Law Commons^™

Operationalising Progressive Ideas About Property: Resilient Property, Scale, And Systemic Compromise, Marc L. Roark, Lorna Fox O'Mahony

Articles, Chapters in Books and Other Contributions to Scholarly Works

Property theory is at a crossroads. In recent decades, scholars seeking to advance progressive ideas about property have embraced ‘Progressive Property’ theories that seek to advance the goals of social justice and the common good, offering a vital counter-weight to utilitarian and neo-conservative accounts of property. Progressive Property theories seek to correct an imbalance in American property discourse which—across the temporal scale—has sustained a range of narratives and normative commitments, but which has veered towards extreme acquisitive individualism and the rhetoric of property absolutism since the 1970s. The idea that individual property rights are not absolute but defined by the …

Contract-Wrapped Property, Danielle D'Onfro

Scholarship@WashULaw

For nearly two centuries, the law has allowed servitudes that “run with” real property while consistently refusing to permit servitudes attached to personal property. That is, owners of land can establish new, specific requirements for the property that bind all future owners—but owners of chattels cannot. In recent decades, however, firms have increasingly begun relying on contract provisions that purport to bind future owners of chattels. These developments began in the context of software licensing, but they have started to migrate to chattels not encumbered by software. Courts encountering these provisions have mostly missed their significance, focusing instead on questions …

Tending Gardens, Ploughing Fields, And The Unexamined Drift To Constructive Takings At Common Law, Douglas C. Harris

All Faculty Publications

Expropriation law in Canada has operated on the basis of two presumptions at common law: that compensation is owing for the compulsory acquisition of property unless specifically indicated otherwise by statute; and, that no compensation is owing for land use regulation unless specifically provided for by statute. In its decision in Annapolis Group Inc. v Halifax Regional Municipality, the Supreme Court of Canada abandoned the second presumption that compensation for land use regulation required a statutory foundation. The majority and dissent proceed on the unexamined foundation that there is a common law basis for compensation in claims for constructive takings …

Natural Law, Assumptions, And Humility, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

This review of Natural Property Rights celebrates Eric Claeys’s efforts to resuscitate natural law as a viable approach to property law. Although readers unlikely to be convinced that natural law is the way to best understand property rights, Claeys succeeds in breathing new life into natural law. Natural Property Rights’ emphasis on use as property law’s fundamental value creates space to reconceptualize the rights of property owners and the place of non-owners within a just theory of property rights. The main critiques of Natural Property Rights offered in this review center around the choice to prioritize rights over duties and …

Law School News: Joyce And Bill Cummings Of Cummings Foundation To Deliver Keynote Address At Rwu Commencement 4-20-2023, Jill Rodrigues

Life of the Law School (1993- )

No abstract provided.

Heirs' Property In Virginia: Filling In The Gaps, J. Noble Pearson, Lillian Coward

Virginia Coastal Policy Center

The term heirs’ property refers to land that has been passed down informally for multiple generations through intestate succession. Each generation of intestate succession can drastically increase the number of heirs who own the property as tenants-in-common to the point that many may not even know their heirship status. This clouds the title to the property and makes ownership more fractionalized. Because heirs’ property exists outside of the official estate and title systems, owners are vulnerable both at the community and individual levels for three main reasons.

First, and most importantly, heirs’ property is a leading cause of involuntary Black …

Adapting Private Law For Climate Change Adaptation, Jim Rossi, J. B. Ruhl

Vanderbilt Law School Faculty Publications

The private law of torts, property, and contracts will and should play an important role in resolving disputes regarding how private individuals and entities respond to and manage the harms of climate change that cannot be avoided through mitigation (known in climate change policy dialogue as “adaptation”). While adaptation is commonly presented as a problem needing legislative solutions, this Article presents a novel and overdue case for private law to take climate adaptation seriously.

To date, the role of private law is a significant blind spot in scholarly discussions of climate adaptation. Litigation invoking common-law doctrines in climate adaption disputes …

Property's Boundaries, James Toomey

Elisabeth Haub School of Law Faculty Publications

Property law has a boundary problem. Courts are routinely called upon to decide whether certain kinds of things can be owned--cells, genes, organs, gametes, embryos, corpses, personal data, and more. Under prevailing contemporary theories of property law, questions like these have no justiciable answers. Because property has no conceptual essence, they maintain, its boundaries are arbitrary--a flexible normative choice more properly legislative than judicial.

This Article instead offers a straightforward descriptive theory of property's boundaries. The common law of property is legitimated by its basis in the concept of ownership, a descriptive relationship of absolute control that exists outside of …

Mitigating Catastrophe Risk For Landowners, Stewart E. Sterk

Articles

Local, national, and global catastrophes entail significant risk for landowners. The government-sponsored National Flood Insurance Program illustrates how subsidizing insurance against catastrophe risk can result in overinvestment in risk-prone properties. Government intervention, however, has largely been a response to the historical failure of the private insurance industry to provide adequate protection against correlated risks, a failure with the potential to generate underinvestment in land and devastate existing owners.

When data is available about the incidence and severity of potential disasters, improvements in technology have made it more feasible for insurers to calibrate premiums and discounts with greater accuracy, and sophisticated …

Property And Sovereignty In America: A History Of Title Registries & Jurisdictional Power, K-Sue Park

Georgetown Law Faculty Publications and Other Works

This Article tells an untold history of the American title registry—a colonial bureaucratic innovation that, though overlooked and understudied, constitutes one of the most fundamental elements of the U.S. property system today. Prior scholars have focused exclusively on its role in catalyzing property markets, while mostly ignoring their main sources in the colonies -- expropriated lands and enslaved people. This analysis centers the institution’s work of organizing and “proving” claims that were not only individual but collective, to affirm encroachments on tribal nations’ lands and scaffold colonies’ tenuous but growing political, jurisdictional power. In other words, American property and property …

Making Virtual Things, Joshua A.T. Fairfield

Scholarly Articles

People value virtual things—such as NFTs—because such assets trigger and satisfy deep-seated narratives of property and ownership. The cause of the recent series of failures to regulate virtual assets, and the resulting crashes, has been a failure to take seriously the ways people perceive and use the assets. Current legal frameworks fail to support buyers’ and users’ expectations of ownership in virtual things they purchase.

Making virtual things is a matter of social construction of value. Virtual things, like real-world things, have value because a community values them for a purpose. It therefore makes no sense to discount how and …

Rationing Access, Roy Baharad, Gideon Parchomovsky

All Faculty Scholarship

Protection of common natural resources is one of the foremost challenges facing our society. Since Garrett Hardin published his immensely influential The Tragedy of the Commons, theorists have contemplated the best way to save common-pool resources—national parks, fisheries, heritage sites, and fragile ecosystems—from overuse and extinction. These efforts have given rise to three principal methods: private ownership, community governance, and use restrictions. In this Essay, we present a different solution to the commons problem that has eluded the attention of theorists: access rationing. Access rationing measures rely not only on restrictions on the number of users but also on …

The Fundamental Building Blocks Of Social Relations Regarding Resources: Hohfeld In Europe And Beyond, Anna Di Robilant, Talha Syed

Faculty Scholarship

In the hundred years since Hohfeld published his two “Fundamental Legal Conceptions” articles, the “bundle-of-rights” view of property associated with his work has come to enjoy the status of conventional wisdom in American legal scholarship. Seen as a corrective to lay conceptions and a predecessor “Blackstonian” view of property as the “sole and despotic dominion” of an “owner” over a thing, the central insight of Hohfeldian analysis is standardly taken to be that property is not a single “thing” but rather a “bundle of rights” with respect to things and persons. In recent years, however, this Hohfeldian view has come …

Tiny Homes: A Big Solution To American Housing Insecurity, Lisa T. Alexander

Faculty Scholarship

“There’s no place like home,” said Dorothy. Yet, millions of people in the United States may face eviction, foreclosure, or homelessness in 2021 and beyond. America is on the brink of an unprecedented housing crisis in the wake of Covid-19. The federal government, and various states and localities, have taken actions to avert a housing crisis in the aftermath of Covid 19. While these actions have undeniably helped mitigate widespread foreclosure and eviction crises, they do not fully address the more fundamental American housing challenge—an inadequate supply of affordable housing at all income levels, a longstanding problem that Covid-19 has …

Law School News: National Housing Advocate Named To Lead Rwu's New Real Estate Initiatives 02/08/2022, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Getting Real, Getting Personal: Fictions And Realities Of Property Across Borders (Review Of Lionel Shriver, Property: Stories Between Two Novellas And Ayelet Waldman, Love & Treasure), Jorge L. Contreras

Utah Law Faculty Scholarship

From our earliest days, we are steeped in stories revolving around the acquisition, and loss, of property. For these reasons, Lionel Shriver’s collection of short fiction – Property: Stories between Two Novellas – and Ayelet Waldman’s novel Love & Treasure are particularly worthy of attention. Each of these works sheds new and interesting light on assumptions about property across national and cultural boundaries and raises questions about the place of property in shaping the human experience.

Home Of The Dispossessed, Allison Anna Tait

Law Faculty Publications

The objects that people interact with on a daily basis speak to and of these people who acquire, display, and handle them—the relationship is one of exchange. People living among household objects come to care for their things, identify with them, and think of them as a constituent part of themselves. A meaningful problem arises, however, when people who have deep connections to the objects that populate their lived spaces are not those who possess the legal rights of ownership. These individuals and groups—usually excluded from the realm of property ownership along lines of gender, race, and ethnicity—live on an …

Property As The Law Of Virtual Things, Joshua A.T. Fairfield

Scholarly Articles

Property law in the twentieth century moved from the law of things to the law of rights in things. This was a process of fragmentation: Under Hohfeldian property, we conceive of property as a bundle of sticks, and those sticks can be moved to different holders; the right to possess can be separated from the record ownership right, for example. The downside of Hohfeld's model is that physical objects—things—become informationally complicated. Thing-ness constrains the extravagances of Hohfeldian property: although we can split off the right to possess from the right to exclude, use, destroy, copy, manage, repair, and so on, …

Navassa: Property, Sovereignty, And The Law Of The Territories, Joseph Blocher, Mitu Gulati

Faculty Scholarship

The United States acquired its first overseas territory—Navassa Island, near Haiti—by conceptualizing it as a kind of property to be owned, rather than a piece of sovereign territory to be governed. The story of Navassa shows how competing conceptions of property and sovereignty are an important and underappreciated part of the law of the territories—a story that continued fifty years later in the Insular Cases, which described Puerto Rico as “belonging to” but not “part of” the United States.

Contemporary scholars are drawn to the sovereignty framework and the public-law tools that come along with it: arguments about rights and …

Condominium: A Transformative Innovation In Property And Local Government, Douglas C. Harris

All Faculty Publications

Condominium is a form of ownership that produces separate parcels of land and a structure of local government within multi-unit developments. As one form of common interest community, condominium packages private property with a co-ownership interest in common property and rights to participate in the governing organisation. A statutory innovation, the condominium form has been adopted in jurisdictions around the world and has quickly become the dominant form of land ownership for new-build housing in many cities. As an increasingly prominent feature of urban real estate, condominium is changing the nature of ownership and of local government, and is one …

Whiteness As Contract, Marissa Jackson Sow

Faculty Publications

2020 forced scholars, policymakers, and activists alike to grapple with the impact of “twin pandemics”—the COVID-19 pandemic, which has devastated Black and Indigenous communities, and the scourge of structural and physical state violence against those same communities—on American society. As atrocious acts of anti-Black violence and harassment by law enforcement officers and white civilians are captured on recording devices, the gap between Black people’s human and civil rights and their living conditions has become readily apparent. Less visible human rights abuses camouflaged as private commercial matters, and thus out of the reach of the state, are also increasingly exposed as …

Property's Building Blocks: Hohfeld In Europe And Beyond, Anna Di Robilant

Faculty Scholarship

In the hundred years since Hohfeld published his two “Fundamental Legal Conceptions” articles, the “bundle-of-rights” view of property associated with his work has come to enjoy the status of conventional wisdom in American legal scholarship. Seen as a corrective to lay conceptions and a predecessor “Blackstonian” view of property as the “sole and despotic dominion” of an “owner” over a thing, the central insight of Hohfeldian analysis is commonly taken to be that property is not a single “thing” but rather a “bundle of rights” with respect to things and persons. In recent years, however, this Hohfeldian view has come …

Possessing Intangibles, João Marinotti

Articles by Maurer Faculty

The concept of possession is currently considered inapplicable to intangible assets, whether data, cryptocurrency, or NFTs. Under this view, intangible assets categorically fall outside the purview of property law’s foundational doctrines. Such sweeping conclusions stem from a misunderstanding of the role of possession in property law. This Article refutes the idea that possession constitutes—or even requires—physical control by distinguishing possession from another foundational concept, that of thinghood. It highlights possession’s unique purpose within the property process: conveying the status of in rem claims. In property law, the concept of possession conveys to third parties the allocation of property rights and …

Reclaiming The Streets, Vanessa Casado-Pérez

Faculty Scholarship

Pedestrians have been getting the short end of the stick in street policies and regulations. Drivers and cars dominate our streets even though automobiles’ externalities kill thousands of people every year. Given the environmental, health, safety, and community effects of cars, municipalities should embrace a policy that puts pedestrians at the center and produces more miles of wider, well-maintained sidewalks. Sidewalks make communities greener, healthier, safer, more socially connected, and even, wealthier. COVID-19 lockdowns have shown both the relevance of sidewalks, as well as the possibility of pedestrians regaining space currently allocated to cars by widening sidewalks.

This Essay identifies, …

Takings Localism, Nestor M. Davisdson, Timothy M. Mulvaney

Faculty Scholarship

Conflicts over “sanctuary” cities, minimum wage laws, and gender-neutral bathrooms have brought the problematic landscape of contemporary state preemption of local governance to national attention. This Article contends that more covert, although equally robust, state interference can be found in property, with significant consequences for our understanding of takings law.

Takings jurisprudence looks to the states to mediate most tensions between individual property rights and community needs, as the takings federalism literature recognizes. Takings challenges, however, often involve local governments. If the doctrine privileges the democratic process to resolve most takings claims, then, that critical process is a largely local …

The Importance Of Viewing Property As A System, Lynda L. Butler

Faculty Publications

Can--or should--the American property system adapt to curb the excesses inherent in the dominant form of capitalism? Those extolling the virtues of privatization of resources would likely answer in the negative. Such a response would ignore the core functions and infrastructure of the American institution of property. This Article discusses the structure of property that enables property law to evolve over time, reacting to changing conditions, recognizing informal customs and usages, and otherwise taking into account important feedbacks. It explains how property provides an ordering system of concepts and principles that define and govern relations between a society and its …

A Reign Of Error: Property Rights And Stare Decisis, Michael Allan Wolf

UF Law Faculty Publications

Mistakes matter in law, even the smallest ones. What would happen if a small but substantively meaningful typographical error appeared in the earliest published version of a U.S. Supreme Court opinion and remained uncorrected for several decades in versions of the decision published by the two leading commercial companies and in several online databases? And what would happen if judges, legal commentators, and practitioners wrote opinions, articles, and other legal materials that incorporated and built on that mistake? In answering these questions, this Article traces the widespread, exponential replication of an error (first appearing in 1928) in numerous subsequent cases …

Right On Time: A Reply To Professors Allen, Claeys, Epstein, Gordon, Holbrook, Mossoff, Rose, And Van Houweling, Dotan Oliar, James Y. Stern

Faculty Publications

A simple observation started us off in writing Right on Time. Studying and teaching intellectual property law, we noticed striking parallels between traditional first possession rules in property law and analagous rules governing the acquisition of patent, copyright, and trademark rights. We thought that established first possession principles could illuminate the workings of IP law. As we dug in, however, it became increasingly clear that our premise wasn’t quite right. While many penetrating commentators had said many penetrating things about first possession, the leading treatments tended to focus on significant individual aspects of the overall issue. What we could …

Condominium Government And The Right To Live In The City, Douglas C. Harris

All Faculty Publications

Condominium is an architecture of land ownership that produces separate, privately owned units within multi-unit developments. Condominium also constructs a form of private, democratic government, described as a fourth order of government, that acts beneath federal and provincial governments, and alongside municipal government, to govern owners and their property. This article considers a conflict between residential-unit owners and a commercial-unit owner within a condominium development in Vancouver’s Downtown Eastside. Drawing from material produced in litigation, the article situates the dispute within its property and urban contexts to argue that condominium government requires attention, and not just for its impact on …

The State Of Exactions, Timothy M. Mulvaney

Faculty Scholarship

In Koontz v. St. Johns River Water Management District, the Supreme Court slightly expanded the range of circumstances involving conditional land use permits in which heightened judicial scrutiny is appropriate in a constitutional “exaction” takings case. In crafting a vision of regulators as strategic extortionists of private property interests, though, Koontz prompted many takings observers to predict that the case would provide momentum for a more significant expansion of such scrutiny in takings cases involving land use permit conditions moving forward, and perhaps even an extension into other regulatory contexts, as well.

Five years on, this Article evaluates the extent …