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Articles 1 - 24 of 24
Full-Text Articles in Law
The Concept Of Religion, Eduardo M. Peñalver
The Concept Of Religion, Eduardo M. Peñalver
Eduardo M. Peñalver
No abstract provided.
Restoring The Right Constitution? (Reviewing Randy Barnett, Restoring The Lost Constitution: The Presumption Of Liberty (2004)), Eduardo Peñalver
Restoring The Right Constitution? (Reviewing Randy Barnett, Restoring The Lost Constitution: The Presumption Of Liberty (2004)), Eduardo Peñalver
Eduardo M. Peñalver
No abstract provided.
The Illusory Right To Abandon, Eduardo M. Peñalver
The Illusory Right To Abandon, Eduardo M. Peñalver
Eduardo M. Peñalver
The unilateral and unqualified nature of the right to abandon (at least as it is usually described) appears to make it a robust example of the law’s concern to safeguard the individual autonomy interests that many contemporary commentators have identified as lying at the heart of the concept of private ownership. The doctrine supposedly empowers owners of chattels freely and unilaterally to abandon them by manifesting the clear intent to do so, typically by renouncing possession of the object in a way that communicates the intent to forgo any future claim to it. A complication immediately arises, however, due to …
The Persistent Problem Of Obligation In International Law, Eduardo Peñalver
The Persistent Problem Of Obligation In International Law, Eduardo Peñalver
Eduardo M. Peñalver
No abstract provided.
The Right Not To Use In Property And Patent Law, Oskar Liivak, Eduardo M. Peñalver
The Right Not To Use In Property And Patent Law, Oskar Liivak, Eduardo M. Peñalver
Eduardo M. Peñalver
In Continental Paper Bag Co. v. Eastern Paper Bag Co., the Supreme Court held (1) that patent owners have an absolute right not to practice their patent and (2) that even these nonpracticing patent owners are entitled to the liberal use of injunctive relief against infringers. Both of these holdings have been very important to the viability of patent assertion entities, the so-called patent trolls. In eBay Inc. v. MercExchange, L.L.C., the Supreme Court softened the injunction rule. In this Article, we argue that Congress or the Court should reconsider Continental Paper Bag’s embrace of an absolute right not to …
Treating Religion As Speech: Justice Stevens's Religion Clause Jurisprudence, Eduardo M. Peñalver
Treating Religion As Speech: Justice Stevens's Religion Clause Jurisprudence, Eduardo M. Peñalver
Eduardo M. Peñalver
Justice Stevens has sometimes been caricatured as the U.S. Supreme Court Justice who hates religion. Whether considering questions under the Establishment Clause or the Free Exercise Clause, questions about the funding or regulation of religious groups, or the permissibility of religious speech in public places, in case after case he has voted against religion. Like most caricatures, this view of Justice Stevens is based on a kernel of truth. He does appear to be more likely to vote against religious groups than any other Justice. But an exploration of the cases in which Justice Stevens has voted in favor of …
Is Land Special? The Unjustified Preference For Landownership In Regulatory Takings Law, Eduardo M. Peñalver
Is Land Special? The Unjustified Preference For Landownership In Regulatory Takings Law, Eduardo M. Peñalver
Eduardo M. Peñalver
This article critiques the Court's attempt to cabin the Lucas "per se" takings rule by limiting it to real property. It argues that the distinction between real and personal property cannot be justified by history or the differing expectations of property owners. It then applies five theoretical frameworks (libertarian, personhood, utilitarian, public choice, and Thomistic-Aristotelian natural law) and finds that none of them supports the jurisprudential distinction between real and personal property. As a result, the article argues that "because the distinction between personal and real property is an unprincipled one, it cannot save the Court from the unpalatable implications …
Regulatory Taxings, Eduardo Peñalver
Regulatory Taxings, Eduardo Peñalver
Eduardo M. Peñalver
The tension between the Supreme Court's expansive reading of the Takings Clause and the state's virtually limitless power to tax has been repeatedly noted, but has received little systematic exploration. Although some scholars, most notably Richard Epstein, have used the tension between takings law and taxes to argue against the legitimacy of taxation as it is presently practiced, such an approach has failed to gain a significant following. Instead, the broad legal consensus is that legislatures effectively have unlimited authority to impose tax burdens. Nevertheless, this Article demonstrates that every attempt to formulate a "Reconciling Theory," a theory that would …
Properties Of Community, Gregory S. Alexander, Eduardo M. Peñalver
Properties Of Community, Gregory S. Alexander, Eduardo M. Peñalver
Eduardo M. Peñalver
Theories of property presuppose conceptions of community, and of the individual's relationship to community. In contrast to the dominant theories of community at work within most Anglo-American property theorizing, which view community obligations as fundamentally instrumental and contractual, we propose in this paper a theory that views the relationship between the individual and community as constitutive and substantive. Human beings' dependence on others to flourish imposes on political communities and their individual members a shared obligation to foster and contribute to the creation and maintenance of those structures necessary for that flourishing. This obligation in turn qualifies individual rights of …
The Costs Of Regulation Or The Consequences Of Poverty? Progressive Lessons From De Soto, Eduardo Peñalver
The Costs Of Regulation Or The Consequences Of Poverty? Progressive Lessons From De Soto, Eduardo Peñalver
Eduardo M. Peñalver
No abstract provided.
Acts Of God Or Toxic Torts? Applying Tort Principles To The Problem Of Climate Change, Eduardo M. Peñalver
Acts Of God Or Toxic Torts? Applying Tort Principles To The Problem Of Climate Change, Eduardo M. Peñalver
Eduardo M. Peñalver
The problem of climate change continues to be an intractable one for policymakers. Uncertainties over the likely costs of climate change as well as over the costs of proposed remedies have hampered the formation of a consensus regarding the best course of action. The principles of tort law provide a useful means of analyzing the problem of climate change, particularly the issue of who should bear the costs associated with its effects. The two major goals of tort law (reducing the costs of accidents and corrective justice) both point towards the appropriateness of placing the costs of climate change on …
Judicial Takings Or Due Process, Eduardo M. Peñalver, Lior Jacob Strahilevitz
Judicial Takings Or Due Process, Eduardo M. Peñalver, Lior Jacob Strahilevitz
Eduardo M. Peñalver
No abstract provided.
Redistributing Property: Natural Law, International Norms, And The Property Reforms Of The Cuban Revolution, Eduardo M. Peñalver
Redistributing Property: Natural Law, International Norms, And The Property Reforms Of The Cuban Revolution, Eduardo M. Peñalver
Eduardo M. Peñalver
No abstract provided.
A Statement Of Progressive Property, Gregory S. Alexander, Eduardo M. Peñalver, Joseph W. Singer, Laura S. Underkuffler
A Statement Of Progressive Property, Gregory S. Alexander, Eduardo M. Peñalver, Joseph W. Singer, Laura S. Underkuffler
Eduardo M. Peñalver
What would a progressive theory of property look like? Although such a theory might take root within any number of specific normative frameworks, this Statement of Progressive Property outlines several features progressive theories of property should have in common. The Statement argues that we should understand property as both an idea and an institution, that property confers power and shapes community, both in its legal and social dimensions, and that property should be understood as serving plural and incommensurable values whose accommodation is possible through reasoned deliberation and practical judgment.
Reconstructing Richard Epstein, Eduardo M. Peñalver
Reconstructing Richard Epstein, Eduardo M. Peñalver
Eduardo M. Peñalver
No abstract provided.
Restoring The Right Constitution?, Eduardo M. Peñalver
Restoring The Right Constitution?, Eduardo M. Peñalver
Eduardo M. Peñalver
After years of relative neglect, the past few decades have witnessed a dramatic renewal of interest in the natural law tradition within philosophical circles. This natural law renaissance, however, has yet to bear much fruit within American constitutional discourse, especially among commentators on the left. In light of its low profile within contemporary constitutional debates, an effort to formulate a natural law constitutionalism is almost by definition an event worthy of sustained attention. In "Restoring the Lost Constitution," Randy Barnett draws heavily upon a natural law theory of constitutional legitimacy to argue in favor of a radically libertarian reading of …
Property As Entrance, Eduardo M. Peñalver
Land Virtues, Eduardo M. Peñalver
Property Metaphors And Kelo V. New London: Two Views Of The Castle, Eduardo M. Peñalver
Property Metaphors And Kelo V. New London: Two Views Of The Castle, Eduardo M. Peñalver
Eduardo M. Peñalver
No abstract provided.
Property Outlaws, Eduardo Peñalver, Sonia Katyal
Property Outlaws, Eduardo Peñalver, Sonia Katyal
Eduardo M. Peñalver
Most people do not hold those who intentionally flout property laws in particularly high regard. The overridingly negative view of the property lawbreaker as a wrong-doer comports with the nearly sacrosanct status of property rights within our characteristically individualist, capitalist, political culture. This dim view of property lawbreakers is also shared to a large degree by property theorists, many of whom regard property rights as a fixed constellation of allocative entitlements that collectively produce stability and order through ownership. In this Article, we seek to rehabilitate, at least to a degree, the maligned character of the intentional property lawbreaker, and …
Property's Memories, Eduardo M. Peñalver
Property Outlaws , Eduardo Moisés Peñalver, Sonia K. Katyal
Property Outlaws , Eduardo Moisés Peñalver, Sonia K. Katyal
Eduardo M. Peñalver
No abstract provided.
Exactions Creep, Lee Anne Fennell, Eduardo M. PeñAlver
Exactions Creep, Lee Anne Fennell, Eduardo M. PeñAlver
Eduardo M. Peñalver
The published version of this article is available at: http://scholarship.law.cornell.edu/facpub/1409/. How can the Constitution protect landowners from government exploitation without disabling the machinery that protects landowners from each other? The Supreme Court left this central question unanswered — and indeed unasked — in Koontz v. St. Johns River Water Management District. The Court’s exactions jurisprudence, set forth in Nollan v. California Coastal Commission, Dolan v. City of Tigard, and now Koontz, requires the government to satisfy demanding criteria for certain bargains — or proposed bargains — implicating the use of land. Yet because virtually every restriction, fee, or tax associated …
Property Law: Rules, Policies & Practices, Joseph Singer, Bethany Berger, Nestor Davidson, Eduardo Peñalver
Property Law: Rules, Policies & Practices, Joseph Singer, Bethany Berger, Nestor Davidson, Eduardo Peñalver
Eduardo M. Peñalver
No abstract provided.