Law Commons^™

Law & Neighborhood Names, Nestor M. Davidson, Dave Fagundes

Faculty Scholarship

This Article provides a novel investigation of how law both enables and constrains the ability of city residents to claim, name, and often rename their neighborhoods. A rich interdisciplinary dialogue in areas such as geography and sociology has emerged on the significance of place names, but this literature has largely ignored the legal dimensions of the phenomenon, with its implications for urban governance, belonging, and community conflict. This Article’s empirical exploration of the role of law in change and conflict regarding neighborhood identity thus advances the discourse both for legal scholars focused on urban dynamics and across disciplines.

From gentrification …

Eminent Domain And Oil Pipelines: A Slippery Path For Federal Regulation, Natalie M. Jensen

Fordham Environmental Law Review

No abstract provided.

Restricting Testamentary Freedom: Ex Ante Versus Ex Post Justifications, Daniel B. Kelly

Fordham Law Review

The organizing principle of American succession law—testamentary freedom—gives decedents a nearly unrestricted right to dispose of property. After surveying the justifications for testamentary freedom, I examine the circumstances in which it may be socially beneficial for courts to alter wills, trusts, and other gratuitous transfers at death: imperfect information, negative externalities, and intergenerational equity. These justifications correspond with many existing limitations on the freedom of testation. Yet, disregarding donor intent to maximize the donees’ ex post interests, an increasingly common justification for intervention, is socially undesirable. Doing so ignores important ex ante considerations, including a donor’s happiness, a donor’s incentive …

"Land Is Life, Land Is Power": Landlessness, Exclusion, And Deprivation In Nepal, Elisabeth Wickeri

Crowley Mission Reports

Up to one quarter of the world’s poor is estimated to be landless, a condition that in rural areas is often the best predictor of poverty and hunger. Access to land and its resources, land tenure security, ownership and control over land, and the ability to dispose of land or transfer rights in land are necessary for the fulfillment of fundamental human rights, and are frequently tied to the indigenous, ethnic, and cultural identities of peoples. The social and economic impacts of landlessness, including hunger, threats to health, homelessness, and exploitative labor conditions, create conditions intensifying exploitation by both landowners …

Property's Morale , Nestor M. Davidson

Faculty Scholarship

A foundational argument long invoked to justify stable property rights is that property law must protect settled expectations. Respect for expectations unites otherwise disparate strands of property theory focused on ex ante incentives, individual identity, and community. It also privileges resistance to legal transitions that transgress reliance interests. When changes in law unsettle expectations, such changes are thought to generate disincentives that Frank Michelman famously labeled demoralization costs. Although rarely approached in these terms, arguments for legal certainty reflect underlying psychological assumptions about how people contemplate property rights when choosing whether and how to work, invest, create, bolster identity, join …

Gallenthin V. Kaur: A Comparative Analysis Of How The New Jersey And New York Courts Approach Judicial Review Of The Exercise Of Eminent Domain For Redevelopment, Ronald K. Chen

Fordham Urban Law Journal

This Article explores two explanations for why New Jersey and New York take different approaches to judicial review of exercises of eminent domain. Part I examines the approach of both states and their differing procedures for review of administrative agency determinations. Part II discusses how each states' courts and legislatures define "blight." Part III examines how New York's approach leaves municipal officials and redevelopers free to use the more flexible concept of "underutilization" as a proxy for "blight."

Public Use In The Dirigiste Tradition: Private And Public Benefit In An Era Of Agglomeration, Steven J. Eagle

Fordham Urban Law Journal

Dirigisme is the "policy of state direction and control in economic and social matters. This Article examines dirigisme as it relates to state control of land use. It also analyzes the development of eminent domain law and the requirement that takings be for public use. The author argues that the New York Court of Appeals "subordinates constitutional protections for private property to centralized development," specifically examining the recent Goldstein and Kaur opinions. The Article also discusses the implications of condemnation for transfer for private redevelopment, including lack of transparency, secondary rent seeking, possibilities of corruption, and the inefficient use of …

The Problem With Pretext, Lynn E. Blais

Fordham Urban Law Journal

This Article examines the problems with the Supreme Court's holding in Kelo v. City of New London that the concept of public use is expansive unless the government is asserting the public use as a "mere pretext" and the true purpose is private benefit. The author examines the level of scrutiny applied in such cases, the link between pretext and motive, and the tests applied to evaluate pretext challenges: the burden-shifting motives test, the sufficiency of the plan taste, and the benefits to the public test. The author concludes that pretext is an "unworkable mechanism" for evaluating public use cases.

Property In Crisis, Nestor M. Davidson, Rashmi Dyal-Chand

Fordham Law Review

Property law generally develops gradually, with doctrine slowly accreting in the interstices of daily conflict and the larger culture of property likewise emerging at a glacial pace. In times of crisis, however, fundamental questions about the nature of ownership and the balance between the individual and the state instantiated in the structure of property rise rapidly to the surface. Our current economic crisis—the deepest since the Great Depression—is no exception. This economic crisis, more than many in our history, began with property, sparked in no small measure by structural flaws in the residential market and an ownership society that advocated …

The Internet Is A Semicommons, James Grimmelmann

Fordham Law Review

No abstract provided.

Litigating Second Life Land Disputes: A Consumer Protection Approach. , Paul Riley

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Property Metaphors And Kelo V. New London: Two Views Of The Castle, Eduardo M. Penalver

Fordham Law Review

No abstract provided.

Land Use And Housing Policies To Reduce Concentrated Poverty And Racial Segregation, Myron Orfield

Fordham Urban Law Journal

This Article recommends that land use and housing policies be marshaled to reduce residential racial segregation and concentrated poverty. It argues secondly, that state legislatures must adopt a coordinated policy approach. This Article uses Oregon's comprehensive land use legislation as a paradigmatic example of policies that effectively promote affordable housing and decrease urban sprawl. Finally, the article discusses nine policies that the author believes are necessary to promote stable metropolitan living patterns.

White Knight?: Can The Commerce Clause Save The Religious Land Use And Institutionalized Persons Act?, Lara A. Berwanger

Fordham Law Review

No abstract provided.

A Balancing Act: The Foreclosure Power Of Homeowners' Associations, Gemma Giantomasi

Fordham Law Review

No abstract provided.

Guns, Drugs, And Federalism: Rethinking Commerce-Enabled Regulation Of Mere Possession, Marcus Green

Fordham Law Review

No abstract provided.

What Does A Fair Society Owe Children - And Their Parents?, Anne L. Alstott

Fordham Law Review

No abstract provided.

Theories Of Distributive Justice And Limitations On Taxation: What Rawls Demands From Tax Systems, Linda Sugin

Fordham Law Review

No abstract provided.

Comments: Individual Versus Collective Responsibility, Thomas Nagel

Fordham Law Review

No abstract provided.

The Donation Registry, Robert D. Cooter

Fordham Law Review

No abstract provided.

A High Water Mark: The Article Iv, Section 2, Privileges And Immunities Clause And Nonresident Beach Access Restrictions, Susan M. Cordaro

Fordham Law Review

No abstract provided.

A Second Take: Re-Examining Our Regulatory Takings Jurisprudence Post-Tahoe, Robert W. Diubaldo

Fordham Urban Law Journal

This Note discusses the aftermath of the landmark case, Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agencey. This Comment first discusses the background of regulatory takings jurisprudence, from Justice Holmes' landmark Pennsylvania Coal opinion to the present. It further analyzes the recent Tahoe decision, focusing on both the strengths and weaknesses of the decision and its potential impact on the future of takings. Finally, the Comment offers a different analytical framework from which to analyze regulatory takings. Under this theory, courts would abandon the partial/total distinction, and instead focus on the actual loss from the landowner's point of view. …

Temporary Insanity: The Long Tale Of Tahoe-Sierra Preservation Council And Its Quiet Ending In The United States Supreme Court, J. David Breemer

Fordham Law Review

No abstract provided.

City Life And New Urbanism, Ray Gindroz

Fordham Urban Law Journal

This article discusses the importance and reintroduction of urban centers as areas of continuing development, information exchange and health in cities and suburbs. It first comments on the decay of urban centers as a result of the post-World War II push to build towns and cities which were more isolated, fragmented and anti-urban. New urbanism began in the 1970s and 80s to create neighborhoods and urban centers rather than scattered developments and has successfully continued to this day. This article identifies the design principles of these urbanists and how they are put into practice, including a case study of Park …

Making The Good Easy: The Smart Code Alternative, Andres Duany, Emily Talen

Fordham Urban Law Journal

This article advocates for a new, fundamentally different plan for how cities should be coded, the Smart Code. It links urbanism and environmentalism and is strongly aligned with smart growth and sustainability. The Smart Code is offered as an alternative to the current anti-urban, conventional codes which are rigid and focus on single-use zones that separate human living space from the natural environment, as illustrated by the sprawl.

Florida's Downtowns: The Key To Smart Growth, Urban Revitalization, And Green Space Preservation, John T. Marshall

Fordham Urban Law Journal

This article reviews Florida's growth management system, which has spurred suburban development, and its negative impact on Florida's cities. As Florida's governor and legislature have turned their focus to this issue, this article evaluates policy recommendations to limit Florida's suburban sprawl and invigorate its urban centers.

First Suburbs In The Northeast And Midwest: Assets, Challenges, And Opportunities, Robert Puentes

Fordham Urban Law Journal

This article examines the decline of first suburbs, the older inner-ring suburbs closest to cities that grew up before or immediately after World War II. As families leave these areas for the expanding outer suburbs, the tax base shrinks and poverty and failing schools result. Inner suburbs lack the sophisticated governmental structures of cities to combat these problems, and without a shift in investment policies, first suburbs will continue to suffer.

Eras, Daniel Solomon

Fordham Urban Law Journal

This article discusses the different eras of development of the American town. The first era was a result of the agrarian grid. The second era started in 1938 when the Federal Housing Administration began working on a national code. The article identifies these sprawling second era towns as deficient. A third era is now underway and is heavily influenced by the first era towns.

Maryland's Next Smart Growth Initiative: The Next Steps, Parris N. Glendening

Fordham Urban Law Journal

This article discusses Maryland's Smart Growth and Neighborhood Conservation Initiative, the nation's first statewide, incentive-based program to reduce the impact of urban sprawl. It has been used as a model by other states and espouses the notions that no growth is bad and the economy and environment are intertwined. Maryland attempts to change the bottom line of development decisions by making it more attractive and less costly to build in designated growth areas. The article identifies the next steps in Maryland's Smart Growth initiative and concludes that Maryland and the United States must be successful in these and similar efforts …

The Census As A Call To Action, David J. Barron, Gerald E. Frug

Fordham Urban Law Journal

This article argues that we misinterpret the Census figures showing the continued growth of the suburbs and increase in populations of some cities and not others. While many, including a Harvard economist, contend that this is a purely a result of consumer preference, this article concludes that this pattern is more likely a result of legal rules promoting sprawl which have been unchanged for 50 years. The article states that this new census data should be a wake-up call for state law reform which will no longer constrain and define local government.