Law Commons^™

Legislative Exactions And Progressive Property, Timothy M. Mulvaney

Faculty Scholarship

Exactions — a term used to describe certain conditions that are attached to land-use permits issued at the government’s discretion — ostensibly oblige property owners to internalize the costs of the expected infrastructural, environmental, and social harms resulting from development. This Article explores how proponents of progressive conceptions of property might respond to the open question of whether legislative exactions should be subject to the same level of judicial scrutiny to which administrative exactions are subject in constitutional takings cases. It identifies several first-order reasons to support the idea of immunizing legislative exactions from heightened takings scrutiny. However, it suggests …

Restoring Hope For Heirs Property Owners: The Uniform Partition Of Heirs Property Act, Thomas W. Mitchell

Thomas W. Mitchell

For well over 125 years, many Americans have lost their tenancy-in-common property involuntarily in various legal proceedings. For example, courts throughout this country have often resolved partition actions, a legal proceeding in which a tenant in common seeks to exit a tenancy in common, by ordering a forced, partition sale of the property even when these courts could have ordered a remedy that would have preserved the property rights of the tenants in common. Though partition sales have negatively impacted a broad cross section of people in this country, the sales have particularly impacted poor and disadvantaged African-Americans, Hispanics, white …

Restoring Hope For Heirs Property Owners: The Uniform Partition Of Heirs Property Act, Thomas W. Mitchell

Faculty Scholarship

For well over 125 years, many Americans have lost their tenancy-in-common property involuntarily in various legal proceedings. For example, courts throughout this country have often resolved partition actions, a legal proceeding in which a tenant in common seeks to exit a tenancy in common, by ordering a forced, partition sale of the property even when these courts could have ordered a remedy that would have preserved the property rights of the tenants in common. Though partition sales have negatively impacted a broad cross section of people in this country, the sales have particularly impacted poor and disadvantaged African-Americans, Hispanics, white …

Wills, Trusts, And Estates, J. William Gray Jr., Katherine E. Ramsey

University of Richmond Law Review

No abstract provided.

Contract And Property Law—Fee-Shifting Statutes And Landlord-Tenant Law—A Call For The Repeal Of The English Rule "Loser Pays" System Regarding Contract Disputes And Its Effect On Low-Income Arkansas Tenants, Stephanie Mantell

University of Arkansas at Little Rock Law Review

No abstract provided.

An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk

Articles

Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law "on the ground" in the state and lower federal courts, which together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2000 reported decisions ovcr the period 1979 through 2012, attempts to fill that void. This study establishes that the Supreme Court's categorical rules govern almost no state takings cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action …

Reconciling Development And Natural Beauty: The Promise And Dilemma Of Conservation Easements, Zachary A. Bray

Zachary Bray

Local and regional private land trusts are among the most important and most numerous conservation actors in contemporary America, and conservation easements are perhaps the key land conservation tools used by these trusts. In recent decades, privately held conservation easements and local and regional private land trusts have grown at a rapid and increasing rate, and the total acreage protected by privately held conservation easements is now larger than some states. The early growth of privately held conservation easements met widespread approval, but more recently, contemporary conservation easement practice has attracted many critics, based in part on well-publicized national scandals …

Destabilizing The Normalization Of Rural Black Land Loss: A Critical Role For Legal Empiricism, Thomas W. Mitchell

Thomas W. Mitchell

Mitchell's study exemplifies the New Legal Realist goal of combining qualitative and quantitative empirical research to shed light on important legal and policy issues. He also demonstrates the utility of a ground-level contextual analysis that examines legal problems from the bottom up. The study tracks processes by which black rural landowners have gradually been dispossessed of more than 90% of the land held by their predecessors in 1910. Mitchell points out that despite the continuing practices that contribute to this problem, there has been very little research on the issue, and what little attention legal scholars have paid to it …

Law Of Wills, Browne C. Lewis

Law Faculty Books

This casebook is designed to train law students to think and act like probate attorneys. It is meant to be used in conjunction with the author's book The Law of Trusts. This book's focus is problem-solving and legal application. It includes numerous problems so law students can learn to apply the law they learn from reading the cases. It also contains collaborative learning exercises to encourage students to engage in group problem-solving. The book is divided into three parts to reflect the main types of issues that students will encounter if they practice probate law; its organization mirrors the …

Emulsified Property, Jessica A. Shoemaker

Pepperdine Law Review

The typical American Indian reservation is often described as a “checkerboard” of different real property ownership forms. Individual parcels of reservation land may be held in either a special federal Indian trust status or in fee, by either Indian or non-Indian owners. The general jurisdictional framework provides that federal and sometimes tribal law sets the rights and responsibilities of trust owners, while fee owners are subject to a peculiar mix of state and tribal law. Many scholars have analyzed the challenges created by this checkerboard pattern of property and jurisdiction. This Article, however, reveals an even more complicated issue that …

Virtual Property, Joshua A.T. Fairfield

Joshua A.T. Fairfield

This article explores three new concepts in property law. First, the article defines an emerging property form - virtual property - which is not intellectual property, but that more efficiently governs rivalrous, persistent, and interconnected online resources. Second, the article demonstrates that the threat to high-value uses of internet resources is not the traditional tragedy of the commons that results in overuse. Rather, the naturally layered nature of the internet leads to overlapping rights of exclusion that cause underuse of internet resources: a tragedy of the anticommons. And finally, the article shows that the common law of property can act …

Dead Men Bring No Claims: How Takings Claims Can Provide Redress For Real Property Owning Victims Of Jim Crow Race Riots, Melissa Fussell

William & Mary Law Review

No abstract provided.

Procedural Due Process Claims, Erwin Chemerinsky

Touro Law Review

No abstract provided.

Stop The Reach: Solving The Judicial Takings Problem By Objectively Defining Property, Steven C. Begakis

Notre Dame Law Review

The future of judicial takings may rest on the ability of the Court to define property in a robust and objective way. Property has essential characteristics that make it easily identifiable, the most significant of which are the rights to exclude and use. However, even when a property right does not fit within a neat categorical definition, should that right have a long, well established pedigree in state court precedent, that property right is similarly within the capacity of the reviewing court to identify. And once it is determined that, prior to the judgment, the petitioners possessed a clearly defined …

Arkansas’S Trust Code And Trust Planning: A Ten-Year Perspective, Lynn Foster

University of Arkansas at Little Rock Law Review

In 2001, the Uniform Law Commission adopted the Uniform Trust Code, which regulates certain aspects of trusts. One impetus for the trust code was the ever-increasing popularity of revocable trusts as part of standard estate planning packages. Another was the fact that few states—including Arkansas—had well-developed common law trust rules, let alone any statutory trust codes. In 2005, the Arkansas legislature enacted a slightly modified version of the Uniform Trust Code (UTC), titled the Arkansas Trust Code (ATC). At that time, the University of Arkansas at Little Rock Law Review published my article summarizing the most important features of the …

The Social-Obligation Norm Of Property: Duguit, Hayem, And Others, M C. Mirow

M. C. Mirow

This article discusses and analyzes the sources and methods used by Leon Duguit in constructing the social-obligation or social-function norm of property as set out in an influential series of lectures in Buenos Aires published in 1912. The work of Henri Hayem has been underappreciated in the development of Duguit's ideas. Hayem should be restored as a central influence on Duguit's thought and as one of the main and earliest proponents of the idea of the social-function norm. The article also examines the influence of Charmont, Comte, Durkheim, Gide, Hauriou, Landry, and Saleilles in Duguit's thought on property and its …

Origins Of The Social Function Of Property In Chile, M C. Mirow

M. C. Mirow

In 1925, Chile was one of the first countries in Latin America to adopt a social-function limitation on property. This study traces the importance of Duguit’s work in the construction of the property provisions of the Chilean Constitution of 1925. This contribution notes the shift from the earlier expressions of property as an absolute right, as found in the Constitution of 1833, to the language of the Constitution of 1925 that submits property to “the maintenance and progress of the social order.” It tracks the debates in the drafting committees to expose the various concepts of property open to the …

Rerum Novarum: New Things And Recent Paradigms Of Property Law, M C. Mirow

Faculty Publications

The two most recent paradigmatic moments in the development of property law were the construction of "social property" about a hundred years ago and of "international property" quite recently. This study analyses two important texts as illustrations of these changes: Leo XIII's encyclical Rerum Novarum (1891) and John Sprankling's book The International Law of Property (2014). Each text signals a paradigm shift in our understanding of property.

An Empirical Study Of Modification And Termination Of Conservation Easements: What The Data Suggest About Appropriate Legal Rules, Gerald Korngold, Semida Munteanu, Lauren Smith

Articles & Chapters

The acquisition of conservation easements by nonprofit organizations (“NPOs”) over the past twenty-five years has revolutionized the preservation of American land. Recently, however, legislatures, courts, practitioners, and commentators have debated whether and how conservation easements should be modified and even terminated. The discussion has almost always been on a theoretical level without empirical grounding and has sometimes generated much heat but little light. The discussion has lacked the necessary empirical context to allow legislatures and courts to thoughtfully develop resolutions to these issues free from sloganeering and posturing.

This article provides and analyzes a previously uncollected dataset that offers guidance …

Knowledge Commons (2016), Michael J. Madison, Katherine J. Strandburg, Brett M. Frischmann

Book Chapters

This chapter describes methods for systematically studying knowledge commons as an institutional mode of governance of knowledge and information resources, including references to adjacent but distinct approaches to research that looks primarily to the role(s) of intellectual property systems in institutional contexts concerning innovation and creativity.

Knowledge commons refers to an institutional approach (commons) to governing the production, use, management, and/or preservation of a particular type of resource (knowledge or information, including resources linked to innovative and creative practice). Commons refers to a form of community management or governance. It applies to a resource, and it involves a group or …

Information Abundance And Knowledge Commons, Michael J. Madison

Book Chapters

Standard accounts of IP law describe systems of legal exclusion intended to prompt the production and distribution of intellectual resources, or information and knowledge, by making those things artificially scarce. The argument presented here frames IP law instead as one of several possible institutional responses to the need to coordinate the use of intellectual resources given their natural abundance, and not necessarily useful or effective responses at that. The chapter aims to shift analytic and empirical frameworks from those grounded in law to those grounded in governance, and from IP law in isolation to IP law as part of resource …

Understanding Access To Things: A Knowledge Commons Perspective, Michael J. Madison

Book Chapters

This chapter explores the related ideas of access to knowledge resources and shared governance of those resources, often known as commons. Knowledge resources consist of many types and forms. Some are tangible, and some are intangible. Some are singular; some are reproduced in copies. Some are singular or unique; some are collected or pooled. Some are viewed, used, or consumed only by a single person; for some resources, collective or social consumption is the norm. Any given resource often has multiple attributes along these dimensions, depending on whether one examines the resource’s physical properties, its creative or inventive properties, or …

Copyright And Good Faith Purchasers, Shyamkrishna Balganesh

All Faculty Scholarship

Good faith purchasers for value — individuals who unknowingly and in good faith purchase property from a seller whose own actions in obtaining the property are of questionable legality — have long obtained special protection under the common law. Despite the seller’s own actions being tainted, such purchasers obtain valid title themselves and are allowed to freely alienate the property without any restriction. Modern copyright law, however, does just the opposite. Individuals who unknowingly and in good faith purchase property embodying an unauthorized copy of a protected work are altogether precluded from subsequently alienating such property, or risk running afoul …

Of Property And Information, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

The property-information interface is perhaps the most crucial and under-theorized dimension of property law. Information about property can make or break property rights. Information about assets and property rights can dramatically enhance the value of ownership. Conversely, dearth of information can significantly reduce the benefit associated with ownership. It is surprising, therefore, that contemporary property theorists do not engage in sustained analysis of the property-information interface and in particular of registries — the repositories of information about property.

Once, things were different. In the past, discussions of registries used to be a core topic in property classes and a focal …

Cultural Paradigms In Property Institutions, Taisu Zhang

Faculty Scholarship

Do “cultural factors” substantively influence the creation and evolution of property institutions? For the past several decades, few legal scholars have answered affirmatively. Those inclined towards a law and economics methodology tend to see property institutions as the outcome of self-interested and utilitarian bargaining, and therefore often question the analytical usefulness of “culture.” The major emerging alternative, a progressive literature that emphasizes the social embeddedness of property institutions and individuals, is theoretically more accommodating of cultural analysis but has done very little of it.

This Article develops a “cultural” theory of how property institutions are created and demonstrates that such …

Resilience And Raisins: Partial Takings And Coastal Climate Change Adaptation, Joshua Galperin, Zahir Hadi Tajani

Articles

The increased need for government-driven coastal resilience projects will lead to a growing number of claims for “partial takings” of coastal property. Much attention has been paid to what actions constitute a partial taking, but there is less clarity about how to calculate just compensation for such takings, and when compensation should be offset by the value of benefits conferred to the property owner. While the U.S. Supreme Court has an analytically consistent line of cases on compensation for partial takings, it has repeatedly failed (most recently in Horne v. U.S. Department of Agriculture) to articulate a clear rule. The …

Taking The Oceanfront Lot, Josh Eagle

Josh Eagle

Oceanfront landowners and states share a property boundary that runs between the wet and dry parts of the shore. This legal coastline is different from an ordinary land boundary. First, on sandy beaches, the line is constantly in flux, and it cannot be marked except momentarily. Without the help of a surveyor and a court, neither the landowner nor a citizen walking down the beach has the ability to know exactly where the line lies. This uncertainty means that, as a practical matter, ownership of some part of the beach is effectively shared. Second, the common law establishes that the …

Rerum Novarum: New Things And Recent Paradigms Of Property Law, M. C. Mirow

M. C. Mirow

Insuring Landslides: America’S Uninsured Natural Catastrophes, Christopher French

Christopher C. French