Law Commons^™

Deals In The Heartland: Renewable Energy Projects, Local Resistance, And How Law Can Help, Christiana Ochoa

Articles by Maurer Faculty

Informed by original empirical research conducted in the Midwestern United States, this Article provides a rich and textured understanding of the rapidly emerging opposition to renewable energy projects. Beyond the Article’s urgent practical contributions, it also examines the importance of formalism and formality in contracts and complicates current understandings.

Rural communities in every windblown and sun-drenched region of the United States are enmeshed in legal, political, and social conflicts related to the country’s rapid transition to renewable energy. Organized local opposition has foreclosed millions of acres from renewable energy development, impeding national and state-level commitments to achieving renewable energy targets …

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 …

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

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 …

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 …

"Economic Property Rights" As "Nonsense Upon Stilts": A Comment On Hodgson, Daniel H. Cole

Articles by Maurer Faculty

Hodgson's (2015) critique of extra-legal 'property rights' - in this case, so-called 'economic property rights' - is right on target. This Comment contributes two further points to his critique. First, the notion of 'economic property rights' is based on what Gilbert Ryle (1949) referred to as a 'category mistake', conflating physical possession, which is a brute fact about the world, with the right or entitlement to possession, which is a social or institutional fact that cannot exist in the absence of some social contract, convention, covenant, or agreement. The very notion of a non-institutional 'right' is oxymoronic. Second, the fact …

Protecting Private Property With Constitutional Judicial Review: A Social Welfare Approach, Daniel H. Cole, Peter Z. Grossman

Articles by Maurer Faculty

This article uses a social welfare approach to determine if and when the institution of constitutional judicial review of property regulation and expropriation is efficient. A model is proposed in which property rights protection is a component of social costs. Constitutional judicial review is assumed to either add to or subtract on net from those costs, affecting social welfare generally. It will be shown that under realistic conditions, reflected in real instances, that constitutional judicial review might not enhance economic efficiency or overall social welfare. We show that the efficiency of constitutional judicial review is likely to vary within the …

Political Institutions, Judicial Review, And Private Property: A Comparative Institutional Analysis, Daniel H. Cole

Articles by Maurer Faculty

Since Madison, jurists of all ideological stripes have more or less casually presumed that constitutional judicial review is absolutely necessary to protect private property rights against over-regulation by political bodies. During the twentieth century, this presumption led directly to the institution of regulatory takings doctrine.

Recently, the economist William Fischel and the legal scholar Neil Komesar have raised important questions about, respectively, the utility and the sufficiency of constitutional judicial review for protecting private property. This article supports their arguments with theoretical and historical evidence that constitutional judicial review (1) is not strictly necessary for protecting private property rights, and …

Why Kelo Is Not Good News For Local Planners And Developers, Daniel H. Cole

Articles by Maurer Faculty

When the Supreme Court announced its 2005 decision in Kelo v. City of New London, few legal scholars were surprised at the outcome, which was premised on precedents extending back to the middle of the 19th century. Legal scholars were surprised, however, by the intense political reaction to Kelo (fueled substantially by Justice O'Connor's hyperbolic dissent), as property-rights advocates, legislators (at all levels of government), and media pundits assailed the ruling as a death knell for private property rights in America.

Kelo's combination of relative legal insignificance and high political salience makes it an interesting case study in cross-institutional dynamics, …

Virtual Property, Joshua Fairfield

Articles by Maurer Faculty

This article explores three new concepts in property law. First, the article defines an emerging property form - virtual property - that is not intellectual property, but that more efficiently governs rivalrous, persistent, and interconnected online resources. Second, the article demonstrates that the threat to high-value uses of internet resources is not the traditional tragedy of the commons that results in overuse. Rather, the naturally layered nature of the internet leads to overlapping rights of exclusion that cause underuse of internet resources: a tragedy of the anticommons. And finally, the article shows that the common law of property can act …

Evolution Of Rules In A Common Law System: Differential Litigation Of The Fee Tail And Other Perpetuities, Jeffrey E. Stake

Articles by Maurer Faculty

This paper presents a variation on the Rubin-Priest theory of the evolution of common law rules toward efficiency. It offers the fee tail and similar restraints on alienation as examples of how inefficient rules can lead to inefficient uses of land, which cause owners to seek the help of courts in freeing their lands from the inefficient constraints. In other words, there is a feedback loop that provides courts with opportunities to overturn inefficient common law rules. We should expect this common law drift toward efficiency to be stronger for property rules than for tort rules. Because efficient property rules …

The Property "Instinct", Jeffrey E. Stake

Articles by Maurer Faculty

No abstract provided.

The Uneasy Case For Adverse Possession, Jeffrey E. Stake

Articles by Maurer Faculty

No abstract provided.

Clearing The Air: Four Propositions About Property Rights And Environmental Protection, Daniel H. Cole

Articles by Maurer Faculty

No abstract provided.

Status And Incentive Aspects Of Judicial Decisions, Jeffrey E. Stake

Articles by Maurer Faculty

No abstract provided.

Global Warming And Property Interests: Preserving Coastal Wetlands As Sea Levels Rise, Robert L. Fischman

Articles by Maurer Faculty

No abstract provided.

Book Review. Married Women's Separate Property In England, 1660-1833 By Susan Staves, Michael Grossberg

Articles by Maurer Faculty

No abstract provided.

Darwin, Donations, And The Illusion Of Dead Hand Control, Jeffrey E. Stake

Articles by Maurer Faculty

No abstract provided.

Coliseum Square Association V. City Of New Orleans: Streets For Rent, Or Public Things And The Undermining Of The Doctrine Of Inalienability, David V. Snyder

Articles by Maurer Faculty

No abstract provided.

Toward An Economic Understanding Of Touch And Concern, Jeffrey E. Stake

Articles by Maurer Faculty

No abstract provided.

Court Actions Contesting The Nonjudicial Foreclosure Of Deeds Of Trust In Washington, Joseph L. Hoffmann

Articles by Maurer Faculty

No abstract provided.

Yes, Students, There Is A Marengo Cave -- And You Are There, A. Dan Tarlock

Articles by Maurer Faculty

No abstract provided.

Effect Of Waste Discharge Regulations On Real Property Development, Nicholas L. White

Articles by Maurer Faculty

No abstract provided.

Consistency With Adopted Land Use Plans As A Standard Of Judicial Review: The Case Against, A. Dan Tarlock

Articles by Maurer Faculty

No abstract provided.

Recent Real Property Decisions, Nicholas L. White

Articles by Maurer Faculty

No abstract provided.

Book Review. The Zoning Dilemma By D. R. Mandelker, A. Dan Tarlock

Articles by Maurer Faculty

No abstract provided.

Not In Accordance With A Comprehensive Plan: A Case Study Of Regional Shopping Center Location Conflicts In Lexington, Kentucky, A. Dan Tarlock

Articles by Maurer Faculty

No abstract provided.

Book Review. Land Finance Law By G. Lefcoe, A. Dan Tarlock

Articles by Maurer Faculty

No abstract provided.

Multiple Interests In Riparian Land, Subdivision Platting, And The Allocation Of Riparian Rights, Sheldon J. Plager, Frank E. Maloney

Articles by Maurer Faculty

No abstract provided.

Interference With The Public Right Of Navigation And The Riparian Owner's Claim Of Privilege, Sheldon J. Plager

Articles by Maurer Faculty

Entering a navigable body of water from the upland, and navigating from the point of access to distant points on the same body of water or points on connecting bodies of water, are, for practical purposes, a continua­tion of the same act. Yet they involve significantly different legal concepts and raise significantly different issues. The problems resulting from inter­ference with a riparian owner's right of access to and from his upland are examined in Part I of this article; those involving his right to travel once he has obtained access are the subject of Part II.