Law Commons^™

Weakening The “Ripeness Trap” For Federal Takings Claims: Sansotta V. Town Of Nags Head And Town Of Nags Head V. Toloczko, Michael B. Kent Jr.

Scholarly Works

No abstract provided.

Evictions, Aspiration And Avoidance, Brian E. Ray

Law Faculty Articles and Essays

In December 2011 four of the Constitutional Court’s five socio-economic rights cases turned on evictions.2 The Court decided three eviction-related cases in the 2012 term and two more in 2013.3 For a Court that averages fewer than 30 decisions per term 10 decisions in less than two and a half years is an extraordinary level of attention devoted to a single area of constitutional law.4 Does this sustained attention to eviction cases harbinger a significant development in the Court’s approach to the right to housing in FC s 26 and to socio-economic rights more generally? The cases provide some evidence …

Three Legal Approaches To Rural Economic Development, Stephen R. Miller

Articles

No abstract provided.

Inclusionary Eminent Domain, Gerald S. Dickinson

Articles

This Article proposes a paradigm shift in takings law, namely “inclusionary eminent domain.” This new normative concept provides a framework that molds eminent domain takings and economic redevelopment into an inclusionary land assembly model equipped with multiple tools to help guide municipalities, private developers and communities construct or preserve affordable housing developments. The tools to achieve this include Community Benefit Agreements (“CBAs”), Land Assembly Districts (“LADs”), Community Development Corporations (“CDCs”), Land Banks (“LABs”), Community Land Trusts (“CLTs”) and Neighborhood Improvement Districts (“NIDs”). The origin of the concept derives from the zoning law context, where exclusionary zoning in the suburbs excluded …

"We Buy Houses": A Foreclosure Rescue As The Solution To The Trapped Homeowner Equity Problem, Cori Harvey

Journal Publications

Foreclosure rescue transactions are viewed widely as scams designed, among other things, to dupe poor, minority, and elderly homeowners out of the equity in their homes. However, foreclosure rescue transactions come in many forms and, as an alternative to foreclosure, often maintain valuable options for homeowners that the homeowners otherwise would lose in the traditional foreclosure process. For this reason, many of these transactions, though imperfect, should be preserved and supported.

This Article introduces one such foreclosure rescue transaction, the residential sale/leaseback/buyback ("RSLB") transaction, into the legal literature from the perspective of the rescue investors. A basic RSLB transaction allows …

"We Buy Houses": Market Heroes Or Criminals?, Cori Harvey

Journal Publications

The residential sale/leaseback/buyback transaction is a socially beneficial foreclosure rescue transaction that is being regulated increasingly by the criminal courts to the detriment of the homeowners, investors, and society at large. Because the transaction is being regulated more aggressively with the criminal law, peculiar outcomes arise, which include investors being sentenced, in some cases, to draconian sentences --a trend that will eviscerate the transactions rather than improving them.

In calling for a retreat from that position, this Article makes both descriptive and prescriptive claims. The first descriptive claim is that the transaction is a beneficial one and that it has …

New Era Of Lavish Land Grants: Taking Public Property For Private Use And Brandt Revocable Trust V. United States, Danaya C. Wright

UF Law Faculty Publications

J.R. Pole's new book, Contract and Consent: Representation and the Jury in Anglo-American Legal History, is a delightful romp through centuries of Anglo-American history, law, and political theory. It would be better titled Contract, Consent, Juries, Sovereignty, and the State: A History of the Anglicization of Western Political Ideas. But in any event, this delightful set of essays, some more closely linked together than others, spans a breathtaking set of ideas--from sovereignty to the social compact to slavery to the moral agency of juries--through a breathtaking set of sources--from Slade's Case to Shakespeare to Aquinas to Faust to …

Reliance Interests And Takings Liability For Rail-Trail Conversions: Marvin M. Brandt Revocable Trust V. United States, Danaya C. Wright

UF Law Faculty Publications

On October 1, 2013, the U.S. Supreme Court granted certiorari in a relatively obscure case,Marvin M. Brandt Revocable Trust v. United States. On its face, the case involves an interpretation of the property rights created by the General Railroad Right of Way Act of 1875, which gave to any railroad, chartered by a state or territory, "[t]he right of way [200 feet wide] through the public lands of the United States." The 1875 Act was passed after a brief hiatus in congressional support for railroads following the era of lavish land grants between 1862 and 1871, in which over …

Substantive Due Process By Another Name: Koontz, Exactions, And The Regulatory Takings Doctrine, Mark Fenster

UF Law Faculty Publications

In Koontz v. St. Johns River Water Management District, a 5-4 majority of the United States Supreme Court reversed a state court decision that had limited the application of Nollan v. California Coastal Commission and Dolan v. City of Tigard. Nollan and Dolan concern the imposition of regulatory conditions on proposed development, also called exactions, which commonly occurs in land use regulation. In Koontz, a property owner challenged a regulatory agency's denial of his permit application following failed negotiations over exactions. The Florida Supreme Court had concluded that Nollan and Dolan did not extend to conditions that …

Judicial Takings: Musings On Stop The Beach, James E. Krier

Law & Economics Working Papers

This brief paper is a primer on and critique of judicial takings after Stop the Beach.

Judicial takings weren’t much talked about until a few years ago, when the Stop the Beach case made them suddenly salient. The case arose from a Florida statute, enacted in 1961, that authorizes public restoration of eroded beaches by adding sand to widen them seaward. Under the statute, the state has title to any new dry land resulting from restored beaches, meaning that waterfront owners whose land had previously extended to the mean high-tide line end up with public beaches between their land and …

The Possession Heuristic, James E. Krier, Christopher Serkin

Law & Economics Working Papers

This chapter for the forthcoming book, The Law and Economics of Possession (Yun-chien Chang, ed), explores the law of possession as an application of a heuristic (a simple decision making strategy devised to solve complex problems, part of System 1 thinking in Daniel Kahneman’s famous formulation). Since the law of property is essentially the law of belongings, its first task is to determine to whom things belong. There are all sorts of complicated inquiries that could be undertaken to figure out and justify an incredible range of answers to this question. Alternatively, there is a simple inquiry that provides a …

Anti-Waste, Michael Pappas

Faculty Scholarship

It may be a bad idea to waste resources, but is it illegal? Legally speaking, what does “waste” even mean? Though the concept may appear completely subjective, this Article builds a framework for understanding how the law identifies and addresses waste.

Drawing upon property and natural resource doctrines, the Article finds that the law selects from a menu of five specific, and sometimes competing, societal values to define waste. The values are: 1) economic efficiency, 2) human flourishing, 3) concern for future generations, 4) stability and consistency, and 5) ecological concerns. The law recognizes waste in terms of one or …

Think Twice: Charging Orders And Creditor Property Rights, Chad J. Pomeroy

Faculty Articles

What do you do? As a lawyer (or prospective lawyer), I mean – what do you do (or what will you do) in exchange for a salary or hourly fee? You will probably be expecting a lot of money for your services; so what, exactly, is it that you will do to justify that payment?

The answer, of course, is varied because lawyers do lots of different things. And, among these activities, there are some things that only lawyers can do. Chief among those is suing people. Suing people is something that only lawyers do because states do not generally …

Law And Artifice In Blackstone's Commentaries, Jessie Allen

Articles

William Blackstone is often identified as a natural law thinker for whom property rights were preeminent, but reading the Commentaries complicates that description. I propose that Blackstone’s concept of law is more concerned with human invention and artifice than with human nature. At the start of his treatise, Blackstone identifies security, liberty and property as “absolute” rights that form the foundation of English law. But while security and liberty are “inherent by nature in every individual” and “strictly natural,” Blackstone is only willing to say that “private property is probably founded in nature.” Moreover, Blackstone is clear that there is …

Social Hierarchies And The Formation Of Customary Property Law In Pre-Industrial China And England, Taisu Zhang

Faculty Scholarship

Comparative lawyers and economists have often assumed that traditional Chinese laws and customs reinforced the economic and political dominance of elites and, therefore, were unusually “despotic” towards the poor. Such assumptions are highly questionable: Quite the opposite, one of the most striking characteristics of Qing and Republican property institutions is that they often gave significantly greater economic protection to the poorer segments of society than comparable institutions in early modern England. In particular, Chinese property customs afforded much stronger powers of redemption to landowners who had pawned their land. In both societies, land-pawning occurred far more frequently among poorer households …

The Three Waves Of Married Women's Property Acts In The Nineteenth Century With A Focus On Mississippi, New York And Oregon, Joseph A. Custer

Faculty Publications

This paper concentrates on three states that enacted married women's property acts during the nineteenth century: Mississippi, New York, and Oregon. Each state, starting with Mississippi, enacted acts that reflect a different wave. While Chused's indexing and classification schema have been groundbreaking and extremely helpful in providing order and a basic understanding of what types of married women's property acts were passed and when in the nineteenth century, in my opinion he did not clearly provide any underlying explanation or "why" for the passage of the acts.

This is not taking anything away from Chusad's substantial contribution, but does present …

Private Law In The Gaps, Jeffrey A. Pojanowski

Journal Articles

Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory …

The Right To Include, Daniel B. Kelly

Journal Articles

Recent scholarship has created renewed interest in the “right to exclude.” Many contend that, because owners have a right to exclude, private property has a tendency to promote individualism and exclusion. But, as I will argue, property can promote sociability and inclusion by providing owners with various ways of including others. Owners can assert their “right to include” by waiving exclusion rights, dividing existing rights by contracts or property forms, and creating new co-ownership arrangements. Inclusion is socially beneficial insofar as it enables sharing and exchange, facilitates financing and risk-spreading, and promotes specialization. Yet inclusion may entail costs, including coordination …

The Digital Death Conundrum: How Federal And State Laws Prevent Fiduciaries From Managing Digital Property, Christina L. Kunz, Damien A. Riehl, James D. Lamm, Peter J. Rademacher

Faculty Scholarship

This article discusses four types of fiduciaries, each of which is affected by the vast growth in and the need to manage digital property. The article begins by defining digital property and discussing why it must be managed. The article then discusses how digital property affects powers of attorney, conservatorships, probate administration, and trusts. After illustrating the problems that digital property creates for each fiduciary, the article shifts to resolving these problems. It begins by debunking purported solutions by both private and governmental entities. It concludes by offering a holistic approach to resolving the conflicts facing account holders, fiduciaries, and …

Lost Classics Of Intellectual Property Law, Michael J. Madison

Articles

Santayana wrote, “Those who cannot remember the past are condemned to repeat it.” American legal scholarship often suffers from a related sin of omission: failing to acknowledge its intellectual debts. This short piece attempts to cure one possible source of the problem, in one discipline: inadequate information about what’s worth reading among older writing. I list “lost classics” of American scholarship in intellectual property law. These are not truly “lost,” and what counts as “classic” is often in the eye of the beholder (or reader). But these works may usefully be found again, and intellectual property law scholarship would be …

Why We Need A Comprehensive Recording Fraud Registry, Randall K. Johnson

Faculty Works

This essay argues for a modest expansion of the Nationwide Mortgage Licensing System and Registry (NMLS). It does so, initially, by explaining why this online registry limits one type of recording fraud. The essay later describes how the NMLS could detect, and deter, more recording fraud. Lastly, it deals with concerns about a Comprehensive Recording Fraud Registry.

Governing Knowledge Commons -- Introduction & Chapter 1, Brett M. Frischmann, Michael J. Madison, Katherine J. Strandburg

Book Chapters

“Knowledge commons” describes the institutionalized community governance of the sharing and, in some cases, creation, of information, science, knowledge, data, and other types of intellectual and cultural resources. It is the subject of enormous recent interest and enthusiasm with respect to policymaking about innovation, creative production, and intellectual property. Taking that enthusiasm as its starting point, Governing Knowledge Commons argues that policymaking should be based on evidence and a deeper understanding of what makes commons institutions work. It offers a systematic way to study knowledge commons, borrowing and building on Elinor Ostrom’s Nobel Prize-winning research on natural resource commons. It …

Doppelganger Dilemma, Dominic Iannarella

Student Works

No abstract provided.

Commons At The Intersection Of Peer Production, Citizen Science, And Big Data: Galaxy Zoo, Michael J. Madison

Book Chapters

The knowledge commons research framework is applied to a case of commons governance grounded in research in modern astronomy. The case, Galaxy Zoo, is a leading example of at least three different contemporary phenomena. In the first place Galaxy Zoo is a global citizen science project, in which volunteer non-scientists have been recruited to participate in large-scale data analysis via the Internet. In the second place Galaxy Zoo is a highly successful example of peer production, sometimes known colloquially as crowdsourcing, by which data are gathered, supplied, and/or analyzed by very large numbers of anonymous and pseudonymous contributors to an …

Title Registration And The Abolition Of Notice In British Columbia, Douglas C. Harris, May Au

All Faculty Publications

Systems of land law must balance competing goals of securing title for existing interests in land with facilitating their transfer. Title registration systems operate to facilitate transfers of interests in land. They reflect a choice to enhance the security of transfers of interests, providing what has been characterized as dynamic security at the expense of the static security of existing interests. One of the cardinal principles of title registration is the abolition of the doctrine of notice. In equity, if purchasers of a legal interest have notice of a prior equitable interest, then they take their interest subject to that …

The Durability Of Private Claims To Public Property, Bruce R. Huber

Journal Articles

Property rights and resource use are closely related. Scholarly inquiry about their relation, however, tends to emphasize private property arrangements while ignoring public property — property formally owned by government. The well-known tragedies of the commons and anticommons, for example, are generally analyzed with reference to the optimal form and degree of private ownership. But what about property owned by the state? The federal government alone owns nearly one-third of the land area of the United States. One could well ask: is there a tragedy associated with public property, too? If there is, here is what it might look like: …

Governing Communities By Auction, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

Common interest communities have become the property form of choice for many Americans. As of 2010, sixty-two million Americans lived in common interest communities. Residents benefit from sharing the cost of common amenities – pools, lawns, gazebos – and from rules that ensure compliance with community expectations. But decisionmaking in common interest communities raises serious concerns about minority abuse and manipulation, a problem well known to all property law students. Decisions about which amenities will be provided and which rules will be enacted are typically made through some combination of delegation and voting. Delegates often act for their own benefit, …

Coasean Bargaining In Consumer Bankruptcy, Edward R. Morrison

Faculty Scholarship

During my first weeks as a graduate student in economics, a professor described the Coase Theorem as “nearly a tautology:” Assume a world in which bargaining is costless. If there are gains from trade, the Theorem tells us, the parties will trade. The initial assignment of property rights will not affect the final allocation because the parties will bargain (costlessly) to an efficient outcome. “How can that be a theorem?,” I remember thinking at the time.

Mortgage Modification And Strategic Behavior: Evidence From A Legal Settlement With Countrywide, Christopher Mayer, Edward R. Morrison, Tomasz Piskorski, Arpit Gupta

Faculty Scholarship

We investigate whether homeowners respond strategically to news of mortgage modification programs. We exploit plausibly exogenous variation in modification policy induced by settlement of U.S. state government lawsuits against Countrywide Financial Corporation, which agreed to offer modifications to seriously delinquent borrowers. Using a difference-in-difference framework, we find that Countrywide's monthly delinquency rate increased more than 0.54 percentage points – ten percent relative increase – immediately after the settlement's announcement. The estimated increase in default rates is largest among borrowers least likely to default otherwise. These results suggest that strategic behavior should be an important consideration in designing mortgage modification programs.

Why Restate The Bundle? The Disintegration Of The Restatement Of Property, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

The American Law Institute (ALI) has devoted a great deal of time and energy to restating the law of property. To date, the ALI has produced 17 volumes that bear the name First, Second, or Third Restatement of Property. There is unquestionably much that is valuable in these materials. On the whole, however, the effort has been a disappointment. Some volumes seek faithfully to restate the consensus view of the law; others are transparently devoted to law reform. The ratio of reform to restatement has increased over time, to the point where significant portions of the Third Restatement …