Law Commons^™

Property And Local Knowledge, Malcolm Lavoie

Catholic University Law Review

Property rights play an important but largely under-appreciated role in channeling local knowledge into decisions about physical resources. Property devolves decision-making authority to a dispersed pool of owners, who are likely to be aware of local conditions relevant to their resources. As a result, property owners are often in a position to make better-informed decisions about the use of the resource than other parties. The homeowner who preemptively repairs an old roof, the retailer who offers a new product for sale, and the farmer who decides to switch crops are all decision-makers who are empowered through property rights to act …

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; …

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 …

Dead Men Tell No Tales: Arkansas’S Grave Failure To Honor Its Constituents’ Postmortem Quasi-Property Right, Mckenna Moore

Arkansas Law Review

It is doubtful that Hulon Rupert Austin woke up on the day of March 7, 1986 and expected it to be his last. March 7 was a typical day—a workday—that started with a simple drive to a job site with his co-worker. A day that began so unremarkably ended with his co-worker looking up from where he was working to see “Austin lying on the ground.”

Disinheritance, Discrimination, And The Case For Including Adult Independent Children In Dependants’ Relief Schemes: Lawen Estate V Nova Scotia, Jane Thomson

Dalhousie Law Journal

In 2019 a Superior Court in Nova Scotia excluded adult independent children as “Dependants” under Nova Scotia’s Testator’s Family Maintenance Act. The decision was based on a finding that testamentary autonomy is a constitutional right protected by s. 7 of Canada’s Charter of Rights and Freedoms. This article explains why the constitutional decision in Lawen Estate v Nova Scotia was incorrect. It also demonstrates why the inclusion of adult independent children in dependants’ relief schemes is not only benign in most instances, but may play a role in preventing the perpetuation of discrimination in the private law. This article also …

Curbing The Anticompetitive Impact Of Commercial Land Use Regulation: An Administrative Approach, W.C. Bunting

Villanova Law Review

No abstract provided.

Buyer Beware: Who Is Paying The Home Buyer’S Real Estate Agent?, Melissa Stewart

University of Miami Business Law Review

Within the past few years, unprecedented class action lawsuits have been filed against the National Association of Realtors (“NAR”) and major real estate brokerage firms that could have multibillion-dollar implications to homeowners across the United States. One lawsuit claims that NAR rules requiring home sellers’ brokers (“seller-broker”) to offer home buyers’ brokers’ (“buyer-broker”) compensation when listing a property on a local database of properties for sale called the Multiple Listing Service (“MLS”) have driven up costs to the seller and discouraged competition, violating the Sherman Antitrust Act. This commission structure has been upheld in the courts before, but the real …

The Coming Shift In Shareholder Activism: From “Firm-Specific” To “Systematic Risk” Proxy Campaigns (And How To Enable Them), John C. Coffee, Jr.

Brooklyn Journal of Corporate, Financial & Commercial Law

This article distinguishes two types of shareholder activism: (1) firm-specific activism, which has a long history and focuses on changes at a specific target company, and (2) systematic risk activism, which seeks to reduce the systematic risk in a portfolio and thereby benefit diversified investors. Typically, such a systematic risk campaign may force a portfolio company to internalize negative externalities to benefit the other companies in the portfolio (such as by reducing carbon emissions or undertaking climate risk reforms). But, systematic risk activism faces an inherent difficulty: the party that leads this campaign and invests in the target company may …

Mutual Fund Stewardship And The Empty Voting Problem, Jill E. Fisch

Brooklyn Journal of Corporate, Financial & Commercial Law

When Roberta Karmel wrote the articles that are the subject of this symposium, she was skeptical of the potential value of shareholder voting and the emerging involvement of institutional investors in corporate governance. In the ensuring years, both the increased role and engagement of institutional investors and the heightened importance of shareholder voting offer new reasons to take Professor Karmel’s concerns seriously. Institutional investors have taken on a broader range of issues from diversity and political spending to climate change and human capital management, and their ability to influence corporate policy on these issues has become more significant. The broadened …

Copyright’S Deprivations, Anne-Marie Carstens

Washington Law Review

This Article challenges the constitutionality of a copyright infringement remedy provided in federal copyright law: courts can order the destruction or other permanent deprivation of personal property based on its mere capacity to serve as a vehicle for infringement. This deprivation remedy requires no showing of actual nexus to the litigated infringement, no finding of willfulness, and no showing that the property’s infringing uses comprise the significant or predominant uses. These striking deficits stem from a historical fiction that viewed a tool of infringement, such as a printing plate, as the functional equivalent of an infringing copy itself. Today, though, …

Going, Going, Gone: Takings Clause Challenges To The Cdc’S Eviction Moratorium, Meredith Bradshaw

Georgia Law Review

In September 2020, in response to the COVID-19 pandemic, the Centers for Disease Control and Prevention (CDC) and the Department of Health and Human Services issued a residential eviction moratorium to prevent the further spread of COVID- 19. One year later, the U.S. Supreme Court terminated the moratorium. During the year that the moratorium was in effect, landlords across the country filed lawsuits against the CDC because they were unable to evict tenants who did not satisfy their rental obligations. Because the moratorium allowed tenants to remain on the property without paying rent, some landlords argued that the regulation effected …

The Case For An International Solution To The Restitution Of Cultural Property: Morality, Legality And Righting Western Wrongs, Ariana Catarisano

Brooklyn Journal of International Law

In 2020, the conversation surrounding the return of cultural property acquired during the colonial era was given new life after the world watched as Black Lives Matter activists exposed systemic racial injustice in the United States. Thousands of objects currently sit in western museums under the guise of sharing these cultures and civilizations with the world, but this brings little comfort to communities suffering the genocidal consequences of colonialism. As formerly colonized nations battle the western world for the return of their cultural property, success is often dictated by a combination of power, money, and the ability to turn the …

Real Property, Erica L. Burchell

Mercer Law Review

This Article surveys developments in Georgia real property law between June 1, 2020 and May 31, 2021. Real property law is unique in that it touches nearly every other facet of the law in some way. For instance, family law often intersects with real property law in cases of divorce. Contract law is often at the root of any real property sales or agreements—and also comes into play with issues of landlord-tenant disputes and evictions. Since real property can be, and often is, the largest asset people leave behind when they pass away, real property law certainly impacts estate law. …

Looking Forward: Professor Roberta Karmel’S Prescient Views On The Transformation Of Self-Regulatory Organizations And Of The Securities Market Structure At The Turn Of The Last Century, James A. Fanto

Brooklyn Journal of Corporate, Financial & Commercial Law

This essay examines Professor Roberta Karmel’s scholarship on the transformation of self-regulatory organizations (SROs) and the securities market structure, a transformation that occurred at the turn of the last century. It explains how she examined the events from the perspective of a lawyer who had a rich knowledge of the history of the SROs, the securities markets, and their regulation and how she provided a practical understanding of the way these markets worked. It points out that, rather than offering an overarching theory that would explain all of these developments and that would guide regulators and legislators in SRO and …

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.

Preview—Lac Courte Orielles Band Of Lake Superior Chippewa V. Evers: Just How Special Is Indian Law?, Zachary M. Krumm

Public Land & Resources Law Review

The Seventh Circuit Court of Appeals will hear oral arguments on Monday, November 8, 2021, at 9:30 a.m. at Everett McKinley Dirksen Courthouse in Chicago, Illinois. This case asks whether states may assess property taxes on Indian-owned reservation fee lands that were allotted under treaty, not the General Allotment Act. The lower court held that reservation allotments which had at any time been owned by non-tribal-members could be subject to state property tax. Allotments always held by members remained exempt. While this issue is somewhat narrow, it raises broad questions about applying the well-established Indian canons of construction.

Stronger Than Ever: New York’S Rent Stabilization System Survives Another Legal Challenge, Charles K. Gehnrich

Fordham Law Review

The fate of New York’s rent stabilization laws (RSL) directly concerns millions of New York City residents who take shelter in the protection of the RSL from the hardships and unfair business practices that accompany an unregulated housing market during a housing crisis. After the New York State Legislature made these tenant protections stronger than ever before in 2019, affected landlords responded by petitioning the courts to dismantle the entire rent regulation regime. A federal district court in the Eastern District of New York rejected the landlords’ broad constitutional challenge in Community Housing Improvement Project v. City of New York …

Reforming The Visual Artists Rights Act To Protect #Streetart In The Digital Age, Ellen Matthews

William & Mary Law Review

Consider the following: Building Owner commissions Artist to paint a mural on the wall of his building. A decade later, Business buys that building from Building Owner and, unaware of details relative to Artist’s wall mural, develops plans to renovate the building for a new use. Upon hearing of Business’s attempt to alter its newly acquired property, Artist seeks an injunction to prevent Business from restoring its building in a way that would change or destroy her mural. Would a court prevent Business from altering its building due to Artist’s moral rights to her work? If the court follows the …

Property Law For The Ages, Michael C. Pollack, Lior Jacob Strahilevitz

William & Mary Law Review

Within the next forty years, the number of Americans over age sixty-five is projected to nearly double. This seismic demographic shift will necessitate a reckoning in several areas of law and policy, but property law is especially unprepared. Built primarily for young and middle-aged white men, the common law of property has been critiqued for decades for the ways in which it oppresses or simply leaves behind people based on their race, sex, Native heritage, and more. This Article contributes a new focus on property law’s treatment of people based on their advanced age. Burdened by higher relocation costs, more …

Underwater Mortgages For Underwater Homes: The Elimination Of Signals In The Coastal Lending Market, Peyton J. Klein

Vanderbilt Law Review

Climate change and sea level rise threaten to increase the default risk of mortgages on homes in coastal areas. Faced with this reality, small coastal lenders have begun selling more climate-sensitive mortgages to Fannie Mae and Freddie Mac, thereby transferring the risk of climate-induced default off the lenders’ books. Fannie Mae and Freddie Mac play a crucial role in supporting America’s mortgage finance system by purchasing qualifying private home loans, packaging them into investable security pools, and guaranteeing timely payment of principal and interest to outside investors. Through selling mortgages to Fannie Mae and Freddie Mac, lenders can use their …

The Euclid Proviso, Ezra Rosser

Washington Law Review

This Article argues that the Euclid Proviso, which allows regional concerns to trump local zoning when required by the general welfare, should play a larger role in zoning’s second century. Traditional zoning operates to severely limit the construction of additional housing. This locks in the advantages of homeowners but at tremendous cost, primarily in the form of unaffordable housing, to those who would like to join the community. State preemption of local zoning defies traditional categorization; it is at once both radically destabilizing and market responsive. But, given the ways in which zoning is a foundational part of the racial …

Brigham-Kanner Property Rights Journal, Volume 10, William & Mary Law School

Brigham-Kanner Property Rights Journal

Where Theory Meets Practice

October 1-2, 2020

Panel 1: Where Theory Meets Practice: A Tribute to Henry E. Smith

Panel 2: The Housing Crisis

Lunch Roundtable: Emerging Issues in Takings and Eminent Domain Law

Panel 3: The Reach of Government's Confiscatory Powers Over Exigencies and Emergencies

Panel 4: The Risk of Unjust Compensation

Police Or Pirates? Reforming Washington's Civil Asset Forfeiture System, Jasmin Chigbrow

Washington Law Review

Civil asset forfeiture laws permit police officers to seize property they suspect is connected to criminal activity and sell or retain the property for the police department’s use. In many states, including Washington, civil forfeiture occurs independent of any criminal case—many property owners are never charged with the offense police allege occurred. Because the government is not required to file criminal charges, property owners facing civil forfeiture lack the constitutional safeguards normally guaranteed to defendants in the criminal justice system: the right to an attorney, the presumption of innocence, the government’s burden to prove its case beyond a reasonable doubt, …

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. …

Legitimate Exercises Of The Police Power Or Compensable Takings: Courts May Recognize Private Property Rights, Terence J. Centner

Journal of Food Law & Policy

Under their police power, governments regulate nuisances and take actions in emergency situations. For protecting humans, animals, and plants from diseases and other pests (jointly referred to as diseases), governments order inoculations, quarantine items and people, and seize and destroy property.' With respect to plants and animals, the United States Secretary of Agriculture is authorized to prohibit the importation and movement of items than may be infested. The Secretary also has the authority to hold, treat, and destroy items to prevent the dissemination of plant and animal pests. State governments take additional actions to

Evaluating Emergency Takings: Flattening The Economic Curve, Robert H. Thomas

William & Mary Bill of Rights Journal

Desperate times may breed desperate measures, but when do desperate measures undertaken as a response to an emergency trigger the Fifth Amendment’s requirement that the government provides just compensation when it takes private property for public use? The answer to that question has commonly been posed as a choice between the “police power”—a sovereign government’s power to regulate property’s use in order to further the public health, safety, and welfare—and the eminent domain power, the authority to seize private property for public use with the corresponding requirement to pay compensation. But that should not be the question. After all, emergencies …

Restating The Law Of Prescriptive Easements, John A. Lovett

Marquette Law Review

Prescriptive easements form an important but often overlooked building block in the architecture of property law. Prescription, the doctrine that allows a long-term user of another’s land to acquire a prescriptive easement burdening that land without compensating the owner, transforms a trespass into a permanent property right good against the world. Of all the elements of prescription, adverse use or adversity is often the most intensely disputed and often proves to be outcome determinative. Given its importance to prescriptive easement claims, courts have developed a number of presumptions to frame their analysis of the adversity element. For many years, leading …

Recent Developments, Clinton T. Summers

Arkansas Law Review

In a free speech and free exercise case involving the Business Leaders in Christ at the University of Iowa, the Eighth Circuit Court of Appeals reversed the Southern District of Iowa by holding that University officials should not be granted qualified immunity based on the student organization’s free speech claim.

Spatial Distribution Of Property Sales Using Geographic Information Systems: A Case Study Of Riyadh, Abdulaziz Aldegheishem, Abdulrahman Abalkhail, Saleh Alhumaydani

Emirates Journal for Engineering Research

This research demonstrates the importance of representing and making data available on the map for urban areas in terms of contributing to raising the transparency index of the real estate sector and facilitating the process of accessing information, by reviewing some studies that dealt with it, its history, uses, and some examples. This paper presents a model based on geographic information systems that combines property sales data and a map of land division according to location and time for Riyadh city, the case study, and explains how to find a common link for different real estate data for land assets …