Law Commons^™

Needful Rules And Regulations: Originalist Reflections On The Territorial Clause, Anthony M. Ciolli

Vanderbilt Law Review

There are few areas where the current state of the law is as inconsistent, incoherent, and intellectually bankrupt as the law of U.S. territories. The seminal cases in the field are the infamous Insular Cases, where the Supreme Court of the United States held that the “half-civilized,” “savage,” “ignorant and lawless” “alien races” that inhabited the United States’ overseas territories were not entitled to the same constitutional rights and protections afforded to Americans residing in the mainland United States—holdings that were based on the white man’s burden and similar then-prevalent theories of white supremacy.

Despite being firmly entrenched within the …

Cultural Property: “Progressive Property In Action”, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

Cultural property law fulfills many of the normative and jurisprudential goals of progressive property theory. Cultural property limits the normal prerogatives of owners in order to give legal substance to the interests of the public or of specially protected non-owners. It recognizes that preservation of and access to heritage resources advance public values such as cultural enrichment and community identity. The proliferation of cultural property laws and their acceptance by courts has occurred despite a resurgent property fundamentalism embraced by the Supreme Court. Thus, this Article seeks to explicate the category of cultural property, its fulfillment of progressive theory, and …

The Legal Crisis Within The Climate Crisis, Mark P. Nevitt

Faculty Articles

Climate change creates a difficult choice for property owners and governmental officials alike: Should they invest in costly climate adaptation measures or retreat from climate-exposed areas? Either decision is fraught with legal uncertainty, running headfirst into antiquated legal doctrines designed for a more stable world. Climate impacts to the coastline are forcing policymakers to consider four adaptation tools: (1) resisting climate impacts by building sea walls and armoring the shoreline; (2) accommodating those impacts by elevating existing structures; (3) managed retreat such as systematically and preemptively moving people out of harm’s way; and (4) reactively moving people to new locations …

Infrastructure Sharing In Cities, Sheila Foster

Georgetown Law Faculty Publications and Other Works

In this Essay, I reflect on the different ways in which cities engaged in what I call “infrastructure sharing” during the COVID-19 pandemic. Cities around the world responded to the pandemic by repurposing their streets and sidewalks into outdoor seating, dining spaces, and car-free pedestrian corridors. At the same time, many cities and states also faced calls to “reclaim” underutilized public and private structures like empty houses and hotels and put them to a use responsive to the crisis. The Essay will highlight the difference between sharing property and assets that are part of the “public estate” and dedicated exclusively …

Municipal Optimization Of Short-Term Rental Regulations: The Reality Of Airbnb In South Texas Communities, Kenneth M. Culbreth Iii

St. Mary's Law Journal

Abstract forthcoming.

Penn Central In Retrospect: The Past And Future Of Historic Preservation Regulation, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The U.S. Supreme Court’s 1978 decision in Penn Central Transportation Co. v. City of New York is one of the best known cases in the Property Law canon. The Court there held that the refusal of the New York City Landmarks Preservation Commission to permit the owner to erect a 50-storey tower on top of Grand Central Terminal did not effect a taking of private property requiring the payment of compensation. The decision now is more than forty years old. Taught since then in most first-year Property classes, Penn Central endures as the foundation of the modern application of the …

Recent Developments, Clinton T. Summers

Arkansas Law Review

In a free speech and free exercise case involving the Business Leaders in Christ at the University of Iowa, the Eighth Circuit Court of Appeals reversed the Southern District of Iowa by holding that University officials should not be granted qualified immunity based on the student organization’s free speech claim.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents and Special Thanks.

Race And Property Law, K-Sue Park

Georgetown Law Faculty Publications and Other Works

This chapter offers an outline for understanding the key role of race in producing property values in the history of the American property law system. It identifies major developments in the mutually formative relationship between race and property in America that made and remade property interests in America through the processes of 1) dispossessing nonwhites, 2) degrading their homelands, communities, and selves, and 3) limiting their efforts to enter public space and occupy or acquire property within the regime thereby established. First, it describes the use of law to create the two most important forms of property in the colonies …

State Interventions In Local Zoning, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

In what has been described as an "emerging consensus" and pejoratively labeled an "elite liberaltarian consensus," there is growing scholarly recognition that land use overregulation is hurting the country by limiting the supply and increasing the price of housing. By highlighting state-level interventions that succeeded in checking local zoning authority, Professor Anika Lemar's article makes a valuable contribution to the fight against excessive zoning limitations.

Reclaiming State Authority Over Zoning Property, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

In 2019, Oregon became the first state to pass legislation that essentially bans single-family zoning.' As states across the country struggle to respond to the housing affordability crisis, Oregon's actions do not stand alone. John Infranca's recent article, The New State Zoning: Land Use Preemption Amid a Housing Crisis, may have been published before Oregon's historic vote but it is essential reading for those interested in the future of zoning.

Murray V. Bej Minerals, Llc, Brett Berntsen

Public Land & Resources Law Review

Part of a dispute some 66 million years in the making, Murray v. BEJ Minerals, LLC considered for the first time whether dinosaur fossils—specifically a one-of-a-kind specimen containing entombed “dueling dinosaurs”—qualified as “minerals” for the purposes of a property transaction under Montana law. Finding no consistent statutory or dictionary definition for “mineral,” the Ninth Circuit relied on a test previously utilized by the Montana Supreme Court to hold that the dinosaur fossils constituted minerals due to their rare and exceptional qualities and were therefore part of the property’s mineral estate. The decision was promptly nullified, however, as the Ninth Circuit …

Non-Enforcement Takings, Timothy M. Mulvaney

Timothy M. Mulvaney

The non-enforcement of existing property laws is not logically separable from the issue of unfair and unjust state deprivations of property rights at which the Constitution's Takings Clause takes aim. This Article suggests, therefore, that takings law should police allocations resulting from non-enforcement decisions on the same "fairness and justice" grounds that it polices allocations resulting from decisions to enact and enforce new regulations. Rejecting the extant majority position that state decisions not to enforce existing property laws are categorically immune from takings liability is not to advocate that persons impacted by such decisions should be automatically or even regularly …

Property, Race, Segregation, And The State Property, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

Property scholars have neither forgotten nor ignored the government's role in creating and furthering racial segregation. Scholars have written extensive work on redlining, racially restrictive covenants, the siting of public housing in minority poor communities and the resistance of wealthier white towns to affordable housing.

Nevertheless, Richard Rothstein's book, The Color of Law, should be required reading for property scholars and students. Beautifully written, the book is packed with new details and stories that illustrate the many ways government-at the local, state, and federal levels-denied African-Americans equal access to space and property.

Non-Enforcement Takings, Timothy M. Mulvaney

Faculty Scholarship

The non-enforcement of existing property laws is not logically separable from the issue of unfair and unjust state deprivations of property rights at which the Constitution's Takings Clause takes aim. This Article suggests, therefore, that takings law should police allocations resulting from non-enforcement decisions on the same "fairness and justice" grounds that it polices allocations resulting from decisions to enact and enforce new regulations. Rejecting the extant majority position that state decisions not to enforce existing property laws are categorically immune from takings liability is not to advocate that persons impacted by such decisions should be automatically or even regularly …

Penn Central Take Two, Christopher Serkin

Vanderbilt Law School Faculty Publications

Penn Central v. New York City is the most important regulatory takings case of all time. There, the Supreme Court upheld the historic preservation of Grand Central Terminal in part because the City offset the burden of the landmarking with a valuable new property interest—a transferable development right (TDR)—that could be sold to neighboring property. Extraordinarily, 1.2 million square feet of those very same TDRs, still unused for over forty years, are the subject of newly resolved takings litigation. According to the complaint, the TDRs that saved Grand Central were themselves taken by the government, which allegedly wiped out their …

Water, Water, Everywhere: Surface Water Liability, Jill M. Fraley

Jill M. Fraley

By 2030 the U.S. will lose around $520 billion annually from its gross domestic product due to flooding. New risks resulting from climate change arise not only from swelling rivers and lakes, but also from stormwater runoff. According to the World Bank, coastal cities risk flooding more from their poor management of surface water than they do from rising sea levels. Surface water liability governs when a landowner is responsible for diverting the flow of water to a neighboring parcel of land. Steep increases in urban flooding will make surface water an enormous source of litigation in the coming decades. …

Maryland's Medical Marijuana Law: Transactional And Ethical Perspectives For Real Estate Practitioners, Nicole M. Lacoste Folks, Lawrence F. Haislip, Matthew L. Kimball

University of Baltimore Journal of Land and Development

The congruence between Federal and state laws relating to marijuana, 2 which has existed for generations, is unraveling. In recent years a number of states have reduced or eliminated criminal penalties for the possession or use of small amounts of marijuana;3 twentythree states have established a state law exception for medical marijuana; 4 and Colorado, Washington, Alaska and Oregon now authorize the retail and personal growth, sale and possession of marijuana as a matter of state law.5 Maryland has lately joined the list of states purporting to create exceptions or safe harbors for those wishing to engage in the manufacture, …

Water, Water, Everywhere: Surface Water Liability, Jill M. Fraley

Michigan Journal of Environmental & Administrative Law

By 2030 the U.S. will lose around $520 billion annually from its gross domestic product due to flooding. New risks resulting from climate change arise not only from swelling rivers and lakes, but also from stormwater runoff. According to the World Bank, coastal cities risk flooding more from their poor management of surface water than they do from rising sea levels. Surface water liability governs when a landowner is responsible for diverting the flow of water to a neighboring parcel of land. Steep increases in urban flooding will make surface water an enormous source of litigation in the coming decades. …

Dealing With Dirty Deeds: Matching Nemo Dat Preferences With Property Law Pragmatism, Donald J. Kochan

Donald J. Kochan

Unpermitted Urban Agriculture: Transgressive Actions, Changing Norms, And The Local Food Movement, Sarah Schindler

Sturm College of Law: Faculty Scholarship

Roberta keeps four chickens in her backyard. Bob snuck onto the vacant lot next door, which the bank foreclosed upon and now owns, and planted a vegetable garden. Vien operates an occasional underground restaurant from his friends' microbrewery after beer-making operations cease for the day. The common thread tying these actions together is that they are unauthorized; they are being undertaken in violation of existing laws and often norms. In this Article, I explore ideas surrounding the overlap between food policy and land use law, specifically the transgressive actions that people living in urban and suburban communities are undertaking to …

Cases And Materials On American Property Law, 6th Edition, Carol N. Brown

Law Faculty Publications

This casebook continues its traditional approach to the teaching of property law. The new edition features a number of new cases inserted into almost every chapter of the book. The notes and comments have been appropriately updated. The opening chapter continues to include a section of cases designed to hone a student's skill in close case analysis. The book in its entirety introduces students to a broad spectrum of material traditionally covered in a first-year property course.

Re-Evaluating Tribal Customs Of Land Use Rights, John C. Hoelle

University of Colorado Law Review

Indigenous peoples developed sustainable land tenure systems over countless generations, but these customary systems of rights are barely used by American Indian tribes today. Would increasing formal recognition of these traditional customs be desirable for tribes in a modern context? This Comment examines one traditional form of indigenous land tenure-the use right-and argues that those tribes that historically recognized use rights in land might benefit from increased reliance on these traditional customs. The Comment argues that in the tribal context, use rights can potentially be just as economically efficient, if not more so, than the Anglo- American system of unqualified, …

Palazzolo V. Rhode Island: Takings, Investment-Backed Expectations, And Slander Of Title, Garrett Power

Garrett Power

No abstract provided.

Agenda: The Future Of Natural Resources Law And Policy, University Of Colorado Boulder. Natural Resources Law Center, Rocky Mountain Mineral Law Foundation

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

The Natural Resources Law Center's 25th Anniversary Conference and Natural Resources Law Teachers 14th Biennial Institute provided an opportunity for some of the best natural resources lawyers to discuss future trends in the field. The conference focused on the larger, cross-cutting issues affecting natural resources policy. Initial discussions concerned the declining role of scientific resource management due to the increased inclusion of economic-cost benefit analysis and public participation in the decision-making process. The effectiveness of this approach was questioned particularly in the case of non-market goods such as the polar bear. Other participants promoted the importance of public participation and …

In The Absence Of Title: Responding To Federal Ownership In Sacred Sites Cases, Kristen A. Carpenter

Publications

This paper examines the challenge of protecting American Indian sacred sites located on federal public lands. Many have addressed this issue in the religious freedoms context, but I believe the problem is just as much about property law. The Supreme Court's decision in Lyng v. Northwest Indian Cemetery Protective Association, for example, would appear to suggest that federal ownership of certain sacred sites trumps tribal free exercise clause claims regarding those sites. This holding corresponds with a classic model in which "[p]roperty is about rights over things and the people who have those rights are called owners." However, a …

Palazzolo V. Rhode Island: Takings, Investment-Backed Expectations, And Slander Of Title, Garrett Power

Faculty Scholarship

No abstract provided.

Zoning Restrictions Applied To Mobile Homes, Byron D. Van Iden

Cleveland State Law Review

It is the thesis of this paper that a municipality may not prevent expansion of an existing mobile home park (in the absence of a clear showing that to do so is necessary to promote the public health, safety, or welfare) by excluding mobile home parks from the zoning resolution, and through statutory limitations on the expansion of nonconforming uses. After examining treatment by the courts of regulating and excluding mobile home parks, several possible approaches will be shown for the mobile home park developer to use in overcoming these zoning restrictions.