Digital Commons Network^™

The Effect Of Joint And Several Liability Under Superfund On Brownfields, Howard F. Chang, Hilary A. Sigman

All Faculty Scholarship

In response to claims that the threat of environmental liability under the Superfund law deters the acquisition of potentially contaminated sites (or "brownfields") for redevelopment, the federal government has adopted programs to protect purchasers from liability. This protection may be unwarranted, however, if sellers can simply adjust property prices downward to compensate buyers for this liability. We present a model of joint and several liability under Superfund that allows us to distinguish four different reasons that this liability may discourage the purchase of brownfields. The previous literature has overlooked the effects that we identify, which all arise because a sale …

Taking Compensation Private, Abraham Bell, Gideon Parchomovsky

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In light of the expansive interpretation of the ""public use"" requirement, the payment of ""just compensation"" remains the only meaningful limit on the government's eminent domain power and, correspondingly, the only safeguard of private property owners' rights against abusive takings. Yet, the current compensation regime is suboptimal. While both efficiency and fairness require paying full compensation for seizures by eminent domain, current law limits the compensation to market value. Despite the virtual consensus about the inadequacy of market compensation, courts adhere to it for a purely practical reason: there is no way to measure the true subjective value of property …

The Uselessness Of Public Use, Abraham Bell, Gideon Parchomovsky

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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 …

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

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No abstract provided.

Of Property And Federalism, Abraham Bell, Gideon Parchomovsky

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This Essay proposes a mechanism for expanding competition in state property law, while sketching out the limitations necessary to protect third parties. The fact that property law is produced by the states creates a unique opportunity for experimentation with such property and property-related topics as same-sex marriages, community property, adverse possession and easements. The Essay begins by demonstrating the salutary effects of federalism on the evolution of property law. Specifically, it shows that competition among states has created a dynamic property system in which new property institutions replace obsolete ones. The Essay then contemplates the possibility of increasing innovation and …

On Software Regulation, Polk Wagner

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This Article develops a novel analytic framework for the evaluation of regulatory policy in cyberspace, flowing from a reconceptualization of cyberlaw’s central premise: software code as complementary to law rather than its substitute. This approach emphasizes the linkage between law and software; for every quantum of legal-regulatory impact, there is a corresponding equilibria of regulation-bysoftware. The absence of a legal right will stimulate a technological response—and such incentives will moderate with increased rights. Rather than “code is law,” this is “code meets law.” The implications of this methodological shift are explored in the context of the emerging (and intensely controversial) …

The Recently Revised Marriage Law Of China: The Promise And The Reality, Charles J. Ogletree Jr., Rangita De Silva De Alwis

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In April 2001, the Standing Committee of the Ninth National People's Congress (NPC), China's highest legislative body, passed the long-debated and much awaited amendments to the Marriage Law on the closing day of its twenty-first session. As stated by one PRC commentator, "In the 50 years since the founding of the New China, there has not been any law that has caused such a widespread concern for ordinary people."'

Even though the recent revisions to the marriage laws have been hailed as some of the most significant and positive changes in family law in China, thus far no empirical evaluation …

The "Public Menace" Of Blight: Urban Renewal And The Private Uses Of Eminent Domain, Wendell E. Pritchett

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No abstract provided.

Information Wants To Be Free: Intellectual Property And The Mythologies Of Control, R. Polk Wagner

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This article challenges a central tenet of the recent criticism of intellectual property rights: the suggestion that the control conferred by such rights is detrimental to the continued flourishing of a public domain of ideas and information. I argue that such theories understate the significance of the intangible nature of information, and thus overlook the contribution that even perfectly controlled intellectual creations make to the public domain. In addition, I show that perfect control of propertized information - an animating assumption in much of the contemporary criticism - is both counterfactual and likely to remain so. These findings suggest that …

Of Property And Anti-Property, Abraham Bell, Gideon Parchomovsky

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Private property is widely perceived as a potent prodevelopment and anticonservationist force. The drive to accumulate wealth through private property rights is thought to encourage environmentally destructive development; legal protection of such property rights is believed to thwart environmentally friendly public measures. Indeed, property rights advocates and environmentalists are generally described as irreconcilable foes. This presumed clash often leads environmentalists to urge public acquisition of private lands. Interestingly, less attention is paid to the possibility that the government may prove no better a conservator than private owners. Government actors often mismanage conservation properties, collaborating with private developers to dispose of …

Where Shall We Live? Class And The Limitations Of Fair Housing Law, Wendell Pritchett

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This paper examines the effort to secure fair housing laws at the local, state and federal levels in the 1950s, focusing in particular on New York City and state. It will examine the arguments that advocates made regarding the role the law should play in preventing housing discrimination, and the relationship of these views to advocates' understanding of property rights in general. My paper will argue that fair housing advocates had particular conceptions about the importance of housing in American society that both supported and limited their success. By arguing that minorities only sought what others wanted - a single-family …

On Insider Trading, Markets, And "Negative" Property Rights In Information, Zohar Goshen, Gideon Parchomovsky

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No abstract provided.

Givings, Abraham Bell, Gideon Parchomovsky

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Givings - government acts that enhance property value - are omnipresent. Givings and takings are mirror images of one another, and of equal practical and theoretical importance, but the Takings Clause of the Fifth Amendment has enabled takings to dominate scholarly attention. This Article makes the first step toward rectifying this disparate treatment by laying the foundation for a law of givings. The Article identifies three prototype givings: physical givings, regulatory givings and derivative givings. The Article shows that givings are a formative force in property, and that a comprehensive takings jurisprudence cannot be devised without an attendant understanding of …

Takings Reassessed, Abraham Bell, Gideon Parchomovsky

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In this Essay, we challenge the conventional typology of constitutional takings by bringing to light a previously unrecognized type of taking-the derivative taking. We show that virtually every exercise of the power of takings generates derivative takings that have largely evaded takings scholars. Furthermore, we demonstrate that the failure of existing takings doctrine to account for derivative takings leads to inefficient and inequitable results. In particular, this failure disproportionately harms the poor. To remedy this problem, we craft an economic model of self-assessment to optimize constitutional protection at low administrative cost. Importantly, our self-assessment mechanism incentivizes property owners to report …

The Integration Game, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

No abstract provided.

The Newest Property: Reproductive Technologies And The Concept Of Parenthood, Kermit Roosevelt Iii

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No abstract provided.

"Not Just For The Fun Of It!" Governmental Restraints On Black Leisure, Social Inequality, And The Privatization Of Public Space, Regina Austin

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No abstract provided.

Protecting The Environment: Finding The Balance Between Delaney And Free Play, Geoffrey C. Hazard Jr., Howard C. Kunreuther

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No abstract provided.

Stories Out Of School: Teaching The Case Of Brown V. Voss, Elizabeth Samuels

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As a law teacher, I have observed these benefits of the case method, particularly with conducive appellate opinions and a skillfully assembled text. But I have also experienced, as I suspect most law teachers have, instances in which a case that lacks a sufficiently revealing narrative seems to mystify more than elucidate. One example is the case of Brown v. Voss, which appears in a number of property law casebooks, including the widely used Property by Jesse Dukeminier and James E. Krier. In Brown v. Voss the State of Washington Supreme Court departs, in a somewhat disingenuous way, from an …

Taxation, Negative Amortization And Affordable Mortgages, Michael S. Knoll

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No abstract provided.

Black, Brown, Poor & Poisoned: Minority Grassroots Environmentalism And The Quest For Eco-Justice, Regina Austin, Michael H. Schill

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No abstract provided.

The Second Generation Of Notes Indexed For Inflation, Michael S. Knoll

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No abstract provided.

Beyond Negotiability: A New Model For Transfer And Pledge Of Interests In Securities Controlled By Intermediaries, Charles W. Mooney Jr.

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No abstract provided.

Uncertainty, Efficiency, And The Brokerage Industry, Michael S. Knoll

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No abstract provided.

Constitutional Issues In The Environmental Regulation Of Real Property, Fred P. Bosselman

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No abstract provided.

Can The Town Of Ramapo Pass A Law To Bind The Rights Of The Whole World?, Fred P. Bosselman

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No abstract provided.