Law Commons^™

Preparing For Cafta-Dr: The Need Of Commercial Law Reform In Central America, Omar E. Garcia-Bolivar

ExpressO

This article explores the policies, laws and institutions that may prevent Central American States from exploiting the opportunities provided by the CAFTA-DR. In that sense, we examine several of the legal factors that appear to be important in determining economic growth as they apply to the commercial legal conditions of Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua.

Still Mortgaging The American Dream: Predatory Lending, Preemption, And Federally-Supported Lenders, Julia P. Forrester

ExpressO

This article discusses the continuing problem of predatory lending abuses in the subprime home mortgage lending market and federal and state attempts to address the problem. Over the protests of consumer advocates, federal agencies have recently issued regulations preempting state predatory lending statutes as applied to national banks and thrifts. In addition, Congress is considering legislation that would preempt state predatory lending laws for all lenders. The article considers the preemption debate, particularly in the context of federally-supported lenders–banks, thrifts, and the government-sponsored enterprises (GSEs), Fannie Mae and Freddie Mac. Banks and thrifts receive support through the federal safety net, …

A Powers-Based Approach To Idea-Submission Law, Larissa Katz

ExpressO

This paper provides a unified account of idea-submission law in terms of legal powers. It argues that the duty upon a recipient of a novel and original idea results from the exercise of a legal power that the law confers on originators in order to enable them to share their ideas selectively. This paper contributes to our understanding of idea-submission law and to private law theory more generally in a number of ways that have not been addressed in the literature. First, it systematically reveals the lack of fit between the case law and conventional legal theories for the protection …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

A Call To Arms: “Taking” The Volunteer Out Of The All Volunteer Force, Jerome Dees

ExpressO

No abstract provided.

Of Rainbows And Rivers: Lessons For Telecommunications Spectrum Policy From Transitions In Property Rights And Commons In Water Law, Dale B. Thompson

ExpressO

A number of industries utilize the telecommunications spectrum to provide billions of dollars of services. However, some have noted that technological development and implementation of spectrum applications have not progressed as fast in the United States as in other parts of the world To improve technological development, many have recommended significant changes in United States policy of allocating spectrum, some based on a “property rights” approach, and others based on a “commons” approach. This article takes a novel approach to this problem, by applying lessons from our two hundred year history of water law to spectrum policy. Also, instead of …

Home As A Legal Concept, Benjamin Barros

ExpressO

This article, which is the first comprehensive discussion of the American legal concept of home, makes two major contributions. First, the article systematically examines how homes are treated more favorably than other types of property in a wide range of legal contexts, including criminal law and procedure, torts, privacy, landlord-tenant, debtor-creditor, family law, and income taxation. Second, the article considers the normative issue of whether this favorable treatment is justified. The article draws from material on the psychological concept of home and the cultural history of home throughout this analysis, providing insight into the interests at stake in various legal …

An Economic Theory Of Infrastructure And Commons Management, Brett M. Frischmann

ExpressO

In this article, Professor Frischmann combines a number of current debates across many disciplinary lines, all of which examine from different perspectives whether certain resources should be managed through a regime of private property or through a regime of open access. Frischmann develops and applies a theory that demonstrates there are strong economic arguments for managing and sustaining openly accessible infrastructure. The approach he takes differs from conventional analyses in that he focuses extensively on demand-side considerations and fully explores how infrastructure resources generate value for consumers and society. As a result, the theory brings into focus the social value …

Twenty-Five Years Of The Substantial Advancement Doctrine Applied To Regulatory Takings: From Agins To Lingle V. Chevron, Larry Salzman

ExpressO

Beginning with Agins v. City of Tiburon, and continuing for 25 years, the United States Supreme Court has held that regulation effects a taking when it does not substantially advance legitimate state interests. Throughout this period, many have criticized this standard as “a return to Lochner,” opposed to the extreme deference accorded economic and property regulation since the New Deal.

A careful review of cases reveals, however, that the “substantial advancement” doctrine is not simply a means-ends review of the efficacy of economic legislation. Rather, the doctrine was initially conceived, and has been applied, as a cause-effect test to ensure …

Property And "No Property", Jane B. Baron

ExpressO

This essay addresses the vexing question of whether property enhances freedom. Contemporary property debates tend to focus on what might be called the affirmative side of property rights–what they give (or ought to give) to owners vis a vis others and vis a vis the government. But if, as the Realists long ago suggested, property is social, involving relations between people, and if property involves politics, the exercise of power by some over others, then it makes sense to think about the negative side of property rights, the effects of not having any property to speak of. Persons owning very …

Why Rent Control Is Still A Regulatory Taking, R. S. Radford

ExpressO

The Supreme Court has repeatedly declared that land-use regulations that fail to substantially advance legitimate state interests violate the Takings Clause of the Fifth Amendment. This standard seems readily applicable to rent control, a policy that has been shown to exacerbate the problems is intended to remedy, and to impose social heavy costs that would not otherwise exist. Nevertheless, the California Supreme Court has declared that it will not strike down rent control under the substantial advancement standard, nor will it apply a heightened level of scrutiny to such regulations.

In response to these rulings, California rental property owners have …

Why Rent Control Is Still A Regulatory Taking

ExpressO

The Supreme Court has repeatedly declared that land-use regulations that fail to substantially advance legitimate state interests violate the Takings Clause of the Fifth Amendment. This standard seems readily applicable to rent control, a policy that has been shown to exacerbate the problems is intended to remedy, and to impose social heavy costs that would not otherwise exist. Nevertheless, the California Supreme Court has declared that it will not strike down rent control under the substantial advancement standard, nor will it apply a heightened level of scrutiny to such regulations.

In response to these rulings, California rental property owners have …

Federal-State Negotiations Over Federal Enclaves In The Early Republic, Adam S. Grace

ExpressO

This article examines practical solutions arrived at by the federal and state governments in resolving early interpretive issues that arose under Article I's "Enclave Clause." Focusing on the federal government's creation of federal "enclaves" for use in a national lighthouse system, the article compares these politically-based solutions with the later development of Supreme Court "Enclave Clause" jurisprudence.

What Is A Tragedy Of The Commons? Overfishing And The Campaign Spending Problem, Shi-Ling Hsu

ExpressO

Over the thirty-seven years since its publication, Garden Hardin's "Tragedy of the Commons" has clearly become one of the most influential writings of all time. The tragedy of the commons is one of those rare scholarly ideas that has had an enormous impact in academia and is also commonly used outside of academia. In legal scholarship, the tragedy of the commons has been used to characterize a wide variety of resource problems, including intellectual property rights, overcrowding of telecommunications spectra, air and water pollution, and of course, the classic environmental commons problem, overfishing. But I suggest this embarrassment of citation …