Law Commons^™

Wrong Or (Fundamental) Right?: Substantive Due Process And The Right To Exclude, Jack May

Washington Law Review

Substantive due process provides heightened protection from government interference with enumerated constitutional rights and unenumerated—but nevertheless “fundamental”—rights. To date, the United States Supreme Court has never recognized any property right as a fundamental right for substantive due process purposes. But in Yim v. City of Seattle, a case recently decided by the Ninth Circuit, landlords and tenant screening companies argued that the right to exclude from one’s property should be a fundamental right. Yim involved a challenge to Seattle’s Fair Chance Housing Ordinance, which, among other things, prohibits landlords and tenant screening companies from inquiring about or considering a …

What’S Your Damage?! The Supreme Court Has Wrecked Temporary Takings Jurisprudence, Timothy M. Harris

University of Miami Law Review

In Cedar Point Nursery v. Hassid, the U.S. Supreme Court unnecessarily expanded the Fifth Amendment’s Takings Clause. In doing so, the Court veered away from established precedent and overturned prior case law—without expressly admitting to doing so.

In 2021, the Court held that a California law allowing union organizers to access private property under certain conditions took away a landowner’s right to exclude others and was (apparently) immediately compensable under the Fifth Amendment’s Takings Clause. Prior law had subjected temporary takings to an uncertain, unpopular, and ambiguous balancing test—but the Cedar Point holding turned temporary takings jurisprudence on its head …

Matter Of Will Of Ratcliff And The Not-So-Harmless Error: A Call To Change Mississippi’S Approach To Will Formalities, Kelsi Baldwin

Mississippi College Law Review

A will provides a mechanism to dispose of property at death. But costly litigation—or worse, a will’s invalidation—often thwart this purpose. The law of probate is state-specific, which leaves jurisdictions with the burden of ensuring that their laws promote rather than defeat the purpose of probate—to honor the testator’s intent. Mississippi attempts to recognize this purpose by requiring strict compliance with the statutory requirements for creating a will. This “better safe than sorry” approach errs on the side of invalidity with the hope that denying a non-compliant instrument for probate will prevent fraud and other wrongdoing.

Despite its intention, Mississippi’s …

Digital Property Cycles, Joshua Fairfield

Washington and Lee Law Review

The present downturn in non-fungible token (“NFT”) markets is no cause for immediate alarm. There have been multiple cycles in both the legal and media focus on digital intangible property, and these cycles will recur. The cycles are easily explainable: demand for intangible property is constant, even increasing. The legal regimes governing ownership of these assets are unstable and poorly suited to satisfying the preferences of buyers and sellers. The combination of demand and poor legal regulation gives rise to the climate of fraud that has come to characterize NFTs, but it has nothing to do with the value of …

Theft Of The American Dream: New York City's Third-Party Transfer Program, Joseph Mottola

St. John's Law Review

(Excerpt)

On September 5, 2018, Paul Saunders discovered a notice on the front door of his mother’s home: it stated that the property, a Brooklyn brownstone owned by the family for over forty years, now belonged to a company called Bridge Street. His mother, seventy-four-year-old retired nurse Marlene Saunders, had been notified several months earlier that her home, valued at two million dollars, was in danger of being foreclosed because she owed New York City (the “City”) $3,792 in unpaid water charges. Her son had already paid the water bill, but when he contacted the water department, he discovered that …

Property And Prosperity, A Demythifying Story, Xiaoqian Hu

St. John's Law Review

(Excerpt)

Economic development is fundamentally a property law story. Prominent thinkers―from Adam Smith and Jeremy Bentham, to Douglass North and Richard Posner―tell us that protection of private property rights is essential for economic growth and wealth accumulation. Clear and freely alienable property rights reduce transaction costs and allow private bargaining to produce efficient results. Property rights allow owners to internalize the costs and benefits of their own behavior, reduce production costs, and encourage innovation. Secure property rights protect owners from arbitrary confiscation by the government, foster owner expectations, and facilitate investment, trade, and the development of financial markets. The idea …

Adapting Private Law For Climate Change Adaptation, Jim Rossi, J. B. Ruhl

Vanderbilt Law Review

The private law of torts, property, and contracts will and should play an important role in resolving disputes regarding how private individuals and entities respond to and manage the harms of climate change that cannot be avoided through mitigation (known in climate change policy dialogue as “adaptation”). While adaptation is commonly presented as a problem needing legislative solutions, this Article presents a novel and overdue case for private law to take climate adaptation seriously.

To date, the role of private law is a significant blind spot in scholarly discussions of climate adaptation. Litigation invoking common-law doctrines in climate adaption disputes …

The Stewardship Model Of Necessity, Joseph Graziano

Notre Dame Law Review

The current understanding of the necessity defense to trespass to property in American law stems from a simple—or perhaps simplistic—balancing of rights. Based in the individualistic understanding of property as a right against the world that creates an obligation for others, necessity pits the interloper’s right to life, liberty, or property against the property owner’s right. Although feasible in the extremes, dueling rights leads to an unwieldy judicial task, discouraging advocates from alleging the privilege and discouraging judges from recognizing the privilege. Overall, the right to exclude has become more and more the libertarian vision of a right to be …

Is “Touch And Concern” Dead In Arkansas?: A Recent Case And Its Implications For Real Covenants, Bennett J. Waddell

Arkansas Law Review

Real covenants occupy a doctrinal abyss within property law. The subject perpetually frustrates first-year law students and legal scholars alike, as they confront concepts that appear esoteric and even anachronistic. Naturally, the criticism has been sharp, with commentators quipping that the field “is an unspeakable quagmire,” a “formidable wilderness,” and plainly “ridiculous.”