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Full-Text Articles in Law
A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald J. Kochan
A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald J. Kochan
Michigan Journal of Environmental & Administrative Law
Our land use control system operates across a variety of multidimensional and dynamic categories. Learning to navigate within and between these categories requires an appreciation for their interconnected, dynamic, and textured components and an awareness of alternative mechanisms for achieving one’s land use control preferences and one’s desired ends. Whether seeking to minimize controls as a property owner or attempting to place controls on the land uses of another, one should take time to understand the full ecology of the system. This Article looks at four broad categories of control: (1) no controls, or the state of nature; (2) judicial …
Passive Takings: The State's Affirmative Duty To Protect Property, Christopher Serkin
Passive Takings: The State's Affirmative Duty To Protect Property, Christopher Serkin
Michigan Law Review
The purpose of the Fifth Amendment’s Takings Clause is to protect property owners from the most significant costs of legal transitions. Paradigmatically, a regulatory taking involves a government action that interferes with expectations about the content of property rights. Legal change has therefore always been central to regulatory takings claims. This Article argues that it does not need to be and that governments can violate the Takings Clause by failing to act in the face of a changing world. This argument represents much more than a minor refinement of takings law because recognizing governmental liability for failing to act means …
Property's Morale, Nestor M. Davidson
Property's Morale, Nestor M. Davidson
Michigan Law Review
A foundational argument long invoked to justify stable property rights is that property law must protect settled expectations. Respect for expectations unites otherwise disparate strands of property theory focused on ex ante incentives, individual identity, and community. It also privileges resistance to legal transitions that transgress reliance interests. When changes in law unsettle expectations, such changes are thought to generate disincentives that Frank Michelman famously labeled "demoralization costs." Although rarely approached in these terms, arguments for legal certainty reflect underlying psychological assumptions about how people contemplate property rights when choosing whether and how to work, invest, create, bolster identity, join …
Property Rights & The Demands Of Transformation, Bernadette Atuahene
Property Rights & The Demands Of Transformation, Bernadette Atuahene
Michigan Journal of International Law
Countries like those in Southern Africa will never emerge from the indomitable shadow of inequity and the serious threat of backlash unless real property is redistributed; but, the conception of property these countries explicitly or implicitly adopt can adversely affect their ability to redistribute. Under the classical conception of real property (the classical conception), redistribution is difficult because title deed holders are a privileged group who are given nearly absolute property protection. Strangely, the classical conception is ascendant in many transitional states where redistribution is essential. The specific question this Article addresses is: for states where past property dispossession has …
Intellectual Liability, Daniel A. Crane
Intellectual Liability, Daniel A. Crane
Articles
Intellectual property is increasingly a misnomer since the right to exclude is the defining characteristic of property and incentives to engage in inventive and creative activity are increasingly being granted in the form of liability rights (which allow the holder of the right to collect a royalty from users) rather than property rights (which allow the holder of the right to exclude others from using the invention or creation). Much of this recent reorientation in the direction of liability rules arises from a concern over holdout or monopoly power in intellectual property. The debate over whether liability rules or property …
Evolutionary Theory And The Origin Of Property Rights, James E. Krier
Evolutionary Theory And The Origin Of Property Rights, James E. Krier
Articles
For legal scholars, the evolution of property rights has been a topic in search of a theory. My aim here is to draw together various accounts (some of them largely neglected in the legal literature), from dated to modern, and suggest a way they can be melded into a plausible explanation of property's genesis and early development. What results hardly amounts to a theory, but it does suggest an outline for one. Moreover, it provides a primer on the subject, a reasonably solid foundation for thinking and talking about the evolution of property rights.
Accumulation, Anthony Paul Farley
Accumulation, Anthony Paul Farley
Michigan Journal of Race and Law
Anthony Farley brings a focus on class back to Critical Race Theory by exploring the intersection of race and class as a singular concept that finds its creation in the marking of difference through the primal scene of accumulation. Professor Farley's Essay contends that the rule of law is the endless unfolding of that primal scene of accumulation. By choosing to pray for legal relief rather than dismantling the system, the slave chooses enslavement over freedom. Professor Farley discusses the concept of ownership as violence and explains that property rights are the means of protecting the master class until everything …
Three Faces Of Private Property, Michael A. Heller
Three Faces Of Private Property, Michael A. Heller
Articles
Private property is a rather elusive concept. Any kid knows what it means for something to be mine or yours, but grownup legal theorists get flustered when they try to pin down the term. Typically they, actually we, turn to a familiar analytic toolkit: including, for example, Blackstone's image of private property as "sole and despotic dominion"; Hardin's metaphor of the "tragedy of the commons"; and, more generally, the division of ownership into a trilogy of private, commons, and state forms. While each analytic tool has a distinguished pedigree and certain present usefulness, each also imposes a cost because it …
The Tragedy Of The Anticommons: Property In The Transition From Marx To Markets, Michael A. Heller
The Tragedy Of The Anticommons: Property In The Transition From Marx To Markets, Michael A. Heller
Articles
Why are many storefronts in Moscow empty, while street kiosks in front are full of goods? In this Article, Professor Heller develops a theory of anticommons property to help explain the puzzle of empty storefronts and full kiosks. Anticommons property can be understood as the mirror image of commons property. By definition, in a commons, multiple owners are each endowed with the privilege to use a given resource, and no one has the right to exclude another When too many owners hold such privileges of use, the resource is prone to overuse - a tragedy of the commons. Depleted fisheries …
Pragmatism, Feminism, And The Problem Of Bad Coherence, Catharine Pierce Wells
Pragmatism, Feminism, And The Problem Of Bad Coherence, Catharine Pierce Wells
Michigan Law Review
A Review of Reinterpreting Property by Margaret Jane Radin