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Brigham-Kanner Property Rights Conference Journal, Volume 5, William & Mary Law School

Brigham-Kanner Property Rights Journal

Property as a Form of Governance

October 1-2, 2015

Panel 1: Property as a Form of Governance

Panel 3: Of Pipelines, Drilling, & the Use of Eminent Domain

Panel 4: Property Rights in the Digital Age

Dead Men Bring No Claims: How Takings Claims Can Provide Redress For Real Property Owning Victims Of Jim Crow Race Riots, Melissa Fussell

William & Mary Law Review

No abstract provided.

Encouraging Transportation-Oriented Development In The United States: A Case For Utilizing “Earned-As-Of-Location” Credits To Promote Strategic Economic Development, Matthew G. Jewitt

William & Mary Law Review

No abstract provided.

What We Have Here Is A Failure To Compensate: The Case For A Federal Damages Remedy In Koontz "Failed Exactions", Christopher M. Kieser

William & Mary Environmental Law and Policy Review

In Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), the Supreme Court held that an agency could not, consistent with the Takings Clause, condition a permit on a land exaction unless the exaction bears an “essential nexus” and “rough proportionality” to the harms the government seeks to mitigate. Then, in Koontz v. St. Johns Water Management District, 133 S. Ct. 2586 (2013), the Court extended Nollan and Dolan to exactions that were never completed because the property owner refused to acquiesce to the demand. Nevertheless, the Court held that …

Brigham-Kanner Property Rights Conference Journal, Volume 4, William & Mary Law School

Brigham-Kanner Property Rights Journal

Defining the Reach of Property

October 30-31, 2014

Panel 1: The Role of the Advocate in Defining Property

Panel 3: Balancing Private Property and Community Rights

Panel 4: Property Rights in Developing and Transitional Countries

Panel 3 Q&A: Discussion on Balancing Private Property and Community Rights

The Coming Wave Of Pretextually Profiteering Social Entrepreneurs: A Case Study At The Nexus Of Property And Civil Rights, David Groshoff

William & Mary Environmental Law and Policy Review

This Article builds on my prior publications employing case studies that serve as the prisms through which this Article applies a legal analysis to a newly trending problem in social entrepreneurship.

Specifically, this Article reviews the financial and property interests implicated when, in the milieu of an aging baby-boomer demographic likely to display decaying neurocognitive abilities, ostensibly socially beneficent limited liability companies (“LLCs”) pretextually pose as small businesses with a desire to serve people suffering from particular alleged mental disorders. In reality however, these brand-managed social entrepreneurs may represent conveniently detachable arms of integrated corporate enterprises that have hundreds of …

Lending Discrimination, The Foreclosure Crisis And The Perpetuation Of Racial And Ethnic Disparities In Homeownership In The U.S., Aleatra P. Williams

William & Mary Business Law Review

For decades the agencies charged with minding the ‘fair credit and lending’ shop turned a blind eye to those (lenders) who pilfered minority homeownership (and consequently minority wealth) by extending mortgage lending products that were, in many cases, unequal to similarly situated non-minority counterparts. Since the 1950s, when the federal government endorsed homeownership policies for minorities, and the 1960s, when antidiscriminatory D9lending laws were enacted, access to fair mortgage credit has been unattainable. Unbridled lending discrimination culminated in massive foreclosures for a disproportionate number of minority homeowners during the Housing and Foreclosure Crisis. Lenders disparately foreclosed upon upper class, middle …

An Unintended Consequence Of Arkansas Game & Fish Commission V. United States: Expanding Takings Liability To What The Government Doesn’T Do, Jason Kane

William & Mary Environmental Law and Policy Review

No abstract provided.

Land Use And Climate Change Bubbles: Resilience, Retreat, And Due Diligence, John R. Nolon

William & Mary Environmental Law and Policy Review

This Article examines events on the ground in several localities where climate change is lowering property values and analyzes how those changes in value can be reckoned with by regulators. It merges practices and principles of real estate transactions and finance with those of land use and environmental regulation.

Climate change is a planetary phenomenon whose environmental implications are far-reaching. Reports on climate change consequences increasingly focus on what is happening locally and presently, while speculation continues about long-term global consequences. In numerous communities, property values are declining because of repeated flooding, continued threats of storm surges, sustained high temperatures, …

Brigham-Kanner Property Rights Conference Journal, Volume 3, William & Mary Law School

Brigham-Kanner Property Rights Journal

The Essence of Property

October 17-18, 2013

Panel 1: The Impact of a Leading Property Scholar: Defining the Essence of Property

Panel 2: Promoting Government Forbearance

Roundtable Panel: Implications of the Court's Recent Takings Cases

Panel 4: Property Rights in Times of Transition

Conflicting Property Rights Between Conservation Easements And Oil And Gas Leases In Ohio: Why Current Law Could Benefit Conservation Efforts, Nicholas R. House

William & Mary Law Review

First, this Note will establish why conservation easements and oil and gas leases are likely to conflict. Second, this Note will present two scenarios under which conservation easements and oil and gas leases might conflict and then demonstrate how current law sorts out the conflicting rights. Third, it will advance several arguments for how conservation easements should be adapted, identifying specific provisions that should be altered in light of the Internal Revenue Code and Ohio’s current legal structure. By doing so, this Note will elucidate how the oil and gas boom in Ohio offers conservation organizations a unique opportunity to …

Farming The Slums: Using Eminent Domain And Urban Agriculture To Rebuild Baltimore's Blighted Neighborhoods, Keith Buzby

William & Mary Environmental Law and Policy Review

No abstract provided.

Brigham-Kanner Property Rights Conference Journal, Volume 2, William & Mary Law School

Brigham-Kanner Property Rights Journal

Interdisciplinary Perspectives on Property

October 11-12, 2012

Panel 1: The Impact of a Leading Property Scholar

Panel 3: Property Rights in Times of Economic Crisis

Panel 4: Property's Moral Dimension

Cities, Property, And Positive Externalities, Gideon Parchomovsky, Peter Siegelman

William & Mary Law Review

Cities are the locales of numerous interactions that generate externalities—both negative and positive. Although the common law provides a vast array of mechanisms for limiting negative externalities, there is a striking absence of provisions for stimulating the production of positive ones. As a consequence, activities whose social benefits are greater than their private costs are not undertaken, with a resulting efficiency loss.

In this Article, we demonstrate how cities can develop commercial districts that allow for the capture of positive externalities by following the example of suburban malls. In malls, anchor stores provide positive externalities—additional customers—to neighboring stores. Anchors capture …

Brigham-Kanner Property Rights Conference Journal, Volume 1, William & Mary Law School

Brigham-Kanner Property Rights Journal

Comparative Property Rights

October 14-15, 2011

Panel 1: Legal Protection of Property Rights: A Comparative Look

Panel 2: Reflections on Justice O'Connor's Important Property Rights Decisions

Panel 3: Property as an Instrument of Social Policy

Panel 4: Culture and Property

Panel 5: Property as an Economic Institution

Panel 6: Property Rights and the Environment

At The Crossroads: Balancing Public Education And Wildlife Protection, Christopher Jackson

William & Mary Environmental Law and Policy Review

No abstract provided.

"Property" In The Constitution: The View From The Third Amendment, Tom W. Bell

William & Mary Bill of Rights Journal

During World War II, after Japan attacked the Aleutian Islands off Alaska’s coast, the United States forcibly evacuated the islands’ natives and quartered soldiers in private homes. That hitherto unremarked violation of the Third Amendment gives us a fresh perspective on what the term “property” means in the United States Constitution. As a general legal matter, property includes not just real estate—land, fixtures attached thereto, and related rights—but also various kinds of personal property, ranging from tangibles, such as books, to intangibles, such as causes of action. That knowledge would, if we interpreted the Constitution as we do other legal …

The Role Of Causation When Determining The Proper Defendant In A Takings Lawsuit, Jan G. Laitos

William & Mary Bill of Rights Journal

No abstract provided.

This Business Of "Procuring Cause" In Virginia, Robert Luther Iii

William & Mary Business Law Review

This Article aims to provide a basic overview of Virginia law resulting from suits for sales commissions, with a special emphasis on “procuring cause” case law. By thinking ahead to the kinds of issues that have resulted in the recovery or failure of sales commissions by agents in past sales commission cases, real estate litigators will be in a better position to advise their clients. To that end, this Article further seeks to serve as a brief, yet stout, reference resource for real estate litigators and members of the Virginia bench confronted with facts directed towards this often nuanced area …

The Public Pore Space: Enabling Carbon Capture And Sequestration By Reconceptualizing Subsurface Property Rights, James Robert Zadick

William & Mary Environmental Law and Policy Review

No abstract provided.

Two Faces: Demystifying The Mortgage Electronic Registration System's Land Title Theory, Christopher L. Peterson

William & Mary Law Review

In the mid-1990s, mortgage bankers created Mortgage Electronic Registration Systems, Inc. (MERS) to escape the costs associated with recording mortgage transfers. To accomplish this, lenders permanently list MERS as the mortgagee of record instead of themselves to avoid the expense of recording any subsequent transfers. MERS’s claim that it is both an agent of the lender and the mortgagee, and the huge gaps left in the public record, give rise to a range of legal issues. This Article addresses whether security agreements naming MERS as a mortgagee meet traditional conveyance requirements and discusses the rights of counties to recover unpaid …

The Florida Beach Case And The Road To Judicial Takings, Michael C. Blumm, Elizabeth B. Dawson

William & Mary Environmental Law and Policy Review

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, the U.S. Supreme Court unanimously upheld a state beach restoration project against landowner claims of an unconstitutional taking of the property. This result was not nearly as surprising as the fact that the Court granted certiorari on a case that turned on an obscure aspect of Florida property law: whether landowners adjacent to a beach had the rights to future accretions of sand and to maintain contact with the water.

The Court’s curious interest in the case was piqued by the landowners’ recasting the case from the regulatory taking …

A Foxy Hedgehog: The Consistent Perceptions Of Carol Rose, Jedediah Purdy

William & Mary Bill of Rights Journal

Presented at the 2010 Brigham-Kanner Property Rights Conference.

Response, Carol M. Rose

William & Mary Bill of Rights Journal

Presented at the 2010 Brigham-Kanner Property Rights Conference.

The Inevitable Trend Toward Universally Recognizable Signals Of Property Claims: An Essay For Carol Rose, Robert C. Ellickson

William & Mary Bill of Rights Journal

Presented at the 2010 Brigham-Kanner Property Rights Conference.

The Backwards Gesture: Historical Narratives In Carol Rose's Property Scholarship, Daniel J. Sharfstein

William & Mary Bill of Rights Journal

Presented at the 2010 Brigham-Kanner Property Rights Conference.

Rose's Human Nature Of Property, Henry E. Smith

William & Mary Bill of Rights Journal

Presented at the 2010 Brigham-Kanner Property Rights Conference.

Government Property And Government Speech, Joseph Blocher

William & Mary Law Review

The relationship between property and speech is close, but complicated. Speakers use places and things to deliver their messages, and rely on property rights both to protect expressive acts and to serve as an independent means of expression. And yet courts and scholars have struggled to make sense of the property-speech connection. Is property merely a means of expression, or can it be expressive in and of itself? And what kind of “property” do speakers need to have—physical things, bundles of rights, or something else entirely?

In the context of government property and government speech, the ill-defined relationship between property …

Kelo, Conservation Easements, And Forever: Why Eminent Domain Is Not A Sufficient Check On Conservation Easements' Perpetual Duration, Derrick P. Fellows

William & Mary Environmental Law and Policy Review

No abstract provided.

Theoretical Tension And Doctrinal Discord: Analyzing Development Impact Fees As Takings, Michael B. Kent Jr.

William & Mary Law Review

One of the lingering questions about the law of regulatory takings concerns the proper scope and application of the Supreme Court’s exactions jurisprudence, known as the Nollan/Dolan test. A recurring issue in the case law is the extent to which the Nollan/Dolan framework applies to takings challenges brought against development impact fees. Judicial decisions on the issue split over two primary questions. First, there is a debate about whether Nollan/Dolan is limited to physical exactions or whether the test might also apply to monetary exactions as well. Second, there is a difference of opinion over whether Nollan/Dolan applies only to …