Law Commons^™

Delays, Disruptions, And Diminished Margins: Reassessing Loss Claims In Indian Construction Law, Gautam Mohanty Mr, Gaurav Rai

National Law School of India Review

Loss of Profit claims by a contractor are premised on the assertion that the contractor has incurred financial losses due to the act of illegal and premature termination of the contract by the employer. Loss of profitability, on the other hand, is a claim made by the contractor of a decrease in the profit percentage in a contract on account of delays and disruptions in the work due to the actions attributable to the employer. Due to the homonymic nature of the terms, several judgments in India confuse one with the other and misunderstand the underlying principles of law applicable …

This Land Is Our Land: Addressing Foreign Ownership Of Agricultural Land In The United States, Will Miller

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

In this note, Will Miller examines the rapid increase in foreign ownership of U.S. agricultural land and the national security and food security risks it creates. He explains that the Agricultural Foreign Investment Disclosure Act (AFIDA) only requires reporting of foreign ownership but imposes no restrictions, leaving regulation largely to a patchwork of state laws. Miller argues for federal oversight, contending that matters of foreign affairs and national security are best handled at the national level. He proposes a comprehensive federal regulatory scheme which would set nationwide minimum standards such as prohibiting ownership by foreign adversaries and capping total foreign-held …

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

Identifying Intangible And Biocultural Heritage Elements Toward Environmental Understanding: Engaging Stakeholders Through Art, Martha B. Lerski

Publications and Research

Grounded in a case study in Barbuda in the Caribbean, this research examines sustainability from the perspective of what arts and heritage can contribute to community engagement and local and broader understandings about the environment. This article documents a growing body of literature recognizing the role of arts and culture, including local knowledge and traditional ecological knowledge (TEK), in climate change endeavors. Art and TEK present expansive world views. Contextual information situates research done on the island of Barbuda pre- and post-Hurricane Irma. Visual arts workshops engaged community members in mixed methods research. Results documented cultural elements, particularly intangible and …

Consumer Claims For Insurance Company Drone Surveillance, Chad J. Pomeroy

Faculty Articles

Many people do not own their homes outright-they finance the purchase of their home by taking out a mortgage against it. This typically means that the homeowner is contractually obligated to do a number of things-like pay real property taxes, keep the property in good condition, and keep it insured, even as prices skyrocket. But even worse, the pool of providers is materially shrinking with some insurers now either not writing or limiting new policies or tightening underwriting standards in some markets. Insurance companies pull out of markets because they cannot make enough money in those markets to be profitable. …

A Workable Common Law Baseline For Regulatory Takings, Adam J. Macleod

Faculty Articles

Rights to use property are property rights. The Takings Clause of the Fifth Amendment requires governments to provide just compensation when they take property. In our constitutional republic, legislatures are competent to change the law, and legal changes sometimes alter private rights, including use rights. The Takings Clause does not forbid such legal changes. It only requires compensation for property rights taken as a result.

To give use rights the constitutional protection that the Takings Clause requires, courts need a baseline of rightful property use to show when a change in the law that adversely affects use rights amounts to …

Color Inside The Lines: Achieving Pharmaceutical Deal Certainty When The Courts Keep Redrawing The Ip Lines, James Farrington

Texas A&M Journal of Property Law

In The Genome Defense, Jorge Contreras vividly describes the story of how gene patents were challenged in Association for Molecular Pathology v. Myriad Genetics and the U.S. Supreme Court’s reversal of the USPTO’s long-standing practice of allowing patents on human genes. This Article examines how pharmaceutical companies navigate intellectual property challenges in the wake of the Myriad decision and other landmark cases that have redrawn the boundaries of patent-eligible subject matter. Drawing on the Author’s 35 years of experience in life science transactions, the Article analyzes three key strategies that pharmaceutical companies employ: (1) adapting their business and licensing …

From Myriad To Moderna: The Modern (Bio)Pharmaceutical Company, Ana Santos Rutschman

Texas A&M Journal of Property Law

This Article examines the emergence of two modern pharmaceutical companies: Myriad and Moderna. After providing a brief background on each company, this Article contrasts them across the following areas: the technologies they have brought to market; their location; their start-up stages and the role that venture capital played in catalyzing their evolution from start-ups to large corporate structures; their relationships with other entities in the private sector, in academia and in the public sector; and their intellectual property and licensing strategies.

Red Gate Motel, Inc. V. Albanese, 317 A.3d 1123 (R.I. 2024), Desiree James

Roger Williams University Law Review

No abstract provided.

Property Law— Squaring The Mold Predicament With Arkansas Landlord-Tenant Law, Katherine James Clark

University of Arkansas at Little Rock Law Review

No abstract provided.

Controlling The Mischief Of New York’S Foreclosure Abuse Prevention Act Through Constitutional Pre-Emption, Shelby D. Green

Touro Law Review

No abstract provided.

Zoning The Subsurface, Hannah Jacobs Wiseman, Anne Menefee, Seth Blumsack, Michael Helbing

Faculty Scholarship

The vast rock formations underlying the United States stand at an important Demsetzian turning point, at which the externalities of inadequately defined property rights justify the costs of solidifying formal property rights for this resource. This need arises from the growing scarcity of pore space (tiny openings) in subsurface rocks—property that is critical to address climate change. Efforts to mitigate and adapt to climate impacts require large-scale underground storage of carbon dioxide, water, and energy within the pore space of subsurface reservoirs. The subsurface will also continue to house millions of miles of pipelines, hundreds of thousands of waste disposal …

A Multiple Perspective Analysis On Urban Poverty In Developing Nations: A Case Study On Nigeria, Colonial Implications, And Modern-Day Outcomes, Julian Rivera-Williams

CMC Senior Theses

This paper will dissect urbanization and poverty in Nigeria as a case study of the challenges of underdevelopment and the lingering effects of colonialism in Africa. To draw a complete understanding of challenges faced by developing nations facing systemic underdevelopment, high poverty, and low productivity– nations like Nigeria, my research will uncover colonial impacts and post-colonial policies that initiated urban poverty and underdevelopment outcomes we see today. The purpose of my thesis is to encompass existing fragmented academia on the causes and consequences of underdevelopment and connect historical implications to current impacts of global development today including the influence of …

What's Law Got To Do With It? The Role Of The Law In Creating And Exacerbating Racial Disparities In Colonial Land Grants After The War Of 1812, Melisa Marsman

Articles, Book Chapters, & Popular Press

While the reciprocal relationship between law and race is complex and multifaceted, it has deep historical roots in colonial legal systems that played a crucial role in producing and perpetuating racial inequalities. The effects of these historical injustices persist today, evident in the numerous examples of racial disparities across various aspects of life, including land ownership. This article aims to uncover the role of settler-colonial land laws in creating and exacerbating land-based racial inequalities in colonial land grants, with a specific focus on those affecting the Black Refugees of the War of 1812.

Genetic Property Rhetoric And The Public Domain, David Fagundes

Faculty Articles

Among the many themes that illuminate Jorge Contreras’s The Genome Defense, this Essay focuses on property. It considers the rhetorical role played by property in convincing both courts and the public that patenting genetic data was legally and ethically objectionable. This Essay begins by locating property—and public property—as a major theme in the dialogue surrounding the Myriad litigation. It then situates this rhetorical move in the context of property-talk generally, highlighting the distinctiveness of leveraging public rather than private ownership as a means of accessing moral intuitions. Finally, this Essay reflects on what the use of public property rhetoric …

Destroy, Rebuild, Repeat: How To Break The Climate Disaster Cycle, Mark P. Nevitt

Faculty Articles

Climate change is fundamentally reshaping how we live, where we live, and whether we invest in or retreat from climate-exposed communities—but climate and disaster law is not changing with the climate. This legal latency is driven by antiquated statutes, doctrines, and policies that have not kept pace with the climate moment. Ex ante adaptation decisions governing where to live are life and death choices that shape ex post disaster response. Laws and policies should facilitate sound climate decisionmaking, but too often they frustrate individual and governmental decisions on whether to stay or retreat. In this Article, I argue that laws …

Reconstructing The Meaning Of "Forty Acres And A Mule", Cynthia Nicoletti

Faculty Scholarship

This article offers a new interpretation of the land grant to freedpeople contained in General William T. Sherman’s Special Field Orders No. 15. Issued in January 1865 at the end of the Civil War, Sherman’s Orders are widely considered to be the origin of the government promise to endow freedpeople with “forty acres and a mule” as they transitioned from slavery to freedom. As such, the Special Field Orders have played a central role in shaping the cultural memory of the Civil War, historical accounts of Reconstruction, and contemporary debates over reparations for slavery. They have also been misunderstood and …

Teaching Client Counseling In The Shadow Of Homelessness, Gregory Zlotnick

Faculty Articles

Working with clients at risk of or experiencing, homelessness teaches personal and professional humility like few other experiences in law school or the practice of law. Yet such sensitive work also provides an opportunity for law students to develop both a keener understanding of their own professional identity-with its capacities and limitations and critical counseling skills. This essay draws upon experiences gained in three distinct law school projects that work with clients at risk of or experiencing, homelessness.

After providing a brief overview of each project, the essay will explore methods used for training and supervising students during their counseling …

The Reedy Creek Improvement District: A Comparative Analysis Underscoring The Problems In Hampering Special Districts, J. Patrick Moll

Dickinson Law Review (2017-Present)

In 2022, the Florida legislature passed a bill that removed the administration of the Reedy Creek Improvement District, the special district governing the Walt Disney World Resort. The bill replaced it with the Central Florida Tourism Oversight District. Governor Ron DeSantis hailed this legislation as a success in reigning in a corporation operating with unchecked and unprecedented levels of governmental authority. Since its inception, however, the replacement administration has contended with claims of ethical violations, inefficiency, and unconstitutional enactment. Before the repeal of the Walt Disney World special district, special districts themselves were not often present in the Nation’s everyday …

Free Speech Versus Property: When Deception Can (And Can't) Give Rise To Tresspass, Jareb Gleckel, Elizabeth Nisbet

University of San Francisco Law Review

No abstract provided.

Subsurface Trespass In The Restatement (Fourth) Of Property: An Appraisal And Alternative Account, Joseph A. Schremmer

Faculty Articles

Building on the scholarly work of leading property theorists Henry Smith and Thomas Merrill, the recently approved Fourth Tentative Draft of the Restatement (Fourth) of Property prescribes treating all entries below ground as ordinary trespasses. That includes entries in the shallow subsurface by building foundations and utility lines, as well as invasions in the deep subsurface by mining shafts, oil and gas wells, and substances injected for disposal and storage. The Restatement comes at an important time in the development of subsurface trespass law, as developers, courts, and policymakers grapple with the growing use of subsurface technologies for horizontal drilling, …

Knudsen V. Dejean, 311 A.3d 102 (R.I. 2024), Ma Camille Briones

Roger Williams University Law Review

No abstract provided.

Gravitational Property Theory, Monika U. Ehrman

Faculty Journal Articles and Book Chapters

Isaac Newton and Albert Einstein defined and redefined the field of physics. Their theoretical work on gravity is still considered a monumental discovery of their respective times. Although born centuries apart, the theory of gravity each advanced is still essential. Newton’s theory is applied on Earth and even throughout much of the solar system, while Einstein’s theory is used in special environments, such as near black holes. Neither theory is discarded, but instead used where appropriate. Likewise, gravitational property theory proposes that simple property theory—the ad coelum doctrine—is still appropriate for simple property, like stationary or vertical objects. And complex …

Takings Doctrinalization, Gerald S. Dickinson

Washington and Lee Law Review

The U.S. Supreme Court’s takings jurisprudence is shaped by an unusually strong reliance on doctrinalist methods of interpretation and reasoning. From Pennsylvania Coal Co. v. Mahon to Penn Central Transportation Co. v. City of New York to Kelo v. City of New London, the Court heavily consults its past takings decisions or refers to the tests, principles, or standards from those decisions as epistemic guides to draw meaning from the Takings Clause. This long history of takings doctrinalization, however, was abruptly disturbed in Nollan v. California Coastal Commission and Dolan v. City of Tigard. There, Justices Scalia and …

Social Purpose Reit, Evan Absher

Faculty Works

The United States grapples with a severe housing affordability crisis, often attributed to restrictive zoning laws, speculative private equity investment, and policy deficiencies. Each of these factors contributes to the housing shortage, but addressing any single factor in isolation is insufficient to resolve the underlying issue. A holistic solution requires increasing housing availability across the entire affordability spectrum through both the production of new units and the preservation of existing affordable housing.

This article argues the misalignment of interests among key local stakeholders—residents, community organizations, and investors is the fundamental cause of the housing crisis. Realignment requires a transformation of …

The Effectiveness Of The Minnesota Buffer Law And Its Impacts On People, Ellen P. Isakson

Journal of Earth and Life Science

In January 2015, the then-governor of Minnesota Mark Dayton announced new legislation that would require 50-foot vegetation buffers along all waterways in Minnesota; this legislation would come to be known as the Minnesota buffer law, exact requirements being “perennial vegetative buffers of up to 50 feet along lakes, rivers, and streams and buffers of 16.5 feet along ditches” (Albert, 2017; MN Board of Water and Soil Resources [MN BWSR] 4 ). A buffer in the context of vegetation and natural resource management is a strip of vegetation around a body of water “designed to intercept stormwater runoff and minimize soil …

Enhancing The Uniform Partition Of Heirs Property Act: The Need For Broader Use And Essential Modifications, Donna Arzanipour

Touro Law Review

The Uniform Partition of Heirs Property Act (“UPHPA”) seeks to address complex and inequitable conflicts that arise when partitioning heirs property. This Note explores the legislative history of the UPHPA, along with the legal and societal significance of the UPHPA, which provides mechanisms to prevent forced sales of family-owned property. Through a comparative analysis of states that have adopted their versions of the UPHPA, this Note considers the law’s potential to protect family land, reduce the risk of displacement, and promote longterm economic stability for communities, especially those in rural and minority populations. While recommending that all states should adopt …

The Law Of Digital Resurrection, Victoria J. Haneman

Scholarly Works

The digital right to be dead has yet to be recognized as an important legal right. Artificial intelligence, augmented reality, and nanotechnology have progressed to the point that personal data can be used to resurrect the deceased in digital form with appearance, voice, emotion, and memory recreated to allow interaction with a digital app, chat bot, or avatar that may be indistinguishable from that with a living person. Users may now have a completely immersive experience simply by loading the personal data of the deceased into a neural network to create a chatbot that inherits features and idiosyncrasies of the …

Tortious Interference Revisited, Danielle D'Onfro, Cathy Hwang

Scholarship@WashULaw

Tortious interference with contract has bedeviled legal commentators for over a century. It can provide relief in some situations where straightforward contract breach cannot reach. But these claims have also been derided for threatening competition, at-will employment, free speech, and important guardrails on other private law claims. The doctrine is also difficult to square with theories of efficient contract breach and the long-held view that contracts on their own are not property interests.

Perhaps because of its intellectual awkwardness, tortious interference claims were relatively rare until the twenty-first century. In the last twenty years, the doctrine has exploded in popularity, …