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Full-Text Articles in Law
Populist Property Law, Anna Di Robilant
Populist Property Law, Anna Di Robilant
Faculty Scholarship
Property scholars think of property law as consisting of a small number of highly technical forms created a long time ago by "experts, i.e., legislatures and courts, which are hardly accessible to non-lawyers. This Article explores a new idea: the possibility that ordinary people, with little or no legal training, can become active participants in the creation of property law, directly intervening in the development of new property forms. The Article tells the story of two nineteenth-century American social movements that represented the "little guys " - workers and farmers - who used their 'folk legal" imagination to develop new …
Property And Democratic Deliberation: The Numerus Clausus Principle And Democratic Experimentalism In Property Law, Anna Di Robilant
Property And Democratic Deliberation: The Numerus Clausus Principle And Democratic Experimentalism In Property Law, Anna Di Robilant
Faculty Scholarship
First-year law students soon become familiar with the numerus clausus principle in property law. The principle holds that there is a limited menu of available standard property forms (the estates, the different types of common or joint ownership, the different types of servitudes) and that new forms are hardly ever introduced. Over the last fifty years, however, property law has changed dramatically. A wealth of new property forms has been added to the list. This dynamism in the list has remained largely unexplored and is the subject of this Article. This Article focuses on a selection of recently created property …
Property: A Bundle Of Sticks Or A Tree?, Anna Di Robilant
Property: A Bundle Of Sticks Or A Tree?, Anna Di Robilant
Faculty Scholarship
In the United States, property debates revolve around two conceptual models of property: the ownership model, originally developed in Europe and now revisited by information theorists and classical liberal theorists of property, and the bundle of rights model, invented in the United States by Hohfeld and the Realists. This article retrieves an alternative concept of property, the tree concept of property. The tree concept of property was developed by European property scholars between 1900 and the 1950s, as part of Europe’s own “realist” moment. It envisions property as a tree: the trunk representing the owner’s right to govern the use …
Common Ownership And Equality Of Autonomy, Anna Di Robilant
Common Ownership And Equality Of Autonomy, Anna Di Robilant
Faculty Scholarship
In recent years, common ownership has enjoyed unprecedented favour among policy-makers and citizens in the United States, Canada, and Europe. Conservation land trusts, affordable-housing co-operatives, community gardens, and neighborhood-managed parks are spreading throughout major cities. Normatively, these common-ownership regimes are seen as yielding a variety of benefits, such as a communitarian ethos in the efficient use of scarce resources, or greater freedom to interact and create in new ways. The design of common-ownership regimes, however, requires difficult trade-offs. Most importantly, successful achievement of the goals of common-ownership regimes requires the limitation of individual co-owners’ ability to freely use the common …
The New Financial Assets: Separating Ownership From Control, Tamar Frankel
The New Financial Assets: Separating Ownership From Control, Tamar Frankel
Faculty Scholarship
This Article is organized in three parts. Part One examines the nature of financial assets and their transition by market transactions from contracts to property. The discussion highlights the gray areas which financial assets occupy in decoupling, falling within both contract and property law.
Part Two describes four types of decoupled financial assets. The first type separates into two financial assets: ownership benefits and ownership risks. The presumed reduction of owners' risks prompted some academics to justify reducing the owners' protection. I suggest that attempts to protect owners from ownership risk have failed. Therefore, the suggestion was ill-conceived. The second …
Abuse Of Rights: The Continental Drug And The Common Law, Anna Di Robilant
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 Social Origins Of Property, Jack M. Beermann, Joseph William Singer
The Social Origins Of Property, Jack M. Beermann, Joseph William Singer
Faculty Scholarship
The takings clause of the United States Constitution requires government to pay compensation when private property is taken for public use.' When government regulates, but does not physically seize, property, the Supreme Court of the United States has had trouble defining when individuals have been deprived of property rights so as to give them a right to compensation. The takings clause serves "to bar Government from forcing some people alone to bear public burdens that, in all fairness and justice, should be borne by the public as a whole."' To determine when a regulation amounts to a "taking" of property …