Feel Free to Write Comments on the Blog

"Last Sunrise at Sandbridge" (photo by Rick Duncan)


If you wish to start (or continue) a dialogue with your classmates on some of the issues I am blogging about, feel free to do so. Just click on the comments link after any particular post, and write your comment as the spirit moves you. The only rule is the rule of civility and respect.

The Property Blog is open 24/7 for your edification.

Cheers, Rick Duncan

Jacque v. Steenberg Homes: A Few Notes, Questions, and Comments

There are a lot of issues in Jacque that lie beyond the scope of a 1L Property class. Don't worry too much about the standards for punitive damages and retroactive enforcement of new judicial rules.

Here are some things I would like you to think about:

1. What do you think of Felix Cohen's definition of "property" at 563 N.W. 2d 160?

"[T]hat is property to which the following label can be attached:

To the world:

Keep off X unless you have my permission, which I may grant or withhold.

Signed: Private Citizen
Endorsed: The state"

2. Was it unreasonable for Mr. and Mrs. Jacque to refuse permission for Steenberg Homes to cross their land? Should the law of trespass permit "reasonable" trespasses? Trespasses where the utilitarian benefits outweigh the costs? Trespasses where it was unneighborly to refuse permission?

3. Should private tort law be used by courts to punish wrongdoers who intentionally trespass on the land of another? Why not allow the criminal law to punish wrongdoers and look to tort law to compensate for the amount of damages suffered by a private landowner as a result of the trespass?

4. Is there a difference between Ms. A, who intentionally trespasses across the land of her neighbor, Mr. B, on A's morning jog, and a commercial enterprise like Steenberg Homes? What is the difference and how should the law take that into account?

5. Profs. Merrill & Smith argue that what lies behind the decision in Jacque is the court's recognition that property rights are "moral rights" or fundamental human rights that impose "duties of abstention on all other members of the relevant community." As they put it, "[i]n the court's view, Steenberg Homes had an unqualified duty to respect the Jacques' property rights, without regard to whether their reasons for refusing permission were unfounded or even silly....Punitive damages were awarded to vindicate this broader right--a pure property right--not to promote public utility by preventing violence or protecting privacy."

6. Do you agree with the view of property as a moral right and basic human right? Or do you agree with Marx and Engels who summed up their theory "in [a] single sentence: Abolition of private property."

7. In which direction is our society moving--toward more--or less--respect for private property?