Law Commons^™

Lis Pendens In Fraudulent Conveyance Claims: Kirkeby V Superior Court, 2004, Roger Bernhardt

Publications

This article discusses a California Supreme Court case which held that an action seeking to void a transfer of real property as a fraudulent conveyance affects title to or right to possession of that property and therefore supports a lis pendens.

On Making And Breaking Contracts, Roger Bernhardt

Publications

This article discusses purchase agreements and the clauses affecting their termination and extension, including the question of when the contract is formed and what happens when a party is defrauded out of a contract rather into one. Also covered are ‘time is of the essence’ issues,.

Premature Notice Of Trustee Sale: Knapp V Dohertym, 2004, Roger Bernhardt

Publications

This article discusses a California case which held that a slightly premature service of notices of a nonjudicial foreclosure sale did not invalidate the sale when the trustor was not prejudiced thereby..

Recovering Sale Expenses After Tenant’S Abandonment: Millikan V American Spectrum. 2004, Roger Bernhardt

Publications

This article discusses a California case which held that a commercial landlord may recover from a tenant the expenses incurred in selling a property after the tenant’s abandonment.

The Economic Loss Rule: Robinson Helicopter V Dana (2004), Roger Bernhardt

Publications

This article discusses a California Supreme Court case which held that the economic-loss rule does not bar tort recovery—compensatory and punitive damages—in a claim for intentional misrepresentation or fraud independent of a claim for breach of contract as might be applied to construction litigation.

All Party Oireachtas Committee On The Constitution Ninth Progress Report, Tom Dunne

Reports

Ireland, like many other countries with high rates of economic growth, is urbanising rapidly. There has been considerable emphasis on planning for this through the National Development Plan, the National Spatial Strategy, development guidelines and other measures. Through these the state intends that a proper planning process will lead growth rather than leaving it to market forces to drive development in what are regarded as undesirable directions. The latter it is feared will lead to unsuitable social, economic or physical outcomes. Unintended results have flowed from the implementation, or flawed implementation of many of these policies and have given rise …

Public Ruses, Christopher Serkin, James E. Krier

Vanderbilt Law School Faculty Publications

The Fifth Amendment's public use requirement - a dead letter for decades - has recently been resurrected by the Michigan Supreme Court, overruling Poletown, and by the United States Supreme Court, granting certiorari in Kelo v. City of New London. At issue in these cases is the government's ability to condemn property from one private property owner and retransfer it to another, usually with a justification of more-or-less indirect economic benefits to the community. This Essay first argues the legitimacy of these government actions exists on a spectrum from true public uses, to public ruses that primarily benefit private interests …

Association Of American Law Schools Conference: Transcript Of The Sections On Natural Resources In Atlanta, Georgia, Barlow Burke

Articles in Law Reviews & Other Academic Journals

At the end of August 2003, representatives of Alabama, Florida, and Georgia ceased negotiating over a water apportionment formula for an interstate compact governing the Apalachicola-Chattahoochee-Flint ("ACF') River Basin ("the Basin" or "the River Basin"). The negotiations began in 1998 after the states stepped back from ongoing litigation. They ended with the probability of future litigation, which might involve the doctrine of equitable apportionment in federal courts and could invoke the original jurisdiction of the United States Supreme Court. The negotiations were the meat of a litigation sandwich. A panel discussed the reasons for the negotiations' failure at the meeting …

A New Time For Denominators - Toward A Dynamic Theory Of Property In The Regulatory Takings Relevant Parcel Analysis, Danaya C. Wright

UF Law Faculty Publications

This Article explores the question of how the courts should calculate the denominator in the just compensation equation. The denominator is the amount of property a claimant owns, against which the effects of regulation will be measured. If a landowner owns a single acre that is severely regulated, the takings fraction for the amount of property taken compared to that owned will approach one. If, on the other hand, the landowner owns 100 acres and only one is regulated, the amount of harm is only 1% in comparison to the total amount owned. This Article advocates a paradigm shift in …

Property Rights And Intrabrand Restraints, Alan J. Meese

Faculty Publications

Intrabrand restraints limit the discretion of one or more sellers-usually dealers-with respect to the disposition of a product sold under a single brand. While most scholars believe that such contracts can help assure optimal promotion of a manufacturer's products, there is disagreement about the exact manner in which such restraints accomplish this objective. Many scholars believe that such restraints themselves induce dealers to engage in promotional activities desired by the manufacturer. Others believe that such restraints merely serve as "performance bonds," which dealers will forfeit if they fail to follow the manufacturer's precise promotional instructions. Some scholars reject both approaches, …

The Inevitable Failure Of Nuisance-Based Theories Of The Takings Clause: A Reply To Professor Claeys, Stewart E. Sterk

Articles

Rejecting the proposition (advanced by Professor Eric Claeys) that the Rehnquist Court's conservatives have missed an opportunity to transform takings law, this commentary demonstrates that a nuisance-based theory cannot provide a comprehensive basis for takings clause jurisprudence. The commentary further establishes that no plausible vision of originalism supports a nuisance based theory, and concludes by arguing that judicial scrutiny of state and local land use practices is less deferential than it was at the inception of the Rehnquist Court.

The Property "Instinct", Jeffrey E. Stake

Articles by Maurer Faculty

No abstract provided.

Brief Of Alain De Foucauld As Amicus Curiae In R.M.S. Titanic, Inc. V. The Wrecked And Abandoned Vessel, John Paul Jones

Law Faculty Publications

From the Summary of Argument:

The court below erred in its judgment that the procès verbal of October 20, 1993 should be refused recognition because it is contrary to French law. Article 13 of Decree No. 61-1547 (Dec. 21, 1961) does empower a maritime affairs administrator to award goods to a salvor under the conditions of this case, and there is no basis, in the record or in comity, for a conclusion to the contrary. Legislative acts in Canada and the United Kingdom affording administrative officers in those countries similar powers in cases of wreck and salvage persuade that, to …

The Narratives Of Cyberspace Law (Or, Learning From Casablanca), Michael J. Madison

Articles

Cyberspace scholars have wrestled extensively with the question of the "right" metaphorical approach to the Internet, in order to guide legal and policy decisions. Literary theorists have wrestled with the perception that cyberspace undermines conventional ideas about narrative. This Essay suggests that each group could learn from the other. Cyberspace tells a better story than literary scholars believe, and the lawyers should pay more attention to the narrative attributes of cyberspace. To illustrate the argument, the Essay proposes a specific story framework for cyberspace: the film Casablanca.

International Human Rights And Indigenous Peoples: The Move Toward The Multicultural State, S. James Anaya

Publications

No abstract provided.

Reforming Foreclosure: The Uniform Nonjudicial Foreclosure Act, Dale A. Whitman, Grant S. Nelson

Faculty Publications

The Uniform Nonjudicial Foreclosure Act is one of the few creative approaches to mortgage foreclosure to emerge in many decades. In this Article, the authors examine why uniformity in foreclosure law among the states in desirable and, accordingly, advocate foreclosure reform. They analyze the Act, promulgated in 2002, giving specific attention to the Act's new methods of foreclosure by negotiated sale and by appraisal. They also examine the Act's numerous special protections for residential debtors and consider the effectiveness of the Act's procedures concerning subordinate leases, titles arising from foreclosures, surpluses and deficiencies resulting from foreclosures, and fairness of foreclosure …

Where Does Creativity Come From? And Other Stories Of Copyright, Michael J. Madison

Articles

This Commentary on Lydia Pallas Loren, Untangling the Web of Music Copyrights, 53 Case W. Res. L. Rev. 673 (2003), observes that debates over a variety of copyright law issues can be - and in fact, often are - structured in narrative terms, rather than in terms of doctrine, policy, or empirical inquiry. I suggest a series of such narratives, each framed by a theme drawn from a feature film. The Commentary suggests that we should recognize more clearly the role of narrative in intellectual property discourse, and that intellectual property narratives should be examined critically.

The Origins Of The American Public Trust Doctrine: What Really Happened In Illinois Central, Joseph D. Kearney, Thomas W. Merrill

Faculty Scholarship

The public trust doctrine has always been controversial. The general rule in American law favors ownership of natural resources as private property. The public trust doctrine, a jarring exception of uncertain dimensions, posits that some resources are subject to a perpetual trust that forecloses private exclusion rights. For environmentalists and preservationists who view private ownership as a source of the degradation of our natural and historical resources, the public trust doctrine holds out the hope of salvation through what amounts to a judicially enforced inalienability rule that locks resources into public ownership. For those who view private property as the …

Three Cases/Four Tales: Commons, Capture, The Public Trust, And Property In Land, Dale Goble

Articles

No abstract provided.

The Recently Revised Marriage Law Of China: The Promise And The Reality, Charles J. Ogletree Jr., Rangita De Silva De Alwis

All Faculty Scholarship

In April 2001, the Standing Committee of the Ninth National People's Congress (NPC), China's highest legislative body, passed the long-debated and much awaited amendments to the Marriage Law on the closing day of its twenty-first session. As stated by one PRC commentator, "In the 50 years since the founding of the New China, there has not been any law that has caused such a widespread concern for ordinary people."'

Even though the recent revisions to the marriage laws have been hailed as some of the most significant and positive changes in family law in China, thus far no empirical evaluation …

Unique Property: An Annotated Bibliography, Nancy Levit, Robert R. M. Verchick

Faculty Works

This bibliography covers law review articles and supplemental A.L.R. entries published after 1997. We also include a handful of especially interesting pieces published in or before 1997, which we believe are just too good to pass up. A.L.R. entries, whose titles are usually self-explanatory, are cited, but not annotated. Similarly, articles that concern only a single case or a single state are cited, but not annotated.

Regulatory Takings Challenges To Historic Preservation Laws After Penn Central, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The Penn Central decision, in its most immediate concern, provided a legal framework within which local governments could enforce historic landmark restrictions without a regular constitutional requirement to pay "just compensation." The decision amalgamated regulatory takings analysis of historic landmark restrictions to the familiar and tolerant federal standards for reviewing zoning. Affirming the importance of the public interest goals of historic preservation, the Court directed inquiry to whether sufficient economic potential remained in the control of the property owner, given reasonable expectations at the time of her investment in the property. While the broader jurisprudential merits of Penn Central's approach …

Home And Homelessness In The Middle Of Nowhere, William I. Miller

Book Chapters

In Iceland one must have a home; it is an offense not to-in some circumstances, a capital offense. A sturdy beggar was liable for full outlawry, which meant he could be killed with impunity. The laws are hard on vagrants. Fornication with a beggar woman was unactionable; it was lawful to castrate a vagabond, and he had no claim if he were injured or killed during the operation. One could take in beggars solely for the purpose of whipping them, nor was one to feed or shelter them at the Thing on pain of lesser outlawry. Their booths at the …

Private Property And The Politics Of Environmental Protection, Thomas W. Merrill

Faculty Scholarship

Private property plays two opposing roles in stories about the environment. In the story favored by most environmentalists, private property is the bad guy. It balkanizes an interconnected ecosystem into artificial units of individual ownership. Owners of these finite parcels have little incentive to invest in ecosystem resources and every incentive to dump polluting wastes onto other parcels. Only by relocating control over natural resources in some central authority like the federal government, can we make integrated decisions designed to preserve the health of the entire ecosystem. For these traditional environmentalists, private property is the problem; public control is the …

Summary Of Department Of Human Resources V. Ullmer, 120 Nev. Adv. Rep. 16, Mike Feliciano

Nevada Supreme Court Summaries

Appeal of an order granting a motion for injunctive relief.

Summary Of Department Of Human Resources V. Ullmer, 120 Nev. Adv. Rep. 16, Mike Feliciano

Nevada Supreme Court Summaries

Appeal of an order granting a motion for injunctive relief.

Summary Of State, Department Of Transportation V. Cowan, 120 Nev. Adv. Op. No. 90, Beth Rosenblum

Nevada Supreme Court Summaries

Appeal and cross-appeal from a judgment of the Eighth Judicial District Court, State of Nevada, awarding damages to the lessee of property condemned by the Nevada Department of Transportation (NDOT).

Information Costs In Patent And Copyright, Clarisa Long

Faculty Scholarship

Why do we have more than one form of intellectual property rights? Why are the structures of the patent and copyright forms so different? What determines the optimal structure of each form? The conventional theory of intellectual property rights posits that such rights exist to stimulate the creation and distribution of intellectual goods.1 Alternatively, theories of personhood justify intellectual property rights on the grounds that they protect objects through which authors and inventors have expressed their “wills,” which is central to self-definition and personhood, or that they create social conditions supportive of creative intellectual activity, which in turn is conducive …

Ordering (And Order In) The City, Nicole Stelle Garnett

Journal Articles

Over the past two decades, the broken windows hypothesis by George Kelling and James Q. Wilson has revolutionized thinking about urban policy. This now-familiar theory is that uncorrected manifestations of disorder, even minor ones like broken windows, signal a breakdown in the social order that accelerates neighborhood decline. The response to this theory has been a proliferation of policies focusing on public order. Largely missing from the academic debate about these developments is a discussion of the complex and important role of property regulation in order-maintenance efforts. This Article attempts to fill that property law gap in the public-order puzzle …

Public Ruses, James E. Krier, Christopher Serkin

Articles

The public use requirement of eminent domain law may be working its way back into the United States Constitution. To be sure, the words "public use" appear in the document-and in many state constitutions as well, but the federal provision applies to the states in any event-as one of the Fifth Amendment's limitations on the government's inherent power to take private property against the will of its owners. (The other limitation is that "just compensation" must be paid, of which more later.) Any taking of private property, the text suggests, must be for public use. Those words, however, have amounted …