Law Commons^™

Possessing Intangibles, João Marinotti

Articles by Maurer Faculty

The concept of possession is currently considered inapplicable to intangible assets, whether data, cryptocurrency, or NFTs. Under this view, intangible assets categorically fall outside the purview of property law’s foundational doctrines. Such sweeping conclusions stem from a misunderstanding of the role of possession in property law. This Article refutes the idea that possession constitutes—or even requires—physical control by distinguishing possession from another foundational concept, that of thinghood. It highlights possession’s unique purpose within the property process: conveying the status of in rem claims. In property law, the concept of possession conveys to third parties the allocation of property rights and …

Law Library Blog (March 2020): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Right On Time: A Reply To Professors Allen, Claeys, Epstein, Gordon, Holbrook, Mossoff, Rose, And Van Houweling, Dotan Oliar, James Y. Stern

Faculty Publications

A simple observation started us off in writing Right on Time. Studying and teaching intellectual property law, we noticed striking parallels between traditional first possession rules in property law and analagous rules governing the acquisition of patent, copyright, and trademark rights. We thought that established first possession principles could illuminate the workings of IP law. As we dug in, however, it became increasingly clear that our premise wasn’t quite right. While many penetrating commentators had said many penetrating things about first possession, the leading treatments tended to focus on significant individual aspects of the overall issue. What we could …

Response To Oliar And Stern: On Duration, The Idea/Expression Dichotomy, And Time, Wendy J. Gordon

Faculty Scholarship

Courts often use possession to determine who should own unclaimed resources. Yet, as Oliar and Stern demonstrate, the concept of possession is little more than a metaphor, capable of being applied to a broad range of phenomena. The authors helpfully deploy “time” as a metric to sort through the rules determining what should count as possession, and they survey the likely costs and benefits attached to choosing earlier versus later events as triggers for acquiring title.

With those tools in hand, Oliar and Stern employ “time” and the analogy of physical possession to address problems in copyright, patent, and trademark …

Right On Time: First Possession In Property And Intellectual Property, Dotan Oliar, James Y. Stern

Faculty Publications

How should we allocate property rights in unowned tangible and intangible resources? This Article develops a model of original acquisition that draws together common law doctrines of first possession with original acquisition doctrines in patent, copyright, and trademark law. The common denominator is time: in each context, doctrine involves a trade-off between assigning entitlements to resources earlier or later in the process of their development and use. Early awards risk granting exclusivity to parties who may not be capable of putting resources to their best use. Late awards prolong contests for ownership, which may generate waste or discourage acquisition efforts …

In Re Discipline Of Timothy Treffinger, 133 Nev. Adv. Op. 22 (May 11, 2017), Julia Barker

Nevada Supreme Court Summaries

The Court determined that (1) when a licensed Nevada attorney pleads guilty to a felony, Supreme Court Rule (SCR) 111 requires an interim suspension of the attorney’s law license and a referral to the Nevada State Bar for formal discipline; and (2) the “good cause” exception to stay an interim suspension requires the court to consider whether the attorney’s crime poses a danger to his clients, the court, and the public.

The Meaning Of Dispossession, Jill M. Fraley

Scholarly Articles

This Article critiques our focus on possession as the cornerstone of theories of property, examining the limitations of possession both as a theoretical concept and as a practical one. Second, the article examines how an investment-based labor approach has sharply shaped out understandings of possession. By examining the intertwining of possession and labor during colonization, the article describes how the labor approach to possession excluded more communal corollaries and instilled in American property law a consistent push toward grounding land claims at the labor-possession nexus.

Re-thinking the labor-possession nexus yields important shifts. First, labor matters for other reasons than investment-backed …

Newsroom: The Guardian: Gutoff On Cook's 'Endeavour', 6-16-2016, The Guardian, Associated Press, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

The Possession Heuristic, James E. Krier, Christopher Serkin

Book Chapters

A heuristic, as Daniel Kahneman (2011: 98) observes, “is a simple procedure that helps find adequate, though often imperfect, answers to difficult questions.” Kahneman is a psychologist, one of a handful of scholars who have brought heuristics to the attention of a general audience, thanks in large part to several books (Kahneman, Slovic, and Tversky 1982; Gilovich, Driffin, and Kahneman 2002). Just as Thomas Kuhn’s 1962 ideas about paradigms in the history of science are fodder for academics in all sorts of fields (this for better or worse), so too for Kahneman and company’s ideas about heuristics, and legal academics …

Evolution Of Chattel Paper: From Possession To Control, Thomas E. Plank

Scholarly Works

Since its inception, Article 9 has authorized both non-possessory assignment of chattel paper perfected by the filing of a financing statement and a possessory assignment perfected by possession. As a result, tangible chattel paper is “quasi-negotiable” because certain purchasers for value with possession can have priority over previously perfected secured parties. The 2000 revision of Article 9 authorized security agreements evidenced by an electronic record or records and created electronic chattel paper as a new sub-type of collateral. To extend quasi-negotiability to electronic chattel paper, it also introduced the concept of “control” as an analogue to possession of tangible chattel …

Ownership And Obligations: The Human Flourishing Theory Of Property, Gregory S. Alexander

Cornell Law Faculty Publications

Private property ordinarily triggers notions of individual rights, not social obligations. The core image of property rights, in the minds of most people, is that the owner has a right to exclude others and owes no further obligation to them. That image is highly misleading. Property owners owe far more responsibilities to others, both owners and non-owners, than the conventional imagery of property rights suggests. Property rights are inherently relational, and because of this characteristic, owners necessarily owe obligations to others. But the responsibility, or obligation, dimension of private ownership has been sorely under-theorised. Inherent in the concept of ownership …

Finding Possession: Labor, Waste And The Evolution Of Property, Jill M. Fraley

Scholarly Articles

Although possession has long been intimately linked to labor, recent historical work on land claims during the sixteenth and seventeenth centuries suggests that the clash of divergent legal cultures of possession drove the two apart. This clash yielded an American concept of possession much more deeply connected to industrialization than the traditional understanding of labor. By providing evidence of how our concept of labor was industrialized, this article questions the outcomes in modem possession cases, particularly as they impact development and environmental preservation in rural areas.

Rethinking Novelty In Patent Law, Sean B. Seymore

Vanderbilt Law School Faculty Publications

The novelty requirement seeks to ensure that a patent will not issue if the public already possesses the invention. Although gauging possession is usually straightforward for simple inventions, it can be difficult for those in complex fields like biotechnology, chemistry, and pharmaceuticals. For example, if a drug company seeks to patent a promising molecule that was disclosed but never physically made in the prior art, the key possession question is whether a person having ordinary skill in the art (PHOSITA) could have made it at the time of the prior disclosure. Put differently, could the PHOSITA rely on then-existing knowledge …

Acceptable Deviance And Property Rights, Mark A. Edwards

Faculty Scholarship

Compliance with - or deviance from - law is often dependent upon the law’s convergence with - or divergence from - normative sensibilities. Where the legality and social acceptability of behavior diverge, some deviance is socially acceptable. Property rights evolve in response to changes in normative sensibilities. Constructing a model of acceptable deviance and applying it to property rights, we can predict and actually observe the evolution of property rights in response to changes in normative sensibilities in areas as diverse as file-sharing, foreclosures, the use of public space, and fishing rights. We can also predict and observe stresses in …

Accession And Original Ownership, Thomas W. Merrill

Faculty Scholarship

Although first possession is generally assumed to be the dominant means of establishing original ownership of property, there is a second but less studied principle for initiating ownership, called accession, which awards new resources to the owner of existing property most prominently connected to the new resource. Accession applies across a wide variety of areas, from determining rights to baby animals and growing crops to determining ownership of derivative rights under intellectual property laws. Accession shares common features with first possession, in that both principles assign ownership uniquely in a way that imposes minimal information cost burdens on society. But …

The Property "Instinct", Jeffrey E. Stake

Articles by Maurer Faculty

No abstract provided.

Clarifying State Water Rights And Adjudications, Greg Hobbs

Two Decades of Water Law and Policy Reform: A Retrospective and Agenda for the Future (Summer Conference, June 13-15)

14 pages.

Contains footnotes.

Collaborative Approaches To Conservation: A Critical Look, Larry Macdonnell

Strategies in Western Water Law and Policy: Courts, Coercion and Collaboration (Summer Conference, June 8-11)

7 pages.

"Possessing With Intent To Distribute" Under The Schoolyard Statute, Sonja R. West

Scholarly Works

This Comment proposes that courts should explicitly rather than implicitly distinguish the different types of defendants accused of possession with intent to distribute controlled substances within a school zone. Part I reviews the current state of the law on this issue and presents the legislative history and textual arguments involved in the debate over the mens rea requirement. Part II examines the factual circumstances at issue in the relevant cases and concludes that these factual circumstances, rather than competing statutory interpretations, lead to *1401 the different results. Finally, Part III emphasizes the need to recognize these implicit categories of offenses …

Possession: A Brief For Louisiana's Rights Of Succession To The Legacy Of Roman Law, David Snyder

Articles in Law Reviews & Other Academic Journals

No abstract provided.

An Inquiry Into The Merits Of Copyright - Notes On Property Parallels, Dukeminier/Krier Book, Among Other Things - 1985, Wendy J. Gordon

Scholarship Chronologically

These are notes re thoughts sparked by reading Dukeminier & Krier, PROPERTY (little Brown 1981) and their TEACHERS MANUAL FOR PROPERTY (Little Brown 1981). What I may be doing is beginning a unified i/p. One part of that doctrine may be parallel ordinary Property, like so: HYPOTHESIS - The role played in ordinary property law by "possession" [,1] may be played in i/p law by "use. This can be very important.

Uniform Commercial Code And The Concept Of Possession In The Marketing And Financing Of Goods, John F. Dolan

Law Faculty Research Publications

The "buyer in ordinary course" rule of section 9-307(1) of the Uniform Commercial Code shelters good faith purchasers of certain goods from the rival claims of sellers' secured creditors. Professor Dolan argues that the Code's refusal to let title determine disputes over goods in other contexts extends to clashes between creditors and buyers under section 9-307(1). Hefinds the key to the Code's scheme for settling these clashes in the "special property interest" a buyer acquires at the moment goods are identied to a contract of sale. The scheme, he believes, is one ofgeneral respect for reasonable expectations based on possession, …

Re-Writing The Statute Of Frauds: Part Performance In Equity, Willard T. Barbour

Articles

One of the most striking examples of judicial legislation is that process whereby courts of equity, from the end of the seventeenth century onwards, have in no small measure re-written the Statute of Frauds. Exception was added to exception until the doctrine kmown as "part performance" became firmly established. The doctrine was not evolved consistently and the basis of some applications of it is obscure. One who follows Sir Edward Frys admirable but futile attempt (Fry, SPECIFIC PERFORMANCE (ed. 5) §§ 580, ff.) to systematize the variant decisions of the English courts must feel doubtful whether any single theory will …

The Patentability Of A Principle Of Nature, John B. Waite

Articles

The extent to which courts will go in conceding patentability to a natural law, or principle of nature, is evidenced in the case of Minerals Separation Co. v. Hyde, 37 Sup. Ct. -, decided by the Supreme Court, December 11, 1916. It has always been more or less an axiom of patent law that the discovery of a principle of nature does not entitle the discoverer to a patent for it. The case usually thought of first as authority therefor, is that of Morton v. New York Eye Infirmary, 5 Blatch. 116, 2 Fisher 320. The patentees in that case …

The Patentability Of A Mental Process, John B. Waite

Articles

The fact of possession has been so correlated with the theory of property that it is difficult to dissociate ownership from the possibility of physical possession. One finds that the average lawyer, even though he may defind a right in rem as a right enforcible against any person, is extremely apt, unless after especial thought, to explain that it is enforcible against anyone because it pertains to a thing capable of physical possession and control, a thing that could be actually sequestered, from all other persons. Not at all infrequently the term property has been judicially stripped even of its …

Mortgagee In Possession In New York And Michigan, Edgar N. Durfee

Articles

It is interesting to observe how tenaciously the old common law of mortgages has persisted in the state of New York, the very cradle of the modem lien theory of the mortgage. As early as 1802 Chancellor KENT began the importation into that state of Lord MANSFIELD'S Civil Law doctrines of mortgage. Johnson v. Hart, 3 Johns. Cas. 322. In 1814, in the case of Runyan v. Mersereau, 11 Johns. 534, the lien theory definitely triumphed over the old law. In other cases, both before and since the statute of 1828 denying ejectment to the mortgagee, the details of mortgage …

Grantor's Remedy On Breach Of Condition Subsequent, James H. Brewster

Articles

In Mash v. Bloom (I9O7), - Wis. -, 114 N. W. Rep. 457, the court holds (Siebecker and Timlin, JJ., dissenting) that one, having conveyed real property subject to a condition subsequent, has no right of action to recover possession on breach of the condition until he has taken "advantage of condition broken and so notified the defendant, either by demand of possession or some other act equivalent to a re-entry for condition broken."

The Right Of A Bona Fide Occupant Of Land To Compensation For His Improvements, Henry W. Rogers

Articles

It may be observed, in the first place, that the civil law afforded protection to the bona fide occupant of land, who had made useful or permanent improvements on the land, believing himself to be the true owner. The civil law never permitted one who was in the possession of land in good faith, to be turned out of his possession by the rightful owner, without any compensation for the additional value he has given to the soil by the improvements he had made; but it allowed him to off-set the value of his improvements to the extent, at least, …