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Taking Regulatory Takings Personally: The Perils Of (Mis)Reasoning By Analogy, Michael Wolf
Taking Regulatory Takings Personally: The Perils Of (Mis)Reasoning By Analogy, Michael Wolf
Michael A Wolf
This Article includes four parts: (1) a defense of the real property/personal property distinction for a post-deconstructionist legal world, (2) a review of difficulties common law courts have encountered when applying real property concepts to disputes over money and personalty, (3) an exploration of the "rhetorical mismatch" typified by Justice Sandra Day O'Connor's opinion in Eastern Enterprises, and (4) a respectful request for judges to resist the temptation to collapse categories and instead to maintain, or even erect, meaningful distinctions.
Conservation Easements And The "Term Creep" Problem, Michael Allan Wolf
Conservation Easements And The "Term Creep" Problem, Michael Allan Wolf
Michael A Wolf
This Essay first discusses the “term creep” problem that has long plagued the Anglo-American common law of real property, that is, the tendency of common law courts (and in turn commentators and legislators) to use the same label to describe two or more conceptually discrete, though related, concepts. The confusion between easements of the “traditional” and “conservation” varieties is just one in a long line of situations in which the decision to allow often significantly dissimilar concepts to share the same name has led to unfortunate consequences. The second part of the Essay explains the substantive nature of the hybrids …