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AndrewHerink-FirstPaper 12 - 18 Mar 2008 - Main.IanSullivan
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| | | Conclusions
In the final analysis, I am probably too critical of Demsetz; judicial bias will likely creep into property, and all law, no matter what rule governs. Thus our first response to such bias should not be to change the law's substance. We must instead affect its processes. Procedurally, the best way to eliminate judicial bias is to change the predominantly white and upper class makeup of our courts. If we can make the composition of our courts representative of society as a whole, the problem of judicial bias will become the advantage of judicial democracy. | |
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AndrewHerink-FirstPaper 11 - 05 Mar 2008 - Main.IanSullivan
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| | | Conclusions
In the final analysis, I am probably too critical of Demsetz; judicial bias will likely creep into property, and all law, no matter what rule governs. Thus our first response to such bias should not be to change the law's substance. We must instead affect its processes. Procedurally, the best way to eliminate judicial bias is to change the predominantly white and upper class makeup of our courts. If we can make the composition of our courts representative of society as a whole, the problem of judicial bias will become the advantage of judicial democracy. | |
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AndrewHerink-FirstPaper 10 - 26 Feb 2008 - Main.AndrewHerink
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< | Legal Argument as a Social Force: Capitalism and the Deterioration of Lockean Property Justifications | >
> | Demsetz and Bias | | | -- By AndrewHerink - 10 Feb 2008 | |
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< | Cohen argues that law is a social force. Extrapolating this thesis, I posit that legal arguments are social forces and, specifically, that courts’ legal reasoning changes to justify economic relations. In this paper, I apply my theory to caselaw, showing that the growth of capitalism mutated the Lockean justification of property rights in Anglo-American courts. | >
> | In 1967, Harold Demsetz published an article in the American Economic Review, arguing that “new property rights” should arise “in response to the desires of the interacting persons for adjustment to new benefit-cost possibilities.” That is, Demsetz posits that property rights should be granted only when their benefit outweighs their cost. In evaluating the plausibility of this proposition, I apply it to a hypothetical: the Supreme Court of Miltonfriedmanville, under the guidance of Chief Justice Demsetz, has to decide whether it should grant plaintiff a property right in the use of his nickname (“Big Al”) against defendant, a budding restaurant franchise (“Big Al’s Tacos”). I find that if Demsetz’s utilitarian rule of property was made universal, it would promote a systematic bias towards judges’ experiences and values. | | | | |
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- This isn't a logical development: it's a shoehorn. You needn't have bothered claiming this had something to do with Felix Cohen, which in truth it doesn't. You wanted to present an idea generated by reading some cases in Property, which is a fine idea and didn't need to be connected to Felix Cohen to be worthwhile. The actual argument made about those cases stands or falls on its own, however, and by putting forward this off-kilter introduction, you make it more confusing for the reader to get what that argument is about. You could have said, for example, "I want to show how the labor theory of value declines in supposed importance in property cases as capital becomes more powerful over time and labor less so." That would have been clear, and would have let the reader know much more swiftly what is going on.
| >
> | Characterizations of the Costs and Benefits | | | | |
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< | Early Cases: A Lockean Theory of Property | >
> | After reading the briefs on the “Big Al” case, Justice Demsetz starts to run his cost-benefit analysis. His first step is to characterize the benefits on both sides of the issue. No matter how he does so, I posit that his personal biases will skew the math. | | | | |
>
> | Situation One: Abstract Benefits versus Concrete Benefits
Demsetz realizes that if he grants the property right he could slow the economy, and that if he does not grant it he will deny the “Big Als” of the world a dignitary interest in keeping their nicknames unused by others. Many justices would term this an “easy call,” because Big Al’s dignitary interest is abstract, while the harm to the economy is concrete. Judges can and do make this choice, but it is not a purely utilitarian decision; it does not involve choosing “benefit X” over “benefit X-minus-Y.” The choice is instead one of prioritizing prevention of the concrete harm over prevention of the abstract one.
Only if a judge has identified with the abstract harm's emotional or mental consequence is he likely to make the opposite choice: picking the abstract benefit over the concrete benefit. Moreover, judges are predisposed to have such an identification only if they have experienced the harm firsthand. For example, a white judge is less likely than a black judge to give weight to the abstract harm felt from racial epithets, for he has never felt such a harm. Bias occurs on another level as well: the white judge is more likely than his black counterpart to give weight to abstract harms experienced in white communities, such as the loss of a sense of self-determination resulting from affirmative action. Thus, the experiences of judges bias them towards choosing only particular abstract benefits over concrete benefits. In turn, given the current ethnic and socioeconomic composition of the judiciary, Demsetz’s rule would create a systematic bias towards the interests of whites and the upper class. | | | | |
<
< | Pre-industrial courts employed traditional Lockean property theory, arguing that individual labor created property. In Keeble v. Hickering (1707), 11 East 574, defendant fired a gun, scattering ducks that had landed in plaintiff’s fowl trap. The court gave plaintiff title to these birds, for he had caught them using “his art” and “his skill.” Plaintiff’s labor created the property right. | >
> | Situation Two: Abstract Benefits versus Abstract Benefits | | | | |
<
< |
- This is in truth a much weaker claim than it looks. You don't mean "Pre-industrial courts employed a labor theory of value all the time"--you haven't read much in the English law before whenever "industrial" begins, so you can't say. As it happens, natural rights and labor theory of value are both entirely absent from the theory of property presented by pre-industrial English law from, say, 1066 to 1600. What you actually mean is "I have read a couple of pre-industrial English cases treating marginal kinds of property under unusual conditions that seem to make use of a labor theory of value but I can't tell whether that's common or uncommon."
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> | Alternatively, let us assume that Demsetz characterizes the harm of granting the property right as undermining free speech. Now, he has to weigh two abstract benefits (free speech and dignitary rights in nicknames). In such situations, the aforementioned systematic bias towards judges' own experiences will prevail again. Cases will arise in which judges identify with neither abstract harm, but nonetheless, in the aggregate, Demsetz’s rule will yield a bias towards judicial experience in this situation as well. | | | | |
<
< | The Lockean argument continued to hold weight in the early years of industrial capitalism. In Eads v. Brazelton (1861), 22 Ark. 499, plaintiff discovered a sunken ship and put a buoy above the wreckage to claim its lead. The court ruled that, even though “he had the intention of possessing,” plaintiff had not established a property right because he had not made “persistent efforts directed to raising the lead.” Again, individual labor created property. In Weatherbee v. Green (1871), 22 Mich. 31, plaintiff made barrel-hoops from wood that he had accidentally appropriated. The court stated that “when the right to the improved article is [at] issue, the question, how much the […] labor of each has contributed to make it what it is, must always be of first importance.” The court equated the extent of one’s labor with the strength of one’s property right.
- This argument really means "I could have cited similar cases decided the other way on similar facts but these allow me to continue to maintain an argument concerning 'industrial capitalism' despite being (again) marginal cases on non-industrial subjects; I have no idea whether they are common, though I have a hunch that Arkansas decisions from the early 1860s probably don't reflect the ethos of industrial capitalism." Your treatment of the issue in Weatherbee v. Green would surprise the judge who decided it. But there's an excellent case about horse shit in Stamford, Connecticut, in 1883 that goes your way. Unfortunately, a case deciding ownership of horse shit on the basis of a labor theory of value isn't exactly about "industrial capitalism" either. Except I suppose, to the horse.
Capitalism Rises, and Lockean Notions Fall
Capitalism is seemingly inconsistent with the notion that individual effort produces property. That notion implies that proletarians, not capitalists, should control products. As capitalism grew, political theorists aligned the status quo with Lockeanism by positing that workers sold their property for wages. The courts took a different route, arguing that corporate effort (not individual labor) created property rights. In International News Service v. Associated Press (1918), 248 U.S. 215, the court held that AP deserved a property in the news it published because AP “as the result of organization and the expenditure of labor, skill, and money” had discovered the information. The AP court converted the Lockean concept to a capitalist-friendly form; the justices still employed the word “labor” to justify the property right, but the term no longer represented individual effort. Instead, the court defined “labor” as a profit-gaining resource (like skill and money) utilized by the corporation.
AP emblematized ?? a general trend towards corporatizing %RED?? Lockean theory. Adept lawyers exploited this change. In Tribune Co. v. Oak Leaves Broadcasting, Inc. (1926), 68 Cong. Rec. 215, WGN attempted to gain title over a radio wavelength. Counsel argued that "by usage of a particular wave length for a considerable length of time and by reason of the expenditure of a considerable amount of money in developing its broadcast station," WGN had acquired title to the wavelength. Predictably, the court gave WGN a property right.
- And Congress, not being in on the joke, took it away again in 1927?
Further Derivations from the Lockean View
By placing a utilitarian condition on the newfound rule that corporate effort created a property right, later cases strayed farther from the Lockean notion of property. Such a utilitarian condition, which protects only “productive” types of effort, reinforces capitalism. In Cable Vision, Inc. v. KUTV, Inc. (1964), 335 F.2d 348, the court reasoned that a corporation “reaping where it has not sown” should not be held to have violated a property right unless the right promotes “the public interest.” Similarly, in RCA Mfg. Co. v. Whiteman (1940), 114 F.2d 86, the court stated that AP “cannot be used as a cover to prevent competitors from ever appropriating the results of the industry, skill, and expense of others.” Instead, the court argued that only products of “labor and ingenuity” that “inure […] to the public benefit” are property. Fittingly, the opinion’s concept of the public benefit was strongly capitalistic: the court stated that commercial products were protected, but ideas were generally not. Thus, as the twentieth century elapsed, courts added a capitalistic utilitarian qualification to the corporate property right.
Utility Yields Property?
The courts’ next step may be to abandon any form of Lockean justification for property. Such a purely utilitarian property theory would reinforce capitalism better than its predecessors, for it would eliminate the notion that individual rights, at times, trump productivity. Although a wholly utilitarian theory of property has not yet taken over Anglo-American courts, such a theory has prevailed in academia. In 1967, Harold Demsetz published an article in the American Economic Review, arguing that “new property rights” arise “in response to the desires of the interacting persons for adjustment to new benefit-cost possibilities.” In other words, property rights only materialize when their social benefit outweighs their detriment.
This "Law and Economics" property theory has begun to permeate the courts. In a dissent in White v. Samsung Electronics America, Inc. (1992), 989 F.2d 1512, Judge Kozinski argued that by giving plaintiff “an exclusive right to anything that reminds the viewer of her” the court discouraged potential “future creators” of advertisements. Kozinski noted that he would have refused granting a property right to plaintiff on the grounds that such a right was socially detrimental.
- Not even Alex Kozinski, absurd egotist that he is, would take as evidence of something "permeating the courts" that he shot it off once in a dissent. Your standard for what constitutes evidence--that someone said it on more than one occasion (possibly two occasions) after the onset of the Industrial Revolution--is really just a little too low, even for use in the history of ideas.
| >
> | Situation Three: Concrete Benefits versus Concrete Benefits
Now let us posit, alternatively, that Demsetz determines that the cost of not granting the property right is wasted fuel. People are told to meet at “Big Al’s” (or another nickname) and some incorrectly show up at the business instead of their friend's house. Those who do so in their cars waste gas. Now, Demsetz has two seemingly concrete harms to weigh: lost natural resources and the drag on the economy.
In this situation, the first problem is one that Jerome Frank identifies: it is impossible to accurately predict the results of a given holding, for the real world is too complicated and fluid. Yet, even if we assume that Judge Demsetz can determine exactly how much fuel will be wasted and precisely how much the GDP will fall, he still has to determine the relative values of “x” (fuel lost) and “y” (decline in GDP). At this level of specificity, these values tend to be matters of public debate. Those on the left assign a higher value to fuel loss than those on the right; the opposite is true for loss in GDP. Granted, some cases present more quantifiable choices at this level. Yet, in many cases, judges who follow Demsetz's rule have to take a side in contentious policy debates, and they are likely to do so based on their own, predominantly white and upper class, values.
Thus whether judges characterize the harms as abstract or concrete (or even if they put both characterizations on each side of the equation), Demsetz’s rule will yield a systematic, aggregate bias towards judges’ experience and values | | |
Conclusions | |
<
< | The above development not only conforms with Cohen’s legal hypotheses; it aligns with Marxist theory. For the Marxist, law is simply part of the superstructure that the capitalist base creates. Perhaps, another scholar could review law in communist countries to see if the base-superstructure theory applies as aptly there.
- This is not how legal history is done. In fact, this is pretty much "how not to do it," a work in the genre "cartoon of Horwitz." But it has ambition, industry, and (unfortunately) pomposity to spare. While it would take years of effort and more than ordinary talent to nail down capably even a corner of your argument, if you can get down off the high horse long enough to read the tracks to find which way the quarry actually went, you'll make one hell of a hunt out of it before you're through.
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> | In the final analysis, I am probably too critical of Demsetz; judicial bias will likely creep into property, and all law, no matter what rule governs. Thus our first response to such bias should not be to change the law's substance. We must instead affect its processes. Procedurally, the best way to eliminate judicial bias is to change the predominantly white and upper class makeup of our courts. If we can make the composition of our courts representative of society as a whole, the problem of judicial bias will become the advantage of judicial democracy. |
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AndrewHerink-FirstPaper 9 - 19 Feb 2008 - Main.EbenMoglen
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| | | -- By AndrewHerink - 10 Feb 2008
Cohen argues that law is a social force. Extrapolating this thesis, I posit that legal arguments are social forces and, specifically, that courts’ legal reasoning changes to justify economic relations. In this paper, I apply my theory to caselaw, showing that the growth of capitalism mutated the Lockean justification of property rights in Anglo-American courts. | |
>
> |
- This isn't a logical development: it's a shoehorn. You needn't have bothered claiming this had something to do with Felix Cohen, which in truth it doesn't. You wanted to present an idea generated by reading some cases in Property, which is a fine idea and didn't need to be connected to Felix Cohen to be worthwhile. The actual argument made about those cases stands or falls on its own, however, and by putting forward this off-kilter introduction, you make it more confusing for the reader to get what that argument is about. You could have said, for example, "I want to show how the labor theory of value declines in supposed importance in property cases as capital becomes more powerful over time and labor less so." That would have been clear, and would have let the reader know much more swiftly what is going on.
| | | Early Cases: A Lockean Theory of Property
Pre-industrial courts employed traditional Lockean property theory, arguing that individual labor created property. In Keeble v. Hickering (1707), 11 East 574, defendant fired a gun, scattering ducks that had landed in plaintiff’s fowl trap. The court gave plaintiff title to these birds, for he had caught them using “his art” and “his skill.” Plaintiff’s labor created the property right. | |
<
< | The Lockean argument continued to hold weight in the early years of industrial capitalism. In Eads v. Brazelton (1861), 22 Ark. 499, plaintiff discovered a sunken ship and put a buoy above the wreckage to claim its lead. The court ruled that, even though “he had the intention of possessing,” plaintiff had not established a property right because he had not made “persistent efforts directed to raising the lead.” Again, individual labor created property. In Weatherbee v. Green (1871), 22 Mich. 311, plaintiff made barrel-hoops from wood that he had accidentally appropriated. The court stated that “when the right to the improved article is [at] issue, the question, how much the […] labor of each has contributed to make it what it is, must always be of first importance.” The court equated the extent of one’s labor with the strength of one’s property right. | >
> |
- This is in truth a much weaker claim than it looks. You don't mean "Pre-industrial courts employed a labor theory of value all the time"--you haven't read much in the English law before whenever "industrial" begins, so you can't say. As it happens, natural rights and labor theory of value are both entirely absent from the theory of property presented by pre-industrial English law from, say, 1066 to 1600. What you actually mean is "I have read a couple of pre-industrial English cases treating marginal kinds of property under unusual conditions that seem to make use of a labor theory of value but I can't tell whether that's common or uncommon."
The Lockean argument continued to hold weight in the early years of industrial capitalism. In Eads v. Brazelton (1861), 22 Ark. 499, plaintiff discovered a sunken ship and put a buoy above the wreckage to claim its lead. The court ruled that, even though “he had the intention of possessing,” plaintiff had not established a property right because he had not made “persistent efforts directed to raising the lead.” Again, individual labor created property. In Weatherbee v. Green (1871), 22 Mich. 31, plaintiff made barrel-hoops from wood that he had accidentally appropriated. The court stated that “when the right to the improved article is [at] issue, the question, how much the […] labor of each has contributed to make it what it is, must always be of first importance.” The court equated the extent of one’s labor with the strength of one’s property right.
- This argument really means "I could have cited similar cases decided the other way on similar facts but these allow me to continue to maintain an argument concerning 'industrial capitalism' despite being (again) marginal cases on non-industrial subjects; I have no idea whether they are common, though I have a hunch that Arkansas decisions from the early 1860s probably don't reflect the ethos of industrial capitalism." Your treatment of the issue in Weatherbee v. Green would surprise the judge who decided it. But there's an excellent case about horse shit in Stamford, Connecticut, in 1883 that goes your way. Unfortunately, a case deciding ownership of horse shit on the basis of a labor theory of value isn't exactly about "industrial capitalism" either. Except I suppose, to the horse.
| | | Capitalism Rises, and Lockean Notions Fall
Capitalism is seemingly inconsistent with the notion that individual effort produces property. That notion implies that proletarians, not capitalists, should control products. As capitalism grew, political theorists aligned the status quo with Lockeanism by positing that workers sold their property for wages. The courts took a different route, arguing that corporate effort (not individual labor) created property rights. In International News Service v. Associated Press (1918), 248 U.S. 215, the court held that AP deserved a property in the news it published because AP “as the result of organization and the expenditure of labor, skill, and money” had discovered the information. The AP court converted the Lockean concept to a capitalist-friendly form; the justices still employed the word “labor” to justify the property right, but the term no longer represented individual effort. Instead, the court defined “labor” as a profit-gaining resource (like skill and money) utilized by the corporation. | |
<
< | AP emblematized a general trend towards corporatizing Lockean theory. Adept lawyers exploited this change. In Tribune Co. v. Oak Leaves Broadcasting, Inc. (1926), 68 Cong. Rec. 215, WGN attempted to gain title over a radio wavelength. Counsel argued that "by usage of a particular wave length for a considerable length of time and by reason of the expenditure of a considerable amount of money in developing its broadcast station," WGN had acquired title to the wavelength. Predictably, the court gave WGN a property right. | >
> | AP emblematized ?? a general trend towards corporatizing %RED?? Lockean theory. Adept lawyers exploited this change. In Tribune Co. v. Oak Leaves Broadcasting, Inc. (1926), 68 Cong. Rec. 215, WGN attempted to gain title over a radio wavelength. Counsel argued that "by usage of a particular wave length for a considerable length of time and by reason of the expenditure of a considerable amount of money in developing its broadcast station," WGN had acquired title to the wavelength. Predictably, the court gave WGN a property right.
- And Congress, not being in on the joke, took it away again in 1927?
| | | Further Derivations from the Lockean View | | | Utility Yields Property?
The courts’ next step may be to abandon any form of Lockean justification for property. Such a purely utilitarian property theory would reinforce capitalism better than its predecessors, for it would eliminate the notion that individual rights, at times, trump productivity. Although a wholly utilitarian theory of property has not yet taken over Anglo-American courts, such a theory has prevailed in academia. In 1967, Harold Demsetz published an article in the American Economic Review, arguing that “new property rights” arise “in response to the desires of the interacting persons for adjustment to new benefit-cost possibilities.” In other words, property rights only materialize when their social benefit outweighs their detriment.
This "Law and Economics" property theory has begun to permeate the courts. In a dissent in White v. Samsung Electronics America, Inc. (1992), 989 F.2d 1512, Judge Kozinski argued that by giving plaintiff “an exclusive right to anything that reminds the viewer of her” the court discouraged potential “future creators” of advertisements. Kozinski noted that he would have refused granting a property right to plaintiff on the grounds that such a right was socially detrimental. | |
>
> |
- Not even Alex Kozinski, absurd egotist that he is, would take as evidence of something "permeating the courts" that he shot it off once in a dissent. Your standard for what constitutes evidence--that someone said it on more than one occasion (possibly two occasions) after the onset of the Industrial Revolution--is really just a little too low, even for use in the history of ideas.
| | | Conclusions
The above development not only conforms with Cohen’s legal hypotheses; it aligns with Marxist theory. For the Marxist, law is simply part of the superstructure that the capitalist base creates. Perhaps, another scholar could review law in communist countries to see if the base-superstructure theory applies as aptly there. | |
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< | # * Set ALLOWTOPICVIEW = TWikiAdminGroup, AndrewHerink | >
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- This is not how legal history is done. In fact, this is pretty much "how not to do it," a work in the genre "cartoon of Horwitz." But it has ambition, industry, and (unfortunately) pomposity to spare. While it would take years of effort and more than ordinary talent to nail down capably even a corner of your argument, if you can get down off the high horse long enough to read the tracks to find which way the quarry actually went, you'll make one hell of a hunt out of it before you're through.
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AndrewHerink-FirstPaper 8 - 14 Feb 2008 - Main.AndrewHerink
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< | Legal Argument as a Social Force: Capitalism and the Deterioration of Lockean Justifications for Property | >
> | Legal Argument as a Social Force: Capitalism and the Deterioration of Lockean Property Justifications | | | -- By AndrewHerink - 10 Feb 2008 | |
<
< | Cohen argues that law is a social force. Extrapolating this thesis, I posit that legal arguments are social forces and, specifically, that courts’ legal reasoning changes in order to justify economic relations. In this paper, I apply my theory to caselaw, showing that the growth of capitalism mutated the Lockean justification of property rights.
Early Anglo-American Cases: A Lockean Theory of Property | >
> | Cohen argues that law is a social force. Extrapolating this thesis, I posit that legal arguments are social forces and, specifically, that courts’ legal reasoning changes to justify economic relations. In this paper, I apply my theory to caselaw, showing that the growth of capitalism mutated the Lockean justification of property rights in Anglo-American courts.
Early Cases: A Lockean Theory of Property | | | | |
<
< | In pre-industrial Anglo-American law, courts employed a Lockean notion of labor to justify property rights. In Keeble v. Hickering (1707), 11 East 574, defendant fired a gun, scattering ducks that had landed in plaintiff’s fowl trap. The court gave plaintiff title to these birds, for he had caught them using “his art” and “his skill.” Plaintiff’s labor created the property right.
The Lockean argument continued to hold weight in the early years of industrial capitalism. In Eads v. Brazelton (1861), 22 Ark. 499, plaintiff discovered a sunken ship and put a buoy above the wreckage to claim its lead. The court ruled that, even though “he had the intention of possessing,” plaintiff had not established a property right because he had not made “persistent efforts directed to raising the lead.” Again, individual labor created a property right. In Weatherbee v. Green (1871), 22 Mich. 311, plaintiff made barrel-hoops from wood that he had accidentally appropriated. The court stated that “when the right to the improved article is the point in issue, the question, how much the […] labor of each has contributed to make it what it is, must always be of first importance.” The court equated the extent of one’s labor with the strength of one’s property right. | >
> | Pre-industrial courts employed traditional Lockean property theory, arguing that individual labor created property. In Keeble v. Hickering (1707), 11 East 574, defendant fired a gun, scattering ducks that had landed in plaintiff’s fowl trap. The court gave plaintiff title to these birds, for he had caught them using “his art” and “his skill.” Plaintiff’s labor created the property right.
The Lockean argument continued to hold weight in the early years of industrial capitalism. In Eads v. Brazelton (1861), 22 Ark. 499, plaintiff discovered a sunken ship and put a buoy above the wreckage to claim its lead. The court ruled that, even though “he had the intention of possessing,” plaintiff had not established a property right because he had not made “persistent efforts directed to raising the lead.” Again, individual labor created property. In Weatherbee v. Green (1871), 22 Mich. 311, plaintiff made barrel-hoops from wood that he had accidentally appropriated. The court stated that “when the right to the improved article is [at] issue, the question, how much the […] labor of each has contributed to make it what it is, must always be of first importance.” The court equated the extent of one’s labor with the strength of one’s property right. | | | Capitalism Rises, and Lockean Notions Fall | |
<
< | Capitalism is inconsistent with the Lockean view of labor. If individual effort produces property, then proletarians, not capitalists, should control the objects workers create. Thus, as capitalism grew, judges tweaked the Lockean argument to justify the status quo. In International News Service v. Associated Press (1918), 248 U.S. 215, the court held that AP deserved a property right in the news articles it published because AP “as the result of organization and the expenditure of labor, skill, and money” had discovered the news. The AP court converted the Lockean concept to a capitalist-friendly form; the justices still employed the word “labor” to justify the property right, but the term no longer represented individual effort. Instead, the court defined “labor” as a profit-gaining resource (like skill and money) utilized by the corporation.
AP emblematized a general trend towards corporatizing the Lockean theory. In Prest-O-Lite Co. v. Davis (1913), 209 F. 917, the court held that defendant wrongfully appropriated the gas-tank model of plaintiff business owner. The court stated: “The great value of [plaintiff’s] business lies in the interchangeability of its tanks. This quality the [plaintiff] has created. It is his, and no one has the right to appropriate it.” Thus the court deemed the business (or its owner) the principal creator of the object, giving the property right to the capitalist, not the proletarian. | >
> | Capitalism is seemingly inconsistent with the notion that individual effort produces property. That notion implies that proletarians, not capitalists, should control products. As capitalism grew, political theorists aligned the status quo with Lockeanism by positing that workers sold their property for wages. The courts took a different route, arguing that corporate effort (not individual labor) created property rights. In International News Service v. Associated Press (1918), 248 U.S. 215, the court held that AP deserved a property in the news it published because AP “as the result of organization and the expenditure of labor, skill, and money” had discovered the information. The AP court converted the Lockean concept to a capitalist-friendly form; the justices still employed the word “labor” to justify the property right, but the term no longer represented individual effort. Instead, the court defined “labor” as a profit-gaining resource (like skill and money) utilized by the corporation.
AP emblematized a general trend towards corporatizing Lockean theory. Adept lawyers exploited this change. In Tribune Co. v. Oak Leaves Broadcasting, Inc. (1926), 68 Cong. Rec. 215, WGN attempted to gain title over a radio wavelength. Counsel argued that "by usage of a particular wave length for a considerable length of time and by reason of the expenditure of a considerable amount of money in developing its broadcast station," WGN had acquired title to the wavelength. Predictably, the court gave WGN a property right. | | | Further Derivations from the Lockean View | |
<
< | By placing a utilitarian condition on the newfound rule that corporate effort created a property right, later cases strayed farther from the Lockean notion of property. Such a utilitarian condition, which protects only “productive” types of effort, reinforces capitalism. In Cable Vision, Inc. v. KUTV, Inc. (1964), 335 F.2d 348, the court reasoned that a corporation “reaping where it has not sown” should not be held to have violated a property right unless the right promotes “the public interest.” Similarly, in RCA Mfg. Co. v. Whiteman (1940), 114 F.2d 86, the court stated that AP “cannot be used as a cover to prevent competitors from ever appropriating the results of the industry, skill, and expense of others.” Instead, the court argued that only products of “labor and ingenuity” that “inure […] to the public benefit” should be deemed property. Fittingly, the opinion’s concept of the public benefit was strongly capitalistic: the court stated that commercial products were protected, but ideas were generally not. Thus, as the twentieth century elapsed, courts added a capitalistic utilitarian qualification to the pseudo-Lockean (i.e. corporate) property right. | >
> | By placing a utilitarian condition on the newfound rule that corporate effort created a property right, later cases strayed farther from the Lockean notion of property. Such a utilitarian condition, which protects only “productive” types of effort, reinforces capitalism. In Cable Vision, Inc. v. KUTV, Inc. (1964), 335 F.2d 348, the court reasoned that a corporation “reaping where it has not sown” should not be held to have violated a property right unless the right promotes “the public interest.” Similarly, in RCA Mfg. Co. v. Whiteman (1940), 114 F.2d 86, the court stated that AP “cannot be used as a cover to prevent competitors from ever appropriating the results of the industry, skill, and expense of others.” Instead, the court argued that only products of “labor and ingenuity” that “inure […] to the public benefit” are property. Fittingly, the opinion’s concept of the public benefit was strongly capitalistic: the court stated that commercial products were protected, but ideas were generally not. Thus, as the twentieth century elapsed, courts added a capitalistic utilitarian qualification to the corporate property right. | | | Utility Yields Property? | |
<
< | The courts’ next step may be to abandon any form of Lockean justification for property. Such a purely utilitarian property theory would reinforce capitalism better than its predecessors, for it would eliminate the notion that productivity must, at times, take a back seat to individual rights. Although a wholly utilitarian theory of property has not yet taken over Anglo-American courts, such a theory has prevailed in academia. In 1967, Harold Demsetz published an article in the American Economic Review, arguing that “new property rights” arise “in response to the desires of the interacting persons for adjustment to new benefit-cost possibilities.” In other words, property rights only materialize when their social benefit outweighs their detriment.
Demsetz’s theory of property has begun to permeate Anglo-American courts. In a dissent in White v. Samsung Electronics America, Inc. (1992), 989 F.2d 1512, Judge Kozinski argued that by giving plaintiff “an exclusive right to anything that reminds the [television] viewer of her” the court discouraged potential “future creators” of advertisements. Kozinski noted that he would have refused granting a property right to plaintiff wholly on the grounds that such a right was socially detrimental. | >
> | The courts’ next step may be to abandon any form of Lockean justification for property. Such a purely utilitarian property theory would reinforce capitalism better than its predecessors, for it would eliminate the notion that individual rights, at times, trump productivity. Although a wholly utilitarian theory of property has not yet taken over Anglo-American courts, such a theory has prevailed in academia. In 1967, Harold Demsetz published an article in the American Economic Review, arguing that “new property rights” arise “in response to the desires of the interacting persons for adjustment to new benefit-cost possibilities.” In other words, property rights only materialize when their social benefit outweighs their detriment.
This "Law and Economics" property theory has begun to permeate the courts. In a dissent in White v. Samsung Electronics America, Inc. (1992), 989 F.2d 1512, Judge Kozinski argued that by giving plaintiff “an exclusive right to anything that reminds the viewer of her” the court discouraged potential “future creators” of advertisements. Kozinski noted that he would have refused granting a property right to plaintiff on the grounds that such a right was socially detrimental. | | | Conclusions
The above development not only conforms with Cohen’s legal hypotheses; it aligns with Marxist theory. For the Marxist, law is simply part of the superstructure that the capitalist base creates. Perhaps, another scholar could review law in communist countries to see if the base-superstructure theory applies as aptly there.
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< | Law as a Social Force: Capitalism's Destruction of Lockean Views on Property | >
> | Legal Argument as a Social Force: Capitalism and the Deterioration of Lockean Justifications for Property | | | -- By AndrewHerink - 10 Feb 2008 | |
<
< | Cohen argues that law is a social force. Extrapolating this thesis leads one to conclude that legal arguments are social forces as well. More specifically, I posit, legal reasoning changes in order to justify the base economic relations of society. In this paper, I show that the growth of capitalism mutated the traditional Lockean justification for property rights.
| >
> | Cohen argues that law is a social force. Extrapolating this thesis, I posit that legal arguments are social forces and, specifically, that courts’ legal reasoning changes in order to justify economic relations. In this paper, I apply my theory to caselaw, showing that the growth of capitalism mutated the Lockean justification of property rights. | | | Early Anglo-American Cases: A Lockean Theory of Property | |
<
< | In pre-industrial Anglo-American law, courts employed a Lockean notion of labor to justify property rights. In Keeble v. Hickering (1707), defendant fired a gun, scattering birds that had landed in plaintiff’s fowl trap. The court gave plaintiff title to these birds for he had caught the birds “in the use of that employment of his freehold, his art, and skill.” Plaintiff’s individual labor created the property right. In Pierson v. Post (1805), the court used a similar argument to determine hunters’ rights of original acquisition. Title to wild animals was given to those who, “by their industry and labour, have used such means of apprehending them.” Again individual effort meant a property right.
The Lockean concept of individual labor creating property continued to hold weight, even as the Industrial Revolution began. For instance in Weatherbee v. Green (1871), where plaintiff greatly increased the value of wood he had accidentally appropriated, the court stated that “when the right to the improved article is the point in issue, the question, how much the property or labor of each has contributed to make it what it is, must always be of first importance.” Here, one’s labor is directly equated with one’s property. | >
> | In pre-industrial Anglo-American law, courts employed a Lockean notion of labor to justify property rights. In Keeble v. Hickering (1707), 11 East 574, defendant fired a gun, scattering ducks that had landed in plaintiff’s fowl trap. The court gave plaintiff title to these birds, for he had caught them using “his art” and “his skill.” Plaintiff’s labor created the property right.
The Lockean argument continued to hold weight in the early years of industrial capitalism. In Eads v. Brazelton (1861), 22 Ark. 499, plaintiff discovered a sunken ship and put a buoy above the wreckage to claim its lead. The court ruled that, even though “he had the intention of possessing,” plaintiff had not established a property right because he had not made “persistent efforts directed to raising the lead.” Again, individual labor created a property right. In Weatherbee v. Green (1871), 22 Mich. 311, plaintiff made barrel-hoops from wood that he had accidentally appropriated. The court stated that “when the right to the improved article is the point in issue, the question, how much the […] labor of each has contributed to make it what it is, must always be of first importance.” The court equated the extent of one’s labor with the strength of one’s property right. | | | Capitalism Rises, and Lockean Notions Fall | |
<
< | Capitalism is inconsistent with the Lockean view of labor. If individual effort produces property, then proletarians, and not capitalists, should control the property they produce. Thus, as capitalism grew, judges had to tweak the Lockean argument in order to justify the status quo. In International News Service v. Associated Press (1918), the court held that the information AP acquired was given a property right because AP had “as the result of organization and the expenditure of labor, skill, and money” discovered the hot news. The AP court used wordplay to convert the traditional Lockean concept to a capitalist-friendly form. The justices still employed the word “labor,” but the term no longer represented individual effort. Instead the court defined “labor” as a resource (like skill and money) employed by a firm to conduct its activities.
AP emblematized a general trend. In Prest-O-Lite Co. v. Davis (1913), the court held that defendant wrongfully appropriated the gas-tank model of plaintiff business owner. The court stated: “The great value of [plaintiff’s] business lies in the interchangeability of its tanks. This quality the [plaintiff] has created. It is his, and no one has the right to appropriate it for his own gain to the detriment and even destruction of [plaintiff’s] business.” As in AP, the court deemed the business (or its owner) the principal creator of the object and thus gave the property right to the capitalist, not the proletarian. | >
> | Capitalism is inconsistent with the Lockean view of labor. If individual effort produces property, then proletarians, not capitalists, should control the objects workers create. Thus, as capitalism grew, judges tweaked the Lockean argument to justify the status quo. In International News Service v. Associated Press (1918), 248 U.S. 215, the court held that AP deserved a property right in the news articles it published because AP “as the result of organization and the expenditure of labor, skill, and money” had discovered the news. The AP court converted the Lockean concept to a capitalist-friendly form; the justices still employed the word “labor” to justify the property right, but the term no longer represented individual effort. Instead, the court defined “labor” as a profit-gaining resource (like skill and money) utilized by the corporation.
AP emblematized a general trend towards corporatizing the Lockean theory. In Prest-O-Lite Co. v. Davis (1913), 209 F. 917, the court held that defendant wrongfully appropriated the gas-tank model of plaintiff business owner. The court stated: “The great value of [plaintiff’s] business lies in the interchangeability of its tanks. This quality the [plaintiff] has created. It is his, and no one has the right to appropriate it.” Thus the court deemed the business (or its owner) the principal creator of the object, giving the property right to the capitalist, not the proletarian. | | |
Further Derivations from the Lockean View | |
<
< | By putting a utilitarian condition on the newfound rule that corporate effort created a property right, later cases strayed farther from the traditional Lockean notion of property. Such a utilitarian condition makes sense in light of capitalism, for it gives only “productive” types of effort protection. In Cable Vision, Inc. v. KUTV, Inc. (1964), the court reasoned that a corporation “reaping where it has not sown” should not be held to have violated a property right when such a property right violates “the public interest.” Similarly, in RCA Mfg. Co. v. Whiteman (1940), the court stated that AP “cannot be used as a cover to prevent competitors from ever appropriating the results of the industry, skill, and expense of others.” Instead, the court argued that only products of “labor and ingenuity” that “inure […] to the public benefit” should be deemed property. Predictably the opinion’s concept of the public benefit was heavily capitalistic: the court stated that products were protected, but ideas were generally not. Thus, as the 20th century elapsed, courts began to add a utilitarian qualification to the corporate, pseudo-Lockean property right.
The Next Step: Utility Yields Property
Logically, the next step in this slow descent is an abandonment of any form of Lockean property rights. Although a purely utility-based theory of property rights has not yet taken over Anglo-American courts, such a theory has become prevalent in academia. In 1967, at the beginning of the Law and Economics revolution, Harold Demsitz published an article in the American Economic Review. Here, he argued that “the emergence of new property rights takes place in response to the desires of the interacting persons for adjustment to new benefit-cost possibilities.” In other words, property rights only emerge when their social benefit outweighs their social detriment. This purely utilitarian theory of property rights is more advantageous to capitalism than its predecessors, for it eliminates the idea that productivity must, at times, step aside to preserve individual (or even corporate) rights.
This purely utilitarian view of property rights has begun to permeate Anglo-American courts. In a dissent in White v. Samsung Electronics America, Inc., Judge Kozinski argued that by giving plaintiff “an exclusive right to anything that reminds the [television] viewer of her” the court was discouraging potential “future creators” of advertisements. Thus Kozinski noted that he would have refused granting the socially detrimental property right to plaintiff. | >
> | By placing a utilitarian condition on the newfound rule that corporate effort created a property right, later cases strayed farther from the Lockean notion of property. Such a utilitarian condition, which protects only “productive” types of effort, reinforces capitalism. In Cable Vision, Inc. v. KUTV, Inc. (1964), 335 F.2d 348, the court reasoned that a corporation “reaping where it has not sown” should not be held to have violated a property right unless the right promotes “the public interest.” Similarly, in RCA Mfg. Co. v. Whiteman (1940), 114 F.2d 86, the court stated that AP “cannot be used as a cover to prevent competitors from ever appropriating the results of the industry, skill, and expense of others.” Instead, the court argued that only products of “labor and ingenuity” that “inure […] to the public benefit” should be deemed property. Fittingly, the opinion’s concept of the public benefit was strongly capitalistic: the court stated that commercial products were protected, but ideas were generally not. Thus, as the twentieth century elapsed, courts added a capitalistic utilitarian qualification to the pseudo-Lockean (i.e. corporate) property right. | | | | |
>
> | Utility Yields Property?
The courts’ next step may be to abandon any form of Lockean justification for property. Such a purely utilitarian property theory would reinforce capitalism better than its predecessors, for it would eliminate the notion that productivity must, at times, take a back seat to individual rights. Although a wholly utilitarian theory of property has not yet taken over Anglo-American courts, such a theory has prevailed in academia. In 1967, Harold Demsetz published an article in the American Economic Review, arguing that “new property rights” arise “in response to the desires of the interacting persons for adjustment to new benefit-cost possibilities.” In other words, property rights only materialize when their social benefit outweighs their detriment.
Demsetz’s theory of property has begun to permeate Anglo-American courts. In a dissent in White v. Samsung Electronics America, Inc. (1992), 989 F.2d 1512, Judge Kozinski argued that by giving plaintiff “an exclusive right to anything that reminds the [television] viewer of her” the court discouraged potential “future creators” of advertisements. Kozinski noted that he would have refused granting a property right to plaintiff wholly on the grounds that such a right was socially detrimental. | | | Conclusions | |
<
< | The above development conforms not only with Cohen’s view on the law; it aligns with Marxist theory. From a Marxist perspective, the law is simply another part of the superstructure that the capitalistic base creates. Perhaps another scholar should review law in communist countries to see if the base-superstructure theory applies as aptly there. | >
> | The above development not only conforms with Cohen’s legal hypotheses; it aligns with Marxist theory. For the Marxist, law is simply part of the superstructure that the capitalist base creates. Perhaps, another scholar could review law in communist countries to see if the base-superstructure theory applies as aptly there. | | |
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AndrewHerink-FirstPaper 6 - 12 Feb 2008 - Main.AndrewHerink
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< | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | Law as a Social Force: Capitalism's Destruction of Lockean Views on Property
-- By AndrewHerink - 10 Feb 2008 | |
<
< | Cohen argues that law is a social force. Indeed, I posit, legal arguments are social forces. Below, I trace the development of labor justifications of property rights and show that the growth of capitalism changed the language judges use. | >
> | Cohen argues that law is a social force. Extrapolating this thesis leads one to conclude that legal arguments are social forces as well. More specifically, I posit, legal reasoning changes in order to justify the base economic relations of society. In this paper, I show that the growth of capitalism mutated the traditional Lockean justification for property rights. | | |
Early Anglo-American Cases: A Lockean Theory of Property | |
<
< | In pre-industrial Anglo-American law, judges employed a Lockean notion of labor to justify property rights. In Keeble v. Hickering (1707), defendant had fired a gun, scattering birds that had landed in plaintiff’s fowl trap. The court gave plaintiff title to these birds for he had caught the birds “in the use of that employment of his freehold, his art, and skill.” Plaintiff’s individual labor created the property right. In Pierson v. Post (1805), the court used a similar argument to determine hunters’ rights of original acquisition. Title to wild animals was given to those who, “by their industry and labour, have used such means of apprehending them.” Again individual effort meant a property right. | >
> | In pre-industrial Anglo-American law, courts employed a Lockean notion of labor to justify property rights. In Keeble v. Hickering (1707), defendant fired a gun, scattering birds that had landed in plaintiff’s fowl trap. The court gave plaintiff title to these birds for he had caught the birds “in the use of that employment of his freehold, his art, and skill.” Plaintiff’s individual labor created the property right. In Pierson v. Post (1805), the court used a similar argument to determine hunters’ rights of original acquisition. Title to wild animals was given to those who, “by their industry and labour, have used such means of apprehending them.” Again individual effort meant a property right.
The Lockean concept of individual labor creating property continued to hold weight, even as the Industrial Revolution began. For instance in Weatherbee v. Green (1871), where plaintiff greatly increased the value of wood he had accidentally appropriated, the court stated that “when the right to the improved article is the point in issue, the question, how much the property or labor of each has contributed to make it what it is, must always be of first importance.” Here, one’s labor is directly equated with one’s property. | | | | |
<
< |
- Didn't the court in Pierson v. Post award the fox to the party that just snuck up at the end and killed the thing? The other party had put in dramatically more effort, organizing a hunting party, tracking the fox with dogs, etc. Perhaps the court was not rewarding industry and labor generally, but rewarding the ultimate apprehension/killing? -- AdamCarlis 12 Feb 2008
| >
> | Capitalism Rises, and Lockean Notions Fall | | | | |
<
< |
- I am not arguing about what the court was rewarding. I am arguing about what the court SAID it was rewarding. I should make that clearer...
| >
> | Capitalism is inconsistent with the Lockean view of labor. If individual effort produces property, then proletarians, and not capitalists, should control the property they produce. Thus, as capitalism grew, judges had to tweak the Lockean argument in order to justify the status quo. In International News Service v. Associated Press (1918), the court held that the information AP acquired was given a property right because AP had “as the result of organization and the expenditure of labor, skill, and money” discovered the hot news. The AP court used wordplay to convert the traditional Lockean concept to a capitalist-friendly form. The justices still employed the word “labor,” but the term no longer represented individual effort. Instead the court defined “labor” as a resource (like skill and money) employed by a firm to conduct its activities.
AP emblematized a general trend. In Prest-O-Lite Co. v. Davis (1913), the court held that defendant wrongfully appropriated the gas-tank model of plaintiff business owner. The court stated: “The great value of [plaintiff’s] business lies in the interchangeability of its tanks. This quality the [plaintiff] has created. It is his, and no one has the right to appropriate it for his own gain to the detriment and even destruction of [plaintiff’s] business.” As in AP, the court deemed the business (or its owner) the principal creator of the object and thus gave the property right to the capitalist, not the proletarian. | | | | |
<
< | The Lockean concept of individual labor creating property continued to hold weight, even as the Industrial Revolution began. For instance in Weatherbee v. Green (1871), where plaintiff greatly increased the value of wood he had accidentally appropriated, the court stated that “when the right to the improved article is the point in issue, the question, how much the property or labor of each has contributed to make it what it is, must always be of first importance.” Here, one’s labor is directly equated with one’s property. | | | | |
<
< | A Change in Property Views | | | | |
<
< | Capitalism is inconsistent with the Lockean view of labor. If individual effort produces property, then proletarians, and not capitalists, should control the property they produce. Thus, as capitalism grew, judges had to tweak the Lockean argument in order to justify the status quo. In INS v. AP (1918), the court held that the information AP acquired was given a property right because AP had “as the result of organization and the expenditure of labor, skill, and money” discovered the hot news. The AP court used wordplay to convert the traditional Lockean concept to a more capitalist-friendly form. The justices still employed the word “labor,” but the term no longer represented individual effort. Instead “labor” was defined as a resource (like skill and money) employed by a firm to conduct its activities.
AP was emblematic of a general trend. In Prest-O-Lite Co. v. Davis (1913), the court held that defendant wrongfully appropriated the gas-tank model of plaintiff business owner. The court stated: “The great value of [plaintiff’s] business lies in the interchangeability of its tanks. This quality the [plaintiff] has created. It is his, and no one has the right to appropriate it for his own gain to the detriment and even destruction of [plaintiff’s] business.” Like in AP, the court deems the business (or its owner) the principal creator of the object and thus gives the property right to the capitalist, not the proletarian. | >
> | Further Derivations from the Lockean View | | | | |
>
> | By putting a utilitarian condition on the newfound rule that corporate effort created a property right, later cases strayed farther from the traditional Lockean notion of property. Such a utilitarian condition makes sense in light of capitalism, for it gives only “productive” types of effort protection. In Cable Vision, Inc. v. KUTV, Inc. (1964), the court reasoned that a corporation “reaping where it has not sown” should not be held to have violated a property right when such a property right violates “the public interest.” Similarly, in RCA Mfg. Co. v. Whiteman (1940), the court stated that AP “cannot be used as a cover to prevent competitors from ever appropriating the results of the industry, skill, and expense of others.” Instead, the court argued that only products of “labor and ingenuity” that “inure […] to the public benefit” should be deemed property. Predictably the opinion’s concept of the public benefit was heavily capitalistic: the court stated that products were protected, but ideas were generally not. Thus, as the 20th century elapsed, courts began to add a utilitarian qualification to the corporate, pseudo-Lockean property right. | | | | |
<
< | Further Derivations from the Lockean View | >
> | The Next Step: Utility Yields Property
Logically, the next step in this slow descent is an abandonment of any form of Lockean property rights. Although a purely utility-based theory of property rights has not yet taken over Anglo-American courts, such a theory has become prevalent in academia. In 1967, at the beginning of the Law and Economics revolution, Harold Demsitz published an article in the American Economic Review. Here, he argued that “the emergence of new property rights takes place in response to the desires of the interacting persons for adjustment to new benefit-cost possibilities.” In other words, property rights only emerge when their social benefit outweighs their social detriment. This purely utilitarian theory of property rights is more advantageous to capitalism than its predecessors, for it eliminates the idea that productivity must, at times, step aside to preserve individual (or even corporate) rights.
This purely utilitarian view of property rights has begun to permeate Anglo-American courts. In a dissent in White v. Samsung Electronics America, Inc., Judge Kozinski argued that by giving plaintiff “an exclusive right to anything that reminds the [television] viewer of her” the court was discouraging potential “future creators” of advertisements. Thus Kozinski noted that he would have refused granting the socially detrimental property right to plaintiff.
Conclusions
The above development conforms not only with Cohen’s view on the law; it aligns with Marxist theory. From a Marxist perspective, the law is simply another part of the superstructure that the capitalistic base creates. Perhaps another scholar should review law in communist countries to see if the base-superstructure theory applies as aptly there. | | | | |
<
< | By putting a utilitarian condition on the newfound rule that corporate effort created a property right, later cases strayed farther from the traditional Lockean notion of property. Such a utilitarian condition makes sense in light of capitalism, for it gives only “productive” types of effort production. In RCA Mfg. Co. v. Whiteman (1940), the court stated that AP “cannot be used as a cover to prevent competitors from ever appropriating the results of the industry, skill, and expense of others.” Instead, the court reasoned that only products of “labor and ingenuity” that “inure […] to the public benefit” should be deemed property. Predictably the court’s concept of the public benefit was heavily capitalistic: products were protected, but ideas were generally not. Similarly, the Cable Vision, Inc. v. KUTV, Inc. (1964) court reasoned that a corporation “reaping where it has not sown” should not be held to have violated a property right when such a property right violates “the public interest.” MORE?? Thus, as the 20th century elapsed, courts began to add a utilitarian qualification to the corporate, pseudo-Lockean property right. | | |
| |
<
< | You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
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AndrewHerink-FirstPaper 5 - 11 Feb 2008 - Main.AndrewHerink
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| META TOPICPARENT | name="FirstPaper%25" |
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | Cohen argues that law is a social force. Indeed, I posit, legal arguments are social forces. Below, I trace the development of labor justifications of property rights and show that the growth of capitalism changed the language judges use.
| |
<
< | The Early Era (pre-1850)
Early Anglo-American Cases | >
> | Early Anglo-American Cases: A Lockean Theory of Property | | |
In pre-industrial Anglo-American law, judges employed a Lockean notion of labor to justify property rights. In Keeble v. Hickering (1707), defendant had fired a gun, scattering birds that had landed in plaintiff’s fowl trap. The court gave plaintiff title to these birds for he had caught the birds “in the use of that employment of his freehold, his art, and skill.” Plaintiff’s individual labor created the property right. In Pierson v. Post (1805), the court used a similar argument to determine hunters’ rights of original acquisition. Title to wild animals was given to those who, “by their industry and labour, have used such means of apprehending them.” Again individual effort meant a property right. | |
<
< |
- Didn't the court in Pierson v. Post award the fox to the party that just snuck up at the end and killed the thing? The other party had put in dramatically more effort, organizing a hunting party, tracking the fox with dogs, etc. Perhaps the court was not rewarding industry and labor generally, but rewarding the ultimate apprehension/killing? -- AdamCarlis 12 Feb 2008
The Lockean concept of individual labor creating property continued to hold weight, even as the Industrial Revolution began. For instance in Weatherbee v. Green (1871), where plaintiff greatly increased the value of wood he had accidentally appropriated, the court stated that “when the right to the improved article is the point in issue, the question, how much the property or labor of each has contributed to make it what it is, must always be of first importance.” Here, one’s labor is directly equated with one’s property.
Persistence through early capitalism, and the rise of the competing views
Subsub 1
Subsub 2 | >
> |
- Didn't the court in Pierson v. Post award the fox to the party that just snuck up at the end and killed the thing? The other party had put in dramatically more effort, organizing a hunting party, tracking the fox with dogs, etc. Perhaps the court was not rewarding industry and labor generally, but rewarding the ultimate apprehension/killing? -- AdamCarlis 12 Feb 2008
| | | | |
>
> |
- I am not arguing about what the court was rewarding. I am arguing about what the court SAID it was rewarding. I should make that clearer...
| | | | |
>
> | The Lockean concept of individual labor creating property continued to hold weight, even as the Industrial Revolution began. For instance in Weatherbee v. Green (1871), where plaintiff greatly increased the value of wood he had accidentally appropriated, the court stated that “when the right to the improved article is the point in issue, the question, how much the property or labor of each has contributed to make it what it is, must always be of first importance.” Here, one’s labor is directly equated with one’s property. | | | | |
<
< | Section II: A Change in Property Views | >
> | A Change in Property Views | | | | |
<
< | Subsection A: Turn of the century cases (INS v. AP, Presto Lite Co v. Davis, Cablevision) | | | Capitalism is inconsistent with the Lockean view of labor. If individual effort produces property, then proletarians, and not capitalists, should control the property they produce. Thus, as capitalism grew, judges had to tweak the Lockean argument in order to justify the status quo. In INS v. AP (1918), the court held that the information AP acquired was given a property right because AP had “as the result of organization and the expenditure of labor, skill, and money” discovered the hot news. The AP court used wordplay to convert the traditional Lockean concept to a more capitalist-friendly form. The justices still employed the word “labor,” but the term no longer represented individual effort. Instead “labor” was defined as a resource (like skill and money) employed by a firm to conduct its activities.
AP was emblematic of a general trend. In Prest-O-Lite Co. v. Davis (1913), the court held that defendant wrongfully appropriated the gas-tank model of plaintiff business owner. The court stated: “The great value of [plaintiff’s] business lies in the interchangeability of its tanks. This quality the [plaintiff] has created. It is his, and no one has the right to appropriate it for his own gain to the detriment and even destruction of [plaintiff’s] business.” Like in AP, the court deems the business (or its owner) the principal creator of the object and thus gives the property right to the capitalist, not the proletarian. | |
<
< | Subsection B: A total phasing out of the labor --> property argument (Midler case, p 231) | >
> | Further Derivations from the Lockean View | | | | |
>
> | By putting a utilitarian condition on the newfound rule that corporate effort created a property right, later cases strayed farther from the traditional Lockean notion of property. Such a utilitarian condition makes sense in light of capitalism, for it gives only “productive” types of effort production. In RCA Mfg. Co. v. Whiteman (1940), the court stated that AP “cannot be used as a cover to prevent competitors from ever appropriating the results of the industry, skill, and expense of others.” Instead, the court reasoned that only products of “labor and ingenuity” that “inure […] to the public benefit” should be deemed property. Predictably the court’s concept of the public benefit was heavily capitalistic: products were protected, but ideas were generally not. Similarly, the Cable Vision, Inc. v. KUTV, Inc. (1964) court reasoned that a corporation “reaping where it has not sown” should not be held to have violated a property right when such a property right violates “the public interest.” MORE?? Thus, as the 20th century elapsed, courts began to add a utilitarian qualification to the corporate, pseudo-Lockean property right. | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
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AndrewHerink-FirstPaper 4 - 10 Feb 2008 - Main.AdamCarlis
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | In pre-industrial Anglo-American law, judges employed a Lockean notion of labor to justify property rights. In Keeble v. Hickering (1707), defendant had fired a gun, scattering birds that had landed in plaintiff’s fowl trap. The court gave plaintiff title to these birds for he had caught the birds “in the use of that employment of his freehold, his art, and skill.” Plaintiff’s individual labor created the property right. In Pierson v. Post (1805), the court used a similar argument to determine hunters’ rights of original acquisition. Title to wild animals was given to those who, “by their industry and labour, have used such means of apprehending them.” Again individual effort meant a property right. | |
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- Didn't the court in Pierson v. Post award the fox to the party that just snuck up at the end and killed the thing? The other party had put in dramatically more effort, organizing a hunting party, tracking the fox with dogs, etc. Perhaps the court was not rewarding industry and labor generally, but rewarding the ultimate apprehension/killing? -- AdamCarlis 12 Feb 2008
| | | The Lockean concept of individual labor creating property continued to hold weight, even as the Industrial Revolution began. For instance in Weatherbee v. Green (1871), where plaintiff greatly increased the value of wood he had accidentally appropriated, the court stated that “when the right to the improved article is the point in issue, the question, how much the property or labor of each has contributed to make it what it is, must always be of first importance.” Here, one’s labor is directly equated with one’s property. |
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AndrewHerink-FirstPaper 3 - 10 Feb 2008 - Main.AndrewHerink
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | Early Anglo-American Cases | |
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< | In pre-industrial Anglo-American law, judges employed a Lockean notion of labor to justify property rights. In Keeble v. Hickering (1707), defendant had fired a gun, scattering birds that had landed in plaintiff’s fowl trap. The court gave plaintiff title to these birds for he had caught the birds “in the use of that employment of his freehold, his art, and skill.” Plaintiff’s individual labor created the property right. In Pierson v. Post (1805), the court used a similar argument to determine hunters’ rights of original acquisition. Title to wild animals was given to those who, “by their industry and labour, have used such means of apprehending them.” | >
> | In pre-industrial Anglo-American law, judges employed a Lockean notion of labor to justify property rights. In Keeble v. Hickering (1707), defendant had fired a gun, scattering birds that had landed in plaintiff’s fowl trap. The court gave plaintiff title to these birds for he had caught the birds “in the use of that employment of his freehold, his art, and skill.” Plaintiff’s individual labor created the property right. In Pierson v. Post (1805), the court used a similar argument to determine hunters’ rights of original acquisition. Title to wild animals was given to those who, “by their industry and labour, have used such means of apprehending them.” Again individual effort meant a property right.
The Lockean concept of individual labor creating property continued to hold weight, even as the Industrial Revolution began. For instance in Weatherbee v. Green (1871), where plaintiff greatly increased the value of wood he had accidentally appropriated, the court stated that “when the right to the improved article is the point in issue, the question, how much the property or labor of each has contributed to make it what it is, must always be of first importance.” Here, one’s labor is directly equated with one’s property. | | | | | | Section II: A Change in Property Views
Subsection A: Turn of the century cases (INS v. AP, Presto Lite Co v. Davis, Cablevision) | |
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> | Capitalism is inconsistent with the Lockean view of labor. If individual effort produces property, then proletarians, and not capitalists, should control the property they produce. Thus, as capitalism grew, judges had to tweak the Lockean argument in order to justify the status quo. In INS v. AP (1918), the court held that the information AP acquired was given a property right because AP had “as the result of organization and the expenditure of labor, skill, and money” discovered the hot news. The AP court used wordplay to convert the traditional Lockean concept to a more capitalist-friendly form. The justices still employed the word “labor,” but the term no longer represented individual effort. Instead “labor” was defined as a resource (like skill and money) employed by a firm to conduct its activities.
AP was emblematic of a general trend. In Prest-O-Lite Co. v. Davis (1913), the court held that defendant wrongfully appropriated the gas-tank model of plaintiff business owner. The court stated: “The great value of [plaintiff’s] business lies in the interchangeability of its tanks. This quality the [plaintiff] has created. It is his, and no one has the right to appropriate it for his own gain to the detriment and even destruction of [plaintiff’s] business.” Like in AP, the court deems the business (or its owner) the principal creator of the object and thus gives the property right to the capitalist, not the proletarian. | | | Subsection B: A total phasing out of the labor --> property argument (Midler case, p 231) |
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AndrewHerink-FirstPaper 2 - 10 Feb 2008 - Main.AndrewHerink
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< | | | | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | |
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< | Paper Title: Law as a Social Force: Capitalism's Destruction of Lockean Views on Property | >
> | Law as a Social Force: Capitalism's Destruction of Lockean Views on Property | | | -- By AndrewHerink - 10 Feb 2008 | |
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> | Cohen argues that law is a social force. Indeed, I posit, legal arguments are social forces. Below, I trace the development of labor justifications of property rights and show that the growth of capitalism changed the language judges use. | | | | |
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< | Section I: The Early Era (pre-1850) | | | | |
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< | Subsection A: Keeble v. Hickering: "This is his trade" and "his profit" because he has expended the effort. | >
> | The Early Era (pre-1850)
Early Anglo-American Cases
In pre-industrial Anglo-American law, judges employed a Lockean notion of labor to justify property rights. In Keeble v. Hickering (1707), defendant had fired a gun, scattering birds that had landed in plaintiff’s fowl trap. The court gave plaintiff title to these birds for he had caught the birds “in the use of that employment of his freehold, his art, and skill.” Plaintiff’s individual labor created the property right. In Pierson v. Post (1805), the court used a similar argument to determine hunters’ rights of original acquisition. Title to wild animals was given to those who, “by their industry and labour, have used such means of apprehending them.” | | | | |
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< | Subsub 1 | | | | |
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< | Subsection B: Pierson v. Post: same kind of quote | >
> | Persistence through early capitalism, and the rise of the competing views | | |
Subsub 1 | | | Section II: A Change in Property Views | |
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< | Subsection A: Turn of the century cases (INS v. AP, ???) | >
> | Subsection A: Turn of the century cases (INS v. AP, Presto Lite Co v. Davis, Cablevision) | | | | |
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< | Subsection B: A total phasing out of the labor --> property argument?? | >
> | Subsection B: A total phasing out of the labor --> property argument (Midler case, p 231) | | |
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
Paper Title: Law as a Social Force: Capitalism's Destruction of Lockean Views on Property
-- By AndrewHerink - 10 Feb 2008
Section I: The Early Era (pre-1850)
Subsection A: Keeble v. Hickering: "This is his trade" and "his profit" because he has expended the effort.
Subsub 1
Subsection B: Pierson v. Post: same kind of quote
Subsub 1
Subsub 2
Section II: A Change in Property Views
Subsection A: Turn of the century cases (INS v. AP, ???)
Subsection B: A total phasing out of the labor --> property argument??
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