Law Commons^™

Compulsory Terms In Property, Timothy M. Mulvaney

Northwestern University Law Review

The state’s imposition of compulsory terms in property relations—such as habitability warranties binding landlords and tenants and minimum wages binding employers and employees—has long been conceived by analysts generally situated on the political right as an affront to individual freedom and inevitably harmful to the terms’ intended beneficiaries. This critique, though, seems to have special purchase in public discourse today not only within its traditional circle of supporters on the right but, at least in some instances, for a sizable number on the left as well. The bipartisan acceptance of this critique is serving as a substantial roadblock to a …

Property Law And Inequality: Lessons From Racially Restrictive Covenants, Carol M. Rose

Northwestern University Law Review

A long-standing justification for the institution of property is that it encourages effort and planning, enabling not only individual wealth creation but, indirectly, wealth creation for an entire society. Equal opportunity is a precondition for this happy outcome, but some have argued that past inequalities of opportunity have distorted wealth distribution in contemporary America. This article explores the possible role of property law in such a distortion, using the historical example of racially restrictive covenants in the first half of the twentieth century. I will argue that the increasing professionalization and standardization of real estate practices in that era included …

Streaming Property, Lee Anne Fennell

Northwestern University Law Review

People acquire property rights in objects and real estate in order to capture the stream of services that these assets can provide over time. The thing or parcel itself is merely a delivery mechanism, a way of packaging and protecting rights to that value stream. And, significantly, these assets cannot stream services to anyone without a set of facilitating conditions and complementary goods, such as public infrastructure, that do not lie within the asset owner’s individual control. This Essay argues that we can gain fresh traction on inequality by recasting property as service streams rather than as owned things. Doing …

American Courts' Image Of A Tenant, Nadav Shoked

Northwestern University Law Review

What is the core of current American residential landlord–tenant law, and how was that core formed? This Essay argues that in the past few decades courts have settled on a two-pronged landlord–tenant law regime. The law provides tenants with assurances respecting the quality of the units they rent. It does not, conversely, provide them with any assurances respecting the price of the rental units—and, therefore, respecting their ability to remain in those units.

The first component of the regime was established through the well-known judicial creation and endorsement of the warranty of habitability. The second component’s entrenchment is often attributed …

Eviction Court Displacement Rates, Nicole Summers

Northwestern University Law Review

This Essay introduces the concept of eviction court displacement rates, defined as the percentage of eviction filings that result in tenant displacement. The Essay argues that a jurisdiction’s eviction court displacement rate provides crucial insight into the role of its legal system in driving substantive eviction outcomes. The Essay then compiles existing data on court displacement rates and compares those rates across jurisdictions. This comparison reveals massive variation in court displacement rates nationwide. In some jurisdictions, a tenant’s likelihood of displacement upon receiving an eviction filing is approximately one in twenty. In other jurisdictions, it is higher than one in …

Ownership Concentration: Lessons From Natural Resources, Vanessa Casado Pérez

Northwestern University Law Review

Concentration of ownership over land or other resources is both a sign and a cause of inequality. Concentration of ownership makes access to such resources difficult for those less powerful, and it can have negative effects on local communities that benefit from a more distributed ownership pattern. Such concentration goes against the antimonopoly principles behind the homesteading land policies and the legal regimes that regulate many natural resources. This Essay suggests that where concentration is a concern, one might draw lessons for reform by looking to the field of natural resources law, which employs a range of deconcentration mechanisms affecting …

Climate Change Adaptation As A Problem Of Inequality And Possible Legal Reforms, David A. Dana

Northwestern University Law Review

Climate change will necessitate adaptation in all parts of the United States, but some individuals and localities will be better able to adapt than others. Wealth inequalities among individuals and localities already are translating—and will continue to translate—into inequalities between the rich and poor in their capacity to adapt. Current federal disaster aid programs and policies exacerbate these inequalities by favoring the wealthy, and future government resource management decisions and investments also may broaden the gap between rich and poor in terms of the economic and other costs they will bear from climate change. Some have suggested broadening Takings Clause …

Possessing Intangibles, João Marinotti

Northwestern University Law Review

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 …

Insuring Takings Claims, Christopher Serkin

Northwestern University Law Review

Local governments typically insure themselves against all kinds of losses, from property damage to legal liability. For small- and medium-sized governments, this usually means purchasing insurance from private insurers or participating in municipal risk pools. Insurance for regulatory takings claims, however, is generally unavailable. This previously unnoticed gap in municipal insurance coverage could lead risk averse local governments to underregulate and underenforce existing regulations where property owners threaten to bring takings claims. This seemingly technical observation turns out to have profound implications for theoretical accounts of the Takings Clause that focus on government regulatory incentives. This Article explores the impact …

Toxic Confinement: Can The Eighth Amendment Protect Prisoners From Human-Made Environmental Health Hazards?, Brenna Helppie-Schmieder

Northwestern University Law Review

What would you do if you realized a nearby factory or energy operation was making everyone in your town sick? You might try to rally your neighbors in protest, take legal action, or cut your losses and move away. But what if your options were more limited? What if you were forced to stay? This is the situation for prisoners across the country who live in prisons located near dangerous energy industry operations.

The increased reliance on incarceration in recent times has resulted in prisons being built on undesirable land, often the same land occupied by the energy industry. This …

Development And Distrust: A Critique Of The Orthodox Path To Economic Prosperity, W. Tyler Perry

Northwestern University Law Review

The dominant strain of law and development theory holds that strong property rights are a necessary condition for economic growth. Nonetheless, China has experienced thirty years of frenetic growth absent strong property rights. This Note explores this phenomenon through an analysis of a unique corporate form that has come to underlie most of the publicly traded Chinese Internet sector—the Variable Interest Entity (VIE). The VIE is, at its core, a series of contracts designed to mimic “true” ownership. As such, the VIE problematizes law and development theory in two primary ways. First, the contract-based ownership system does not provide the …

Two Hundred Years Of Spite, Nadav Shoked

Northwestern University Law Review

Spite’s role in property law is garnering much academic attention. Yet spite remains strikingly misunderstood. Commentators partaking in the reinvigorated debate over property rights’ nature often point at the law’s prohibition on spiteful uses of property by owners as indicating that property law is sensitive to individuals’ goals and attitudes when distributing powers. This assertion draws on a long line of judicial, legislative, and scholarly pronouncements to the effect that the prohibition on spite is an intent-based, subjective test banning acts whose motivation is malicious. This Article illustrates that this perception is deeply flawed—descriptively and normatively. Exploring the forgotten history …

The Politics Of The Takings Clauses, Mila Versteeg

Northwestern University Law Review

A long-standing consensus exists that the arbitrary or excessive expropriation of private property by a country hurts its economic growth. Although constitutions can play an important role in protecting private property, remarkably little is known about how they actually restrict the power of eminent domain and whether such restrictions are associated with reduced de facto expropriation risks. This Essay fills that gap by presenting original data on the procedural and substantive protections in constitutional takings clauses from 1946 to 2013. Its main finding is that no observable relationship exists between de jure constitutional restrictions on the power of eminent domain …

Easier Easements: A New Path For Conservation Easement Deduction Valuation, Nicholas Carson

Northwestern University Law Review

Conservation easements, a valuable tool in the conservationist’s toolbox, have grown increasingly popular since the 1980s, when Congress introduced changes to the federal tax code making easement donations more financially attractive. And with deductions reaching hundreds of thousands, or even millions, of dollars, conservation easement deductions are big business. However, expanded incentives and loosened regulations invite abuse, especially when the tax implications are large and donated easements are hard to value. Valuation of real estate remains an inexact science, dependent on inconsistent appraisal methods and subjectivity. Conservation easements can be even more difficult to value than other easements because, by …

Contested Shore: Property Rights In Reclaimed Land And The Battle For Streeterville, Joseph D. Kearney, Thomas W. Merrill

Northwestern University Law Review

Land reclaimed from navigable waters is a resource uniquely susceptible to conflict. The multiple reasons for this include traditional hostility to interference with navigable waterways and the weakness of rights in submerged land. In Illinois, title to land reclaimed from Lake Michigan was further clouded by a shift in judicial understanding in the late nineteenth century about who owned the submerged land, starting with an assumption of private ownership but eventually embracing state ownership. The potential for such legal uncertainty to produce conflict is vividly illustrated by the history of the area of Chicago known as Streeterville, the area of …