Law Commons^™

One Of The Safeguards Of The Constitution: The Direct Tax Clauses Revisted, James W. Ely Jr.

Vanderbilt Law School Faculty Publications

James Madison's insistence that the apportionment rule governing the imposition of direct taxes by Congress was a constitutional safeguard highlights a puzzle that has plagued constitutional law since the early days of the Republic. The Constitution does not bar Congress from imposing direct taxes, but twice provides that direct taxes "shall be apportioned among the several States which may be included within this Union, according to their respective Numbers." In times of crisis, notably during the War of 1812 and the Civil War, Congress levied direct taxes on real estate and slaves. It specified the aggregate amount to be collected …

Disaster Discordance: Local Court Implementation Of State And Federal Eviction Prevention Policies During The Covid-19 Pandemic, Lauren Sudeall, Elora Lee Raymond, Philip M.E. Garboden

Vanderbilt Law School Faculty Publications

Eviction sits at the nexus of property rights and the basic human need for shelter—the former benefits from a strong framework of legal protection while the latter does not. In most eviction courts across the country, therefore, the right to housing is unrecognized, while landlords’ economic interests in property are consistently vindicated.

The public health crisis unleashed by COVID-19 temporarily upended that (im)balance. Emergency federal and state eviction prevention policies issued in response to COVID-19 prioritized public health—-and the need for shelter to prevent the spread of disease—-over typically dominant property rights. In doing so, they presented courts with an …

The Future Of Natural Property Law: Comments On Eric Claeys's Natural Property Rights, Christopher Serkin

Vanderbilt Law School Faculty Publications

Professor Eric Claeys is among the most thoughtful modern proponents of natural property rights. His new book, provided to conference participants in draft form, is typical of his rigorously analytical approach. It is an impressive articulation of a natural rights-based account of property. It significantly advances the debate over natural rights and should be taken seriously even by those who do not find it entirely convincing.

There are real-world political stakes in abstract-seeming questions of property theory because natural rights are often deployed to limit government regulation of property. Natural rights contrast with positivist accounts that locate the content of …

The Case For Gmos: Dealing With Clashes Between Property Rights And Health And Safety Concerns, Kline C. Moore

Vanderbilt Journal of Transnational Law

A comparative analysis of international decisions concerning genetically modified organism (GMO) controversies reveals the judicial inconsistency that is often applied to the property rights of GMO producers and researchers. Courts often find that there are strong property right interests in GMOs, but when these rights clash with health and safety concerns, they are often minimized or completely forgotten; therefore, future growth in biotechnology is inhibited. This Note proposes a solution to this issue that better takes into account all stakeholders and allows for future investment and research into GMOs. The solution draws upon the lessons learned from current regulatory and …

Condemning The Decisions Of The Past, Christopher Serkin

Vanderbilt Law School Faculty Publications

This brief Essay, part of a Fordham Urban Law Journal Symposium on eminent domain in New York, argues that there is a seldom-recognized purpose to eminent domain: preserving the ability of elected representatives to respond to the will of the people. The essay proposes that eminent domain allows government to depart from the policy choices of administrations which came before and is therefore a tool for preserving "democratic legitimacy." It explores this theory by examining examples such as breaking up the adult use zones in Times Square and reclaiming New York's waterfront.

Is The Suite Life Truly Sweet? The Property Rights Luxury Box Owners Actually Acquire, Amanda Schlager

Vanderbilt Journal of Entertainment & Technology Law

Part I of this Note offers a look at the rising trend of luxury boxes, with a discussion of what separates a license from a lease. Part II will look at the property rights frequently given to one who "leases" a luxury box and will analyze what interest in land he actually receives. Part III presents the implications of misnomers in luxury box leasing and presents possible repercussions for both luxury box owners and those to whom the owners would lease them. It also suggests a better method for creating and governing these arrangements. Finally, it asserts that because of …

Historic Preservation In Southeast Asia: The Role Of Public-Private Partnerships, Patrick Stough

Vanderbilt Journal of Transnational Law

The role of globalization in the rapid economic success of Southeast Asia is exemplified by the growing westernization of the region's cities. While globalization has its benefits, such as encouraging investment and global connectivity, it also threatens the cultural heritage of a given area by encouraging a sort of homogeneity that makes modern cities all look alike. In particular, the goal of economic development often stands at odds with the preservation of structures and properties that reflect the cultural heritage of the region. Furthermore, many of the countries of the region are under pressure to better protect property rights, another …

The Meaning Of Value: Assessing Just Compensation For Regulatory Takings, Christopher Serkin

Vanderbilt Law School Faculty Publications

This Article argues that valuing compensation provides just such a window into deeper theories of takings, revealing a host of considerations that map on to specific approaches to takings law. 4 Moreover, compensation rules properly applied can advance the substantive goals of various takings regimes. At the least, since the range of monetary values that can be assigned to takings claims corresponds to diverse social values, compensation rules should be applied consistently with core constitutional values. This Article therefore argues that the adequacy of compensation cannot be determined in the abstract but must rather be judged by how effectively a …

Palestinian Private Property Rights In Israel And The Occupied Territories, Stacy Howlett

Vanderbilt Journal of Transnational Law

As the birth pangs of an emerging Palestinian state rage on, one question bars settlement, reconciliation, and peace: who is entitled to the land? On a macrocosmic level, this question has and will be answered through diplomatic negotiations, political pressure, and violence. The microcosmic question of the disposition of private property, however, must be taken into consideration before any lasting peace agreement can be reached.

The rights and interests of Palestinian refugees and Israeli settlers with respect to the land they have an interest in must be balanced with national needs for territorial continuity and peace. By tracing the transfer …

Property And Economic Liberty As Civil Rights: The Magisterial History Of James W. Ely, Jr., Douglas W. Kmiec

Vanderbilt Law Review

This formidable six-volume collection by respected Vanderbilt legal historian, James W. Ely, Jr., is a paean to property as a civil right. The argument of the volumes is made through selected essays by multiple authors, covering colonial time to the present day. It is property, Ely writes in the series introduction, that secures individual autonomy from government coercion, prevents an over-concentration of political authority generally, and encourages investment and economic development., Ely knows the main lesson of history is remembering. The vast literature on the institution of private property, until now, was not sufficiently culled, digested, and assembled, however, to …

Reflections On "Buchanan V. Warlcy," Property Rights, And Race, James W. Ely, Jr.

Vanderbilt Law Review

The landmark decision of Buchanan v. Warley' has long deserved greater attention from scholars. Decided during the so-called Progressive Era, when segregationist attitudes were at full tide, Buchanan combined judicial protection of individual property rights with solicitude for racial minorities. Indeed, Buchanan represents both the resolute defense of property owners' rights against regulation and the most significant judicial victory for civil rights during the early decades of the twentieth century.

One can only speculate about the lack of scholarly interest in Buchanan. Possibly, the dual nature of Buchanan has made it difficult for scholars to assess. Perhaps the property-centered focus …

Book Review--Global Dimensions Of Intellectual Property Rights In Science And Technology, Mark J. Patterson

Vanderbilt Journal of Transnational Law

A complete reading of the book leaves open the question of for whom the book is primarily intended. The best answer perhaps is that it has something to offer everyone--lawyer, scientist, intellectual property owner, economist, and politician--having an intellectual curiosity in how global intellectual property systems can and should evolve. From an individual reader's perspective, a cover to cover study of the book may leave the reader feeling overwhelmed and unsatisfied. However, if viewed as a resource, from which portions applicable to the reader's own field of interest are selected for close examination, the book has much to offer. Fortunately, …

The Legal Framework For Private Sector Activity In The Czech Republic, Cheryl W. Gray

Vanderbilt Journal of Transnational Law

In this Article, Dr. Gray discusses the evolving legal framework in the Czech Republic as the government there moves from a socialist to a private market economy. The author traces the major legal developments, including the Republic's establishment of significant private property rights and of a modern commercial code. The author finds that the Republic has made significant strides in developing a private market economy and in facilitating foreign investment. Dr. Gray concludes, however, that the new laws face significant challenges, including a weak and immature judicial system and problems with addressing business failures.

International Space Law: Into The Twenty-First Century, Glenn H. Reynolds

Vanderbilt Journal of Transnational Law

In this Article, Professor Reynolds addresses the space law issues likely to be of most importance in the next several decades. Pressing issues include those of orbital debris and geostationary orbit crowding, private property rights in outer space resources, conflict over international trade in space goods and services, the danger of ballistic-missile technology proliferation, private remote-sensing systems, and the law of international cooperation in space. Professor Reynolds concludes with a philosophical and practical discussion of some more remote issues, including the legal systems that may govern future human societies in outer space and the legal issues that might be associated …

Property And Liberty Reconsidered, Herman Belz

Vanderbilt Law Review

This perceptive, lucid, and sympathetic account of property rights in American constitutional law by Professor James W. Ely, Jr., is further evidence of the conservative challenge to liberal orthodoxy that has emerged in recent years in American historiography. That the book appears under the cosponsorship of the Organization of American Historians, one of the more militantly liberal scholarly associations in the United States, is a small but significant sign of the changing intellectual climate.

As conceived of in contemporary liberal historiography, protection of individual property rights is but one element of economic liberty. Equally if not more important, according to …

Freeing Mortgages Of Merger, Ann M. Burkhart

Vanderbilt Law Review

Change in real property law often occurs with glacial speed.This rate of change in part reflects the normal inertia of established law. A more complete explanation, however, is the innate conservatism connected to a commodity that once was the primary source of wealth and power. That this conservatism is innate should not prevent application of Ockham's razor as needed. The relationship of the doctrine of merger to the burgeoning law of mortgages is one such area. "If the law has to bear these medieval shackles the time surely has come to examine them carefully. They may have rusted away."

The …

The Protection Of Industrial Property Rights In The European Economic Community, Ronald L. Smallwood

Vanderbilt Journal of Transnational Law

This study of European Economic Community (EEC) industrial property rights discusses trademarks, patents, and copyrights. The legal foundation for the protection of these industrial property rights in the EEC is derived from article 36 of the EEC Treaty, which expressly allows an exception to the prohibition of restrictions against the free movement of goods within the EEC when justified by the protection of industrial property, and article 222, which encompasses the protection of industrial property in the Member States. Although decisions of the Court of Justice on industrial property rights are infrequent, their ramifications are significant throughout the Community since …

Licensing In The Eastern Bloc, Lajos Schmidt

Vanderbilt Journal of Transnational Law

This article will discuss the legal problems faced by American enterprises desiring to license industrial property rights--principally patents, trademarks and know-how--in Eastern Europe. Licensing in seven countries--the Soviet Union, Poland, Czechoslovakia, Hungary, Romania, the German Democratic Republic (East Germany) and Bulgaria--will be examined. Of course, these countries form separate and independent legal and political jurisdictions; and even their cultural backgrounds differ. Any generalization about them must be taken in that context. Nonetheless, each of these countries is governed by similar political and economic principles--in particular, the principle of centralized economic planning. These common factors are reflected in common problems faced …

Bosch And The Binding Effect Of State Court Adjudications Upon Subsequent Federal Tax Litigation, William E. Martin

Vanderbilt Law Review

One of the unique facets of American federalism involves the interaction of state court decrees which determine or characterize an individual's property rights with subsequent federal court litigation which imposes the federal tax burden upon those rights. While Congress determines what relationships are to be taxed, state law creates and state court adjudications measure these relationships.' In 1934 the Supreme Court formulated the standard that the state court decision was to be followed by a federal tax court in the absence of collusion, since the decree established the state "law" in regard to the relevant property. However, the definitional and …

The Real Estate Broker's Undertaking, William E. Wallace

Vanderbilt Law Review

In earlier articles I have discussed problems dealing with the enunciation and expression of listing agreements, their formal import' and the effect of one important segment of many of the attendant" payment" clauses. The former article concerned itself with the general problem of the relationship existing between a real property owner and his broker, while the latter dealt with the significance of words by which the payment clause of a brokerage agreement was introduced and with the effect of a wrongful default by the landowner. The present article will consider the legal significance of the actual terms employed to designate …

Marriage In The Conflict Of Laws, Charles W. Taintor, Ii

Vanderbilt Law Review

It must first be recognized that three different types of problems are raised in this field by what purport to be marriages: problems concerning the creation of the relationship of man and wife; those concerning the method whereby the parties signify their consents to the assumption of the relationship; and those concerning the legal protection accorded to claims arising therefrom. These involve, respectively, the status, the ceremony, and the incidents' of marriage.

It has often been said or assumed in the past that the laws of the domicile or domiciles of the parties at the time of the ceremony govern …