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Texas A&M University School of Law

Property Law and Real Estate

2023

Articles 1 - 14 of 14

Full-Text Articles in Law

Personhood, Property, And Public Education: The Case Of Plyler V. Doe, Rachel F. Moran Jun 2023

Personhood, Property, And Public Education: The Case Of Plyler V. Doe, Rachel F. Moran

Faculty Scholarship

Property law is having a moment, one that is getting education scholars’ attention. Progressive scholars are retooling the concepts of ownership and entitlement to incorporate norms of equality and inclusion. Some argue that property law can even secure access to public education despite the U.S. Supreme Court’s longstanding refusal to recog- nize a right to basic schooling. Others worry that property doctrine is inherently exclusionary. In their view, property-based concepts like resi- dency have produced opportunity hoarding in schools that serve affluent, predominantly white neighborhoods. Many advocates therefore believe that equity will be achieved only by moving beyond property-based claims, …


Rethinking Education Theft Through The Lens Of Intellectual Property And Human Rights, Peter K. Yu Jun 2023

Rethinking Education Theft Through The Lens Of Intellectual Property And Human Rights, Peter K. Yu

Faculty Scholarship

This Essay problematizes the increased propertization and commodification of education and calls for a rethink of the emergent concept of “education theft” through the lens of intellectual property and human rights. This concept refers to the phenomenon where parents, or legal guardians, enroll children in schools outside their school districts by intentionally violating the residency requirements. The Essay begins by revisiting the debate on intellectual property rights as property rights. It discusses the ill fit between intellectual property law and the traditional property model, the impediments the law has posed to public access to education, and select reforms that have …


Beneath The Property Taxes Financing Education, Timothy M. Mulvaney Jun 2023

Beneath The Property Taxes Financing Education, Timothy M. Mulvaney

Faculty Scholarship

Many states turn in sizable part to local property taxes to finance public education. Political and academic discourse on the extent to which these taxes should serve in this role largely centers on second-order issues, such as the vices and virtues of local control, the availability of mechanisms to redistribute property tax revenues across school districts, and the overall stability of those revenues. This Essay contends that such discourse would benefit from directing greater attention to the justice of the government’s threshold choices about property law and policy that impact the property values against which property taxes are levied.

The …


Natural Property Rights: A Reply, Eric R. Claeys May 2023

Natural Property Rights: A Reply, Eric R. Claeys

Texas A&M Journal of Property Law

This Reply concludes the symposium hosted by the Texas A&M University Journal of Property Law on the author’s forthcoming book Natural Property Rights. The Reply shows how natural law and rights apply to a wide range of doctrinal examples raised in this symposium—including business associations, correlative oil rights, timber extraction, sinking coastlands, water law, nuisance law, property rights in subsurface minerals, and the issues about sovereignty and property disposition associated with Johnson v. M’Intosh (1823). The Reply also addresses a wide range of skeptical objections to natural law—especially the arguments that it relies too much on intuitions and …


Natural Property Rights: An Introduction, Eric R. Claeys May 2023

Natural Property Rights: An Introduction, Eric R. Claeys

Texas A&M Journal of Property Law

This Article introduces a symposium hosted by the Texas A&M University Journal of Property Law. The symposium is on a forthcoming book, and in that book the author introduces and defends a theory of property relying on labor, natural rights, and mine-run principles of natural law. Parts I and II of the Article preview the main claims of the book, summarizing part by part and chapter by chapter.

The rest of the Article illustrates how the theory introduced in the book applies to a contemporary resource dispute. The Article studies an ongoing lawsuit styled Campo v. United States, now …


Balancing The Inequities In Applying Natural Property Rights To Rights In Real Or Intellectual Property, Lolita Darden May 2023

Balancing The Inequities In Applying Natural Property Rights To Rights In Real Or Intellectual Property, Lolita Darden

Texas A&M Journal of Property Law

Eric Claeys’s book, Natural Property Rights, introduces a Lockean-based theory of interest-based natural property rights. Central to Claeys’s theory are the concepts of justified interests and productive use. A justified interest, Claeys writes, exists when an individual demonstrates a stronger interest in a resource than anyone else in the community and uses the resource productively in a manner that is “intelligent, purposeful, value-creating, . . . sociable,” and leads to survival or flourishing. Claeys’s theory demonstrates “how a standard justification for property gets implemented in practice” and how a community’s “goods” build on the individual’s goods.

Claeys’s community “goods” focus, …


How Far Does Natural Law Protect Private Property?, James W. Ely Jr. May 2023

How Far Does Natural Law Protect Private Property?, James W. Ely Jr.

Texas A&M Journal of Property Law

This Article first explores the ambiguous relationship between natural law and the rights of property owners in American history. It points out that invocation of natural law principles was frequently conflated with English common law guarantees of property rights in the Revolutionary Era. Reliance on natural law as a source of protection for private property faded during the nineteenth century and was largely rejected in the early twentieth century.

The Article then considers the extent to which natural law principles are useful in addressing contemporary issues relating to eminent domain and police power regulation of private property. Taking a skeptical …


The Natural Right Of Property, Timothy Sandefur May 2023

The Natural Right Of Property, Timothy Sandefur

Texas A&M Journal of Property Law

This Article offers a critical examination of Eric Claeys’s argument for natural property rights, focusing in particular on the questions of self-ownership and the so-called “Lockean proviso.” It argues that while Claeys is generally on the right track in his argument for natural property rights, he errs in omitting a self-ownership argument, some version of which is necessary for a proper naturalistic account of property, and that the Lockean proviso is neither necessary for such an account nor defensible in its own right. I conclude that the concerns animating the Lockean proviso argument are adequately dealt with by an alternative …


Ad Coelum And The Design Of Property Rights, Joseph A. Schremmer May 2023

Ad Coelum And The Design Of Property Rights, Joseph A. Schremmer

Texas A&M Journal of Property Law

This Article seizes on a specific doctrinal discussion in Eric Claeys’s Natural Property Rights to argue for the importance of understanding property doctrines in the context of a system of interconnecting rules and standards and not in isolation. The ad coelum doctrine provides that land ownership entails ownership of the suprajacent airspace as well as the underlying subsurface. As Claeys’s discussion highlights, scholars disagree about the significance of ad coelum both conceptually, as to what function the rule serves in defining and allocating property, and normatively. It is only by viewing ad coelum in the context of how it interacts …


A Theoretical Justification For Treating The Contract For Deed As A Mortgage, Matthew J. Blaney May 2023

A Theoretical Justification For Treating The Contract For Deed As A Mortgage, Matthew J. Blaney

Texas A&M Journal of Property Law

Millions of Americans finance their home using the treacherous contract for deed. Denied access to the conventional mortgage, the contract for deed often is the only alternative for Americans seeking the stability of homeownership. Historically, however, this deceptive financing device disrupted the lives of thousands of individuals by forfeiting their property and all payments made on the contract—even where only one installment was overdue. Low-income Americans and immigrant families disproportionately experience the brunt of the contract for deed. Furthermore, as Americans experience rising prices and increasing financial instability, there is reason to fear sellers—equipped with insight into lenders’ former mistakes—could …


Until The Cows Come Home: Ancillary Probate Reform Is Needed Across The Country To Better Serve Farmers And Ranchers, Emily K. Daniel May 2023

Until The Cows Come Home: Ancillary Probate Reform Is Needed Across The Country To Better Serve Farmers And Ranchers, Emily K. Daniel

Texas A&M Journal of Property Law

Property law has long established a difference between real and personal property. When an individual dies, if they owned real property in another state, they may be subject to the other state’s probate or estates code. This means that the decedent’s beneficiaries may have to probate the estate again in the secondary state’s courts if the statutes state that is a requirement. This secondary probate proceeding is called ancillary probate. This Article aims to show the negative effects that ancillary probate has on certain people and industries. Specifically, ancillary probate is a problem that negatively affects farmers and ranchers across …


Property, Psyche, And The Theory Of Tenancy: Independent And Interdependent Lease Law Covenants Through The Lens Of Cultural Psychology, Hanjo Hamann May 2023

Property, Psyche, And The Theory Of Tenancy: Independent And Interdependent Lease Law Covenants Through The Lens Of Cultural Psychology, Hanjo Hamann

Texas A&M Journal of Property Law

Is it property or contract? This question has perplexed scholars studying the residential lease for most of the last century. The present contribution combines the complementary perspectives of legal history and cultural psychology to clarify our theory of tenancy. From a historical perspective, I find that the oscillation of tenancy between competing doctrinal paradigms has resulted in a compromise solution rather than a coherent theory. While piecemeal reforms in the 1970s revised the doctrine of independent covenants, they did not provide a theoretical justification for increasing interdependence. From a psychological perspective, I suggest that such a theoretical justification may come …


Revisiting Touch And Concern: The Perils Of Degraded Contracts Versus The Perils Of Opportunism, Mark Kelman May 2023

Revisiting Touch And Concern: The Perils Of Degraded Contracts Versus The Perils Of Opportunism, Mark Kelman

Texas A&M Journal of Property Law

The touch and concern doctrine addresses a very particular problem: Successors, at best, weakly assent to the land use promises that their predecessors made when they take the property with notice that their predecessors intended to bind them. Thus, there is little reason to presume that the deal we may bind them to would be one that they would strike. Of course, whenever deals persist over time, it is possible that one or the other contracting party would no longer feel that the gains from the deal outweighed its costs, but the problem is more pronounced when the identity of …


Toward Principled Background Principles In Takings Law, Rebecca Hansen, Lior Jacob Strahilevitz Mar 2023

Toward Principled Background Principles In Takings Law, Rebecca Hansen, Lior Jacob Strahilevitz

Texas A&M Law Review

Oversights by lawyers, judges, and legal scholars have caused the Supreme Court’s opinion in Cedar Point Nursery v. Hassid to be deeply misunderstood. In Cedar Point, the Court rewrote much of takings law by treating temporary and part-time entries by the government or third parties onto private property as per se takings. Prior to Cedar Point, these sorts of government-authorized physical entries would have been evaluated under a balancing framework that almost invariably enabled the government to prevail. As it happens, there was a well-established rule of black letter law that California’s lawyers and amici failed to invoke …