Law Commons^™

Michelman As Doctrinalist, Gregory S. Alexander

William & Mary Bill of Rights Journal

Presented at the 2004 Brigham-Kanner Property Rights Conference.

Compensation For Property Under The European Convention On Human Rights, Tom Allen

ExpressO

This Article investigates the nature of the right to property guaranteed under the First Protocol to the European Convention on Human Rights ('P1-1'). It argues that the European Court of Human Rights has been torn between two theories of the right to property. The first is the "integrated theory", and it holds that the right to property shares common values and purposes with other Convention rights. Hence, the interpretation of P1-1 should reflect principles developed in the interpretation of other Convention rights. It is argued that the application of the integrated theory should support a "social model" of property. The …

China's Cities, Globalization, And Sustainable Development: Comparative Thoughts On Urban Planning, Energy, And Environmental Policy, Edward H. Ziegler

Edward H Ziegler

This article discusses the development of China’s modern cities and China’s emerging urban planning and growth management programs related to implementing its newly established sustainable development policies. Global sustainable development issues are discussed in the comparative context of future growth and urban development in the United States and China. Issues such as urban sprawl, density of the built environment, energy policy, automobile use, and transportation planning are examined in relation to future urban development and to their potential impact on future resource and energy consumption, and the critical issues of peak oil, global warming, and climate change.

The article notes …

Accrual Of Causes Of Action In Virginia, James W. Ellerman

University of Richmond Law Review

This article will examine major issues in Virginia law affecting the accrual of causes of action, specifically in the contexts of contract, tort, and property. In addition to surveying the basic accrual requirements for each area of law, this article will look more deeply into several specific issues that guide an accrual analysis particularly the distinction between causes and rights of action, as well as the continuous treatment, discovery, and economic loss rules.

Rural Rhetoric, Lisa Pruitt

Lisa R Pruitt

This Article investigates law’s constitutive rhetoric about rural people, places, and livelihoods. Specifically, it considers five categories of judicial opinions that discuss the legal relevance of rurality: judicial self-identification as rural; definitions of rural; line-drawing between rural and urban; taking judicial notice of rural characteristics; and idealized portrayals of the rural. Viewed together, these clusters of opinions reveal a comprehensive – if not entirely coherent – judicial portrait of rurality. They also provide an overview of the many instances when a rural setting is relevant to a legal outcome. Implicated are issues of tort, property, criminal, and constitutional law, among …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Do Foreigners Need Title Insurance In Mexico? - An Analysis Of U.S. Title Insurance And Mexican Real Estate Law, Jeffrey G. Boman

ExpressO

This paper analyzes the title insurance industry in the United States and comparable institutions in Mexico. It begins with an overview of the history of title in both counties, followed by a description of their respective real estate systems. Finally, a summary of the laws that affect holding title to property in Mexico reveals that, although title insurance may provide other benefits for foreign investors, it provides duplicitous coverage for property in Mexico.

Common Law Property Metaphors On The Internet: The Real Problem With The Doctrine Of Cybertrespass, Shyamkrishna Balganesh

Michigan Telecommunications & Technology Law Review

The doctrine of cybertrespass represents one of the most recent attempts by courts to apply concepts and principles from the real world to the virtual world of the Internet. A creation of state common law, the doctrine essentially involved extending the tort of trespass to chattels to the electronic world. Consequently, unauthorized electronic interferences are deemed trespassory intrusions and rendered actionable. The present paper aims to undertake a conceptual study of the evolution of the doctrine, examining the doctrinal modifications courts were required to make to mould the doctrine to meet the specificities of cyberspace. It then uses cybertrespass to …

Acquiring Land Use Rights In Today's China: A Snapshot From On The Ground, Gregory M. Stein

Scholarly Works

For the interested observer of real estate markets, China is the most fascinating place in the world today, and the coming years promise to be no less intriguing than the recent past has been. This Article offers an overview of how a specific segment of the Chinese real estate market - the acquisition of land use rights - operates in practice, from both a legal and business perspective.

I recently interviewed dozens of Chinese and Western experts who are taking part in one of the greatest real estate booms in world history. My conversations with these real estate developers, bankers, …

A Taking Without Just Compensation? The Constitutionality Of Amortization Provisions For Nonconforming Uses, Julie R. Shank

West Virginia Law Review

No abstract provided.

The Partnership: Preserving Capital Gains On Real Estate Investments, Charles E. Mcwilliams

ExpressO

This paper considers the use of partnerships as an effective tool for preserving capital gains on real estate investments. For tax purposes, the Internal Revenue Service generally treats a limited liability company as a partnership. This form of organization is widely used for real estate investments, and by taking a few simple precautions an LLC may ensure that any gain on its investments in undeveloped real property will be treated as capital gains. Such treatment may reduce the LLC’s tax costs substantially.

The Fifth Circuit developed a framework that has proven invaluable for analyzing the activity of the LLC to …

Using Capture Theory And Chronology In Eminent Domain Proceedings, John H. Ryskamp

ExpressO

Capture theory--in which private purpose is substituted for government purpose--sheds light on a technique which is coming into greater use post-Kelo v. New London. That case affirmed that eminent domain use need only be rationally related to a legitimate government purpose. Capture theory focuses litigators' attention on "government purpose." That is a question of fact for the trier of fact. This article shows how to use civil discovery in order to show the Court that private purpose has been substituted for government purpose. If it has, the eminent domain use fails, because the use does not meet minimum scrutiny. This …

Fear And Loathing: Combating Speculation In Local Communities, Ngai Pindell

University of Michigan Journal of Law Reform

Local governments commonly respond to economic and social pressures on property by using their legal power to regulate land uses. These local entities enact regulations that limit property development and use to maintain attractive communities and orderly growth. This Article argues that government entities should employ their expansive land use powers to limit investor speculation in local markets by restricting the resale of residential housing for three years. Investor speculation, and the upward pressure it places on housing prices, threatens the availability of affordable housing as well as the development of stable neighborhoods. Government regulation of investor speculation mirrors existing, …

I Know You Are, But What Am I? A Temporal Approach To Legal Classification, Wendy A. Adams

ExpressO

No real epistemological disagreement exists that legal knowledge can be represented and understood in categorical form. At issue is the extent to which categorical analysis captures the full complexity of legal reasoning. Can legal reasoning be represented as a taxonomy of mutually-exclusive classes, a taxonomy considered necessary if legal certainty and the rule of law are to prevail, or does the complexity of the process defy attempts at exhaustive classification?

The author agrees with those who argue that multiple legal concepts must often be applied simultaneously to resolve legal problems. The author also acknowledges that simultaneous application of multiple concepts …

The "Public Use" Requirement In Eminent Domain Law: A Rationale Based On Secret Purchases And Private Influence, Daniel B. Kelly

ExpressO

This article provides a rationale for understanding and interpreting the “public use” requirement within eminent domain law. The rationale is based on two factors. First, while the government often needs the power of eminent domain to avoid the problem of strategic holdout, private parties are usually able to purchase property through secret buying agents. The availability of these buying agents makes the use of eminent domain for private parties unnecessary (and indeed, undesirable). The government, however, is ordinarily unable to make secret purchases because its plans are subject to democratic deliberation and known in advance. Second, while the use of …

The Children Of Science: Property, People, Or Something In Between?, Star Q. Lopez

ExpressO

How should states classify embryos? The war has often waged between two classifications, people versus property. But what if a state assumed something in between, finding the embryo to be a potential person entitled to special respect? If a state adopted this position, how would the law affect medical research?

Presuming embryos constitute potential persons, the debate would continue with how to define “special respect.” The status of a potential person runs along a spectrum between property and personhood. How one defines “special respect” determines where the potential person falls along this spectrum. Special respect would create a spectrum of …

Race Nuisance: The Politics Of Law In The Jim Crow Era, Rachel D. Godsil

ExpressO

This article explores a startling and previously unnoticed line of cases in which state courts in the Jim Crow era ruled against white plaintiffs trying to use common law nuisance doctrine to achieve residential segregation. These “race-nuisance” cases complicate the view of most legal scholarship that state courts during the Jim Crow era openly eschewed the rule of law in service of white supremacy. Instead, the cases provide rich social historical detail showing southern judges wrestling with their competing allegiance to precedent and the white plaintiffs’ pursuit of racial exclusivity. Surprisingly to many in the academy, the allegiance to precedent …

The Takings Clause, Version 2005: The Legal Process Of Constitutional Property Rights, Mark Fenster

ExpressO

The three takings decisions that the Supreme Court issued at the end of its October 2004 Term marked a stunning reversal of the Court’s efforts the past three decades to use the Takings Clause to define a set of constitutional property rights. The regulatory takings doctrine, which once loomed as a significant threat to the modern regulatory state, now appears after Lingle v. Chevron to be a relatively tame, if complicated, check on exceptional instances of regulatory abuse. At the same time, the Public Use Clause, formerly an inconsequential limitation on the state’s eminent domain authority, now appears ripe for …

Taking State Property Rights Out Of Federal Labor Law, Jeffrey M. Hirsch

ExpressO

Currently, the National Labor Relations Board determines whether union organizers have a right to access employer property by looking almost exclusively to an employer’s state law right-to-exclude. If the employer possesses such a right, an attempt to exclude organizers will generally be lawful; if the employer lacks that right, the exclusions will be unlawful. This analysis makes little sense, as an employer’s state property interests are irrelevant to the primary labor issue in these cases—whether the exclusion interferes with employees’ federal labor rights. Employees will tend to view hostile or discriminatory exclusions of organizing activity as coercive, whether or not …

Land Titling: A Mode Of Privatization With The Potential To Deepen Democracy, Bernadette Atuahene

All Faculty Scholarship

Land titling is a form of privatization in that public assets are transferred to private families and individuals. This is unlike other forms of privatization, however, because there is a systematic diffusion of economic and decision making power down to indigent populations rather than out of the country or up to its local elites. In light of this uniqueness, the question I will grapple with in this Article is, can property ownership, achieved through land titling programs, bolster democracy? First, using Peru as an example, I explain the context that necessitated the creation of land titling and the process by …

American Cities, Suburban Sprawl, And The Threat Of Terrorism, Edward H. Ziegler

Edward H Ziegler

This article explores Aristotle’s statement about politics shaping the design and form of the built environment in the context of urban planning, suburban sprawl, and the threat of terrorism in the United States. The article suggests that sprawl may be accelerated by the threat of terrorism in the United States and discusses sustainable development issues in the context of the terrorist threat to America’s urban places. The article explores how zoning and urban planning policies can make a difference in shaping the form and regional sustainability of our built environment and reduce our reliance on automobiles and foreign oil.

Land Titling: A Mode Of Privatization With The Potential To Deepen Democracy, Bernadette Atuahene

Bernadette Atuahene

Land titling is a form of privatization in that public assets are transferred to private families and individuals. This is unlike other forms of privatization, however, because there is a systematic diffusion of economic and decision making power down to indigent populations rather than out of the country or up to its local elites. In light of this uniqueness, the question I will grapple with in this Article is, can property ownership, achieved through land titling programs, bolster democracy? First, using Peru as an example, I explain the context that necessitated the creation of land titling and the process by …

Respect For Statutory Text Versus ‘Blithe Unconcern’: A Reply To Professor Coverdale, Erik M. Jensen

Faculty Publications

In Tufts v. Commissioner, the Supreme Court in 1983 had concluded that relief from a nonrecourse liability on disposition of property should be reflected in the seller's amount realized, even if the value of the property had dropped below the principal amount of the obligation. Professor Coverdale quite reasonably complained that the statutory definition of amount realized makes no mention of liabilities and that, not quite so reasonably, commentators had shown blithe unconcern about statutory language. A great fan of adhering to statutory language, the author nevertheless argues that interpreters must take into account judicial developments, in this case beginning …

Finding A Right To The City: Exploring Property And Community In Brazil And In The United States, Ngai Pindell

Vanderbilt Journal of Transnational Law

Increasing poor people's access to property and shelter in urban settings raises difficult questions over how to define property and, likewise, how to communicate who is entitled to legal property protections. An international movement--the right to the city--suggests one approach to resolving these questions. This Article primarily explores two principles of the right to the city--the social function of property and the social function of the city--to consider how to better achieve social and economic justice for poor people in urban areas. Using Brazil as one example of a country incorporating these principles within constitutional and statutory provisions and employing …

“One For All: The Problem Of Uniformity Cost In Intellectual Property Law.” American University Law Review 55, No.4 (May 2006): 845-900., Michael W. Carroll

American University Law Review

Intellectual property law protects the owner of each patented invention or copyrighted work of authorship with a largely uniform set of exclusive rights. In the modern context, it is clear that innovators' needs for intellectual property protection vary substantially across industries and among types of innovation. Applying a socially costly, uniform solution to problems of differing magnitudes means that the law necessarily imposes uniformity cost by underprotecting those who invest in certain costly innovations and overprotecting those with low innovation costs or access to alternative appropriability mechanisms. This Article argues that reducing uniformity cost is the central problem for intellectual …

Numerus Clausus: An Economic Perspective, Wei Zhang

Wei Zhang

No abstract provided.

Tomando La Propiedad En Serio: Las Expropiaciones Regulatorias O Indirectas, Enrique Pasquel

Enrique Pasquel

La mayoría de limitaciones a la propiedad se realizan a través de regulaciones, que pueden tener efectos tan nocivos como las expropiaciones físicas. Este trabajo explica los límites que deben tener las expropiaciones regulatorias.

Privaticemos Las Vicuñas: Cómo Eliminar El Peligro De Extinción Y Aprovechar Su Potencial Económico, Enrique Pasquel, Andrés Bayly

Enrique Pasquel

Si se establecieran derechos de propiedad sobre las vicuñas, se evitaría el peligro de extinción, se permitiría desarrollar el mercado de la lana más cara del mundo y se ayudaría a sacar de la pobreza a gran cantidad de gente. Este trabajo explica cómo las políticas de conservación de la vicuña han hecho lo contrario.

Home As A Legal Concept, Benjamin Barros

Benjamin Barros

This article, which is the first comprehensive discussion of the American legal concept of home, makes two major contributions. First, the article systematically examines how homes are treated more favorably than other types of property in a wide range of legal contexts, including criminal law and procedure, torts, privacy, landlord-tenant, debtor-creditor, family law, and income taxation. Second, the article considers the normative issue of whether this favorable treatment is justified. The article draws from material on the psychological concept of home and the cultural history of home throughout this analysis, providing insight into the interests at stake in various legal …

The Patent Cooperation Treaty: At The Center Of The International Patent System, Jay Erstling

Faculty Scholarship

In view of the fact that the PCT is composed of almost 130 countries and that more than 100 national and regional patent offices, as well as WIPO itself, perform PCT functions, it is remarkable that the system operates so smoothly and continues to gain momentum. Perhaps the system’s greatest strength comes from the immense diversity of legal, linguistic, and national cultures that constitute the PCT. While the system has served to harmonize divergent practices, it has also been obliged to accommodate to the sometimes inflexible peculiarities of national law and procedure. The PCT’s ability to strike a balance between …