Law Commons^™

Comparing & Contrasting Economic And Natural Law Approaches To Policymaking, Eric Kades

Faculty Publications

Eric Claeys’s monograph, Natural Property Rights, offers a comprehensive and thoughtful articulation of a general theory of property rights rooted in the natural law tradition. This detailed review compares Claeys’s work with the consequentialist law and economics perspective on property. After contrasting their objectives, assumptions, and methodologies this article concludes that, unlike more absolutist approaches, Claeys’s flavor of natural property rights places a modicum of weight on the welfare effects central to economic analysis. This restrained nod in the direction of practicality, however, does not eliminate some of the long-known weaknesses of natural law. Perhaps the most glaring gap …

Crypto In Real Estate Finance, R. Wilson Freyermuth, Christopher K. Odinet, Andrea Tosato

Faculty Publications

Blockchain and cryptocurrencies have ushered in a digital gold rush. But all that glitters is not gold. The latest fad is the use of non-fungible tokens (NFTs) to purchase and finance real estate. Typically, crypto real estate transactions begin with the transfer of title for a residential property into a dedicated business entity, such as a limited liability company. Thereafter, an NFT is ‘minted’ and used to represent the ownership interest in that entity. The real property is then marketed online specifying that, to acquire it, one simply purchases the relevant NFT via a blockchain transfer. Crucially, buyers are expected …

Structural Precarity And Potential In Condominium Governance Design, Andrea Boyack

Faculty Publications

In the early hours of June 24, 2021, half of Champlain Towers South Condominium, a thirteen-story multifamily building located in the Miami suburb of Surfside, collapsed without warning. The Miami Herald called the collapse “unprecedented” in that one wing “simply caved in––for no obvious reason.” The collapse killed ninety-eight people and was the deadliest multifamily building engineering failure in US history. After an arduous search and rescue and safely dismantling the rest of the structure, inquiries sought to determine why this deadly collapse happened. Who was to blame, and what could have been done differently?

Within six months of this …

Whiteness As Contract, Marissa Jackson Sow

Faculty Publications

2020 forced scholars, policymakers, and activists alike to grapple with the impact of “twin pandemics”—the COVID-19 pandemic, which has devastated Black and Indigenous communities, and the scourge of structural and physical state violence against those same communities—on American society. As atrocious acts of anti-Black violence and harassment by law enforcement officers and white civilians are captured on recording devices, the gap between Black people’s human and civil rights and their living conditions has become readily apparent. Less visible human rights abuses camouflaged as private commercial matters, and thus out of the reach of the state, are also increasingly exposed as …

The Importance Of Viewing Property As A System, Lynda L. Butler

Faculty Publications

Can--or should--the American property system adapt to curb the excesses inherent in the dominant form of capitalism? Those extolling the virtues of privatization of resources would likely answer in the negative. Such a response would ignore the core functions and infrastructure of the American institution of property. This Article discusses the structure of property that enables property law to evolve over time, reacting to changing conditions, recognizing informal customs and usages, and otherwise taking into account important feedbacks. It explains how property provides an ordering system of concepts and principles that define and govern relations between a society and its …

Market-Anticipatory Approaches To Rural Property Vacancy, Ann M. Eisenberg

Faculty Publications

No abstract provided.

Third-Party Interests And The Property Law Misfit In Patent Law, Sarah Rajec

Faculty Publications

Courts and scholars have long parsed the characteristics of patent grants and likened them, alternately, to real or personal property law, monopolies, public franchises and other regulatory grants, or a hybrid of these. The characterizations matter, because they can determine how patents are treated for the purposes of administrative review, limitations, and remedies, inter alia. And these varied treatments in turn affect incentives to innovate. Patents are often likened to real property in an effort to maximize rights and allow inventors to internalize all of the benefits from their activities. And courts often turn first to real property analogies when …

The Uniform Basis Rules And Terminating Interests In Trusts Early, F. Ladson Boyle, Howard M. Zaritsky, D. Ryan Wallace

Faculty Publications

The resolution of income tax issues that may arise for trust beneficiaries who dispose of temporal interests in trusts remains relatively obscure. Additional issues exist for subsequent interest holders; the methods that the Code and Regulations prescribe for establishing, maintaining, and potentially recovering basis for successor owners of interests in a trust are not well developed.

In some instances, the trust instrument creating a temporal interest will supply a suitable path for early termination and distribution of assets. In those cases, Sub-chapter J of the Code typically governs the transaction and provides that terminating the trust and distributing its assets …

Right On Time: A Reply To Professors Allen, Claeys, Epstein, Gordon, Holbrook, Mossoff, Rose, And Van Houweling, Dotan Oliar, James Y. Stern

Faculty Publications

A simple observation started us off in writing Right on Time. Studying and teaching intellectual property law, we noticed striking parallels between traditional first possession rules in property law and analagous rules governing the acquisition of patent, copyright, and trademark rights. We thought that established first possession principles could illuminate the workings of IP law. As we dug in, however, it became increasingly clear that our premise wasn’t quite right. While many penetrating commentators had said many penetrating things about first possession, the leading treatments tended to focus on significant individual aspects of the overall issue. What we could …

Property's Problem With Extremes, Lynda L. Butler

Faculty Publications

Western-style property systems are ill-equipped to deal with extremes--extreme poverty, extreme wealth, extreme environmental harm. Though they can effectively handle many problems, the current systems are inherently incapable of providing the types of reform needed to address extreme situations that are straining the fabric of societies--situations that are stressing the integrity of core societal and natural systems to the breaking point. The American property system, in particular, is problematic. The system has a long tradition of strong individual rights and relies primarily on the efficiency norm to operate and shape the incentives of rights holders. The economic model that now …

Murr V. Wisconsin And The Inherent Limits Of Regulatory Takings, Lynda L. Butler

Faculty Publications

This article examines the confusion surrounding constitutional protection of property under the substantive due process and takings clauses, using Murr as a springboard for reconsidering the substantive due process/takings distinction and asking whether the regulatory takings doctrine should remain a viable constitutional concept despite its muddled principles. While powerful reasons support treating as compensable economic regulations that are functionally equivalent to physical takings, important differences between physical and regulatory takings need to be recognized as limits to the degree of equivalence possible and therefore to the regulatory takings doctrine. A look back at the evolutionary paths of substantive due process, …

Responsible Devolution Of Affordable Housing, Andrea Boyack

Faculty Publications

The federal government has been heavily involved in promoting housing affordability since the 1930s and continues to have a critical role to play. Over the past several decades, the federal government has financed affordability by promoting development and income subsidies, but specific allocation decisions have devolved. Housing inequities can best be addressed locally, but only if localities are held to high standards of fairness and regional coordination is facilitated. Successful and sustainable local solutions to housing affordability will also require a substantial financial investment, one that the federal government can and should reliably and adequately provide. Each year, Congress permits …

(Under)Enforcement Of Poor Tenants' Rights, Kathryn A. Sabbeth

Faculty Publications

Millions of tenants in the United States reside in substandard housing conditions ranging from toxic mold to the absence of heat, running water, or electricity. These conditions constitute blatant violations of law. The failure to maintain housing in habitable condition can violate the warranty of habitability, common law torts, and, in some cases, consumer protection and antidiscrimination statutes. Well-settled doctrine allows for tenants’ private rights of action and government enforcement. Yet the laws remain underenforced.

This Article demonstrates that the reason for the underenforcement is that the tenants are poor. While the right to safe housing extends to all tenants, …

Residential Mortgage Default And The Constraints Of Junior Liens, R. Wilson Freyermuth, Dale A. Whitman

Faculty Publications

Our purpose in this Article is to show how and why junior liens impose these constraints on the process of resolving residential mortgage loan defaults, and to suggest some changes in the law that can restore a measure of desirable flexibility for borrowers and servicers in negotiating default resolutions. At the same time, these suggestions take into account, as they must, the need for fairness in respecting the legitimate rights of junior lienholders.

Right On Time: First Possession In Property And Intellectual Property, Dotan Oliar, James Y. Stern

Faculty Publications

How should we allocate property rights in unowned tangible and intangible resources? This Article develops a model of original acquisition that draws together common law doctrines of first possession with original acquisition doctrines in patent, copyright, and trademark law. The common denominator is time: in each context, doctrine involves a trade-off between assigning entitlements to resources earlier or later in the process of their development and use. Early awards risk granting exclusivity to parties who may not be capable of putting resources to their best use. Late awards prolong contests for ownership, which may generate waste or discourage acquisition efforts …

How Bitcoin Functions As Property Law, Eric D. Chason

Faculty Publications

Bitcoin replicates many of the formal aspects of real estate transactions. Bitcoin transactions have features that closely resemble grantor names, grantee names, legal descriptions, and signatures found in real property deeds. While these “Bitcoin deeds” may be interesting, they are not profound. Bitcoin goes beyond creating simple digital deeds, however, and replicates important institutional aspects of real estate transactions, in particular recordation and title assurance. Deeds to real property are recorded in a central repository (e.g., the public records office), which the parties (and the public) can search to determine title. When one grantor executes more than one deed covering …

Cutting Pension Rights For Public Workers: Don't Look To The Courts For Help, Ronald H. Rosenberg

Faculty Publications

Every day we rely on public employees to provide us with a broad range of services necessary to daily life. These workers include public school teachers, fire and police, emergency medical technicians, park rangers, nurses just to name a few. As public employees, these people work for local and state government and they are compensated by us for their services through the taxes we pay. In general, these are modestly paid workers who also receive pensions when they retire after many years of work. Following the financial crisis of 2008-2009, government retirement trust funds significantly lost value and their long-term …

A Wall Of Hate: Eminent Domain And Interest-Convergence, Philip Lee

Faculty Publications

(Excerpt)

Donald Trump is no stranger to eminent domain. In the 1990s, Trump wanted land around Trump Plaza to build a limousine parking lot. Many of the private owners agreed to sell, but one elderly widow and two brothers who owned a small business refused. Trump then got a government agency—the Casino Reinvestment Development Authority (CRDA)—to take the properties through eminent domain, offering them a quarter of what they had previously paid or been offered for their land.

The property owners fought back and finally won. Although the CRDA named several justifications, from economic development to traffic alleviation and additional …

A Prudential Take On A Prudential Takings Doctrine, Katherine Mims Crocker

Faculty Publications

The Supreme Court is set to decide a case requesting reconsideration of a doctrine that has long bedeviled constitutional litigants and commentators. The case is Knick v. Township of Scott, and the doctrine is the "ripeness" rule from Williamson County Regional Planning Commission v. Hamilton Bank that plaint~ffs seeking to raise takings claims under the Fifth Amendment must pursue state-created remedies first- the so-called "compensation prong" (as distinguished from a separate "takings prong"). This Essay argues that to put the compensation prong in the best light possible, the Court should view the requirement as a "prudential" rule rather than (as …

Are Beach Boundaries Enforceable? Real-Time Locational Uncertainty And The Right To Exclude, Josh Eagle

Faculty Publications

Over the past few decades, landowners have tried to use the First, Fourth, and Fifth Amendments to fully privatize the upper, dry-sand part of the beach. If these efforts were to succeed, there would be a host of negative consequences, and not just for surfers. In most of the states in which beaches are economically important, including California, Florida, New Jersey and Texas, privatized dry sand would mean little to no public access at times when the public, wet-sand part of the beach is submerged, that is, in the hours immediately before and after high tides. Decreased beach use would …

Sustainable Affordable Housing, Andrea Boyack

Faculty Publications

Sustainable real estate development is an essential component of intergenerational justice, in part because the real estate sector creates more than 20% of the world’s carbon emissions. Governments, recognizing that environmentally sustainable real estate development involves higher upfront costs, have encouraged green building by offering publicly funded incentives such as tax credits, grants, reduced approval fees, and streamlined permitting. Using market measurement innovations such as the Dow Jones Sustainability Index, investors can promote environmentally sustainable development by prioritizing real estate developers that embrace environmentally conscious practices. Even though real estate in general still underperforms in many other sectors in terms …

The Natural Property Rights Straitjacket: The Takings Clause, Taxation, And Excessive Rigidity, Eric Kades

Faculty Publications

Natural property rights theories have become the primary lens through which conservative jurists and scholars view the Constitution’s main property rights provision, the Takings Clause. One of their most striking arguments is that progressive income taxation — applying higher tax rates to higher incomes — is an unconstitutional taking of wealthy taxpayers’ property. This has become part and parcel of well-established battle lines between conservative property rights advocates and their liberal counterparts. What has gone unnoticed is that the very same argument deployed against progressive taxation also deems regressive taxation — applying lower tax rates to higher incomes — an …

The "Publicization" Of Private Space, Sarah B. Schindler

Faculty Publications

Recently, many urban areas have moved away from the creation of publicly owned open spaces and toward privately owned public open spaces, or POPOS. These POPOS take many forms: concrete plazas that separate a building from the sidewalk; glass-windowed atriums in downtown office buildings; rooftop terraces and gardens; and grass-covered spaces that appear to be traditional parks. This Article considers the nature of POPOS and examines whether they live up to expectations about the role that public space should play and the value it should provide to communities. This is especially important because in embracing POPOS, cities have made a …

The New Model Negotiated Alternative To The Foreclosure Act, R. Wilson Freyermuth, Dale A. Whitman

Faculty Publications

One of the many painful lessons learned from the mortgage crisis that began in 2007 is that foreclosure is often a costly, slow, inefficient, and uncertain process. The additional cost and uncertainty for lenders are magnified when the balance of the mortgage debt exceeds the value of the collateral (that is, when the borrower is “underwater”), and thus full recovery by the lender of its investment is unlikely. Ways to avoid this misery are for the lender (usually represented by the servicer for a secondary market purchaser or a securitized trust) and the borrower to enter into a deed in …

Limiting The Collective Right To Exclude, Andrea Boyack

Faculty Publications

For decades, society’s disparate interests and priorities have stymied attempts to resolve issues of housing affordability and equity. Zoning law and servitude law, both of which have been robustly empowered by decades of jurisprudence, effectively grant communities the legal right and ability to exclude various sorts of residences from their wealthiest neighborhoods. Exclusion by housing type results in exclusion of categories of people, namely, renters, the relatively poor, and racial minorities. Although our society’s housing woes may indeed be intractable if we continue to treat a group’s right to exclude with the level of deference that such exclusionary efforts currently …

Property As A Management Institution, Lynda L. Butler

Faculty Publications

No abstract provided.

Side By Side: Revitalizing Urban Cores And Ensuring Residential Diversity, Andrea Boyack

Faculty Publications

Fifty years ago, the Reverend Martin Luther King, Jr. expressed a hope that someday people of all races would “live side by side in decent, safe, and sanitary housing.” Residential patterns in America today, however, remain highly segregated by race and income. The Fair Housing Act outlawed overt housing discrimination and unjustified discriminatory impacts, but zoning laws and housing finance structures have continued to impede housing integration, leaving communities nearly as racially homogenous as they were in the mid 20th century. These separate neighborhoods are far from equal. The majority of people who reside in financially distressed city-center neighborhoods are …

Equitably Housing (Almost) Half A Nation Of Renters, Andrea Boyack

Faculty Publications

America’s population of renters is growing faster than the supply of available rental units. Rental vacancies are reaching new lows, and rental rates are reaching new highs. Millions of former homeowners have lost their homes in foreclosure and, due to today’s much tighter mortgage underwriting realities, will not realistically re-enter the ranks of owner-occupants. For a number of reasons – variety of incomes, different stages in life, and a range of personal preferences and lifestyles – homeownership is not for everyone. And yet federal government housing policy has consistently prioritized homeownership over renter-specific issues, such as affordability and rental supply …

Fixing A Broken Common Law -- Has The Property Law Of Easements And Covenants Been Reformed By A Restatement, Ronald H. Rosenberg

Faculty Publications

No abstract provided.

A New American Dream For Detroit, Andrea Boyack

Faculty Publications

The problem of neighborhood deterioration is keenly visible in Detroit today, but Detroit’s housing struggles are not unique. Like most of America, the Detroit metropolitan area is racially fragmented, and minority neighborhoods are the most likely to be impoverished and failing. Detroit’s problems of housing abandonment and neighborhood decay are both caused and exacerbated by decades of housing segregation and inequality. The “American Dream” has always been one of equal opportunity, but there can be no equality of opportunity when there is such stark inequality among home environments. Detroit’s neighborhood decline is a symptom of the city’s population loss and …