Law Commons^™

Formal Versus Informal Allocation Of Land In A Commons: The Case Of The Macarthur Park Sidewalk Vendors, Gregg Kettles

ExpressO

Sidewalk vendors are becoming a more common presence in cities in Latin America and the United States. Vendor demand for the best sidewalk vending spots increasingly exceeds supply, making necessary a system to allocate space in what is essentially an open access commons. This paper presents an empirical study of two very different systems of allocation that have been adopted in the city of Los Angeles, California, a formal one imposed by the city on legal vendors when they were unable to come up with one on their own, and a second that was embraced by illegal vendors across the …

The (Practical) Meaning Of Property, Vincent F. Chiappetta

ExpressO

I argue that a functional approach to property - defining it as society’s decisions allocating varying kinds and degrees of legal control over resources rather than in terms of fixed sets of attributes or predefined goals - significantly clarifies public policy debate and related decision-making. That approach demonstrates we should reject characterizations of property as a yes-no proposition to which we react as well as the assumption that those who disagree with us are fools or worse. Those characterizations distract us from the central issue in property - our persistent normative disagreements regarding what constitutes its just application. Discussing property …

Desperate Cities: Eminent Domain And Economic Development In A Post-Kelo World, Asmara Tekle Johnson

ExpressO

Kelo v. City of New London unleashed an unprecedented legislative response when the Court upheld the use of eminent domain for private economic development as consistent with the Takings Clause of the Fifth Amendment. By exhibiting an extreme deference to the legislative branch and failing to consider the current model of economic development, in which “desperate” cities have seen their economic bases contract and have embarked on fervent urban revitalization campaigns as a result, the Kelo Court failed to take into account the immense influence that large corporate interests wield in the legislature. This influence is generally exercised to the …

The "Public Use" Requirement In Eminent Domain Law: A Rationale Based On Secret Purchases And Private Influence, Daniel B. Kelly

ExpressO

This article provides a rationale for understanding and interpreting the “public use” requirement within eminent domain law. The rationale is based on two factors. First, while the government often needs the power of eminent domain to avoid the problem of strategic holdout, private parties are usually able to purchase property through secret buying agents. The availability of these buying agents makes the use of eminent domain for private parties unnecessary (and indeed, undesirable). The government, however, is ordinarily unable to make secret purchases because its plans are subject to democratic deliberation and known in advance. Second, while the use of …

The Children Of Science: Property, People, Or Something In Between?, Star Q. Lopez

ExpressO

How should states classify embryos? The war has often waged between two classifications, people versus property. But what if a state assumed something in between, finding the embryo to be a potential person entitled to special respect? If a state adopted this position, how would the law affect medical research?

Presuming embryos constitute potential persons, the debate would continue with how to define “special respect.” The status of a potential person runs along a spectrum between property and personhood. How one defines “special respect” determines where the potential person falls along this spectrum. Special respect would create a spectrum of …

Property And Empire: The Law Of Imperialism In Johnson V. M'Intosh, Jedediah S. Purdy

ExpressO

Justice Marshall’s opinion in Johnson v. M’Intosh has long been a puzzle in both its doctrinal structure and in Marshall’s manifest ambivalence and long, strange dicta that are both triumphal and elegiac. In this article, I show that the opinion becomes newly intelligible when read in the context of the law and theory of colonialism, concerned, which, like the case itself, was concerned with the expropriation of continents and relations between dominant and subject peoples.

I examine several instances where the seeming incoherence of the opinion instead shows its debt imperial jurisprudence, which rested on a distinction between two bodies …

The Takings Clause, Version 2005: The Legal Process Of Constitutional Property Rights, Mark Fenster

ExpressO

The three takings decisions that the Supreme Court issued at the end of its October 2004 Term marked a stunning reversal of the Court’s efforts the past three decades to use the Takings Clause to define a set of constitutional property rights. The regulatory takings doctrine, which once loomed as a significant threat to the modern regulatory state, now appears after Lingle v. Chevron to be a relatively tame, if complicated, check on exceptional instances of regulatory abuse. At the same time, the Public Use Clause, formerly an inconsequential limitation on the state’s eminent domain authority, now appears ripe for …

Taking State Property Rights Out Of Federal Labor Law, Jeffrey M. Hirsch

ExpressO

Currently, the National Labor Relations Board determines whether union organizers have a right to access employer property by looking almost exclusively to an employer’s state law right-to-exclude. If the employer possesses such a right, an attempt to exclude organizers will generally be lawful; if the employer lacks that right, the exclusions will be unlawful. This analysis makes little sense, as an employer’s state property interests are irrelevant to the primary labor issue in these cases—whether the exclusion interferes with employees’ federal labor rights. Employees will tend to view hostile or discriminatory exclusions of organizing activity as coercive, whether or not …

Desperate Cities: Eminent Domain And Economic Development In A Post-Kelo World, Asmara Tekle Johnson

ExpressO

Kelo v. City of New London unleashed an unprecedented legislative response when the Court upheld the use of eminent domain for private economic development as consistent with the Takings Clause of the Fifth Amendment. By exhibiting an extreme deference to the legislative branch and failing to consider the current model of economic development, in which “desperate” cities have seen their economic bases contract and have embarked on fervent urban revitalization campaigns as a result, the Kelo Court failed to take into account the immense influence that large corporate interests wield in the legislature. This influence is generally exercised to the …

People As Property: On Being A Resource And A Person, Jedediah S. Purdy

ExpressO

Property law facilitates the efficient use and allocation of scarce resources and recognizes and protects aspects of personhood – the bases of dignity and self-respect. Human beings, who are both resources for one another and the persons whose moral importance the legal system seeks to protect. This article explores how property law has addressed this paradox in the past and how might in the future.

I analyze two bodies of nineteenth-century law where the paradox was highlighted: the legal regimes of labor discipline for slaves in the antebellum South and for free workers in the laissez-faire Lochner era. The law …

Making Main Street Legal Again: The Smartcode Solution To Sprawl, Chad Emerson

ExpressO

No abstract provided.