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Full-Text Articles in Law
Ownership Concentration: Lessons From Natural Resources, Vanessa Casado Pérez
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 …
Compulsory Terms In Property, Timothy M. Mulvaney
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 …
American Courts' Image Of A Tenant, Nadav Shoked
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 …
Property Law And Inequality: Lessons From Racially Restrictive Covenants, Carol M. Rose
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
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 …
Eviction Court Displacement Rates, Nicole Summers
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 …
Climate Change Adaptation As A Problem Of Inequality And Possible Legal Reforms, David A. Dana
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 …
How Judicial Accounting Law Fails Occupying Cotenants, Phil Rich
How Judicial Accounting Law Fails Occupying Cotenants, Phil Rich
Northwestern Journal of Law & Social Policy
Few law students remember judicial accounting law from their property law course, and it’s hard to blame them. This little-discussed body of law is formulaic and rarely addressed by appellate courts. Judicial accounting law, however, should not be ignored. The law, which allocates equity to cotenants (or, more colloquially, co-owners) of residential property upon partition of that property, guides homeowners’ behavior and shifts wealth between them. This Note argues that state legislatures should reform judicial accounting law to better protect those cotenants living in their homes from partitions brought by cotenants living elsewhere.
The problem with judicial accounting law lies …
Possessing Intangibles, João Marinotti
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 …
Balancing The Carrot And The Stick: Achieving Social Goals Through Real Property Tax Programs, Ryan F. Bender
Balancing The Carrot And The Stick: Achieving Social Goals Through Real Property Tax Programs, Ryan F. Bender
Northwestern Journal of Law & Social Policy
The sharp and growing wealth divide in the United States has elicited significant media and public attention over the past decade, with loud calls for achieving social goals through tax system change. While wealth preservation loopholes in the Internal Revenue Code can contribute to wealth inequalities, tax policies that incentivize socially responsible, tax efficient investment offer an attractive tool for estate planning professionals while also promoting social impact programs. Additionally, while direct government investments into low-income community development, land preservation, and food security are important drivers of change, tax policies that push private capital into these causes are equally important …
Easier Easements: A New Path For Conservation Easement Deduction Valuation, Nicholas Carson
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
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 …
A Comparison Of Compensation For Nationalization Of Alien Property With Standards Of Compensation Under United States Domestic Law, Haliburton Fales
A Comparison Of Compensation For Nationalization Of Alien Property With Standards Of Compensation Under United States Domestic Law, Haliburton Fales
Northwestern Journal of International Law & Business
This Article will attempt to show that, despite much scholarly disparagement of the traditional "prompt, adequate and effective" standard of compensation for expropriation, when put to the test of deciding actual cases through arbitration, international law produces results not dissimilar from what might be expected under the standard. The Article compares the law of damages in international arbitration with United States domestic law and points out their similarities.