Law Commons^™

The "Public Use" Requirement In Eminent Domain Law: A Rationale Based On Secret Purchases And Private Influence, Daniel B. Kelly

Daniel B Kelly

This Article provides a rationale for understanding and interpreting the public use requirement within eminent domain law. The rationale is based on two factors. First, while the government often needs the power of eminent domain to avoid the problem of strategic holdout, private parties are generally able to purchase property through secret buying agents. The availability of these undisclosed agents makes the use of eminent domain for private parties unnecessary and indeed undesirable. The government, however, is ordinarily unable to make secret purchases because its plans are subject to democratic deliberation and thus publicly known in advance. Second, while the …

Toward Economic Analysis Of The Uniform Probate Code, Daniel B. Kelly

Daniel B Kelly

Insights from economics and the economic analysis of law may be useful in analyzing succession law, including intestacy and wills as well as nonprobate transfers such as trusts. After surveying prior works that have examined succession from a functional perspective, I explore the possibility of utilizing tools like (i) transaction costs, (ii) the ex ante/ex post distinction, and (iii) rules versus standards, to illuminate the design of the Uniform Probate Code. Specifically, I investigate how these tools, which legal scholars have employed widely in other contexts, may be relevant in understanding events like the nonprobate revolution and issues like “dead …

Acquiring Land Through Eminent Domain: Justifications, Limitations, And Alternatives, Daniel Kelly

Daniel B Kelly

The primary functional justifications for eminent domain involve bargaining problems, including the holdout problem, the bilateral monopoly problem and other transaction costs, as well as the existence of externalities. The holdout problem is particularly noteworthy, and this chapter analyzes three types of holdouts, depending on whether the failure in bargaining is the result of strategic behavior among owners, the presence of a large number of owners or a single owner who is unwilling to sell because of a highly idiosyncratic valuation. Although eminent domain solves any potential bargaining problems by transferring land directly from existing owners to the government, eminent …

The Public Use Requirement In Eminent Domain Law: A Rationale Based On Secret Purchases And Private Influence, Daniel B. Kelly

Daniel B Kelly

No abstract provided.

The Right To Include, Daniel B. Kelly

Daniel B Kelly

Recent scholarship has created renewed interest in the “right to exclude.” Many contend that, because owners have a right to exclude, private property has a tendency to promote individualism and exclusion. But, as I will argue, property can promote sociability and inclusion by providing owners with various ways of including others. Owners can assert their “right to include” by waiving exclusion rights, dividing existing rights by contracts or property forms, and creating new co-ownership arrangements. Inclusion is socially beneficial insofar as it enables sharing and exchange, facilitates financing and risk-spreading, and promotes specialization. Yet inclusion may entail costs, including coordination …

Restricting Testamentary Freedom: Ex Ante Versus Ex Post Justifications, Daniel B. Kelly

Daniel B Kelly

The organizing principle of American succession law — testamentary freedom — gives decedents a nearly unrestricted right to dispose of property. After surveying the justifications for testamentary freedom, I examine the circumstances in which it may be socially beneficial for courts to alter wills, trusts, and other gratuitous transfers at death: imperfect information, negative externalities, and intergenerational equity. These justifications correspond with many existing limitations on the freedom of testation. Yet, disregarding donor intent to maximize the donees’ ex post interests, an increasingly common justification for intervention, is socially undesirable. Doing so ignores important ex ante considerations, including a donor’s …

Dan Kelly Presented “Allocating Property At Death: A Comparative Institutional Analysis Of Succession Law” At The Taiwan Law And Economic Analysis Conference On August 7, 2013, Daniel Kelly

Daniel B Kelly

Professor Dan Kelly was invited to the Taiwan Law and Economic Analysis Conference and presented “Allocating Property at Death: A Comparative Institutional Analysis of Succession Law,” Academia Sinica, Taipei, Taiwan, August 7, 2013

Dan Kelly Presented “Estate Planning Devices In The United States: An Economic Analysis Of The Justifications For Restricting Testamentary Freedom” At The National Taiwan University College Of Law On August 5, 2013, Daniel Kelly

Daniel B Kelly

Dan Kelly presented “Estate Planning Devices in the United States: An Economic Analysis of the Justifications for Restricting Testamentary Freedom” at the National Taiwan University College of Law on August 5, 2013

Dan Kelly Presented “Dividing Possessory Rights” At The Taiwan Law And Economic Analysis Conference On August 6, 2013, Daniel Kelly

Daniel B Kelly

Professor Dan Kelly was invited to the Taiwan Law and Economic Analysis Conference and presented “Dividing Possessory Rights,” Academia Sinica, Taipei, Taiwan, August 6, 2013.

Dan Kelly Presented “Allocating Property At Death: A Comparative Institutional Analysis Of Succession Law” At The European Association Of Law And Economics, University Of Warsaw On September 26, 2013, Daniel Kelly

Daniel B Kelly

Dan Kelly presented “Allocating Property at Death: A Comparative Institutional Analysis of Succession Law” at the European Association of Law and Economics, University of Warsaw on September 26, 2013

Dan Kelly Presented “Allocating Property At Death: A Comparative Institutional Analysis Of Succession Law” At The Notre Dame Law And Economics Workshop On October 14, 2013, Daniel Kelly

Daniel B Kelly

Dan Kelly presented “Allocating Property at Death: A Comparative Institutional Analysis of Succession Law” at the The Notre Dame Law and Economics Workshop on October 14, 2013

Dan Kelly Presented “Restricting Testamentary Freedom: Ex Ante Versus Ex Post Justifications” At The Maryland School Of Law, Legal Theory Workshop On September 12 And At The Washington University School Of Law Faculty Workshop On September 12, 2013, Daniel Kelly

Daniel B Kelly

Dan Kelly presented “Restricting Testamentary Freedom: Ex Ante Versus Ex Post Justifications” at the Maryland School of Law, Legal Theory Workshop on September 12 and at the Washington University School of Law Faculty Workshop on September 12, 2013

Dan Kelly Presented “The Divisibility Of Property” At The North American Workshop On Private Law Theory, Mcgill University, Montreal, Quebec On October 4, 2013, Daniel Kelly

Daniel B Kelly

Dan Kelly presented “The Divisibility of Property” at the North American Workshop on Private Law Theory, McGill University, Montreal, Quebec on October 4, 2013

Daniel Kelly And Peg Brinig Were Featured In A Productive Partnership: Notre Dame’S New Law And Economics Program Is Much In Demand – Notre Dame Lawyer (Spring 2011), Daniel Kelly, Margaret Brinig

Daniel B Kelly

Daniel Kelly and Peg Brinig were featured in A Productive Partnership: Notre Dame’s new Law and Economics Program is much in demand – Notre Dame Lawyer (spring 2011), page 12.

A PRODUCTIVE PARTNERSHIP

Notre Dame’s new Law and Economics Program is much in demand

by Mark A. Cohen

Featured Faculty On Ndls Home Page: Daniel B. Kelly – September 21, 2009, Daniel B. Kelly

Daniel B Kelly

Daniel B. Kelly was a Featured Faculty on NDLS Home Page on September 21, 2009.

Dan Kelly Presented “Rules Versus Standards In Wills, Trusts, And Estates” At The Association Of American Law Schools (Aals) Annual Meeting On “The Next Generation Of Trusts And Estates Scholarship” Panel In New York, Ny, January 3., Daniel Kelly

Daniel B Kelly

Dan Kelly presented “Rules Versus Standards in Wills, Trusts, and Estates” at the Association of American Law Schools (AALS) Annual Meeting on “The Next Generation of Trusts and Estates Scholarship” panel in New York, NY, January 3, 2014

Dan Kelly Presented “Restricting Testamentary Freedom: Ex Ante Versus Ex Post Justifications” At The Georgetown Law And Economics Workshop, October 25, Daniel Kelly

Daniel B Kelly

Dan Kelly presented “Restricting Testamentary Freedom: Ex Ante Versus Ex Post Justifications” at the Georgetown Law and Economics Workshop, October 25, 2013

Pretextual Takings: Of Private Developers, Local Governments, And Impermissible Favoritism, Daniel B. Kelly

Daniel B Kelly

Since Kelo v. City of New London, the preferred litigation strategy for challenging a condemnation that benefits a private party is to allege that the taking is pretextual. This Article contends that, although pretextual takings are socially undesirable, the current judicial test for identifying such takings is problematic. Yet an alternative, intent-based test might be impracticable, as well as underinclusive: condemnors often have mixed motives, particularly when confronted with a firm's credible threat to relocate. Instead, the Article develops a framework that emphasizes informational differences between local governments and private developers. When the government lacks information regarding the optimal site …

The Limitations Of Majoritarian Land Assembly, Daniel B. Kelly

Daniel B Kelly

In their article, Land Assembly Districts, Professors Michael Heller and Rick Hills address the collective action problem arising from excessively fragmented land. They propose an innovative solution: Land Assembly Districts (or LADs). In this Article, I raise several concerns regarding LADs in particular and majoritarian land assembly in general. LADs rely on majority voting by a neighborhood's existing owners. Yet majority voting, coupled with the possibility of heterogeneity, means that LADs may both approve socially undesirable assemblies and disapprove socially desirable ones. LADs also permit owners to bargain over a project's surplus. But such bargaining creates additional costs for developers, …

Defining Extortion: Rico, Hobbs, And Statutory Interpretation In Scheidler V. National Organization For Women, Inc., 123 S. Ct. 1057 (2003), Daniel B. Kelly

Daniel B Kelly

No abstract provided.

Strategic Spillovers, Daniel B. Kelly

Daniel B Kelly

The traditional problem with externalities is well known: self-interested individuals and profit-maximizing firms often generate harm as an unintended byproduct of their use of property. I examine situations in which individuals and firms purposely seek to generate harm, in order to extract payments in exchange for desisting. Situations involving such “strategic spillovers” have received relatively little systematic attention, but the underlying problem is a perennial one. From the “livery stable scam” in Chicago during the nineteenth century to “pollution entrepreneurs” in China in the twenty-first century, various parties have an incentive to engage in externality-generating activities they otherwise would not …