Open Access. Powered by Scholars. Published by Universities.®
- Publication Year
- Publication
- Publication Type
Articles 1 - 20 of 20
Full-Text Articles in Law
Ownership Without Citizenship: The Creation Of Noncitizen Property Rights, Allison Brownell Tirres
Ownership Without Citizenship: The Creation Of Noncitizen Property Rights, Allison Brownell Tirres
Michigan Journal of Race and Law
At the nation’s founding, the common law of property defined ownership as an incident of citizenship. Noncitizens were unable lawfully to hold, devise, or inherit property. This doctrine eroded during the course of the eighteenth and nineteenth centuries, but few scholars have examined its demise or the concommittant rise of property rights for foreigners. This Article is the first sustained treatment of the creation of property rights for noncitizens in American law. It uncovers two key sources for the rights that emerged during the nineteenth century: federal territorial law, which allowed for alien property ownership and alien suffrage, and state …
Keeping Up With The Jonses: Making Sure Your History Is Just As Wrong As Everyone Else's, Brian Sawers
Keeping Up With The Jonses: Making Sure Your History Is Just As Wrong As Everyone Else's, Brian Sawers
Michigan Law Review First Impressions
Before Katz v. United States, a search under the Fourth Amendment required a trespass. If there was no trespass on one’s property, then there was no search. In Katz, a 1967 decision, the U.S. Supreme Court abandoned that approach, instead finding a search without a trespass based on the government’s invasion of a “reasonable expectation of privacy.” In Oliver v. United States, the Court found that trespass was not sufficient to create a search. It found no reasonable expectation of privacy in open fields, and thus no search, even though the defendant had erected “No Trespassing” signs around his property …
An Incomplete Revolution: Feminists And The Legacy Of Marital-Property Reform, Mary Ziegler
An Incomplete Revolution: Feminists And The Legacy Of Marital-Property Reform, Mary Ziegler
Michigan Journal of Gender & Law
As this Article shows, the conventional historical narrative of the divorce revolution is not so much incorrect as incomplete. Histories of the divorce revolution have focused disproportionately on the introduction of no-fault rules and have correctly concluded that women's groups did not play a central role in the introduction of such laws. However, work on divorce law has not adequately addressed the history of marital-property reform or engaged with scholarship on the struggle for the Equal Rights Amendment to the federal Constitution. Putting these two bodies of work in dialogue with one another, the Article provides the first comprehensive history …
Race And Constitutional Law Casebooks: Recognizing The Proslavery Constitution, Juan F. Perea
Race And Constitutional Law Casebooks: Recognizing The Proslavery Constitution, Juan F. Perea
Michigan Law Review
Federalist No. 54 shows that part of Madison's public defense of the Constitution included the defense of some of its proslavery provisions. Madison and his reading public were well aware that aspects of the Constitution protected slavery. These aspects of the Constitution were publicly debated in the press and in state ratification conventions. Just as the Constitution's protections for slavery were debated at the time of its framing and ratification, the relationship between slavery and the Constitution remains a subject of debate. Historians continue to debate the centrality of slavery to the Constitution. The majority position among historians today appears …
Walking The Beach To The Core Of Sovereignty: The Historic Basis For The Public Trust Doctrine Applied In Glass V. Goeckel, Robert Haskell Abrams
Walking The Beach To The Core Of Sovereignty: The Historic Basis For The Public Trust Doctrine Applied In Glass V. Goeckel, Robert Haskell Abrams
University of Michigan Journal of Law Reform
In 2004, a split panel of the Michigan Court of Appeals announced its conclusion that Michigan littoral owners of property owned to the water's very edge and could exclude members of the public from walking on the beach. In that instant almost 3300 miles of the Great Lakes foreshore became, in theory and in law, closed to public use. The case became the leading flash point of controversy between the vast public and ardent private property rights groups. A little more than one year later, the Michigan Supreme Court reversed that ruling as errant on public trust grounds and returned …
Public Rights And Private Commerce: A Nineteenth-Century Atlantic Creole Itinerary, Rebecca J. Scott
Public Rights And Private Commerce: A Nineteenth-Century Atlantic Creole Itinerary, Rebecca J. Scott
Articles
Tracing the history of a family across three generations, from enslavement in eighteenth-century West Africa through emancipation during the Haitian Revolution and subsequent resettlement in New Orleans, then France, then Belgium, can shed light on phenomena that are Atlantic in scope. A business letter written in 1899 by the cigar merchant Edouard Tinchant to General Máximo Gómez in Cuba frames an inquiry that opens out onto a family itinerary that spanned the long nineteenth century. Rosalie Vincent’s achievement of freedom in the shadow of slavery in Saint-Domingue in 1793–1803 can be seen as linked to her grandson Edouard Tinchant’s participation …
A Cuban Connection: Edwin F. Atkins, Charles Francis Adams, Jr., And The Former Slaves Of Soledad Plantation, Rebecca J. Scott
A Cuban Connection: Edwin F. Atkins, Charles Francis Adams, Jr., And The Former Slaves Of Soledad Plantation, Rebecca J. Scott
Articles
Edwin F. Atkins and Charles Francis Adams, Jr., stand out on this stage not as major players but as a particularly intriguing Boston connection. Among the truly major players, planters like Juli?n Zulueta and the Count of Casa More owned hundreds of slaves and shaped Spanish policy. On the Cuban nationalist side, few could equal the impact of Antonio Maceo, the mulato insurgent general who insisted on full emancipation at the end of the 1868-1878 war, or the thousands of rebels who fought under the orders of rebel generals Maceo and Maximo Gomez. As the master of some ninety-five patrocinados …
Le 'Droit D'Avoir Des Droits': Les Revendications Des Ex-Esclaves À Cuba (1872-1909), Rebecca J. Scott, Michael Zeuske
Le 'Droit D'Avoir Des Droits': Les Revendications Des Ex-Esclaves À Cuba (1872-1909), Rebecca J. Scott, Michael Zeuske
Articles
In Cuba, a distinctive process of gradual emancipation brought a large number of enslaved and recently-freed men and women into the legal culture. What earlier might have remained oral or physical challenges now took legal form, as slaves and former slaves built alliances with those who could assist them in their appeals. The assertions of former slaves suggest an emerging conviction of a "right to have rights", going well beyond the immediate refusal of their own bondage. In this light, the office of the notary and the courts of first instance became places where freedom itself was constituted through the …
Property In Writing, Property On The Ground: Pigs, Horses, Land, And Citizenship In The Aftermath Of Slavery, Cuba, 1880-1909, Rebecca J. Scott, Michael Zeuske
Property In Writing, Property On The Ground: Pigs, Horses, Land, And Citizenship In The Aftermath Of Slavery, Cuba, 1880-1909, Rebecca J. Scott, Michael Zeuske
Articles
In the most literal sense, the abolition of slavery marks the moment when one human being cannot be held as property by another human being, for it ends the juridical conceit of a "person with a price." At the same time, the aftermath of emancipation forcibly reminds us that property as a concept rests on relations among human beings, not just between people and things. The end of slavery finds former masters losing possession of persons, and former slaves acquiring it. But it also finds other resources being claimed and contested, including land, tools, and animals-resources that have shaped former …
Caste, Class, And Equal Citizenship, William E. Forbath
Caste, Class, And Equal Citizenship, William E. Forbath
Michigan Law Review
There is a familiar egalitarian constitutional tradition and another we have largely forgotten. The familiar one springs from Brown v. Board of Education; its roots lie in the Reconstruction era. Court-centered and countermajoritarian, it takes aim at caste and racial subordination. The forgotten one also originated with Reconstruction, but it was a majoritarian tradition, addressing its arguments to lawmakers and citizens, not to courts. Aimed against harsh class inequalities, it centered on decent work and livelihoods, social provision, and a measure of economic independence and democracy. Borrowing a phrase from its Progressive Era proponents, I will call it the social …
The Boundaries Of Private Property, Michael A. Heller
The Boundaries Of Private Property, Michael A. Heller
Articles
If your house and fields are worth more separately, divide them; if you want to leave a ring to your child now and grandchild later, split the ownership in a trust. The American law of property encourages owners to subdivide resources freely. Hidden within the law, however, is a boundary principle that limits the right to subdivide private property into wasteful fragments. While people often create wealth when they break up and recombine property in novel ways, owners may make mistakes, or their self-interest may clash with social welfare. Property law responds with diverse doctrines that prevent and abolish excessive …
Toward A Constitutional Kleptocracy: Civil Forfeiture In America, Stephan B. Herpel
Toward A Constitutional Kleptocracy: Civil Forfeiture In America, Stephan B. Herpel
Michigan Law Review
Leonard Levy, the legal historian who has written a number of highly regarded historical studies on various provisions of the United States Constitution, has added to his impressive oeuvre a new study of civil and criminal forfeiture. A License to Steal brings together a discussion of English legal history, a review of a number of Nineteenth Century and late Twentieth Century Supreme Court forfeiture decisions, accounts of actual applications of civil and criminal forfeiture, and a summary and critique of legislative proposals that have been made for reform of the civil forfeiture provisions of the federal drug statute. There is …
Stories About Property, William W. Fisher Iii
Stories About Property, William W. Fisher Iii
Michigan Law Review
A Review of Carol M. Rose, Property and Persuasion: Essays on the History, Theory, and Rhetoric of Ownership
Transfers Of Property In Eleventh-Century Norman Law, William John Gallagher
Transfers Of Property In Eleventh-Century Norman Law, William John Gallagher
Michigan Law Review
A Review of Transfers of Property in Eleventh-Century Norman Law by Emily Zack Tabuteau
Some Aspects Of Householding In The Medieval Icelandic Commonwealth, William I. Miller
Some Aspects Of Householding In The Medieval Icelandic Commonwealth, William I. Miller
Articles
There has been much, mostly inconclusive, discussion about how to define the household in a manner suitable for comparative purposes. Certain conventional criteria are not very useful in the Icelandic context, where it appears that a person could be attached to more than one household, where the laws suggest it was possible for more than one household to be resident in the same uncompartmentalised farmhouse; and where headship might often be shared. Definitions, for example, based on co residence or on commensalism do not jibe all that well with the pastoral transhumance practised by the Icelanders. Sheep were tended and …
Evolving Judicial Attitudes Toward Local Government Land Use Control, Terrance Sandalow
Evolving Judicial Attitudes Toward Local Government Land Use Control, Terrance Sandalow
Articles
The year 1967 begins the second half-century of zoning in the United States. The first comprehensive zoning ordinance was adopted by New York City in 1916. In the fifty years that have elapsed, zoning has become, notwithstanding a growing disenchantment with it on the part of planners, the most widely employed technique of land use control in the United States. At the present time only Houston, of all the major cities in the United States, lacks a zoning ordinance. And, though I have not obtained precise figures, we are all familiar with the increasingly large per centage of small municipalities, …
Pecote': A Bit Of Legal Archaeology, Joseph H. Drake
Pecote': A Bit Of Legal Archaeology, Joseph H. Drake
Articles
In the case of Pusey v. Pusey, 1 Vern. 273 (1684), the "bil was, that a horn, which time out of mind had gone along with the plaintiff's estate, and was delivered, to his ancestors in ancient times to hold their land by, might be delivered to him; upon which horn was the inscription, viz. pecote this horn to hold huy thy land." The bill was demurred to in that the plaintiff did not by his bill pretend to be entitled to this horn, either as executor or devisee; nor had he in his bill charged it to be an …
The Struggle For A Perpetuity, John R. Rood
The Struggle For A Perpetuity, John R. Rood
Articles
It is natural for us moderns to conceive of the right to alienate as an inseparable incident of ownership, since we have known no other condition; and in the modern books and decisions the subject is generally disposed of with the curt statement as if it were a truism. It is believed that to such as are not familiar with the history of that doctrine a review of the struggle through centuries, by which it was finally established on its present firm foundation, would not be devoid of interest.
Statute Of Uses And The Modern Deed, John R. Rood
Statute Of Uses And The Modern Deed, John R. Rood
Articles
To what extent does the modem conveyance of estates in land in the United States by deed derive its validity from the English Statute of Uses, 27 Hen. 8, c. IO? No doubt the student, and especially the teacher, is inclined to magnify the importance of mere matters of history, because it is so much easier to understand or explain many of the terms and doctrines of real property law by approaching them historically, and, indeed, many of them cannot otherwise be understood at all. And yet we all have this constant, serious, and often difficult task, of separating matter …
Limits To State Control Of Private Business, Thomas M. Cooley
Limits To State Control Of Private Business, Thomas M. Cooley
Articles
The present purpose is to inquire whether, in the matter of the regulation of property rights and of business, legislation has not of late been occupying doubtful, possibly unconstitutional grounds. The discussion in the main must be limited to fundamental.-principles, aided by such light as legal and constitutional history may throw upon them, since the express provisions of the constitutions can give little assistance. They always contain the general guaranty of due process of law to life, liberty, and property, but in other particulars they for the most part leave protection to principles which have come from the common law. …