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Donald J. Kochan

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Full-Text Articles in Law

Reason-Giving, Rulemaking, And The Rule Of Law, Donald J. Kochan Dec 2018

Reason-Giving, Rulemaking, And The Rule Of Law, Donald J. Kochan

Donald J. Kochan

The requirement that agencies give reasons for their actions and in support of their interpretations in administrative law serves important Rule of Law values. It forces agencies to consider how and whether their actions can be justified and provides a means of accountability, allowing the public to judge the agency actions by the reasons offered. One of the areas where reason-giving is most debated is in the face of a new administration that seeks to alter, amend, or repeal a rule that has already gone through the strenuous notice and comment rulemaking process. Administrative law allows such changes so long …

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The Market To Roam: Using Sharing Economy Platforms For Expanding Roaming Access To Land Resources, Donald J. Kochan Dec 2018

The Market To Roam: Using Sharing Economy Platforms For Expanding Roaming Access To Land Resources, Donald J. Kochan

Donald J. Kochan

This Article proposes a framework for a market to roam, where technology-facilitated bargaining leads to transfers of roaming rights and the provision of access across private lands. Such a system can borrow from what we know about traditional land use cooperation platforms, together with what we are learning from the sharing economy and its use of technology platforms to assist with matching owners of under-utilized resources with individuals interested in accessing or using those resources. The Article engages with property law debates over the capability of the property system to support subdivision of rights, or sticks, in the property rights …

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Strategic Institutional Positioning: How We Have Come To Generate Environmental Law Without Congress, Donald J. Kochan Dec 2018

Strategic Institutional Positioning: How We Have Come To Generate Environmental Law Without Congress, Donald J. Kochan

Donald J. Kochan

When examining legislation authorizing administrative agencies to promulgate rules, we are often left asking whether Congress “delegates” away its lawmaking authority by giving agencies too much power and discretion to decide what rules should be promulgated and to determine how rich to make their content. If the agencies get broad authority, it is not too hard to understand why they would fulsomely embrace the grant to its fullest. Once agencies are let loose by broad grants of rulemaking authority and they are off to the races, we are also often left scratching our heads wondering why Congress fails to intervene …

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The Sharing Stick In The Property Rights Bundle: The Case Of Short Term Rentals & Hoas, Donald J. Kochan Dec 2017

The Sharing Stick In The Property Rights Bundle: The Case Of Short Term Rentals & Hoas, Donald J. Kochan

Donald J. Kochan

Property owners are now more than ever exercising the “sharing stick” in their metaphorical bundle of property rights. This article examines the right to share one’s property with others as a branch, stemming from the inclusion stick, that itself grows out of the exclusion right held by property owners, along with the legal consequences of that characterization. 

The right to share, like other rights, can be given up when an owner joins a common interest community (CIC). However, when owners enter CICs and agree to HOA governance, they retain whatever residual parts of their ownership bundle they do not give …

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The [̶T̶A̶K̶I̶N̶G̶S̶] Keepings Clause: An Analysis Of Framing Effects From Labeling Constitutional Rights, Donald J. Kochan Dec 2017

The [̶T̶A̶K̶I̶N̶G̶S̶] Keepings Clause: An Analysis Of Framing Effects From Labeling Constitutional Rights, Donald J. Kochan

Donald J. Kochan

Did you know that the “Takings Clause” was not called the “Takings Clause” by any court before 1955? That was the first time that any court of any jurisdiction referred to the provisions regarding takings of private property in either the federal or state constitutions under the label “Taking Clause.” Did you know that justices of the U.S. Supreme Court did not use that moniker “Taking Clause” in any opinion before 1978? Given this history, the phrase “takings clause,” whether an apt descriptor or not, certainly cannot be justified as the dominant way to refer to these provisions by contemporaneous …

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Pride & Property: An Interdisciplinary Analysis Of Their Symbiotic Relationship, Donald J. Kochan Dec 2017

Pride & Property: An Interdisciplinary Analysis Of Their Symbiotic Relationship, Donald J. Kochan

Donald J. Kochan

Pride and property are mutually reinforcing, symbiotic concepts through which individuals express their identity in a biologically, economically, and psychologically driven manner that generates evolutionarily advantageous conditions. This Article is the first to extensively examine the correlative components of pride and property ownership. It is an interdisciplinary treatment of pride and property — engaging with law, economics, psychology, evolutionary biology, evolutionary psychology, and philosophy. The grossly under-studied “authentic”, achievement-oriented, and motivational variety of pride (as contrasted with the much-vilified “hubristic” kind) has recently been heralded as perhaps the most important human emotion for evolutionary purposes. The Article explains that authentic …

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The Commenting Power: Agency Accountability Through Public Participation, Donald J. Kochan Dec 2017

The Commenting Power: Agency Accountability Through Public Participation, Donald J. Kochan

Donald J. Kochan

Whether you are a member of the resistance movement or a cheerleader for the new Trump Administration’s regulatory reform agenda, this Essay intends to engage your passion. (Of course, scholars, students, and agency officials should be interested too.) The notice and comment rulemaking process governing the creation of most regulations generated by federal agencies includes an obligation that agencies respond to public comments. This public participation requirement, with its “two way street” obligation to dialogue, is a critical check on agency power. The laws in this area are ones about which anyone interested in regulation should know more. Describing general …

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Playing With Real Property Inside Augmented Reality: Pokemon Go, Trespass, And Law's Limitations, Donald J. Kochan Dec 2017

Playing With Real Property Inside Augmented Reality: Pokemon Go, Trespass, And Law's Limitations, Donald J. Kochan

Donald J. Kochan

This symposium essay uses the popular game Pokémon Go as a case study for evaluating conflicts that arise when augmented reality is layered over the real property of non-consenting owners. It focuses on the challenges augmented reality technologies pose to the meaning and enforcement of formal and informal trespass norms, first examining physical trespass issues (and enforcement difficulties) associated with game players who sometimes break physical property boundaries.

The essay then undertakes a thought experiment regarding possible recognition of a new, different type of trespass—one to augmented space. Pollock and Maitland called trespass the “fertile mother of all actions,” often …

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Public Lands: Pride, Place, Proximity & Power, Donald J. Kochan Dec 2017

Public Lands: Pride, Place, Proximity & Power, Donald J. Kochan

Donald J. Kochan

Where to place power regarding the ownership and management of public lands is a matter of longstanding debate, yet has been energized to a new degree with the advent of the Trump Administration. This essay does not seek to resolve complicated and intense matters within this debate nor propose any specific, best solutions to competing claims for proper placement of power. What this Essay does aim to do is explain some of the key metrics that should not be missed in the debates. These are metrics which could be advanced to support greater decentralization of power over public lands and …

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I Share, Therefore It's Mine, Donald J. Kochan Apr 2017

I Share, Therefore It's Mine, Donald J. Kochan

Donald J. Kochan

Uniquely interconnecting lessons from law, psychology, and economics, this article aims to provide a more enriched understanding of what it means to “share” property in the sharing economy. It explains that there is an “ownership prerequisite” to the sharing of property, drawing in part from the findings of research in the psychology of child development to show when and why children start to share. They do so only after developing what psychologists call “ownership understanding.” What the psychological research reveals, then, is that the property system is well suited to create recognizable and enforceable ownership norms that include the rights …

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Incumbent Landscapes, Disruptive Uses: Perspectives On Marijuana-Related Land Use Control, Donald J. Kochan Dec 2015

Incumbent Landscapes, Disruptive Uses: Perspectives On Marijuana-Related Land Use Control, Donald J. Kochan

Donald J. Kochan

The story behind the move toward marijuana’s legality is a story of disruptive forces to the incumbent legal and physical landscape. It affects incumbent markets, incumbent places, the incumbent regulatory structure, and the legal system in general which must mediate the battles involving the push for relaxation of illegality and adaptation to accepting new marijuana-related land uses, against efforts toward entrenchment, resilience, and resistance to that disruption.

This Article is entirely agnostic on the issue of whether we should or should not decriminalize, legalize, or otherwise increase legal tolerance for marijuana or any other drugs. Nonetheless, we must grapple with …

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Deeds And The Determinacy Norm: Insights From Brandt And Other Cases On An Undesignated, Yet Ever-Present, Interpretive Method, Donald J. Kochan Dec 2015

Deeds And The Determinacy Norm: Insights From Brandt And Other Cases On An Undesignated, Yet Ever-Present, Interpretive Method, Donald J. Kochan

Donald J. Kochan

The land one holds is generally only as good as the property rights contained in the deed.
The rights contained in the deed are only as good as the ability to get those rights enforced.
And, the enforcement is only valuable if it recognizes a determinate meaning in the deeds from
the point of conveyance. This Article pens the term “determinacy norm” to explain a collection
of rules for the interpretation of deed terms that aim to make the meaning of deed terms determinate.
I contend that, in order to satisfy the determinacy norm for deed interpretation,
courts must (and …

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The Progression And Evolution Of International Law Scholarship Over The Past 50 Years: Some Quantitative Observations, Donald J. Kochan Dec 2015

The Progression And Evolution Of International Law Scholarship Over The Past 50 Years: Some Quantitative Observations, Donald J. Kochan

Donald J. Kochan

Debates have intensified in recent years about the utility of legal scholarship generally, and international law scholarship has not been immune from some specific, targeted scrutiny. Yet few fields of legal scholarship have a history like international law scholarship, where the courts and other authorities have identified scholars of international law as holding a special place of privilege and stature in the interpretation of international law. This essay examines the unique role of international law scholarship in the interpretation of international law by courts and other authorities. Furthermore, through various data compilations and the depictions of trends in more than …

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Virtual Liquid Networks And Other Guiding Principles For Optimizing Future Student-Edited Law Review Platforms, Donald J. Kochan Dec 2015

Virtual Liquid Networks And Other Guiding Principles For Optimizing Future Student-Edited Law Review Platforms, Donald J. Kochan

Donald J. Kochan

This short essay was written for the Touro Law Review’s Associate Dean’s Symposium on “Student-Edited Law Reviews: Future Publication Platforms.” It maintains that the Associate Dean for Research has a responsibility to shape and develop the scholarly culture and intellectual life of the law school. Part of that charge should be to aid the student-edited law reviews in their contribution to that enterprise and to help those reviews evolve. In addition to their pedagogical value for the students (developing editing, reasoning, research, and writing skills), these reviews play a part in sending signals to the outside world of the scholarly …

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Dealing With Dirty Deeds: Matching Nemo Dat Preferences With Property Law Pragmatism, Donald J. Kochan Oct 2015

Dealing With Dirty Deeds: Matching Nemo Dat Preferences With Property Law Pragmatism, Donald J. Kochan

Donald J. Kochan

An organizing principle of the rule of law based on individualism and order is expressed by the Latin maxim nemo dat quod non habet – roughly translated to mean that one can only give what they have or one can only transfer what they own.  Yet when title disputes arise between two or more purchasers, we have accepted pragmatically that exceptions must be made to nemo dat and that, at times, we may have to, in essence, validate fraud and other dirty deeds.  The Article outlines the basic place of the nemo dat principle in our system of law, introduces …

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Bubbles (Or, Some Reflections On The Basic Laws Of Human Relations), Donald J. Kochan Dec 2014

Bubbles (Or, Some Reflections On The Basic Laws Of Human Relations), Donald J. Kochan

Donald J. Kochan

Very few of us want to live in the absolute isolation of a “bubble.” Most humans cherish the capacity to interact with their external environment even when we know that, at times, such exposure makes us susceptible to all sorts of negative effects ranging from mere annoyance to the contraction of deadly illnesses. Yet, because there are so many positive elements and benefits from that interaction and exposure, we often are willing to take the bitter with the sweet. We tolerate much external exposure to bad things in order to take advantage of the collisions with the good things that …

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Economics-Based Environmentalism In The Fourth Generation Of Environmental Law, Donald J. Kochan Dec 2014

Economics-Based Environmentalism In The Fourth Generation Of Environmental Law, Donald J. Kochan

Donald J. Kochan

Environmental protection and economic concerns are not mutually exclusive. This article explores some of the issues of economic analysis that might arise as we approach the fourth generation of environmental law. It explains ways that economic analysis can be employed to generate the best environmental rules, including measures under what this article terms as "economics-based environmentalism." Economics-based environmentalism contends that the advantages of using economic principles within a “polycentric toolbox” of environmental law come from the benefits available in private ordering, markets, property rights, liability regimes and incentives structures that will better protect the environment than alternatives like state-based interventionist, …

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Keepings, Donald J. Kochan Dec 2014

Keepings, Donald J. Kochan

Donald J. Kochan

Individuals usually prefer to keep what they own; property law develops around that assumption. Alternatively stated, we prefer to choose whether and how to part with what we own. Just as we hold affection and attachment for our memories, captured in the lyrics of the George Gershwin classic, so too do most individuals adopt a “they can’t take that away from me” approach to property ownership.

We often focus on the means of acquisition or transfer in property law. We look less often at the legal rules that support one’s ability to keep what one owns. Yet, it is precisely …

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A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald J. Kochan Dec 2014

A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald J. Kochan

Donald J. Kochan

Our land use control system operates across a variety of multidimensional and dynamic categories. Learning to navigate within and between these categories requires an appreciation for their interconnected, dynamic, and textured components and an awareness of alternative mechanisms for achieving one’s land use control preferences and one’s desired ends. Whether seeking to minimize controls as a property owner or attempting to place controls on the land uses of another, one should take time to understand the full ecology of the system. This Article looks at four broad categories of control: (1) no controls, or the state of nature; (2) judicial …

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Constituencies And Contemporaneousness In Reason-Giving: Thoughts And Direction After T-Mobile, Donald J. Kochan Dec 2014

Constituencies And Contemporaneousness In Reason-Giving: Thoughts And Direction After T-Mobile, Donald J. Kochan

Donald J. Kochan

This Article presents a framework for reason giving requirements in administrative law that includes a demand on agencies that reasons be produced contemporaneously with agency decisions where multiple constituencies (including regulated entities) and not just the courts (and judiciary review) are served and respected as consumers of the reasons. The Article postulates that the January 2015 decision by the U.S. Supreme Court in the case of T-Mobile South, LLC v. City of Roswell may prove to be groundbreaking and stir this framework to the forefront of administrative law decisionmaking. There are some fundamental yet very understated lessons in the T-Mobile …

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The Mask Of Virtue: Theories Of Aretaic Legislation In A Public Choice Perspective, Donald J. Kochan Dec 2013

The Mask Of Virtue: Theories Of Aretaic Legislation In A Public Choice Perspective, Donald J. Kochan

Donald J. Kochan

This Article is a first-of-its-kind application of public choice theory to recently developing theories of virtue jurisprudence. Particularly, this Article focuses on not-yet-developed theories of aretaic (or virtue-centered) legislation. This Article speculates what the contours of such theories might be and analyzes the production of such legislation through a public choice lens. Any virtue jurisprudence theory as applied to legislation would likely demand that the proper ends of legislation be deemed as “the promotion of human flourishing” and the same would constitute the test by which we would determine the legitimacy of any legislation. As noble as virtuous behavior, virtuous …

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Public Lands And The Federal Government’S Compact-Based “Duty To Dispose”: A Case Study Of Utah’S H.B. 148 – The Transfer Of Public Lands Act, Donald J. Kochan Dec 2013

Public Lands And The Federal Government’S Compact-Based “Duty To Dispose”: A Case Study Of Utah’S H.B. 148 – The Transfer Of Public Lands Act, Donald J. Kochan

Donald J. Kochan

Recent legislation passed in March 2012 in the State of Utah — the “Transfer of Public Lands Act and Related Study,” (“TPLA”) also commonly referred to as House Bill 148 (“H.B. 148”) — has demanded that the federal government, by December 31, 2014, “extinguish title” to certain public lands that the federal government currently holds (totaling an estimated more than 20 million acres). It also calls for the transfer of such acreage to the State and establishes procedures for the development of a management regime for this increased state portfolio of land holdings resulting from the transfer. The State of …

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Corporate Social Responsibility In A Remedy-Seeking Society: A Public Choice Perspective, Donald J. Kochan Dec 2013

Corporate Social Responsibility In A Remedy-Seeking Society: A Public Choice Perspective, Donald J. Kochan

Donald J. Kochan

Written for the Chapman Law Review Symposium on “What Can Law & Economics Teach Us About the Corporate Social Responsibility Debate?,” this Article applies the lessons of public choice theory to examine corporate social responsibility. The Article adopts a broad definition of corporate social responsibility activism to include both (1) those efforts that seek to convince corporations to voluntarily take into account corporate social responsibility in their own decision-making, and (2) the efforts to alter the legal landscape and expand legal obligations of corporations beyond traditional notions of harm and duty so as to force corporations to invest in interests …

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The Property Platform In Anglo-American Law And The Primacy Of The Property Concept, Donald J. Kochan Dec 2012

The Property Platform In Anglo-American Law And The Primacy Of The Property Concept, Donald J. Kochan

Donald J. Kochan

This Article proposes that the property concept, when reduced to its basic principles, is a foundational element and a useful lens for evaluating and understanding the whole of Anglo-American private law even though the discrete disciplines—property, tort, and contract—have their own separate and distinct existence. In this Article, a broad property concept is not focused just on things or on sticks related to things but instead is defined as relating to all things owned. These things may include one’s self and all the key elements associated with this broader set of things owned—including the right to exclude, ownership, dominion, authority, …

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The "Reason Giving" Lawyer: An Ethical, Practical, And Pedagogical Perspective, Donald J. Kochan Dec 2012

The "Reason Giving" Lawyer: An Ethical, Practical, And Pedagogical Perspective, Donald J. Kochan

Donald J. Kochan

Whether as a matter of duty or utility, lawyers give reasons for their actions all the time. In the various venues in which legal skills must be employed, reason giving is required in some, expected in others, desired in many, and useful in most. This Essay underscores the pervasiveness of reason giving in the practice of law and the consequent necessity of lawyers developing a skill at giving reasons. This Essay examines reason giving as an innate human characteristic related directly to our need for answers and our constant yearning to understand the answer to the question “why.” It briefly …

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Certainty Of Title: Perspectives After The Mortgage Foreclosure Crisis On The Essential Function Of Effective Recording Systems, Donald J. Kochan Dec 2012

Certainty Of Title: Perspectives After The Mortgage Foreclosure Crisis On The Essential Function Of Effective Recording Systems, Donald J. Kochan

Donald J. Kochan

Recording systems for property play a pivotal, market-facilitating role for the players engaged in any transaction, the judiciary that must resolve disputes between the players, and others members of the general public by informing each about the true nature of ownership of the real property things in the world. This symposium article explores the essential character of such systems in providing certainty of title, and takes a tour through the mortgage foreclosure crisis to see where adherence to and respect for these systems’ roles broke down. Leading up to the crisis, as securitization became vogue and the housing boom blurred …

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"Thinking" In A Deweyan Perspective: The Law School Exam As A Case Study For Thinking In Lawyering, Donald J. Kochan Apr 2012

"Thinking" In A Deweyan Perspective: The Law School Exam As A Case Study For Thinking In Lawyering, Donald J. Kochan

Donald J. Kochan

As creatures of thought, we are thinking all the time, but that does not necessarily mean that we are thinking well. Answering the law school exam, like solving any problem, requires that the student exercise thinking in an effective and productive manner. This Article provides some guidance in that pursuit. Using John Dewey’s suspended conclusion concept for effective thinking as an organizing theme, this Article presents one basic set of lessons for thinking through issues that arise regarding the approach to a law school exam. This means that the lessons contained here help exercise thought while taking the exam — …

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You Say You Want A (Nonviolent) Revolution, Well Then What? Translating Western Thought, Strategic Ideological Cooptation, And Institution Building For Freedom For Governments Emerging Out Of Peaceful Chaos, Donald J. Kochan Mar 2012

You Say You Want A (Nonviolent) Revolution, Well Then What? Translating Western Thought, Strategic Ideological Cooptation, And Institution Building For Freedom For Governments Emerging Out Of Peaceful Chaos, Donald J. Kochan

Donald J. Kochan

With nonviolent revolution in particular, displaced governments leave a power and governance vacuum waiting to be filled. Such vacuums are particularly susceptible to what this Article will call “strategic ideological cooptation.” Following the regime disruption, peaceful chaos transitions into a period in which it is necessary to structure and order the emergent governance scheme. That period in which the new government scheme emerges is particularly fraught with danger when growing from peaceful chaos because nonviolent revolutions tend to be decentralized, unorganized, unsophisticated, and particularly vulnerable to cooptation. Any external power wishing to influence events in societies emerging out of peaceful …

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Thinking Like Thinkers: Is The Art And Discipline Of An "Attitude Of Suspended Conclusion" Lost On Lawyers?, Donald J. Kochan Aug 2011

Thinking Like Thinkers: Is The Art And Discipline Of An "Attitude Of Suspended Conclusion" Lost On Lawyers?, Donald J. Kochan

Donald J. Kochan

In his 1910 book, How We Think, John Dewey proclaimed that “the most important factor in the training of good mental habits consists in acquainting the attitude of suspended conclusion. . .” This Article explores that insight and describes its meaning and significance in the enterprise of thinking generally and its importance in law school education specifically. It posits that the law would be best served if lawyers think like thinkers and adopt an attitude of suspended conclusion in their problem solving affairs. Only when conclusion is suspended is there space for the exploration of the subject at hand. The …

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Legal Mechanization Of Corporate Social Responsibility Through Alien Tort Statute Litigation: A Response To Professor Branson With Some Supplemental Thoughts, Donald J. Kochan Jul 2011

Legal Mechanization Of Corporate Social Responsibility Through Alien Tort Statute Litigation: A Response To Professor Branson With Some Supplemental Thoughts, Donald J. Kochan

Donald J. Kochan

This Response argues that as ATS jurisprudence “matures” or becomes more sophisticated, the legitimate limits of the law regress. The further expansion within the corporate defendant pool – attempting to pin liability on parent, great grandparent corporations and up to the top – raises the stakes and complexity of ATS litigation. The corporate social responsibility discussion raises three principal issues about how a moral corporation lives its life: how a corporation chooses its self-interest versus the interests of others, when and how it should help others if control decisions may harm the shareholder owners, and how far the corporation must …

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