Law Commons^™

Needful Rules And Regulations: Originalist Reflections On The Territorial Clause, Anthony M. Ciolli

Vanderbilt Law Review

There are few areas where the current state of the law is as inconsistent, incoherent, and intellectually bankrupt as the law of U.S. territories. The seminal cases in the field are the infamous Insular Cases, where the Supreme Court of the United States held that the “half-civilized,” “savage,” “ignorant and lawless” “alien races” that inhabited the United States’ overseas territories were not entitled to the same constitutional rights and protections afforded to Americans residing in the mainland United States—holdings that were based on the white man’s burden and similar then-prevalent theories of white supremacy.

Despite being firmly entrenched within the …

Give Or Take—Is The Droit De Suite A Taking Without Just Compensation?, Jeremy Cohen

Pepperdine Law Review

The Constitution mandates Congress to protect the arts and sciences directly by creating an exclusive right called copyright. However, visual artists such as painters, sculptors, and photographers in the United States still cannot participate in the significant profits from the secondary sales of their copyrighted works at public and private auctions. In over eighty countries worldwide, the droit de suite, also known as the Artist Resale Royalty (ARR), grants visual artists such royalties. Unfortunately, the United States currently lacks such a royalty, despite multiple unsuccessful attempts by Congress to pass federal legislation. Although California enacted its own version of the …

The Legal Crisis Within The Climate Crisis, Mark P. Nevitt

Faculty Articles

Climate change creates a difficult choice for property owners and governmental officials alike: Should they invest in costly climate adaptation measures or retreat from climate-exposed areas? Either decision is fraught with legal uncertainty, running headfirst into antiquated legal doctrines designed for a more stable world. Climate impacts to the coastline are forcing policymakers to consider four adaptation tools: (1) resisting climate impacts by building sea walls and armoring the shoreline; (2) accommodating those impacts by elevating existing structures; (3) managed retreat such as systematically and preemptively moving people out of harm’s way; and (4) reactively moving people to new locations …

Cultural Property: “Progressive Property In Action”, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

Cultural property law fulfills many of the normative and jurisprudential goals of progressive property theory. Cultural property limits the normal prerogatives of owners in order to give legal substance to the interests of the public or of specially protected non-owners. It recognizes that preservation of and access to heritage resources advance public values such as cultural enrichment and community identity. The proliferation of cultural property laws and their acceptance by courts has occurred despite a resurgent property fundamentalism embraced by the Supreme Court. Thus, this Article seeks to explicate the category of cultural property, its fulfillment of progressive theory, and …

Crypto In Real Estate Finance, R. Wilson Freyermuth, Christopher K. Odinet, Andrea Tosato

Faculty Scholarship

Blockchain and cryptocurrencies have ushered in a digital gold rush. But all that glitters is not gold. The latest fad is the use of non-fungible tokens (NFTs) to purchase and finance real estate. Typically, crypto real estate transactions begin with the transfer of title for a residential property into a dedicated business entity, such as a limited liability company. Thereafter, an NFT is ‘minted’ and used to represent the ownership interest in that entity. The real property is then marketed online specifying that, to acquire it, one simply purchases the relevant NFT via a blockchain transfer. Crucially, buyers are expected …

What Is The Optimal Basis For Imposing Government Liens?, Randall K. Johnson

Faculty Works

By presenting a detailed case study, which focuses on who gets subjected to government liens, this essay helps U.S. states to make more informed decisions. It seeks to do so by critically assessing Illinois’ historic approach to lien imposition and enforcement, in part, because this state had the most forced sales of real property in recent years. In addition, Illinois also generated the largest amount of related economic losses in the U.S. during that same time period. This state did so despite adhering to the old majority rule for turning over surplus value from such sales. That rule required creditors …

Blockchain Real Estate And Nfts, Juliet M. Moringiello, Christopher K. Odinet

Faculty Scholarship

Non-fungible tokens (popularly known as NFTs) and blockchains are frequently promoted as the solution to a multitude of property ownership problems. The promise of an immutable blockchain is often touted as a mechanism to resolve disputes over intangible rights, notably intellectual property rights, and even to facilitate quicker and easier real estate transactions.

In this Symposium Article, we question the use of distributed ledger technologies as a method of facilitating and verifying the transfer of physical assets. As our example of an existing transfer method, we use real property law, which is characterized by centuries-old common law rules regarding fractionalized …

Seeing Like A Chocolate City: Reimagining Detroit’S Future Through Its Past, Sheila R. Foster

Georgetown Law Faculty Publications and Other Works

This essay is part of an online symposium on Michelle Wilde Anderson's “The Fight to Save the Town.” In it, Anderson captures how the rise and fall of Detroit maps onto so many other important cultural, political, social, and economic moments of the twentieth century. As Anderson rightly notes, many of the ways in which the city’s history is commonly told represent a “white gaze on Detroit.” What this narrative often leaves out is the critical role of the Black middle and professional class in stabilizing or holding up the city during the period often associated with the city’s decline. …

The Mexican Civil Code Of 1928 And The Social Function Of Property In Mexico And Latin America, M.C. Mirow

Emory International Law Review

No abstract provided.

Crypto In Real Estate Finance, R. Wilson Freyermuth, Christopher K. Odinet, Andrea Tosato

Faculty Publications

Blockchain and cryptocurrencies have ushered in a digital gold rush. But all that glitters is not gold. The latest fad is the use of non-fungible tokens (NFTs) to purchase and finance real estate. Typically, crypto real estate transactions begin with the transfer of title for a residential property into a dedicated business entity, such as a limited liability company. Thereafter, an NFT is ‘minted’ and used to represent the ownership interest in that entity. The real property is then marketed online specifying that, to acquire it, one simply purchases the relevant NFT via a blockchain transfer. Crucially, buyers are expected …

The Wolf In Sheep's Clothing: How Historical And Blight Designations In The Absence Of Constitutional Safeguards Can Render Property Rights Illusory, Kyle B. Teal, Dane L. Stuhlsatz

St. Thomas Law Review

This article summarily analyzes those more subtle forms of property rights infringement, including historical designations and blight designations, and it critiques laws in place that purport to grant local government the authority to assert such designations. This article also provides a summary of the causes of action owners aggrieved by unjust designations could bring in response, and critiques the flaws in those elective safeguards, which are prevalent even in property rights friendly jurisdictions such as Florida. It then proposes high-level solutions to enact legislation to limit fee exposure for property owners who bring inverse condemnation actions and Bert J. Harris …

Warranted Exclusion: A Case For A Fourth Amendment Built On The Right To Exclude, Mailyn Fidler

SMU Law Review

Searches intrude; fundamentally, they infringe on a right to exclude. So that right should form the basis of Fourth Amendment protections. Current Fourth Amendment doctrine—the reasonable expectation of privacy test—struggles with conceptual clarity and predictability. The Supreme Court’s recent decision to overturn Roe v. Wade casts further doubt on the reception of other privacy-based approaches with this Court. But the replacement approach that several Justices on the Court favor, what I call the “maximalist” property approach, risks troublingly narrow results. This Article provides a new alternative: Fourth Amendment protection should be anchored in a flexible concept derived from property law—what …

Warranted Exclusion: A Case For A Fourth Amendment Built On The Right To Exclude, Mailyn Fidler

Law Faculty Scholarship

Searches intrude; fundamentally, they infringe on a right to exclude. So that right should form the basis of Fourth Amendment protections. Current Fourth Amendment doctrine-the reasonable expectation of privacy teststruggles with conceptual clarity and predictability. The Supreme Court's recent decision to overturn Roe v. Wade casts further doubt on the reception of other privacy-based approaches with this Court. But the replacement approach that several Justices on the Court favor, what I call the "maximalist" property approach, risks troublingly narrow results. This Article provides a new alternative: Fourth Amendment protection should be anchored in a flexible concept derived from property law-what …

Resulting And Constructive Trusts In The Contemporary Singaporean Family Context, Man Yip

Research Collection Yong Pung How School Of Law

The legal rules that emerge in a society are shaped by the conditions of that society. In the area of trusts law, this chapter argues that the English principles of the presumed resulting trust and the common intention constructive trust have been adapted to suit the Singaporean family context. At first sight, given that Singapore law has declined to follow the Stack v Dowden line of developments that have taken place in English law concerning beneficial ownership of family property, it may appear that Singapore trusts law is more conservative and that pre-Stack English law is better preserved on Singapore …

Infrastructure Sharing In Cities, Sheila Foster

Georgetown Law Faculty Publications and Other Works

In this Essay, I reflect on the different ways in which cities engaged in what I call “infrastructure sharing” during the COVID-19 pandemic. Cities around the world responded to the pandemic by repurposing their streets and sidewalks into outdoor seating, dining spaces, and car-free pedestrian corridors. At the same time, many cities and states also faced calls to “reclaim” underutilized public and private structures like empty houses and hotels and put them to a use responsive to the crisis. The Essay will highlight the difference between sharing property and assets that are part of the “public estate” and dedicated exclusively …

Federal Historic Preservation's "Place" In Property Theory, Sam W. Gieryn

Pace Environmental Law Review

Progressive Property Theory scholars often point to historic preservation as an example of how property, itself, imposes an obligatory use. A historic structure’s public benefit justifies restrictions in available uses. To date, however, Progressive Property Theory has considered historic preservation only as it is applied in state and local regimes, forgoing an analysis of the federal structure under the National Historic Preservation Act. This article establishes a synergy between the underlying principles of Progressive Property Theory and federal historic preservation and suggests that federal historic preservation’s identification and incentivization structures model a process that could move Progressive Property Theory toward …

Strata Plan Cancellations In Australasia: A Comparative Analysis Of Nine Jurisdictions, Seng Wei, Edward Ti

Research Collection Yong Pung How School Of Law

A growing number of Australasian jurisdictions now permit a supermajority of owners to terminate a co-owned building scheme allowing proprietors to redevelop, or more commonly, sell the underlying land. This planning tool aids municipal rejuvenation, prevents urban sprawl and provides new housing. In this paper, I examine the provisions pertaining to cancellation of unit plans under nine jurisdictions – New Zealand and all eight jurisdictions in Australia. This comparative analysis highlights several unique aspects of the Unit Title Act 2010 (NZ) such as the way its voting thresholds are calculated and the idiosyncratic application of the ‘just and equitable’ standard …

Comparative Lessons In Sectional Title Laws: Mitigating Urban Inequality In South Africa, Edward S. W. Ti

Research Collection Yong Pung How School Of Law

Urban inequality in South Africa is a formidable problem that is linked to the injustices of its historical apartheid past. This paper identifies sectional titles, a form of property ownership where proprietors wholly own their apartment unit while co-owning the land and common property, as critical to providing more affordable housing. Sectional title schemes mitigate urban inequality by giving a greater proportion of the country the opportunity to own legally secure, well-located dwellings while serving as a platform where communal living could take place. Two suggestions how sectional title legislation can further alleviate aspects of urban inequality are made (1) …

What Property Does, Christopher Serkin

Vanderbilt Law Review

For centuries, scholars have wrestled with seemingly intractable problems about the nature of property. This Article offers a different approach. Instead of asking what property is, it asks what property does. And it argues that property protects people’s reliance on resources by moderating the pace of change. Modern scholarly accounts emphasize voluntary transactions as the source and purpose of reliance in property. Such “transactional reliance” implies strong, stable, and enduring rights. This Article argues that property law also reflects a very different source of reliance on resources, one that rises and falls simply with the passage of time. This new …

Opportunity Zones, 1031 Exchanges, And Universal Housing Vouchers, Brandon Weiss

Articles in Law Reviews & Other Academic Journals

The Tax Cuts and Jobs Act of 2017 contained former President Trump's signature economic development initiative: the Opportunity Zone program. Allowing a deferral of capital gains tax for certain qualifying investments in low-income areas, the Opportunity Zone program aims to spur economic development by steering capital into economically distressed neighborhoods. The program is the latest iteration of an overly simplistic market-based approach to community development an approach that transcends political party-based on a flawed yet enduring notion that mere proximity of capital will solve deeply entrenched issues of poverty and racial inequality. In reality, the legacy of Opportunity Zones is …

The History Wars And Property Law: Conquest And Slavery As Foundational To The Field, K-Sue Park

Georgetown Law Faculty Publications and Other Works

This Article addresses the stakes of the ongoing fight over competing versions of U.S. history for our understanding of law, with a special focus on property law. Insofar as legal scholarship has examined U.S. law within the historical context in which it arose, it has largely overlooked the role that laws and legal institutions played in facilitating the production of the two preeminent market commodities in the colonial and early Republic periods: expropriated lands and enslaved people. Though conquest and enslavement were key to producing property for centuries, property-law scholars have constructed the field of property law to be largely …

What Property Does, Christopher Serkin

Vanderbilt Law School Faculty Publications

For centuries, scholars have wrestled with seemingly intractable problems about the nature of property. This Article offers a different approach. Instead of asking what property is, it asks what property does. And it argues that property protects people’s reliance on resources by moderating the pace of change. Modern scholarly accounts emphasize voluntary transactions as the source and purpose of reliance in property. Such “transactional reliance” implies strong, stable, and enduring rights. This Article argues that property law also reflects a very different source of reliance on resources, one that rises and falls simply with the passage of time. This new …

Reshaping Washington's Public Lands Trust Doctrine, Audrey Bell

Selected Articles on Washington State Constitution History

In this paper, I will discuss how Washington state’s trust duties related to federally-granted public lands management have and have not been reconciled with article XVI, section 1 of the Washington constitution. First, I will provide a foundation for the management of federally-granted public lands and the storied history of Congress's intent in providing land grants to the states. Next, I will examine the provisions of the Enabling Act of 1889 ("Enabling Act") and the Washington constitution that govern the management of those granted lands. Third, I will chart the historical treatment of Washington state trust duties related to the …

The In Rem/In Personam Distinction And Partitioning For Persistence, Shyamkrishna Balganesh, Leo Katz

Faculty Scholarship

In the second of his two famous articles, Hohfeld seeks to do for the in rem/in personam distinction what he did so persuasively in his first for the terminology of rights, claims, duties, privileges, powers, immunities, and disabilities, which was to identify their essence, and to thereby describe the “natural kind” (in more modern parlance) lurking beneath the thicket of confused juristic rhetoric. The thesis in this second article, however, is a simpler and in some way more beguiling one than in his first. He claims that what the distinction between in rem and in personam jural relations comes down …

Liberalism, Patriotism, And Cosmopolitanism In Local Citizenship In A Global Age, Eric R. Claeys

Texas A&M Journal of Property Law

In this review Essay, I survey the most valuable lessons from Local Citizenship in a Global Age. But I have some reservations about the book, and I want to mark those off as well. The book comes off as critical of views that seek to control immigration and to establish relatively demanding criteria for noncitizens to become citizens. In my view, two factors contribute to this impression, and the book would have been more satisfying if both had been addressed.

Equality And Closure: The Paradox Of Local Citizenship, Kenneth A. Stahl

Texas A&M Journal of Property Law

In Bourgeois Utopias, a cultural history of suburbia in America, Robert Fishman states the fundamental paradox about the suburbs: “[H]ow can a form based on the principle of exclusion include every-one?” The promise of the American suburb was that every middle-class family would be able to own a home with a yard, but this egalitarian ideal was illusory because what made the suburbs appealing was precisely what it excluded, namely everything having to do with the city—its congestion, political corruption, and most importantly, its racial diversity. And so, as suburbia was mass-produced and made avail-able with cheap low-interest loans …

Questions Of Citizenship And The Nature Of "The Public", Sarah Schindler

Texas A&M Journal of Property Law

This essay is taken from a talk given at a symposium discussing Professor Ken Stahl’s book, Local Citizenship in a Global Age.1 It is not a traditional book review, but rather a series of musings inspired by the ideas in the book.

Professor Stahl’s new book, Local Citizenship in a Global Age, addresses a number of important issues, many of which have been the focus of my prior work: the existence of boundaries, borders, and the spaces in between; who we include in those boundaries and who we exclude; public space, private space, and the lines between them; …

The Dream Of Property Professors, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

Michael Heller and James Salzman's new book, Mine! How the Hidden Rules of Ownership Control Our Lives, is a dream come true for property professors.

I suspect that many of us have moments when we think to ourselves, "wow, this stuff is really interesting," imagining that property law could somehow be of general interest. Too often that dream is killed when the eyes of non-lawyers, including family members, start to glaze over when they hear words like rule against perpetuities or trademark. Heller and Salzman have succeeded in making the stories property professors tell the stuff of a bestseller. They …

Municipal Optimization Of Short-Term Rental Regulations: The Reality Of Airbnb In South Texas Communities, Kenneth M. Culbreth Iii

St. Mary's Law Journal

Abstract forthcoming.

Reimagining Postmortem Conception, Kristine Knaplund

Georgia State University Law Review

Hundreds, likely thousands, of babies have been born years after a parent has died. Thousands more people have cryopreserved their sperm, ova, and embryos, or have requested that a loved one’s gametes be retrieved after death to produce still more such children. Twenty-three states have enacted statutes detailing how these postmortem conception children can inherit from their predeceased parents.

And yet, few of these children will be able to inherit. The statutes create a bewildering array of standards, with over a dozen definitions of consent, variations in signature and witnessing requirements, and hurdles imposed in one state but not another. …