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Articles 1 - 30 of 111
Full-Text Articles in Entire DC Network
Slavery.Ai, Emile Loza De Siles
Slavery.Ai, Emile Loza De Siles
Washington and Lee Journal of Civil Rights and Social Justice
The artificial intelligence market is swarming. Supercharged start-ups, global tech giants, and increasingly algorithmic governments target diverse use cases with new and stunningly innovative AI applications coming online every day. Where people are the computational subjects of those algorithmic machinations, however, there is no law, present or effective, to protect them against great and propagating harms. Consequently, people become data production units, the commoditized of the Data Industrial Complex and unfree, unpaid inputs to AI production.
This Article shares a new and provocative vision. It theorizes that unregulated AI systems and uses are giving rise to an emergent form of …
Title Theft, Stewart E. Sterk
Title Theft, Stewart E. Sterk
Washington and Lee Law Review Online
Real property owners across the country have been targeted by scammers who prepare deeds purporting to convey title to property the scammers do not own. Sometimes, the true owners are entirely unaware of these bogus transfers. In other instances, the scammers use misrepresentation to induce unsophisticated owners to sign documents they do not understand.
Property doctrine protects owners against forgery and fraud—the primary vehicles scammers use in their efforts to transfer title. Owners enjoy protection not only against the scammers themselves, but generally against unsuspecting purchasers to whom the scammers transfer purported title.
Recovery of title, however, involves costs and …
Crypto-Counterfeiting, Joshua Fairfield
Crypto-Counterfeiting, Joshua Fairfield
Scholarly Articles
The current crypto winter has given rise to a range of legal challenges. One of the most important sets of legal challenges goes to the heart of cryptocurrency. Cryptocurrency was intended to be non-duplicatable at will, that is, not to be counterfeitable. Blockchain technology is supposed to prevent token counterfeiting through a combination of game theory and cryptography that prevents normal users from simply ordering the system to generate more tokens for their benefit.
The difficulty is that blockchain software is still software. People in charge can order and program the software to generate many more tokens for those individuals’ …
Takings In Disguise: The Inequity Of Public Nuisance Receiverships In America’S Rust Belt, Anna Kennedy
Takings In Disguise: The Inequity Of Public Nuisance Receiverships In America’S Rust Belt, Anna Kennedy
Washington and Lee Journal of Civil Rights and Social Justice
Since they were created in the 1980s in Cleveland, Ohio, public nuisance receiverships have spread across the American Rust Belt. This Note critically analyzes the legal implications of public nuisance receiverships, which involve the intrusion onto private property for public purposes. Despite claims that these actions align with exceptions to due process or public nuisance principles, a deeper examination reveals their fundamental nature as government takings of private property. This Note dissects the legal framework within the context of the Fifth Amendment, debunking the applicability of the public nuisance exception, establishing that receiverships constitute takings, and highlighting conflicts with Anti-Kelo …
The Impact Of Government Sponsored Segregation On Health Inequities: Addressing Death Gaps Through Reparations, Mariya Denisenko
The Impact Of Government Sponsored Segregation On Health Inequities: Addressing Death Gaps Through Reparations, Mariya Denisenko
Washington and Lee Law Review
Government sponsored segregation of urban neighborhoods has detrimentally impacted the health of Black Americans. Over the last century, federal, state, and local governments have promulgated racist laws and policies that shaped the racial divide of communities in major metropolitan cities. This divide has contributed to poor health outcomes and large discrepancies in life expectancy for Black Americans when compared to their White counterparts. While health is impacted by various factors, segregation has been shown to impose various challenges that make it difficult for Black Americans to attain good health.
Segregated Black communities struggle with economic inequality, environmental racism, and face …
How The Blockchain Undermined Digital Ownership, Aaron Perzanowski
How The Blockchain Undermined Digital Ownership, Aaron Perzanowski
Washington and Lee Law Review
The shift from a market built around the sale of tangible goods to one premised on the licensing of digital content and services has done significant and lasting damage to the notion of individual ownership. The emergence of blockchain technology, while certainly not necessary to reverse these trends, promised an opportunity to attract investment and demonstrate consumer demand for marketplaces that recognize meaningful digital ownership. Simultaneously, it offered an avenue for alleviating worries about hypothetical widespread reproduction and unchecked distribution of copyrighted works. Instead, many of the most visible blockchain projects in recent years—the proliferation of new cryptocurrencies and the …
Digital Property Cycles, Joshua Fairfield
Digital Property Cycles, Joshua Fairfield
Washington and Lee Law Review
The present downturn in non-fungible token (“NFT”) markets is no cause for immediate alarm. There have been multiple cycles in both the legal and media focus on digital intangible property, and these cycles will recur. The cycles are easily explainable: demand for intangible property is constant, even increasing. The legal regimes governing ownership of these assets are unstable and poorly suited to satisfying the preferences of buyers and sellers. The combination of demand and poor legal regulation gives rise to the climate of fraud that has come to characterize NFTs, but it has nothing to do with the value of …
Making Virtual Things, Joshua A.T. Fairfield
Making Virtual Things, Joshua A.T. Fairfield
Scholarly Articles
People value virtual things—such as NFTs—because such assets trigger and satisfy deep-seated narratives of property and ownership. The cause of the recent series of failures to regulate virtual assets, and the resulting crashes, has been a failure to take seriously the ways people perceive and use the assets. Current legal frameworks fail to support buyers’ and users’ expectations of ownership in virtual things they purchase.
Making virtual things is a matter of social construction of value. Virtual things, like real-world things, have value because a community values them for a purpose. It therefore makes no sense to discount how and …
The Future Of Testamentary Capacity, Reid Kress Weisbord, David Horton
The Future Of Testamentary Capacity, Reid Kress Weisbord, David Horton
Washington and Lee Law Review
Recently, the #FreeBritney saga cast a harsh spotlight on state guardianship systems. Yet despite their serious flaws, guardianship regimes have benefited from waves of reform. Indeed, since the 1970s, most jurisdictions have taken steps to protect the autonomy of people with cognitive, intellectual, or developmental disabilities (CIDD). Likewise, lawmakers are currently experimenting with supported decision-making (SDM): an alternative to guardianship designed to help individuals with CIDD make their own choices. These changes are no panacea, but they have modernized a field that once summarily denied “idiots” and “lunatics” power over their affairs.
However, in a related context, the legal system’s …
Right Of Self, Mitchell F. Crusto
Right Of Self, Mitchell F. Crusto
Washington and Lee Law Review
The exercise of free will against tyranny is the single principle that defines the American spirit, our history, and our culture. From the American Revolution through the Civil War, the two World Wars, the Civil Rights Movement, and up to today, Americans have embraced the fundamental rights of the individual against wrongful governmental intrusion. This is reflected in our foundational principles, including the Magna Carta, the Bill of Rights to the United States Constitution, the Reconstruction Amendments, the Nineteenth Amendment, and, more recently, in the Supreme Court’s recognition of fundamental individual rights within the Constitution’s penumbras. However, there is no …
Tokenized: The Law Of Non-Fungible Tokens And Unique Digital Property, Joshua A.T. Fairfield
Tokenized: The Law Of Non-Fungible Tokens And Unique Digital Property, Joshua A.T. Fairfield
Scholarly Articles
Markets for unique digital property--digital equivalents of rare artworks, collectible trading cards, and other assets that gain value from scarcity--have exploded in the past few years. At root is the next iteration of blockchain technology, unique digital assets called non-fungible tokens. Unlike bitcoin, where one coin is the same as another, NFTs are unique, each with different attributes. An NFT that represented ownership of Boardwalk would be quite different from one that represented Baltic Avenue.
NFTs have grown from a few early breakout successes to a rapidly developing market for unique digital treasures. The attraction to buyers is that, unlike …
Property As The Law Of Virtual Things, Joshua A.T. Fairfield
Property As The Law Of Virtual Things, Joshua A.T. Fairfield
Scholarly Articles
Property law in the twentieth century moved from the law of things to the law of rights in things. This was a process of fragmentation: Under Hohfeldian property, we conceive of property as a bundle of sticks, and those sticks can be moved to different holders; the right to possess can be separated from the record ownership right, for example. The downside of Hohfeld's model is that physical objects—things—become informationally complicated. Thing-ness constrains the extravagances of Hohfeldian property: although we can split off the right to possess from the right to exclude, use, destroy, copy, manage, repair, and so on, …
Eminent Domain And Unfettered Discretion: Lessons From A History Of U.S. Territorial Takings, Jill M. Fraley
Eminent Domain And Unfettered Discretion: Lessons From A History Of U.S. Territorial Takings, Jill M. Fraley
Scholarly Articles
Eminent domain is a minimal constitutional protection for private property and one that is subject to far more discretion than previously recognized by scholars. This Article traces a novel legal history of land takings within the U.S. Territories, focusing on some of the most egregious and controversial incidents and problematic patterns originating within eminent domain law. Comparing this history to recent research that demonstrates how takings in the States have disproportionately impacted Black communities, this Article articulates three patterns of injustices in takings echoing between Black mainland communities and indigenous communities in the Territories: large-scale federally funded actions, local government …
Opportunity Zones Providing Opportunity For Whom?: How The Current Regulations Are Failing And A Solution To Uplift Communities, Ruta R. Trivedi
Opportunity Zones Providing Opportunity For Whom?: How The Current Regulations Are Failing And A Solution To Uplift Communities, Ruta R. Trivedi
Washington and Lee Journal of Civil Rights and Social Justice
In 2017, the newly enacted Tax Cuts and Jobs Act created an incentive for taxpayers to invest in Qualified Opportunity Zones— census tracts that consist of low-income communities. These investments, which are incentivized via lucrative tax deferral benefits, are intended to uplift communities and leave them in a better position than they were pre-investment. However, the initiative lacks regulation requiring investments to actually benefit low-income areas, resulting in money going to places that do not need help, while communities that are in need may face displacement. This is a result of many wealthy investors finding that luxury projects are the …
Climate Change, Sustainability, And The Failure Of Modern Property Theory, Jill M. Fraley
Climate Change, Sustainability, And The Failure Of Modern Property Theory, Jill M. Fraley
Scholarly Articles
Property rights are, I argue, the single largest legal limitation on our ability to respond effectively to the climate change crisis. This is because our understanding of the scope of property rights shapes and limits legal concepts such as regulatory takings, land use law, common law tort and property claims, and statutory environmental regulation. Property sets our cultural norms about how much the government can or should control the uses of land. The goals of this Article are to (1) historically demonstrate the failures of sociallyoriented property theory as they are represented in the analytical framework of doctrines such as …
This Land Is Your Land? Survey Delegation Laws As A Compensable Taking, Doug Chapman
This Land Is Your Land? Survey Delegation Laws As A Compensable Taking, Doug Chapman
Washington and Lee Journal of Civil Rights and Social Justice
While every state in the Union has a statute delegating in some form surveying authority to private entities, the practice has been especially visible and controversial due to pipeline construction in the Commonwealth of Virginia. A major point of contention in pipeline development has centered upon the ability of private companies to use delegated eminent domain powers to survey land for possible future development. While recent decisions by both a federal Virginia District Court and the state’s Supreme Court have upheld the state’s surveying delegation law from landowner challenges, the issue is far from resolved. Virginia therefore provides an ideal …
This Land Is Your Land, This Land Is Mined Land: Expanding Governmental Ownership Liability Under Cercla, Kiersten E. Holms
This Land Is Your Land, This Land Is Mined Land: Expanding Governmental Ownership Liability Under Cercla, Kiersten E. Holms
Washington and Lee Law Review
Part II of this Note begins by providing a brief overview of the background and goals of CERCLA. Part II also provides an examination of the issue of ownership liability under CERCLA and recounts the federal courts’ difficulty in applying ownership liability. Part II then describes how the federal government’s “bare legal title” argument arose out of the confusion surrounding ownership liability in CERCLA litigation. Part III moves on to examine the recent trend in CERCLA litigation rejecting the federal government’s bare legal title argument, thus holding the federal government liable as an owner based on its possession of legal …
Text Messages Are Property: Why You Don’T Own Your Text Messages, But It’D Be A Lot Cooler If You Did, Spence M. Howden
Text Messages Are Property: Why You Don’T Own Your Text Messages, But It’D Be A Lot Cooler If You Did, Spence M. Howden
Washington and Lee Law Review
This Note proceeds as follows: Part II offers a brief overview of what text messages are and what they are not. Part III covers the history of intangible personal property law and reviews the evolution of “cybertrespass” claims. Part IV explores the judiciary and the Fourth Amendment’s failure to protect text messages. Finally, Part V evaluates whether text messages constitute property and the practical implications of this finding.
Modern Waste Law, Bankruptcy, And Residential Mortgage, Jill M. Fraley
Modern Waste Law, Bankruptcy, And Residential Mortgage, Jill M. Fraley
Scholarly Articles
Around the time of the subprime mortgage collapse, lenders began in earnest to sue borrowers by adapting the traditional law of waste. Today, these claims continue to rise in frequency and to expand to more jurisdictions. Lender waste claims provide a “work around” for state mortgage laws that prohibit personal deficiency judgments after foreclosure and are potentially non-dischargeable in bankruptcy.
While a recent wave of scholarship has addressed the problems of how the bankruptcy system handles mortgages, scholars have not yet explored the use of waste actions by lenders and how waste judgments intersect with bankruptcy and foreclosure. Using new …
Liability For Unintentional Nuisances: How The Restatement Of Torts Almost Negligently Killed The Right To Exclude In Property Law, Jill M. Fraley
Liability For Unintentional Nuisances: How The Restatement Of Torts Almost Negligently Killed The Right To Exclude In Property Law, Jill M. Fraley
Scholarly Articles
This article argues that nuisance was historically unique in tort law because of its special role in protecting property rights.' In other words, nuisance historically had distinct features addressed to the special situation of land. Most importantly, nuisance protected the right to exclude in a way that no other cause of action did. The Second Restatement's change then diminished our rights to private property to the extent that it has been adopted. The majority of courts retain the more logical and defensible position--that property rights are special and nuisance encompasses something more than the idea of negligence.
The Federal Law Of Property: The Case Of Inheritance Disclaimers And Tenancy By The Entireties, David Gray Carlson
The Federal Law Of Property: The Case Of Inheritance Disclaimers And Tenancy By The Entireties, David Gray Carlson
Washington and Lee Law Review
No abstract provided.
The Meaning Of Dispossession, Jill M. Fraley
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 …
You Buy It, You Break It: A Comment On Dispersing The Cloud, Aaron Perzanowski
You Buy It, You Break It: A Comment On Dispersing The Cloud, Aaron Perzanowski
Washington and Lee Law Review
No abstract provided.
Dispersing The Cloud: Reaffirming The Right To Destroy In A New Era Of Digital Property, Daniel Martin
Dispersing The Cloud: Reaffirming The Right To Destroy In A New Era Of Digital Property, Daniel Martin
Washington and Lee Law Review
No abstract provided.
Appetite For Destruction: Symbolic And Structural Facets Of The Right To Destroy Digital Property, Joshua A.T. Fairfield
Appetite For Destruction: Symbolic And Structural Facets Of The Right To Destroy Digital Property, Joshua A.T. Fairfield
Washington and Lee Law Review
No abstract provided.
Taking Patents, Gregory Dolin, Irena D. Manta
Taking Patents, Gregory Dolin, Irena D. Manta
Washington and Lee Law Review
The America Invents Act (AIA) was widely hailed as a remedy to the excessive number of patents that the Patent & Trademark Office issued, and especially ones that would later turn out to be invalid. In its efforts to eradicate “patent trolls” and fend off other ills, however, the AIA introduced serious constitutional problems that this Article brings to the fore. We argue that the AIA’s new “second-look” mechanisms in the form of Inter Partes Review (IPR) and Covered Business Method Review (CBMR) have greatly altered the scope of vested patent rights by modifying the boundaries of existing patents. The …
Foreclosure Of A Deed Of Trust In Virginia, Doug Rendleman
Foreclosure Of A Deed Of Trust In Virginia, Doug Rendleman
Scholarly Articles
This article deals with foreclosure of a deed of trust in Virginia. The Introduction discusses the deed of trust or mortgage as a social and political institution and the foreclosure crisis that seems to be ending. Part I is a brief history of mortgage law. It provides a short history of the modern mortgage system in the United States. Part II follows with a description of the approach that Virginia takes to mortgages. It localizes the mortgage institution to Virginia and introduces Virginia's vocabulary and technical details, the deed of trust, and the parties' rights and obligations. Part III provides …
Local Government Finance As Integrated System: The Uneasy Case For Using Special Districts In Real Estate Finance (A Response To Odinet’S Super-Liens To The Rescue? A Case Against Special Districts In Real Estate Finance), Darien Shanske
Washington and Lee Law Review Online
Local governments have long used special financing districts to build infrastructure. If a local project, say building a pocket park, is likely to increase the values of properties very close to the park, then why should those properties not pay for the park in the first place? Though efficient and fair in many cases, the use of these districts can also be problematic. For instance, it seems likely that wealthier residents, with higher property values to leverage, are especially likely to use these districts effectively. It has also been the case that developers have used these districts speculatively, which had …
Response To Christopher Odinet, Super- Liens To The Rescue? A Case Against Special Districts In Real Estate Finance, Peter W. Salsich Jr.
Response To Christopher Odinet, Super- Liens To The Rescue? A Case Against Special Districts In Real Estate Finance, Peter W. Salsich Jr.
Washington and Lee Law Review Online
No abstract provided.
Bitproperty, Joshua A.T. Fairfield
Bitproperty, Joshua A.T. Fairfield
Scholarly Articles
Property is the law of lists and ledgers. County land records, stock certificate entries, mortgage registries, UCC filings on personal property, United States Copyright and Patent registries of interests in intellectual property, bank accounts, domain name systems, and consumers’ Kindle eBook collections in the cloud — all are merely entries in a list, determining who owns what.
Each such list has suffered under a traditional limitation. To prevent falsification or duplication, a single entity must maintain the list, and users must trust (and pay) that entity. As a result, transactions must proceed at significant expense and delay. Yet zero or …