Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Property Law and Real Estate

PDF

Selected Works

Timothy M. Mulvaney

Selected Works

Lucas

Publication Year

Articles 1 - 2 of 2

Full-Text Articles in Law

Property-As-Society, Timothy M. Mulvaney Mar 2019

Property-As-Society, Timothy M. Mulvaney

Timothy M. Mulvaney

Modern regulatory takings disputes present a key battleground for competing conceptions of property. This Article offers the following account of the three leading theories: a libertarian view sees property as creating a sphere of individual freedom and control (property-as-liberty); a pecuniary view sees property as a tool of economic investment (property-as-investment); and a progressive view sees property as serving a wide range of evolving communal values that include, but are not limited to, those advanced under both the libertarian and pecuniary conceptions (property-as-society). Against this backdrop, the Article offers two contentions. First, on normative grounds, it asserts that the conception …


Foreground Principles, Timothy M. Mulvaney Jul 2015

Foreground Principles, Timothy M. Mulvaney

Timothy M. Mulvaney

The U.S. Supreme Court has declared for decades that, for Takings Clause purposes, property interests are not created by the Constitution but rather are determined by “existing rules or understandings that stem from an independent source such as state law.” However, the Court has exhibited a strong normative preference for a certain type of independent source — “background principles” of the common law — over others, namely state statutory and administrative law. This Article calls this preference into question. The Article develops a model to demonstrate the four basic categories, or quadrants, of takings decisions that extensive reliance on the …