Property Law and Real Estate Commons^™

Stop The Beach Renourishment Stops Private Beachowners' Right To Exclude The Public, Kristen G. Juras, Sydney F. Ansbacher, Robert K. Lincoln

Faculty Law Review Articles

In this article, the authors examine the various measures implemented by state and local governments to enhance public access to and use of government-owned tidelands, streambeds, and lake shores and how, although not necessarily titled as such, many of these measures result, without payment of compensation, in an easement allowing public access to and use of private waterfront property.

Section I describes the rights of riparian property owners and the right of the public to use government-owned shores and tidelands, followed by a general overview of various state legislative and judicial responses designed to address the conflicts that arise when …

The Constructive Trust In Singapore: Five Persistent Puzzles, Hang Wu Tang

Research Collection Yong Pung How School Of Law

This paper investigates some persistent difficulties surrounding the constructive trust. The five persistent puzzles relating to the constructive trust that are considered in this paper are: the terminology puzzle, the institutional and remedial puzzle, the explanatory puzzle, the bankruptcy puzzle and the Torrens puzzle. It is the author’s thesis that these five enduring puzzles must be addressed and ultimately unravelled in order to ensure the coherent development of the law in this area.

Equal Standing With States: Tribal Sovereignty And Standing After Massachusetts V. Epa, Joseph Mead, Nicholas Fromherz

All Maxine Goodman Levin School of Urban Affairs Publications

In Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court held that Massachusetts was entitled to "special solicitude" in the standing analysis because it was sovereign. As a result, Massachusetts passed the standing threshold in a global warming case where an ordinary litigant may have been stymied. The Supreme Court’s analysis raises an interesting question: Are Indian tribes—which have been considered sovereign entities since before the founding, and which hold lands facing heavy environmental pressure—entitled to "special solicitude" as well? We think they should be.

To make this argument, we begin by discussing standing basics; dissecting Massachusetts v. …

Protecting The Good-Faith Tenant: Enforcing Retaliatory Eviction Laws By Broadening The Residential Tenant's Options In Summary Eviction Courts, Lauren A. Lindsey

Oklahoma Law Review

No abstract provided.

Some Optimism About Fair Use And Copyright Law, Michael J. Madison

Articles

This short paper reflects on the emergence of codes of best practices in fair use, highlighting both the relationship between the best practices approach and an institutional perspective on copyright and the relationship between the best practices approach and social processes of innovation and creativity.

Power Without Property, Still: Unger, Berle, And The Derivatives Revolution, Cristie Ford, Carol Liao

All Faculty Publications

This paper was produced for “In Berle’s Footsteps,” a symposium marking the launch of the Adolf A. Berle, Jr. Center on Corporations, Law and Society at the University of Seattle School of Law. It considers the light that the “derivatives revolution” sheds on the theoretical perspectives of Roberto Unger and Adolf Berle. While an unlikely pair, both Unger and Berle focused, in different ways, on the same issues: property, the power associated with property, and the impact of “smashing the atom” of traditional property rights. For Unger, breaking down consolidated property holding at the societal level was a pro-democratic move. …

Following Industry's Leed : Municipal Adoption Of Private Green Building Standards, Sarah B. Schindler

Faculty Publications

Local governments are beginning to require new, privately constructed and funded buildings to be “green” buildings. Instead of creating their own, locally-derived definitions of green buildings, many municipalities are adopting an existing private standard created by members of the building industry: LEED (Leadership in Energy and Environmental Design). This Article explains and assesses the privately promulgated LEED standards. It argues that the translation of LEED standards, which were intended to be voluntary, into law raises several theoretical and practical problems. Specifically, private green building ordinances that rely on LEED do not ensure a reduction in the negative local environmental impacts …

Forced Eviction And Resettlement In Cambodia: Case Studies From Phnom Penh, Chi Adanna Mgbako, Rijie Ernie Gao, Elizabeth Joynes, Anna Cave, Jessica Mikhailevich

Faculty Scholarship

This Article culminates a project undertaken by the Walter Leitner International Human Rights Clinic (“Leitner Clinic”) at Fordham Law School to examine the effects of land resettlement on communities that were forcibly evicted or are at risk of forced eviction from their homes, and, in particular, the effects of forced evictions on the Boeung Kak Lake community in central Phnom Penh and on people living with HIV/AIDS (“PLWHA”). This Article is based on field research the Leitner Clinic conducted in Cambodia in the fall of 2008. While in Cambodia, the Leitner Clinic interviewed families from four different communities: resettlement camps …

Abuse Of Rights: The Continental Drug And The Common Law, Anna Di Robilant

Faculty Scholarship

This Article deploys a comparative approach to question a widely shared understanding of the impact and significance of abuse of rights. First, it challenges the idea that abuse of rights is a peculiarly civilian "invention," absent in the common law. Drawing on an influential strand of functionalist comparative law, the Article identifies the "functional equivalents of the doctrine in the variety of malice rules and reasonableness tests deployed by American courts in the late-nineteenth and early-twentieth century in fields as diverse as water law, nuisance, tortious interference with contractual relations, and labor law. The Article investigates the reasons why in …

The Wholesale Decommissioning Of Vacant Urban Neighborhoods: Smart Decline, Public-Purpose Takings, And The Legality Of Shrinking Cities, Ben Beckman

Cleveland State Law Review

This Note is principally concerned with those takings that arise from the State's exercise of eminent domain, either directly or through the State's designee. To put a finer point on it, this Note addresses the distinction that property-rights advocates have developed to delegitimize certain types of takings. This distinction divides condemnations into disfavored-yet-legitimate takings-the direct-government-use and common-carrier takings-and ostensibly illegitimate public-purpose takings. The property-rights movement unequivocally places economic-development takings in the illegitimate category. The status of blight-remediation takings is ambiguous but tends toward legitimacy.

Constructing Commons In The Cultural Environment, Michael J. Madison, Brett M. Frischmann, Katherine J. Strandburg

Articles

This Essay considers the problem of understanding intellectual sharing/pooling arrangements and the construction of cultural commons arrangements. We argue that an adaptation of the approach pioneered by Elinor Ostrom and collaborators to commons arrangements in the natural environment may provide a template for the examination of constructed commons in the cultural environment. The approach promises to lead to a better understanding of how participants in commons and pooling arrangements structure their interactions in relation to the environment(s) within which they are embedded and with which they share interdependent relationships. Such an improved understanding is critical for obtaining a more complete …

Evolving Property Rights In Domain Names, Jeffrey R. Wiedmann

Student Works

No abstract provided.

The Ethic Of High Expectations, Jean Galbraith

All Faculty Scholarship

No abstract provided.

The Hidden Function Of Takings Compensation, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

To date, scholars have justified the constitutional mandate to pay compensation for takings of property on the intuitively appealing grounds that fairness demands recompensing aggrieved owners; on the basis of a belief that government that fails to pay will suffer from “fiscal illusion” and take excessively; or due to the need to neutralize politically powerful property owners who would otherwise foil socially beneficial projects. This Essay offers a new explanation of the role of takings compensation in ensuring good government. Inspired by public choice theory, we argue that takings compensation is intended to reduce the incentives for corruption by limiting …

The Structural Causes Of Mortgage Fraud, Jim Smith

Scholarly Works

Mortgage fraud, often a violation of federal and state criminal statutes, covers a number of different types of behavior, all of which have the common denominator of conduct that has the intent or effect of impairing the value of residential mortgage loans. Mortgage fraud has become prevalent over the past decade and shows no signs of diminishing despite the collapse of domestic housing markets during the past two years. This paper analyzes the complex relationships between prime mortgage loan markets, subprime markets, and various types of mortgage fraud. This paper concludes that the root causes of mortgage fraud are associated …

Law As Hidden Architecture: Law, Politics, And Implementation Of The Burnham Plan Of Chicago Since 1909, 43 J. Marshall L. Rev. 375 (2010), Richard J. Roddewig

UIC Law Review

No abstract provided.

Property And The Public Forum: An Essay On Christian Legal Society V. Martinez, B. Jessie Hill

Faculty Publications

Christian Legal Society v. Martinez is situated at the intersection of various, and arguably conflicting, lines of doctrine. In ultimately holding that the Hastings College of Law could decline to recognize the student chapter of the Christian Legal Society due to the group’s refusal to accept members who did not conform their beliefs and conduct to the principles of CLS (particularly regarding homosexuality),the Supreme Court was required to sort through a tangle of precedents involving free speech limitations in nonpublic for a, religious groups’ rights of equal access to school facilities, and freedom of expressive association.

Perhaps less obviously, however, …

The Public Trust Doctrine And The Great Lakes Shores, Kenneth K. Kilbert

Cleveland State Law Review

The shores of the Great Lakes may look serene, but they are a battleground. Members of the public enjoy using the shores for fishing, boating, birding, or simply strolling along and taking in the scenic vistas. Repeatedly, however, owners of land ordering the Great Lakes (i.e., littoral owners),' armed with deeds indicating they own the shore to the water's edge or even lower, have tried to stop members of the public from using their property above the water's edge. The right to exclude others from your property, the littoral owners argue, is one of the most important sticks in the …

Forced Sale Risk: Class, Race, And The "Double Discount", Thomas W. Mitchell, Stephen Malpezzi, Richard K. Green

Faculty Scholarship

What impact does a forced sale have upon a property owner's wealth? And do certain characteristics of a property owner such as whether they are rich or poor or whether they are black or white, tend to affect the price yielded at a forced sale? This Article addresses arguments made by some courts and legal scholars who have claimed that certain types of forced sales result in wealth maximizing, economic efficiencies. The Article addresses such economic arguments by returning to first principles and reviewing the distinction between sales conducted under fair market value conditions and sales conducted under forced sale …

You Drank My Milkshake! Accusations Of Water Rights Takings In Estate Of Hage V. United States, Holly E. Cheong

Nevada Law Journal

This Note examines both the physical and regulatory takings of water rights found in Estate of Hage and provides an analysis of how takings law should apply to water rights. Part II of this Note provides a brief background of takings law under the Fifth Amendment of the Constitution with a focus on case law involving water rights. Parts III and IV review the history of the Estate of Hage case and focus on the recent Estate of Hage decision, including Judge Smith's logic for finding that there was a taking of water rights. In Part V, this Note analyzes …