Law Commons^™

Can You Dig It? Yes, You Can! But At What Cost?: A Proposal For The Protection Of Domestic Fossils On Private Land, Bridget Roddy

Texas A&M Journal of Property Law

Paleontological resources require similar protections to archaeological resources because the threat of looting, improper excavation, and market demand are analogous. Paleontological resources are responsible for informing much of scientists’ understanding of evolution and the history of the planet, just as cultural property helps to inform the evolution of humanity and culture. Once either object is removed from its original context, there is an immediate and invaluable loss of information that could have illuminated important information about the past. When either is removed from the environment in which they were created, a nonrenewable link to the past is lost.

Existing laws …

Biotechnology Patent Law Top Ten Of 2020: Valeant Victorious, Falling Eagle, And Successful Slayback, Kevin E. Noonan, Andrew W. Torrance

Texas A&M Journal of Property Law

This Article discusses the Top 10 BioTechnology Patent Cases of 2020. Suffice it to say that biotechnology patent law will continue to vigorously evolve, and we plan to continue our coverage of its evolution beyond the current trilogy of Biotechnology Patent Law Top Tens. As in previous years, we admit it was difficult to choose precisely ten top biotechnology patent law decisions. There are certainly others we did not include that warrant close attention for their reasonings, rules, and future implications. Nevertheless, both we and our readers can count, so we have done our best to select what we consider …

Stale Real Estate Convenants, Robert C. Ellickson

William & Mary Law Review

Since the 1970s, covenants running with the land have tethered a large majority of the new housing units produced in the United States. These private restraints usually continue for generations, until a majority or supermajority of covenant beneficiaries affirmatively vote to amend or terminate them. Covenants interact with public land use controls, particularly zoning ordinances. Zoning politics tends to freeze land uses in urban America, particularly in existing neighborhoods of single-family homes. This Article investigates to what extent covenants exacerbate the zoning freeze. It provides a history of the use of private covenants and suggests how drafters, judges, and legislators …

Redefining The Boundary Between Appropriation And Regulation, Jessica L. Asbridge

BYU Law Review

The U.S. Supreme Court distinguishes between appropriations and regulations of property rights when interpreting the Fifth Amendment’s Takings Clause. While appropriations of any kind require just compensation to survive constitutional scrutiny, whether non-appropriative laws regulating property rights require compensation is determined on an ad hoc basis, guided by concerns of fairness and justness. In Cedar Point Nursery v. Hassid, the Court reaffirmed its prior precedent establishing the physical takings doctrine, providing that an appropriation is any government action that results in a physical invasion of an owner’s real property and a taking of the owner’s right to exclude. The Court …

The Regulation Of The Ownership Of Flats By Foreigners After The Enactment Of The Job Creation Law, Made Suksma Prijandhini Devi Salain, I Dewa Gede Palguna, I Gusti Ngurah Parikesit Widiatedja

Indonesia Law Review

The presence of foreigners in Indonesia for a long period certainly requires a place to live or a residential house. According to Article 144 (1) b of Job Creation Law, foreigners have the right to own flat units in Indonesia. Is this regulation intended to attract foreign investors? If it is yes, does not it contradictory to the “kenasionalan” principle stipulated in the Basic Agrarian Law (BAL) and other Indonesian regulations? This study is aimed to deal with those legal issues, by using the normative legal method. The result shows that the ownership right of flat units given to foreigners …

2019–2020 Colorado Oil And Gas Law Update, William D. Farrar

Texas A&M Journal of Property Law

Colorado courts and the state’s legislature were quite active in 2019 and 2020 on the oil and gas administrative law front. Namely, the Colorado General Assembly enacted changes to the Colorado Oil & Gas Conservation Act in response to the Colorado Supreme Court’s decision in Colorado Oil & Gas Conservation Commission v. Martinez. While the Martinez case was not principally a substantive oil and gas case, the resulting fallout from the Colorado Supreme Court’s decision made sweeping changes to the state’s statutory laws. The decision will also result in major administrative law changes affecting the Colorado oil & gas …

Louisiana, Keith B. Hall

Texas A&M Journal of Property Law

This article examines significant developments in Louisiana oil and gas law during 2021, beginning with developments arising from court cases, then legislation, and finally regulations.

Texas: Survey Of Selected 2021 Oil And Gas Cases And Statutes, William D. Farrar

Texas A&M Journal of Property Law

The Texas Supreme Court was quite active in 2021, issuing several oil and gas opinions; however, two were quite controversial, drawing numerous amicus curie from industry groups, oil and gas attorneys, and academia. In Concho Resources, Inc. v Ellison, the court held that a subsequently executed, inconsistent instrument, even without words of grant, may divest a record mineral title. And, in Broadway National Bank v. Yates Energy Corp., the court held that prior title holders may divest a current record title holder of their title by executing a correction deed without the joinder of, or notice to, the …

Alabama, Florida, Georgia, And Tennessee, Brandt P. Hill, Hugh Gainer

Texas A&M Journal of Property Law

There were no decisions by federal or state courts in Alabama, Florida, Georgia, or Tennessee between fall 2020 and fall 2021 directly relevant to oil and gas companies or operations. However, there were several decisions that may nonetheless be of interest to the industry, including two opinions by the United States Supreme Court in water-rights cases. We discuss these opinions below.

Northern Rocky Mountain Region: Montana, Wyoming, And Idaho, Stephen R. Brown

Texas A&M Journal of Property Law

This Article examines significant developments in oil and gas law for the Northern Rocky Mountain Region, including Montana, Wyoming, and Idaho.

Appalachian Basin–Pennsylvania, West Virginia, And Ohio–Oil And Gas Law Developments, Ross H. Pifer, Chloe J. Marie

Texas A&M Journal of Property Law

This article addresses oil and gas case law developments that have occurred within the Appalachian Basin’s primary oil and gas producing states of Pennsylvania, West Virginia, and Ohio during 2021 by reviewing opinions issued by the highest appellate courts within each of these three states. The oil and gas law topics addressed by these state supreme courts during 2021 have ranged from those occurring upstream, such as leasing, to those occurring downstream, such as approval of a utility rate increase for the extension of a natural gas pipeline.

New Mexico, Sharon T. Shaheen

Texas A&M Journal of Property Law

This Article examines significant developments in New Mexico oil and gas law.

Perspective On Wildgrass Oil & Gas Committee V. Colorado Oil & Gas Conservation Commission And The Embracing Of Associated Standing, Ralph A. Cantafio, Miles C. Nowak, Cody J. Watson

Texas A&M Journal of Property Law

The ongoing litigations between the Wildgrass Oil & Gas Committee (“Wildgrass”) and, among others, the Colorado Oil & Gas Conservation Commission (“COGCC”) serve as a microcosm of the political and legal horizons that define the microscope used to examine Colorado oil and gas development. This set of litigations began administratively with the application for permits before the COGCC and, over the passage of time, weaved its way through the District Court of the City and County of Denver (the “State District Court”), the United States District Court for the District of Colorado (the “Federal District Court”), the Colorado Court of …

Federal Courts And Takings Litigation, Ann Woolhandler, Julia D. Mahoney

Notre Dame Law Review

This Article first gives an overview of the role of the federal courts in takings claims over time, with a view to providing a more complete picture than that supplied by focusing either on the Lochner/New Deal-era dichotomy or on the advent of the 1871 Civil Rights Act (current § 1983). It traces the fairly robust role of the federal courts in protecting property under a nonconfiscation norm both before and during the Lochner era. It also points out that the legislative history of the 1871 Civil Rights Act does not support a firm conclusion that Congress intended takings …

The Home Of The Dispossessed, Allison Anna Tait

Michigan Journal of Gender & Law

The objects that people interact with on a daily basis speak to and of these people who acquire, display, and handle them—the relationship is one of exchange. People living among household objects come to care for their things, identify with them, and think of them as a constituent part of themselves. A meaningful problem arises, however, when people who have deep connections to the objects that populate their lived spaces are not those who possess the legal rights of ownership. These individuals and groups—usually excluded from the realm of property ownership along lines of gender, race, and ethnicity—live on an …

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 …

The Commodification Of Public Land Records, Reid K. Weisbord, Stewart E. Sterk

Notre Dame Law Review

The United States deed recording system alters the “first in time, first in right” doctrine to enable good faith purchasers to record their deeds to protect themselves against prior unrecorded conveyances and to provide constructive notice of their interests to potential subsequent purchasers. Constructive notice, however, works only when land records are available for public inspection, a practice that had long proved uncontroversial. For centuries, deed archives were almost exclusively patronized by land-transacting parties because the difficulty and cost of title examination deterred nearly everyone else.

The modern information economy, however, propelled this staid corner of property law into a …

The Law Of Employee Data: Privacy, Property, Governance, Matthew T. Bodie

Indiana Law Journal

The availability of data related to the employment relationship has ballooned into an unruly mass of performance metrics, personal characteristics, biometric recordings, and creative output. The law governing this collection of information has been awkwardly split between privacy regulations and intellectual property rights, with employees generally losing on both ends. This Article rejects a binary approach that either carves out private spaces ineffectually or renders data into isolated pieces of ownership. Instead, the law should implement a hybrid system that provides workers with continuing input and control without blocking efforts at joint production. In addition, employers should have fiduciary responsibilities …

The Truth About Property, Jessica A. Shoemaker

Michigan Law Review

A Review of Federal Ground: Governing Property and Violence in the First U.S. Territories. By Gregory Ablavsky.

What Property Does, Christopher Serkin

Vanderbilt Law Review

For centuries, scholars have wrestled with seemingly intractable problems about the nature of property. This Article offers a different approach. Instead of asking what property is, it asks what property does. And it argues that property protects people’s reliance on resources by moderating the pace of change. Modern scholarly accounts emphasize voluntary transactions as the source and purpose of reliance in property. Such “transactional reliance” implies strong, stable, and enduring rights. This Article argues that property law also reflects a very different source of reliance on resources, one that rises and falls simply with the passage of time. This new …

Right Of Self, Mitchell F. Crusto

Washington and Lee Law Review

The exercise of free will against tyranny is the single principle that defines the American spirit, our history, and our culture. From the American Revolution through the Civil War, the two World Wars, the Civil Rights Movement, and up to today, Americans have embraced the fundamental rights of the individual against wrongful governmental intrusion. This is reflected in our foundational principles, including the Magna Carta, the Bill of Rights to the United States Constitution, the Reconstruction Amendments, the Nineteenth Amendment, and, more recently, in the Supreme Court’s recognition of fundamental individual rights within the Constitution’s penumbras. However, there is no …

The Future Of Testamentary Capacity, Reid Kress Weisbord, David Horton

Washington and Lee Law Review

Recently, the #FreeBritney saga cast a harsh spotlight on state guardianship systems. Yet despite their serious flaws, guardianship regimes have benefited from waves of reform. Indeed, since the 1970s, most jurisdictions have taken steps to protect the autonomy of people with cognitive, intellectual, or developmental disabilities (CIDD). Likewise, lawmakers are currently experimenting with supported decision-making (SDM): an alternative to guardianship designed to help individuals with CIDD make their own choices. These changes are no panacea, but they have modernized a field that once summarily denied “idiots” and “lunatics” power over their affairs.

However, in a related context, the legal system’s …

Revoking Wills, David Horton

Notre Dame Law Review

No issue in inheritance law has sparked as much debate as the requirements for making a valid will. For centuries, Anglo-American courts have insisted that decedents obey rigid formalities, such as signing or acknowledging their wills before two witnesses. These rituals preserve proof of the testator’s wishes, reinforce the gravity of estate planning, prevent fraud and duress, and distinguish wills from other instruments. But they also have a dark side. In scores of cases, judges have cited minor errors during the execution process to invalidate documents that a decedent intended to be effective. Accordingly, generations of scholars have critiqued will-creation …

Cross-Border Real Estate, Timur Bondaryev, Bohdan Shmorhum, Felipe Isa Castillo, Anders Forkman, Bruce D. Greenberg

The Year in Review

No abstract provided.

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 …

With White Gloves: Eminent Domain In The Gaming Industry, Eric Beal

UNLV Gaming Law Journal

No abstract provided.

Property Law—Beyond Repair: The Persistent Unconstitutionality Of The Failure To Vacate Statute, Colin Boyd

University of Arkansas at Little Rock Law Review

No abstract provided.

Contractual Inequality, Manisha Padi

Michigan Law Review

Most individuals strive to satisfy every obligation laid out in standard form contracts such as mortgages, insurance plans, or credit agreements. Sophisticated parties, however, adapt and modify their obligations during contract performance by negotiating for lenient treatment and taking advantage of unclear terms. The common law explicitly authorizes variance from standardized contract terms during performance. When the same standard terms create value for sophisticated individuals and destroy value for others, the result is contractual inequality. Contractual inequality has grown without scrutiny by courts or scholars, enabling regressive redistribution of resources and creating economic inefficiency by sowing distrust in markets for …

A Critical Jeffersonian Mind For A Community Reinvestment Bind, Chaz D. Brooks

Marquette Benefits and Social Welfare Law Review

The Community Reinvestment Act of 1977 ("CRA") primarily sought to remedy decades of government sanctioned disinvestment in so-called “redlined communities.” Through the Home Owners’ Loan Corporation and later the Federal Housing Administration, the United States of America created from whole cloth a structure that encouraged and subsidized the explosion of homeownership in white American households. Following decades of racialized wealth generation, the United States had a change of heart. Congress determined that financiers needed a gentle push to invest fairly. Additionally, Congress wanted one thing clear in the drafting of this remedy— it must not allocate credit. This essay considers …

Recent Developments, Silas Heffley

Arkansas Law Review

In a case involving a Missouri televangelist, a purported COVID-19 cure, and state officials from Arkansas and California, the Eighth Circuit Court of Appeals affirmed the lower court’s dismissal for lack of personal jurisdiction.