Law Commons^™

For-Profit Managers As Public Fiduciaries: A Neo-Classical Republican Perspective, Rob Atkinson

Scholarly Publications

This Article examines the fiduciary duties of for-profit managers in modern liberal society. To arrive at the right "mix" of these duties, it compares the fiduciary duties implied by a standard descriptive model of our society with two competing normative models: Lockean libertarianism on the "right" and neo-classical republicanism on the "left." This comparison shows that all three versions of liberalism, even the one with a Lockean nightwatchman state, require far more extensive duties than we now expect, including a professionalization of management itself. And it shows that the version of liberalism with the most expansive state, neo-classical republicanism, requires …

Privacy As Quasi-Property, Lauren Henry Scholz

Scholarly Publications

Courts and commentators struggle to apply privacy law in a way that conforms to the intuitions of the average person. It is often assumed that the reason for this discrepancy is the absence of an agreed upon conceptual definition of privacy. In fact, the lack of a description of the interest invaded in a privacy matter is the more substantial hurdle. This Article provides such a description of the privacy interest.

Privacy is quasi-property. Quasi-property is a relational entitlement to exclude. Unlike real property, there is no freestanding right to exclude from a quasi-property interest absent reference to a relationship …

Property And Exceptionalism In China And The Anglo-American World, 1650-1860, Tahirih V. Lee

Scholarly Publications

No abstract provided.

Trademark Owner As Adverse Possessor: Productive Use And Property Acquisition, Jake Linford

Scholarly Publications

There is an ongoing debate over whether or not a trademark is “property,” and what the appropriate boundaries of such a property right might be. Some scholars assert that rules and justifications developed to handle rights in real property are generally a poor fit for intellectual property regimes and for trademark protection in particular. Others respond that a unified theory of property should be able to account for both real and intellectual property. Neither approach fully recognizes that property regimes are multifaceted. A close look at the critical features of particular regimes can pay unexpected dividends.

This Article reveals how …

Rethinking The Renter/Owner Divide In Private Governance, Hannah J. Wiseman

Scholarly Publications

The revered status of American homeownership has deep and seemingly impenetrable roots. In our modern mythology/reality, the castles that shelter and nurture our pursuit of the good life are under siege. A narrative common to both popular media accounts and a burgeoning property literature warns that private homeowners’ associations hold dominion over millions of Americans, dictating what they may do with their property and foreclosing when they cannot pay association fees or fines. In response to this threat, legislatures, courts, and academics are fighting to stave off these intrusions by the content and use of constraining servitudes. In focusing on …

Public Communities, Private Rules, Hannah J. Wiseman

Scholarly Publications

As the American population grows, communities are seeking creative property tools to control individual land uses and create defined community aesthetics, or distinctive “built environments.” In the past, private covenants were the primary mechanism to address this sort of need. Public communities, however, have begun to implement covenant-type “private” rules through zoning overlays, which place unusually detailed restrictions on individual property uses and, in so doing, have created new forms of “rule-bound” communities. This Article will argue that all types of rule-bound communities are uniquely important because they respond to resident consumers’ heightened demand for a community aesthetic. It will …

Publicity Rights As Moral Rights, David Landau, David Westfall

Scholarly Publications

Recent legal history has witnessed the creation of a large number of new forms of property. Consequently, judges and legislators have generally been willing to imbue these new forms of property with all or most of the attributes of traditional property. In this article we try to explain this trend by examining one important new kind of property, the publicity right. Publicity rights initially emerged in response to functionalist considerations: transferable rights were needed to keep pace with commercial custom. As time went on, courts began to expand the attributes of the right to new frontiers, such as inheritability. In …

A Two-Dimensional Framework Of Property Rights Regimes, Shi-Ling Hsu

Scholarly Publications

No abstract provided.

Why Craft Isn't Scary, Steve R. Johnson

Scholarly Publications

In April 2002, the Supreme Court of the United States decided United States v. Craft. The Court held that the federal tax lien attaches to a tax-debtor spouse’s interest in property held in tenancy by the entirety even when the other spouse does not owe tax and state law provides that entireties property and interests cannot be reached by separate creditors of only one spouse.

Craft was correctly decided. The older, contrary view that Craft displaced was fundamentally at odds with federal tax collection analysis as laid out by the Court. In addition, the old view invited tax abuse and …

Realty Shelters: Nonrecourse Financing, Tax Reform And Profit Purpose, Donald J. Weidner

Scholarly Publications

The Tax Reform Act of 1976 made sweeping changes in the area of tax shelters. Real estate tax shelters are the only ones to survive with any semblance of their former vitality. Two rules were introduced to prevent investors from claiming tax losses in excess of amounts they place “at risk,” and neither rule considers a nonrecourse liability an amount “at risk.” The first applies to four specific tax shelters, not including real estate, and the second is a catchall that applies to all partnerships other than real estate partnerships. Thus, it is only in the real estate area that …

Realty Shelter Partnerships In A Nutshell, Donald J. Weidner

Scholarly Publications

There continues to be heated discussion about tax reform in the area of real estate tax shelters. In the past few years, the Internal Revenue Service has taken what many feel to be substantively unsupportable moves against the use of real estate partnerships to deliver tax shelter to high bracket investors. The purpose of this Article is to explain the Service's actions against realty partnerships in the context of current manipulations of the partnership form.

Yearend Sales Of Losses In Real Estate Partnerships, Donald J. Weidner

Scholarly Publications

No abstract provided.

Passing Depreciation To Investor-Partners, Donald J. Weidner

Scholarly Publications

The partnership form is an extremely popular vehicle for raising money for real estate development because of the opportunity to offer high-bracket investors "pass through" of partnership losses. These losses, in all but the most highly leveraged partnerships, are largely the result of depreciation deductions. Despite the tremendous popularity of real estate partnerships, limitations on allocations of partnership losses or of particular items of partnership deduction, have never been carefully defined. The purpose of this article is to explore possible limitations in the context of a variety of allocation arrangements currently in use.