Law Commons^™

Sidewalk Government, Michael C. Pollack

Articles

This Article is about one of the most used, least studied spaces in the country: the sidewalk.

It is easy to think of sidewalks simply as spaces for pedestrians, and that is exactly how most scholars, policymakers, and laws treat them. But this view is fundamentally mistaken. In big cities and small towns, sidewalks are also where we gather, demonstrate, dine, exercise, rest, and shop. They are host to commerce and infrastructure. They are spaces of public access and sources of private obligation. And in all of these things, sidewalks are sites of under-appreciated conflict. The centrality of sidewalks in …

Vietnam's "Entire People Ownership" Of Land: Theory And Practice, Phan Trung Hien, Hugh D. Spitzer

Articles

The Constitution of Vietnam declares that “[t]he Socialist Republic of Vietnam State is a socialist rule of law State of the People, by the People, and for the People.” It also states that land is “under ownership by the entire people represented and uniformly managed by the State.” This means the entire people of Vietnam are collective landowners and the Vietnam State is their “representative.” Given that, how might the public execute its real ownership—rather than treating “people’s ownership” as just a slogan? This article analyzes the gaps in theory and practice in Vietnam, a country with a robust market …

(Some) Land Back...Sort Of: The Transfer Of Federal Public Lands To Indian Tribes Since 1970, Audrey Glendenning, Martin Nie, Monte Mills

Articles

Federal public lands in the United States were carved from the territories of Native Nations and, in nearly every instance, required that the United States extinguish pre-existing aboriginal title. Following acquisition of these lands, the federal government pursued various strategies for them, including disposal to states and private parties, managing lands to allow for multiple uses, and conservation or protection. After over a century of such varied approaches, the modern public landscape is a complex milieu of public and private interests, laws and policies, and patchwork ownership patterns. This complexity depends on—and begins with—the history of Indigenous dispossession but subsequent …

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 …

Judicial Federalization Doctrine, Gerald S. Dickinson

Articles

This Article explores the concept of “judicial federalization doctrine.” The doctrine emanates from well-documented areas of federal constitutional law, including exactions, racially motivated peremptory challenges, the exclusionary rule, same-sex sodomy, marriage, and freedom of speech and press. The origin and development of these federal doctrines, however, is anything but federal. The U.S. Supreme Court has, on rare occasions, heavily consulted with or borrowed from state court doctrines to create a new federal jurisprudence. While the literature addressing the Court’s occasional vertical dependence on state court doctrine is sparse, there is a complete absence of scholarly attention studying the Court’s reluctance …

Title Theft, Stewart E. Sterk

Articles

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 …

A Theory Of Federalization Doctrine, Gerald S. Dickinson

Articles

The doctrine of federalization—the practice of the U.S. Supreme Court consulting state laws or adopting state court doctrines to guide and inform federal constitutional law—is an underappreciated field of study within American constitutional law. Compared to the vast collection of scholarly literature and judicial rulings addressing the outsized influence Supreme Court doctrine and federal constitutional law exert over state court doctrines and state legislative enactments, the opposite phenomenon of the states shaping Supreme Court doctrine and federal constitutional law has been under-addressed. This lack of attention to such a singular feature of American federalism is striking and has resulted in …

Takings Federalization, Gerald S. Dickinson

Articles

Federal constitutional law exerts an outsized role and influence over state constitutional law. In takings, Supreme Court jurisprudence has dominated state court interpretations of analogous state constitutional takings provisions. This does not mean, however, that the Supreme Court always leads and the state courts always follow. At times, the opposite is true. There is, indeed, an underappreciated and under addressed role reversal in which the Supreme Court follows the lead of state courts. State takings doctrines have, on limited occasions, influenced federal takings jurisprudence. This federalization of takings is a distinct feature of judicial dual sovereignty where the Supreme Court …

How The Blockchain Undermined Digital Ownership, Aaron Perzanowski

Articles

The shift from a market built around the sale of tangible goods to one premised on the licensing of digital content and services has done significant and lasting damage to the notion of individual ownership. The emergence of blockchain technology, while certainly not necessary to reverse these trends, promised an opportunity to attract investment and demonstrate consumer demand for marketplaces that recognize meaningful digital ownership. Simultaneously, it offered an avenue for alleviating worries about hypothetical widespread reproduction and unchecked distribution of copyrighted works. Instead, many of the most visible blockchain projects in recent years—the proliferation of new cryptocurrencies and the …

Generalized Creditors And Particularized Creditors: Against A Unified Theory Of Standing In Bankruptcy, David G. Carlson, Jeanne L. Schroeder

Articles

Courts have struggled toward a unified theory to explain when the trustee has exclusive jurisdiction to sue a third party for harms done to a bankrupt debtor, and when creditors have exclusive jurisdiction to sue the third party. Courts have proclaimed that when every creditor can sue the third party, then none of them can, and the right belongs solely to the trustee. Creditor rights are “generalized.” If only a proper subset of creditors can sue the third party, then the trustee is not able to subrogate to the subset. Such creditors are “particularized.” This paper proclaims the test a …

Inheriting Citizenship, Scott Titshaw

Articles

Most of us become citizens at birth based either on our birthplace or our parents' citizenship status. Over thirty countries recognize birthplace citizenship, but inherited citizenship is nearly universal. Such universal legal rules are rare, and they are particularly remarkable in the context of citizenship, where state sovereignty is near its apex. This Article explores why inherited citizenship is necessary, even in nations recognizing birthplace citizenship. It surveys the history, definitions, purposes, current rules, politics, and global trends in this area and identifies three modern categories of birthright citizenship laws: primary inherited citizenship systems, dual inherited and birthplace systems, and …

Love In The Time Of Covid, Jeanne L. Schroeder

Articles

A striking aspect of the current American cultural divide is divergent attitudes towards expertise, generally, and masking and vaccination to mitigate the Covid-19 pandemic, specifically. Liberal pundits profess shock that Red State America won’t just ‘trust the science’. On the right, politicians and television personalities reject mandates in the name of ‘freedom’.

Lacanian discourse theory gives insight into this. The rejection of expertise is an example of an ‘hysteric discourse’ challenging a ‘university discourse’: the regime of experts. An hysteric discourse is a critique of rules imposed by experts by the subjects-subjected-to them. Hysteria can lead, in turn, to a …

Trade Transparency: A Call For Surfacing Unseen Deals, Kathleen Claussen

Articles

For many years, the executive branch has concluded foreign commercial agreements with trading partners pursuant to delegated authority from Congress. The deals govern the contours of a wide range of U.S. inbound and outbound trade: from food safety rules for imported products to procedures and specifications of exported goods, to name two. The problem is that often no one-apart from the executive branch negotiators- knows what these deals contain. A lack of transparency rules has inhibited the publication of and reporting to Congress of these unseen deals. Dozens if not hundreds of foreign commercial deals are unseen in two ways: …

Property Law For The Ages, Michael C. Pollack, Lior Jacob Strahilevitz

Articles

Within the next forty years, the number of Americans over age sixty-five is projected to nearly double. This seismic demographic shift will necessitate a reckoning in several areas of law and policy, but property law is especially unprepared. Built primarily for young and middle-aged white men, the common law of property has been critiqued for decades for the ways in which it oppresses or simply leaves behind people based on their race, sex, Native heritage, and more. This Article contributes a new focus on property law’s treatment of people based on their advanced age. Burdened by higher relocation costs, more …

Fraudulent Transfers: Void And Voidable, David G. Carlson

Articles

This Article explores the civil procedure attendant to private fraudulent transfer litigation (primarily outside the context of bankruptcy). In such litigation, courts ponder whether fraudulent transfers are void or voidable. In fact, they are both simultaneously! According to the theory "at law," a fraudulent transfer is "void." That is, a creditor with a judgment could simply levy the property from a fraudulent grantee as if the grantee had no property rights. This Article questions the constitutional viability of this ancient attitude. Meanwhile, "equity" viewed the transfer as voidable. The grantee gets title, but the title might be set aside. The …

Preserve Mccall: A Proposed Public-Private Land Exchange, Stephen R. Miller

Articles

No abstract provided.

Fraudulent Transfer As A Tort, David G. Carlson

Articles

Fraudulent transfer law has historically been an in rem right of a creditor to property fraudulently received by a third party. In a minority of states, courts have treated fraudulent transfers as creating an in personam liability of the transferring debtor, the recipient, and any other third party who "conspired" with the transferor to achieve the transfer. This Article examines the wisdom of this modern trend and finds it wanting. The United States Supreme Court in 1861 was correct: fraudulent transfers are not wrongs. They merely create in rem rights.

Climate-Induced Human Displacement And Conservation Lands, Jessica Owley

Articles

As climate change leads to both internal displacement and mass migrations, we need not only new places for people to live but also new locations for infrastructure projects and other public needs. Some of the most attractive areas for these new land uses are currently unoccupied land, including land set aside for conservation. Numerous laws restrict the availability and possible uses of public conservation land. Individual agreements and property restrictions encumber private conservation land, varying in the ease with which the restrictions can be modified. For example, privately protected areas in the United States are often encumbered with perpetual conservation …

There Will Be Floods: Armoring The People Of Florida To Make Informed Decisions On Flood Risk, Natalie N. Barefoot, Daniela Tagtachian, Abigail L. Fleming, Gabriela Falla, Bethany Blakeman, Natalie Cavellier

Articles

In Florida, a peninsula surrounded by water with the second-lowest mean elevation in the country, there will be floods.[1] A global study ranking cities most vulnerable to losses from flooding lists Miami first in the United States and sixth globally; Tampa-St. Petersburg is listed as 16th globally.[2] Yet there are no state statutes or regulations in Florida that require a seller or landlord to make flood-related disclosures to homebuyers and renters. In contrast, while varying in scope, 29 states require flood-risk disclosures in real estate transactions.[3] Though Florida should be leading in this arena, in an evaluation of nationwide flood …

Fraying The Knot: Marital Property, Probate, And Practical Problems With Tribal Bans, Suzianne D. Painter-Thorne

Articles

In the summer of 2015, marriage equality advocates celebrated the Supreme Court’s decision in Obergefell v. Hodges, which struck down state prohibitions on same-sex marriage.The Court found that “[t]he right of same-sex couples to marry . . . is part of the liberty promised by the Fourteenth Amendment.” Two years earlier, the Court had struck down parts of the federal Defense of Marriage Act (DOMA), finding that the federal government could not discriminate against same-sex married partners. With these two decisions, the Court ensured that the marriages of same-sex couples would be recognized by the federal government and in …

A Knock On Knick's Revival Of Federal Takings Litigation, Stewart Sterk, Michael C. Pollack

Articles

In Knick v. Township of Scott, the United States Supreme Court held that a landowner who claimed to have suffered a taking at the hands of state or local officials could seek redress in federal court without the need to first seek compensation through state proceedings. This holding raises serious theoretical and practical concerns. On the theoretical side, Knick rests on the implicit assumption that states separate powers among branches of government in the same way the federal government does. It also relies on a second assumption: that relegating taking claims to state court makes them unique. Neither is …

Tools For Data Governance, Michael J. Madison

Articles

This article describes the challenges of data governance in terms of the broader framework of knowledge commons governance, an institutional approach to governing shared knowledge, information, and data resources. Knowledge commons governance highlights the potential for effective community- and collective-based governance of knowledge resources. The article focuses on key concepts within the knowledge commons framework rather than on specific law and public policy questions, directing the attention of researchers and policymakers to critical inquiry regarding relevant social groups and relevant data “things.” Both concepts are key tools for effective data governance.

Acts Of Meaning, Resource Diagrams, And Essential Learning Behaviors: The Design Evolution Of Lost & Found, Owen Gottlieb, Ian Schreiber

Articles

Lost & Found is a tabletop-to-mobile game series designed for teaching medieval religious legal systems. The long-term goals of the project are to change the discourse around religious laws, such as foregrounding the prosocial aspects of religious law such as collaboration, cooperation, and communal sustainability. This design case focuses on the evolution of the design of the mechanics and core systems in the first two tabletop games in the series, informed by over three and a half years’ worth of design notes, playable prototypes, outside design consultations, internal design reviews, playtests, and interviews.

Intratextual And Intradoctrinal Dimensions Of The Constitutional Home, Gerald S. Dickinson

Articles

The home has been lifted to a special pantheon of rights and protections in American constitutional law. Until recently, a conception of special protections for the home in the Fifth Amendment Takings Clause was under-addressed by scholars. However, a contemporary and robust academic treatment of a home-centric takings doctrine merits a different approach to construction and interpretation: the intratextual and intradoctrinal implications of a coherent set of homebound protections across the Bill of Rights, including the Takings Clause.

Intratextualism and intradoctrinalism are interpretive methods of juxtaposing non-adjoining and adjoining clauses in the Constitution and Supreme Court doctrines to find patterns …

Ostrom Amongst The Machines: Blockchain As A Knowledge Commons, Herminio Bodon, Pedro Bustamante, Marcela Gomez, Prashabnt Krishnamurthy, Michael J. Madison, Ilia Murtazashvili, Jennifer Brick Murtazashvili, Tymofiy Mylovanov, Martin B. H. Weiss

Articles

Blockchains are distributed ledger technologies that allow the recording of any data structure, including money, property titles, and contracts. In this paper, we suggest that Hayekian political economy is especially well suited to explain how blockchain emerged, but that Elinor Ostrom’s approach to commons governance is particularly useful to understand why blockchain anarchy is successful. Our central conclusions are that the blockchain can be thought of as a spontaneous order, as Hayek anticipated, as well as a knowledge commons, as Ostrom’s studies of self-governance anticipated.

Understanding The Complicated Landscape Of Civil War Monuments, Jessica Owley, Jess Phelps

Articles

This essay examines the controversy regarding confederate monuments and attempts to contextualize this debate within the current preservation framework. While much attention has been paid to this topic over the past year, particularly with regard to "public" monuments, such discussion has generally failed to recognize the varied and complicated property law layers involved which can fundamentally change the legal requirements for modification or removal. We propose a spectrum or framework for assessing these resources ranging from public to private, and we explore the messy space in-between these poles where most monuments actually fall. By highlighting these categories, we provide an …

Is Blockchain The Next Step In The Evolution Chain Of [Market] Intermediaries?, Marcela Gomez, Pedro Bustamante, Martin B. H. Weiss, Ilia Murtazashvili, Michael J. Madison, Wilson Law, Tymofiy Mylovanov, Herminio Bodon, Prashabnt Krishnamurthy

Articles

The blockchain is a decentralized solution for handling transactions where we are concerned (among other aspects) with the accuracy and verification of transactions. One of its main promises is to eliminate the need for centralized entities or intermediaries and legal enforcement. Rather than trusting self-interested human intermediaries, the blockchain provides an alternative that relies on transparent computational protocols (Werbach 2018).

In this paper, we delve into this broker-less claim and analyze whether the blockchain needs an intermediary to allow for widespread access to its functionality and whether the blockchain itself is an intermediary. The latter would turn the blockchain into …

State Constitutional General Welfare Doctrine, Gerald S. Dickinson

Articles

It is black-letter law that the U.S. Supreme Court’s takings doctrine presupposes exercises of eminent domain are in pursuit of valid public uses that require just compensation. But, neither federal doctrine nor the text of the Takings Clause offers any additional constraints. The story of the Supreme Court’s takings jurisprudence is, in other words, incomplete and deserves reexamination. However, the usual protagonists, such as the Supreme Court or federal courts, are not central to this Article’s reexamination. Instead, this Article’s narrative is federalism, its characters are state courts, and its script is state constitutions.

In the post-Kelo v. New London …

Climate Change Challenges For Land Conservation: Rethinking Conservation Easements, Strategies, And Tools, Jessica Owley, Federico Cheever, Adena R. Rissman, M. Rebecca Shaw, Barton H. Thompson Jr., W. William Weeks

Articles

No abstract provided.

Unforeseen Land Uses: The Effect Of Marijuana Legalization On Land Conservation Programs, Jessica Owley

Articles

This Article explores the tension between land conservation and marijuana cultivation in the context of legalization. The legalization of marijuana has the potential to shift the locations of marijuana cultivation. Where cultivation need no longer be surreptitious and clandestine, growers may begin to explore sanctioned growing sites and methods. Thus, the shift to legalization may be accompanied by environmental and landuse implications. Investigating commercial-scale marijuana cultivation, this Article details how, in some ways, legalization can reduce environmental impacts of marijuana cultivation while also examining tricky issues regarding tensions between protected lands and marijuana cultivation. If we treat cultivation of marijuana …