Law Commons^™

Property Rights And Liability Rules: The Ex Ante View Of The Cathedral, Lucian Arye Bebchuk

Michigan Law Review

This Article aims to contribute to the study of how the law should allocate and protect entitlements in the presence of externalities. In their classic article published thirty years ago, Calabresi and Melamed studied such questions and offered what they labeled "one view of the Cathedral." I seek to add to the inquiry started by Calabresi and Melamed by offering an ex ante perspective and analyzing how allocations of entitlements affect parties' ex ante actions and investments. Suppose that an upstream Factory would benefit from an activity that would pollute a river and harm an activity conducted by a downstream …

Tax Planning For Real Estate Developers, Charles H. Egerton

William & Mary Annual Tax Conference

No abstract provided.

The Like Kind Exchange: A Current Review, Stefan F. Tucker

William & Mary Annual Tax Conference

No abstract provided.

Tax Planning For Real Estate Ownership, Stefan F. Tucker

William & Mary Annual Tax Conference

No abstract provided.

Willful Drivel, Roger Bernhardt

Publications

This article covers California real estate transactions where “willfulness” determines liability. Six areas are included in the discussion: landlord and tenant relations, landowners, real estate sales, homeowner associations, construction, and loans.

The Power Of Congress "Without Limitation": The Property Clause And Federal Regulation Of Private Property, Peter A. Appel

Scholarly Works

Congress has overlooked a powerful tool for regulating within state jurisdictions: the Property Clause of the United States Constitution. The United States Government owns land in every state and approximately thirty percent of the total land in the United States. The federal government's authority to regulate its property within states derives from the Property Clause and has been described by the Supreme Court as "without limitation."

Professor Appel traces the historical development of the Constitution's Property Clause, from its pre-constitutional origins through modern Supreme Court decisions and academic conceptions. Professor Appel compares the narrow view of Property Clause scholarship - …

Foskett V. Mckeown – Hard-Nosed Property Rights Or Unjust Enrichment?, Hang Wu Tang

Research Collection Yong Pung How School Of Law

The recent judgment of the House of Lords in Foskett is extremely important as it straddles insurance law, property law, tracing and unjust enrichment. First, it establishes the proposition that it is possible to trace misappropriated moneys wrongfully paid as premiums into the proceeds of a policy. Second, two of the Law Lords contemplated the abolition of the distinction between the rules for tracing in law and tracing in equity. Third, the judgments of the Law Lords contain valuable guidance as to the context in which equitable ownership and the law of unjust enrichment should be viewed.

The Dangers Of Disrepair, Roger Bernhardt

Publications

This article discusses a California case where the landlord was held liable for property damage from a defective electrical system even though the tenants had not paid rent for the past year. The article covers liability in tort or contract, untenantability, attorney fees, and the interaction of the duty to repair and the duty to pay rent.

Property Law: 2001 Survey Of Florida Law, Ronald B. Brown, Joseph M. Grohman

Faculty Scholarship

No abstract provided.

The Religious Land Use And Institutionalized Persons Act: An Analysis Under The Commerce Clause, Evan M. Shapior

Washington Law Review

Congress based the Religious Land Use and Institutionalized Persons Act (RLUIPA) on accumulated evidence suggesting that the land use decisions of local governments unfairly burden religious uses. The RLUIPA is narrower in scope than two previous statutes aimed at protecting religious liberty. The United States Supreme Court held the first of these religious liberty statutes unconstitutional, and Congress failed to enact the other. This Comment examines the constitutionality of the RLUIPA under the Commerce Clause and argues that Congress exceeded its Commerce Clause authority because (1) land use regulation does not constitute "economic activity" as defined by the United States …

Optimal Delegation And Decoupling In The Design Of Liability Rules, Ian M. Ayres, Paul M. Goldbart

Michigan Law Review

Calabresi and Melamed began a scholarly revolution by showing that legal entitlements have two readily distinguishable forms of protection: property rules and liability rules. These two archetypal forms protect an entitlement holder's interest in markedly different ways - via deterrence or compensation. Property rules protect entitlements by trying to deter others from taking. Liability rules, on the other hand, protect entitlements not by deterring but by trying to compensate the victim of nonconsensual takings. Accordingly, the compensatory impetus behind liability rules focuses on the takee's welfare - making sure the sanction is sufficient to compensate the takee. The deterrent impetus …

The Likely Impact Of The Ali Principles Of The Law Of Family Dissolution On Property Division, Craig W. Dallon

BYU Law Review

No abstract provided.

When Lochner Met Dolan: The Attempted Transformation Of American Land Use Law By Constitutional Interpretation, Ronald H. Rosenberg, Nancy Stroud

Faculty Publications

No abstract provided.

Leasing And Loaning But Losing Track Of The Difference, Roger Bernhardt

Publications

This article discusses a California case where a mistaken assignment of a leasehold could have been avoided had a bank’s lawyers paid more attention to landlord-tenant law than to foreclosure law.

Clarifying State Water Rights And Adjudications, Greg Hobbs

Two Decades of Water Law and Policy Reform: A Retrospective and Agenda for the Future (Summer Conference, June 13-15)

14 pages.

Contains footnotes.

Agenda: Two Decades Of Water Law And Policy Reform: A Retrospective And Agenda For The Future, University Of Colorado Boulder. Natural Resources Law Center, Hydrosphere Resource Consultants, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Patrick & Stowell, P.C., Perkins Coie Llp, The William And Flora Hewlett Foundation

Two Decades of Water Law and Policy Reform: A Retrospective and Agenda for the Future (Summer Conference, June 13-15)

1 v. (various pagings) ; 29 cm

"Sponsors: Hydrosphere Resource Consultants; Modrall, Sperling, Roehl, Harris & Sisk, P.A.; Patrick & Stowell, P.C.; Perkins Coie LLP; The William and Flora Hewlett Foundation."

Conference speakers, moderators and/or panelists included University of Colorado School of Law professors Gary C. Bryner, Douglas S. Kenney, Sarah Krakoff, Kathryn Mutz, David H. Getches, Lawrence J. MacDonnell and James N. Corbridge, Jr.

Includes bibliographical references

The conference will examine the agenda for reforming and improving water law that has developed during the past two decades in the West, assesses what has (and has not) been accomplished by …

Just And Unjust Compensation: The Future Of The Navigational Servitude In Condemnation Cases, Alan T. Ackerman, Noah Eliezer Yanich

University of Michigan Journal of Law Reform

In 1967, the U.S. Supreme Court, in United States v. Rands, expanded the navigational servitude doctrine governing the federal government's power over land adjoining a navigable waterway by severely qualifying the government's Fifth Amendment obligation to compensate the landowner. This Article addresses the issue in the following ways: Part I surveys Congress' power to regulate navigable waters under the Commerce Clause. Part II summarizes the development of the navigational servitude doctrine and some of its inhibitory effects on waterfront development, especially under Rands. It explains the fundamental unfairness of the Rands principle and demonstrates why this constitutional rule …

Conference On The Rule Of Law As A Real Estate Market Stimulator (Speaker), Joyce Palomar

Joyce Palomar

No abstract provided.

Faithful Waste, Roger Bernhardt

Publications

This article discusses the interaction of waste and antideficiency statutes in California as to financial waste. The critical inquiry is whether the waste was done in bad faith.

Retelling Allotment: Indian Property Rights And The Myth Of Common Ownership, Kenneth H. Bobroff

Vanderbilt Law Review

The division of Native American reservations into individually owned parcels was an unquestionable disaster. Authorized by the General Allotment Act of 1887, allotment cost Indians two-thirds of their land and left much of the remainder effectively useless as it passed to successive generations of owners. The conventional understanding, shared by scholars, judges, policymakers, and activists alike, has been that allotment failed because it imposed individual ownership on people who had never known private property. Before allotment, so this story goes, Indians had always owned their land in common. Because Indians had no conception of private property, they were unable to …

Understanding Sprawl: Lessons From Architecture For Legal Scholars, Mark S. Davies

Michigan Law Review

What is suburban "sprawl"? Why is it undesirable? Why do many Americans nevertheless choose to live in sprawl? Do local zoning laws contribute to sprawl? Can democratic institutions discourage it? Legal scholars are beginning to study these urgent and complex questions. This Essay reviews Suburban Nation: The Rise of Sprawl and the Decline of the American Dream, by Andres Duany, Elizabeth Plater-Zyberk, and Jeff Speck, leading architects of the influential New Urbanism or traditional town planning movement. This review makes five points about the legal study of sprawl. First, Suburban Nation provides a definition of "sprawl" that the law can …

History And Interpretation Of The Great Case Of Johnson V. M'Intosh, Eric Kades

Faculty Publications

No abstract provided.

On Castles And Commerce: Zoning Law And The Home-Business Dilemma, Nicole Stelle Garnett

William & Mary Law Review

No abstract provided.

What Is Property's Fourth Estate - Cultural Property And The Fiduciary Ideal, Steven Wilf

Faculty Articles and Papers

No abstract provided.

Nondisclosures By Sellers, Brokers, And Home Inspectors, Roger Bernhardt

Publications

This article summarizes many issues involved when a real estate buyer believes that someone did not tell them the full story about the condition of property they acquired and they want to sue for those untruths. Areas of discussion include seller, broker, and home inspector intentional and negligent concealment of property defects.

Enforcing The Endangered Species Act Against The States, Jean O. Melious

William & Mary Environmental Law and Policy Review

No abstract provided.

So You Want To Ban Mountaintop Mining--You May Have To Put Your Money Where Your Mouth Is, Stephanie René Timmermeyer

West Virginia Law Review

No abstract provided.

Unopened Public Street Easements In Washington: Whose Right To Use That Land Is It, Anyway?, Alfred E. Donohue

Washington Law Review

This Comment argues that landowners whose property abuts unopened public street easements have a right to reasonable, non-interfering use of such easements until the city or county opens the street for its intended purpose. Unopened public street easements are dedicated streets that a city or county has not developed or used. Often, landowners use this land to store firewood, park boats, or garden. In 1995, the City of Seattle enacted Municipal Code section 15.02.100, which prohibits all use of unopened public street easements. Several Washington court decisions purportedly support the Seattle ordinance. These decisions suggest that abutting property owners have …

Setting Aside Foreclosure Sales, Roger Bernhardt

Publications

This article discusses when a foreclosure sale is complete and insulated from challenges to have it set aside, as well as what are sufficient grounds to stop or set aside a sale.

The Recapture Of Public Value On The Termination Of The Use Of Commercial Land Under Takings Jurisprudence And Economic Analysis, Donald C. Guy, James E. Holloway

Brigham Young University Journal of Public Law

No abstract provided.