Law Commons^™

The Dissolution Of The Matrimonial Property Regime And The Succession Rights Of The Surviving Spouse, Maria Álvarez Torné

Cornell Law Faculty Working Papers

These pages are addressed to examining the problems arising from the regulation of the dissolution of the matrimonial property regime on the death of one of the spouses in relation to the determination of the succession rights of the surviving spouse in Private International Law (from now on, PIL). I will specifically try to analyse the conciliation difficulties between what is stipulated in each relevant field after the death of one of the spouses. The surviving spouse’s situation often depends on the simultaneous effect of the matrimonial property regime and also of Succession Law. In fact, this study deals with …

Mississippi River Stories: Lessons From A Century Of Floods And Hurricanes, Sandra Zellmer, Christine Klein

Sandi Zellmer

n the wake of Hurricane Katrina, the nation pondered how a relatively weak Category 3 storm could have destroyed an entire region. Few appreciated the extent to which a flawed federal water development policy transformed this apparently natural disaster into a “manmade” disaster; fewer still appreciated how the disaster was the predictable, and indeed predicted, sequel to almost a century of similar disasters. This article focuses upon three such stories: the Great Flood of 1927, the Midwest Flood of 1993, and Hurricanes Katrina and Rita of 2005. Taken together, the stories reveal important lessons, including the inadequacy of engineered flood …

Background Principles And The Rule Of Law: Fifteen Years After Lucas, James L. Huffman

James L. Huffman

The Supreme Court’s 1992 decision in Lucas v. South Carolina Coastal Council was welcomed by property right advocates. Justice Scalia’s opinion for the Court established a categorical taking where all economic value is lost as a result of regulation. Not surprisingly, advocates of unconstrained environmental and land use regulation were dismayed, although many were quick to suggest (hopefully) that Lucas’s impacts would be minimal since most regulations do not destroy all economic value.

Fifteen years later some who saw only dark clouds on the regulatory horizon as a consequence of Lucas now see a rainbow with a pot of gold …

Background Principles And The Rule Of Law: Fifteen Years After Lucas, James L. Huffman

James L. Huffman

Abstract

The Supreme Court’s 1992 decision in Lucas v. South Carolina Coastal Council was welcomed by property right advocates. Justice Scalia’s opinion for the Court established a categorical taking where all economic value is lost as a result of regulation. Not surprisingly, advocates of unconstrained environmental and land use regulation were dismayed, although many were quick to suggest (hopefully) that Lucas’s impacts would be minimal since most regulations do not destroy all economic value.

Fifteen years later some who saw only dark clouds on the regulatory horizon as a consequence of Lucas now see a rainbow with a pot of …

The Benchmark Of Expectations: Regulatory Takings And Surface Coal Mining, Darren Botello-Samson

Darren Botello-Samson

In 2006, the United States Court of Federal Claims issued a decision in BENCHMARK RESOURCES CORPORATION v. UNITED STATES, a case involving a regulatory takings challenge to enforcement of the Surface Mining Control and Reclamation Act (SMCRA), a federal law regulating the environmental effects of surface coal mining. Such cases are not rare, as the Claims Court has visited this question on a number of occasions. The ruling in BENCHMARK did not depart from the federal judiciary's doctrine on SMCRA takings cases. The ruling is worth noting, however, for the ways in which it highlights the key aspects of a …

Property, Rules, And Property Rules, Emily Sherwin

Cornell Law Faculty Working Papers

This essay examines two aspects of “property rules” in the sense defined by Judge Guido Calabresi and Douglas Melamed. In each case, the form in which property rules are cast is critically important.

The first question addressed is the capacity of property rules to affect behavior prior to and outside litigation. Most economic analysis of property rules and liability rules assumes that the choice between them will guide decisionmaking at the time of a contemplated rights violation, and possibly prior to that time. To have this effect, property rules (and liability rules) must be established by determinate legal rules that …

A Comparative Guide To The Eastern Public Trust Doctrines: Classifications Of States, Property Rights, And State Summaries, Robin K. Craig

Robin K. Craig

Public trust doctrine literature to date has displayed two distinct tendencies, both of which limit comprehensive discussion of the American public trust doctrines. At one end of the spectrum, articles focused on broader legal principles tend to discuss the public trust doctrine, as though a single public trust doctrine pervaded the United States. At the other end, articles focus on how one particular state implements its particular state public trust doctrine. Few articles have grappled with the richness and complexity of public trust philosophies that more comparative approaches to the nation’s public trust doctrines – emphasis on the plural – …

Liberty's Equal?: An Essay On Property's Rhetoric, Steven Semeraro

Steven Semeraro

Legal analysis of the compensation problem in Takings law has shifted its focus from the welfare economics and traditional philosophy to a more or less self-conscious linguistic investigation of the rhetorical devices used to convey the concept of property through language. Insight comes from understanding the signs and categories that our society uses to communicate about and understand property, rather than from a comprehensive view of what is best for society. This essay focuses on a partially concealed rhetorical device that has been repeatedly used by courts to justify the appropriateness of compensating individuals whose property loses some value as …

Searching For Robin Hood: Suggested Legislative Responses To Kelo, Mark Seidenfeld

Mark Seidenfeld

This article is a short essay that employs an economic analysis of the need for and potential abuses of eminent domain used to transfer property from one private entity to another. It adds to the current literature by suggesting that states can establish mechanisms for evaluating and compensating current landowners for the idiosyncratic value they place on their property, and can establish administrative procedures and judicial review essentially to require local governments to auction the opportunity to obtain the property to the private entity that will provide the greatest benefit to the jurisdiction.

Five Myths About Sprawl , Michael E Lewyn

Michael E Lewyn

In Sprawl: A Compact History, Robert Bruegmann, an art historian, has painted a superficially convincing case for the status quo, asserting that sprawl is “a natural result of affluence that occurs in all urbanized societies.” Bruegmann's book has generated glowing media publicity. This article suggests that Bruegmann overestimates the universality of sprawl, by overlooking the differences between pedestrian-friendly cities with some sprawling development and cities in which automobile-dependent sprawl is the only choice available to most consumers. In addition, Bruegmann understates the harmful social effects of sprawl, especially the effect of automobile-dependent development upon non-drivers. Bruegmann also consistently underestimates the …

Comparative Perspectives On Property Rights: The Right To Exclude, Jerry L. Anderson

Jerry L. Anderson

A comparative perspective can help students understand that the bundle of rights we call "property" can be allocated in a variety of ways, in order to serve societal interests. This article examines two variations on the right to exclude, which the American Supreme Court has declared to be "essential" to property ownership. Laotian hunting rights allow public access to private lands, clearly violating the right to exclude but providing important public benefits. Likewise, the right to roam in Britain qualifies the right to exclude to allow public hiking on private land. These examples help students realize that property rights represent …

Litigating The Meaning Of Emancipation: Reconstruction And Post Reconstruction Era Dilemmas Of Freed People And Property, Julie Novkov

Julie Novkov

This article explores how the southern courts managed the policy question of transferring property by bequest in the wake of the Civil War and emancipation. In the years when the infrastructure for Jim Crow was being assembled, many freedmen and freedwomen were able to gain access to property by bequest despite the system’s refusal to endorse broad based land reform. I argue, nonetheless, that these cases carried through a tradition of white patriarchal control of property, rather than heralding the uncertain dawn of a new era of racially egalitarian property rights.

Property, Persona, And Publicity, Deven R. Desai

Deven R. Desai

This article focuses on two interconnected problems posed by the growth of online creation. First, unlike analog creations, important digital creations such as emails are mediated and controlled by second parties. Thus although these creations are core intellectual property, they are not treated as such and service providers terminate or deny access to people’s property all the time. In addition, when one dies, some service providers refuse to grant heirs access to this property. The uneven and unclear management of these creations means that historians and society in general will lose access to perhaps the greatest chronicling of human experience …

The Frontier Of Eminent Domain, Alexandra B. Klass

Alexandra B. Klass

The Supreme Court’s 2005 decision in Kelo v. City of New London brought the issues of takings and public use into the national spotlight. A groundswell of opposition to government-initiated “economic development takings” the Court deemed a public use under the Fifth Amendment led to eminent domain reform legislation in over 30 states. Many people are surprised to learn, however, that another type of economic development taking is alive and well in many western states that are rich in natural resources. In those states, oil, gas, and mining companies have the power of eminent domain under state constitutions or state …

The Frontier Of Eminent Domain, Alexandra B. Klass

Alexandra B. Klass

The Supreme Court’s 2005 decision in Kelo v. City of New London brought the issues of takings and public use into the national spotlight. A groundswell of opposition to government-initiated “economic development takings” the Court deemed a public use under the Fifth Amendment led to eminent domain reform legislation in over 30 states. Many people are surprised to learn, however, that another type of economic development taking is alive and well in many western states that are rich in natural resources. In those states, oil, gas, and mining companies have the power of eminent domain under state constitutions or state …

All Sprawled Out: How The Federal Regulatory System Has Driven Unsustainable Growth, Chad Emerson

Chad Emerson

No abstract provided.

How Do I Love Thee, Let Me Count The Days: Deathbed Marriages In America, Terry L. Turnipseed

Terry L Turnipseed

Should you be able to marry someone who has only days to live? If so, should the government award the surviving spouse the many property rights that ordinarily flow from such a marriage? In almost every state, the only person allowed to challenge the validity of a marriage (or, by extension, the property consequences thereof) after the death of one of the spouses is the surviving spouse! Seems incredible does it not? The heirs of a dying man (or woman) who marries on his (or her) deathbed cannot challenge the marriage post-death. Ironically, the one person allowed to challenge is …

Britain's Right To Roam: Redefining The Landowner's Bundle Of Sticks, Jerry L. Anderson

Jerry L. Anderson

Britain recently enacted a “right to roam” in the Countryside and Rights of Way Act (CRoW) 2000. At first glance, CRoW appears to be a dramatic curtailment of the landowner’s traditional right to exclude; it opens up all private land classified as “mountain, moor, heath, or down” to the public for hiking and picnicking. Yet, when viewed in the light of history, CRoW may be seen as partially restoring to the commoner rights lost during the enclosure period, when the commons system ended. CRoW also represents a return to a functional rather than spatial form of land ownership, allowing more …

Plenty Of Bark, But Not Much Bite: Putting Teeth Back Into Historic Preservation Enforcement In D.C., Winston Sale

Georgetown Law Historic Preservation Papers Series

Washington, D.C. has one of the largest inventories of protected historic buildings of any city in the United States. Over 25,000 structures stand within the city's borders that are either individually landmarked or contributing buildings within a historic district. These buildings are covered by statutory protection designed to prevent alteration or demolition without consultation with the Office of Historic Preservation (HPO) and/or the D.C. Historic Preservation Review Board (HPRB). Enforcement of these protections relies on HPO's inspectors.

While the District currently employs two historic preservation inspectors, recent changes in the structure of HPO and other D.C. bureaucracies brought about a …

The Intersection Of Gender And Early American Historic Preservation: A Case Study Of Ann Pamela Cunningham And Her Mount Vernon Preservation Effort, Jill Teehan

Georgetown Law Historic Preservation Papers Series

American historic preservationists universally credit Ann Pamela Cunningham, the woman who saved George Washington's Mount Vernon home, as the chief architect of the historic preservation movement in the United States. However, little scholarship has considered how Cunningham's social position as a woman significantly contributed to her ability to save Mount Vernon, and thus jumpstart a national movement to save historically significant places. Using Cunningham and the organization she formed, the Mount Vernon Ladies' Association of the Union (MVLA), widely regarded as the nation's first historic preservation society, this paper considers the intersection of gender and early historic preservation in the …

Demolition By Neglect: Repairing Buildings By Repairing Legislation, Anna Martin

Georgetown Law Historic Preservation Papers Series

One of the biggest problems today facing communities with historic preservation ordinances is delinquent owners who don’t have the will or the finances to maintain their historic properties and landmarks. Historic preservation law plays an important role in building a sense of patriotism and community togetherness, fostering education and providing incentives for aesthetically pleasing architecture. When residents can identify with a community, this creates a dialogue and sense of belonging. There are also environmental and psychological impacts of preserving old buildings, since human beings are positively affected by their surroundings when they feel a "sense of place." When buildings in …

Conservation Districts: A Solution For The Deanwood Neighborhood?, Kelly B. Bissinger

Georgetown Law Historic Preservation Papers Series

Preserving and protecting home ownership and the affordable housing in the United States remains a serious concern despite numerous federal programs intended to encourage home ownership and to provide affordable housing to low-income individuals and families. Often times, low-income people live in older, run-down neighborhoods in urban areas. There is a constant threat that developers will purchase properties in these areas in order to demolish or renovate existing structures and redevelop the area (this process is often referred to as "gentrification").

One of the consequences of gentrification is the displacement of low-income residents. In those instances where low-income residents own …

The Public Trust Debate: Implications For Heirs' Property Owners Along The Gullah Coast, Faith R. Rivers

Faith R Rivers

Heirs’ property ownership is a significant problem facing the African American community in the Lowcountry of South Carolina. Heirs’ property generally refers to real property purchased by African Americans and held within families for generations without clear title. The land is owned by a group of relatives – the heirs – who possess fractionated fees as tenants in common. The disposition of tenants in common property is governed by the law of partition. Partition provides for the division of property, or its cash “equivalent,” according to owner interests.

The Lowcountry of South Carolina is the birthplace and central hub of …

Beware Of Greens In Praise Of The Common Law, James L. Huffman

James L. Huffman

Beware of Greens in Praise of the Common Law

James L. Huffman

ABSTRACT

After several decades of general agreement among environmental law scholars and environmentalists that the common law is inadequate to meet the challenges of environmental protection, a few scholars have taken a second look at common law remedies in recent years. Simple pragmatism explains some of this newborn interest in the common law, while for others there has been at least some acceptance of the efficiency arguments made by free market environmentalists since the 1970s. But for the most part the fledgling environmentalist case for revival of common …

Property Rights In A Burial Plot, Remigius Nwabueze

Remigius Nwabueze Dr

No abstract provided.

Inequity In Equity: The Tragedy Of Tenancy In Common For Heirs' Property Onwers Facing Partition In Equity, Faith R. Rivers

Faith R Rivers

This article considers the impact of the default intestacy estate of tenancy in common on African American heirs’ property. This piece considers the evolution of the heirs' property conundrum in the Lowcountry of South Carolina – the birthplace of the dream of African-American land ownership – and explores the implications of this form of property ownership on tenants in common facing partition in courts of equity, particularly in developing Sunbelt communities. Comprehensive property law reform is critically needed. I propose a new legal framework to better regulate the externalities that plague the commons of heirs’ property and achieve more equitable …

Striking A Match In The Historic District: Opposition To Historic Preservation And Responsive Community Building, Sarah N. Conde

Georgetown Law Historic Preservation Papers Series

In her 1981 Stanford Law Review article, Carol Rose articulated as a justification for the historic preservation "vogue" a community building rationale that transformed preservation from an end in itself to a means for community self-definition. Procedurally, Rose argued, preservation laws give communities the power to comment on the direction of development, and impurity of motive does not weaken the cause of community members who use the tools preservation law gives them. Suppose, she suggested, that the primary concern of neighbors is avoiding massive construction, and they emphasize history only as an instrument to oppose change. Such a motive is …

If They Can Raze It, Why Can't I? A Constitutional Analysis Of Statutory And Judicial Religious Exemptions To Historic Preservation Ordinances, Erin Guiffre

Georgetown Law Historic Preservation Papers Series

In 1996, America almost lost a great piece of its history. The Cathedral of Saint Vibiana, located in Los Angeles, was in danger of being destroyed. The "Baroque-inspired Italianate structure" was completed in 1876 by architect Ezra F. Kysor. The cathedral is one of only a few structures from Los Angeles' early history remaining. As an important part of history and a beautiful piece of architecture, the cathedral was listed on California's register of historic places. In 1994, an earthquake damaged part of the building. After an inspection by the building and safety department in 1996, the only portion of …

Three Reasons Why Even Good Property Rights Cause Moral Anxiety, Emily Sherwin

Cornell Law Faculty Publications

Entirely apart from the substantive justification for existing private property rights, there are several reasons why property is, unavoidably, a morally uncomfortable subject.

First, legal property rights are and must be the products of determinate legal rules. As such, they inevitably will diverge in some of their applications from the moral principles that support them.

Second, property rights suffer, more than other legal rights, from problems of transition. Most or all justifications for private property envisage secure rights on which people can and will rely. As a result, there may be genuine moral value in the preservation of rights that …

“Love Don’T Live Here Anymore”: Economic Incentives For A More Equitable Model Of Urban Redevelopment , Michele Alexandre

Michele Alexandre

John Rawls once stated that “the basic [social] structure is just throughout when the advantages of the more fortunate promote the well-being of the least fortunate, that is, when a decrease in their advantages would make the least fortunate even worse off than they are. The basic structure is perfectly just when the prospects of the least fortunate are as great as they can be.” This statement can be applied to the urban renewal context. While the definition of urban renewal changed during the late twentieth and early twenty-first century, the effects of urban renewal have been the same for …