Property Law and Real Estate Commons^™

Non-Enforcement Takings, Timothy M. Mulvaney

Timothy M. Mulvaney

The non-enforcement of existing property laws is not logically separable from the issue of unfair and unjust state deprivations of property rights at which the Constitution's Takings Clause takes aim. This Article suggests, therefore, that takings law should police allocations resulting from non-enforcement decisions on the same "fairness and justice" grounds that it polices allocations resulting from decisions to enact and enforce new regulations. Rejecting the extant majority position that state decisions not to enforce existing property laws are categorically immune from takings liability is not to advocate that persons impacted by such decisions should be automatically or even regularly …

Dealing With Dirty Deeds: Matching Nemo Dat Preferences With Property Law Pragmatism, Donald J. Kochan

Donald J. Kochan

Introduction To Property, History & Climate Change In The Former Colonies Symposium Special Issue, Jill M. Fraley

Jill M. Fraley

None available.

The Phenomenon Of Substitution And The Statute Quia Emptores, Ronald B. Brown

Ronald Brown

Law students generally think that American property law is a confusing mix of unconnected, inconsistent and nearly incomprehensible rules. In fact, an overview of property law reveals a recurring pattern. In numerous situations, a successor in title takes the place of his or her predecessor regarding rights and responsibilities that are related to ownership of that land. That process is called substitution because the successor is substituted for the predecessor regarding those rights and responsibilities. But sometimes substitution happens automatically and other times it happens only if that is the parties' intent. Automatic substitution seems to follow the pattern established …

Review Of Jesse Dukeminier And James E. Krier, Property (4th Edition 1998), Andrew P. Morriss

Andrew P. Morriss

In this review, I will concentrate on two perspectives on the book. I first taught Property in the spring 1998 semester (using the third edition of Dukeminier and Krier) and am (as I write this) about to begin my second year of teaching the course. I can thus give the perspective of a new teacher of the subject. In addition, I am an economist as well as a lawyer and am deeply fascinated by legal history. I try to bring both law and economics and historical perspectives to my teaching. I therefore offer an evaluation of the book with respect …

The Rhetorics Of Taking Cases: It's Mine V. Let's Share, Susan Ayres

Susan Ayres

Regulatory takings cases originated in 1922 when Justice Holmes, in Pennsylvania Coal Co. v. Mahon, ruled that "while property may be regulated to a certain extent, if a regulation goes too far it will be recognized as a taking." This simple rule has resulted in over eighty years of case law that Carol Rose states has left takings law to "muddle along." While many legal scholars decry the incoherence and inconsistency of takings case law, this article provides a rhetorical analysis that explains the "muddle" as a result of rhetorical tensions between a Sophistic approach ("Let's Share") and an Aristotelian …

Super-Liens To The Rescue? A Case Against Special Districts In Real Estate Finance, Christopher K. Odinet

Christopher K. Odinet

Anti-Waste, Michael Pappas

Michael Pappas

It may be a bad idea to waste resources, but is it illegal? Legally speaking, what does “waste” even mean? Though the concept may appear completely subjective, this Article builds a framework for understanding how the law identifies and addresses waste. Drawing upon property and natural resource doctrines, the Article finds that the law selects from a menu of five specific, and sometimes competing, societal values to define waste. The values are: 1) economic efficiency, 2) human flourishing, 3) concern for future generations, 4) stability and consistency, and 5) ecological concerns. The law recognizes waste in terms of one or …

Using The Pervasive Method Of Teaching Legal Ethics In A Property Course, Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.

Technical Correction Or Tectonic Shift: Competing Default Rule Theories Under The New Uniform Probate Code, Lee-Ford Tritt

Lee-ford Tritt

Succession law, the law governing trusts and estates, is experiencing an identity crisis. Similar to an individual going through a midlife crisis, the laws of succession seem to be in search of a new purpose or meaning. It seems odd that a legal discipline as old as private property succession law would lack the continuity of some shared jurisprudential image. Yet, despite its historical legacy, succession law appears to have neither a complete descriptive theory (explaining what the law is) nor a complete normative theory (explaining what the law should be), hence the identity crisis. It may seem intuitive that …

Palazzolo V. Rhode Island: Takings, Investment-Backed Expectations, And Slander Of Title, Garrett Power

Garrett Power

No abstract provided.

Nothing “Errant” About It: The Berman And Midkiff Conference Notes And How The Supreme Court Got To Kelo With Its Eyes Wide Open, Benjamin Barros

Benjamin Barros

No abstract provided.