Law Commons^™

Regulatory Taxings, Eduardo M. Peñalver

Cornell Law Faculty Publications

The tension between the Supreme Court's expansive reading of the Takings Clause and the state's virtually limitless power to tax has been repeatedly noted, but has received little systematic exploration. Although some scholars, most notably Richard Epstein, have used the tension between takings law and taxes to argue against the legitimacy of taxation as it is presently practiced, such an approach has failed to gain a significant following. Instead, the broad legal consensus is that legislatures effectively have unlimited authority to impose tax burdens. Nevertheless, this Article demonstrates that every attempt to formulate a "Reconciling Theory," a theory that would …

Agenda: Introduction To The Legal Foundation Of Federal Land Management, University Of Colorado Boulder. Natural Resources Law Center

Introduction to the Legal Foundation of Federal Land Management (December 1-3)

Materials prepared for the course held at the National Center for Atmospheric Research in Boulder, Colorado on December 1-3, 2004

Course instructors: Charles Wilkinson; Sarah Krakoff; Kathryn Mutz; Ann Morgan; Maggie Fox

Contents:

Introduction -- Agenda -- Summaries of laws -- Case studies. Travel management; Oil and gas development; Timber/fuels reduction -- How to influence agency decision makers -- Natural resource related legal and policy resources for the non-legal professional

Introduction To The Legal Foundation Of Federal Land Management, University Of Colorado Boulder. Natural Resources Law Center

Introduction to the Legal Foundation of Federal Land Management (December 1-3)

1 v. (various pagings) : ill., maps ; 28 cm

Materials prepared for the course held at the National Center for Atmospheric Research in Boulder, Colorado on December 1-3, 2004

Course instructors: Charles Wilkinson; Sarah Krakoff; Kathryn Mutz; Ann Morgan; Maggie Fox

Contents:

Introduction -- Agenda -- Summaries of laws -- Case studies. Travel management; Oil and gas development; Timber/fuels reduction -- How to influence agency decision makers -- Natural resource related legal and policy resources for the non-legal professional

Property As Legal Knowledge: Means And Ends, Annelise Riles

Cornell Law Faculty Publications

This article takes anthropologists’ renewed interest in property theory as an opportunity to consider legal theory-making as an ethnographic subject in its own right. My focus is on one particular construct – the instrument, or relation of means to ends, that animates both legal and anthropological theories about property. An analysis of the workings of this construct leads to the conclusion that rather than critique the ends of legal knowledge, the anthropology of property should devote itself to articulating its own means.

Putting Humpty Dumpty Back Together: Pricing In Anticommons Property Arrangements, Ben Depoorter, Sven Vanneste

George Mason University School of Law Working Papers Series

Recently, a new theory has drawn considerable attention in the literature on common property. A number of scholars have pointed to the danger of excessive propertization in the context of what are termed "anticommons" property regimes. Although this theory has found its way into numerous legal and economic applications, the empirical and cognitive foundations of the theory of fragmentation remain unexplored. Based on experimental data, this Article conducts an investigation into the social and personal processes involved in the anticommons.

The results confirm the theoretical proposition that anticommons deadweight losses increase with the degree of complementarity between individual parts and …

Taking Title To Servient Tenements, Roger Bernhardt

Publications

This article previews two California cases where easements were acquired - one through prescription, the other by implication – and where conditions had thereafter changed before the defendants had acquired the servient parcels. The article deals with the question as to how title insurance protects clients who are acquiring property against being held subject to easements that were not recorded.

Private Law And Public Stakes In European Integration: The Case Of Property, Daniela Caruso

Faculty Scholarship

In European legal discourse, the old public/private divide is experiencing a revival and a transformation. Member States used to claim autonomy in private law matters. Now private law is subsumed into a functionalist logic and can presumptively be harmonised if so demanded by the goal of market integration. States or local constituencies can only resist harmonisation by highlighting the connection between their private laws and those ‘public’ matters still immune from Europeanisation. Property law can effectively illustrate this phenomenon. The written pledge of non-interference with States’ property systems, restated both in the TEC and in the draft Constitution, cannot be …

Yes, Thankfully, Euclid Lives, Charles M. Haara, Michael Allan Wolf

UF Law Faculty Publications

Professors Haar and Wolf reiterate their endorsement of Progressive jurisprudence, as embodied in the Supreme Court's opinion in Village of Euclid v. Ambler Realty Co., despite Professor Eric Claeys's effort to expose the political theory underlying Progressive legal thought. They highlight problems with Professor Claeys's portrayal of the actual practice of zoning and with his use of history, problems that seriously undercut Professor Claeys's findings regarding the political beliefs of early zoning and planning advocates, the evolution of zoning law in the courts, and the role natural law played in American legal history.

No Way To Deal With Slums, Bernadette Atuahene

All Faculty Scholarship

No abstract provided.

Revising The Arbitration Clause In Real Estate Contracts, Roger Bernhardt

Publications

This article discusses arbitration clauses between buyers, sellers, and brokers. In California. CCP 1298 is preempted by 9 USC 2, but agreements, however, may still require being initialed. Brokers are cautioned on using the CAR Residential Purchase form because the arbitration clause may be ineffective.

On Software Regulation, Polk Wagner

All Faculty Scholarship

This Article develops a novel analytic framework for the evaluation of regulatory policy in cyberspace, flowing from a reconceptualization of cyberlaw’s central premise: software code as complementary to law rather than its substitute. This approach emphasizes the linkage between law and software; for every quantum of legal-regulatory impact, there is a corresponding equilibria of regulation-bysoftware. The absence of a legal right will stimulate a technological response—and such incentives will moderate with increased rights. Rather than “code is law,” this is “code meets law.” The implications of this methodological shift are explored in the context of the emerging (and intensely controversial) …

Lawyers And Lot Lines, Roger Bernhardt

Publications

This article discusses doctrines dealing with encroachments. An encroachment may be protected by showing that it is permanent and has existed for more than three years; however, there are cases to the contrary. Adverse possession or prescriptive easement theoriues can also be used if the property was possessed for at least five years and other standards are met. Additiionally agreed boundaries and good faith improvements doctrines may apply.

Lawyers And Lot Lines, Roger Bernhardt

Publications

This article discusses doctrines dealing with encroachments. An encroachment may be protected by showing that it is permanent and has existed for more than three years; however, there are cases to the contrary. Adverse possession or prescriptive easement theories can also be used if the property was possessed for at least five years and other standards are met. Additionally, agreed boundaries and good faith improvements doctrines may apply.

Takings Formalism And Regulatory Formulas: Exactions And The Consequences Of Clarity, Mark Fenster

UF Law Faculty Publications

A vocal minority of the U.S. Supreme Court recently announced its suspicion that lower courts and state and local administrative agencies are systematically ignoring constitutional rules intended to limit, through heightened judicial review, exactions as a land use regulatory tool. This article argues that the Court's suspicions are well founded but that blame for judicial and administrative noncompliance lies with the Court's bifurcated approach to the Takings Clause.

Legal Title To Land As An Intervention Against Urban Poverty In Developing Nations, Bernadette Atuahene

All Faculty Scholarship

One intervention intended to ameliorate poverty and its subsidiary effects is the distribution of legal title to land to poor urban dwellers, otherwise known as land titling. Given the billions of dollars that the World Bank, country-based development agencies, regional development banks, and developing countries themselves have spent on land titling programs, it has become one of the most important property law issues confronting the developing world. Several countries have undertaken comprehensive urban land titling programs to transform the dwellings of those who live in the squalor of squatter settlements into assets recognized by the formal sector. This Article accepts …

Modeling A Response To Predatory Lending: The New Jersey Home Ownership Security Act Of 2002, David Reiss, Baher Azmy

Faculty Scholarship

No abstract provided.

The Barry Bonds Baseball Case - An Empirical Approach - Is Fleeting Possession Five Tenths Of The Ball?, Peter Adomeit

Faculty Scholarship

Mr. Barry Bonds hit his record seventy-third home run on October 7, 2001. Mr. Alex Popov was smart enough to be in the standing room only area at San Francisco's Pacific Bell Park behind the right field bleachers known as the Arcade, where Mr. Bonds had hit many of his home runs. Mr. Popov was lucky enough to be located almost precisely where the ball was hit, needing only to take one step back. He also had brought a softball glove to the park, as well as a small earbud radio on which he could listen to the play-by-play of …

Uniform Real Property Electronic Recording Act (Last Revised Or Amended In 2005), Arthur Gaudio , Reporter

Faculty Scholarship

The status of electronic information technology has progressed rapidly in recent years. Innovations in software, hardware, communications technology and security protocols have made it technically feasible to create, sign and transmit real estate transactions electronically. However, approaching the end of the 20^th Century, various state and federal laws limited the enforceability of electronic documents. In response, the Uniform Electronic Transactions Act (UETA) was approved by the National Conference of Commissioners on Uniform State Laws (NCCUSL) in 1999. As of October 1, 2004, UETA had been adopted in 46 states, the District of Columbia, and the U.S. Virgin Islands. The …

Public Shoreline Access In Maine: A Citizen's Guide To Ocean And Coastal Law, John Duff, Cheryl Daigle

Maine Sea Grant Publications

While Maine boasts thousands of miles of coastline, only a small portion of the state's beaches is publicly owned. But even where coastal property is privately owned, the public still has legal rights to intertidal land for certain traditional uses; many Mainers are familiar with the phrase 'fishing, fowling, and navigation.' This document summarizes the history of several key lawsuits highlighting rights to shoreline access in Maine, and also discusses options for securing public access to the Maine coast.

Is Land Special? The Unjustified Preference For Landownership In Regulatory Takings Law, Eduardo M. Peñalver

Cornell Law Faculty Publications

This article critiques the Court's attempt to cabin the Lucas "per se" takings rule by limiting it to real property. It argues that the distinction between real and personal property cannot be justified by history or the differing expectations of property owners. It then applies five theoretical frameworks (libertarian, personhood, utilitarian, public choice, and Thomistic-Aristotelian natural law) and finds that none of them supports the jurisprudential distinction between real and personal property. As a result, the article argues that "because the distinction between personal and real property is an unprincipled one, it cannot save the Court from the unpalatable implications …

Tahoe's Requiem: The Death Of The Scalian View Of Property And Justice, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

Attorney Fees Clause For Compensation But Not Fraud Claims: Hasler V Howard, 2004, Roger Bernhardt

Publications

This article discusses a California case holding that an attorney fees clause in a listing agreement limited to actions regarding broker’s compensation did not cover fees incurred by a broker in seller’s failed fraud action.

Avoiding Judicial Liens In Bankruptcy: Moldo V Charnock, 2004, Roger Bernhardt

Publications

This article discusses a California case which held that 11 USC §522(f)(2) required avoidance of a creditor’s judicial lien, even though that lien was senior to a consensual lien.

Ambiguous Payoff Demands In Escrow: California Nat’L Bank V Havis, 2004, Roger Bernhardt

Publications

This article discusses a California case which held that the use of the term “payoff funds” in a letter advising an escrow agent of the status of a sale transaction did not transform the letter into a payoff demand statement.

Constitutional Rights In Regulating Tenancy In Common Conversions: Tom V San Francisco. 2004, Roger Bernhardt

Publications

This article discusses a case which held an ordinance forbidding residential tenants-in-common agreements from creating exclusive rights of occupancy violated the California constitutional right of privacy.

Creating Vs Disclosing Defective Conditions In Property: Lewis V Chevron, 2004, Roger Bernhardt

Publications

This article discusses a California case which held a prior owner not liable for injuries caused by a defective condition on real property after ownership was relinquished, even if the prior owner negligently created the condition.

Deference To Subsequently Enacted Cc&Rs: Villa De Las Palmas Homeowners V Terifaj, 2004, Roger Bernhardt

Publications

This article discusses a California Supreme Court case which held that restrictions in an amended declaration recorded after the homeowner’s purchase of a condominium unit are binding on that homeowner, and are entitled to the same judicial deference as the restrictions recorded before the purchase.

Enforceability Of Affordable Housing Restrictions: Dieckmeyer V Redevelopment Agency, 2004, Roger Bernhardt

Publications

This article discusses a California case which held that a condominium owner who purchased a unit under an affordable housing program was entitled to prepay the loan but was not entitled to reconveyance of the deed of trust that also secured compliance with the affordable housing restrictions.

Foreclosure Sequencing Of Mixed Collateral: Kearns V Transamerica Home Loan, 2004, Roger Bernhardt

Publications

This article discusses a California case which held that when mixed real an personal property secure a debt, so long as the debt is not reduced to judgment, such security may be foreclosed nonjudicially in any sequence without rendering the real property lien unenforceable.

Landlords Draws Upon Letters Of Credit In Bankruptcy: Redback Networks V Mayan Networks, 2004, Roger Bernhardt

Publications

This article discusses a California case where a landlord was entitled to fully draw down on a tenant’s letter of credit that was smaller than its rent claim and also smaller than a year’s rent.