Law Commons^™

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.

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 …

Three Things: A Tribute To Judge Morris Sheppard Arnold, Nicole Stelle Garnett

Journal Articles

On February 20, 2015, the Arkansas Bar Association hosted a tribute to Judge Morris Sheppard Arnold (8th Cir., retired). I had the privilege of clerking for Judge Arnold in 1995-96 and the great honor of being asked to speak about the Judge at the event. Greenbag graciously agreed to publish my remarks.

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: …

"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 decided …

Property In-Laws, Nicole Stelle Garnett

Journal Articles

My family's story will be familiar to those who have read Eduardo Pefialver and Sonia Katyal's engaging article, Property Outlaws. Robert Fowler was, according to their taxonomy, an "[a]cquisitive outlaw[]": he was a trespasser whose actions were "oriented primarily toward direct appropriation." Pefialver and Katyal contrast the self-interested acquisitive outlaw with the other-regarding "[e]xpressive out law[]," who trespasses as a form of conscientious objection, and the "intersectional outlaw[]," whose actions commingle acquisitive and expressive elements. According to Pefialver and Katyal, property outlaws are underappreciated because, in appropriate circumstances, they serve both "redistributive" and "informational" functions. That is, property outlaws both …

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 these …

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

Journal Articles

When a property teacher sets out to learn about the human facts in his subject—if, for instance, he wants to learn about the behavioral aspects of the law of the dead (wills, trusts, future interests and death taxation)—he will be discouraged by the fact that psychological literature has a great deal to say about sex, and even quite a bit about death, but almost nothing about property.

There are a couple of metaphysical essays by Jean-Paul Sartre, and, from the founders of psychoanalysis, the theory that our concern about property begins at the potty chair. But for the most part …

Partition Of Oil And Gas Interests And The Effect On Mineral Rights Of Surface Partition, Thomas L. Shaffer

Journal Articles

Interests in oil and gas in place are of three kinds: ownership of minerals independent of surface ownership, royalty interests, and "working" or leasehold interests. All three are forms of property, susceptible of ownership by cotenants, and cotenancies of the first and third categories are at least theoretically open to actions for partition.

Partition of interests in oil and gas raises practical legal difficulties in three areas: (1) How does mineral ownership fit into the statutory partition scheme? (Each of the nation's fifty states has a statute concerning partition of either realty or personalty or both.) (2) How is a …