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Articles 1 - 11 of 11
Full-Text Articles in Law
The Illusory Right To Abandon, Eduardo M. Peñalver
The Illusory Right To Abandon, Eduardo M. Peñalver
Eduardo M. Peñalver
The unilateral and unqualified nature of the right to abandon (at least as it is usually described) appears to make it a robust example of the law’s concern to safeguard the individual autonomy interests that many contemporary commentators have identified as lying at the heart of the concept of private ownership. The doctrine supposedly empowers owners of chattels freely and unilaterally to abandon them by manifesting the clear intent to do so, typically by renouncing possession of the object in a way that communicates the intent to forgo any future claim to it. A complication immediately arises, however, due to …
Is Land Special? The Unjustified Preference For Landownership In Regulatory Takings Law, Eduardo M. Peñalver
Is Land Special? The Unjustified Preference For Landownership In Regulatory Takings Law, Eduardo M. Peñalver
Eduardo M. Peñalver
This article critiques the Court's attempt to cabin the Lucas "per se" takings rule by limiting it to real property. It argues that the distinction between real and personal property cannot be justified by history or the differing expectations of property owners. It then applies five theoretical frameworks (libertarian, personhood, utilitarian, public choice, and Thomistic-Aristotelian natural law) and finds that none of them supports the jurisprudential distinction between real and personal property. As a result, the article argues that "because the distinction between personal and real property is an unprincipled one, it cannot save the Court from the unpalatable implications …
Properties Of Community, Gregory S. Alexander, Eduardo M. Peñalver
Properties Of Community, Gregory S. Alexander, Eduardo M. Peñalver
Eduardo M. Peñalver
Theories of property presuppose conceptions of community, and of the individual's relationship to community. In contrast to the dominant theories of community at work within most Anglo-American property theorizing, which view community obligations as fundamentally instrumental and contractual, we propose in this paper a theory that views the relationship between the individual and community as constitutive and substantive. Human beings' dependence on others to flourish imposes on political communities and their individual members a shared obligation to foster and contribute to the creation and maintenance of those structures necessary for that flourishing. This obligation in turn qualifies individual rights of …
Judicial Takings Or Due Process, Eduardo M. Peñalver, Lior Jacob Strahilevitz
Judicial Takings Or Due Process, Eduardo M. Peñalver, Lior Jacob Strahilevitz
Eduardo M. Peñalver
No abstract provided.
Redistributing Property: Natural Law, International Norms, And The Property Reforms Of The Cuban Revolution, Eduardo M. Peñalver
Redistributing Property: Natural Law, International Norms, And The Property Reforms Of The Cuban Revolution, Eduardo M. Peñalver
Eduardo M. Peñalver
No abstract provided.
A Statement Of Progressive Property, Gregory S. Alexander, Eduardo M. Peñalver, Joseph W. Singer, Laura S. Underkuffler
A Statement Of Progressive Property, Gregory S. Alexander, Eduardo M. Peñalver, Joseph W. Singer, Laura S. Underkuffler
Eduardo M. Peñalver
What would a progressive theory of property look like? Although such a theory might take root within any number of specific normative frameworks, this Statement of Progressive Property outlines several features progressive theories of property should have in common. The Statement argues that we should understand property as both an idea and an institution, that property confers power and shapes community, both in its legal and social dimensions, and that property should be understood as serving plural and incommensurable values whose accommodation is possible through reasoned deliberation and practical judgment.
Reconstructing Richard Epstein, Eduardo M. Peñalver
Reconstructing Richard Epstein, Eduardo M. Peñalver
Eduardo M. Peñalver
No abstract provided.
Property As Entrance, Eduardo M. Peñalver
Property Metaphors And Kelo V. New London: Two Views Of The Castle, Eduardo M. Peñalver
Property Metaphors And Kelo V. New London: Two Views Of The Castle, Eduardo M. Peñalver
Eduardo M. Peñalver
No abstract provided.
Property Outlaws, Eduardo Peñalver, Sonia Katyal
Property Outlaws, Eduardo Peñalver, Sonia Katyal
Eduardo M. Peñalver
Most people do not hold those who intentionally flout property laws in particularly high regard. The overridingly negative view of the property lawbreaker as a wrong-doer comports with the nearly sacrosanct status of property rights within our characteristically individualist, capitalist, political culture. This dim view of property lawbreakers is also shared to a large degree by property theorists, many of whom regard property rights as a fixed constellation of allocative entitlements that collectively produce stability and order through ownership. In this Article, we seek to rehabilitate, at least to a degree, the maligned character of the intentional property lawbreaker, and …
Exactions Creep, Lee Anne Fennell, Eduardo M. PeñAlver
Exactions Creep, Lee Anne Fennell, Eduardo M. PeñAlver
Eduardo M. Peñalver
The published version of this article is available at: http://scholarship.law.cornell.edu/facpub/1409/. How can the Constitution protect landowners from government exploitation without disabling the machinery that protects landowners from each other? The Supreme Court left this central question unanswered — and indeed unasked — in Koontz v. St. Johns River Water Management District. The Court’s exactions jurisprudence, set forth in Nollan v. California Coastal Commission, Dolan v. City of Tigard, and now Koontz, requires the government to satisfy demanding criteria for certain bargains — or proposed bargains — implicating the use of land. Yet because virtually every restriction, fee, or tax associated …