justice, aimed at rectifying wrongs between individuals based on the correlativity of the plaintiff's right and the defendant's duty.

Corrective Justice

The form of justice that rectifies the injustice that one person inflicts on another. It is bipolar, linking a specific doer and sufferer, and aims to restore the equality between them that the wrongful transaction disturbed .

Distributive Justice

The form of justice that deals with the distribution of a benefit or burden among the members of a political community according to some comparative criterion (e.g., need, merit, or equality).

Correlativity

The organizing idea and structure of corrective justice. It means the plaintiff's entitlement and the defendant's liability are two sides of a single relationship; the reason the plaintiff wins is the same as the reason the defendant loses.

Personality (in Private Law)

The normative (not psychological) conception of parties in private law as purposive beings with a capacity for rights . This idea underlies private law's focus on negative duties of non-interference.