This is an explanation for passage 4 of LSAT preptest 73, the September 2014 LSAT – the comparative passage. The passages are about property justice. The first passage discusses the moral principles of property acquisition and transfer. The second passage describes the Indian Nonintercourse Act and how to deal with land previously owned by Natives.
This section has paragraph summaries and an analysis of the passage, links to the explanations for the questions are below.
- Justice in acquisition describes how to own something that wasn’t owned before. Justice in transfer describes how to transfer property.
- We can use those principles to create an exhaustive theory of just property ownership.
- A principle of rectification is required to deal with past injustices, such as theft.
- The Indian Nonintercourse Act protects Native American land from fraudulent transfers.
- As a separate issue, there’s a certain way of reasoning about Native American land claims: Natives were the original owners and land should be returned to them where possible.
The first passage is very abstract. It describes a theory for the just ownership of property. So Passage A is merely describing a set of moral principles. They aren’t the laws of any country. Instead, the principles can be used to judge if the laws of a country are just.
There are three cases to be covered:
- Acquiring new property. If you find a rock that no one owns and you want to keep it as your property, how can you do that justly?
- Transfer of property. If you want to justly transfer ownership of the rock to a new owner, how can you do that?
- If someone steals the rock, and it ends up in a pawn shop, how can the injustice be corrected?
Note that the passage is not saying precisely how these goals can be achieved. The author doesn’t tell us what’s required for just ownership or transfer or property.
Instead, they’re saying that if we can create principles to cover these three situations, we’ll have a complete theory of property justice.
Passage B: Indian NonIntercourse Act and Restoring Native Land
Passage B is more concrete. It’s in two parts. The first part describes the history and purpose of the Indian Nonintercourse Act.
The purpose of the law is to prevent fraudulent transfers. Probably in the early years, American settlers tried to fool Native Americans out of their lands. After all, the American property system was foreign to Native American conceptions of property, and it would have been easy to make Natives “sell” their land without their realizing they had in fact entirely lost ownership of their land.
The second paragraph of passage B is actually on a completely different topic. It’s no longer talking about the Indian Nonintercourse Act. Instead, paragraph 2 is a general discussion of native land claims in general.
Paragraph 2 says that all land in North America was illicitly taken from Native Americans. In a perfect world, it all ought to be transferred back to them.
That’s not likely to happen, but it’s still a worthy goal, according to this theory. This is a specific application of the principle of rectification described in passage A.
So to sum up, passage B has two different themes:
- The Indian Nonintercourse Act, which restricts how land owned by Natives may be bought.
- A line of argument (which the author may not agree with) that describes how to deal with land previously owned by Natives. In theory we ought to give all of it back, and even in practice we should give as much back as we can.
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