Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 15 of 15

Full-Text Articles in Law

Property-As-Society, Timothy M. Mulvaney Oct 2018

Property-As-Society, Timothy M. Mulvaney

Faculty Scholarship

Modern regulatory takings disputes present a key battleground for competing conceptions of property. This Article offers the following account of the three leading theories: a libertarian view sees property as creating a sphere of individual freedom and control (property-as-liberty); a pecuniary view sees property as a tool of economic investment (property-as-investment); and a progressive view sees property as serving a wide range of evolving communal values that include, but are not limited to, those advanced under both the libertarian and pecuniary conceptions (property-as-society). Against this backdrop, the Article offers two contentions. First, on normative grounds, it asserts that the conception …


The Cycles Of Defense Acquisition Reform And What Comes Next, Andrew Hunter Aug 2018

The Cycles Of Defense Acquisition Reform And What Comes Next, Andrew Hunter

Texas A&M Journal of Property Law

Many aspects of war and national defense appear to run in cycles. Indeed, the identification and explanation of these cycles is a favorite pastime of military scholars. Historians and political scientists characterize war as alternating cycles of offensive and defensive dominance. The idea of cyclicality may in fact be hardwired into academic discussions and understandings of war. For example, early war theorist Carl von Clausewitz described an ever-changing character of war undergirded by war’s fundamentally unchanging nature. Because the dominant theoretical understanding of war is that it holds a mixture of both fixed and constantly evolving elements, our concept of …


Things Invisible To See: State Action & Private Property, Joseph William Singer, Isaac Saidel-Goley Jun 2018

Things Invisible To See: State Action & Private Property, Joseph William Singer, Isaac Saidel-Goley

Texas A&M Law Review

This Article revisits the state action doctrine, a judicial invention that shields “private” or “non-governmental” discrimination from constitutional scrutiny. Traditionally, this doctrine has applied to discrimination even in places of public accommodation, like restaurants, hotels, and grocery stores. Born of overt racial discrimination, the doctrine has inflicted substantial injustice throughout its inglorious history, and courts have continuously struggled in vain to coherently apply the doctrine. Yet, the United States Supreme Court has not fully insulated “private” or “horizontal” relations among persons from constitutional scrutiny. The cases in which it has applied constitutional norms to non-governmental actors should be celebrated rather …


Disseisin, Doubt, And Debate: Adverse Possession Scholarship In The United States (1881-1986), John Lovett Jan 2018

Disseisin, Doubt, And Debate: Adverse Possession Scholarship In The United States (1881-1986), John Lovett

Texas A&M Law Review

Property law scholars in the United States have discussed the doctrine of adverse possession for more than a century. Indeed, ever since American property law scholars began to write property law treatises, formalize property law courses in modern law schools, publish property specific articles in law reviews, and publish property law case books, adverse possession has served as a staple of property law discourse. This Article examines how property law scholars think about and discuss adverse possession. It explores how adverse possession talk has changed—and not changed—over time. In other words, this Article examines both the substance and rhetoric of …


Smart Growth Through Tiny Homes: Incentivizing Freedom Of Housing, A. Robin Donnelly Jan 2018

Smart Growth Through Tiny Homes: Incentivizing Freedom Of Housing, A. Robin Donnelly

Texas A&M Journal of Property Law

Tiny Homes are an environmentally friendly housing option popping up across the United States. Tiny Homes have a minimal environmental footprint due to their small size and eco-friendly design. As such, Tiny Homes could address several of the Environmental Protection Agency’s city development goals. The Environmental Protection Agency (“EPA”) has created a Smart Growth program that provides financial assistance to cities seeking to implement greener practices throughout city planning. Tiny Home Eco communities could become a popular Smart Growth development plan. Unfortunately, cities have not welcomed Tiny Homes, and this alternative green housing scheme has remained undeveloped. This Comment is …


Non-Enforcement Takings, Timothy M. Mulvaney Jan 2018

Non-Enforcement Takings, Timothy M. Mulvaney

Faculty Scholarship

The non-enforcement of existing property laws is not logically separable from the issue of unfair and unjust state deprivations of property rights at which the Constitution's Takings Clause takes aim. This Article suggests, therefore, that takings law should police allocations resulting from non-enforcement decisions on the same "fairness and justice" grounds that it polices allocations resulting from decisions to enact and enforce new regulations. Rejecting the extant majority position that state decisions not to enforce existing property laws are categorically immune from takings liability is not to advocate that persons impacted by such decisions should be automatically or even regularly …


Clarifying The Scope Of Texas’S Cross-Jurisdictional Tolling Rule: An Exception For Putative Class Members With Property-Related Claims, Andrew W. Bell Jan 2018

Clarifying The Scope Of Texas’S Cross-Jurisdictional Tolling Rule: An Exception For Putative Class Members With Property-Related Claims, Andrew W. Bell

Texas A&M Journal of Property Law

This Comment seeks to clarify the scope of cross-jurisdictional tolling in Texas. Although both Texas and federal courts interpreting Texas law have addressed this issue, no Texas court has specifically addressed whether putative members of a class action lawsuit—which was filed in a federal court located in Texas and that asserts Texas property-related claims—can rely on the class action lawsuit to toll the statute of limitations applicable to their claims. Part I of this Comment provides a brief history of the class action tolling doctrine, specifically describing American Pipe and its progeny. Part II discusses recent Texas case law decisions …


The Comparable Properties Standard: A Windfall For The Wealthy, A Shortfall For The Poor, Timothy R. Macgorman Jan 2018

The Comparable Properties Standard: A Windfall For The Wealthy, A Shortfall For The Poor, Timothy R. Macgorman

Texas A&M Journal of Property Law

The Texas Constitution mandates that taxation shall be equal and uniform, and that property shall be appraised at market value for the purposes of ad valorem property taxation. While valuation methodology is crucial to property owners in such a context, the “Comparable Properties Standard” embodied in Sections 41.43(b)(3) and 42.26(a)(3) of the Texas Tax Code appears to allow wealthy property owners to unconstitutionally manipulate the appraised value of their property for ad valorem taxation purposes and shift their tax burden to other taxpayers. Unless the Texas legislature enacts a mandatory sales price disclosure statute, or directly amends or repeals the …


New Water For Water Dispute Resolution, Rhett B. Larson Jan 2018

New Water For Water Dispute Resolution, Rhett B. Larson

Texas A&M Journal of Property Law

Water scarcity often leads to water disputes. New water supplies—such as bulk water imports, desalination, cloud seeding, or increased stream flows from improved forest management—can mitigate water scarcity and thus help avoid water disputes. However, new water supplies can also aggravate water disputes if not developed in concert with legal reforms. This Article evaluates the role of new water in two cases of water disputes in arid regions and proposes legal reforms to promote new water as a means of water dispute resolution. The first case is the adjudication of water rights in the Gila River basin in Arizona. Improved …


What If? Using Medicare Regulations To Control And Commercialize Rainwater Harvesting, C. Trey Scott Jan 2018

What If? Using Medicare Regulations To Control And Commercialize Rainwater Harvesting, C. Trey Scott

Texas A&M Journal of Property Law

This Article will examine how rainwater harvesting in Texas would look if applied to a structure for rainwater governance similar to the structure of Medicare governance. Section II addresses the reasons why rainwater harvesting must be considered a necessity. Next, Section III will provide an overview of the applicable Medicare regulations that will later be reappropriated and rewritten for rainwater harvesting. Section IV will apply the discussed Medicare structure to rainwater harvesting. Finally, Section V will provide a closing answer to what if we applied the Medicare structure to rainwater harvesting.


Old Water Becoming New Again: Reuse Of Treated Wastewater Effluent In Texas, Howard S. Slobodin, Hope C. Shelton Jan 2018

Old Water Becoming New Again: Reuse Of Treated Wastewater Effluent In Texas, Howard S. Slobodin, Hope C. Shelton

Texas A&M Journal of Property Law

The reuse of treated wastewater effluent for municipal supply is not a new idea in Texas, having been contemplated for at least sixty years. However, its importance has grown in recent decades as traditional surface water sources have become fully subscribed. Reuse is recognized as a significant source of future supply for Texas in the 2017 Texas State Water Plan.1 The law related to reuse is, however, still very much a developing subject. Recent administrative actions and judicial decisions have better defined the contours of the entitlements necessary to reuse effluent discharged to state-owned water courses.2 In the midst of …


Poke´Mon Go: Emerging Liability Arising From Virtual Trespass For Augmented Reality Applications, Travis Alley Jan 2018

Poke´Mon Go: Emerging Liability Arising From Virtual Trespass For Augmented Reality Applications, Travis Alley

Texas A&M Journal of Property Law

This Article focuses on various types of trespass and the challenges that augmented reality technology presents to the parties involved. Section II lays out a broad overview of augmented reality, its history, and the concept of Pok ´emon Go. Section III addresses evolution trespass law in the United States and how it is applied in cases of physical and electronic intrusions. Section III also discusses nuisance briefly, as it can often interrelate to trespass theories. Section IV then analyzes how courts might interpret trespass laws for augmented reality applications and the forms of liability each party may face. The solution …


Regulate Or Be Regulated: Why Professional Landmen Should Be Proactive In Protecting The Integrity Of Their Occupation, Brian J. Steinocher Jan 2018

Regulate Or Be Regulated: Why Professional Landmen Should Be Proactive In Protecting The Integrity Of Their Occupation, Brian J. Steinocher

Texas A&M Journal of Property Law

In most states, the landman profession is unregulated and free to define itself. Work performed by landmen often flirts with the practice of law, but under Texas law much of the work that landmen perform is excepted from the unlicensed practice of law. Historically, the American Association of Professional Landmen (“AAPL”) has been influential in guaranteeing that this exception stays available to landmen all over the United States and that landmen are not subject to licensing requirements in the states they work in. In light of the recent, unsuccessful attempt by the Texas legislature to regulate landmen, this Article will …


Rainwater Harvesting In Colorado And The Quandary Of A Taking, Stephen N. Bretsen Jan 2018

Rainwater Harvesting In Colorado And The Quandary Of A Taking, Stephen N. Bretsen

Texas A&M Journal of Property Law

Although rainwater harvesting would appear to be a win-win solution to the problem of developing new sources of water, implementing rainwater harvesting in the American West has been fraught with tensions that have pitted rural farmers and other agricultural interests against urban and suburban homeowners. The water law of the western states is based on the prior appropriation doctrine, which creates a “first in time, first in right” system of water rights tied to when a user diverts surface water for beneficial use. Since water rights are property rights, state statutes and regulations that “go too far” in affecting them …


A Clean Slate For Texas Foster Youth: Policy Recommendations On Preventing And Resolving Identity Theft For Youth In Foster Care, Madison Howard Churchman Jan 2018

A Clean Slate For Texas Foster Youth: Policy Recommendations On Preventing And Resolving Identity Theft For Youth In Foster Care, Madison Howard Churchman

Texas A&M Journal of Property Law

This Article will compare how Texas and other states implement this federal law differently and then discuss how Texas can improve its flawed system to better protect children negatively affected by identity theft. Section II of this Article will introduce and explain M.D. v. Abbott and the changes in Texas foster care on the horizon as a result of this case. Section III will introduce and delve into the issue of identity theft in foster youth as a whole, and it will tell the story of one foster youth who faced the results of identity theft. Finally, the Section breaks …