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Full-Text Articles in Law

Inheriting Citizenship, Scott Titshaw Jan 2022

Inheriting Citizenship, Scott Titshaw

Articles

Most of us become citizens at birth based either on our birthplace or our parents' citizenship status. Over thirty countries recognize birthplace citizenship, but inherited citizenship is nearly universal. Such universal legal rules are rare, and they are particularly remarkable in the context of citizenship, where state sovereignty is near its apex. This Article explores why inherited citizenship is necessary, even in nations recognizing birthplace citizenship. It surveys the history, definitions, purposes, current rules, politics, and global trends in this area and identifies three modern categories of birthright citizenship laws: primary inherited citizenship systems, dual inherited and birthplace systems, and …


Trade Transparency: A Call For Surfacing Unseen Deals, Kathleen Claussen Jan 2022

Trade Transparency: A Call For Surfacing Unseen Deals, Kathleen Claussen

Articles

For many years, the executive branch has concluded foreign commercial agreements with trading partners pursuant to delegated authority from Congress. The deals govern the contours of a wide range of U.S. inbound and outbound trade: from food safety rules for imported products to procedures and specifications of exported goods, to name two. The problem is that often no one-apart from the executive branch negotiators- knows what these deals contain. A lack of transparency rules has inhibited the publication of and reporting to Congress of these unseen deals. Dozens if not hundreds of foreign commercial deals are unseen in two ways: …


Property Law For The Ages, Michael Pollack, Lior Jacob Strahilevitz Nov 2021

Property Law For The Ages, Michael Pollack, Lior Jacob Strahilevitz

Articles

Within the next forty years, the number of Americans over age sixty-five is projected to nearly double. This seismic demographic shift will necessitate a reckoning in several areas of law and policy, but property law is especially unprepared. Built primarily for young and middle-aged white men, the common law of property has been critiqued for decades for the ways in which it oppresses or simply leaves behind people based on their race, sex, Native heritage, and more. This Article contributes a new focus on property law’s treatment of people based on their advanced age. Burdened by higher relocation costs, more …


Preserve Mccall: A Proposed Public-Private Land Exchange, Stephen R. Miller Jan 2021

Preserve Mccall: A Proposed Public-Private Land Exchange, Stephen R. Miller

Articles

No abstract provided.


Climate-Induced Human Displacement And Conservation Lands, Jessica Owley Jan 2021

Climate-Induced Human Displacement And Conservation Lands, Jessica Owley

Articles

As climate change leads to both internal displacement and mass migrations, we need not only new places for people to live but also new locations for infrastructure projects and other public needs. Some of the most attractive areas for these new land uses are currently unoccupied land, including land set aside for conservation. Numerous laws restrict the availability and possible uses of public conservation land. Individual agreements and property restrictions encumber private conservation land, varying in the ease with which the restrictions can be modified. For example, privately protected areas in the United States are often encumbered with perpetual conservation …


Fraying The Knot: Marital Property, Probate, And Practical Problems With Tribal Bans, Suzianne D. Painter-Thorne Apr 2020

Fraying The Knot: Marital Property, Probate, And Practical Problems With Tribal Bans, Suzianne D. Painter-Thorne

Articles

In the summer of 2015, marriage equality advocates celebrated the Supreme Court’s decision in Obergefell v. Hodges, which struck down state prohibitions on same-sex marriage.The Court found that “[t]he right of same-sex couples to marry . . . is part of the liberty promised by the Fourteenth Amendment.” Two years earlier, the Court had struck down parts of the federal Defense of Marriage Act (DOMA), finding that the federal government could not discriminate against same-sex married partners. With these two decisions, the Court ensured that the marriages of same-sex couples would be recognized by the federal government and in …


A Knock On Knick's Revival Of Federal Takings Litigation, Stewart Sterk, Michael Pollack Mar 2020

A Knock On Knick's Revival Of Federal Takings Litigation, Stewart Sterk, Michael Pollack

Articles

In Knick v. Township of Scott, the United States Supreme Court held that a landowner who claimed to have suffered a taking at the hands of state or local officials could seek redress in federal court without the need to first seek compensation through state proceedings. This holding raises serious theoretical and practical concerns. On the theoretical side, Knick rests on the implicit assumption that states separate powers among branches of government in the same way the federal government does. It also relies on a second assumption: that relegating taking claims to state court makes them unique. Neither is …


Intratextual And Intradoctrinal Dimensions Of The Constitutional Home, Gerald S. Dickinson Jan 2020

Intratextual And Intradoctrinal Dimensions Of The Constitutional Home, Gerald S. Dickinson

Articles

The home has been lifted to a special pantheon of rights and protections in American constitutional law. Until recently, a conception of special protections for the home in the Fifth Amendment Takings Clause was under-addressed by scholars. However, a contemporary and robust academic treatment of a home-centric takings doctrine merits a different approach to construction and interpretation: the intratextual and intradoctrinal implications of a coherent set of homebound protections across the Bill of Rights, including the Takings Clause.

Intratextualism and intradoctrinalism are interpretive methods of juxtaposing non-adjoining and adjoining clauses in the Constitution and Supreme Court doctrines to find patterns …


Tools For Data Governance, Michael J. Madison Jan 2020

Tools For Data Governance, Michael J. Madison

Articles

This article describes the challenges of data governance in terms of the broader framework of knowledge commons governance, an institutional approach to governing shared knowledge, information, and data resources. Knowledge commons governance highlights the potential for effective community- and collective-based governance of knowledge resources. The article focuses on key concepts within the knowledge commons framework rather than on specific law and public policy questions, directing the attention of researchers and policymakers to critical inquiry regarding relevant social groups and relevant data “things.” Both concepts are key tools for effective data governance.


Acts Of Meaning, Resource Diagrams, And Essential Learning Behaviors: The Design Evolution Of Lost & Found, Owen Gottlieb, Ian Schreiber Jan 2020

Acts Of Meaning, Resource Diagrams, And Essential Learning Behaviors: The Design Evolution Of Lost & Found, Owen Gottlieb, Ian Schreiber

Articles

Lost & Found is a tabletop-to-mobile game series designed for teaching medieval religious legal systems. The long-term goals of the project are to change the discourse around religious laws, such as foregrounding the prosocial aspects of religious law such as collaboration, cooperation, and communal sustainability. This design case focuses on the evolution of the design of the mechanics and core systems in the first two tabletop games in the series, informed by over three and a half years’ worth of design notes, playable prototypes, outside design consultations, internal design reviews, playtests, and interviews.


State Constitutional General Welfare Doctrine, Gerald S. Dickinson Jan 2019

State Constitutional General Welfare Doctrine, Gerald S. Dickinson

Articles

It is black-letter law that the U.S. Supreme Court’s takings doctrine presupposes exercises of eminent domain are in pursuit of valid public uses that require just compensation. But, neither federal doctrine nor the text of the Takings Clause offers any additional constraints. The story of the Supreme Court’s takings jurisprudence is, in other words, incomplete and deserves reexamination. However, the usual protagonists, such as the Supreme Court or federal courts, are not central to this Article’s reexamination. Instead, this Article’s narrative is federalism, its characters are state courts, and its script is state constitutions.

In the post-Kelo v. New London …


Ostrom Amongst The Machines: Blockchain As A Knowledge Commons, Herminio Bodon, Pedro Bustamante, Marcela Gomez, Prashabnt Krishnamurthy, Michael J. Madison, Ilia Murtazashvili, Jennifer Brick Murtazashvili, Tymofiy Mylovanov, Martin B. H. Weiss Jan 2019

Ostrom Amongst The Machines: Blockchain As A Knowledge Commons, Herminio Bodon, Pedro Bustamante, Marcela Gomez, Prashabnt Krishnamurthy, Michael J. Madison, Ilia Murtazashvili, Jennifer Brick Murtazashvili, Tymofiy Mylovanov, Martin B. H. Weiss

Articles

Blockchains are distributed ledger technologies that allow the recording of any data structure, including money, property titles, and contracts. In this paper, we suggest that Hayekian political economy is especially well suited to explain how blockchain emerged, but that Elinor Ostrom’s approach to commons governance is particularly useful to understand why blockchain anarchy is successful. Our central conclusions are that the blockchain can be thought of as a spontaneous order, as Hayek anticipated, as well as a knowledge commons, as Ostrom’s studies of self-governance anticipated.


Is Blockchain The Next Step In The Evolution Chain Of [Market] Intermediaries?, Marcela Gomez, Pedro Bustamante, Martin B. H. Weiss, Ilia Murtazashvili, Michael J. Madison, Wilson Law, Tymofiy Mylovanov, Herminio Bodon, Prashabnt Krishnamurthy Jan 2019

Is Blockchain The Next Step In The Evolution Chain Of [Market] Intermediaries?, Marcela Gomez, Pedro Bustamante, Martin B. H. Weiss, Ilia Murtazashvili, Michael J. Madison, Wilson Law, Tymofiy Mylovanov, Herminio Bodon, Prashabnt Krishnamurthy

Articles

The blockchain is a decentralized solution for handling transactions where we are concerned (among other aspects) with the accuracy and verification of transactions. One of its main promises is to eliminate the need for centralized entities or intermediaries and legal enforcement. Rather than trusting self-interested human intermediaries, the blockchain provides an alternative that relies on transparent computational protocols (Werbach 2018).

In this paper, we delve into this broker-less claim and analyze whether the blockchain needs an intermediary to allow for widespread access to its functionality and whether the blockchain itself is an intermediary. The latter would turn the blockchain into …


Understanding The Complicated Landscape Of Civil War Monuments, Jessica Owley, Jess Phelps Jan 2019

Understanding The Complicated Landscape Of Civil War Monuments, Jessica Owley, Jess Phelps

Articles

This essay examines the controversy regarding confederate monuments and attempts to contextualize this debate within the current preservation framework. While much attention has been paid to this topic over the past year, particularly with regard to "public" monuments, such discussion has generally failed to recognize the varied and complicated property law layers involved which can fundamentally change the legal requirements for modification or removal. We propose a spectrum or framework for assessing these resources ranging from public to private, and we explore the messy space in-between these poles where most monuments actually fall. By highlighting these categories, we provide an …


Federalism, Convergence, And Divergence In Constitutional Property, Gerald S. Dickinson Jan 2018

Federalism, Convergence, And Divergence In Constitutional Property, Gerald S. Dickinson

Articles

Federal law exerts a gravitational force on state actors, resulting in widespread conformity to federal law and doctrine at the state level. This has been well recognized in the literature, but scholars have paid little attention to this phenomenon in the context of constitutional property. Traditionally, state takings jurisprudence—in both eminent domain and regulatory takings—has strongly gravitated towards the Supreme Court’s takings doctrine. This long history of federal-state convergence, however, was disrupted by the Court’s controversial public use decision in Kelo v. City of New London. In the wake of Kelo, states resisted the Court’s validation of the …


Essay: Cooperative Federalism And Federal Takings After The Trump Administration's Border Wall Executive Order, Gerald S. Dickinson Jan 2018

Essay: Cooperative Federalism And Federal Takings After The Trump Administration's Border Wall Executive Order, Gerald S. Dickinson

Articles

The Trump Administration’s (arguably) most polemic immigration policy — Executive Order No. 13,767 mandating the construction of an international border wall along the southwest border of the United States — offers a timely and instructive opportunity to revisit the elusive question of the federal eminent domain power and the historical practice of cooperative federalism. From federal efforts to restrict admission and entry of foreign nationals and aliens (the so-called “travel ban”) to conditioning federal grants on sanctuary city compliance with federal immigration enforcement, state and local governments (mostly liberal and Democratic enclaves) today have become combative by resisting a federal …


Property Musings At The U.S.-Mexico Border, Gerald S. Dickinson Jan 2018

Property Musings At The U.S.-Mexico Border, Gerald S. Dickinson

Articles

President Donald J. Trump issued an Executive Order calling for “a physical wall on the southern border” of the United States in January, 2017. In his address before Congress, the President stated, “[W]e will soon begin the construction of a great wall along our southern border.” The political response to the Executive Order has been swift. Representative Lamar Smith of Texas views the Executive Order as a testament to the President “honoring his commitment” to immigration enforcement. Senator Ron Johnson of Wisconsin favorably compares the border mandates in Israel and Egypt as successful examples of how to mitigate illegal immigration. …


Climate Change Challenges For Land Conservation: Rethinking Conservation Easements, Strategies, And Tools, Jessica Owley, Federico Cheever, Adena R. Rissman, M. Rebecca Shaw, Barton H. Thompson Jr., W. William Weeks Jan 2018

Climate Change Challenges For Land Conservation: Rethinking Conservation Easements, Strategies, And Tools, Jessica Owley, Federico Cheever, Adena R. Rissman, M. Rebecca Shaw, Barton H. Thompson Jr., W. William Weeks

Articles

No abstract provided.


Unforeseen Land Uses: The Effect Of Marijuana Legalization On Land Conservation Programs, Jessica Owley Jan 2018

Unforeseen Land Uses: The Effect Of Marijuana Legalization On Land Conservation Programs, Jessica Owley

Articles

This Article explores the tension between land conservation and marijuana cultivation in the context of legalization. The legalization of marijuana has the potential to shift the locations of marijuana cultivation. Where cultivation need no longer be surreptitious and clandestine, growers may begin to explore sanctioned growing sites and methods. Thus, the shift to legalization may be accompanied by environmental and landuse implications. Investigating commercial-scale marijuana cultivation, this Article details how, in some ways, legalization can reduce environmental impacts of marijuana cultivation while also examining tricky issues regarding tensions between protected lands and marijuana cultivation. If we treat cultivation of marijuana …


Finding Lost & Found: Designer’S Notes From The Process Of Creating A Jewish Game For Learning, Owen Gottlieb Dec 2017

Finding Lost & Found: Designer’S Notes From The Process Of Creating A Jewish Game For Learning, Owen Gottlieb

Articles

This article provides context for and examines aspects of the design process of a game for learning. Lost & Found (2017a, 2017b) is a tabletop-to-mobile game series designed to teach medieval religious legal systems, beginning with Moses Maimonides’ Mishneh Torah (1180), a cornerstone work of Jewish legal rabbinic literature. Through design narratives, the article demonstrates the complex design decisions faced by the team as they balance the needs of player engagement with learning goals. In the process the designers confront challenges in developing winstates and in working with complex resource management. The article provides insight into the pathways the team …


Airbnb And The Battle Between Internet Exceptionalism And Local Control Of Land Use, Stephen R. Miller Jan 2017

Airbnb And The Battle Between Internet Exceptionalism And Local Control Of Land Use, Stephen R. Miller

Articles

No abstract provided.


Landowners' Fcc Dilemma: Rereading The Supreme Court's Armstrong Opinion After The Third Circuit's Depolo Ruling, Gerald S. Dickinson Jan 2017

Landowners' Fcc Dilemma: Rereading The Supreme Court's Armstrong Opinion After The Third Circuit's Depolo Ruling, Gerald S. Dickinson

Articles

In Armstrong v. Exceptional Child Ctr., Inc., the Supreme Court took a turn in its refusal to provide avenues for relief to private actors against the state in federal court, finding that the Supremacy Clause does not provide for an implied right of action to sue to enjoin unconstitutional actions by state officers. Many critics of that decision, including the four dissenting Justices, question the wisdom of the ruling generally. However, from a property rights perspective, the decision sheds light on a dilemma unforeseen by many scholars and made most apparent by a recent Third Circuit decision, Jeffrey DePolo …


Inclusionary Takings Legislation, Gerald S. Dickinson Jan 2017

Inclusionary Takings Legislation, Gerald S. Dickinson

Articles

This Article proposes an alternative post-Kelo legislative reform effort called “inclusionary takings.” Like inclusionary zoning legislation, inclusionary takings legislation would trigger remedial affordable housing action to mitigate the phenomenon of exclusionary condemnations in dense urban areas and declining suburban localities. An inclusionary takings statute would also mandate that local municipalities and private developers provide affordable housing in new developments benefiting from eminent domain takings. Such a statute may ameliorate the phenomenon of exclusionary condemnations in dense urban areas that displaces low-income families from urban neighborhoods. An inclusionary taking, like inclusionary zoning, in other words, requires affordable housing contributions from developers …


Ip Things As Boundary Objects: The Case Of The Copyright Work, Michael J. Madison Jan 2017

Ip Things As Boundary Objects: The Case Of The Copyright Work, Michael J. Madison

Articles

My goal is to explore the meanings and functions of the objects of intellectual property: the work of authorship (or copyright work) in copyright, the invention in patent, and the mark and the sign in trademark. This paper takes up the example of the copyright work.

It is usually argued that the central challenge in understanding the work is to develop a sensible method for appreciating its boundaries. Those boundaries, conventionally understood as the metaphorical "metes and bounds" of the work, might be established by deferring to the intention of the author, or by searching for authorship (creativity or originality) …


Exploiting Conservation Lands: Can Hydrofracking Be Consistent With Conservation Easements, Jessica Owley, Collin Doane Jan 2017

Exploiting Conservation Lands: Can Hydrofracking Be Consistent With Conservation Easements, Jessica Owley, Collin Doane

Articles

No abstract provided.


The Vested Rights Doctrine: How A Shield Against Injustice Became A Sword For Opportunistic Developers, Steve P. Calandrillo, Chryssa Deliganis, Christina Elles Jan 2017

The Vested Rights Doctrine: How A Shield Against Injustice Became A Sword For Opportunistic Developers, Steve P. Calandrillo, Chryssa Deliganis, Christina Elles

Articles

In an era of pioneering environmental and land use laws, savvy developers are using the “vested rights” doctrine to circumvent and undermine critical public health, safety, and environmental regulations. This controversy pits two legitimate interests against each other: On the one hand, local governments must have the power to pass land use laws and regulations in the public interest to protect their community’s health, safety, welfare, and environment. On the other, developers who rely on the laws in existence at the time their project is approved should be protected from subsequent changes to the law that could increase transactional costs …


An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk Oct 2016

An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk

Articles

Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law "on the ground" in the state and lower federal courts, which together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2000 reported decisions ovcr the period 1979 through 2012, attempts to fill that void. This study establishes that the Supreme Court's categorical rules govern almost no state takings cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action …


Avoiding Decline: Fostering Resilience And Sustainability In Midsize Cities, Barbara Cosens Jan 2016

Avoiding Decline: Fostering Resilience And Sustainability In Midsize Cities, Barbara Cosens

Articles

Eighty-five percent of United States citizens live in urban areas. However, research surrounding the resilience and sustainability of complex urban systems focuses largely on coastal megacities (>1 million people). Midsize cities differ from their larger counterparts due to tight urban-rural feedbacks with their immediate natural environments that result from heavy reliance and close management of local ecosystem services. They also may be less path-dependent than larger cities due to shorter average connection length among system components, contributing to higher responsiveness among social, infrastructural, and ecological feedbacks. These distinct midsize city features call for a framework that organizes information and …


Resilience And Raisins: Partial Takings And Coastal Climate Change Adaptation, Joshua Galperin, Zahir Hadi Tajani Jan 2016

Resilience And Raisins: Partial Takings And Coastal Climate Change Adaptation, Joshua Galperin, Zahir Hadi Tajani

Articles

The increased need for government-driven coastal resilience projects will lead to a growing number of claims for “partial takings” of coastal property. Much attention has been paid to what actions constitute a partial taking, but there is less clarity about how to calculate just compensation for such takings, and when compensation should be offset by the value of benefits conferred to the property owner. While the U.S. Supreme Court has an analytically consistent line of cases on compensation for partial takings, it has repeatedly failed (most recently in Horne v. U.S. Department of Agriculture) to articulate a clear rule. The …


Private Long-Term Care Insurance: Not The Solution To The High Cost Of Long-Term Care For The Elderly, Lawrence A. Frolik Jan 2016

Private Long-Term Care Insurance: Not The Solution To The High Cost Of Long-Term Care For The Elderly, Lawrence A. Frolik

Articles

Long-term care can be extremely expensive. As older Americans plan for financing care for their golden years, one option is to purchase a Long-Term Care Insurance (LTCI) policy. However, despite the potentially steep costs of long-term care, few elderly individuals actually purchase LTCI. This decision is rational for most elderly people. First, LTCI insures a risk that may never occur, as the majority of elderly Americans only need a year or less of long-term care. Second, Medicaid provides a publicly subsidized alternative to LTCI. An elderly person can rely on his or her savings to pay for care and then …