Law Commons^™

Liquidation Expenses And Floating Charges - The Separate Funds Fallacy, Riz Mokal

ExpressO

In the context of the decision by the House of Lords in Buchler v. Talbot, and of the Government’s resolve legislatively to overturn that decision, this paper considers the nature of the charge and the mortgage, and asks what effect the creation of such security interests has on the property of the company. It argues that their Lordships appear to have displayed a misunderstanding of the nature of the charge, and might have created significant doctrinal confusion in the process. The paper then provides empirical evidence to suggest that floating charges are not usually taken in order to ensure priority …

House Of The Setting Sun: New Orleans, Katrina, And The Role Of Historic Preservation Laws In Emergency Circumstances, Annie Christoff

Georgetown Law Historic Preservation Papers Series

In the aftermath of Hurricane Katrina, while various government bodies scrambled to address the myriad tragedies and emergencies that arose from the disaster, one critical question went largely unanswered and ignored: What was to become of the historic homes damaged in the storm and ensuing flood?

Obviously this question was of secondary concern at the time—where human life and safety are imperiled, the primary focus of government officials should be on restoring order and ensuring their constituents are protected. Precisely because of the existence of more pressing issues in a time of emergency, therefore, it is important to have a …

Finding New Constitutional Rights Through The Supreme Court’S Evolving “Government Purpose” Test Under Minimum Scrutiny, John H. Ryskamp

ExpressO

By now we all are familiar with the litany of cases which refused to find elevated scrutiny for so-called “affirmative” or “social” rights such as education, welfare or housing: Lindsey v. Normet, San Antonio School District v. Rodriguez, Dandridge v. Williams, DeShaney v. Winnebago County. There didn’t seem to be anything in minimum scrutiny which could protect such facts as education or housing, from government action. However, unobtrusively and over the years, the Supreme Court has clarified and articulated one aspect of minimum scrutiny which holds promise for vindicating facts. You will recall that under minimum scrutiny government’s action is …

A Common Tragedy: Condemnation And The Anticommons, Robert L. Scharff

ExpressO

Abstract: Economic development of land may be suboptimal where multiple parties have the legal right to exclude use of the property in question. Michael Heller labeled this phenomenon the ‘anticommons.’ It has been argued that condemnation of private property for economic development is a potentially efficiency-enhancing solution to the anticommons problem. Until recently, this argument was largely academic. However, with the recent Supreme Court decision in Kelo v. City of New London, condemnation for economic development is now a valid policy choice. In this paper, I argue that the economic models used to justify condemnation are fundamentally flawed and that …

I Know You Are, But What Am I? A Temporal Approach To Legal Classification, Wendy A. Adams

ExpressO

No real epistemological disagreement exists that legal knowledge can be represented and understood in categorical form. At issue is the extent to which categorical analysis captures the full complexity of legal reasoning. Can legal reasoning be represented as a taxonomy of mutually-exclusive classes, a taxonomy considered necessary if legal certainty and the rule of law are to prevail, or does the complexity of the process defy attempts at exhaustive classification?

The author agrees with those who argue that multiple legal concepts must often be applied simultaneously to resolve legal problems. The author also acknowledges that simultaneous application of multiple concepts …

Productive Preservation And The Reinvention Of Industrial America, Jonathan Flynn

Georgetown Law Historic Preservation Papers Series

This paper explores the problem of why the traditional model preservation, characterized by a strict and inflexible interpretation of the law, often fails in struggling communities. Particular emphasis is given to early industrial cities, where the existing urban infrastructure and difficult economic situation often conspire to make preservation exceptionally challenging. A solution is proposed for making preservation productive these distressed communities. Through a broader, and more flexible reading of existing law, a major preservation problem may be solved, and history can used as a valuable tool for growth and positive change.

The Law Of Sprawl: A Road Map, Michael Lewyn

ExpressO

In the fall of 2004, I taught a seminar on “The Law of Sprawl” at Southern Illinois University (SIU) School of Law. This essay seeks to guide would-be teachers of a course on sprawl by showing how I taught the course.

Specifically, the article asserts that a seminar on sprawl belongs in law school curricula as well as planning school curricula, because a wide variety of legal rules contribute to sprawl. The article then goes on to discuss those legal rules and how I addressed them in my course. For example, the article discusses land use regulations that encourage automobile-dependent …

Formal Versus Informal Allocation Of Land In A Commons: The Case Of The Macarthur Park Sidewalk Vendors, Gregg Kettles

ExpressO

Sidewalk vendors are becoming a more common presence in cities in Latin America and the United States. Vendor demand for the best sidewalk vending spots increasingly exceeds supply, making necessary a system to allocate space in what is essentially an open access commons. This paper presents an empirical study of two very different systems of allocation that have been adopted in the city of Los Angeles, California, a formal one imposed by the city on legal vendors when they were unable to come up with one on their own, and a second that was embraced by illegal vendors across the …

The (Practical) Meaning Of Property, Vincent F. Chiappetta

ExpressO

I argue that a functional approach to property - defining it as society’s decisions allocating varying kinds and degrees of legal control over resources rather than in terms of fixed sets of attributes or predefined goals - significantly clarifies public policy debate and related decision-making. That approach demonstrates we should reject characterizations of property as a yes-no proposition to which we react as well as the assumption that those who disagree with us are fools or worse. Those characterizations distract us from the central issue in property - our persistent normative disagreements regarding what constitutes its just application. Discussing property …

Desperate Cities: Eminent Domain And Economic Development In A Post-Kelo World, Asmara Tekle Johnson

ExpressO

Kelo v. City of New London unleashed an unprecedented legislative response when the Court upheld the use of eminent domain for private economic development as consistent with the Takings Clause of the Fifth Amendment. By exhibiting an extreme deference to the legislative branch and failing to consider the current model of economic development, in which “desperate” cities have seen their economic bases contract and have embarked on fervent urban revitalization campaigns as a result, the Kelo Court failed to take into account the immense influence that large corporate interests wield in the legislature. This influence is generally exercised to the …

The "Public Use" Requirement In Eminent Domain Law: A Rationale Based On Secret Purchases And Private Influence, Daniel B. Kelly

ExpressO

This article provides a rationale for understanding and interpreting the “public use” requirement within eminent domain law. The rationale is based on two factors. First, while the government often needs the power of eminent domain to avoid the problem of strategic holdout, private parties are usually able to purchase property through secret buying agents. The availability of these buying agents makes the use of eminent domain for private parties unnecessary (and indeed, undesirable). The government, however, is ordinarily unable to make secret purchases because its plans are subject to democratic deliberation and known in advance. Second, while the use of …

The Children Of Science: Property, People, Or Something In Between?, Star Q. Lopez

ExpressO

How should states classify embryos? The war has often waged between two classifications, people versus property. But what if a state assumed something in between, finding the embryo to be a potential person entitled to special respect? If a state adopted this position, how would the law affect medical research?

Presuming embryos constitute potential persons, the debate would continue with how to define “special respect.” The status of a potential person runs along a spectrum between property and personhood. How one defines “special respect” determines where the potential person falls along this spectrum. Special respect would create a spectrum of …

Property And Empire: The Law Of Imperialism In Johnson V. M'Intosh, Jedediah S. Purdy

ExpressO

Justice Marshall’s opinion in Johnson v. M’Intosh has long been a puzzle in both its doctrinal structure and in Marshall’s manifest ambivalence and long, strange dicta that are both triumphal and elegiac. In this article, I show that the opinion becomes newly intelligible when read in the context of the law and theory of colonialism, concerned, which, like the case itself, was concerned with the expropriation of continents and relations between dominant and subject peoples.

I examine several instances where the seeming incoherence of the opinion instead shows its debt imperial jurisprudence, which rested on a distinction between two bodies …

The Takings Clause, Version 2005: The Legal Process Of Constitutional Property Rights, Mark Fenster

ExpressO

The three takings decisions that the Supreme Court issued at the end of its October 2004 Term marked a stunning reversal of the Court’s efforts the past three decades to use the Takings Clause to define a set of constitutional property rights. The regulatory takings doctrine, which once loomed as a significant threat to the modern regulatory state, now appears after Lingle v. Chevron to be a relatively tame, if complicated, check on exceptional instances of regulatory abuse. At the same time, the Public Use Clause, formerly an inconsequential limitation on the state’s eminent domain authority, now appears ripe for …

Taking State Property Rights Out Of Federal Labor Law, Jeffrey M. Hirsch

ExpressO

Currently, the National Labor Relations Board determines whether union organizers have a right to access employer property by looking almost exclusively to an employer’s state law right-to-exclude. If the employer possesses such a right, an attempt to exclude organizers will generally be lawful; if the employer lacks that right, the exclusions will be unlawful. This analysis makes little sense, as an employer’s state property interests are irrelevant to the primary labor issue in these cases—whether the exclusion interferes with employees’ federal labor rights. Employees will tend to view hostile or discriminatory exclusions of organizing activity as coercive, whether or not …

Desperate Cities: Eminent Domain And Economic Development In A Post-Kelo World, Asmara Tekle Johnson

ExpressO

Kelo v. City of New London unleashed an unprecedented legislative response when the Court upheld the use of eminent domain for private economic development as consistent with the Takings Clause of the Fifth Amendment. By exhibiting an extreme deference to the legislative branch and failing to consider the current model of economic development, in which “desperate” cities have seen their economic bases contract and have embarked on fervent urban revitalization campaigns as a result, the Kelo Court failed to take into account the immense influence that large corporate interests wield in the legislature. This influence is generally exercised to the …

People As Property: On Being A Resource And A Person, Jedediah S. Purdy

ExpressO

Property law facilitates the efficient use and allocation of scarce resources and recognizes and protects aspects of personhood – the bases of dignity and self-respect. Human beings, who are both resources for one another and the persons whose moral importance the legal system seeks to protect. This article explores how property law has addressed this paradox in the past and how might in the future.

I analyze two bodies of nineteenth-century law where the paradox was highlighted: the legal regimes of labor discipline for slaves in the antebellum South and for free workers in the laissez-faire Lochner era. The law …

Making Main Street Legal Again: The Smartcode Solution To Sprawl, Chad Emerson

ExpressO

No abstract provided.

Land Titling: A Mode Of Privatization With The Potential To Deepen Democracy, Bernadette Atuahene

All Faculty Scholarship

Land titling is a form of privatization in that public assets are transferred to private families and individuals. This is unlike other forms of privatization, however, because there is a systematic diffusion of economic and decision making power down to indigent populations rather than out of the country or up to its local elites. In light of this uniqueness, the question I will grapple with in this Article is, can property ownership, achieved through land titling programs, bolster democracy? First, using Peru as an example, I explain the context that necessitated the creation of land titling and the process by …

Land Titling: A Mode Of Privatization With The Potential To Deepen Democracy, Bernadette Atuahene

Bernadette Atuahene

Land titling is a form of privatization in that public assets are transferred to private families and individuals. This is unlike other forms of privatization, however, because there is a systematic diffusion of economic and decision making power down to indigent populations rather than out of the country or up to its local elites. In light of this uniqueness, the question I will grapple with in this Article is, can property ownership, achieved through land titling programs, bolster democracy? First, using Peru as an example, I explain the context that necessitated the creation of land titling and the process by …

Protecting The Public Trust And Human Rights In The Great Lakes, Melissa K. Scanlan

Melissa K. Scanlan

No abstract provided.

Realizing The Promise Of The Great Lakes Compact: A Policy Analysis For State Implementation, Melissa K. Scanlan, Jodi H. Sinykin, James Krohelski

Melissa K. Scanlan

No abstract provided.

Home As A Legal Concept, Benjamin Barros

Benjamin Barros

This article, which is the first comprehensive discussion of the American legal concept of home, makes two major contributions. First, the article systematically examines how homes are treated more favorably than other types of property in a wide range of legal contexts, including criminal law and procedure, torts, privacy, landlord-tenant, debtor-creditor, family law, and income taxation. Second, the article considers the normative issue of whether this favorable treatment is justified. The article draws from material on the psychological concept of home and the cultural history of home throughout this analysis, providing insight into the interests at stake in various legal …

Second Thoughts In The Law Of Property, John V. Orth

Faculty Publications

No abstract provided.

China's Housing Policy: Successes And Disappointments, Joyce Palomar, Jainbo Lou

Joyce Palomar

No abstract provided.

Emperical Research In Real Property Law, Joyce Palomar

Joyce Palomar

No abstract provided.

Palazzolo, The Public Trust, And The Property Owner’S Reasonable Expectations: Takings And The South Carolina Marsh Island Bridge Debate, Erin Ryan

Erin Ryan

South Carolina recently promulgated new guidelines regulating the State’s consideration of requests by private marsh island owners to build bridges for vehicular access through publicly owned marsh and tidelands. Many thousands of these islands hug the South Carolina coast, but they are surrounded by tidelands subject to South Carolina’s formidable public trust doctrine, which obligates the State to manage submerged lands and waterways for the benefit of the public. This piece evaluates the relationship between the public trust doctrine and the takings subtext to the debate over the new guidelines – a relationship that has become particularly interesting in the …