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Full-Text Articles in Law

How Far Does Natural Law Protect Private Property, James W. Ely Jr. Apr 2023

How Far Does Natural Law Protect Private Property, James W. Ely Jr.

Vanderbilt Law School Faculty Publications

This Article first explores the ambiguous relationship between natural law and the rights of property owners in American history. It points out that invocation of natural law principles was frequently conflated with English common law guarantees of property rights in the Revolutionary Era. Reliance on natural law as a source of protection for private property faded during the nineteenth century and was largely rejected in the early twentieth century. The Article then considers the extent to which natural law principles are useful in addressing contemporary issues relating to eminent domain and police power regulation of private property. Taking a skeptical …


The New Politics Of New Property And The Takings Clause, Christopher Serkin Jan 2017

The New Politics Of New Property And The Takings Clause, Christopher Serkin

Vanderbilt Law School Faculty Publications

This Essay offers a broad gloss on the traditional politics of property protection and then catalogues a number of ways in which those politics have been changing. In many cases, the account is of fragmentation and fracture as once stable commitments have become much more contingent and fact dependent.' Admittedly, this characterization paints with an extremely broad brush. That is both its contribution and its weakness. This short Essay deliberately simplifies the characterization of preferences across the political spectrum. Much more nuanced definitions would better track the complexity of the underlying issues. Judges and scholars discussed below might also object …


Condemning Religion: Rluipa And The Politics Of Eminent Domain, Christopher Serkin, Nelson Tebbe Jan 2009

Condemning Religion: Rluipa And The Politics Of Eminent Domain, Christopher Serkin, Nelson Tebbe

Vanderbilt Law School Faculty Publications

Should religious landowners enjoy special protection from eminent domain? A recent federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), compels courts to apply a compelling interest test to zoning and landmarking regulations that substantially burden religiously owned property. That provision has been controversial in itself but today a new cutting-edge issue is emerging: whether the Act's extraordinary protection should extend to condemnation as well. The matter has taken on added significance in the wake of Kelo, where the Supreme Court reaffirmed its expansive view of the eminent domain power. In this Article, we argue that RLUIPA should …


The "Public Use" Of Private Sports Stadiums: Kelo Hits A Homerun For Private Developers, Cristin F. Hartzog Jan 2006

The "Public Use" Of Private Sports Stadiums: Kelo Hits A Homerun For Private Developers, Cristin F. Hartzog

Vanderbilt Journal of Entertainment & Technology Law

Part I of this note briefly discusses the principle of eminent domain and the evolution of the Supreme Court's interpretation of the Takings Clause. Part II analyzes the application of the Court's interpretations of the "public use" requirement of the Takings Clause on the issue of whether it is proper for a state to exercise its power of eminent domain pursuant to a stadium development project. Finally, Part III offers a solution to the conflict between property owners' interests in keeping their land and cities' interests in creating economic growth.


Public Ruses, Christopher Serkin, James E. Krier Jan 2004

Public Ruses, Christopher Serkin, James E. Krier

Vanderbilt Law School Faculty Publications

The Fifth Amendment's public use requirement - a dead letter for decades - has recently been resurrected by the Michigan Supreme Court, overruling Poletown, and by the United States Supreme Court, granting certiorari in Kelo v. City of New London. At issue in these cases is the government's ability to condemn property from one private property owner and retransfer it to another, usually with a justification of more-or-less indirect economic benefits to the community. This Essay first argues the legitimacy of these government actions exists on a spectrum from true public uses, to public ruses that primarily benefit private interests …


The Right To Stay, Patrick M. Mcfadden Jan 1996

The Right To Stay, Patrick M. Mcfadden

Vanderbilt Journal of Transnational Law

People often fight for their homes. Once established, homes are vital centers of life, and their threatened loss generates predictable resistance. This Article shows how the human desire not to be moved is protected by the law. Such protection can be found in both U.S. domestic and international law, although the two systems of law vary widely in their approach. Since World War II, international scholars and lawmakers have been deeply concerned with promoting the legal rights of people to leave and return to their own countries. This Article emphasizes a different, but equally important right: the right of people, …


Constitutional Limitations On Governmental Participation In Downtown Development Projects, David M. Lawrence Mar 1982

Constitutional Limitations On Governmental Participation In Downtown Development Projects, David M. Lawrence

Vanderbilt Law Review

The purpose of this Article is to investigate the constitutional boundaries that surround the most common forms of governmental participation. Part II of the Article discusses the constitutional limitations on property transactions in which the government either uses its power of eminent domain to condemn land for private downtown development, acquires land for the same purpose through a voluntary sale by the owner of the land, or subsidizes private development by its method of conveying property to the developer. Part III of the Article then discusses the problems that arise when a downtown project includes both public and private facilities, …


The Private Use Of Public Power: The Private University And The Power Of Eminent Domain, Charles Fels Special Projects Editor, N. T. Adams, Richard Carmody, Margaret E. Clark, Randolph H. Lanier, James C. Smith, Robert M. White May 1974

The Private Use Of Public Power: The Private University And The Power Of Eminent Domain, Charles Fels Special Projects Editor, N. T. Adams, Richard Carmody, Margaret E. Clark, Randolph H. Lanier, James C. Smith, Robert M. White

Vanderbilt Law Review

The study which follows attempts to trace, in a necessarily limited fashion, the evolving use of eminent domain on behalf of private interest groups throughout the last century and a half of American legal history. Part One of the study traces the broadening scope of eminent domain in the United States during the 19th and 20th centuries, focusing on the direct use of eminent domain by private interest groups as a key element in the increasing breadth of the power. Part Two delineates the process whereby one modern private interest group-an informal aggregation of American colleges and universities-succeeded in acquiring …


Real Property - 1963 Tennessee Survey, Thomas G. Roady, Jr. Jun 1964

Real Property - 1963 Tennessee Survey, Thomas G. Roady, Jr.

Vanderbilt Law Review

I. DEEDS

A. Construction

B. Suit to set aside deed

C. Restrictive covenants

II. TITLES

A. Easements

B. Actual Possession as Notice to Purchaser

III. EMINENT DOMAIN

A. Right to Incidental Damages

B. Value of Fee and Leasehold

C. Determination of Area Condemned

D. Liability of City for Land Condemned

E. Procedural Problems

IV. LEGISLATION


Real Property -- 1962 Tennessee Survey, Thomas G. Roady, Jr. Jun 1963

Real Property -- 1962 Tennessee Survey, Thomas G. Roady, Jr.

Vanderbilt Law Review

I. Deeds

A. Construction

B. Suit to Set Aside Deed

C. Boundary Disputes

II. Titles

A. Dedication

B. Easements

C. Avulsion, Accretion, Reliction

III. Eminent Domain

A. Right to Incidental Damages

B. Value of Leasehold

C. Measure of Damages for Diversion of Stream

D. Determination of Area of Land Condemned

E. Liability of City for Land Condemned Within Its Boundaries

IV. Landlord and Tenant

A. Liability of Landlord for Injury to Employee of Tenant Due to Defective Condition of Premises

B. Right of Landlord to Enforce Forfeiture Clause.


Federal And State Condemnation Proceedings--Procedure And Statutory Background, William E. Miller Oct 1961

Federal And State Condemnation Proceedings--Procedure And Statutory Background, William E. Miller

Vanderbilt Law Review

The development of our modern and complex society has necessitated a widespread appropriation of private property for public use. The vital importance of present-day eminent domain is emphasized by the staggering proportions of recent and proposed takings in terms of the amount of land appropriated, its monetary value, and the number of individual citizens whose property is affected. In the Middle District of Tennessee alone--of course a small part of the national total-in excess of 700 tracts or parcels of land have been condemned during the past seven and one-half years for various projects, including the Old Hickory Dam and …


Real Property -- 1961 Tennessee Survey, Thomas G. Roady, Jr. Oct 1961

Real Property -- 1961 Tennessee Survey, Thomas G. Roady, Jr.

Vanderbilt Law Review

Probably no area of the law is fraught with more confusion than that involving construction of clauses in deeds and wills which impose some restraint on the conduct of grantees or devisees- seemingly not in the best interest of society. Clauses which tend to deter grantees or devisees from marriage or remarriage have constituted a fertile source of litigation for centuries. And though the stated rules of law prohibit and restrict the use of marriage or remarriage as a condition to vest or divest interests in real property, there are very few cases in which the courts in this country …


Real Property -- 1960 Tennessee Survey, Thomas G. Roady, Jr. Oct 1960

Real Property -- 1960 Tennessee Survey, Thomas G. Roady, Jr.

Vanderbilt Law Review

It is unfortunate that the statutes in this state on which such decisions as the instant one are based have not long since been repealed or modified. It is becoming more and more apparent that the courts cannot be expected to lessen the oftentimes arbitrary and seemingly unjust result which flows from the literal application of these statutes. The instant case would have been an excellent one in which to permit the defendant to establish the title of his grantors on the merits. But in spite of the desirability of relaxing the rigorous enforcement of such statutes, the court continues …


Real Property--1959 Tennessee Survey, Thomas G. Roady, Jr. Oct 1959

Real Property--1959 Tennessee Survey, Thomas G. Roady, Jr.

Vanderbilt Law Review

Future Interests.-The creation of divided interests in real property always carries with it problems in controlling the use and man- agement by the owner of the possessory interest. One of the most difficult problems in future interests is how to adjust the relation between the holder of a present possessory interest and the holder of a future interest in the same parcel of land. In resolving such problems many courts are influenced primarily by the nature (classification) of the future interest involved and have worked out with some degree of certainty the distribution of benefits and burdens in the simple …


Real Property -- 1958 Tennessee Survey, Thomas G. Roady, Jr. Oct 1958

Real Property -- 1958 Tennessee Survey, Thomas G. Roady, Jr.

Vanderbilt Law Review

In Bailey v. Eagle Mountain Tel. Co.' the supreme court in an opinion by Justice Swepston affirmed the chancellor of Knox County who had sustained defendant's demurrer to a specific performance action because he regarded the following language in complainant's claim of title as creating a fee simple determinable in the grantee.

"In consideration of love and interest we have in Education, we this day deed, transfer, and convey a certain lot or parcel of land .... To have and to hold for school purposes ... so long as the aforesaid lot of land is used for the aforesaid purpose." …


Real Property -- 1957 Tennessee Survey, Thomas G. Roady Jr. Aug 1957

Real Property -- 1957 Tennessee Survey, Thomas G. Roady Jr.

Vanderbilt Law Review

The Rule in Shelley's Case Revisited: During the period covered by this survey the Supreme Court of Tennessee handed down an opinion involving one of those problems periodically recurring in the real property field. In this decision the court revisited the Rule in Shelley's Case, pointing out the classic situation to which it applies and calling attention to the statute in Tennessee which abolished the Rule.

The question before the court was in terms of what estate the grantee, Ralph Parker, acquired where the conveyance was to "Ralph Parker and at his death to his bodily heirs." The court concluded …