Law Commons^™

Copyright Law: Essential Cases And Materials, Alfred Yen, Joseph Liu

Joseph P. Liu

Improvement Doctrines, Deepa Varadarajan

Deepa Varadarajan

When one party makes significant but unauthorized improvements to another's land, chattels or informational assets, should the "improving" nature of the act alter the liability or remedy calculus? Traditional property law has long had to resolve conflicts that arise when one person improves another's land or chattels without permission -- for example, if A cuts down B's trees and fashions a chair, or A erects a building on B's land. Ordinarily, A would be liable and subject to an injunction because B has a strict right to exclude that is protected by a property rule. But various doctrines in traditional …

Property Rules And Liability Rules: The Cathedral In Another Light, James Krier, Stewart Schwab

Stewart J Schwab

Ronald Coase's essay on "The Problem of Social Cost" introduced the world to transaction costs, and the introduction laid the foundation for an ongoing cottage industry in law and economics. And of all the law-and-economics scholarship built on Coase's insights, perhaps the most widely known and influential contribution has been Calabresi and Melamed's discussion of what they called "property rules" and "liability rules."' Those rules and the methodology behind them are our subjects here. We have a number of objectives, the most basic of which is to provide a much needed primer for those students, scholars, and lawyers who are …

The Cathedral' At Twenty-Five: Citations And Impressions, James Krier, Stewart Schwab

Stewart J Schwab

It was twenty-five years ago that Guido Calabresi and Douglas Melamed published their article on property rules, liability rules, and inalienability' Calabresi, then a law professor, later a dean, is now a federal judge. Melamed, formerly a student of Calabresi's, is now a seasoned Washington attorney. Their article-which, thanks to its subtitle, we shall call The Cathedral-has had a remarkable influence on our own thinking, as we tried to show in a recent paper2 This is not the place to rehash what we said then, but a summary might be in order. First, we demonstrated that the conventional wisdom about …

A Layperson's Guide To Fair Housing Law (2014), F. Caruso, Michael Seng, Alison Bethel

F. Willis Caruso

Housing discrimination can take many forms. Laws have been passed at the federal, state, and local levels to prohibit housing discrimination, and attorneys and many fair housing groups are working to eradicate the problem. But the solution to the fair housing problem will not come solely through the work of attorneys and fair housing agencies and organizations; it will also have to come from an educated public that is unwilling to tolerate the cost of housing discrimination. Housing discrimination affects every individual in the United States. Realtors and brokers, bankers and mortgage lenders, insurance companies and developers, real estate buyers …

Ineffective In Any Form: How Confirmation Bias And Distractions Undermine Improved Home-Loan Disclosures, 122 Yale L.J. Online 377 (2013), Debra Stark, Jessica Choplin, Mark Leboeuf

Debra Pogrund Stark

No abstract provided.

Teacher's Manual For Property Law: Cases, Materials, And Problems, Thomas Shaffer

Thomas L. Shaffer

No abstract provided.

A Second Chance For Innovation - Foreign Inspiration For The Revised Uniform Residential Landlord And Tenant Act, Melissa Lonegrass

Melissa T. Lonegrass

No abstract provided.

Acquiring Land Through Eminent Domain: Justifications, Limitations, And Alternatives, Daniel Kelly

Daniel B Kelly

The primary functional justifications for eminent domain involve bargaining problems, including the holdout problem, the bilateral monopoly problem and other transaction costs, as well as the existence of externalities. The holdout problem is particularly noteworthy, and this chapter analyzes three types of holdouts, depending on whether the failure in bargaining is the result of strategic behavior among owners, the presence of a large number of owners or a single owner who is unwilling to sell because of a highly idiosyncratic valuation. Although eminent domain solves any potential bargaining problems by transferring land directly from existing owners to the government, eminent …

Epstein's Property, Emily Sherwin

Emily L Sherwin

In an era of skepticism about common law traditions and sensitivity to claims of distributive injustice, Richard Epstein has been an unflinching defender of private property rights. He has insisted that property rights are intelligible, and reminded us of their importance to social and economic welfare. In this paper, I shall offer what I believe is a friendly interpretation of Epstein's writings on property, and then pose some internal questions about the approach he has outlined. I begin with a quick summary of his description of property rights in an ideal legal regime.

When Does Some Federal Interest Require A Different Result?: An Essay On The Use And Misuse Of Butner V. United States, Juliet Moringiello

Juliet M Moringiello

Thousands of judges and scholars have relied on the statement in the 1979 Supreme Court opinion in Butner v. United States that “property interests are created and defined by state law...unless some federal interest requires a different result.” Often, they cite to the statement as a policy constraint that elevates state property law over federal bankruptcy law. This Essay, written for the American Bankruptcy Institute – University of Illinois Symposium on Chapter 11 Reform, posits that the Butner rule is not as broadly applicable as commonly believed. To do so, the Essay surveys some notable uses and misuses of the …

Local Home Rule In The Time Of Globalization, Kenneth Stahl

Kenneth Stahl

Cities are increasingly taking the lead in tackling global issues like climate change, financial regulation, economic inequality, and others that the federal and state governments have failed to address. Recent media accounts have accordingly praised cities as the hope of our globally networked future. This optimistic appraisal of cities is, however, undermined by local governments’ cramped legal status. Under the doctrine of home rule, local governments can often only act in matters deemed “local” in nature, and cannot regulate “statewide” issues that may have impacts beyond local borders. As a result, the global issues that local governments are being praised …

Temporary Takings, More Or Less, Timothy M. Mulvaney

Timothy M. Mulvaney

Property As Legal Knowledge: Means And Ends, Annelise Riles

Annelise Riles

This article takes anthropologists’ renewed interest in property theory as an opportunity to consider legal theory-making as an ethnographic subject in its own right. My focus is on one particular construct – the instrument, or relation of means to ends, that animates both legal and anthropological theories about property. An analysis of the workings of this construct leads to the conclusion that rather than critique the ends of legal knowledge, the anthropology of property should devote itself to articulating its own means.

It Takes A Village: Municipal Condemnation Proceedings And Public/Private Partnerships For Mortgage Loan Modification, Value Preservation, And Local Economic Recovery, Robert Hockett

Robert C. Hockett

Respected real estate analysts forecast that the U.S. is now poised to experience a renewed round of home mortgage foreclosures over the coming six years. Up to eleven million underwater mortgages will be affected. Neither our families, our neighborhoods, nor our state and national economies can bear a resumption of crisis on this order of magnitude.

I argue that ongoing and self-worsening slump in the primary and secondary mortgage markets is rooted in a host of recursive collective action challenges structurally akin to those that brought on the real estate bubble and bust in the first place. Collective action problems …

Ownership And Obligations: The Human Flourishing Theory Of Property, Gregory Alexander

Gregory S Alexander

Private property ordinarily triggers notions of individual rights, not social obligations. The core image of property rights, in the minds of most people, is that the owner has a right to exclude others and owes no further obligation to them. That image is highly misleading. Property owners owe far more responsibilities to others, both owners and non-owners, than the conventional imagery of property rights suggests. Property rights are inherently relational, and because of this characteristic, owners necessarily owe obligations to others. But the responsibility, or obligation, dimension of private ownership has been sorely under-theorised. Inherent in the concept of ownership …

Property As A Fundamental Constitutional Right? The German Example, Gregory Alexander

Gregory S Alexander

No abstract provided.

Ten Years Of Takings, Gregory Alexander

Gregory S Alexander

No area of property law has been more controversial in the past decade than takings. No aspect of constitutional law more sharply poses the dilemma about the legitimate powers of the regulatory state than the just compensation question. No question concerning constitutional property is more intractable than what sorts of government regulatory actions constitute uncompensated "takings" of private property. Limitations of space, not to mention my own ambivalence about many of the issues, prevent me from developing a complete normative theory of the proper scope of the Takings Clause. My aim here is vastly more modest: to outline the basic …

Reply: The Complex Core Of Property, Gregory Alexander

Gregory S Alexander

No abstract provided.

The Dead Hand And The Law Of Trusts In The Nineteenth Century, Gregory Alexander

Gregory S Alexander

This article discusses a basic paradox at the core of liberal property law. Individual freedom to dispose of consolidated bundles of rights cannot simultaneously be allowed and fully maintained. If the donor of a property interest tries to restrict the donee's freedom to dispose of that interest, the legal system, in deciding whether to enforce or void that restriction, must resolve whose freedom it will protect, that of the donor or that of the donee. Although post-realist American property lawyers acknowledge this conflict, at least nominally, it did not emerge in legal consciousness in so starkly visible a form until …

Taking Regulatory Takings Personally: The Perils Of (Mis)Reasoning By Analogy, Michael Wolf

Michael A Wolf

This Article includes four parts: (1) a defense of the real property/personal property distinction for a post-deconstructionist legal world, (2) a review of difficulties common law courts have encountered when applying real property concepts to disputes over money and personalty, (3) an exploration of the "rhetorical mismatch" typified by Justice Sandra Day O'Connor's opinion in Eastern Enterprises, and (4) a respectful request for judges to resist the temptation to collapse categories and instead to maintain, or even erect, meaningful distinctions.

Pipes, Wires, And Bicycles: Rails-To-Trails, Utility Licenses, And The Shifting Scope Of Railroad Easements From The Nineteenth To The Twenty-First Centuries, Danaya Wright, Jeffrey Hester

Danaya C. Wright

This Article responds to a series of class action suits filed against railroads, telecommunication companies, and the federal government claiming that once railroads abandon their corridors, all property rights shift to adjacent landowners. This Article reviews the state law on this matter and offers a theory of how courts should handle these cases. After discussing the history of nineteenth-century railroad land acquisition practices, we analyze the scope of the easement limited for railroad purposes. We then discuss the role abandonment plays in affecting the rights of third party users of these corridors as well as successor trail owners. We conclude …

Charitable Deductions For Rail-Trail Conversions: Reconciling The Partial Interest Rule And The National Trails System Act, Scott Bowman, Danaya Wright

Danaya C. Wright

This Article examines an undeveloped legal topic at the intersection of tax law and real property law: charitable deductions from income tax liability for donations of railroad corridors that are to be converted into recreational trails. The very popular rails-to-trails program assists in the conversion of abandoned railroad corridors into hiking and biking trails. However, the legal questions surrounding the property rights of these corridors have been complex and highly litigated. In 1983, Congress amended the National Trails System Act to provide a mechanism for facilitating these conversions, a process called railbanking. In essence, a railroad transfers its real property …

Property Outlaws, Eduardo Peñalver, Sonia Katyal

Eduardo M. Peñalver

Most people do not hold those who intentionally flout property laws in particularly high regard. The overridingly negative view of the property lawbreaker as a wrong-doer comports with the nearly sacrosanct status of property rights within our characteristically individualist, capitalist, political culture. This dim view of property lawbreakers is also shared to a large degree by property theorists, many of whom regard property rights as a fixed constellation of allocative entitlements that collectively produce stability and order through ownership. In this Article, we seek to rehabilitate, at least to a degree, the maligned character of the intentional property lawbreaker, and …

Inclusionary Housing On A Global Basis, James Kelly

James J. Kelly Jr.

This is a book review of Inclusionary Housing in International Perspective: Affordable Housing, Social Inclusion, and Land Value Recapture (2010, Nico Calavita and Alan Mallach, eds.). The book offers a comparative look at land-use based approaches to the creation of affordable housing in a broad range of developed countries. A little less than a sixth of the book is dedicated to the U.S., with special attention given to the development on inclusionary programs in California and New Jersey. The editors then devote a chapter each to Canada, England, Ireland, France, Spain and Italy. The penultimate chapter looks at inclusionary practices …

Property On Trial: Canadian Cases In Context, James Muir, Eric Tucker, Bruce Ziff

Eric M. Tucker

Property on Trial is a collection of 14 studies of Canadian property law disputes — some well-known, some more obscure — that have helped to shape the contours of the principles and rules of property law over 150 years. These studies, written by some of Canada's leading legal historians, range in time from a discussion of a nineteenth-century dispute over the ownership of seal pelts in Newfoundland to modern questions of what constitutes private property in a digital age. They investigate the relationship between private and public interests in property; the limits of private property owners' rights in relation to …

Past Consideration Or Unconnected Consideration, Yihan Goh, Man Yip

Man YIP

It is trite law that a valid and enforceable contract must be supported by consideration. The recent Court of Appeal case of Rainforest Trading Ltd v State Bank of India Singapore [2012] 2 SLR 713 is a further addition to the local jurisprudence on consideration, specifically the issue of past consideration. This note considers the specific issue of past consideration and argues that its label should be discarded in favour of a more realistic one that correctly emphasises its underlying concerns.

Cities, Property, And Positive Externalities, Gideon Parchomovsky, Peter Siegelman

Peter Siegelman

Cities are the locales of numerous interactions that generate externalities—both negative and positive. Although the common law provides a vast array of mechanisms for limiting negative externalities, there is a striking absence of provisions for stimulating the production of positive ones. As a consequence, activities whose social benefits are greater than their private costs are not undertaken, with a resulting efficiency loss.

In this Article, we demonstrate how cities can develop commercial districts that allow for the capture of positive externalities by following the example of suburban malls. In malls, anchor stores provide positive externalities—additional customers—to neighboring stores. Anchors capture …

Rising Sea Levels: A Tidal Wave Of Legal Issues, Kenneth Kristl

Kenneth T Kristl

No abstract provided.

When Does Some Federal Interest Require A Different Result?: An Essay On The Use And Misuse Of Butner V. United States, Juliet Moringiello

Juliet M Moringiello

Thousands of judges and scholars have relied on the statement in the 1979 Supreme Court opinion in Butner v. United States that “property interests are created and defined by state law . . . unless some federal interest requires a different result.” Often, they cite to the statement as a policy constraint that elevates state property law over federal bankruptcy law. This Essay, written for the American Bankruptcy Institute – University of Illinois Symposium on Chapter 11 Reform, posits that the Butner rule is not as broadly applicable as commonly believed. To do so, the Essay surveys some notable uses …