Legal History Commons^™

Property As Legal Knowledge: Means And Ends, Annelise Riles

Annelise Riles

This article takes anthropologists’ renewed interest in property theory as an opportunity to consider legal theory-making as an ethnographic subject in its own right. My focus is on one particular construct – the instrument, or relation of means to ends, that animates both legal and anthropological theories about property. An analysis of the workings of this construct leads to the conclusion that rather than critique the ends of legal knowledge, the anthropology of property should devote itself to articulating its own means.

Dilemmas Of Group Autonomy: Residential Associations And Community, Gregory S. Alexander

Gregory S Alexander

We are a society of groups. De Tocqueville's observation that the principle of association shapes American society remains as valid today as it was in the mid-nineteenth century. For us, as for others, the vita activa is participation in a seemingly limitless variety of groups. The importance of group activity in our national character has strongly influenced the agenda of political questions that recur in American political and legal theory. One of the fundamental normative questions on this agenda concerns the proper relationship between groups and the polity. To what extent should the polity foster connections between associations and the …

Comparing The Two Legal Realisms—American And Scandinavian, Gregory S. Alexander

Gregory S Alexander

No abstract provided.

The Concept Of Property In Private And Constitutional Law: The Ideology Of The Scientific Turn In Legal Analysis, Gregory S. Alexander

Gregory S Alexander

In recent academic writing on the general problem of constitutional protection of property under the takings clause and due process clauses, a mode of analysis has emerged that is evidently different from the conventional analysis of constitutional property claims. In general terms, this new mode is characterized by an effort to analyze claims on an openly teleological and systematic basis. To be sure, this mode is not exclusively of recent origin. But it is a discernible trend in the body of scholarship that discusses constitutional protection of property in the context of previously unfamiliar sorts of private economic interests. Most …

Property As Propriety, Gregory S. Alexander

Gregory S Alexander

No abstract provided.

Is Land Special? The Unjustified Preference For Landownership In Regulatory Takings Law, Eduardo M. Peñalver

Eduardo M. Peñalver

This article critiques the Court's attempt to cabin the Lucas "per se" takings rule by limiting it to real property. It argues that the distinction between real and personal property cannot be justified by history or the differing expectations of property owners. It then applies five theoretical frameworks (libertarian, personhood, utilitarian, public choice, and Thomistic-Aristotelian natural law) and finds that none of them supports the jurisprudential distinction between real and personal property. As a result, the article argues that "because the distinction between personal and real property is an unprincipled one, it cannot save the Court from the unpalatable implications …

Reconstructing Richard Epstein, Eduardo M. Peñalver

Eduardo M. Peñalver

No abstract provided.

Property As Entrance, Eduardo M. Peñalver

Eduardo M. Peñalver

No abstract provided.

Property Metaphors And Kelo V. New London: Two Views Of The Castle, Eduardo M. Peñalver

Eduardo M. Peñalver

No abstract provided.

Law In Ancient Egyptian Fiction, Russ Versteeg

Georgia Journal of International & Comparative Law

No abstract provided.

The Beginning Of The End Of Coverture: A Reappraisal Of The Married Woman’S Separate Estate, Allison Anna Tait

Allison Anna Tait

Before statutory enactments in the nineteenth century granted married women a limited set of property rights, the separate estate trust was, by and large, the sole form of married women’s property. Although the separate estate allowed married women to circumvent the law of coverture, historians have generally viewed the separate estate as an ineffective vehicle for extending property rights to married women. In this Article, I reappraise the separate estate’s utility and argue that Chancery’s separate estate jurisprudence during the eighteenth century was a critical first step in the establishment of married women as property-holders. Separate estates guaranteed critical financial …

The Recognition Of Indigenous Peoples’ Land: Application Of The Customary Land Rights Model On The Bedouin Case, Morad Elsana

Morad Elsana

ABSTRACT This paper introduces new possibilities for the recognition of Bedouin land in Israel. It shows that the application of the prevalent methods of indigenous land recognition is possible in the Bedouin case, and it would bring legal recognition of Bedouin land rights. The paper first presents the recognition of indigenous peoples land right in Canada, Australia, and other countries, while concentrating on the native title doctrine and the adoption of indigenous customary law. It shows how many colonial legal systems eventually discovered that their judicial systems included principles that recognize indigenous customary land rights. The application of such principles …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

Adjudications, Brigette Buynak, Darcy S. Bushnell

Water Matters!

Adjudications are lawsuits that take place in state or federal court to resolve all claims to water use in the state of New Mexico, including those of Pueblos, tribes and the federal government. These cases are required by statute to create a formal inventory of water uses and to facilitate administration of New Mexico’s surface and groundwater. The geographic scope of each case is generally described by a stream system and occasionally by a groundwater basin. By statute, the State is always the plaintiff. The mission is to formally identify and recognize all valid water rights in each area being …

New Mexico Water Law Capsules, Stephanie Tsosie

Water Matters!

This article contains a list some of the key cases decided in the state and federal courts of New Mexico with very brief descriptions of the rulings. The finalized cases have been arranged by topic. This chapter is intended to be a quick and handy reference guide and not a thorough summary of the facts and law of each case. This year we have also included a list of water law statutes.

Drought, Adrian Oglesby

Water Matters!

New Mexico is renowned for its high deserts, mild climate, and abundant sunshine. Incidentally, these physical attributes, which make New Mexico so unique and beautiful, are also characteristic of a naturally dry environment. The state has been subjected to severe drought conditions in the past, alternating with times of uncharacteristically high supplies of moisture upon which its population has at times over-relied.

This article will provide various definitions of drought and a short history of drought in New Mexico; discuss impacts of drought on the state’s human water user communities and environment; discuss in brief the priority call and water …

Priority Administration, Ed Merta

Water Matters!

Since the turn of the twenty first century, drought conditions have frequently stricken much of New Mexico. Such intervals of extreme dryness have been a permanent, recurring feature of the state’s climate for at least two thousand years, according to tree ring data and other scientific evidence. Some of these past droughts lasted for decades, exceeding in severity the Dust Bowl of the 1930sand the great New Mexico drought of the 1950s. Today, climate change models indicate that the Southwest will likely become even hotter, potentially making future droughts in New Mexico more extreme. Managing water shortages promises to become …

Active Water Resource Management, Paul Bossert, Gregory C. Ridgley

Water Matters!

For decades, most of the waters of the State of New Mexico have been the subject of water rights adjudications to establish all the water rights. Stream systems and sub-basins geographically define the adjudications. There are twelve active cases. However, complete adjudication of all New Mexico water rights is still many years away. Meanwhile, water use in the state has evolved.New water users increasingly look to acquire existing water rights rather than developing new rights. Decisions on administration, distribution, and redistribution of water have to be made.

It was widely held, though not unanimously, that the State Engineer needed greater …

Inter-Basin Water Transfers, Anne Minard

Water Matters!

Inter-basin water transfers move water from one watershed to another. As droughts constrict the availability of water, and cities grow larger and thirstier, such transfers are increasingly being eyed as a solution. Although inter-basin transfers usually do not increase the overall availability of water in a state, they can move water to where it is needed most. Some of the main proponents of inter-basin transfers are pro-growth city and state governments as the re-allocation of water across watersheds allows for flexibility in planning for future growth.

Domestic Wells, Paul Bossert, Sarah Armstrong

Water Matters!

The domestic well statutes direct that the State Engineer “shall” issue a permit for certain types of temporary or low volume wells, including wells for household use. For the past fifty-five years, the Office of the State Engineer (OSE) has interpreted this to mean that such permits are granted with no evaluation, public notice, or hearing.

Water For New Mexico Rivers, Beth Bardwell, Adrian Oglesby

Water Matters!

The Rio Grande, the Pecos, the Gila, the San Juan, the Canadian—New Mexico’s rivers are synonymous with the state’s culture and natural heritage. New Mexicans overwhelmingly care about the health of the state’s rivers and that includes flows to support fish and river dependent wildlife. Rivers, wetlands, and riparian areas comprise a very small part of our landscape—a mere 1 percent. This 1 percent plays an essential role in renewing the state’s water supply for its two million residents; for sustaining the state’s second largest industry—tourism; for producing food and fiber; and for sustaining New Mexico’s web of life. Eighty …

Navajo-Gallup Water Supply Project, Jerold Widdison, Pat Page

Water Matters!

In March of 2009, the Congress passed and President Obama signed into law the“Omnibus Public Land Management Act of 2009". The Project is a major endeavor for northwestern New Mexico. In one sense,authorization of the project culminates years of work. In another sense, it means the beginning of many additional years of effort. There is much to be done to construct and carry the project forward to reality, including work for the federal government,the State of New Mexico, the Navajo Nation, and the city of Gallup. In view of the Project’s magnitude, this article reviews only its major aspects

The Nambé, Pojoaque, San Ildefonso, And Tesuque Pueblos Settlement, Paul Bossert, Sarah Armstrong

Water Matters!

The “Aamodt case” is a complex, long-running adjudication of water rights in the Pojoaque River watershed northwest of Santa Fe. In 1966,it was filed in federal court as State of New Mexico, ex rel. State Engineer,et al. v. Aamodt, et al. The parties include the State, through the State Engineer, about 5,600 non-Indian claimants, the Pueblos of Nambé, Pojoaque,San Ildefonso, and Tesuque, and governmental entities such as the county of Santa Fe, many acequias, the Pojoaque Valley Irrigation District, and several federal and state agencies.

Salt Basin, Jerold Widdison, Stephanie Tsosie

Water Matters!

The Salt Basin of south-central New Mexico presents several problems of resource utilization. The basin is a large but little-known area—dry, inhospitable—but it has a sought-after supply of groundwater and perhaps a supply of natural gas and oil. In addition, the basin features vast stretches of grassland in an essentially intact natural environment. The“hows” and the “whethers” of using and conserving these resources have been vigorously argued for several years.

Taos Pueblo Water Rights Settlement, Paul Bossert, Darcy S. Bushnell

Water Matters!

In November of 2010, the Congress passed the Claims Resolution Act and on December 8, President Obama signed it into law. Title V of the Claims Act, the Taos Pueblo Indian Water Rights Settlement Act, settles the Pueblo portion of the Abeyta case and approves an agreement signed in 2006 by officials from Taos Pueblo, the State of New Mexico, and other interested water rights owners in the Taos area. The settlement act also helps resolve the non-Indian portion of Abeyta. The measure quantifies Taos Pueblo’s water rights and protects the interests of local acequias, the Town of Taos, and …

Water Trust Board, Joanne Hilton, Darcy S. Bushnell

Water Matters!

In 2001, the New Mexico legislature passed the Water Project Finance Act. The stated purpose of the Water Project Finance Act is to provide a financing mechanism to promote water use efficiency, water resource conservation and protection, and fair distribution and allocation of water to all users. The Water Trust Board was created in the Act. Its purpose is to: 1) oversee and administer the Water Trust Fund and Water Project Fund; 2) review and recommend funding for qualifying water projects to the legislature; and 3)pursue additional funding opportunities.

Strategic Water Reserve, Brigette Buynak, Stephanie Tsosie

Water Matters!

The Strategic Water Reserve (Reserve) established in 2005 transforms New Mexico’s policies regarding river management. The Reserve is a pool of publicly held water rights dedicated to keeping New Mexico’s rivers flowing to meet the needs of river-dependent endangered species and to fulfill our water delivery obligations to other states. It is a tool for New Mexico to achieve sensible and sustainable water policies by balancing water use between cities, industry, agriculture, and the rivers of the state.

Water Conservation, Consuelo Bokum

Water Matters!

New Mexico always has had periods of water shortages, some far more long lasting and devastating than others. As warming temperature and changing weather patterns continue to develop, the likelihood that water shortages—like those felt throughout the state from 2010 through 2013—will occur with greater frequency. These changes can and have caused significant economic and environmental damage, and the risk of more harm will not improve unless we improve our water management significant.

Why Restate The Bundle? The Disintegration Of The Restatement Of Property, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

The American Law Institute (ALI) has devoted a great deal of time and energy to restating the law of property. To date, the ALI has produced 17 volumes that bear the name First, Second, or Third Restatement of Property. There is unquestionably much that is valuable in these materials. On the whole, however, the effort has been a disappointment. Some volumes seek faithfully to restate the consensus view of the law; others are transparently devoted to law reform. The ratio of reform to restatement has increased over time, to the point where significant portions of the Third Restatement …

Lost Classics Of Intellectual Property Law, Michael J. Madison

Articles

Santayana wrote, “Those who cannot remember the past are condemned to repeat it.” American legal scholarship often suffers from a related sin of omission: failing to acknowledge its intellectual debts. This short piece attempts to cure one possible source of the problem, in one discipline: inadequate information about what’s worth reading among older writing. I list “lost classics” of American scholarship in intellectual property law. These are not truly “lost,” and what counts as “classic” is often in the eye of the beholder (or reader). But these works may usefully be found again, and intellectual property law scholarship would be …