Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 34

Full-Text Articles in Law

Justice Scalia's Rule Of Law And Law Of Takings, Nicole Stelle Garnett Jan 2017

Justice Scalia's Rule Of Law And Law Of Takings, Nicole Stelle Garnett

Journal Articles

This short essay reviews the regulatory takings legacy of Justice Antonin Scalia, evaluating both its impact on the Supreme Court's takings canon and its consistency with his stated jurisprudential principles.


Freeing The City To Compete, James J. Kelly Jr. Jan 2017

Freeing The City To Compete, James J. Kelly Jr.

Journal Articles

In this paper, I examine how the rights of owners, lenders and residents threaten the functioning of real markets in distressed urban neighborhoods, perpetuating the pall that vacant and abandoned houses cast over their future. Even a single abandoned house can present an example of how the rights of several stakeholders create a form of gridlock known as anticommons, which isolates that property from a potentially transformative transfer of title. In addition to this legal anticommons, some neighborhoods are so beset by vacant property problems that they require coordination of investment that is frustrated by both the multiplicity of private ...


Planning For Density: Promises, Perils And A Paradox, Nicole Stelle Garnett Jan 2017

Planning For Density: Promises, Perils And A Paradox, Nicole Stelle Garnett

Journal Articles

This article, which was delivered as the 2017 Environmental Distinguished Lecture at Florida State University, discussed the promises, perils and an unappreciated paradox of current efforts to use land use policy to densify and urbanize American communities.


Freeing The City To Compete, James J. Kelly Jr. Jan 2017

Freeing The City To Compete, James J. Kelly Jr.

Journal Articles

In this paper, I examine how the rights of owners, lenders and residents threaten the functioning of real markets in distressed urban neighborhoods, perpetuating the pall that vacant and abandoned houses cast over their future. Even a single abandoned house can present an example of how the rights of several stakeholders create a form of gridlock known as anticommons, which isolates that property from a potentially transformative transfer of title. In addition to this legal anticommons, some neighborhoods are so beset by vacant property problems that they require coordination of investment that is frustrated by both the multiplicity of private ...


Sustaining Neighborhoods Of Choice: From Land Bank(Ing) To Land Trust(Ing), James J. Kelly Jr. Jun 2015

Sustaining Neighborhoods Of Choice: From Land Bank(Ing) To Land Trust(Ing), James J. Kelly Jr.

Journal Articles

This essay is based on my closing presentation at the Washburn Law Journal's 2015 symposium entitled “The Future of Housing -- Equity, Stability and Sustainability.” It explores how land banks and land trusts promote social goods, including socioeconomic integration, by connecting with and shielding against, respectively, market forces. Both engage in stewardship of land. Land banks take temporary ownership of vacant, abandoned properties in order to make them available for productive use. Land trusts hold land indefinitely to ensure a social purpose is met. Community land trusts hold land for a purpose that is responsive to the human environment, often ...


How To Kill A Zombie: Strategies For Dealing With The Aftermath Of The Foreclosure Crisis, Judith L. Fox Jun 2015

How To Kill A Zombie: Strategies For Dealing With The Aftermath Of The Foreclosure Crisis, Judith L. Fox

Journal Articles

The foreclosure crisis which began in 2008 is old news; or is it? A lot of attention has been paid to the plight of homeowners struggling to save their homes from foreclosure. Legislative and regulatory changes have made it easier for homeowners to navigate the loss mitigation process. A significant number of people, however, did not try to save their homes. In fact, some actively tried unsuccessfully to give the homes back to their lender. These abandoned homes and abandoned foreclosures have become zombie mortgages. This is the legacy of this crisis.

The existence of these homes is well documented ...


The Future Of Foreclosure Law In The Wake Of The Great Housing Crisis Of 2007-2014, Judy Fox Mar 2015

The Future Of Foreclosure Law In The Wake Of The Great Housing Crisis Of 2007-2014, Judy Fox

Journal Articles

As 2014 came to an end so, perhaps, did the worst foreclosure crisis in U.S. history. On January 15, 2015, RealityTrac, one of the nation’s leading reporters of housing data, declared the foreclosure crisis had ended. Whether or not their declaration proves true, the aftermath of the crisis will be felt for years to come. During the crisis it is estimated more than five million families lost their homes to foreclosure. Federal, state and local responses to the crisis changed laws and perceptions regarding foreclosure. Despite these changes, we end the crisis much the way we began -- with ...


Private Law In The Gaps, Jeffrey A. Pojanowski Jan 2014

Private Law In The Gaps, Jeffrey A. Pojanowski

Journal Articles

Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a ...


The Durability Of Private Claims To Public Property, Bruce R. Huber Jan 2014

The Durability Of Private Claims To Public Property, Bruce R. Huber

Journal Articles

Property rights and resource use are closely related. Scholarly inquiry about their relation, however, tends to emphasize private property arrangements while ignoring public property — property formally owned by government. The well-known tragedies of the commons and anticommons, for example, are generally analyzed with reference to the optimal form and degree of private ownership. But what about property owned by the state? The federal government alone owns nearly one-third of the land area of the United States. One could well ask: is there a tragedy associated with public property, too? If there is, here is what it might look like: private ...


The Right To Include, Daniel B. Kelly Jan 2014

The Right To Include, Daniel B. Kelly

Journal Articles

Recent scholarship has created renewed interest in the “right to exclude.” Many contend that, because owners have a right to exclude, private property has a tendency to promote individualism and exclusion. But, as I will argue, property can promote sociability and inclusion by providing owners with various ways of including others. Owners can assert their “right to include” by waiving exclusion rights, dividing existing rights by contracts or property forms, and creating new co-ownership arrangements. Inclusion is socially beneficial insofar as it enables sharing and exchange, facilitates financing and risk-spreading, and promotes specialization. Yet inclusion may entail costs, including coordination ...


Foreclosure Echo: How Abandoned Foreclosures Are Re-Entering The Market Through Debt Buyers, Judy Fox Jan 2013

Foreclosure Echo: How Abandoned Foreclosures Are Re-Entering The Market Through Debt Buyers, Judy Fox

Journal Articles

It is common knowledge that mortgage defaults increased steadily from 2006 through 2011. In some situations, lenders moved swiftly after default to foreclose the property; but for other homeowners the foreclosure process began and then stalled or was completely abandoned by the lender. The result of these abandoned foreclosures has been devastating to cities and consumers throughout the country. This article explores what is happening to homeowners caught up in the strange world of bank walkaways as the economy is beginning to improve. This second wave of collection activity, an echo of the original foreclosure crisis, could easily throw thousands ...


A Continuum In Remedies: Reconnecting Vacant Houses To The Market, James J. Kelly Jr. Jan 2013

A Continuum In Remedies: Reconnecting Vacant Houses To The Market, James J. Kelly Jr.

Journal Articles

For decades, America’s older, undercrowded cities have struggled with neighborhoods beset by vacant houses that seemingly have no connection with a functioning real estate market. A nationwide foreclosure crisis has brought even greater attention to the need for inner-city communities to address vacant house nuisances. This paper argues that recent developments in property theory help us understand and complete reforms of legal remedies that address this continuing national need.

Traditional, in personam code enforcement remedies emanate from a legal understanding of real estate ownership as the strongest of property-rule-protected entitlements. Local government authorities hold owners directly accountable for any ...


Sharing The Wealth, James J. Kelly Jr. Jan 2013

Sharing The Wealth, James J. Kelly Jr.

Journal Articles

This review of the textbook, "Community Economic Development Law" (Aspen 2013), written by Susan Bennett, Brenda Bratton Blom, Louise Howells and Deborah Kenn, appeared in the Vol. 22, No.1 issue of the Journal of Affordable Housing and Community Economic Development Law.


Strategic Spillovers, Daniel B. Kelly Jan 2011

Strategic Spillovers, Daniel B. Kelly

Journal Articles

The conventional problem with externalities is well known: Parties often generate harm as an unintended byproduct of using their property. This Article examines situations in which parties may generate harm purposely, in order to extract payments in exchange for desisting. Such “strategic spillovers” have received relatively little attention, but the problem is a perennial one. From the “livery stable scam” in Chicago to “pollution entrepreneurs” in China, parties may engage in externality-generating activities they otherwise would not have undertaken, or increase the level of harm given that they are engaging in such activities, to profit through bargaining or subsidies. This ...


Unbundling Homeownership: Regional Reforms From The Inside Out, Nicole Stelle Garnett Jan 2010

Unbundling Homeownership: Regional Reforms From The Inside Out, Nicole Stelle Garnett

Journal Articles

Two vexing puzzles plague American land use regulators. The first puzzle is how to protect property owners from harmful spillovers without unduly stifling land use diversity. The dominant forms of land use regulation in the United States - zoning and private covenants - rely on ex ante prohibitions. Yet, since local governments and private developers rarely can calibrate the level of regulation to residents’ true preferences, the costs imposed by these regulations tend to exceed the benefits of actual harm prevention. The result is the over-protection of property owners and, and, many would argue, a monotonous, sterile, inefficient, and inconvenient suburban landscape ...


Bringing Clarity To Title Clearing: Tax Foreclosure And Due Process In The Internet Age, James J. Kelly Jr. Jan 2008

Bringing Clarity To Title Clearing: Tax Foreclosure And Due Process In The Internet Age, James J. Kelly Jr.

Journal Articles

The foreclosure of property tax liens performs an essential economic function by reconnecting underutilized properties to the real estate market. To clear title in an efficient and just manner, local jurisdictions foreclosing on tax liens require clear, balanced procedures for the provision of notice to affected parties. In its 2006 decision in Jones v. Flowers, the U.S. Supreme Court found that the foreclosing jurisdiction's lack of direct follow-up on returned notice mailings denied the addressee due process because the foreclosing party did not take steps that would be chosen by one desirous of actually informing the property owner ...


"No Taking Without A Touching?" Questions From An Armchair Originalist, Nicole Stelle Garnett Jan 2008

"No Taking Without A Touching?" Questions From An Armchair Originalist, Nicole Stelle Garnett

Journal Articles

This paper is an invited contribution to the Bernard Siegan Memorial Conference on Economic Liberties, Property Rights, and the Original Meaning of the Constitution at the University of San Diego School of Law. The paper poses three questions about the historical evidence used to support the dominant academic view that the Fifth Amendment's Takings Clause, as originally understood, extended only to physical appropriations or invasions of private property. First, the paper questions the relevance of state and local regulatory practices to the pre-incorporation understanding of the Takings Clause. Second, the paper expresses concern about the use of state-court cases ...


Property In-Laws, Nicole Stelle Garnett Jan 2007

Property In-Laws, Nicole Stelle Garnett

Journal Articles

No abstract provided.


The Neglected Political Economy Of Eminent Domain, Nicole Stelle Garnett Jan 2006

The Neglected Political Economy Of Eminent Domain, Nicole Stelle Garnett

Journal Articles

This Article challenges a foundational assumption about eminent domain - namely, that owners are systematically undercompensated because they receive only fair market value for their property. The Article shows that, in fact, scholars have overstated the undercompensation problem because they have focused on the compensation required by the Constitution, rather than on the actual mechanics of eminent domain. The Article examines three ways that Takers (i.e., non-judicial actors in the eminent domain process) minimize undercompensation. First, Takers may avoid taking high-subjective-value properties. Second, Takers frequently must pay more compensation in the form of relocation assistance. Third, Takers and property owners ...


"We Shall Not Be Moved": Urban Communities, Eminent Domain And The Socioeconomics Of Just Compensation, James J. Kelly Jan 2006

"We Shall Not Be Moved": Urban Communities, Eminent Domain And The Socioeconomics Of Just Compensation, James J. Kelly

Journal Articles

If eminent domain is to serve true community development, statutory reforms must limit its propensity to abuse while still preserving its effectiveness. The first part of this article offers a normative legal theory of eminent domain as constrained by both the availability of alternative means of achieving public objectives and the inability of some condemnees to be made whole by cash compensation. The consideration of the land needs of both the condemnor and the condemnee is crucial to the respective evaluations of public use and just compensation as limitations on eminent domain. In the context of urban redevelopment, the theory ...


Ordering (And Order In) The City, Nicole Stelle Garnett Jan 2004

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 ...


Using The Pervasive Method Of Teaching Legal Ethics In A Property Course, Thomas L. Shaffer Jan 2002

Using The Pervasive Method Of Teaching Legal Ethics In A Property Course, Thomas L. Shaffer

Journal Articles

No abstract provided.


Moral Nuisances, John C. Nagle Jan 2001

Moral Nuisances, John C. Nagle

Journal Articles

Nuisance law provides a remedy for activities that substantially interfere with the use and enjoyment of one's land. Most nuisance cases today involve environmental pollution or unwanted noises, sights, or smells. Historically, though, nuisance law had a much broader application that regulated brothels, saloons, and gambling parlors - what I call moral nuisances.

I articulate a theory of moral nuisances that applies when (1) a substantial and legally cognizable interference with a landowner's use or enjoyment of his or her land is caused by (2) an action that is regarded as immoral by a reasonable person within the community ...


The Secret Lives Of The Four Horsemen, Barry Cushman Jan 1997

The Secret Lives Of The Four Horsemen, Barry Cushman

Journal Articles

"Outlined against red velvet drapery on the first Monday of October, the Four Horsemen rode again. In dramatic lore they are known as Famine, Pestilence, Destruction, and Death. These are only aliases. Their real names are Van Devanter, McReynolds, Sutherland, and Butler. They formed the crest of the reactionary cyclone before which yet another progressive statute was swept over the precipice yesterday morning as a packed courtroom of spectators peered up at the bewildering panorama spread across the mahogany bench above." Or so Grantland Rice might have written, had he been a legal realist. For more than two generations scholars ...


Introduction: The Ancient Roots Of Modern Forfeiture Law, Jimmy Gurule Jan 1995

Introduction: The Ancient Roots Of Modern Forfeiture Law, Jimmy Gurule

Journal Articles

Civil forfeiture is one of the most potent weapons available to prosecutors in the “war on drugs” and against traditional organized crime. Unlike criminal forfeiture it is in rem and based on a legal fiction that property used in violation of law must be held responsible for harm that it has caused. The conceptual underpinnings of civil forfeiture are long established and can be traced back to English common law, but they also create the potential for abuse. There is currently federal legislation that considers scaling back the reach of civil forfeiture and recent Supreme Court decisions have also limited ...


Shaping Today's Forfeiture Law: A Conversation With Senator Mcclellan, G. Robert Blakey Jan 1995

Shaping Today's Forfeiture Law: A Conversation With Senator Mcclellan, G. Robert Blakey

Journal Articles

In any society, the government's ability to interfere with life, liberty or property is always open for full discussion. In this conversation, Professor Blakey discusses property in the context of organized and white-collar crime, in addition to criminal forfeiture, and frames his discussion around his work with Senator John McClellan on drafting the Organized Crime Control Act.


Intestate Succession In A Polygamous Society, Barry Cushman Jan 1991

Intestate Succession In A Polygamous Society, Barry Cushman

Journal Articles

The pursuit of polygamous unions by members of the Church of Jesus Christ of Latter-Day Saints in nineteenth-century Utah posed challenges for the law of the family unique in the annals of American legal history. The exotic familial relationships generated by plural marriages created novel and peculiar problems for the traditional law of intestacy. Mormon leaders, in an effort to avoid these problems, urged their polygamous brethren to make wills. Many polygamists, however, either neglected to plan their estates or were actively opposed to doing so. Mormon legislators accordingly sought to craft statutory schemes that would accommodate the peculiar inheritance ...


Criminal Redistribution Of Stolen Property: The Need For Law Reform, G. Robert Blakey, Michael Goldsmith Jan 1976

Criminal Redistribution Of Stolen Property: The Need For Law Reform, G. Robert Blakey, Michael Goldsmith

Journal Articles

The development of sophisticated fencing systems for the sale of stolen property to consumers has paralleled the industrialization of society. Although crimes against property and attempts to control them have ancient origins, most theft before the Industrial Revolution was committed for immediate consumption by the thieves and their accomplices rather than for redistribution in the market-place. Society's small population, inadequate transportation and communication systems, and technological inability to mass produce identical goods constrained large-scale fencing because there were few buyers and because stolen property could be readily identified. The unprecedented economic and demographic growth in eighteenth-century Europe, however, removed ...


The Federal Income Tax Effects Of The Missouri Version Of The Uniform Divorce Act, Alan Gunn Jan 1974

The Federal Income Tax Effects Of The Missouri Version Of The Uniform Divorce Act, Alan Gunn

Journal Articles

The marital property provisions of the new Missouri divorce law render the tax treatment of property transfers and alimony payments unclear. As to property transfers, the problem is that the new law appears to give the wife an interest in property that previously would have been regarded as belonging to the husband. Since this is so, it is possible to argue that a “transfer” of appreciated property to the wife is part of a “division” of property between “co-owners,” and therefore not taxable. Although transfers of appreciated property in connection with a divorce are usually taxable, divisions of community property ...


Men And Things: The Liberal Bias Against Property, Thomas L. Shaffer Jan 1971

Men And Things: The Liberal Bias Against Property, Thomas L. Shaffer

Journal Articles

No abstract provided.