Law Commons^™

Maine Roads And Easements, Knud E. Hermansen, Donald R. Richards

Maine Law Review

Black's Law Dictionary defines an easement as a right of use over the property of another. An easement is a right in the owner of one parcel of land, by reason of such ownership, to use the land of another for a special purpose not inconsistent with a general property right in the owner. It is an interest that one person has in the land of another. A primary characteristic of an easement, that its burden falls upon the possessor of the land from which it issued, is expressed in the statement that the land constitutes a servient estate or …

Self Incrimination And Cryptographic Keys, Gregory S. Sergienko

Greg Sergienko

Modern cryptography can make it virtually impossible to decipher documents without the cryptographic key thus making the availability of the contents of those documents depend on the availability of the key. This article examines the Fourth and Fifth Amendments' protection against the compulsory production of the key and the scope of the Fifth Amendment immunity against compelled production. After analyzing these questions using prevailing Fourth and Fifth Amendment jurisprudence, I shall describe the advantages of a privacy-based approach in practical and constitutional terms. [excerpt]

The Law Of Taking Elsewhere And, One Suspects, In Maine, Orlando E. Delogu

Maine Law Review

The debate as to the meaning of the Taking Clause in the Fifth Amendment of the United States Constitution seems unending. This short, almost cryptic constitutional provision, “nor shall private property be taken for public use, without just compensation,” has over the years given rise to both court challenges and philosophic debate aimed at parsing out the meaning and parameters of this language. As the need for regulatory controls (imposed by every level of government) has increased, the number of challenges and the stridency of the debate has also increased. Moreover, these challenges have increasingly found their way to the …

When Should Rights "Trump"? An Examination Of Speech And Property, Laura S. Underkuffler

Maine Law Review

In his well-known article, Property, Speech, and the Politics of Distrust, Professor Richard Epstein—a leading contemporary voice in the fields of property theory and constitutional law—makes a simple but compelling argument. There has been, he argues, a mistake in “the dominant mode of thinking about property rights during the past fifty years [that] has been ... of constitutional dimensions.” This mistake, in Professor Epstein's view, is the refusal of the federal courts to accord to individual property rights the same kind of protection from government regulation that is accorded to other constitutional rights. Using free speech as his example, Professor …

Memo To Environmentalists: Brace For The Three Ps, Erin Ryan

Scholarly Publications

This very short essay, written as a memo to environmental advocates during a destabilizing moment in environmental law, advises them to (1) resist federal preemption of state regulation, (2) scrutinize the strategic deployment of property rights to block future regulation, and (3) think creatively about how to accomplish the goals of national-level policy without the benefit of federal authority. In short, it advises that advocates ensure that the campaign to dismantle federal environmental law does not spill over into displacing state and local efforts to fill the void. They also must push back against the strategic deployment of property rights …

A Fracking Mess: Just Compensation For Regulatory Takings Of Oil And Gas Property Rights, Kevin J. Lynch

Sturm College of Law: Faculty Scholarship

As the Trump administration tries to roll back federal regulations on the oil and gas industry, constituents depend on state and local governments for protection from the worst impacts of industrial-scale fracking. Yet as the debate about proper regulation of the oil and gas industry continues, the specter of potential takings liability looms over the public discourse. Such liability is premised on the idea that government regulation of fracking might constitute a taking of private property that requires payment of just compensation — that is, the amount of money that should be paid to owners if indeed there is a …

The Comparative Institutions Approach To Wildlife Governance, Dean Lueck

Texas A&M Law Review

This Article develops a comparative institutions approach to wildlife governance by examining the property rights to the habitat and the stocks of wild populations. The approach is based on the transaction cost and property rights approach and lies primarily in the traditions of Coase, Barzel, Ostrom, and Williamson. The approach recognizes the often-extreme costs of delineation and enforcement of property rights to wild populations and their habitats; thus, all systems are notably imperfect compared to the typical neoclassical economics approach. These costs arise because wildlife habitat and wildlife populations are part of the land which has many attributes and uses—most …

Drought And Public Necessity: Can A Common-Law "Stick" Increase Flexibility In Western Water Law?, Robin Kundis Craig

Texas A&M Law Review

Drought is a recurring—and likely increasing—challenge to water rights administration in western states under the prior appropriation doctrine, where “first in time” senior rights are often allocated to non-survival uses such as commercial agriculture, rather than to drinking water supply for cities. While states and localities facing severe drought have used a variety of voluntary programs to reallocate water, these programs by their very nature cannot guarantee that water will in fact be redistributed to the uses that best promote public health and community survival. In addition, pure market solutions run the risk that “survival water” will become too expensive …

Climate Change Challenges For Land Conservation: Rethinking Conservation Easements, Strategies, And Tools, W. William Weeks, Jessica Owley, Federico Cheever, Adena R. Rissman, M. Rebecca Shaw, Barton H. Thompson

Articles by Maurer Faculty

Climate change has significant consequences for land conservation. Government agencies and nonprofit land trusts heavily rely on perpetual conservation easements. However, climate change and other dynamic landscape changes raise questions about the effectiveness and adaptability of permanent conservation instruments like conservation easements. Building upon a study of 269 conservation easements and interviews with seventy conservation-easement professionals in six different states, we examine the adaptability of conservation easements to climate change. We outline four potential approaches to enhance conservation outcomes under climate change: (1) shift land-acquisition priorities to account for potential climate-change impacts; (2) consider conservation tools other than perpetual conservation …

Prospective Grandfathering, Christopher Serkin, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Legal change has the potential to disrupt settled expectations and property rights. The Takings Clause provides protection from the most significant costs by requiring compensation following a change in the law, but threats of takings claims can discourage policymakers from adopting sound laws and policies. If specific legal changes can be anticipated far enough in advance, are there tactics available to reduce the risk of takings claims and blunt their political force in the future? We identify innovative tools that preserve regulatory flexibility so that legal changes can avoid takings liability, and we do so specifically in the context of …

The Sharing Stick In The Property Rights Bundle: The Case Of Short Term Rentals & Hoas, Donald J. Kochan

Donald J. Kochan

Playing With Real Property Inside Augmented Reality: Pokemon Go, Trespass, And Law's Limitations, Donald J. Kochan

Donald J. Kochan

Tahoe-Sierra Preservation Council, Inc. V. Tahoe Regional Planning Agency: The Reemergence Of Penn Central And A Healthy Reluctance To Craft Per Se Regulatory Takings Rules, Philip R. Saucier

Maine Law Review

In Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, the Supreme Court held that a moratorium on development imposed during the process of devising a comprehensive land use plan did not constitute a per se taking of property requiring compensation under the Takings Clause of the United States Constitution. The scope of Tahoe-Sierra, and thus its ultimate impact on Supreme Court takings jurisprudence, had been severely narrowed and redefined by the courts since the landowners first alleged a taking over fifteen years before the issue was ultimately decided by the Supreme Court. It is important to note that this …

Getting Steamy With Property Law: Are Geothermal Resources A Mineral Right In West Virginia?, Joshua A. Lanham

West Virginia Law Review

No abstract provided.

Property Rights In Augmented Reality, Declan T. Conroy

Michigan Telecommunications & Technology Law Review

Increasingly, cities, towns, and even rural communities are being slowly reshaped by a dynamic yet initially imperceptible phenomenon: the elaboration of augmented reality. Through applications that place virtual features over specific, real-world locations, layers of augmented reality are proliferating, adding new elements to an increasingly wide range of places. However, while many welcome the sudden appearance of arenas for battling digital creatures in their neighborhood or the chance to write virtual messages on their neighbor’s wall, the areas being augmented oftentimes are privately owned, thereby implicating property rights. Many intrusions, of course, are de minimis: an isolated, invisible Pikachu unexpectedly …

New Forms Of Inequality In Cape Town: A Comparative Economic And Legal Study To Defend The Right To Housing, Wellington Migliari

Journal of Comparative Urban Law and Policy

Inequality has been a topic in the core of many studies about urban development. Different theories contributed enormously to innovative reflections on the 2008 global financial crisis. However, the perverse economic practices on city construction and the housing issues remain. The aim of the present article is to show how far the right to housing in Cape Town has been affected by risky real estate investments. Unemployment rates, public money being involved in the property market and mortgage system for speculative purposes are some of the dependent variables that can shed light on these new urban forms of inequality in …

Appetite For Destruction: Symbolic And Structural Facets Of The Right To Destroy Digital Property, Joshua A.T. Fairfield

Joshua A.T. Fairfield

No abstract provided.

Property Rights And Freedom: The Keys To Improving Life In Indian Country, Adam Crepelle, Walter E. Block

Washington and Lee Journal of Civil Rights and Social Justice

American Indians are at the bottom of nearly every indicator of welfare and have been since the founding of the United States. The present paper focuses on but two of the causal agents: lack of private property rights and a dearth of economic freedom. Although addressing these issues will not solve all of Indian country’s problems, strengthening property rights and improving economic freedom will generate opportunities for American Indians to improve their economic and social well-being. This recommendation is easy to implement and aligns well with tribal culture pre-contact.

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 …

Arkansas Airspace Ownership And The Challenge Of Drones, Lindsey P. Gustafson

University of Arkansas at Little Rock Law Review

No abstract provided.

Sheldon Halpern And The Right Of Publicity, Marshall A. Leaffer

Articles by Maurer Faculty

No abstract provided.

Landowners' Fcc Dilemma: Rereading The Supreme Court's Armstrong Opinion After The Third Circuit's Depolo Ruling, Gerald S. Dickinson

Articles

In Armstrong v. Exceptional Child Ctr., Inc., the Supreme Court took a turn in its refusal to provide avenues for relief to private actors against the state in federal court, finding that the Supremacy Clause does not provide for an implied right of action to sue to enjoin unconstitutional actions by state officers. Many critics of that decision, including the four dissenting Justices, question the wisdom of the ruling generally. However, from a property rights perspective, the decision sheds light on a dilemma unforeseen by many scholars and made most apparent by a recent Third Circuit decision, Jeffrey DePolo …

Sports And The First Amendment: Ufc Is The Latest Challenger, Jason J. Cruz

Marquette Sports Law Review

None

Arrr... Whose Booty, Mates? Who Possesses Legal Title To A Home Run Baseball That Lands Outside A Stadium's Confines?, Michael R. Gavin

Marquette Sports Law Review

None

The Case For Gmos: Dealing With Clashes Between Property Rights And Health And Safety Concerns, Kline C. Moore

Vanderbilt Journal of Transnational Law

A comparative analysis of international decisions concerning genetically modified organism (GMO) controversies reveals the judicial inconsistency that is often applied to the property rights of GMO producers and researchers. Courts often find that there are strong property right interests in GMOs, but when these rights clash with health and safety concerns, they are often minimized or completely forgotten; therefore, future growth in biotechnology is inhibited. This Note proposes a solution to this issue that better takes into account all stakeholders and allows for future investment and research into GMOs. The solution draws upon the lessons learned from current regulatory and …

Uncivil Asset Forfeiture: An Analysis Of Civil Asset Forfeiture And Virginia H.B. 48, Brent Ashley

Law Student Publications

Introduced in 2016, Virginia House Bill 48 proposed civil forfeiture reforms which would raise the burden of proof required for law enforcement agencies to seize property related to criminal activity. Civil forfeiture has grown in recent decades to deprive innocent property owners of their belongings, often due to connections between the property seized and persons accused of using the property illegally without the owners’ consent. Additionally, with a burden of proof much lower than the standard that must be met for a criminal conviction, civil forfeiture as it stands now risks depriving property owners of their possessions despite a lack …

Beach Law Cleanup: How Sea-Level Rise Has Eroded The Ambulatory Boundaries Legal Framework, Alyson C. Flournoy

UF Law Faculty Publications

As the sea level rises, the boundaries between privately owned coastal property and sovereign submerged lands held in public trust are becoming increasingly contested. The common law doctrines that determine these boundaries under conditions of change—primarily accretion, erosion, reliction, and avulsion—have important implications for all those involved in adaptation planning along our coasts. This includes private owners of coastal property, local government officials seeking to develop and implement adaptation strategies, beachgoers seeking to use shrinking beaches, beach-tourism-dependent businesses, and courts facing cases involving boundary disputes at the water’s moving edge. This paper raises the questions of whether and how the …

Property As Prophesy: Legal Realism And The Indeterminancy Of Ownership, John Humbach

Case Western Reserve Journal of International Law

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 …

Dispersing The Cloud: Reaffirming The Right To Destroy In A New Era Of Digital Property, Daniel Martin

Washington and Lee Law Review

No abstract provided.

You Buy It, You Break It: A Comment On Dispersing The Cloud, Aaron Perzanowski

Washington and Lee Law Review

No abstract provided.