Law Commons^™

Regulatory Taxings, Eduardo M. Peñalver

Cornell Law Faculty Publications

The tension between the Supreme Court's expansive reading of the Takings Clause and the state's virtually limitless power to tax has been repeatedly noted, but has received little systematic exploration. Although some scholars, most notably Richard Epstein, have used the tension between takings law and taxes to argue against the legitimacy of taxation as it is presently practiced, such an approach has failed to gain a significant following. Instead, the broad legal consensus is that legislatures effectively have unlimited authority to impose tax burdens. Nevertheless, this Article demonstrates that every attempt to formulate a "Reconciling Theory," a theory that would …

Agenda: Introduction To The Legal Foundation Of Federal Land Management, University Of Colorado Boulder. Natural Resources Law Center

Introduction to the Legal Foundation of Federal Land Management (December 1-3)

Materials prepared for the course held at the National Center for Atmospheric Research in Boulder, Colorado on December 1-3, 2004

Course instructors: Charles Wilkinson; Sarah Krakoff; Kathryn Mutz; Ann Morgan; Maggie Fox

Contents:

Introduction -- Agenda -- Summaries of laws -- Case studies. Travel management; Oil and gas development; Timber/fuels reduction -- How to influence agency decision makers -- Natural resource related legal and policy resources for the non-legal professional

Introduction To The Legal Foundation Of Federal Land Management, University Of Colorado Boulder. Natural Resources Law Center

Introduction to the Legal Foundation of Federal Land Management (December 1-3)

1 v. (various pagings) : ill., maps ; 28 cm

Materials prepared for the course held at the National Center for Atmospheric Research in Boulder, Colorado on December 1-3, 2004

Course instructors: Charles Wilkinson; Sarah Krakoff; Kathryn Mutz; Ann Morgan; Maggie Fox

Contents:

Introduction -- Agenda -- Summaries of laws -- Case studies. Travel management; Oil and gas development; Timber/fuels reduction -- How to influence agency decision makers -- Natural resource related legal and policy resources for the non-legal professional

Property As Legal Knowledge: Means And Ends, Annelise Riles

Cornell Law Faculty Publications

This article takes anthropologists’ renewed interest in property theory as an opportunity to consider legal theory-making as an ethnographic subject in its own right. My focus is on one particular construct – the instrument, or relation of means to ends, that animates both legal and anthropological theories about property. An analysis of the workings of this construct leads to the conclusion that rather than critique the ends of legal knowledge, the anthropology of property should devote itself to articulating its own means.

Real Property, Linda S. Finley

Mercer Law Review

The Author believes it appropriate to dedicate this Article to a man who has served as a mentor and expert for hundreds (perhaps thousands) of real estate lawyers in the State of Georgia. Affectionately known as "The Death Ray" by his students, who at one time or another admired or feared him, Professor James C. Rehberg had the knack for making a somewhat dry topic come alive (perhaps the exception being the Rule Against Perpetuities). Professor Rehberg was honored in early 2004 by students, faculty, and alumni at his official retirement. While the Author can do little to make this …

Putting Humpty Dumpty Back Together: Pricing In Anticommons Property Arrangements, Ben Depoorter, Sven Vanneste

George Mason University School of Law Working Papers Series

Recently, a new theory has drawn considerable attention in the literature on common property. A number of scholars have pointed to the danger of excessive propertization in the context of what are termed "anticommons" property regimes. Although this theory has found its way into numerous legal and economic applications, the empirical and cognitive foundations of the theory of fragmentation remain unexplored. Based on experimental data, this Article conducts an investigation into the social and personal processes involved in the anticommons.

The results confirm the theoretical proposition that anticommons deadweight losses increase with the degree of complementarity between individual parts and …

Taking Title To Servient Tenements, Roger Bernhardt

Publications

This article previews two California cases where easements were acquired - one through prescription, the other by implication – and where conditions had thereafter changed before the defendants had acquired the servient parcels. The article deals with the question as to how title insurance protects clients who are acquiring property against being held subject to easements that were not recorded.

Real Estate And Land Use Law, Brian R. Marron

University of Richmond Law Review

No abstract provided.

Yes, Thankfully, Euclid Lives, Charles M. Haara, Michael Allan Wolf

UF Law Faculty Publications

Professors Haar and Wolf reiterate their endorsement of Progressive jurisprudence, as embodied in the Supreme Court's opinion in Village of Euclid v. Ambler Realty Co., despite Professor Eric Claeys's effort to expose the political theory underlying Progressive legal thought. They highlight problems with Professor Claeys's portrayal of the actual practice of zoning and with his use of history, problems that seriously undercut Professor Claeys's findings regarding the political beliefs of early zoning and planning advocates, the evolution of zoning law in the courts, and the role natural law played in American legal history.

Private Law And Public Stakes In European Integration: The Case Of Property, Daniela Caruso

Faculty Scholarship

In European legal discourse, the old public/private divide is experiencing a revival and a transformation. Member States used to claim autonomy in private law matters. Now private law is subsumed into a functionalist logic and can presumptively be harmonised if so demanded by the goal of market integration. States or local constituencies can only resist harmonisation by highlighting the connection between their private laws and those ‘public’ matters still immune from Europeanisation. Property law can effectively illustrate this phenomenon. The written pledge of non-interference with States’ property systems, restated both in the TEC and in the draft Constitution, cannot be …

Case Comment On F. Hoffman-Laroche Ltd. V. Empagran S.A. In 'The Supreme Court 2003 Term: Leading Cases. Iii Federal Statutes And Regulations: E. Foreign Trade Antitrust Improvement Act', Daniel Lyons

Daniel Lyons

No abstract provided.

No Way To Deal With Slums, Bernadette Atuahene

All Faculty Scholarship

No abstract provided.

“Ua Koe Ke Kuleana O Na Kanaka” (Reserving The Rights Of Native Tenants): Integrating Kuleana Rights And Land Trust Priorities In Hawai`I, Jocelyn B. Garovoy

ExpressO

No abstract provided.

The Police Power Revisited: Phantom Incorporation And The Roots Of The Takings Muddle, Bradley C. Karkkainen

ExpressO

This article traces the roots of the current muddle in the Supreme Court’s regulatory takings jurisprudence to an ill-considered “phantom incorporation” holding in Penn Central v. New York (1978), the seminal case of the modern regulatory takings era. The Penn Central Court anachronistically misread a long line of Fourteenth Amendment Substantive Due Process cases as Fifth Amendment Takings Clause cases, misattributing to Chicago Burlington & Quincy v. Chicago (1897) (“Chicago B & Q”) the crucial holding that the Fifth Amendment Takings Clause applied to the states. Like other cases of its era, Chicago B & Q was decided strictly on …

Revising The Arbitration Clause In Real Estate Contracts, Roger Bernhardt

Publications

This article discusses arbitration clauses between buyers, sellers, and brokers. In California. CCP 1298 is preempted by 9 USC 2, but agreements, however, may still require being initialed. Brokers are cautioned on using the CAR Residential Purchase form because the arbitration clause may be ineffective.

Dysfunctional Distinctions In Land Use: The Failure Of Legislative/Adjudicative Distinctions In Utah And The Case For A Uniform Standard Of Review, Todd W. Prall

BYU Law Review

No abstract provided.

This Land Is Your Land (Our Right To The Environment), Victor B. Flatt

West Virginia Law Review

No abstract provided.

Making A Statement Without Saying A Word: What Implied Covenants Say When The Lease Is Silent On Post-Production Costs, R. Cordell Pierce

West Virginia Law Review

No abstract provided.

Rebellious Lawyering, Settlement, And Reconciliation: Soko Bukai V. Ywca, Bill Ong Hing

Nevada Law Journal

No abstract provided.

On Software Regulation, Polk Wagner

All Faculty Scholarship

This Article develops a novel analytic framework for the evaluation of regulatory policy in cyberspace, flowing from a reconceptualization of cyberlaw’s central premise: software code as complementary to law rather than its substitute. This approach emphasizes the linkage between law and software; for every quantum of legal-regulatory impact, there is a corresponding equilibria of regulation-bysoftware. The absence of a legal right will stimulate a technological response—and such incentives will moderate with increased rights. Rather than “code is law,” this is “code meets law.” The implications of this methodological shift are explored in the context of the emerging (and intensely controversial) …

The End Of Notice: Secrets And Liens In Commercial Finance Law, Jonathan C. Lipson

ExpressO

This article explores important recent changes in the way that we treat personal property in commercial finance transactions. Among other things, these changes reduce or eliminate the obligation to give notice of interests in personal property when it is used in commercial finance transactions (as, e.g., collateral for a loan).

A principal purpose of notice-filing has been to deter the creation of secret liens, interests in property that are neither recorded nor otherwise readily observable. Secret liens are universally castigated as abhorrent.

Yet, two recent sets of legislative developments suggest that we may care much less about the problem of …

There Is A Porn Store In Mr. Roger's Neighborhood: Will You Be Their Neighbor? How To Apply Residential Use Restrictive Covenants To Modern Home Businesses, Drew Lucas

Campbell Law Review

No abstract provided.

सुन्दरबंस की मात्स्यिकी- समस्याएं और प्रत्याशाएं. (Sundaraban Ki Matasyaki- Samasyayen Evam Pratyashyen), Ganesh Chandra, R L. Sagar

Ganesh Chandra

This paper gives an insight into the fisheries of Sundarban delta region of west Bengal India.

Lawyers And Lot Lines, Roger Bernhardt

Publications

This article discusses doctrines dealing with encroachments. An encroachment may be protected by showing that it is permanent and has existed for more than three years; however, there are cases to the contrary. Adverse possession or prescriptive easement theoriues can also be used if the property was possessed for at least five years and other standards are met. Additiionally agreed boundaries and good faith improvements doctrines may apply.

Lawyers And Lot Lines, Roger Bernhardt

Publications

This article discusses doctrines dealing with encroachments. An encroachment may be protected by showing that it is permanent and has existed for more than three years; however, there are cases to the contrary. Adverse possession or prescriptive easement theories can also be used if the property was possessed for at least five years and other standards are met. Additionally, agreed boundaries and good faith improvements doctrines may apply.

Takings Formalism And Regulatory Formulas: Exactions And The Consequences Of Clarity, Mark Fenster

UF Law Faculty Publications

A vocal minority of the U.S. Supreme Court recently announced its suspicion that lower courts and state and local administrative agencies are systematically ignoring constitutional rules intended to limit, through heightened judicial review, exactions as a land use regulatory tool. This article argues that the Court's suspicions are well founded but that blame for judicial and administrative noncompliance lies with the Court's bifurcated approach to the Takings Clause.

Secrets And Liens: Verification And Measurement In Commercial Finance Law, Jonathan C. Lipson

ExpressO

This article argues that commercial finance law increasingly uses contract rules to displace property rules, especially as these rules pertain to verifying and measuring property interests. In this context, verification simply means confirming the existence of a property interest, such as a lien or security interest. Measurement means determining the relationships of various property interests to one another (i.e., the priority of interests).

Historically, commercial finance law – in particular the Uniform Commercial Code, which governs loans secured by personal property – provided that something would be treated as “property” only if its property character was fairly easy to discover. …

Regulatory Takings And The Original Understanding Of The Takings Clause, Matthew P. Harrington

William & Mary Law Review

No abstract provided.

The World Summit On Sustainable Development And Women's Access To Land: Why Nigeria Should Adopt The Eritrean Land Proclamation, Natasha C. Robinson

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Sharing Their Piece Of The Real Estate Pie: An Analysis Of The Necessity Of Lawyers At Residential Real Estate Closings In The Context Of The Adoption Of Recent Opinions Of The North Carolina State Bar, Melissa K. Walker

Campbell Law Review

This comment will address the necessity of lawyers at real estate closings in light of the recent changes in the Formal Ethics Opinions and Authorized Practice Advisory Opinion issued by the North Carolina State Bar.