Law Commons^™

Remedies And The Psychology Of Ownership, Jeffrey J. Rachlinski, Forest Jourden

Cornell Law Faculty Publications

Mortgage Drafting: Lessons From The Restatement Of Mortgages, Dale A. Whitman

Faculty Publications

The American Law Institute's adoption of the Restatement (Third) of Property: Mortgages may have significant impact on the negotiation and drafting of mortgages. Rather than merely reciting the prevailing case law, the Restatement proposes approaches the American Law Institute believes are desirable as a matter of sound policy. This Article highlights key areas in which the new Restatement may affect mortgage drafting and suggests useful techniques for mortgage drafters.

Community Property Reimbursement, Roger Bernhardt

Publications

This article discusses how California community property rules intersect with dissolution and bankruptcy claims, dealing with the effect of a couple making the down payment with funds from one of the spouse’s parents.

Property Law: 1998 Survey Of Florida Law, Ronald B. Brown, Joseph M. Grohman

Faculty Scholarship

No abstract provided.

Protecting Endangered Species Without Regulating Private Landowners: The Case Of Endangered Plants, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Regulatory Takings And Original Intent: The Direct, Physical Takings Thesis Goes Too Far, Andrew S. Gold

Faculty Scholarship

No abstract provided.

Section 3: Business, Commerce, And Property, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Foreclosure Shortfalls, Roger Bernhardt

Publications

This article discusses California cases where buyers successfully sued sellers for fraud, but offsets then entitles the sellers to foreclose.

Where's Dolan? Exactions Law In 1998, Jonathan M. Davidson, Ronald H. Rosenberg, Michael C. Spata

Faculty Publications

No abstract provided.

Fair Value, Roger Bernhardt

Publications

This article deals with California foreclosure, deficiency judgments, postsale redemption and fair value.

Finders Weepers, Roger Bernhardt

Publications

This article analyzes a California decision involving a finder’s fee agreement.

Touch And Concern Is Dead: Long Live The Doctrine, A. Dan Tarlock

All Faculty Scholarship

No abstract provided.

Is Attachment Once Again Safe?, Roger Bernhardt

Publications

This article discusses a California statute that authorizes undersecured lenders to obtain prejudgment attachment on their debtor’s other assets in light of the one-action rule.

Reputation: A Vital Asset For Real Estate Practitioners, Trevor C. W. Farrow

Articles & Book Chapters

This article describes the law of defamation, with advice to realtors on how to avoid defaming others.

"Not Just For The Fun Of It!" Governmental Restraints On Black Leisure, Social Inequality, And The Privatization Of Public Space, Regina Austin

All Faculty Scholarship

No abstract provided.

Property Rules Meet Feminist Needs: Respecting Autonomy By Valuing Connection, Katharine K. Baker

All Faculty Scholarship

No abstract provided.

Foreclosing On The American Dream: An Evaluation Of State And Federal Foreclosure Laws, 51 Okla. L. Rev. 229 (1998), Debra Pogrund Stark

UIC Law Open Access Faculty Scholarship

No abstract provided.

The Newest Property: Reproductive Technologies And The Concept Of Parenthood, Kermit Roosevelt Iii

All Faculty Scholarship

No abstract provided.

Property As Propriety, Gregory S. Alexander

Cornell Law Faculty Publications

Not In My Backyard: The Clash Between Native Hawaiian Gathering Rights And Western Concepts Of Property In Hawaii, Samuel J. Panarella

Faculty Law Review Articles

This article examines the uneasy truce that exists between Western property law and the original Hawaiian native gathering practices that existed before the arrival of Europeans. The author traces the development of Hawaiian law from early cases that severely restricted gathering rights to more permissive results. The article demonstrates both the strengths and weaknesses of the present system of land tenure in Hawaii and argues for the continued expansion of native Hawaiian gather rights providing such expansion takes place within, not outside of, the dominant fee simple land tenure system now in place in Hawaii.

The Rhetoric Of Property, Joan C. Williams

Faculty Scholarship

No abstract provided.

Reason And Pollution: Construing The "Absolute" Pollution Exclusion In Context And In Light Of Its Purpose And Party Expectations, Jeffrey W. Stempel

Scholarly Works

Responding to the flurry of environmental coverage litigation over the application of the “sudden and accidental” pollution exclusion, the insurance industry during the mid-1980s largely adopted new standard pollution exclusion language for commercial general liability (CGL) policies. Since the mid-1980s, the standard form CGL has included the so-called absolute pollution exclusion, which provides that the insurance does not apply to bodily injury or property damage “arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release, or escape of pollutants.” A “pollutant” is defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, …

Whatever Happened To Landlord-Tenant Law?, Gerald Korngold

Articles & Chapters

No abstract provided.

The Irony Of Deregulatory Takings, Jim Rossi

Vanderbilt Law School Faculty Publications

This is a critical review essay, exploring the thesis advanced by Gregory Sidak and Daniel Spulber in their book Deregulatory Takings and the Regulatory Contract (Cambridge University Press 1997). Sidak and Spulber argue that deregulation of the electric utility and local telephony industries can constitute an unconstitutional taking to the extent the state does not provide compensation for the investment-backed expectations of firms in the industry. In addition, they argue that economic efficiency requires this result. This review takes Sidak and Spulber to task for their reading of the case law. In addition, the review criticizes their argument for giving …

Compensation And The Interconnectedness Of Property, Thomas W. Merrill

Faculty Scholarship

Professor Joseph Sax's scholarship on the Takings Clause combines the craft of a first-class lawyer with the passion of a visionary. The good lawyer that he is, Sax's scholarship reflects a deep understanding of Supreme Court case law, legal history, and the practical dimensions of various kinds of land use disputes. Yet his work on takings is not animated by any desire for mere doctrinal tidiness. It is driven by a distinctive vision – one in which the earth's resources are becoming increasingly interconnected and in which there is an increasing need for the government to resolve conflicts regarding the …

Legal-Ware: Contract And Copyright In The Digital Age, Michael J. Madison

Articles

ProCD, Inc. v. Zeidenberg, which enforced a shrinkwrap license for computer software, has encouraged the expansion of the shrinkwrap form beyond computer programs, forward, onto the Internet, and backward, toward such traditional works as books and magazines. Authors and publishers are using that case to advance norms of information use that exclude, practically and conceptually, a robust public domain and a meaningful doctrine of fair use. Contesting such efforts by focusing on the contractual nature of traditional shrinkwrap, by relying on market principles, on adhesion theory, on commercial law concepts of usage and custom, or on federal preemption doctrine, feeds …

Marriage Contracts And The Family Economy, Katharine B. Silbaugh

Faculty Scholarship

One simplified view of contract law is that the state enforces private bargains without looking into the substance of those bargains. From this contractual perspective marriage might look like a contract to exchange services and goods: love, money, the ability to have and raise children, housework, sex, emotional support, physical care in times of sickness, entertainment and so forth. But when the parties to a marriage put these terms in writing, courts only enforce the provisions governing money. This contract/family law rule of selective enforcement disproportionately benefits those who bring more money to a marriage, who are more likely to …

The Property Of Death, Tanya K. Hernandez

Faculty Scholarship

Who owns death and why do we care? The question of who owns death is implicitly deliberated each time a legal dispute ensues over who can direct the manner of a decedent's burial. There is no definitive legal rule as to who has the right to control the disposal of mortal remains because there is no agreement as to who owns a body after death or whether the cadaver is subject to traditional property rights. Although most states have probate laws and health codes which authorize a decedent (or in the alternative, a priority list of family members) to direct …

Reforming The Law: The Payment Rule As A Paradigm , Dale A. Whitman

Faculty Publications

The concept of negotiability of promissory notes is solidly entrenched in American commercial law. It derives from the English common law notion that a negotiable instrument is a reification of the obligation it describes; the instrument is regarded as a tangible form of the obligation. This notion has multiple ramifications, but three stand out. The first is the holder in due course doctrine which asserts that, when a negotiable instrument is transferred by the correct process (negotiation, which requires delivery of the paper) to someone with the right qualities (good faith, lack of notice, and payment of value), the maker …

Understanding Mahon In Historical Context, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Despite its enormous influence on constitutional law, Pennsylvania Coal Co. v. Mahon is just such an opinion; the primary purpose of the author’s article Jam for Justice Holmes: Reassessing the Significance of Mahon is to clarify Holmes's intent by placing the opinion in historical context and in the context of Holmes's other opinions. While other scholars have also sought to place Mahon in context, his account differs in large part because of its recognition, as part of the background of Mahon, of a separate line of cases involving businesses affected with a public interest.

The author argues that at …