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Johnson v M’Intosh
These materials raise broad issues that we will touch upon throughout the course. Johnson v M’Intosh illustrates some of the fundamental principles underlying property law (the idea of being first; the power of defining “first”; different rights with respect to property; and the relationship between property law, and law generally, and power).
Shelley v. Kraemer illustrates the use of property law, and law generally, to enforce and combat racial discrimination. We will also use that case to discuss the choices available to a lawyer in combatting injustice – to be more precise, see if you can think of an alternative strategy that the lawyer could have taken to reverse the lower court opinion (hint: this alternative strategy would have been less robust in combatting racial discrimination).
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These readings introduce us to some of the fundamental principles that at the foundation of much of property law – property rights acquired through acquisition. Some of the same questions raised in Johnson are raised here – who is first; how do we define first; why should we define first in a certain way (and more fundamentally, why should we care who was first). More specifically, think about how to argue that these cases are all consistent with each other. Also ask yourself what role public policy plays in these opinions. Do you think that the judges are using public policy appropriately, or are they substituting their own policy preferences for what the law provides?
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