Information Sheet for LS 140

Property and Liberty

Fall 2019

Professor Ben Brown

e-mail - rbbrown@berkeley.edu

 

Office hours: Monday, Wednesday,11:30 am – 12:30 pm

Room 212, Legal Studies Building, 2240 Piedmont

 

Materials:

Perspectives on Property Law, 4th edition, 2014 (make sure you purchase the fourth edition of Perspectives on Property Law).

The cases and other readings assigned on the syllabus are all available on my website: http://www.benbrownshistoryandlaw.com/

 

Grades will be based on four factors:

 

Mid-term exam - 20% - October 18 in class

 

Paper or presentation - 25% - You have a choice of writing a paper or making an in-class presentation on one of five sources. The sources and the details of the paper assignment are described below. As an alternative to writing a paper, you may volunteer to join another student to make an oral presentation to the class on one of the five sources, maximum two students per source. The group will present in class on the date that the papers are due. If you desire to explore the presentation option, please meet with me.

 

Discussion Section assignments and participation - 15% - Your GSI will assign written work as preparation for discussion sections. Your performance on these assignments will be part of your discussion section grade.

 

Final exam - 40% - Tuesday, December 17, 7:00 pm–10:00 pm

 

Paper Assignment on an Outside Source

 

Twenty-five percent (25%) of your grade will be based on an analytical paper of 5-6 pages. The papers covering each source will be due on the date that source is discussed in class. You will choose one of the following five sources on which to write your paper:

 

Valerie Martin, Property - due September 30.

Christopher Schmidt, The Sit-Ins: Protest and Legal Change in the Civil Rights Era - due October 7.

Geoge Akerlof, Robert Shiller, Phishing for Phools – due October 30.

Patrick Beach, A Good Forest for Dying - due November 6.

Lawrence Lessig, Remix - due November 22.

 

 

The purpose of the assignment is to have you think independently about the themes of the course and use what we have been learning in the course to analyze a relevant source. Choose an aspect of the author’s argument or narrative and react to it. You may agree or disagree with the author. A good paper presents a thesis about the source, and supports that thesis with evidence and analysis. Although you will have to summarize portions of the source in order to support your analysis, a mere summary of the source will be insufficient. You do not have to discuss the entirety of the source. Better papers will be very focused on specific arguments or incidents and the meaning of those for our study of Property and Liberty. While you are not required to use other material, you may do so as long as you cite any such use appropriately.

 

Present your analysis in an essay format. State your thesis clearly and support it with logical arguments. Write in well-organized paragraphs and grammatical sentences. Your paper should be from five to six pages with ordinary formatting.

 

Please feel free to discuss your analysis with me or your GSI. I am available during office hours or by appointment after class. I will also respond to emails that propose possible arguments or ways to support those arguments. I hope that you have fun applying the ideas we develop in class to these intriguing sources.

 

As an alternative, a maximum of two students may make a presentation in class on each source. See me if you want to explore this option.


 

Syllabus for LS 140

Property and Liberty

Fall 2019

Professor Ben Brown

 

Reading assignments are from Perspectives on Property Law (PPL) or my website: http://www.benbrownshistoryandlaw.com/. Some assignments require visiting other Internet sites.

 

Week of August 26 – How Property Structures Personhood

 

Readings:

PPL – 1-5, Erving Goffman, “Asylums: Essays on the Social Situation of Mental Patients and Other Inmates.”

6-15, Margaret Jane Radin, “Property and Personhood.”

90-97, Papanek, “To Each Less than She Needs”

235 – 242, Ellickson, “Unpacking the Household: Informal Property Rights Around the Hearth.”

 

Internetwww.pemberley.com/janeinfo/pridprej.html

Read Pride and Prejudice Vol. 1, chap. 13 – Arrival of Mr. Collins, by following the hyperlink above;

In Vol. 1, chap. 13, find the hyperlink “entailed away from your own children” and read about entail;

Read Vol. 1, chap. 19 –Elizabeth rejects Mr. Collins’s proposal;

Read Vol. 1, chap. 22 – Charlotte Lucas accepts Mr. Collins’s proposal;

In Vol. 1, chap 22, find the hyperlink “honourable provision for well-educated young women of small fortune” for a discussion of why Miss Lucas accepted the proposal.

 

Classes:

August 26 – No class.

 

August 28 – Introduction to the course, explain the written/oral assignment. The Importance of Property; Property and Personhood.

 

August 30 - Property and family relations; Feminism and Property in Pride and Prejudice.

 

Week of September 2 – Origins of Property

 

Readings:

PPL – 36-41, John Locke, “Two Treatises of Government”

29-35, William Blackstone, “Commentaries on the laws of England”

42-51, Hume, A Treatise on Human Nature

Website – Locke, expanded reading

 

Classes:

September 2 – Labor Day, no class

 

September 4 – Locke and the labor theory of property.

 

September 6 – Blackstone and the Common Law of Property. Hume on Property and Social Stability

 

Week of September 9 – Property by Possession

 

Readings:

PPL – 16-28, Carol M. Rose, “Property as Storytelling: Perspectives from Game Theory, Narrative Theory, Feminist Theory.”

Website – Rousseau

Internet – Property in Eve Online: http://www.polygon.com/features/2014/2/24/5419788/eve-online-thrilling-boring

 

Classes:

September 9 – Hume and Rose on who owns Property in an MMO-RPG?

 

September 11 – Rousseau’s critiques of individual property rights – establishing the ongoing dispute

 

September 13 – Smith and Property and Markets; Property in the Early U.S. Republic

 

Week of September 16 – Property and Capitalism

 

Readings:

Website – Karl Marx, “Communist Manifesto;” John Stuart Mill, excerpt from Principles of Political Economy; Henry George, excerpt from “Progress and Poverty,” “Ode to Liberty

 

Classes:

September 16 – Karl Marx rejects Property

 

September 18 – 19th Century Critiques of Markets – John Stuart Mill

 

September 20 – Henry George

 

Week of September 23 – Property and Colonialism

 

Readings:

PPL180-189, Carol M. Rose, “Possession as the Origin of Property.”

321-335, Stuart Banner, “Two Properties, One Land: Law and Space in 19th-Century New Zealand.”

Website – Paul Finkelman, “Batter Up;” Trial court decision in Popov v. Hayashi; Treaty of Waitangi; Johnson v. McIntosh; Dawes Act.

 

Classes:

September 23 – Possession as the basis of property.

 

September 25 - Colonialism and Real Property in New Zealand.

 

September 27 – How the Indians Lost their land. Using Property to destroy native culture.

 

Week of September 30 – Slavery and Property

 

Readings:

WebsiteSomerset v. Stewart; Bryan v. Walton; State v. Mann; State v. Boyce. Carol Rose, “Property Law and the Rise, Life, and Demise of Racially Restrictive Covenants;” Shelley v. Kraemer.

Internet – John Belton ONeall “Negro Law of South Carolina” chapter 2 pp. 17 -28 found at: https://archive.org/details/negrolawofsouthc00onea.

 

Classes:

September 30 – Group 1 – Valerie Martin, Property

 

October 2 – American Law of Slavery

 

October 4 – Race and Property in the 20th Century

 

Week of October 7 – Race and Property after Slavery

 

Readings:

PPL – 243-250, Penalver and Katyal, Property Outlaws.

WebsiteBell v. Maryland; William Graham Sumner, What Social Classes Owe to Each Other; Thorstein Veblen, Theory of the Leisure Class.

 

Classes:

October 7 – Group 2 – Christopher Schmidt, The Sit-ins: Protests and Legal Change in the Civil Rights Era

 

October 9 – Civil Rights Act and Bell v. Maryland

 

October 11– Introduction to Inequality: Property in the 20th Century U.S

 


 

Week of October 14 – Income Equality in the 20th Century

 

Readings:

PPL – 52-63, Milton Friedman, Capitalism and Freedom

83-90, John Rawls, A Theory of Justice

292-303, Albert O Hirscham, “Rival Interpretations of Market Society: Civilizing, Destructive, or Feeble.”

Website – Mark Roe, “Backlash.

InternetJohn Cassady review of Thomas Piketty Capital in the Twenty-first Century: http://www.newyorker.com/magazine/2014/03/31/forces-of-divergence?printable=true&currentPage=all#ixzz2wuzLPF2d

 

Classes:

October 14 – Economic Inequality in the 20th Century – Friedman and Rawls

 

October 16 – Problem of Inequality – Roe and Piketty

 

October 18 – Midterm exam in class

 

Week of October 21 – The Tragedy of the Commons –

Do communal use systems always lead to inefficiencies?

 

Readings:

PPL – 99-106, Garret Hardin, “The Tragedy of the Commons.”

112-120, Demsetz, “Toward a Theory of Property Rights.”

139-148, Smith, “Semi-Common Property Rights and Scattering in the Open Fields.”

107-112, James M. Acheson, “The Lobster Gangs of Maine.”

225-234, Robert Axelrod, “The Evolution of Cooperation.”

173-80, Ronald H. Coase, “The Problem of Social Cost.”

WebsiteBoomer v. Atlantic Cement

Internet – Elinor Ostrom youtube clip: www.youtube.com/watch?v=ByXM47Ri1Kc

 

Classes:

October 21 –The Tragedy of the Commons

 

October 23 – The Tragedy of the Commons Critiqued

 

October 25 – Introduction to Law and Economic Analysis

 

Week of Oct.28 –Are Markets Rational?

 

Readings:

PPL – 322-328, Richard A. Posner, Economic Analysis of Law

181-90, Robert C. Ellickson, Order without Law: How Neighbors Settle Disputes

190-200, Joseph Henrich, et al., “Behavioral Experiments in 15 Small-Scale Societies

Internet – Dan Ariely Ted Talk: http://www.ted.com/talks/dan_ariely_asks_are_we_in_control_of_our_own_decisions.html

Dan Pink: http://www.ted.com/talks/dan_pink_on_motivation.html

 

Classes:

October 28 –. Critiques of Law and Economics.

 

October 30 – Group 3 – George Akerlof, Robert Shiller, Phishing for Phools

 

November 1 – Law and economics in non-market societies

 

Week of Nov. 4 – Government Regulation and Property Rights

 

Readings:

PPL – 410-418, Joseph L. Sax, “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention,”

WebsitePennsylvania Coal Co. v. Mahon, Just v. Marinette County; Kelo v. New London, Conn

 

Classes:

November 4 – Introduction to Environmental Law

 

November 6 – Group 4 – Patrick Beach, A Good Forest for Dying.

 

November 8 – How severely can the government regulate the use of property before it must pay compensation to the owner?

 

Week of November 11 – Eminent Domain and Environmentalism

 

Readings:

Website – Charles Reich, excerpt from “The New Property;” Goldberg v. Kelly.

 

Classes:

November 11 – Veterans Day, no class.

 

November 13 – Oregon Prop 37 and Prop 49, Post-Kelo propositions.

 

November 15 – No class.

 

Week of November 18 – The Internet and Public Goods –

Should the Internet be an open-access commons?

 

Readings:

PPL – 131-139, Michael A. Heller and Rebecca S. Eisenberg, “Can Patents Deter Innovation? The Anticommons in Biomedical Research.”

419-428, Robert P. Merges, “Property Rights Theory and the Commons: The Case of Scientific Research.”

 

Classes:

November 18 – Charles Reich, “The New Property.” Government entitlements as Property

 

November 20 – An Introduction to Public Goods; Patents, Copyright and Intellectual Property

 

November 22 – Group 5 – Lawrence Lessig, Remix

 

Week of November 25 – Homelessness

 

Readings:

Internet – Denver’s Road Home program: www.denversroadhome.org

 

Classes:

November 25 – Homelessness and Community

 

November 27 and 29 – Thanksgiving break, no class.

 

Week of December 2 – Organizing the Internet and Internet Piracy

 

Readings:

Internethttp://www.authorama.com/free-culture-1.html

Lawrence Lessig, Free Culture, Read chapter 5 on piracy and property

 

Classes:

December 2 – Organizing the Internet

 

December 4 – Internet property and privacy

 

December 6 – Property and the Challenges of the 21st Century

 

Final Exam – Tuesday, December 17 7:00 pm – 10:00 pm