Law Commons^™

Johnny Appleseed: Citizenship Transmission Laws And A White Heteropatriarchal Property Right In Philandering, Sexual Exploitation, And Rape (The Whp) Or Johnny And The Whp, Blanche Cook

Law Faculty Scholarly Articles

Title 8, United States Code, Section 1409-one of this country's

citizenship transmission laws-creates a white heteropatriarchal property right

in philandering, sexual exploitation, and rape (the "WHP"). Section 1409

governs the transmission of citizenship from United States citizens to their

children, where the child is born abroad, outside of marriage, and one parent is a

citizen and the other is not. Section 1409, however, draws a distinct gender

distinction between women and men: An unwed female American citizen who

births a child outside the United States, fathered by a foreign man, automatically

transmits citizenship to her child. An unwed male American …

Pipelines, Electrical Lines, And Little Pink Houses: Do Any Limits On "Public Use" Remain In Eminent Domain Law?, Kristin J. Hazelwood

Law Faculty Scholarly Articles

That property is more than mere dirt, brush, or rugged terrain is made obvious by the fervor with which individuals will defend their right to inhabit or use that property. Property can be valuable to individuals for myriad reasons, including an ancestral connection to the property; "historic, religious, and cultural significance;" or emotional attachment. The desire to preserve the right to use property or to protect it from environmental harm can create atypical activists, such as the Sisters of Loretto in Kentucky. The sisters opposed the construction of the pipeline across their pristine property and voiced their disapproval of the …

Against Nonmarital Exceptionalism, Albertina Antognini

Law Faculty Scholarly Articles

The Supreme Court’s opinion on the right to marry in Obergefell v. Hodges, inspired a flurry of scholarship on the topic of nonmarriage. In the wake of that decision, scholars have made claims about the state of nonmarriage, and also laid claim to it — embracing the nonmarital legal space that remains. This Article intervenes in the literature by looking at how the law directly interacts with unmarried couples — in distributing property when their relationship ends. The overview of the cases leads to one central claim: the law of nonmarriage as it currently stands remains deeply tethered to marriage, …

The Law Of Nonmarriage, Albertina Antognini

Law Faculty Scholarly Articles

The meaning of marriage, and how it regulates intimate relationships, has been at the forefront of recent scholarly and public debates. Yet despite the attention paid to marriage—especially in the wake of Obergefell v. Hodges—a record number of people are not marrying. Legal scholarship has mostly neglected how the law regulates these nonmarital relationships. This Article begins to fill the gap. It does so by examining how courts distribute property at the end of a relationship that was nonmarital at some point. This inquiry provides a descriptive account to a poorly understood and largely under-theorized area of the law. …

Rluipa And The Limits Of Religious Institutionalism, Zachary A. Bray

Law Faculty Scholarly Articles

What special protections, if any, should religious organizations receive from local land use controls? The Religious Land Use and Institutionalized Persons Act (“RLUIPA”)—a deeply flawed statute—has been a magnet for controversy since its passage in 2000. Yet until recently, RLUIPA has played little role in debates about “religious institutionalism,” a set of ideas that suggest religious institutions play a distinctive role in developing the framework for religious liberty and that they deserve comparably distinctive deference and protection. This is starting to change: RLUIPA’s magnetic affinity for controversy has begun to connect conflicts over religious land use with larger debates about …

Unseating Privilege: Rawls, Equality Of Opportunity, And Wealth Transfer Taxation, Jennifer Bird-Pollan

Law Faculty Scholarly Articles

This Article is the second in a series that examines the estate tax from a particular philosophical position in order to demonstrate the relevance and importance of the wealth transfer taxes to that position. In this Article, I explore Rawlsian equality of opportunity, a philosophical position that is at the heart of much American thought. Equality of opportunity requires not only ensuring that sufficient opportunities are available to the least well-off members of society but also that opportunities are not available to other members merely because of their wealth or other arbitrary advantages. Therefore, an income tax alone, even one …

Death, Taxes, And Property (Rights): Nozick, Libertarianism, And The Estate Tax, Jennifer Bird-Pollan

Law Faculty Scholarly Articles

The primary purpose of this Article is to dispute the moral claims to post-death property rights made by libertarians when they argue against the estate tax. As I will show later in this Article, my argument does not necessarily entail enacting an estate tax, nor does it require a particular level of tax. I am merely trying to demonstrate that those who argue that the estate tax is an immoral violation of the private property rights of the deceased are mistaken. This is not to say that the estate of the deceased should necessarily pass to the government. It is …

The Supreme Court And The Ppl Montana Case: Examining The Relationship Between Navigability And State Ownership Of Submerged Lands, Richard C. Ausness

Law Faculty Scholarly Articles

The United States Supreme Court held in PPL Montana v. Montana held that the State of Montana did not own the beds beneath certain rivers and, therefore, rejected the State's claim that the power company owed it millions of dollars in "back rent" for the use of the riverbeds as sites for ten of its hydroelectric power plants. The Montana Supreme Court, which had ruled in favor of the State, declared that even if portions of a river were not navigable for commercial purposes because of physical conditions, the entire river would be treated as navigable if commercial traffic could …

The New Progressive Property And The Low-Income Housing Conflict, Zachary A. Bray

Law Faculty Scholarly Articles

The foundation of property law has been much debated in recent years, as several scholars have sought to provide a theoretical alternative to what they call the dominant, “law-and-economics” approach to property. In place of the law-and-economics approach, these scholars advance a new theoretical approach, which I call “the new progressive property.” At its core, this new approach favors rules thought to promote the collective well-being of the larger community while ensuring that relatively disadvantaged members of society have access to certain basic resources. This Article explores the boundaries and practical implications of the new progressive property. To do so, …

Property In Law: Government Rights In Legal Innovations, Stephen Clowney

Law Faculty Scholarly Articles

One of the most enduring themes in American political thought is that competition between states encourages legal innovation. Despite the prominence of this story in the national ideology, there is growing anxiety that state and local governments innovate at a socially suboptimal rate. Academics have recently expressed alarm that the pace of legal experimentation has become "extraordinarily slow," "inefficient," and "less than ideal." Ordinary citizens, too, seem concerned that government has been leeched of imagination and the dynamic spirit of experimentation; both talk radio programs and newspapers remain jammed with complaints about legislative gridlock and do-nothing politicians who cannot, or …

Reconciling Development And Natural Beauty: The Promise And Dilemma Of Conservation Easements, Zachary A. Bray

Law Faculty Scholarly Articles

Local and regional private land trusts are among the most important and most numerous conservation actors in contemporary America, and conservation easements are perhaps the key land conservation tools used by these trusts. In recent decades, privately held conservation easements and local and regional private land trusts have grown at a rapid and increasing rate, and the total acreage protected by privately held conservation easements is now larger than some states. The early growth of privately held conservation easements met widespread approval, but more recently, contemporary conservation easement practice has attracted many critics, based in part on well-publicized national scandals …

The Offshore Asset Protection Trust: A Prudent Financial Planning Device Or The Last Refuge Of A Scoundrel?, Richard C. Ausness

Law Faculty Scholarly Articles

In recent years, a large number of Americans have established "asset protection trusts" in foreign countries. An asset protection trust is a self-settled spendthrift trust which is created in order to protect the settlor's property from the claims of creditors. Virtually all American jurisdictions recognize spendthrift trusts, which prohibit both voluntary and involuntary alienation of a third party beneficiary's interest in a trust; however, most do not allow a settlor who has retained a beneficial interest in a spendthrift trust to protect that interest from the claims of creditors. A growing number of present and former British possessions, however, have …

Barriers To Accessible Housing: Enforcement Issues In “Design And Construction” Cases Under The Fair Housing Act, Robert G. Schwemm

Law Faculty Scholarly Articles

In the Fair Housing Amendments Act of 1988 (“FHAA”), Congress added “handicap” to the bases of discrimination outlawed by the federal Fair Housing Act (“FHA”) and also enacted three special provisions to further insure equal housing opportunity for persons with disabilities. One of these special provisions—§ 3604(f)(3)(C) —mandates that all new multi-family housing be designed and constructed with seven specified accessibility features.

Despite the accessibility requirements of § 3604(f)(3)(C)—and similar requirements in scores of state and local fair housing laws—a great deal of the multi-family housing built since §3604(f)(3)(C) became effective has failed to include the features mandated by this …

Regulatory Takings And Wetland Protection In The Post-Lucas Era, Richard C. Ausness

Law Faculty Scholarly Articles

In June 1992, the United States Supreme Court decided Lucas v. South Carolina Coastal Council. The case involved a claim for compensation against the State of South Carolina by a landowner who was prohibited from placing structures on two of his beachfront lots. The Court declared that the landowners must be compensated when government regulations deprive them of all economically beneficial or productive uses of their property unless the proscribed uses were not permitted as part of their original titles.

Although some legal commentators have praised the Lucas decision, others have strongly condemned it. A common criticism of Lucas …

Wild Dunes And Serbonian Bogs: The Impact Of The Lucas Decision On Shoreline Protection Programs, Richard C. Ausness

Law Faculty Scholarly Articles

In Lucas v. South Carolina Coastal Council, the United Supreme Court was forced once again to delve into the law of regulatory takings. This experience is seldom a pleasant one. Echoing the poet John Milton, an exasperated state court judge once described takings law as a “Serbonian Bog.” Unfortunately, the takings doctrine is only slightly more comprehensible after the Lucas decision than it was before. Nevertheless, progress in this area, however modest, deserves praise, and the Court is to be commended for clarifying one aspect of takings jurisprudence. As a result of Lucas a “categorical rule” has been announced …

Strict Liability For Chattel Leasing, Richard C. Ausness

Law Faculty Scholarly Articles

Leasing has become an increasingly popular substitute for outright purchases as a means of acquiring products for use. Few courts and commentators, however, have addressed the question of whether the principles of strict products liability which apply to sellers also apply to lessors. In this Article, Professor Ausness reviews the historical basis for imposing strict liability in tort on sellers and applies these rationales to five basic kinds of lease transactions. He concludes that strict liability should not apply when a product defect arises after the leased product is placed in the hands of the lessee (as contrasted with the …

Kentucky's Doctrine Of Advancements: A Time For Reform, Carolyn S. Bratt

Law Faculty Scholarly Articles

The act of giving a gift is accomplished so easily that the legal consequences often escape the donor. Even when a donor stops to contemplate the legal significance of her or his act, a parental donor probably is unaware that a gift to a child may affect the child's inheritance rights in the parent's estate. Kentucky is among the minority of states which continue to presume that a parental gift is intended as an advancement to the child donee. Moreover, Kentucky is one of only two states which make the presumption irrebutable. The value of the gift is charged against …

Refuting The “Classic” Property Clause Theory, Eugene R. Gaetke

Law Faculty Scholarly Articles

In a series of cases the Supreme Court has recognized broad, preemptive federal regulatory power over federally owned land. The Court has based these decisions on the combined effect of the property and supremacy clauses of the Constitution. The scope of this power has been the cause of a heated political and legal debate in western states, which contain extensive federal land holdings. A number of legal commentators have argued that the Court's broad construction of the property clause is a misinterpretation of the Framers' intent and that the clause merely grants the federal government proprietary rights over its land …

Kentucky Law Survey: Property, Carolyn S. Bratt

Law Faculty Scholarly Articles

Law students, and probably practitioners, are often perplexed by the multitude of topics covered under the rubric of property law. Unfortunately, this Survey article does nothing to dispel the impression of property law as a hodgepodge of unrelated topics. This Survey of recent decisions in Kentucky discusses topics ranging literally from "a" to "z"-adverse possession to zoning.

Using Formulas To Separate Marital And Nonmarital Property: A Policy Oriented Approach To The Division Of Appreciated Property Upon Divorce, Louise Everett Graham

Law Faculty Scholarly Articles

Over the past ten years every writer venturing to discuss domestic relations must have been tempted to emphasize the importance of his or her work by opening with mention of the growing number of divorce cases confronting the court system. Beyond its numerical impact upon the judicial process, however, divorce litigation provides an important opportunity for the study of property rights and the institutions from which those fights are derived. Divorce cases increasingly involve difficult and complex questions concerning the marital property rights of the marriage partners. The importance of marital property cases is broader than the individual rules that …

Congressional Discretion Under The Property Clause, Eugene R. Gaetke

Law Faculty Scholarly Articles

The property clause of article IV grants Congress the authority to regulate federal lands. In referring to that authority, the Supreme Court has observed that “the power over the public land thus entrusted to Congress is without limitations.”

The simplicity of the Court's statement is appealing. Its implications, however, are troubling, especially for those states in which a substantial amount of federal property exists. If the property clause power of Congress is "without limitations," the power of some states over a considerable portion of the land within their boundaries is severely limited. For those states, an unlimited property clause power …

The Boundary Waters Canoe Area Wilderness Act Of 1978: Regulating Nonfederal Property Under The Property Clause, Eugene R. Gaetke

Law Faculty Scholarly Articles

In an effort to resolve the nagging controversy over the management of more than one million acres of public forests, lakes, and streams in northeastern Minnesota, Congress enacted the Boundary Waters Canoe Area Wilderness Act of 1978 (BWCA Act). Despite its objective, the Act has engendered further controversy. Particularly troublesome are several provisions that regulate the use of motorboats on lakes within and partly within the area. Those provisions test the scope of congressional power over nonfederal property under the property clause of article IV of the United States Constitution.

This Article examines the aged Supreme Court cases under which …

Cooperative Apartments: A Survey Of Legal Treatment And An Argument For Homestead Protection, Carolyn S. Bratt

Law Faculty Scholarly Articles

“The homestead may be a splendid mansion, a cabin or a tent,” but can it be a cooperative apartment? The supreme courts of both Florida and Georgia recently have answered this question in the negative. The Florida Supreme Court denied to a widow a homestead exemption in her deceased husband's cooperative apartment, ruling that a cooperator has no proprietary interest in the apartment, the building, or the land on which the building is situated. The Georgia Supreme Court denied a homestead tax exemption to cooperators because they lacked the characteristics of ownership needed to bring them within the constitutional exemption …

The Uniform Disposition Of Community Property Rights At Death Act, Sarah N. Welling

Law Faculty Scholarly Articles

In 1977, eight of the United States use community property systems instead of the common law systems used in the other 42 states. Because the community property system is totally alien to common law states which do not recognize community interests in property, when domiciliaries of a community property state migrate to a common law state problems develop over the definition of property rights. Two questions usually arise: do the spouses’ rights and interests in the community property change if they move to a common law state? And if not, how are these rights and interests protected? The first question …

Tort Claims As Intangible Property: An Exploration From An Assignee's Perspective, Harold R. Weinberg

Law Faculty Scholarly Articles

Dean Prosser has pointed out that a major function of the law of torts is to allocate losses arising in the course of human activity by placing the burden of the loss on the party at fault. Tort causes of action are both diverse and plentiful in our society, and few persons can avoid being a tort victim at one time or another. Prior to suit, the injured party becomes the “owner” of a tort cause of action. Even though “ownership’’ is involved, it may seem awkward to classify a tort cause of action as personal property. This difficulty is …

The Use And Legal Significance Of The Mean High Water Line In Coastal Boundary Mapping, Richard C. Ausness, Frank E. Maloney

Law Faculty Scholarly Articles

The effect of unplanned and ill-conceived land use development on the coastal ecology has been well documented in recent years. Recognizing the need for more effective governmental control in this area, a number of state legislatures have enacted statutes to protect the coastal environment and encourage the orderly development of coastal resources. These efforts have received the support of the federal government as well.

Determination of coastal boundaries is essential to the development of an effective coastal zone management program. In general such boundaries represent the intersection of the shore with a particular tidal elevation. However, the demarcation of coastal …

Venue Of Civil Actions In Kentucky, William H. Fortune

Law Faculty Scholarly Articles

The purpose of this paper is primarily to analyze Kentucky’s venue statutes, and secondarily to suggest the path to reform. The paper is divided into four parts. Part I is a brief history of the confusion in Kentucky between jurisdiction and venue. Some exposure to this history is essential to an understanding of the older cases, which in some areas are the only cases in point. Part II is an analysis of the four major venue statutes in KRS Chapter 454: KRS § 452.400—actions involving land; KRS § 452.450-actions against corporations; KRS § 452.460—actions for personal injury or property damage; …