Law Commons^™

Fee Simple Failures: Rural Landscapes And Race, Jessica A. Shoemaker

Michigan Law Review

Property law’s roots are rural. America pursued an early agrarian vision that understood real property rights as instrumental to achieving a country of free, engaged citizens who cared for their communities and stewarded their physical place in it. But we have drifted far from this ideal. Today, American agriculture is industrialized, and rural communities are in decline. The fee simple ownership form has failed every agrarian objective but one: the maintenance of white landownership. For it was also embedded in the original American experiment that land ownership would be racialized for the benefit of its white citizens, through acts of …

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

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 …

The Accession Insight And Patent Infringement Remedies, Peter Lee

Michigan Law Review

What is the appropriate allocation of rights and obligations when one party, without authorization, substantially improves the property of another? According to the doctrine of accession, a good faith improver may take title to such improved property, subject to compensating the original owner for the value of the source materials. While shifting title to a converter seems like a remarkable remedy, this outcome merely underscores the equitable nature of accession, which aims for fair allocation of property rights and compensation between two parties who both have plausible claims to an improved asset. This Article draws upon accession-a physical property doctrine …

Property And Relative Status, Nestor M. Davidson

Michigan Law Review

Property does many things-it incentivizes productive activity, facilitates exchange, forms an integral part of individual identity, and shapes communities. But property does something equally fundamental: it communicates. And perhaps the most ubiquitous and important messages that property communicates have to do with relative status, with the material world defining and reinforcing a variety of economic, social, and cultural hierarchies. This status-signalingf unction of property-withp roperty serving as an important locus for symbolic meaning through which people compare themselves to others-complicates premises underlying central discourses in contemporary property theory. In particular, status signaling can skew property's incentive and allocative benefits, leading …

Property Rules, Liability Rules, And Uncertainty About Property Rights, Stewart E. Sterk

Michigan Law Review

Clarity can be a considerable virtue in property rights. But even when property rights are defined clearly in the abstract, ascertaining the scope of those rights in concrete situations often entails significant cost. In some instances, the cost of acquiring information about the scope of property rights will exceed the social value of that information. In those circumstances, further search for information about the scope of rights is inefficient; the social harm avoided by further search does not justify the costs of the search. Potential resource users, however make decisions based on private costs and benefits, not social costs and …

Exclusion Confusion? A Defense Of The Federal Circuit's Specific Exclusion Jurisprudence, Peter Curtis Magic

Michigan Law Review

Specific exclusion has become a controversial limitation on the doctrine of equivalents, which is itself an essential and controversial area of patent law. The doctrine of equivalents allows a patentee to successfully claim infringement against devices that are outside of the literal reach of the language used by the patentee in her patent to describe what she claims as her invention. The Supreme Court has prescribed some of the outer limits of the doctrine of equivalents and articulated the underlying policy concerns that inform its analysis-noting that courts should balance protection of the patentee's intellectual property with the public's reasonable …

The Fourth Amendment And New Technologies: Constitutional Myths And The Case For Caution, Orin S. Kerr

Michigan Law Review

To one who values federalism, federal preemption of state law may significantly threaten the autonomy and core regulatory authority of The Supreme Court recently considered whether a1mmg an infrared thermal imaging device at a suspect's home can violate the Fourth Amendment. Kyllo v. United States announced a new and comprehensive rule: the government's warrantless use of senseenhancing technology that is "not in general use" violates the Fourth Amendment when it yields "details of the home that would previously have been unknowable without physical intrusion." Justice Scalia's majority opinion acknowledged that the Court's rule was not needed to resolve the case …

Pragmatism, Feminism, And The Problem Of Bad Coherence, Catharine Pierce Wells

Michigan Law Review

A Review of Reinterpreting Property by Margaret Jane Radin

Chix Nix Bundle-O-Stix: A Feminist Critique Of The Disaggregation Of Property, Jeanne L. Schroeder

Michigan Law Review

Property was dead, to begin with. The coroner, Wesley Newcomb Hohfeld, revealed that the unity, tangibility, and objectivity of property perceived by our ancestors was a phantom. Property is, in fact, merely a "bundle of sticks." When conceptualized as a collection of rights, property loses its distinctive qualities and its essence. It therefore does not, or at least should not, exist. Without unity and physicality, property loses its objectivity and can only be a myth. The rabble might still believe in the old gods of property, but the educated "specialists" now know that this was vulgar superstition. Once the populace …

The Nature Of Copyright: A Law Of Users' Rights, Lydia Pallas Loren

Michigan Law Review

A Review of The Nature of Copyright: A Law of Users' Rights by L. Ray Patterson and Stanley W. Lindberg

Icons And Aliens: Law, Aesthetics, And Environmental Change, Scott Schrader

Michigan Law Review

A Review of Icons and Aliens: Law, Aesthetics, and Environmental Change by John J. Costonis

Women And The Law Of Property In Early America, David H. Bromfield

Michigan Law Review

A Review of Women and the Law of Property in Early America by Marylynn Salmon

Republicanism And The Law Of Inheritance In The American Revolutionary Era, Stanley N. Katz

Michigan Law Review

This Article deals with the history of the law of inheritance during the era of the American Revolution, but its focus is actually more general, for it ultimately seeks to determine what sort of revolution we experienced. For the historian the problem is quite familiar, but a few observations seem pertinent. It is at least possible to argue that our colonial forefathers were not waging a revolution at all. Rather, one might say they were fighting what we should now call a colonial war of independence in which the overriding issue was "home rule." On this hypothesis, the main slogan …

Constitutional Law-Fourth Amendment-Exclusion Of Contraband Evidence Obtained By An Illegal Search On Premises Not Owned By Defendant, Edgar A. Strause

Michigan Law Review

The defendant was in the unlawful possession of narcotics. Having been given a key by his two aunts to their hotel room with authority to use the room at will, defendant stored the narcotics there without the knowledge of the occupants. A federal officer entered the hotel room, searched the room, and seized the narcotics during the absence of the occupants, without a search warrant. The defendant was arrested the following day and claimed ownership of the seized narcotics. He was convicted in the District Court of the District of Columbia for violation of federal law, the court refusing to …

Divorce-Separation For Statutory Period As A Ground Of Divorce Regardless Of Fault, William R. Hewitt S.Ed.

Michigan Law Review

H sued W for a divorce on the statutory grounds that the parties had lived apart without cohabitation for ten years. The facts showed that the separation was caused by the willful abandonment of W by H and that H had lived in adultery after the separation and had not contributed to W's support since the separation. The trial court denied the divorce. On appeal, held, reversed. Where H and W have lived apart for the statutory period without cohabitation, H was entitled to the divorce regardless of the cause of the original separation and regardless of his …

Insurance-Gift-Right Of Named Beneficiary Of Life Policy To Proceeds As Against A Donee By Delivery, Bruce L. Moore S.Ed.

Michigan Law Review

Insured, in accordance with the terms of a life insurance policy, named the woman with whom he was then living as beneficiary. Subsequently, he returned to his wife and handed the policy to her with appropriate words indicating an intention to make a present and absolute delivery of it to her as a gift. No notice of a change of beneficiary was given to the insurance company. The policy reserved the right to insured to change the beneficiary by filing a written request with the company, such change to take effect only when indorsed on the policy by the company. …

Domestic Relations-Recent Developments (A Service For Returning Veterans), John S. Bradway

Michigan Law Review

During the past five years family life in America has been subjected to unusual strains. The repercussions of the war, as well as the usual peacetime factors, affecting the domestic circle have received attention of sociologists and lay writers. The legal implications have not made such prompt appearance in published form.

Information as to that part of the impact of family dislocation caused by war is available in many places, none the least important being the records in the offices of legal assistance officers in the armed forces, of the Committees on War Work set up by the American and …

Public Officers - Liability Of Federal Officers For Quasi-Judlcial Acts, Arthur M. Hoffeins

Michigan Law Review

Plaintiff sought to withdraw a registration statement which he had filed with the Securities and Exchange Commission. The commission denied him the right to do so and applied for a court order to enforce a previously issued subpoena to compel the plaintiff to appear before it and to produce books relating to the registration statement. After the Supreme Court had upheld the plaintiff's right to withdraw the statement, he brought an action for damages against the members of the commission for malicious prosecution, libel and slander, etc., alleging in addition that the defendants had acted maliciously and in bad faith. …

Unfair Competition - Unauthorized Broadcasts Of Baseball Games, Michigan Law Review

Michigan Law Review

The Pittsburgh Athletic Club sold to sponsors the exclusive right to broadcast the home baseball games of the Pittsburgh Pirates. The sponsors contracted with the National Broadcasting Corporation for the use of two stations. Station KQV, knowing of this arrangement, posted observers on leased premises outside and overlooking the ball park and proceeded to broadcast play-by-play accounts of the games. Each admission ticket contained a stipulation that the holder was not to transmit or aid in transmitting reports of the games outside the park. The athletic club, the sponsors, and the N.B.C. jointly brought an action for an injunction against …

Municipal Corporations - Liability To Abutting Property Owner For Negligence In Spraying Trees On Highway, Arthur A. Greene Jr.

Michigan Law Review

The defendant, a municipal corporation, used a poison spray on the trees on the highway under the authority and express duty of certain statutes that declared browntail moths and other insects a nuisance. This was done in such a manner that a part of the spray fell on the abutting land of the plaintiff, and caused the death of her poultry. The plaintiff instituted this action, relying on two counts, one alleging negligence and the other alleging an unreasonable use of the highway. Held, that the plaintiff could not recover on the first count because the abatement of this …

Torts - Unfair Competition - Preventing Formation Of Contract, Anthony L. Dividio

Michigan Law Review

The Supreme Court of Minnesota was recently confronted with an interesting problem in the case of Johnson v. Gustafson. Real property was listed by the owner with the plaintiff, a real estate broker, who was to receive a $300 commission if she found a purchaser therefor. The plaintiff interested one Clarity in the property, but no offer to purchase was made. Desiring the property but being unwilling to pay the full price of $6,000, Clarity induced his friend Gustafson to purchase it for $5,700 with Clarity's money, directly from the owner, who had a right to sell it himself …

Contracts - Moral Obligation As Consideration - Promise To Pay For Benefits Previously Received, Michigan Law Review

Michigan Law Review

Plaintiffs, assignees of an oil lease of land, after drilling a dry hole thereon, did not comply with the requirements of their agreement for further development within a stipulated time, in consequence of which there was a formal termination in accordance with the terms of the assignment. An extension of the lease, which the lessees obtained, was assigned to the defendants, who had knowledge of the foregoing circumstances and plaintiffs' claim of a property right in the dry hole. Defendants promised to pay plaintiffs for the use of the dry hole, but subsequently repudiated any liability on the promise. Held …

Injunction-Right To Labor As Property-Clayton Act

Michigan Law Review

The Texas & New Orleans R R engaged in promoting the organization of an association among its clerical employees in the nature of a company union. Its purpose was to secure control over the selection of representatives by the employees in the board of mediation provided for by the Railway Labor Act of 1926 (U. S. C. tit. 45, c. 8, par. 152). The Brotherhood of Railway Clerks sought an injunction against such interference on the ground that the Railway Labor Act prohibited "interference, influence, or coercion exercised by either party over the self-organization or designation of representatives by the …

Inquiry Concerning Justice, Floyd R. Mechem

Michigan Law Review

Justice, said Daniel Webster, "is the greatest interest of man on earth." Alexander Hamilton, in the Federalist, declared "Justice is the end of government. It is the end of civil society. It has ever been, and ever will be, pursued until it be obtained, or until liberty be lost in the pursuit."

Nature And Importance Of Legal Possession, Joseph W. Bingham

Michigan Law Review

To impress these unfamiliar facts on our consciousness, so that we shall not lose sight of them during the rest of our discussion, so that we shall not slur them or cloud them by vague use of symbolic ideas or terms concerning property and title, let us repeat the essence of the legal situation. Jackson is the holder of a fee simple acquired tortiously. His title to that fee--i. e. the facts which would induce the courts upon occasion to give him the remedies "vindicating" the existence of this vested fee in him--consist in his actual exclusive use and control …

Nature And Importance Of Legal Possession, Joseph W. Bingham

Michigan Law Review

The careful student of our law of property needs no demonstration of the importance of legal possession. From before the date of the earliest year book the word possession and its synonym seisin have pervaded legal language and have signified matters of great consequence in the decision of cases. "In the history of our law," say Pollock and Maitland, "there is no idea more cardinal than that of seisin. Even in the law of the present day it plays a part which must be studied by every lawyer; but in the past it was so important that we may almost …