Law Commons^™

Emergency Takings, Brian Lee

Faculty Scholarship

No abstract provided.

Reforming Reit Taxation (Or Not), Bradley T. Borden

Faculty Scholarship

No abstract provided.

Defining Power Property Expectations, Michael Pappas

Faculty Scholarship

To date, most government efforts to promote distributed solar energy have involved incentivizing property owners to undertake voluntary installations. However, that approach is changing, as government actors move to increase distributed solar generation capacity not only through incentive programs, but also through requirements. Such a change from voluntary to mandatory measures represents a seismic shift in the approach to encouraging distributed solar generation, and it may raise objections about interference with property expectations.

The Comment addresses those concerns by exploring the nature of property expectations in the energy context and analyzing how courts and legislatures have balanced property expectations against …

The Evolution Of Relational Property Rights: A Case Of Chinese Rural Land Reform, Shitong Qiao, Frank Upham

Faculty Scholarship

The most notable, or at least the most noted, form of property evolution has been the transfer of exclusive rights from collectives to individuals and vice versa, such as the farm collectivization in Soviet Union and the establishment of the People’s Communes in Mao’s China and their reversals. Such radical moments, however, constitute only a small part of history. For the most part, property rights evolve quietly and incrementally, which is hard to explain if we take exclusive rights as the core of property, or, to put it more generally, if we are focusing solely on the question of who …

On Bargaining For Development, Timothy M. Mulvaney

Faculty Scholarship

In his recent article, Bargaining for Development Post-Koontz, Professor Sean Nolon concludes that the Supreme Court’s recent ill-defined expansion of the circumstances in which land use permit conditions might give rise to takings liability in Koontz v. St. John’s River Water Management District will chill the state’s willingness to communicate with permit applicants about mitigation measures. He sets out five courses that government entities might take in this confusing and chilling post-Koontz world, each of which leaves something to be desired from the perspective of both developers and the public more generally.

This responsive essay proceeds in two parts. First, …

Posession As A Natural Right, Thomas W. Merrill

Faculty Scholarship

What follows is, I hope, a tribute both to Friedrich Hayek, for whom this lecture series is named, and Richard Epstein, who was kind enough to invite me to give the lecture. Hayek has long been an inspiration for his insights about the advantages of decentralized decision making and the importance of information in understanding design of institutions. Both are recurring themes in my own work. Richard was my teacher at the University of Chicago Law School and has been a guiding light ever since. His works on nuisance law, takings, and the public trust doctrine, among others, have had …

Ownership And Possession, Thomas W. Merrill

Faculty Scholarship

One of the enduring mysteries about property is why the law protects both ownership and possession. In a pre-modern world, with low rates of literacy and no formal method of registering titles, one can understand why the law would protect possession. In such a world, there may be no concept of property beyond the understanding that persons should respect possessory rights established by others. It is less clear why possession should be protected once property comes to be understood as ownership. Ownership and possession will commonly overlap, and protecting ownership will protect possession. Nevertheless, even in the most sophisticated legal …

Introduction: Toward Voice And Reflexivity, Olivier De Schutter, Katharina Pistor

Faculty Scholarship

In their introductory chapter, De Schutter and Pistor argue that in light of increasing absolute and relative scarcity of land and fresh water there is urgent need to improve the governance of these and other essential resources. Emphasizing “essentiality” shifts the debate from allocative efficiency to normative concerns of equity and dignity. Essential resources are indispensable for survival and/or for meaningful participation in a given community. Their allocation therefore cannot be left to the pricing mechanism alone. It requires new parameters for governance. The authors propose Voice and Reflexivity as the key parameters of such a regime. Voice is …

Anticipatory Remedies For Takings, Thomas W. Merrill

Faculty Scholarship

The Supreme Court has rendered two lines of decisions about the remedies available for a violation of the Takings Clause. One line holds that courts have no authority to enter anticipatory decrees in takings cases if the claimant can obtain compensation elsewhere. The other line, which includes three of the Court's most recent takings cases, results in the entry of an anticipatory decree about takings liability. This Essay argues that the second line is the correct one. Courts should be allowed to enter declaratory or other anticipatory judgments about takings liability, as long as they respect the limited nature of …