Law Commons^™

Social Software, Groups, And Governance, Michael J. Madison

Articles

Formal groups play an important role in the law. Informal groups largely lie outside it. Should the law be more attentive to informal groups? The paper argues that this and related questions are appearing more frequently as a number of computer technologies, which I collect under the heading social software, increase the salience of groups. In turn, that salience raises important questions about both the significance and the benefits of informal groups. The paper suggests that there may be important social benefits associated with informal groups, and that the law should move towards a framework for encouraging and recognizing them. …

The Idea Of The Law Review: Scholarship, Prestige, And Open Access, Michael J. Madison

Articles

This Essay was written as part of a Symposium on open access publishing for legal scholarship. It makes the claim that open access publishing models will succeed, or not, to the extent that they account for the existing economy of prestige that drives law reviews and legal scholarship. What may seem like a lot of uncharitable commentary is intended instead as an expression of guarded optimism: Imaginative reuse of some existing tools of scholarly publishing (even by some marginalized members of the prestige economy - or perhaps especially by them) may facilitate the emergence of a viable open access norm.

Today's Indian Wars: Between Cyberspace And The United Nations, S. James Anaya

Publications

No abstract provided.

The Rose Theorem?, Michael Heller

Faculty Scholarship

Law resists theorems. We have hypotheses, typologies, heuristics, and conundrums. But, until now, only one plausible theorem – and that we borrowed from economics. Could there be a second, the Rose Theorem?

Any theorem must generalize, be falsifiable, and have predictive power. Law's theorems, however, seem to require three additional qualities: they emerge from tales of ordinary stuff; are named for, not by, their creators; and have no single authoritative form. For example, Ronald Coase wrote of ranchers and farmers. He has always shied away from the Theorem project. When later scholars formalized his parable, they created multiple and inconsistent …

Contextualizing The Losses Of Allotment Through Literature, Kristen A. Carpenter

Publications

In this article, the Author undertakes a law and literature approach to a major Indian law problem: understanding the losses of allotment. Allotment was a mid 19th - early 20th century federal legislative program to take large tracts of land owned by Indian tribes, allocate smaller parcels to individual Indians, and sell off the rest to non-Indians. The idea was that Indians would abandon traditional patterns of subsistence to become American-style farmers, and great tracts of land would be freed up for the advance of white settlement. A key component of the federal government's larger project of assimilating Indians into …

The American Transformation Of Waste Doctrine: A Pluralist Interpretation, Jedediah S. Purdy

Faculty Scholarship

This Article draws on an episode of nineteenth-century American doctrinal history to develop a pluralist approach to explaining changes in property law. It addresses the question: What causes ac­count for the development of property regimes across time? The courts' answer emerges from examination of nineteenth-century American reform of the law of waste, which governs the changes te­nants may make in the estates they occupy. A line of state supreme court cases, beginning in 1810, transformed the doctrine from the strict rule of English common law to a flexible standard. Economic analysis helps to explain the change; the full story, however, …

The Law Of Yards, James C. Smith

Scholarly Works

Property law regimes have a significant impact on the ability of individuals to engage in freedom of expression. Some property rules advance freedom of expression, and other rules retard freedom of expression. This Article examines the inhibiting effects on expression of public land use regulations. The focus is on two types of aesthetic regulations: (1) landscape regulations, including weed ordinances, that regulate yards; and (2) architectural regulations that regulate the exterior appearance of houses. Such regulations sometimes go too far in curtailing a homeowner's freedom of expression. Property owners' expressive conduct should be recognized as “symbolic speech” under the First …

Indefeasible Title In British Columbia: A Comment On The November 2005 Amendments To The Land Title Act, Douglas C. Harris

All Faculty Publications

In November 2005, as part of an omnibus statute amending 11 different acts, the British Columbia government made several significant changes to BC's Land Title Act. The government announced that the changes to the title registration system would 'ensure immediate legal certainty of land title for a person acting in good faith, who unknowingly acquired a fee simple interest in the property through a forged transfer, provided the individual did not participate in the fraud'. In an effort to assuage fears of those who had acquired interests in a system that, if it needed to be fixed, had been somewhat …

Finding A Right To The City: Exploring Property And Community In Brazil And In The United States, Ngai Pindell

Scholarly Works

Increasing poor people's access to property and shelter in urban settings raises difficult questions over how to define property and, likewise, how to communicate who is entitled to legal property protections. An international movement - the right to the city - suggests one approach to resolving these questions. This Article primarily explores two principles of the right to the city - the social function of property and the social function of the city - to consider how to better achieve social and economic justice for poor people in urban areas. Using Brazil as one example of a country incorporating these …

Fear And Loathing: Combating Speculation In Local Communities, Ngai Pindell

Scholarly Works

Local governments commonly respond to economic and social pressures on property by using their legal power to regulate land uses. These local entities enact regulations that limit property development and use to maintain attractive communities and orderly growth. This Article argues that government entities should employ their expansive land use powers to limit investor speculation in local markets by restricting the resale of residential housing for three years. Investor speculation, and the upward pressure it places on housing prices, threatens the availability of affordable housing as well as the development of stable neighborhoods. Government regulation of investor speculation mirrors existing, …

Putting Humpty Dumpty Back Together: Experimental Evidence Of Anticommons Tragedies, Ben Depoorter, Sven Vanneste

Faculty Scholarship

No abstract provided.

The Uselessness Of Public Use, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

The Supreme Court decision of Kelo v. City of New London has been denounced by legal scholars from the entire political spectrum and given rise to numerous legislative proposals to reverse Kelo's deferential interpretation of the Public Use Clause of the Fifth Amendment, and instead, limit the use of eminent domain when taken property is transferred to private hands. In this Essay we argue that the criticisms of Kelo are ill-conceived and misguided. They are based on a narrow analysis of eminent domain that fails to take into account the full panoply of government powers with respect to property. Given …

Metaphor, Objects, And Commodities, George H. Taylor, Michael J. Madison

Articles

This Article is a contribution to a Symposium that focuses on the ideas of Margaret Jane Radin as a point of departure, and particularly on her analyses of propertization and commodification. While Radin focuses on the harms associated with commodification of the person, relying on Hegel's idea of alienation, we argue that objectification, and in particular objectification of various features of the digital environment, may have important system benefits. We present an extended critique of Radin's analysis, basing the critique in part on Gadamer's argument that meaning and application are interrelated and that meaning changes with application. Central to this …

The "Public Use" Of Private Sports Stadiums: Kelo Hits A Homerun For Private Developers, Cristin F. Hartzog

Vanderbilt Journal of Entertainment & Technology Law

Part I of this note briefly discusses the principle of eminent domain and the evolution of the Supreme Court's interpretation of the Takings Clause. Part II analyzes the application of the Court's interpretations of the "public use" requirement of the Takings Clause on the issue of whether it is proper for a state to exercise its power of eminent domain pursuant to a stadium development project. Finally, Part III offers a solution to the conflict between property owners' interests in keeping their land and cities' interests in creating economic growth.

The Emergence Of Exacted Conservation Easements, Jessica Owley Lippmann

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

The American Transformation Of Waste Doctrine: A Pluralist Interpretation, Jedediah Purdy

Faculty Scholarship

No abstract provided.

The Just And The Wild, Laura S. Underkuffler

Faculty Scholarship

No abstract provided.

The Robin Hood Antithesis – Robbing From The Poor To Give To The Rich: How Eminent Domain Is Used To Take Property In Violation Of The Fifth Amendment, Daniel C. Orlaskey

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Disclosure Protection: Franchises And Food Court Leases, James R. Cataland

Cleveland State Law Review

The shopping center industry continues to enjoy relative freedom from governmental regulation and operates within the framework of a long term, well established body of favorable commercial landlord/tenant law. Conversely, certain "'unfair and deceptive practices" in the sale of franchises have led to comprehensive consumer protection legislation at both the state and federal level. In 1978, the Federal Trade Commission promulgated a series of uniform disclosure requirements that a franchise or business opportunity seller must make when soliciting a prospective buyer. Often, the prospective buyer of a fast food franchise is an unsophisticated husband and wife, owner/operator, commonly referred to …

Ariadne's Thread: Leading Students Into And Out Of The Labyrinth Of The Rule Against Perpetuities , Maureen E. Markey

Cleveland State Law Review

This Article focuses partly on my own approach to teaching the Rule Against Perpetuities, but it addresses the approaches of others based on the survey responses. Although I have developed a method that works fairly well for my classes, I am always open to suggestions from others for modifying and improving that approach. Of course, a single method, no matter how good it appears to be, will not work for everyone. Therefore, I have incorporated a number of approaches into this Article so that those wanting to develop or improve their teaching of the Rule can pick and choose among …

Defending The Polygon: The Emerging Human Right To Communal Property, Thomas T. Ankersen, Thomas K. Ruppert

UF Law Faculty Publications

For many peoples in the developing world, "homeland security" has a meaning very different from its post-September 11 meaning in the United States. In many cases, peoples who have a shared cultural conception of "territory" within nation-states have begun to adopt the dominant Western property paradigm of land titling to formalize their rights to that territory. Many view this paradigm and the individualization of property rights it facilitates as an inevitable outcome of the inexorable march of social evolution, evidenced by the end of the twentieth century collapse of communism. The Enlightenment era conception of fungible individual property emerged triumphant. …

Propertization, Contract, Competition, And Communication: Law's Struggle To Adapt To The Transformative Powers Of The Internet, David R. Barnhizer

Law Faculty Articles and Essays

This Symposium focuses in part on the ideas of Margaret Radin as a point of departure for the various contributions. A key part of the analysis includes the process she calls propertization in the context of intellectual property rules and the Internet. The approach taken in this introductory essay is twofold. The first part presents some key points raised by the Symposium contributors. Of course, that overview is necessarily incomplete, because the contributions represent a rich group of analyses about vital concerns relating to how our legal system should respond to the challenge of the Internet and information systems through …

Unique Property: A Supplemental Annotated Bibliography, Nancy Levit

Faculty Works

This bibliography covers law review articles and supplemental A.L.R. entries published after 2002. For literature published from 1997-2002, see Nancy Levit & Robert RM. Verchick, Unique Property: An Annotated Bibliography, 18 J. Am. Acad. Matrim. Law. 589 (2004). A.L.R. entries, the titles of which are usually self-explanatory, are cited, but not annotated. Similarly, articles that concern only a single case or a single state are cited, but not annotated.

Beyond Kelo: Thinking About Urban Development In The 21st Century, Wendell E. Pritchett

All Faculty Scholarship

No abstract provided.

Navigating Residential Attorney Approvals: Finding A Better Judicial North Star, 39 J. Marshall L. Rev. 171 (2006), Debra Pogrund Stark

UIC Law Review

No abstract provided.

The History Of Slave Marriage In The United States, 39 J. Marshall L. Rev. 299 (2006), Darlene C. Goring

UIC Law Review

No abstract provided.

No Guarantees: Lessons From The Property Rights Gained And Lost By Married Women In Two American Colonies, Yvette Joy Liebesman

All Faculty Scholarship

While our own history demonstrates long-term forward progress and expansion of women’s rights, it is also marked with periods of back-treading, and there is no absolute assurance that the rights women in the United States enjoy today will be present in the future. Rights of property, suffrage, and liberty are not guaranteed to last forever, and not just in places such as Iran and Afghanistan. Indeed, we are only a few generations removed from circumstances in which our own freedom was sharply curtailed, and they are under a continuing threat.

Regulating Land Use In A Constitutional Shadow: The Institutional Contexts Of Exactions, Mark Fenster

UF Law Faculty Publications

The regulatory takings doctrine, the Supreme Court declared in Lingle v. Chevron, concerns the effects of a regulation on the incidents of property ownership. It serves as a constitutional protection against regulations that impose the functional equivalent to a classic taking of private property (an appropriation by the state or an ouster), and it requires compensation for owners who are subject to such regulations. Just as significant as declaring what the regulatory takings doctrine is, theCourt in Lingle also declared what it is not: it is not a judicial check onthe validity or reasonableness of a regulation that …

The Changing Culture Of American Land Use Regulation: Paying For Growth With Impact Fees, Ronald H. Rosenberg

Faculty Publications

No abstract provided.

Six Myths About Kelo: Kelo V. City Of New London, Thomas W. Merrill

Faculty Scholarship

Kelo v. City of New London, 125 S. Ct. 2655 (2005), is unique in the modem annals of law in terms of the negative response it has evoked. The initial reaction by lawyers familiar with the case was one of lack of surprise. Within days, however, Internet bloggers, television commentators, and neighbors talking over backyard fences decided that Keio was an outrage. Even Justice Stevens sought to distance himself from his own majority opinion, declaring in a speech to a bar association that he thought the outcome was "unwise," and that he would not have supported it if he were …