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Articles 1 - 30 of 98
Full-Text Articles in Law
How To Limit The Downstream Costs Of Racially Restrictive Covenants, Randall K. Johnson
How To Limit The Downstream Costs Of Racially Restrictive Covenants, Randall K. Johnson
Faculty Works
This essay, which is part of the University of Kansas Law Review Symposium on the seventy-fifth (75th) anniversary of Shelley v. Kraemer, is the first to explain how a current successor in interest to a racially restrictive covenant may limit more of their own downstream costs through the use of self-help options. By definition, a downstream cost is any expense that arises after the formation, and in the course of performance, of a valid common law contract. Examples of downstream costs include the time, money and energy that property owners may expend in removing racially restrictive covenants.
The essay does …
The Consumer Bundle, Shelly Kreiczer-Levy
The Consumer Bundle, Shelly Kreiczer-Levy
Washington Law Review
Can property law have a consumer protection purpose? One of the most important consumer law concerns today is the limited control consumers have over the digital assets and software-embedded products they purchase. Current proposals for reform focus on classifying the transaction as either license or sale and rely mostly on contract law and consumer protection regulation with a few calls for restoring ownership rights. This Article argues that property law can protect consumers by establishing a minimum bundle of rights for consumers: the “consumer’s bundle.” Working with property theory and an analysis of property values, this Article explains the importance …
Law And Literature In Pennsylvania: A Changing Landscape, Juliette Gaggini
Law And Literature In Pennsylvania: A Changing Landscape, Juliette Gaggini
Honors Theses
This thesis examines themes of American national identity perpetuated in Pennsylvania surrounding private property through historical, literary and legal analysis. Ideals of private property and land ownership are broken into three transitions throughout Pennsylvania history: the American frontier and initial land claiming by settlers, mass-deforestation and the introduction of widespread agriculture, and finally industrialization and the introduction of mining and fracking. Each of these transitions highlights the physical changes to the region and how they were influenced by American ideals of private property, productivity, and profitability.
Throughout this thesis, I analyze both literary and legal texts to examine societal beliefs …
The Afterlife Of Confederate Monuments, Jess Phelps, Jessica N. Owley
The Afterlife Of Confederate Monuments, Jess Phelps, Jessica N. Owley
Indiana Law Journal
As communities increasingly remove Confederate monuments from public spaces, they must decide what to do with these troubled statues. Given the recent wave of monument removal, we consider how property law and other restrictions impact community decisions on the disposition of monuments removed from public spaces on two levels—by location and future owner. In considering the fate of removed monuments, we profile potential destinations including museums, battlefields, cemeteries, and even storage. Alongside these examples, we discuss how laws constrain (or fail to constrain) the options for new owners and the restrictions on where monuments can be relocated. Even where laws …
The Color(Blind) Conundrum In Colorado Property Law, Tom I. Romero Ii
The Color(Blind) Conundrum In Colorado Property Law, Tom I. Romero Ii
University of Colorado Law Review
No abstract provided.
Data Types, Data Doubts & Data Trusts, João Marinotti
Data Types, Data Doubts & Data Trusts, João Marinotti
Articles by Maurer Faculty
Data is not monolithic. Nonetheless, the word is frequently used indiscriminately—in reference to a number of distinct concepts. It may refer to information writ large, or specifically to personally identifiable information, discrete digital files, trade secrets, and even to sets of AI-generated content. Yet each of these types of “data” requires different governance regimes in commerce, in life, and in law. Despite this diversity, the singular concept of data trusts is promulgated as a solution to our collective data governance problems. Data trusts—meant to cover all of these types of data—are said to promote personal privacy, increase corporate transparency, facilitate …
The Law Of Employee Data: Privacy, Property, Governance, Matthew T. Bodie
The Law Of Employee Data: Privacy, Property, Governance, Matthew T. Bodie
Indiana Law Journal
The availability of data related to the employment relationship has ballooned into an unruly mass of performance metrics, personal characteristics, biometric recordings, and creative output. The law governing this collection of information has been awkwardly split between privacy regulations and intellectual property rights, with employees generally losing on both ends. This Article rejects a binary approach that either carves out private spaces ineffectually or renders data into isolated pieces of ownership. Instead, the law should implement a hybrid system that provides workers with continuing input and control without blocking efforts at joint production. In addition, employers should have fiduciary responsibilities …
The Legal Relations Of ‘Private’ Forests: Making And Unmaking Private Forest Lands On Vancouver Island, Estair Van Wagner
The Legal Relations Of ‘Private’ Forests: Making And Unmaking Private Forest Lands On Vancouver Island, Estair Van Wagner
All Papers
While the vast majority of forestlands in Canada are considered ‘Crown land’, there are key areas of private forestland. On private land the incidents of fee simple ownership mean the owner emerges as land use decision maker – the “agenda setter” for the land. Yet a richer set of legal relations exists in these forests.
Indigenous legal orders derived from an enduring relationship with the land and place also govern forestlands. Using the case of the Esquimalt and Nanaimo Railway lands in British Columbia, this article explores the intersection between historical and contemporary human-forest relations upheld by Anglo-Canadian law and …
Do We Own What We Post?: The Fundamental Property Right To Destroy Your Presence On The Internet, Olivia Shangrow
Do We Own What We Post?: The Fundamental Property Right To Destroy Your Presence On The Internet, Olivia Shangrow
Seattle University Law Review
This Note will explore the well-established right to destroy your own property and how such a fundamental right can and should be applied to our online property to develop more protective data privacy legislation. Part I highlights the longstanding pillar of property law establishing a right to destroy one’s property, and how that can and should be applied to your digital identity. Part II will discuss the ambiguity of personal data ownership online and the ill effects resulting from the lack of control of our personal information on the Internet. Part III examines the current state of data privacy legislation …
Escaping Circularity: The Fourth Amendment And Property Law, João Marinotti
Escaping Circularity: The Fourth Amendment And Property Law, João Marinotti
Articles by Maurer Faculty
The Supreme Court’s “reasonable expectation of privacy” test under the Fourth Amendment has often been criticized as circular, and hence subjective and unpredictable. The Court is presumed to base its decisions on society’s expectations of privacy, while society’s expectations of privacy are themselves presumed to be based on the Court’s judgements. As a solution to this problem, property law has been repeatedly propounded as an allegedly independent, autonomous area of law from which the Supreme Court can glean reasonable expectations of privacy without falling back into tautological reasoning.
Such an approach presupposes that property law is not itself circular. If …
Possessing Intangibles, João Marinotti
Possessing Intangibles, João Marinotti
Articles by Maurer Faculty
The concept of possession is currently considered inapplicable to intangible assets, whether data, cryptocurrency, or NFTs. Under this view, intangible assets categorically fall outside the purview of property law’s foundational doctrines. Such sweeping conclusions stem from a misunderstanding of the role of possession in property law. This Article refutes the idea that possession constitutes—or even requires—physical control by distinguishing possession from another foundational concept, that of thinghood. It highlights possession’s unique purpose within the property process: conveying the status of in rem claims. In property law, the concept of possession conveys to third parties the allocation of property rights and …
Frederick Douglass And The Hidden Power Of Recording Deeds, Randall K. Johnson
Frederick Douglass And The Hidden Power Of Recording Deeds, Randall K. Johnson
Faculty Works
This Essay answers a single question: What led Frederick Douglass to accept an appointment as the D.C. Recorder of Deeds, especially at the height of his public service career? A possible answer, which is informed by the historical record and more contemporary accounts, is that Douglass accepted such an appointment for three reasons. The first reason is that the D.C. Recorder has been long recognized as an exemplar of fairness, perhaps due to its ministerial obligations, even when there could be no such expectation with respect to how Black folks are treated. The second reason is this office provided Douglass …
A Property Law Reader: Cases, Questions, And Commentary, 5th Ed., Preface And Table Of Contents, Douglas C. Harris, Jeremy De Beer, Tenille E. Brown, Patricia L. Farnese
A Property Law Reader: Cases, Questions, And Commentary, 5th Ed., Preface And Table Of Contents, Douglas C. Harris, Jeremy De Beer, Tenille E. Brown, Patricia L. Farnese
All Faculty Publications
Nobody has been more influential over the past generation in the teaching of property law in Canada than Bruce Ziff. His Principles of Property Law is the foundational textbook on the subject. A Property Law Reader: Cases, Questions, and Commentary, which he first published as a sole author in 2004, has become, over three subsequent editions, the most widely used teaching material for property law in the country. Bruce retired from teaching property law in 2019. His retirement left major holes not only at the University of Alberta, where he taught for decades, but also throughout Canada in terms of …
Waste And The Governance Of Private And Public Property, Tara K. Righetti, Joseph A. Schremmer
Waste And The Governance Of Private And Public Property, Tara K. Righetti, Joseph A. Schremmer
University of Colorado Law Review
Common law waste doctrine is often overlooked as antiquated and irrelevant. At best, waste doctrine is occasionally examined as a lens through which to evaluate evolutions in modern property theory. We argue here that waste doctrine is more than just a historical artifact. Rather, the principle embedded in waste doctrine underpins a great deal of property law generally, both common law and statutory, as well as the law governing oil and gas, water, and public trust resources. Seen for what it is, waste doctrine provides a fresh perspective on property, natural resources, and environmental law.
In this Article, we excavate …
Conservation Easements As A Tool For Nature Protection, William Snape
Conservation Easements As A Tool For Nature Protection, William Snape
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Notes From The Periphery: Finding More Than (Non)Ownership In Property Law?, Estair Van Wagner
Notes From The Periphery: Finding More Than (Non)Ownership In Property Law?, Estair Van Wagner
Articles & Book Chapters
Property law structures the way we make decisions about how we live together and with the world around us. In doing so, it shapes, but is also shaped by, our relationships with the places we inhabit and encounter. Traditionally, non-owners are defined by their distance and exclusion from the primary legal relationship and their lack of enforceable interests. Yet, land use conflicts continue to arise because people routinely assert relationships with land and resources that they are not formally recognised as owning but with which they are deeply entangled. This chapter touches briefly on three examples: the relations of Indigenous …
Standing To Sue In Land Use Litigation, Daniel R. Mandelker
Standing To Sue In Land Use Litigation, Daniel R. Mandelker
Scholarship@WashULaw
Third party standing to sue is essential in land use litigation. Questionable land use decisions will not be taken to court unless a third party can sue, but third party standing is limited. Standing law is fragmented, obstinate, excessively restrictive, and split between judicial and statutory requirements. Reform is necessary so that third parties can have access to court to protect public values. This Article explains why third party standing should be expanded, and it includes a conceptual model that can guide reform. It discusses conflicting third party standing rules in the Supreme Court, including the dominant restrictive rule that …
Tangibility As Technology, João Marinotti
Tangibility As Technology, João Marinotti
Articles by Maurer Faculty
Property law has traditionally relied on tangible boundaries to delineate legal thinghood and to inform the bounds of in rem rights and duties. Unfortunately, property doctrines have fossilized around tangibility, causing fragmentation in the legal treatment of digital assets. In the United States, for example, cryptocurrencies and non-fungible tokens (NFTs) may simultaneously be classified as commodities, securities, currencies, assets, or not property at all, depending on the jurisdiction, domain, or specific asset in question. This fragmented system of overlapping legal treatments increases the information cost of using digital assets, decreases efficiency, and ultimately hinders future innovation.
In this Article, I …
Blockchain Wills, Bridget J. Crawford
Blockchain Wills, Bridget J. Crawford
Indiana Law Journal
Blockchain technology has the potential to radically alter the way that people have
executed wills for centuries. This Article makes two principal claims—one
descriptive and the other normative. Descriptively, this Article suggests that
traditional wills formalities have been relaxed to the point that they no longer serve
the cautionary, protective, evidentiary, and channeling functions that scholars have
used to justify strict compliance with wills formalities. Widespread use of digital
technology in everyday communications has led to several notable cases in which
individuals have attempted to execute wills electronically. These wills have had a
mixed reception. Four states currently recognize electronic …
Revisiting The Presumptions Of Resulting Trust And Advancement In The Context Of Joint Tenanted Matrimonial Property: Two Innovations By The Singapore Court Of Appeal, Ian Hao Ran Mah
Research Collection Yong Pung How School Of Law
In Singapore, the Court of Appeal’s decision in Lau Siew Kim v Yeo Guan Chye Terence remains the most authoritative pronouncement on the operation of the presumptions of resulting trust and advancement, particularly in the context of joint tenanted matrimonial property. One notable, albeit often overlooked, aspect of the decision is the modification of the presumption of advancement to operate like a rule of survivorship. On one view, the effect of this is to retransform the equitable tenancy in common into an equitable joint tenancy. This article identifies the doctrinal difficulties with this approach but ultimately recommends that the same …
Companies As Commodities, Danielle D'Onfro
Companies As Commodities, Danielle D'Onfro
Scholarship@WashULaw
Like copper, corn, or crude oil, companies increasingly trade like commodities. Some investors — certain holders of debt, activist shareholders, and controlling shareholders, especially private equity funds — are focused solely on returns. In practice, this means that they care about the fate of the companies in which they invest no more than they care about the fate of any tonne of copper, bushel of corn, or oil barrel they happen to trade. These investors are so immune to reputational concerns that they will even prefer that the companies in which they invest fail if failure maximizes their return on …
Comparative Legal Perspectives On Cultural Land Trusts For Urban Spaces Of Culture, Community, And Art: A Tool For Counteracting Displacement, Sara Gwendolyn Ross
Comparative Legal Perspectives On Cultural Land Trusts For Urban Spaces Of Culture, Community, And Art: A Tool For Counteracting Displacement, Sara Gwendolyn Ross
Articles, Book Chapters, & Popular Press
As cities redevelop and previously less desirable or marginalized portions of the city space are “retaken” by a city, areas that have provided affordable performance, rehearsal, and live/work space for the arts and culture sector are becoming increasingly less available for these uses. Focusing predominantly on the Canadian Civil Law and Common Law context with passing reference to other jurisdictions such as the US, Scotland, and the UK, this article explores techniques for managing the increased pressure on and increasingly rapid displacement of spaces of arts, culture, and community cultural wealth that is taking place in cities. To this end, …
Fixing A Broken Common Law -- Has The Property Law Of Easements And Covenants Been Reformed By A Restatement, Ronald H. Rosenberg
Fixing A Broken Common Law -- Has The Property Law Of Easements And Covenants Been Reformed By A Restatement, Ronald H. Rosenberg
Ronald H. Rosenberg
No abstract provided.
Property Before Property: Romanizing The English Law Of Land, Thomas J. Mcsweeney
Property Before Property: Romanizing The English Law Of Land, Thomas J. Mcsweeney
Thomas J. McSweeney
No abstract provided.
The Governance Function Of Constitutional Property, Lynda L. Butler
The Governance Function Of Constitutional Property, Lynda L. Butler
Lynda L. Butler
Contemporary takings scholarship has devoted much attention to the problem of regulatory takings and has largely assumed that physical takings are resolved under a clear but simplistic per se rule. Under that rule, modern courts automatically find a physical taking whenever government action causes a permanent physical invasion of property, regardless of the context or the importance of the public interest. Applying this bright-line rule has proved to be difficult because it ignores the nuances of physical takings situations and the complexities of modern property arrangements. Should the physical takings concept apply to a rent control law that limits the …
The Co-Tenancy Act And The Modernization Of West Virginia’S Oil And Gas Law, Jack Budig
The Co-Tenancy Act And The Modernization Of West Virginia’S Oil And Gas Law, Jack Budig
West Virginia Law Review
No abstract provided.
The Idea Of Property: A Comparative Review Of Recent Empirical Research Methods, Paul T. Babie, Peter D. Burdon Mr, Francesca Da Rimini, Cherie M. Metcalf Prof., Geir Stenseth
The Idea Of Property: A Comparative Review Of Recent Empirical Research Methods, Paul T. Babie, Peter D. Burdon Mr, Francesca Da Rimini, Cherie M. Metcalf Prof., Geir Stenseth
Indiana Journal of Global Legal Studies
While theory offers important insights into property's normative content, it sometimes fails to tell us about what people understand property to mean and how they interact with those things said to be owned by them. This has significant implications for some of the challenges facing humanity, including climate change, unequal distributions of wealth and resources, biodiversity loss, and innovation. In response, a growing body of literature is emerging that looks at property through a different lens; rather than theorizing property in an abstract way or attempting to craft a normative account of and justification for the institution, this new scholarship …
Money That Costs Too Much: Regulating Financial Incentives, Kristen Underhill
Money That Costs Too Much: Regulating Financial Incentives, Kristen Underhill
Indiana Law Journal
Money may not corrupt. But should we worry if it corrodes? Legal scholars in a range of fields have expressed concern about “motivational crowding-out,” a process by which offering financial rewards for good behavior may undermine laudable social motivations, like professionalism or civic duty. Disquiet about the motivational impacts of incentives has now extended to health law, employment law, tax, torts, contracts, criminal law, property, and beyond. In some cases, the fear of crowding-out has inspired concrete opposition to innovative policies that marshal incentives to change individual behavior. But to date, our fears about crowding-out have been unfocused and amorphous; …
Liability For Unintentional Nuisances: How The Restatement Of Torts Almost Negligently Killed The Right To Exclude In Property Law, Jill M. Fraley
Liability For Unintentional Nuisances: How The Restatement Of Torts Almost Negligently Killed The Right To Exclude In Property Law, Jill M. Fraley
West Virginia Law Review
No abstract provided.
When Are You An Investor Versus A Dealer In Real Property? (Powerpoint), James B. Sowell, Stephen J. Giordano
When Are You An Investor Versus A Dealer In Real Property? (Powerpoint), James B. Sowell, Stephen J. Giordano
William & Mary Annual Tax Conference
No abstract provided.