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Full-Text Articles in Law

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 v ...


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 ...


Of Property Rights And Rights To Property, James E. Krier Jun 2015

Of Property Rights And Rights To Property, James E. Krier

Articles

In 2004, President George W. Bush said, “I believe in private property so much, I want everyone in America to have some.” Much earlier, in 1948, an economics professor from the University of Texas expressed the same sentiment in strikingly similar terms. When asked by an investigatory committee of the Texas legislature whether he favored private property, he replied, “I do . . . and so strongly that I want everyone in Texas to have some.” Even putting aside the possibility that the President’s speechwriters found inspiration in an unacknowledged source, there are several interesting things to note about these two statements ...


From Vacant Lots To Full Pantries: Urban Agriculture Programs And The American City, Jessica Owley, Tonya Lewis Jan 2014

From Vacant Lots To Full Pantries: Urban Agriculture Programs And The American City, Jessica Owley, Tonya Lewis

Articles

No abstract provided.


Judicial Takings: Musings On Stop The Beach, James E. Krier Jan 2014

Judicial Takings: Musings On Stop The Beach, James E. Krier

Articles

Judicial takings weren’t much talked about until a few years ago, when the Stop the Beach case made them suddenly salient. The case arose from a Florida statute, enacted in 1961, that authorizes public restoration of eroded beaches by adding sand to widen them seaward. Under the statute, the state has title to any new dry land resulting from restored beaches, meaning that waterfront owners whose land had previously extended to the mean high-tide line end up with public beaches between their land and the water. This, the owners claimed, resulted in a taking of their property, more particularly ...


Stasis And Change In Environmental Law: The Past, Present And Future Of The Fordham Environmental Law Review, Gerald S. Dickinson Jan 2013

Stasis And Change In Environmental Law: The Past, Present And Future Of The Fordham Environmental Law Review, Gerald S. Dickinson

Articles

The past twenty years of environmental law are marked as much by legislative stasis as by profound change in the way that lawyers, policymakers, and scholars interact with the field. Although no new federal legislation was passed over the past two decades, much has changed about the field of environmental law. This change is the result of a set of conceptual and legal challenges to the field posed by intellectual and policy movements that took root in the early 1990s. The intellectual and policy movements that have most profoundly shaped the field of environmental law in the past twenty years ...


Waiting For Hohfeld: Property Rights, Property Privileges, And The Physical Consequences Of Word Choice, Jerrold A. Long Jan 2012

Waiting For Hohfeld: Property Rights, Property Privileges, And The Physical Consequences Of Word Choice, Jerrold A. Long

Articles

An important part of our institutional and cultural history is our understanding of a system of property interests. The most common trajectory of land-use regulation appears consistent with a property rights meta-narrative that informs multiple academic disciplines and levels of human interaction. This meta-narrative suggests that all land-use decisions begin with an assumption about the nature and extent of property rights held by potentially affected landowners, and that the ultimate end of any land-use regime is to "protect" those assumed property rights from unwarranted or unjustified intrusion by government. Because the law is a distinct linguistic environment in which word ...


Evolutionary Theory And The Origin Of Property Rights, James E. Krier Jan 2009

Evolutionary Theory And The Origin Of Property Rights, James E. Krier

Articles

For legal scholars, the evolution of property rights has been a topic in search of a theory. My aim here is to draw together various accounts (some of them largely neglected in the legal literature), from dated to modern, and suggest a way they can be melded into a plausible explanation of property's genesis and early development. What results hardly amounts to a theory, but it does suggest an outline for one. Moreover, it provides a primer on the subject, a reasonably solid foundation for thinking and talking about the evolution of property rights.


Property Rights In Spectrum: A Reply To Hazlett, Philip J. Weiser, Dale N. Hatfield Jan 2008

Property Rights In Spectrum: A Reply To Hazlett, Philip J. Weiser, Dale N. Hatfield

Articles

No abstract provided.


Spectrum Policy Reform And The Next Frontier Of Property Rights, Philip J. Weiser, Dale N. Hatfield Jan 2008

Spectrum Policy Reform And The Next Frontier Of Property Rights, Philip J. Weiser, Dale N. Hatfield

Articles

The scarcity of wireless spectrum reflects a costly failure of regulation. In practice, large swaths of spectrum are vastly underused or used for low value activities, but the regulatory system prevents innovative users from gaining access to such spectrum through marketplace transactions. In calling for the propertyzing of swaths of spectrum as a replacement for the current command-and-control system, many scholars have wrongfully assumed the simplicity of how such a regime would work in practice. In short, many scholars suggest that spectrum property rights can easily borrow key principles from trespass law, reasoning that since property rights work well for ...


Listening To All The Voices, Old And New: The Evolution Of Land Ownership In The Modern West, Charles Wilkinson Jan 2006

Listening To All The Voices, Old And New: The Evolution Of Land Ownership In The Modern West, Charles Wilkinson

Articles

No abstract provided.


Indigenous Peoples’ Participatory Rights In Relation To Decisions About Natural Resource Extraction: The More Fundamental Issue Of What Rights Indigenous Peoples Have In Lands And Resources, James Anaya Jan 2005

Indigenous Peoples’ Participatory Rights In Relation To Decisions About Natural Resource Extraction: The More Fundamental Issue Of What Rights Indigenous Peoples Have In Lands And Resources, James Anaya

Articles

No abstract provided.


Reasons Within Passions: Emotions And Intentions In Property Rights Bargaining, Peter H. Huang Jan 2000

Reasons Within Passions: Emotions And Intentions In Property Rights Bargaining, Peter H. Huang

Articles

This article discusses the role of emotions (or feelings or affects) in property rights bargaining. Real world people choose bargaining strategies based upon not only rational calculations, but also their gut feelings. This article considers the impact of anger and shame on bargaining over property rights and the Coase theorem. Such emotions may depend on beliefs (expectations or assessments) about whether particular strategic decisions should or will occur. Such beliefs can be viewed as attributions over the intentions of others.


Three Faces Of Private Property, Michael A. Heller Jan 2000

Three Faces Of Private Property, Michael A. Heller

Articles

Private property is a rather elusive concept. Any kid knows what it means for something to be mine or yours, but grownup legal theorists get flustered when they try to pin down the term. Typically they, actually we, turn to a familiar analytic toolkit: including, for example, Blackstone's image of private property as "sole and despotic dominion"; Hardin's metaphor of the "tragedy of the commons"; and, more generally, the division of ownership into a trilogy of private, commons, and state forms. While each analytic tool has a distinguished pedigree and certain present usefulness, each also imposes a cost ...


The Boundaries Of Private Property, Michael A. Heller Jan 1999

The Boundaries Of Private Property, Michael A. Heller

Articles

If your house and fields are worth more separately, divide them; if you want to leave a ring to your child now and grandchild later, split the ownership in a trust. The American law of property encourages owners to subdivide resources freely. Hidden within the law, however, is a boundary principle that limits the right to subdivide private property into wasteful fragments. While people often create wealth when they break up and recombine property in novel ways, owners may make mistakes, or their self-interest may clash with social welfare. Property law responds with diverse doctrines that prevent and abolish excessive ...


The Tragedy Of The Anticommons: Property In The Transition From Marx To Markets, Michael A. Heller Jan 1998

The Tragedy Of The Anticommons: Property In The Transition From Marx To Markets, Michael A. Heller

Articles

Why are many storefronts in Moscow empty, while street kiosks in front are full of goods? In this Article, Professor Heller develops a theory of anticommons property to help explain the puzzle of empty storefronts and full kiosks. Anticommons property can be understood as the mirror image of commons property. By definition, in a commons, multiple owners are each endowed with the privilege to use a given resource, and no one has the right to exclude another When too many owners hold such privileges of use, the resource is prone to overuse - a tragedy of the commons. Depleted fisheries and ...


Marketable Pollution Allowances (Great Lakes Symposium), James E. Krier Jan 1994

Marketable Pollution Allowances (Great Lakes Symposium), James E. Krier

Articles

In March 1993, the EPA auctioned off 150,010 sulfer dioxide emissions permits at the Chicago Board of Trade. The auction brought in $21.4 million and ushered in the Clean Air Act's market-based approach to sulfur dioxide control. Congress created these marketable pollution allowances (MPAs) under Title IV of the Clean Air Act Amendments of 19903 to regulate acid rain pollution. While most MPAs were bought by utilities, to be exchanged as a commodity according to need, some MPAs were removed from the market solely to prevent their use by polluters. The Cleveland-based National Healthy Air License Exchange ...


Property Rights: A View From The Trenches, Michael A. Heller Jan 1994

Property Rights: A View From The Trenches, Michael A. Heller

Articles

How do governments create - or in some countries recreate - basic property rights that citizens demand in the transition to a market economy? My first comment, quite briefly, is on the debate within this Symposium on the relationship between constitutional reforms and the emergence of new property regimes. Second, I will comment on the counterintuitive property rights regime that is emerging from the "big bang" - the post-1989 collapse of the old socialist legal order in Central and Eastern Europe and the former Soviet Union and its replacement with a new, market-oriented system of property rights.


Taking Of Equitable Easements For Public Use, Edgar N. Durfee Jan 1916

Taking Of Equitable Easements For Public Use, Edgar N. Durfee

Articles

The case of Flynn v. New York &c Railway Co., decided by the Court of Appeals of New York in April last, involves the right of an owner of land to which is appurtenant a so-called equitable easement, arising under a covenant restricting the use of other land, to compensation upon the taking of the servient land for a public use inconsistent with the restriction. A tract of land was laid out in accordance with a plan, and all, lots therein were sold and conveyed by deeds containing covenants, inter alia, that, "No building or structure for any business purpose ...