Law Commons^™

Electronic Real Estate Records: A Model For Action, Arthur R. Gaudio

Faculty Scholarship

The legal, technological, and structural components are in place to allow the legal community to embark on the process of creating a uniform real property recording act. Certain jurisdictions have started the process by adopting various provisions allowing counties to implement electronic recording systems. These provisions are, however, disparate and inconsistent. Given the inconsistencies in the manner in which the electronic recording systems are developing, national commercial and lending practices would have a difficult time attempting to comply with all the possible permutations. In the near future, Fannie Mae, the Property Records Industry Association, and the Mortgage Industry Standards Maintenance …

Disestablishmentarianism Collides With The First Amendment: The Ghost Of Thomas Jefferson Still Haunts Churches, Mathew D. Staver, Anita L. Staver

Faculty Publications and Presentations

This history of church-state relations in the Commonwealth of Virginia date back to Thomas Jefferson and James Madison. Efforts by Jefferson and others to disestablish the state church may be likened to an army conquering a foreign enemy. The state established church was viewed as a remnant of the British government. Disestablishment was considered to be part of the ongoing Revolution. As this article will show, the methods of disestablishment included prohibiting the incorporation of churches, confiscating property, and limiting the amount of real and personal property that churches may own.

The Meaning Of Property Rights: Law Versus Economics? , Daniel H. Cole, Peter Z. Grossman

Scholarship and Professional Work - Business

Property rights are fundamentals to economic analysis. There is, however, no consensus in the economic literature about what property rights are. Economists define them variously and inconsistently, sometimes in ways that deviate from the conventional understandings of legal scholars and judges. This article explores ways in which definitions of property rights in the economic literature diverge from conventional legal understandings, and how those divergences can create interdisciplinary confusion and bias economic analyses. Indeed, some economists' idiosyncratic definitions of property rights, if used to guide policy, could lead to suboptimal economic outcomes.

Electronic Real Estate Documents: Context, Unresolved Cost-Benefit Issues And A Recommended Decisional Process, Sam Stonefield

Faculty Scholarship

This essay begins with a prediction: that electronic real estate documents will soon begin to replace paper documents in many, if not all, phases of residential real estate transactions. It describes the costs and benefits of electronic documents, and the many forces supporting and impeding their widespread adoption. It concludes by urging all those participating in the process to use their best efforts to address the obstacles and to work towards a successful transition to a world of electronic real estate transactions and electronic recording.

An Error In Methodology: Inclusion Of External Costs Of Sales In Property Valuations, Joel L. Terwilliger

Akron Tax Journal

Ironically, courts have upheld the protectionist policies behind the counterpart to the sales tax-the use tax. The application of the use tax serves the dual purpose of preventing the out of state migration of purchases of tangible personal property and to ensure a steady flow of revenue to the state treasury coffers. This dual purpose is based on a primary goal: to prevent avoidance of the sales tax. However, unlike sales taxes, use taxes paid on items of tangible personal property are not added to the value of the property for property tax assessments. This dichotomy presents serious problems for …

(When) Am Imy Borrower’S Keeper? Good Faith And Loan Workouts, Roger Bernhardt

Publications

This article deals with a California case involving alleged predatory lending and analyzes the duty of fair dealing and why lenders prefer an objective reasonableness standard to that of subjective good faith.

Exactions And Takings: San Remo Hotel V San Francisco, 2002, Roger Bernhardt

Publications

This article discusses a California Supreme Court decision which upheld an ordinance imposing the full cost of creating a replacement unit elsewhere on the property owner who wanted to covert a residential unit into a tourist unit.

Landlord Tort Liability: White V Contreras, 2002, Roger Bernhardt

Publications

This article discusses a California case which held a landlord who covenants or undertakes to install a window screen—but fails to do so—may be liable to the tenant’s child who falls out the window.

Liens Reattaching After Foreclosure: Dmc V Downey Sav. & Loan, 2002, Roger Bernhardt

Publications

This article discusses a California case which held that when a former property owner reacquires it after foreclosure with a new purchase money loan, that lien has priority over the previously wiped-out junior lien that reattached to the property.

Nonrefundable Option Payments As Liquidated Damages: Allen V Smith, 2002, Roger Bernhardt

Publications

This article discusses a California case which held a residential purchase agreement labelling the buyer’s deposit as “nonrefundable purchase option” is unenforceable.

Recorded Notices That Are Not Burdens On Title: Elysian Inv. Group V Stewart Title. 2002, Roger Bernhardt

Publications

This article discusses a California case which held that a recorded notice that a residence was “substandard” was neither a defect in, nor a lien or encumbrance on the title under the title insurance policy.

Termination Of Partnership: Crow Irvine #2 V Winthrop Cal. Investors, 2002, Roger Bernhardt

Publications

This article discusses a California case which held that a termination clause in a partnership agreement requiring a good faith belief in irreconcilable difference between partners, is measured by a subjective standard, not an objective standard.

Punishing The Factually Innocent: Dna, Habeas Corpus And Justice, Charles I. Lugosi

Charles I. Lugosi

No abstract provided.

The Purge Of Mortgage In Japanese Civil Law, Wei Zhang

Wei Zhang

The purge of mortgage is believed to be one of the few French remnants in the otherwise largely German style Japanese Civil Code. Since the breakdown of Japanese asset price bubble in early 1990s, it has been blamed as one major obstacle to clearing up nonperforming loans held by Japanese banks, and a central target subject to abolishment. In this paper, I analyzed the structural problems existing in the Japanese purge system and also probed the history and social background behind the debates about its abolishment. I proposed that, instead of total abolition, a restructured purge system, in particular getting …

Teoría General De La Prueba Judicial, Edward Ivan Cueva

Edward Ivan Cueva

No abstract provided.

The Continuing Expansion Of Cyberspace Trespass To Chattels, Laura Quilter

Laura Quilter

No abstract provided.

Palazzolo V. Rhode Island: Takings, Investment-Backed Expectations, And Slander Of Title, Garrett Power

Faculty Scholarship

No abstract provided.

Comparing The Two Legal Realisms—American And Scandinavian, Gregory S. Alexander

Cornell Law Faculty Publications

Zoning, Taking, And Dealing: The Problems And Promise Of Bargaining In Land Use Planning, Erin Ryan

Faculty Publications

No abstract provided.

Are We There Yet? The Case For A Uniform Electronic Recording Act, Dale A. Whitman

Faculty Publications

To implement digital recording, a confluence of several factors is necessary: political will on the part of the public officials involved (recorders and their political masters, usually county commissioners or supervisors), legal authority, and budgets adequate to the task. Without all of these factors, little progress is likely.

Land Policy And Adat Law In Indonesia's Forests, Kallie Szczepanski

Washington International Law Journal

The Indonesian government's land laws and policies lead to displacement of and hardship for the indigenous peoples of the archipelago. The Basic Agrarian Law, Basic Forestry Law, and Spatial Planning Law all allow for expropriation of indigenous lands formerly governed under the adat legal system. In addition, the central government's policy of transmigration—the shifting of people from the populous Inner Islands of Java, Bali, and Madura to the Outer Islands—only increases the economic and cultural pressure on indigenous peoples of the Outer Islands. The hopelessness and anger that result from the marginalization of traditional adat societies fuel violent ethnic conflicts, …

Avoiding The Un-Real Estate Deal: Has The Uniform Electronic Transactions Act Gone Too Far?, 35 J. Marshall L. Rev. 311 (2002), Derek Witte

UIC Law Review

No abstract provided.

Problem Of Unraveling: Biodiversity And Private Property In Land, Dale Goble

Articles

No abstract provided.

Incomplete Compensation For Takings, Thomas W. Merrill

Faculty Scholarship

If a tribunal determines that a state actor has expropriated foreign investment property, or, under Chapter 11 of the North American Free Trade Agreement (NAFTA), that a state actor has adopted a regulation that is "tantamount to" an expropriation of foreign investment property, then that tribunal must determine the amount of compensation owed. International law has developed methods to determine the size of a compensation award when a state formally expropriates property. But the notion, reflected in Chapter 11 of NAFTA, that states may be required to pay compensation to foreign investors for what are, in effect, regulatory takings, is …

Property In Writing, Property On The Ground: Pigs, Horses, Land, And Citizenship In The Aftermath Of Slavery, Cuba, 1880-1909, Rebecca J. Scott, Michael Zeuske

Articles

In the most literal sense, the abolition of slavery marks the moment when one human being cannot be held as property by another human being, for it ends the juridical conceit of a "person with a price." At the same time, the aftermath of emancipation forcibly reminds us that property as a concept rests on relations among human beings, not just between people and things. The end of slavery finds former masters losing possession of persons, and former slaves acquiring it. But it also finds other resources being claimed and contested, including land, tools, and animals-resources that have shaped former …

Property Law: The Uniform Conservation Easements Act: An Attorney's Guide For The Oklahoma Landowner, Erin Mcdaniel

Oklahoma Law Review

No abstract provided.

Gendered Shades Of Property: A Status Check On Gender, Race & Property, Laura M. Padilla

Faculty Scholarship

This article explores the relationship between gender, race and property.Women in the United States continue to be economically disadvantaged, and women of color are even more disadvantaged. This article will open with a review of laws, past and present, which have shaped women's rights to own, manage and transfer property. It will then provide a status check of where women, including women of color, stand in the United States relative to the rest of the population vis-a-vis income and other indicators of economic well-being. The article will then discuss why economic inequality persists, trotting out the usual reasons of discrimination …

Resolving Disputes Over Excess Frozen Embryos Through The Confines Of Property And Contract Law, Shelly R. Petralia

Journal of Law and Health

This Article addresses the conflicts that arise due to the increased number of cryogenically frozen embryos produced during in vitro fertilization (IVF). Part I discusses the IVF process, in general. While it recognizes the man's role in the process, it focuses primarily on the physical and emotional hardships that are placed on the woman. Part I also gives the backdrop of the case law in the area of embryo distribution. Part II introduces the idea that an embryo should be reduced to private property, through utilization of the labor and economic theories of property law. Additionally, an embryo's use, rather …

"Caught Between A Rock And A Hard Place:" Fringe Landowners "Can't Get No Satisfaction." Is It Time To Rethink Annexation Policy In North Carolina?, Julia Sullivan Hooten

Campbell Law Review

No abstract provided.

Pliability Rules, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

In 1543, the Polish astronomer, Nicolas Copernicus, determined the heliocentric design of the solar system. Copernicus was motivated in large part by the conviction that Claudius Ptolemy's geocentric astronomical model, which dominated scientific thought at that time, was too incoherent, complex, and convoluted to be true. Hence, Copernicus made a point of making his model coherent, simple, and elegant. Nearly three and a half centuries later, at the height of the impressionist movement, the French painter Claude Monet set out to depict the Ruen Cathedral in a series of twenty paintings, each presenting the cathedral in a different light. Monet's …