Law Commons^™

Real Estate Documents Turn Green, Richard J. Sobelsohn

Faculty Scholarship

No abstract provided.

Who Should Be Providing Mortgage Credit To American Households?, David J. Reiss

Faculty Scholarship

No abstract provided.

Progressive Property Moving Forward, Timothy M. Mulvaney

Faculty Scholarship

In his thought-provoking recent article, “The Ambition and Transformative Potential of Progressive Property,” Ezra Rosser contends that, in the course of laying the foundations of a theory grounded in property’s social nature, scholars who participated in the renowned 2009 Cornell symposium on progressive property have “glossed over” property law’s continuing conquest of American Indian lands and the inheritance of privileges that stem from property-based discrimination against African Americans. I fully share Rosser’s concerns regarding past and continuing racialized acquisition and distribution, if not always his characterization of the select progressive works he critiques. Where I focus in this essay, though, …

Reforming Property Law To Address Devastating Land Loss, Thomas W. Mitchell

Faculty Scholarship

Tenancy-in-common ownership represents the most widespread form of common ownership of real property in the United States. Such ownership under the default rules also represents the most unstable ownership of real property in this country. Thousands of tenancy-in-common property owners, including members of many poor and minority families, have lost their commonly-owned property due to court-ordered, forced partition sales as well as much of their real estate wealth associated with such ownership as a result of such sales. Though some scholars and the media have highlighted how thousands of African-Americans have lost an untold amount of property and substantial real …

Property And Democratic Deliberation: The Numerus Clausus Principle And Democratic Experimentalism In Property Law, Anna Di Robilant

Faculty Scholarship

First-year law students soon become familiar with the numerus clausus principle in property law. The principle holds that there is a limited menu of available standard property forms (the estates, the different types of common or joint ownership, the different types of servitudes) and that new forms are hardly ever introduced. Over the last fifty years, however, property law has changed dramatically. A wealth of new property forms has been added to the list. This dynamism in the list has remained largely unexplored and is the subject of this Article. This Article focuses on a selection of recently created property …

Barking Dogs: Code Enforcement Is All Barkand No Bite (Unless The Inspectors Have Assult Rifles), Marilyn Uzdavines

Faculty Scholarship

In Detroit, Michigan, in 2014, 1 broken windows, a roof caving in, and a yard that had not been maintained for years is the view for its residents in a blighted and unstable neighborhood. Code enforcement inspectors are nowhereto be found. The local code enforcement department lacks the resources, manpower, and strategic plan to deal with blight on a massive scale

Requiem For Regulation, Garrett Power

Faculty Scholarship

This comment reviews U.S. Supreme Court decisions over the past 100 years which have considered the constitutional limitations on governmental powers. It finds that at the three-quarter mark of the 20th century, a remarkable set of Court precedents had swollen the regulatory powers of governments while shrinking private rights to property and contract. But since the Reagan years, a more conservative Court has undertaken to curtail governmental activity in general, and to limit federal, state, and local planning in particular. A number of 5-4 decisions expanded private property rights and contracted the scope of the federal “commerce power.” The comment …

The Digital Death Conundrum: How Federal And State Laws Prevent Fiduciaries From Managing Digital Property, Christina L. Kunz, Damien A. Riehl, James D. Lamm, Peter J. Rademacher

Faculty Scholarship

This article discusses four types of fiduciaries, each of which is affected by the vast growth in and the need to manage digital property. The article begins by defining digital property and discussing why it must be managed. The article then discusses how digital property affects powers of attorney, conservatorships, probate administration, and trusts. After illustrating the problems that digital property creates for each fiduciary, the article shifts to resolving these problems. It begins by debunking purported solutions by both private and governmental entities. It concludes by offering a holistic approach to resolving the conflicts facing account holders, fiduciaries, and …

Why Restate The Bundle? The Disintegration Of The Restatement Of Property, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

The American Law Institute (ALI) has devoted a great deal of time and energy to restating the law of property. To date, the ALI has produced 17 volumes that bear the name First, Second, or Third Restatement of Property. There is unquestionably much that is valuable in these materials. On the whole, however, the effort has been a disappointment. Some volumes seek faithfully to restate the consensus view of the law; others are transparently devoted to law reform. The ratio of reform to restatement has increased over time, to the point where significant portions of the Third Restatement …

Social Hierarchies And The Formation Of Customary Property Law In Pre-Industrial China And England, Taisu Zhang

Faculty Scholarship

Comparative lawyers and economists have often assumed that traditional Chinese laws and customs reinforced the economic and political dominance of elites and, therefore, were unusually “despotic” towards the poor. Such assumptions are highly questionable: Quite the opposite, one of the most striking characteristics of Qing and Republican property institutions is that they often gave significantly greater economic protection to the poorer segments of society than comparable institutions in early modern England. In particular, Chinese property customs afforded much stronger powers of redemption to landowners who had pawned their land. In both societies, land-pawning occurred far more frequently among poorer households …

Anti-Waste, Michael Pappas

Faculty Scholarship

It may be a bad idea to waste resources, but is it illegal? Legally speaking, what does “waste” even mean? Though the concept may appear completely subjective, this Article builds a framework for understanding how the law identifies and addresses waste.

Drawing upon property and natural resource doctrines, the Article finds that the law selects from a menu of five specific, and sometimes competing, societal values to define waste. The values are: 1) economic efficiency, 2) human flourishing, 3) concern for future generations, 4) stability and consistency, and 5) ecological concerns. The law recognizes waste in terms of one or …

Mortgage Modification And Strategic Behavior: Evidence From A Legal Settlement With Countrywide, Christopher Mayer, Edward R. Morrison, Tomasz Piskorski, Arpit Gupta

Faculty Scholarship

We investigate whether homeowners respond strategically to news of mortgage modification programs. We exploit plausibly exogenous variation in modification policy induced by settlement of U.S. state government lawsuits against Countrywide Financial Corporation, which agreed to offer modifications to seriously delinquent borrowers. Using a difference-in-difference framework, we find that Countrywide's monthly delinquency rate increased more than 0.54 percentage points – ten percent relative increase – immediately after the settlement's announcement. The estimated increase in default rates is largest among borrowers least likely to default otherwise. These results suggest that strategic behavior should be an important consideration in designing mortgage modification programs.

Coasean Bargaining In Consumer Bankruptcy, Edward R. Morrison

Faculty Scholarship

During my first weeks as a graduate student in economics, a professor described the Coase Theorem as “nearly a tautology:” Assume a world in which bargaining is costless. If there are gains from trade, the Theorem tells us, the parties will trade. The initial assignment of property rights will not affect the final allocation because the parties will bargain (costlessly) to an efficient outcome. “How can that be a theorem?,” I remember thinking at the time.

Property And The Right To Exclude Ii, Thomas W. Merrill

Faculty Scholarship

In 1998 I published a short essay entitled Property and the Right to Exclude. It appeared in an issue of the Nebraska Law Review honoring Lawrence Berger, a long-time property professor at Nebraska. The essay has been rather widely cited, but I have my doubts as to whether it has been widely read. A review of citations in Westlaw suggests that the essay is commonly identified as arguing that the right to exclude is the "sine qua non" of property, a statement that appears in the opening paragraph. The typical citing author takes this to mean that …