Law Commons^™

Property Vs. Political Holdouts. The Case Of The Tgv Rail Line Lyon-Budapest In Italy, Livia C. Navone

Livia C. Navone

While the law and economics literature commonly justifies the takings power on the ground that it is necessary to overcome holdouts and, thus, allow efficient development projects to move forward, this paper shows that the standard theory is highly incomplete. It conveniently ignores the ability of politically powerful groups to block development projects by exercising their de facto veto power over proposed projects. Such groups do not necessarily have rights in any properties directly affected by the project. Consequently, once these groups, which I label “political holdouts,” are added to the analysis, it becomes clear that the payment of just …

Illinois Mortgage Foreclosure: Problems And Solutions, John N. Oest

John N Oest

This article contends that various provisions of Illinois' mortgage foreclosure law conflict with other bodies of law. Existing practice of publishing against unknown claimants is also overly expansive and needlessly increases the cost of foreclosure. This article recommends solutions to all these problems.

Intent And Empirics: Race To The Subprime, Carol N. Brown

Carol N Brown

ABSTRACT INTENT AND EMPIRICS: RACE TO THE SUBPRIME The United States’ history of racially discriminatory banking, housing, and property policies created a community of black Americans accustomed to exploitative financial services and vulnerable to victimization by subprime lenders. My thesis is that black borrowers are experiencing a new iteration of intentional housing discrimination in the twentieth and twenty-first centuries; lenders identified a vulnerable “emerging market” of black homeowners and borrowers and knowingly targeted them to receive subprime or predatory loan products when equally situated white borrowers were given superior, prime mortgage products. This Article explores how disparate lending practices coupled …

Thwack!! Take That, User-Generated Content!: Marvel Enterprises, Inc. V. Ncsoft Corp., Carl M. Szabo

Carl M Szabo

Dear Madam or Sir: As seen in the attached note, I am to make two contributions. First, I address the issue of copyright liability of websites for infringement by the website users. A constant struggle as old as the constitution itself, the issue of copyright protection now makes its way into the virtual world of the internet. While the issue of copyright liability has been seen in hundreds of comments and notes from courts and attorneys alike, the issue of copyright liability on the internet remains an open question that if not addressed could endanger the protection afforded to authors …

Intent And Empirics: Race To The Subprime, Carol N. Brown

Carol N Brown

ABSTRACT INTENT AND EMPIRICS: RACE TO THE SUBPRIME The United States’ history of racially discriminatory banking, housing, and property policies created a community of black Americans accustomed to exploitative financial services and vulnerable to victimization by subprime lenders. My thesis is that black borrowers are experiencing a new iteration of intentional housing discrimination in the twentieth and twenty-first centuries; lenders identified a vulnerable “emerging market” of black homeowners and borrowers and knowingly targeted them to receive subprime or predatory loan products when equally situated white borrowers were given superior, prime mortgage products. This Article explores how disparate lending practices coupled …

Homes, Rights, And Communities, Paul Boudreaux

Paul Boudreaux

Homes, Rights, & Communities, by Paul Boudreaux. Homeowners associations (HOAs) and their restrictive covenants have become a way of life for millions of American families, especially in the wake of the recent housing boom. While some economically oriented writers view HOAs as a welcome manifestation of voluntary contract, others commentators argue that the often-intrusive covenants may not mirror residents’ desires and enforce a stifling conformity on our communities. In this article, Paul Boudreaux uses these criticisms and the existing law of individual rights to develop a substantive “bill of rights” for HOA residents against these covenants, using as its guiding …

Abuse Of Rights: The Continental Drug And The Common Law, Anna Di Robilant

anna di robilant

This article deploys a comparative approach to question a widely-shared understanding of the impact and significance of abuse of rights. First, it challenges the idea that abuse of rights is a peculiarly civilian “invention”, absent in the common law. Drawing on an influential strand of functionalist comparative law, the article identifies the “functional equivalents” of the doctrine in the variety of malice rules and reasonableness tests deployed by American courts in the late 19th and early 20th century in fields as diverse as water law, nuisance, tortious interference with contractual relations and labor law. The article investigates the reasons why …

A Horse Of A Different Color: A Study Of Color Bias, Anti-Trust, And Restraint Of Trade Violations In The Equine Indsutry, Mary W. Craig

Mary W Craig

In 2000, Kay Floyd sued the American Quarter Horse Association, and changed not only the way the Association did business, but changed the law as it applied to voluntary associations. The court ruled that an association cannot economically discriminate against some of its members and artificially devalue the property held by those members. Subsequently, the American Quarter Horse Association has changed its own registration rules to reflect the principle behind the Floyd suit, even though the parties settled and dismissed the case. A sister equine association in Texas, however, has refused to amend its rules concerning equine registration, resulting in …

A Troubled Path To Private Property: Agricultural Land Law In Russia, Ira Kenneth Lindsay

Ira Kenneth Lindsay

When the Soviet Union collapsed many observers hoped that decollectivization would improve the infamously inefficient Soviet agricultural sector and raise collective farm workers out of poverty. The initial results of market reform in Russian agriculture were a severe disappointment in both respects. Under Putin, Russia has finally allowed agricultural land to be bought and sold. The effects of this latest reform have been less than was hoped by supporters or feared by opponents. Russia’s experience with land reform suggests that while private ownership of farmland may offer significant advantages, successful land reform requires much more than the creation of legal …

Bad Faith In Cyberspace: Grounding Domain Name Theory In Trademark, Property, And Restitution, Jacqueline Lipton

Jacqueline D Lipton

The year 2009 marks the tenth anniversary of domain name regulation under the Anti-Cybersquatting Consumer Protection Act (ACPA) and the Uniform Domain Name Dispute Resolution Policy (UDRP). Adopted to combat cybersquatting, these rules left a confused picture of domain name theory in their wake. Early cybersquatters registered Internet domain names corresponding with other’s trademarks to sell them for a profit. However, this practice was quickly and easily contained. New practices arose in domain name markets, not initially contemplated by the drafters of the ACPA and the UDRP. One example is clickfarming – using domain names to generate revenues from click-on …

Completing Caperton And Clarifying Common Sense Through Using The Right Standard For Constitutional Judicial Recusal, Jeffrey W. Stempel

Jeffrey W Stempel

In Caperton v. A.T. Massey Coal Co., Inc., the U.S. Supreme Court vacated a state supreme court decision in which a justice who had received $3 million in campaign support from a company CEO cast the deciding vote to relieve the company of a $50 million liability. The Caperton majority adopted a “probability of bias” standard for constitutional due process review of judicial disqualification decisions that differs from the ordinary “reasonable question as to impartiality” standard for recusal. Four dissenters objected to the majority’s limited supervision of state court disqualification practice, minimized the danger of biased judging presented by the …

Mortgage Market Regulation And Moral Hazard: Equity Stripping Under Sanction Of Law, Vincent Di Lorenzo

Vincent Di Lorenzo

No abstract provided.

Taking The Home Of A Class Of One And The Path Of Least Resistance: How The Equal Protection Clause And Village Of Willowbrook V. Olech Can Protect Homeowners From Eminent Domain Abuse, Josh Blackman

Josh Blackman

In the landmark case of Kelo v. City of New London, the Supreme Court held that the government can use the power of eminent domain to take a person’s home for the purpose of private development that can perhaps improve the community’s economy. This case dealt a deathblow to property rights, and made challenging eminent domain takings for private development under the Fifth Amendment a daunting, if not impossible task. Because eminent domain takings disproportionately fall on poor, uneducated, minorities who lack access to the political process, Kelo greatly impacted the ability of the weakest parts of society to keep …

Trust Law And The Title-Split: A Beneficial Perspective, Kent D. Schenkel

Kent D Schenkel

Recent functional analyses of the trust tend to emphasize its effect on the parties to the trust deal and give less attention to the nature of the beneficiary’s interest, especially in relation to persons outside the trust transaction. In contrast, this article takes a critical approach to the trust from the primary perspective of the benefits it provides to beneficiaries. From this perspective, it finds that while the trust maintains the flexibility of a contract it also restricts legal interests of third parties who are strangers to the trust bargain; a feat that contracts are unable to accomplish. Third parties …

Distinguishing The Right Of Publicity: Property Rights, Free Speech Privilege, And Competition Policy, Steven Semeraro

Steven Semeraro

The right of publicity is an enigmatic property right. Its many critics argue that it should not be a property right at all, because 1) it is unnecessary to stimulate the pursuit of fame; 2) unneeded to manage the value of publicity; and 3) undeserved in any recognized moral sense. Yet, this ostensibly persuasive critique has had little practical impact. The right of publicity today is stronger than ever. This article contends that the prevailing critique of publicity rights has failed to influence the courts in large part because each quiver in its arsenal would be just as fatal were …

Public Communities, Private Rules, Hannah Wiseman

Hannah Wiseman

As the American population grows, communities are seeking creative property tools to control individual land uses and create defined community aesthetics. In the past, private covenants were the sole mechanism to address this sort of need. Public communities, however, have begun to implement covenant-type or “private” rules, through zoning overlays, which place unusually detailed restrictions on individual property uses and, in so doing, creating new forms of “rule-bound” communities. While these communities are important, as they respond to consumers’ demand for a community aesthetic, this article will also highlight their unique problems. Many community consumers are marginally familiar with private …

"Stationarity Is Dead" -- Long Live Transformation: Five Principles For Climate Change Adaptation Law, Robin K. Craig

Robin K. Craig

While there is no question that successful mitigation strategies remain critical in the quest to avoid worst-case climate change scenarios, we’ve passed the point where mitigation efforts alone can deal with the problems that climate change is creating. Because of “committed” warming – climate change that will occur regardless of mitigation measures, a result of the already-accumulated greenhouse gases in the atmosphere – what happens to social-ecological systems over the next decades, and most likely over the next few centuries, will largely be beyond human control. The time to start preparing for these changes is now, by making adaptation part …

Climate Change, Carbon Sequestration, And Property Rights, Alexandra B. Klass, Elizabeth J. Wilson

Alexandra B. Klass

This Article considers the role of property rights in efforts to transport, inject, and store underground hundreds of million of tons of carbon dioxide (CO2) per year from power plants and other industrial facilities in order to combat dangerous climate change. This technology, known as carbon capture and sequestration (CCS), could provide deep emission cuts, particularly from coal power generation, on a worldwide basis. In order to implement CCS, private operators and state and federal governments must be able to access hundreds of millions of acres of “pore space” roughly a kilometer below the earth’s surface in which to store …

Fannie Mae And Freddie Mac And The Future Of Federal Housing Finance Policy: A Study Of Regulatory Privilege, David J. Reiss

David J Reiss

The federal government recently placed Fannie Mae and Freddie Mac, the government-chartered, privately owned mortgage finance companies, in conservatorship. These two massive companies are profit-driven, but as government-sponsored enterprises they also have a government-mandated mission to provide liquidity and stability to the United States mortgage market and to achieve certain affordable housing goals. How the two companies should exit their conservatorship has implications that reach throughout the global financial markets and are of key importance to the future of American housing finance policy.

While the American taxpayer will be required to fund a bailout of the two companies that will …

Infringement As Nuisance, Christopher M. Newman

Christopher M Newman

When should we grant injunctions against infringers of intellectual property? Before the Supreme Court’s decision in eBay v. MercExchange, the presumptive answer used to be “always,” on the grounds that property consists of a right to exclude, and infringement—like trespass—is a direct negation of that right. As property scholars Richard Epstein and Henry Smith have argued, this traditional dominance of property rules serves important purposes, reducing information costs and preventing the systematic undercompensation of rightsholders endemic to a liability rule regime. Nevertheless, there are other common law doctrines—notably accession and nuisance—that sometimes countenance use of liability rules to rescue from …

Tainted Loans: Towards A Mass Torts Approach To Subprime Mortgage Litigation, Raymond H. Brescia

Raymond H Brescia

A poison has entered the financial bloodstream. The subprime mortgage crisis and the wider financial crisis it has spawned have caused the erosion of trillions of dollars in wealth, destroyed whole communities and the dislocation of millions of homeowners. Yet, unlike in other situations where toxic products have caused widespread harm, to date, we have not seen an avalanche of litigation, large jury awards, massive settlements compensating victims and financial ruin for the distributors of those products. Some of this is changing, however. Litigation arising out of the present financial crisis is hitting the courts, including suits alleging discrimination in …

Applying Marginal Cost Pricing: Efficiency And Fairness In Takings And Land Assembly, And Accuracy In Assessment, All In One Fell Swoop, Florenz Plassmann, Nicolaus Tideman

Florenz Plassmann

Government officials who sidestep markets to take private property under eminent domain face obstacles that make it difficult for them to identify socially efficient takings. When they decide that they might take certain properties in the future, they may induce the owners of these properties to invest in their properties inefficiently, to prevent the taking. When they make final decisions about whether to take property, they may not know the property value with enough accuracy to determine whether the taking is socially worthwhile. And when they consider using their powers of eminent domain in urban renewal projects to resolve deadlocks …

Eminent Domain Wolves In Sheep’S Clothing: Private Benefit Masquerading As Classic Public Use, Carol Zeiner

Carol Zeiner

No abstract provided.

To © Or Not To ©? Copyright And Innovation In The Digital Typeface Industry, Jacqueline D. Lipton

Jacqueline D Lipton

Intellectual property rights are often justified by utilitarian theory. However, recent scholarship suggests that creativity thrives in some industries in the absence of intellectual property protection. These industries might be called IP’s negative spaces. One such industry that has received little scholarly attention is the typeface industry. This industry has recently digitized. Its adoption of digital processes has altered its market structure in ways that necessitate reconsideration of its IP negative status, with particular emphasis on copyright. This article considers the historical denial of copyright protection for typefaces in the United States, and examines arguments both for and against extending …

Subprime Communities: Reverse Redlining, The Fair Housing Act And Emerging Issues In Litigation Regarding The Subprime Mortgage Crisis, Raymond H. Brescia

Raymond H Brescia

As the nation struggles to find its bearings in the current financial crisis, and venerable pillars of Wall Street crumble, hundreds of billions of dollars will be spent to shore up the financial system and re-capitalize credit markets. While the eyes of Washington are directed towards Wall Street, there is much talk of the need to prop up Main Street as well, and nowhere is this more apparent than in communities and neighborhoods across the United States that have experienced the first wave of the financial crisis hit: home upon home of foreclosed properties, abandoned and neglected, their absent silence …

Sheltering Counsel: Towards A Right To A Lawyer In Eviction Proceedings, Raymond H. Brescia

Raymond H Brescia

This Article provides an overview of the current arguments presented by advocates who seek to establish a right to counsel for indigent tenants in eviction proceedings and assesses the strength of those arguments in the current political, social, and economic milieu. It is beyond question that the overwhelming majority of low-income tenants are unrepresented in proceedings in which their homes are in jeopardy and having counsel in such proceedings often prevents eviction and homelessness. Preventing those evictions reduces the human cost of homelessness, saves government substantial money by not having to provide shelter to the homeless, and preserves the stock …

The Unbearable Cost Of Skipping The Check: Property Rights, Takings Compensation & Ecological Protection In The Western Water Law Context, Scott A. Shepard

Scott A. Shepard

Western-state non-riparian water-law regimes remain legally vital and highly useful in the age of increased scarcity and ecological concern. Claims that the property rights central to these regimes can be revoked without Fifth-Amendment takings implications – as a result of applying various doctrines or of limitations inherent in the rights as granted – are historically and legally unsound, and doctrinally unwise. Declaring water rights non-compensable would require accepting a maxim of legal interpretation that could not be limited to the water-rights (or even property-rights) context, and would render all constitutional guarantees liable to negation without constitutional process. Moreover, such a …

The New Battleground Of Museum Ethics And Holocaust Era Claims: Technicalities Trumping Justice Or Responsible Stewardship For The Public Trust?, Jennifer Kreder

Jennifer Kreder

How should museums, collectors and governments handle the ever-increasing number of claims that art in their collections had been looted or subject to a forced sale? Museums can restitute art only if presented with solid proof of looting or else they would violate fiduciary obligations to manage their collections in trust for the public. The current wave of claims attempts to expand the definition of “forced sale” to include all property sold as a result of discriminatory economic persecution during the Nazi era. If courts hearing the many currently pending claims adopt such a definition, the number of art objects …

Federalism At The Cathedral: Property Rules, Liability Rules, And Inalienability Rules In Tenth Amendment Infrastructure, Erin Ryan

Erin Ryan

As climate change, war in the Middle East, and the price of oil focus American determination to move beyond fossil fuels, nuclear power has resurfaced as a possible alternative. But energy reform efforts may be stalled by an unlikely policy deadlock stemming from a structural technicality in an aging Supreme Court decision: New York v. United States, which set forth the Tenth Amendment anti-commandeering rule and ushered in the New Federalism era in 1992. This dry technicality also poses ongoing regulatory obstacles in such critical interjurisdictional contexts as stormwater management, climate regulation, and disaster response. Such is the enormous power …

The New Laches: Creating Title Where None Existed, Kathryn E. Fort

Kathryn Fort

Tribal land claims are facing a new challenge from an old area of law. Courts have been paying special attention to the law of equity and how it can defeat tribal land claims. Specifically, the equitable defenses of laches, acquiescence, and impossibility were used by the Supreme Court to hand defeat to the Oneida Indian Nation on a tax issue. Since then, lower courts in the Second Circuit have used this precedent to deny Indian land claims. But are these three defenses based on precedent themselves? Rarely. Instead, they have been combined to create a new defense, what I will …