Law Commons^™

Reclaiming State Authority Over Zoning Property, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

In 2019, Oregon became the first state to pass legislation that essentially bans single-family zoning.' As states across the country struggle to respond to the housing affordability crisis, Oregon's actions do not stand alone. John Infranca's recent article, The New State Zoning: Land Use Preemption Amid a Housing Crisis, may have been published before Oregon's historic vote but it is essential reading for those interested in the future of zoning.

Property In Digital Coins, J.G. Allen

Research Collection Yong Pung How School Of Law

Digital coins have burst into mainstream awareness recently, mainly as a result of high-worth ‘Initial Coin Offerings’ (‘ICOs’). The most immediate question in the legal treatment of digital coins is whether they are properly seen as digital ‘commodities’, and/or as ‘securities’, and/or as units of ‘money’. But the conceptual underpinnings of these categories are not clear, nor is it clear how these categories relate to each other; no legal system currently deals adequately with incorporeal objects as objects of property law. This category includes not only digital coins but also some forms of conventional money and securities. Establishing a satisfactory …

Graffiti, Street Art, Walls, And The Public In Canadian Copyright Law, Pascale Chapdelaine

Law Publications

Graffiti is vilified, and at the same time is increasingly revered and celebrated. This ambivalence is reflected in the general legal landscape that surrounds graffiti and other forms of street art at the criminal, civil and municipal levels. Within this general legal framework, the application of copyright law to graffiti and street art reveals a complex web of interwoven issues about the protection of the graffiti artist’s economic and moral rights and questions of illegality and public policy, and about the rights of the property owner of the “wall” on which the art resides, and the public. This book chapter …

Catholic Dioceses In Bankruptcy, Marie T. Reilly

Catholic Dioceses in Bankruptcy

The Catholic Church is coping with mass tort liability for sexual abuse of children by priests. Since 2004, eighteen Catholic organizations have filed for relief in bankruptcy. Fifteen debtors emerged from bankruptcy after settling with sexual abuse claimants and insurers. During settlement negotiations, sexual abuse claimants and debtors clashed over the extent of the debtors’ property and ability to pay claims. Although such disputes are common in chapter 11 plan negotiations, the Catholic cases required the parties and bankruptcy courts to account for unique religious attributes of Catholic debtors. This article reviews the arguments and outcomes on property issues based …

Property, Agency, And The Blockchain: New Technology, And Longstanding Legal Paradigms, Sarah Jane Hughes

Articles by Maurer Faculty

This article, presented first as the keynote address at the February 2019 Symposium “The Emerging Blockchain and the Law” at Wayne State, explores the need for repetitive considerations of how blockchain technology affects our traditional concepts of property and agency. The article concludes that well-tested norms of property and agency may matter more, not less, when new technologies such as blockchain are used.

Should Owner Motivation Limit The Exercise Of Property Rights?, Gregory M. Stein

Scholarly Works

No abstract provided.

Energy And Eminent Domain, James W. Coleman, Alexandra B. Klass

Faculty Journal Articles and Book Chapters

This Article examines the growing opposition to the use of eminent domain for energy transport projects such as oil pipelines, gas pipelines, and electric transmission lines. Such projects were protected from the state legislative reforms that restricted eminent domain following the Supreme Court’s controversial decision in Kelo v. City of New London in 2005 but are now under increased scrutiny. This Article evaluates why U.S. energy transport projects have become so controversial and suggests how states and the federal government should evaluate the need for eminent domain for these projects and enact appropriate reforms. We first detail the significant changes …

The Public Trust In Public Art: Property Law's Case Against Private Hoarding Of “Public” Art, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Private hoarding of important works of art is a phenomenon that has caused their disappearance from public view. The loss of this art undermines republican values like education, community, and citizenship, and therefore should be resisted. This Article explores various legal tools to prevent this from happening, including doctrines and laws that protect artists’ rights in their work, but which offer the public little relief. Turning to two well-known common-law doctrines—public dedication and public trust—to see whether they might provide a solution, the author favors the latter because it is nimbler and better suited to the public nature of important …

Property, Race, Segregation, And The State Property, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

Property scholars have neither forgotten nor ignored the government's role in creating and furthering racial segregation. Scholars have written extensive work on redlining, racially restrictive covenants, the siting of public housing in minority poor communities and the resistance of wealthier white towns to affordable housing.

Nevertheless, Richard Rothstein's book, The Color of Law, should be required reading for property scholars and students. Beautifully written, the book is packed with new details and stories that illustrate the many ways government-at the local, state, and federal levels-denied African-Americans equal access to space and property.

Non-Enforcement Takings, Timothy M. Mulvaney

Faculty Scholarship

The non-enforcement of existing property laws is not logically separable from the issue of unfair and unjust state deprivations of property rights at which the Constitution's Takings Clause takes aim. This Article suggests, therefore, that takings law should police allocations resulting from non-enforcement decisions on the same "fairness and justice" grounds that it polices allocations resulting from decisions to enact and enforce new regulations. Rejecting the extant majority position that state decisions not to enforce existing property laws are categorically immune from takings liability is not to advocate that persons impacted by such decisions should be automatically or even regularly …

Are Prices Just?, Gregory M. Stein

Scholarly Works

No abstract provided.

Safe Haven Conundrum: The Use Of Special Bailments To Keep Pets Out Of Violent Households, Joan Macleod Heminway

Scholarly Works

Family violence is a continuing social problem that breeds new complexity at every turn. Just as we seem to get a modicum of control over the sheltering of at-risk mothers and children (among other human victims), we find that family pets—dependent creatures endangered by the same violent behavior that threatens their human caretakers—often are left unprotected or under-protected by both law and society. In most cases, pets are unable to be sheltered with human victims of domestic violence due to shelter restrictions. Restrictions on the sheltering of abuse victims with their pets result in difficult choices for human victims who …

Populist Property Law, Anna Di Robilant

Faculty Scholarship

Property scholars think of property law as consisting of a small number of highly technical forms created a long time ago by "experts, i.e., legislatures and courts, which are hardly accessible to non-lawyers. This Article explores a new idea: the possibility that ordinary people, with little or no legal training, can become active participants in the creation of property law, directly intervening in the development of new property forms. The Article tells the story of two nineteenth-century American social movements that represented the "little guys " - workers and farmers - who used their 'folk legal" imagination to develop new …

The New Politics Of New Property And The Takings Clause, Christopher Serkin

Vanderbilt Law School Faculty Publications

This Essay offers a broad gloss on the traditional politics of property protection and then catalogues a number of ways in which those politics have been changing. In many cases, the account is of fragmentation and fracture as once stable commitments have become much more contingent and fact dependent.' Admittedly, this characterization paints with an extremely broad brush. That is both its contribution and its weakness. This short Essay deliberately simplifies the characterization of preferences across the political spectrum. Much more nuanced definitions would better track the complexity of the underlying issues. Judges and scholars discussed below might also object …

Property As Prophesy: Legal Realism And The Indeterminacy Of Ownership, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

Property law, like all law, is indeterminate. This means that ownership itself is indeterminate and every owner is vulnerable to challenges based on unexpected legal rules or newly created ones. Even the most seemingly secure rights can be defeated or compromised if a clever-enough lawyer is retained to mount a challenge. The casebooks used in first-year property courses are full of examples. In the case of particularly valuable property, such as works of art, the motivation to fashion arguments to support ownership challenges is obvious. Short and strictly interpreted statutes of limitations can mitigate the risks to ownership by cabining …

Reflections On The Persistence Of Racial Segregation In Housing, Alan C. Weinstein

Law Faculty Articles and Essays

This article is Weinstein's reflection on the Annual Sullivan Lecture entitled Crossing Two Color Lines: Interracial Marriage and Residential Segregation in Chicago by Dorothy E. Roberts (2016).

INTRODUCTION My reflection on Professor Roberts' Sullivan Lecture poses two questions. First, how far have we come as a nation from the hypersegregated housing patterns of the 1930s through 1960s that Professor Roberts described in her lecture? Regrettably, the answer appears to be not far at all. Further, we are today faced with a second form of hypersegregation, one based on income rather than race. Second, why have we made so little progress …

Penn Central Take Two, Christopher Serkin

Vanderbilt Law School Faculty Publications

Penn Central v. New York City is the most important regulatory takings case of all time. There, the Supreme Court upheld the historic preservation of Grand Central Terminal in part because the City offset the burden of the landmarking with a valuable new property interest—a transferable development right (TDR)—that could be sold to neighboring property. Extraordinarily, 1.2 million square feet of those very same TDRs, still unused for over forty years, are the subject of newly resolved takings litigation. According to the complaint, the TDRs that saved Grand Central were themselves taken by the government, which allegedly wiped out their …

The Sticks In The Chinese Property Rights Bundle, Gregory M. Stein

Scholarly Works

No abstract provided.

Dykema V. Del Webb Communities, Inc., 132 Nev. Adv. Op. 82 (Dec. 29, 2016), Christopher Giddens

Nevada Supreme Court Summaries

The Court determined that a notice of completion’s recording date—not the date on which the notice is signed and notarized—signifies when the notice is “issued” to trigger “substantial completion” under NRS 11.2055(1)(b) for NRS Chapter 11’s construction defect statutes of repose.

Taking The Oceanfront Lot, Josh Eagle

Faculty Publications

Oceanfront landowners and states share a property boundary located between the wet and dry parts of the shore. This legal coastline is different from an ordinary land boundary. First, on sandy beaches, the line is constantly in flux, and it cannot be marked except momentarily. Without the help of a surveyor and a court, neither the landowner nor a citizen walking down the beach has the ability to know exactly where the line lies. This uncertainty means that, as a practical matter, ownership of some part of the beach is effectively shared. Second, the common law establishes that the owner …

Southern Highlands V. San Florentine, 132 Nev. Adv. Op. 3 (Jan. 14, 2016), Kristen Matteoni

Nevada Supreme Court Summaries

Under the plain language of NRS 116.3116(4), “equal priority” is given to multiple HOA liens on the same property when those liens secure unpaid HOA charges and dues. When one lienholder of equal priority forecloses, all other liens are terminated. Nonetheless, all equal priority lienholders share in the foreclosure profit by either being paid in full when able to do so or, if sale profit is inadequate, through a pro-rata share of the proceeds. Thus, because the Foothills and Southern Highlands have equal priority liens, Foothills’ foreclosure terminated Southern Highlands lien, however Southern Highlands is entitled its allotment of the …

Realigning The Governmental/Proprietary Distinction In Municipal Law, Hugh D. Spitzer

Articles

Lawyers and judges who deal with municipal law are perpetually puzzled by the distinction between “governmental” and “proprietary” powers of local governments. The distinction is murky, inconsistent between jurisdictions, inconsistent within jurisdictions, and of limited use in predicting how courts will rule. Critics have launched convincing attacks on the division of municipal powers into these two categories. Most articles have focused on problems with the distinction in specific areas of municipal law. In contrast, this article provides a comprehensive analysis of the governmental/proprietary distinction in seven specific doctrinal areas: legislative grants of municipal authority, government contracts, torts, eminent domain, adverse …

The Constitutionalization Of Indian Private Law, Shyamkrishna Balganesh

Faculty Scholarship

This chapter examines the relationship between private law and constitutional law in India, with particular emphasis on tort law. It considers the Indian Supreme Court’s expansion of its fundamental rights jurisprudence over the past thirty years, as well as its effort to transcend the public law/private law divide. It also explains how the Court’s fusion of constitutional law and tort law has affected the independent efficacy, normativity, and analytical basis of equivalent private law claims in India. It argues that the Court’s efforts have only undermined the overall legitimacy of private law mechanisms in the country, and that this phenomenon …

Do Progressive Property Scholars Really Want To Limit Nollan And Dolan To Administrative Exactions, Gregory M. Stein

Scholarly Works

No abstract provided.

Property And Exceptionalism In China And The Anglo-American World, 1650-1860, Tahirih V. Lee

Scholarly Publications

No abstract provided.

How To Do Things With Hohfeld, Pierre Schlag

Publications

Wesley Newcomb Hohfeld’s 1913 article, Fundamental Legal Conceptions as Applied in Judicial Reasoning, is widely viewed as brilliant. A thrilling read, it is not. More like chewing on sawdust. The arguments are dense, the examples unfriendly, and the prose turgid.

“How to Do Things With Hohfeld” is an effort to provide an accessible and sawdust-free account of Hohfeld’s article, as well as to show how and why his analysis of “legal relations” (e.g., right/duty, etc.) matters. Perhaps the principal reason is that the analysis furnishes a discriminating platform to discern the economic and political import of legal rules and …

Slavery, Property, And Marshall In The Positivist Legal Tradition, Marc L. Roark

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Chinese Real Estate Law And The Law And Development Theory: Comparing Law And Practice, Gregory M. Stein

Scholarly Works

No abstract provided.

Symposium: The Role Of Federal Law In Private Wealth Transfer, Jeffrey Schoenblum

Vanderbilt Law School Faculty Publications

Increasingly, federal law impacts court decisions involving private wealth transfer. Increasingly, federal law is the central consideration in premortem and postmortem planning for private wealth transfer. Despite this, until recently, little scholarly attention has been paid to this phenomenon; the assumption regarding the centrality of state law, quoted above, having gone largely unquestioned. But now that the "sleeping giant" has awakened, the role that federal law plays in private wealth transfer requires serious and comprehensive academic consideration.

Abuse Of Rights: The Continental Drug And The Common Law, Anna Di Robilant

Faculty Scholarship

This article explores a crucial, though often neglected, episode in the history of modern private law: the nineteenth and early twentieth century debate over the concept of “abuse of rights”. In broad terms, the formula evokes the idea of an abusive, because malicious or unreasonable, exercise of an otherwise lawful right. The doctrine was applied in a variety of subfields of private law: property, contract, and labour law. It was conceived as a response to the urgent legal questions posed by the rise of modern industrial society: the limits of workers’ right to strike, the limits of industrial enterprises’ property …