Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 11 of 11
Full-Text Articles in Law
Strategic Default: The Popularization Of A Debate Among Contract Scholars, Meredith R. Miller
Strategic Default: The Popularization Of A Debate Among Contract Scholars, Meredith R. Miller
Scholarly Works
A June 2010 report estimates that roughly 20% of mortgage defaults in the first half of 2009 were “strategic.” “Strategic default” describes the situation where a home borrower has the financial ability to continue to pay her mortgage but chooses not to pay and walks away. The ubiquity of strategic default has lead to innumerable newspaper articles, blog posts, website comments and editorial musings on the morality of homeowners who can afford to pay but choose, instead, to walk away. This Article centers on the current public discourse concerning strategic default, which mirrors a continuing debate among scholars regarding whether …
Proposed Exactions, Timothy M. Mulvaney
Proposed Exactions, Timothy M. Mulvaney
Faculty Scholarship
In the abstract, the site-specific ability to issue conditional approvals offers local governments the flexible option of permitting a development proposal while simultaneously requiring the applicant to offset the project’s external impacts. However, the U.S. Supreme Court curtailed the exercise of this option in Nollan and Dolan by establishing a constitutional takings framework unique to exaction disputes. This exaction takings construct has challenged legal scholars on several fronts for the better part of the past two decades. For one, Nollan and Dolan place a far greater burden on the government in justifying exactions it attaches to a development approval than …
Finding Possession: Labor, Waste And The Evolution Of Property, Jill M. Fraley
Finding Possession: Labor, Waste And The Evolution Of Property, Jill M. Fraley
Scholarly Articles
Although possession has long been intimately linked to labor, recent historical work on land claims during the sixteenth and seventeenth centuries suggests that the clash of divergent legal cultures of possession drove the two apart. This clash yielded an American concept of possession much more deeply connected to industrialization than the traditional understanding of labor. By providing evidence of how our concept of labor was industrialized, this article questions the outcomes in modem possession cases, particularly as they impact development and environmental preservation in rural areas.
The Properties Of Instability: Markets, Predation, Racialized Geography, And Property Law, Audrey Mcfarlane
The Properties Of Instability: Markets, Predation, Racialized Geography, And Property Law, Audrey Mcfarlane
All Faculty Scholarship
A central, symbolic image supporting property ownership is the image of stability. This symbol motivates most because it allows for settled expectations, promotes investment, and fulfills a psychological need for predictability. Despite the symbolic image, property is home to principles that promote instability, albeit a stable instability. This Article considers an overlooked but fundamental issue: the recurring instability experienced by minority property owners in ownership of their homes. This is not an instability one might attribute solely to insufficient financial resources to retain ownership, but instead reflects an ongoing pattern, exemplified throughout the twentieth century, of purposeful involuntary divestment of …
Property's Morale , Nestor M. Davidson
Property's Morale , Nestor M. Davidson
Faculty Scholarship
A foundational argument long invoked to justify stable property rights is that property law must protect settled expectations. Respect for expectations unites otherwise disparate strands of property theory focused on ex ante incentives, individual identity, and community. It also privileges resistance to legal transitions that transgress reliance interests. When changes in law unsettle expectations, such changes are thought to generate disincentives that Frank Michelman famously labeled demoralization costs. Although rarely approached in these terms, arguments for legal certainty reflect underlying psychological assumptions about how people contemplate property rights when choosing whether and how to work, invest, create, bolster identity, join …
Laying To Rest An Ancien Régime: Antiquated Institutions In Louisiana Civil Law And Their Incompatibility With Modern Public Policies, Christopher K. Odinet
Laying To Rest An Ancien Régime: Antiquated Institutions In Louisiana Civil Law And Their Incompatibility With Modern Public Policies, Christopher K. Odinet
Faculty Scholarship
Man faces unprecedented challenges as he barrels through the twenty-first century. The world is now approaching a population of seven billion people, concentrated largely in crowded, overdeveloped urban centers. Global climate change is predicted to cause massive population displacement related to the disappearance of coastal lands and to create dire food shortages within the coming decade. Increasingly, societies are forced to make systemic adaptations to handle the strain of these modern-day crises. Governments must be innovative and adaptive in their efforts to protect the public. When the fundamental goals and objectives of society alter, the law should be modified to …
Does The Compensation Clause Burden The Government Or Benefit The Owner? The Compensation Clause As Process, Joshua Galperin
Does The Compensation Clause Burden The Government Or Benefit The Owner? The Compensation Clause As Process, Joshua Galperin
Articles
One of many ideas indelibly drawn in the legal vernacular is that “if a regulation goes too far it will be recognized as a taking.” This workhorse of a phrase has shouldered the bulk of the regulatory takings doctrine since the first half of the last century. So much ink has been spilled in an attempt to parse the meaning of “too far,” and yet the academic and judicial communities have made little progress towards a better understanding. This article, therefore, seeks to divert some attention away from the meaning of “taking”, and put a little more focus on the …
Making Coasean Property More Coasean, Thomas W. Merrill, Henry E. Smith
Making Coasean Property More Coasean, Thomas W. Merrill, Henry E. Smith
Faculty Scholarship
In his pioneering work on transaction costs, Ronald Coase presupposed a picture of property as a bundle of government-prescribed use rights. Not only is this picture not essential to Coase’s purpose, but its limitations emerge when we apply Coase’s central insights to analyze the structure of property itself. This leads to the Coase corollary: in a world of zero transaction costs, the nature of property does not matter to allocative efficiency. However, as with the Coase theorem, the real implication is for our world of positive transaction costs: we need to subject the notion of property to a comparative institutional …
Origins Of The Social Function Of Property In Chile, M C. Mirow
Origins Of The Social Function Of Property In Chile, M C. Mirow
Faculty Publications
In 1925, Chile was one of the first countries in Latin America to adopt a social-function limitation on property. This study traces the importance of Duguit’s work in the construction of the property provisions of the Chilean Constitution of 1925. This contribution notes the shift from the earlier expressions of property as an absolute right, as found in the Constitution of 1833, to the language of the Constitution of 1925 that submits property to “the maintenance and progress of the social order.” It tracks the debates in the drafting committees to expose the various concepts of property open to the …
Property In Law: Government Rights In Legal Innovations, Stephen Clowney
Property In Law: Government Rights In Legal Innovations, Stephen Clowney
Law Faculty Scholarly Articles
One of the most enduring themes in American political thought is that competition between states encourages legal innovation. Despite the prominence of this story in the national ideology, there is growing anxiety that state and local governments innovate at a socially suboptimal rate. Academics have recently expressed alarm that the pace of legal experimentation has become "extraordinarily slow," "inefficient," and "less than ideal." Ordinary citizens, too, seem concerned that government has been leeched of imagination and the dynamic spirit of experimentation; both talk radio programs and newspapers remain jammed with complaints about legislative gridlock and do-nothing politicians who cannot, or …
Property Rights In Land, Agricultural Capitalism, And The Relative Decline Of Pre-Industrial China, Taisu Zhang
Property Rights In Land, Agricultural Capitalism, And The Relative Decline Of Pre-Industrial China, Taisu Zhang
Faculty Scholarship
No abstract provided.