Law Commons^™

Parks And Separation: How The Mississippi Legislature Decided Just Compensation In Bay Point Properties, Inc. V. Mississippi Transportation Commission, Kyle Usner

Mississippi College Law Review

At first glance, Bay Point comes across as the standard, run-of-the-mill eminent domain case: the government contracts with a citizen for an express easement over privately-owned land limited to a certain use; the government then exceeds the scope of that easement, resulting in a taking. Governmental taking is usually not anything outside of the norm. But with a potential seven billion dollars' worth of federally funded highway projects destined for Mississippi highway only a Presidential signature away from being approved, this decision is not one Mississippi landowners should ignore. Further, the crux of Bay Point lies with an issue of …

Redefining The Injury-In-Fact: Treating Personally Identifying Information As Bailed Property, Austin Headrick

Georgia Law Review

There is a long-existing circuit split among federal courts of appeals as to whether an individual has standing under Article III of the United States Constitution when their personally identifying information (PII) is stolen from an entity to which they entrusted it such as a hospital or bank. Federal courts disagree as to whether an individual whose PII has been stolen—without more—has suffered an injury-in-fact, a necessary element of standing. The disagreement between the courts centers on whether the injury-in-fact has already occurred at the time the PII is stolen or whether the injury occurs once the PII has been …

Title Theft, Stewart E. Sterk

Washington and Lee Law Review Online

Real property owners across the country have been targeted by scammers who prepare deeds purporting to convey title to property the scammers do not own. Sometimes, the true owners are entirely unaware of these bogus transfers. In other instances, the scammers use misrepresentation to induce unsophisticated owners to sign documents they do not understand.

Property doctrine protects owners against forgery and fraud—the primary vehicles scammers use in their efforts to transfer title. Owners enjoy protection not only against the scammers themselves, but generally against unsuspecting purchasers to whom the scammers transfer purported title.

Recovery of title, however, involves costs and …

Contract-Wrapped Property, Danielle D'Onfro

Scholarship@WashULaw

For nearly two centuries, the law has allowed servitudes that “run with” real property while consistently refusing to permit servitudes attached to personal property. That is, owners of land can establish new, specific requirements for the property that bind all future owners—but owners of chattels cannot. In recent decades, however, firms have increasingly begun relying on contract provisions that purport to bind future owners of chattels. These developments began in the context of software licensing, but they have started to migrate to chattels not encumbered by software. Courts encountering these provisions have mostly missed their significance, focusing instead on questions …

Operationalising Progressive Ideas About Property: Resilient Property, Scale, And Systemic Compromise, Marc L. Roark, Lorna Fox O'Mahony

Articles, Chapters in Books and Other Contributions to Scholarly Works

Property theory is at a crossroads. In recent decades, scholars seeking to advance progressive ideas about property have embraced ‘Progressive Property’ theories that seek to advance the goals of social justice and the common good, offering a vital counter-weight to utilitarian and neo-conservative accounts of property. Progressive Property theories seek to correct an imbalance in American property discourse which—across the temporal scale—has sustained a range of narratives and normative commitments, but which has veered towards extreme acquisitive individualism and the rhetoric of property absolutism since the 1970s. The idea that individual property rights are not absolute but defined by the …

Soil Governance And Private Property, Sarah J. Fox

Utah Law Review

This is an Article about soil. In consequence, it is also an Article about our relationship to land, and about how that relationship can and must change to confront the many environmental crises facing the United States. Questions about our relationship with the physical environment around us necessarily come to the fore in conversations about soil because of its several identities. It is one of Earth’s most precious resources—the substance responsible for allowing plants to grow, filtering pollutants out of water, providing habitat to countless organisms, sequestering carbon, and providing many other valuable functions. Soil also, however, makes up the …

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 …

Tending Gardens, Ploughing Fields, And The Unexamined Drift To Constructive Takings At Common Law, Douglas C. Harris

All Faculty Publications

Expropriation law in Canada has operated on the basis of two presumptions at common law: that compensation is owing for the compulsory acquisition of property unless specifically indicated otherwise by statute; and, that no compensation is owing for land use regulation unless specifically provided for by statute. In its decision in Annapolis Group Inc. v Halifax Regional Municipality, the Supreme Court of Canada abandoned the second presumption that compensation for land use regulation required a statutory foundation. The majority and dissent proceed on the unexamined foundation that there is a common law basis for compensation in claims for constructive takings …

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 …

Natural Law, Assumptions, And Humility, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

This review of Natural Property Rights celebrates Eric Claeys’s efforts to resuscitate natural law as a viable approach to property law. Although readers unlikely to be convinced that natural law is the way to best understand property rights, Claeys succeeds in breathing new life into natural law. Natural Property Rights’ emphasis on use as property law’s fundamental value creates space to reconceptualize the rights of property owners and the place of non-owners within a just theory of property rights. The main critiques of Natural Property Rights offered in this review center around the choice to prioritize rights over duties and …

The Development Of An Expectations Theory Of Patent Law By Creating A Nexus With John Locke's Theory Of Private Property, Jason D. Newman

Electronic Thesis and Dissertation Repository

Abstract

This thesis reviews the Lockean justification of private physical property as an explanation for patent “property,” identifies its weaknesses, and modifies it to create a new theory of patent law based on expectations. After describing the characteristics of technical information, that description is applied to three different interpretations of the Lockean condition which demonstrate a strain in defining technical knowledge as property. The technical information paradigm is then applied to an expectations theory, which demonstrates a broad connection to the Lockean conditions, but maintains a fit within a wider patent law interpretation. The expectations theory also creates an avenue …

Law School News: Joyce And Bill Cummings Of Cummings Foundation To Deliver Keynote Address At Rwu Commencement 4-20-2023, Jill Rodrigues

Life of the Law School (1993- )

No abstract provided.

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 …

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

Vanderbilt Law School Faculty Publications

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 …

Heirs' Property In Virginia: Filling In The Gaps, J. Noble Pearson, Lillian Coward

Virginia Coastal Policy Center

The term heirs’ property refers to land that has been passed down informally for multiple generations through intestate succession. Each generation of intestate succession can drastically increase the number of heirs who own the property as tenants-in-common to the point that many may not even know their heirship status. This clouds the title to the property and makes ownership more fractionalized. Because heirs’ property exists outside of the official estate and title systems, owners are vulnerable both at the community and individual levels for three main reasons.

First, and most importantly, heirs’ property is a leading cause of involuntary Black …

Property's Boundaries, James Toomey

Elisabeth Haub School of Law Faculty Publications

Property law has a boundary problem. Courts are routinely called upon to decide whether certain kinds of things can be owned--cells, genes, organs, gametes, embryos, corpses, personal data, and more. Under prevailing contemporary theories of property law, questions like these have no justiciable answers. Because property has no conceptual essence, they maintain, its boundaries are arbitrary--a flexible normative choice more properly legislative than judicial.

This Article instead offers a straightforward descriptive theory of property's boundaries. The common law of property is legitimated by its basis in the concept of ownership, a descriptive relationship of absolute control that exists outside of …

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 …

Mitigating Catastrophe Risk For Landowners, Stewart E. Sterk

Articles

Local, national, and global catastrophes entail significant risk for landowners. The government-sponsored National Flood Insurance Program illustrates how subsidizing insurance against catastrophe risk can result in overinvestment in risk-prone properties. Government intervention, however, has largely been a response to the historical failure of the private insurance industry to provide adequate protection against correlated risks, a failure with the potential to generate underinvestment in land and devastate existing owners.

When data is available about the incidence and severity of potential disasters, improvements in technology have made it more feasible for insurers to calibrate premiums and discounts with greater accuracy, and sophisticated …

Property And Sovereignty In America: A History Of Title Registries & Jurisdictional Power, K-Sue Park

Georgetown Law Faculty Publications and Other Works

This Article tells an untold history of the American title registry—a colonial bureaucratic innovation that, though overlooked and understudied, constitutes one of the most fundamental elements of the U.S. property system today. Prior scholars have focused exclusively on its role in catalyzing property markets, while mostly ignoring their main sources in the colonies -- expropriated lands and enslaved people. This analysis centers the institution’s work of organizing and “proving” claims that were not only individual but collective, to affirm encroachments on tribal nations’ lands and scaffold colonies’ tenuous but growing political, jurisdictional power. In other words, American property and property …

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.”

Making Virtual Things, Joshua A.T. Fairfield

Scholarly Articles

People value virtual things—such as NFTs—because such assets trigger and satisfy deep-seated narratives of property and ownership. The cause of the recent series of failures to regulate virtual assets, and the resulting crashes, has been a failure to take seriously the ways people perceive and use the assets. Current legal frameworks fail to support buyers’ and users’ expectations of ownership in virtual things they purchase.

Making virtual things is a matter of social construction of value. Virtual things, like real-world things, have value because a community values them for a purpose. It therefore makes no sense to discount how and …

Rationing Access, Roy Baharad, Gideon Parchomovsky

All Faculty Scholarship

Protection of common natural resources is one of the foremost challenges facing our society. Since Garrett Hardin published his immensely influential The Tragedy of the Commons, theorists have contemplated the best way to save common-pool resources—national parks, fisheries, heritage sites, and fragile ecosystems—from overuse and extinction. These efforts have given rise to three principal methods: private ownership, community governance, and use restrictions. In this Essay, we present a different solution to the commons problem that has eluded the attention of theorists: access rationing. Access rationing measures rely not only on restrictions on the number of users but also on …

On The Rightful Deprivation Of Rights, Frederick Schauer

Notre Dame Law Review

When people are deprived of their property rights so that the state can build a highway, a school, or a hospital, they are typically compensated through what is commonly referred to as “takings” doctrine. But when people are deprived of their free speech rights because of a clear and present danger, or deprived of their equal protection, due process, or free exercise rights because of a “compelling” governmental interest, they typically get nothing. Why this is so, and whether it should be so, is the puzzle that motivates this Article. Drawing on the philosophical literature on conflicts of rights and …

Remedying The Immortal: The Doctrine Of Accession And Patented Human Cell Lines, Julia E. Fissore-O'Leary

Notre Dame Law Review

Importantly, though this Note employs Henrietta Lacks as the illustrative, paradigmatic case for the theory of accession it proposes, accession can be, and should be, broadly construed to apply to all like-situated patients. Part I of this Note briefly explains the timeless human-body-as-property debate. Next, Part II addresses the concept of accession—its theoretical underpinnings, definitions, and amenability to this and other lawsuits. Part III applies accession to HeLa and develops a methodology for calculating damages in this unique setting. This Note does not pretend to present a perfectly wrought formula. Instead, it offers several possibilities for determining compensation. Finally, …

Compulsory Terms In Property, Timothy M. Mulvaney

Northwestern University Law Review

The state’s imposition of compulsory terms in property relations—such as habitability warranties binding landlords and tenants and minimum wages binding employers and employees—has long been conceived by analysts generally situated on the political right as an affront to individual freedom and inevitably harmful to the terms’ intended beneficiaries. This critique, though, seems to have special purchase in public discourse today not only within its traditional circle of supporters on the right but, at least in some instances, for a sizable number on the left as well. The bipartisan acceptance of this critique is serving as a substantial roadblock to a …

Property Law And Inequality: Lessons From Racially Restrictive Covenants, Carol M. Rose

Northwestern University Law Review

A long-standing justification for the institution of property is that it encourages effort and planning, enabling not only individual wealth creation but, indirectly, wealth creation for an entire society. Equal opportunity is a precondition for this happy outcome, but some have argued that past inequalities of opportunity have distorted wealth distribution in contemporary America. This article explores the possible role of property law in such a distortion, using the historical example of racially restrictive covenants in the first half of the twentieth century. I will argue that the increasing professionalization and standardization of real estate practices in that era included …