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Articles 61 - 90 of 341
Full-Text Articles in Law
Eminent Domain, Exactions, And Railbanking: Can Recreational Trails Survive The Court’S Fifth Amendment Takings Jurisprudence, Danaya C. Wright
Eminent Domain, Exactions, And Railbanking: Can Recreational Trails Survive The Court’S Fifth Amendment Takings Jurisprudence, Danaya C. Wright
Danaya C. Wright
This article attempts to locate the legal aspects of recreational trail development within the increasingly powerful property rights movement. The most complex result of this rising property rights rhetoric is a clear shift in constitutional takings doctrine to be more sympathetic to landowners' arguments. Thus, the interplay of takings decisions and trails development will be the focus of most of this article. Part II provides a brief account of the legal structure of governmental land use controls and the current state of takings jurisprudence to form a basic background for the different ways in which recreational trails have been developed. …
Pipes, Wires, And Bicycles: Rails-To-Trails, Utility Licenses, And The Shifting Scope Of Railroad Easements From The Nineteenth To The Twenty-First Centuries, Danaya Wright, Jeffrey Hester
Pipes, Wires, And Bicycles: Rails-To-Trails, Utility Licenses, And The Shifting Scope Of Railroad Easements From The Nineteenth To The Twenty-First Centuries, Danaya Wright, Jeffrey Hester
Danaya C. Wright
This Article responds to a series of class action suits filed against railroads, telecommunication companies, and the federal government claiming that once railroads abandon their corridors, all property rights shift to adjacent landowners. This Article reviews the state law on this matter and offers a theory of how courts should handle these cases. After discussing the history of nineteenth-century railroad land acquisition practices, we analyze the scope of the easement limited for railroad purposes. We then discuss the role abandonment plays in affecting the rights of third party users of these corridors as well as successor trail owners. We conclude …
A New Time For Denominators - Toward A Dynamic Theory Of Property In The Regulatory Takings Relevant Parcel Analysis, Danaya C. Wright
A New Time For Denominators - Toward A Dynamic Theory Of Property In The Regulatory Takings Relevant Parcel Analysis, Danaya C. Wright
Danaya C. Wright
This Article explores the question of how the courts should calculate the denominator in the just compensation equation. The denominator is the amount of property a claimant owns, against which the effects of regulation will be measured. If a landowner owns a single acre that is severely regulated, the takings fraction for the amount of property taken compared to that owned will approach one. If, on the other hand, the landowner owns 100 acres and only one is regulated, the amount of harm is only 1% in comparison to the total amount owned. This Article advocates a paradigm shift in …
Foreword: Toward A Multicultural Theory Of Property Rights, Danaya C. Wright
Foreword: Toward A Multicultural Theory Of Property Rights, Danaya C. Wright
Danaya C. Wright
This panel, sponsored by the Minority group and Property Sections of the AALS for the January, 2000 annual meeting, was composed of an exciting group of scholars critically analyzing traditional theories of property and current distribution of resources. The panel, entitled "Reviewing the Legacy of Liberalism: Life, Liberty, and the Pursuit of Happiness -- Linking Property to Rights," challenged traditional notions of property rights, from a discussion of the gender implications of African property law, to a critique of traditional analyses of Johnson v. M'Intosh, to property as heteronormative. Because the articles provide so much rich and thought-provoking material, …
Charitable Deductions For Rail-Trail Conversions: Reconciling The Partial Interest Rule And The National Trails System Act, Scott Bowman, Danaya Wright
Charitable Deductions For Rail-Trail Conversions: Reconciling The Partial Interest Rule And The National Trails System Act, Scott Bowman, Danaya Wright
Danaya C. Wright
This Article examines an undeveloped legal topic at the intersection of tax law and real property law: charitable deductions from income tax liability for donations of railroad corridors that are to be converted into recreational trails. The very popular rails-to-trails program assists in the conversion of abandoned railroad corridors into hiking and biking trails. However, the legal questions surrounding the property rights of these corridors have been complex and highly litigated. In 1983, Congress amended the National Trails System Act to provide a mechanism for facilitating these conversions, a process called railbanking. In essence, a railroad transfers its real property …
The Shifting Sands Of Property Rights, Federal Railroad Grants, And Economic History: Hash V. United States And The Threat To Rail-Trail Conversions, Danaya C. Wright
The Shifting Sands Of Property Rights, Federal Railroad Grants, And Economic History: Hash V. United States And The Threat To Rail-Trail Conversions, Danaya C. Wright
Danaya C. Wright
This Article is an analysis of a federal circuit case from 2005 that has spawned some disturbing precedents in the area of federal transportation and railbanking policy. Specifically, the National Trails System Act (NTSA) provides a mechanism for preserving unused railroad corridors for future reactivation while allowing interim recreational trail and mixed utiity use along the corridor. Converting rail corridors to recreational trails is a very popular process and communities across the country are demanding more and more conversions, as people seek the amenities of linear parks and greenways. Hash v. United States, however, deals with the property rights underlying …
The Illusory Right To Abandon, Eduardo M. Peñalver
The Illusory Right To Abandon, Eduardo M. Peñalver
Eduardo M. Peñalver
The unilateral and unqualified nature of the right to abandon (at least as it is usually described) appears to make it a robust example of the law’s concern to safeguard the individual autonomy interests that many contemporary commentators have identified as lying at the heart of the concept of private ownership. The doctrine supposedly empowers owners of chattels freely and unilaterally to abandon them by manifesting the clear intent to do so, typically by renouncing possession of the object in a way that communicates the intent to forgo any future claim to it. A complication immediately arises, however, due to …
Is Land Special? The Unjustified Preference For Landownership In Regulatory Takings Law, Eduardo M. Peñalver
Is Land Special? The Unjustified Preference For Landownership In Regulatory Takings Law, Eduardo M. Peñalver
Eduardo M. Peñalver
This article critiques the Court's attempt to cabin the Lucas "per se" takings rule by limiting it to real property. It argues that the distinction between real and personal property cannot be justified by history or the differing expectations of property owners. It then applies five theoretical frameworks (libertarian, personhood, utilitarian, public choice, and Thomistic-Aristotelian natural law) and finds that none of them supports the jurisprudential distinction between real and personal property. As a result, the article argues that "because the distinction between personal and real property is an unprincipled one, it cannot save the Court from the unpalatable implications …
Properties Of Community, Gregory S. Alexander, Eduardo M. Peñalver
Properties Of Community, Gregory S. Alexander, Eduardo M. Peñalver
Eduardo M. Peñalver
Theories of property presuppose conceptions of community, and of the individual's relationship to community. In contrast to the dominant theories of community at work within most Anglo-American property theorizing, which view community obligations as fundamentally instrumental and contractual, we propose in this paper a theory that views the relationship between the individual and community as constitutive and substantive. Human beings' dependence on others to flourish imposes on political communities and their individual members a shared obligation to foster and contribute to the creation and maintenance of those structures necessary for that flourishing. This obligation in turn qualifies individual rights of …
Judicial Takings Or Due Process, Eduardo M. Peñalver, Lior Jacob Strahilevitz
Judicial Takings Or Due Process, Eduardo M. Peñalver, Lior Jacob Strahilevitz
Eduardo M. Peñalver
No abstract provided.
Redistributing Property: Natural Law, International Norms, And The Property Reforms Of The Cuban Revolution, Eduardo M. Peñalver
Redistributing Property: Natural Law, International Norms, And The Property Reforms Of The Cuban Revolution, Eduardo M. Peñalver
Eduardo M. Peñalver
No abstract provided.
A Statement Of Progressive Property, Gregory S. Alexander, Eduardo M. Peñalver, Joseph W. Singer, Laura S. Underkuffler
A Statement Of Progressive Property, Gregory S. Alexander, Eduardo M. Peñalver, Joseph W. Singer, Laura S. Underkuffler
Eduardo M. Peñalver
What would a progressive theory of property look like? Although such a theory might take root within any number of specific normative frameworks, this Statement of Progressive Property outlines several features progressive theories of property should have in common. The Statement argues that we should understand property as both an idea and an institution, that property confers power and shapes community, both in its legal and social dimensions, and that property should be understood as serving plural and incommensurable values whose accommodation is possible through reasoned deliberation and practical judgment.
Reconstructing Richard Epstein, Eduardo M. Peñalver
Reconstructing Richard Epstein, Eduardo M. Peñalver
Eduardo M. Peñalver
No abstract provided.
Property As Entrance, Eduardo M. Peñalver
Property Metaphors And Kelo V. New London: Two Views Of The Castle, Eduardo M. Peñalver
Property Metaphors And Kelo V. New London: Two Views Of The Castle, Eduardo M. Peñalver
Eduardo M. Peñalver
No abstract provided.
Property Outlaws, Eduardo Peñalver, Sonia Katyal
Property Outlaws, Eduardo Peñalver, Sonia Katyal
Eduardo M. Peñalver
Most people do not hold those who intentionally flout property laws in particularly high regard. The overridingly negative view of the property lawbreaker as a wrong-doer comports with the nearly sacrosanct status of property rights within our characteristically individualist, capitalist, political culture. This dim view of property lawbreakers is also shared to a large degree by property theorists, many of whom regard property rights as a fixed constellation of allocative entitlements that collectively produce stability and order through ownership. In this Article, we seek to rehabilitate, at least to a degree, the maligned character of the intentional property lawbreaker, and …
Exactions Creep, Lee Anne Fennell, Eduardo M. PeñAlver
Exactions Creep, Lee Anne Fennell, Eduardo M. PeñAlver
Eduardo M. Peñalver
The published version of this article is available at: http://scholarship.law.cornell.edu/facpub/1409/. How can the Constitution protect landowners from government exploitation without disabling the machinery that protects landowners from each other? The Supreme Court left this central question unanswered — and indeed unasked — in Koontz v. St. Johns River Water Management District. The Court’s exactions jurisprudence, set forth in Nollan v. California Coastal Commission, Dolan v. City of Tigard, and now Koontz, requires the government to satisfy demanding criteria for certain bargains — or proposed bargains — implicating the use of land. Yet because virtually every restriction, fee, or tax associated …
Reinvigorating The Reit's Neutrality And Capital Formation Purposes Through A Modernized Tax Integration Model, Simon Johnson
Reinvigorating The Reit's Neutrality And Capital Formation Purposes Through A Modernized Tax Integration Model, Simon Johnson
The Journal of Business, Entrepreneurship & the Law
Efforts at reform have not spared the REIT arrangement, but have focused on objectives unrelated to its model of tax integration, despite its significant flaws. Owing to the interaction of several provisions, the model largely precludes capitalization through retained earnings. This increases the cost of REIT capital and limits its capacity to realize the neutrality and private real estate capital formation objectives Congress pursued in creating the arrangement. Accordingly, it is important to consider how to durably improve the REIT tax integration model. Ultimately, the article concludes that the shareholder allocation model, a complete integration model conceptually similar to the …
Supreme Court, New York County, Uhlfelder V. Weinshall, David Schoenhaar
Supreme Court, New York County, Uhlfelder V. Weinshall, David Schoenhaar
Touro Law Review
No abstract provided.
Court Of Appeals Of New York, Consumers Union Of United States, Inc. V. New York, Daphne Vlcek
Court Of Appeals Of New York, Consumers Union Of United States, Inc. V. New York, Daphne Vlcek
Touro Law Review
No abstract provided.
Court Of Appeals Of New York, Harner V. County Of Tioga, Gerald C. Waters Jr.
Court Of Appeals Of New York, Harner V. County Of Tioga, Gerald C. Waters Jr.
Touro Law Review
No abstract provided.
Property Rights In Eastern Germany: An Overview Of The Amended Property Law, A. Bradley Shingleton, Volker Ahrens, Peter Ries
Property Rights In Eastern Germany: An Overview Of The Amended Property Law, A. Bradley Shingleton, Volker Ahrens, Peter Ries
Georgia Journal of International & Comparative Law
No abstract provided.
German Reunification - The Privatization Of Socialist Property On East Germany's Path To Democracy, Michael J. Thomerson
German Reunification - The Privatization Of Socialist Property On East Germany's Path To Democracy, Michael J. Thomerson
Georgia Journal of International & Comparative Law
No abstract provided.
Contingent Purchase Price, Contingent Liabilities And Indemnities In Taxable Acquisitions (Slides), William M. Richardson, Robert H. Wellen
Contingent Purchase Price, Contingent Liabilities And Indemnities In Taxable Acquisitions (Slides), William M. Richardson, Robert H. Wellen
William & Mary Annual Tax Conference
No abstract provided.
Mirrored Externalities, Lisa Grow Sun, Brigham Daniels
Mirrored Externalities, Lisa Grow Sun, Brigham Daniels
Notre Dame Law Review
A fundamental but underappreciated truth is that positive and negative externalities are actually mirror reflections of each other. What we call “mirrored externalities” exist because any action with externalities associated with it can be described as a choice to do or to refrain from doing that particular action. For example, if a person smokes and thereby creates a negative externality of more secondhand smoke, then her choice not to smoke creates a positive externality of less secondhand smoke. Conversely, if a person’s choice to get an immunization confers a positive externality of reducing vectors for disease transmission, then a choice …
What Do Those Who Disagree With A Development Agreement Do?, Roger Bernhardt
What Do Those Who Disagree With A Development Agreement Do?, Roger Bernhardt
Publications
No abstract provided.
Borrower's Wrongful Foreclosure Claims Based On An Alleged Failed Attempt To Securitize The Loan, Roger Bernhardt
Borrower's Wrongful Foreclosure Claims Based On An Alleged Failed Attempt To Securitize The Loan, Roger Bernhardt
Publications
No abstract provided.
Desvaríos Legislativos Sobre La Defensa Posesoria Extrajudicial Y La Estocada Final A La Fe Pública Registral. ¡Que Celebren Los Traficantes De Terrenos (Más Que Los “Neoliberales”)!, Alan A. Pasco Arauco
Desvaríos Legislativos Sobre La Defensa Posesoria Extrajudicial Y La Estocada Final A La Fe Pública Registral. ¡Que Celebren Los Traficantes De Terrenos (Más Que Los “Neoliberales”)!, Alan A. Pasco Arauco
Alan A. Pasco Arauco
No abstract provided.
Real Estate Documents Turn Green, Richard J. Sobelsohn
Real Estate Documents Turn Green, Richard J. Sobelsohn
Faculty Scholarship
No abstract provided.
Symposium: The Role Of Federal Law In Private Wealth Transfer, Jeffrey Schoenblum
Symposium: The Role Of Federal Law In Private Wealth Transfer, Jeffrey Schoenblum
Vanderbilt Law Review
Property and inheritance are "quintessential state matters."' In fact, there is no federal intestacy law. There is no federal wills law. There is no federal trust law. And yet.... Increasingly, federal law impacts court decisions involving private wealth transfer. Increasingly, federal law is the central consideration in premortem and postmortem planning for private wealth transfer. Despite this, until recently, little scholarly attention has been paid to this phenomenon; the assumption regarding the centrality of state law, quoted above, having gone largely unquestioned. But now that the "sleeping giant" has awakened, the role that federal law plays in private wealth transfer …