Law Commons^™

What Is A Merger Anyway?, Don Leatherman, Joan Macleod Heminway, Thomas E. Plank

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Three law professors from different practice and academic backgrounds meet at the water cooler in the faculty wing of a law school in or about 2010. They get engaged in a conversation about mergers and acquisitions that covers much ground--from what a merger actually is (from the perspective of their distinctive areas of legal experience and expertise--business associations, federal income tax, and property law) to factors each believe to be important in choosing a transactional structure for a business combination. This edited panel discussion from the 2019 Business Law Prof Blog symposium, held at The University of Tennessee College of …

Wrongful Convictions, Constitutional Remedies, And Nelson V. Colorado, Michael Wells

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This article examines the U.S. Supreme Court’s Nelson v. Colorado opinion, in which the Court addressed the novel issue of remedies for persons wrongly convicted of crimes. Governments routinely deprive criminal defendants of both liberty and property upon conviction, and do so before giving them a chance to appeal their convictions and sentences. When a conviction is overturned, the state typically refunds fines and most other monetary exactions but seldom compensates for the loss of liberty. In Nelson, the Supreme Court addressed an unusual case in which the state did not return the money and that refusal was approved (purportedly …

A Numerus Clausus Principle For Intellectual Property, Christina Mulligan

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Real property can only be held and conveyed in a small number of forms, such as fee simple, life estate, and lease. This principle is known as numerus clausus, meaning “the number is closed.” For centuries, the principle has been central to the common-law system of property rights. Scholars have justified it as a mechanism for facilitating effective property alienation, maintaining low transaction costs in the buying and selling of property, and keeping the scope of property owners’ rights clear.

In contrast, the numerus clausus principle is essentially nonexistent in intellectual property law. In the context of patents and copyrights, …

Accounting For Time: A Relative-Interest Approach To The Division Of Equity In Hybrid-Property Homes Upon Divorce, Lisa Milot

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Even in these troubling economic times, homes are the most valuable asset many Americans own. In many instances, these homes were purchased prior to marriage, with later mortgage payments made after the homebuyer married. On divorce, courts must divide the value of such a “hybrid-property” home into “separate” and “marital” shares prior to distributing it between the divorcing spouses.

Many courts have developed formulas for this purpose, with a goal of providing a “proportionate and fair return” on both the separate and marital investments in the home. Each of the formulas, though, ignores the timing of the investments, both in …

Is China's Housing Market Heading Toward A Us-Style Crash?, Gregory M. Stein

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This article aims to determine whether China is heading toward a U.S.-style market crash in its housing market. Rather than attempting to maintain any suspense, I will disclose here that my conclusion is, 'Who knows?' China and the United States have dramatically different histories, cultures, governments, economies, and legal systems. Anyone who claims to have a definitive answer to this question is overly confident.

My more modest goals in this article are to examine the available evidence and see which way it seems to point. The article begins by listing and describing several different ways in which the American housing …

Strategic Default: The Popularization Of A Debate Among Contract Scholars, Meredith R. Miller

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A June 2010 report estimates that roughly 20% of mortgage defaults in the first half of 2009 were “strategic.” “Strategic default” describes the situation where a home borrower has the financial ability to continue to pay her mortgage but chooses not to pay and walks away. The ubiquity of strategic default has lead to innumerable newspaper articles, blog posts, website comments and editorial musings on the morality of homeowners who can afford to pay but choose, instead, to walk away. This Article centers on the current public discourse concerning strategic default, which mirrors a continuing debate among scholars regarding whether …

Commercial Leasing In China: An Overview, Gregory M. Stein

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In an effort to understand how and why investors and other professionals are willing to participate in China’s unsettled commercial leasing market, I recently interviewed Chinese and Western experts in the real estate field, including lawyers, judges, developers, bankers, government officials, and academics. This Article summarizes my findings about China’s commercial leasing market. China’s new property law provides some insight into how China’s real estate market functions, but a full picture requires an understanding of how these professionals have operated in a legally uncertain environment, both before and after the new law became effective.

Private And Public Construction In Modern China, Gregory M. Stein

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During the past three decades, real estate development in China has proceeded at an astonishing pace, with much development occurring before China’s 2007 adoption of its first modern law of property. Investors thus spent hundreds of billions of dollars in the real estate market of a nation that, during most of this period, had no formal property law. How can a huge nation modernize so rapidly and dramatically when its legal system furnishes such uncertainty? And how can this happen in a nation that still purports to subscribe to socialist ideology?

I set out to answer these questions by interviewing …

The Public Policy Exception To Recognition And Enforcement Of Judgments In Cases Of Copyright Infringement, Marketa Trimble

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In recent years proposals have been made for an international convention that would facilitate a smooth recognition and enforcement of foreign judgments in intellectual property matters. Like all of these proposals, the American Law Institute’s preliminary version, short titled "Draft Principles" published in March 2007, strives to eliminate most hurdles to recognition and enforcement by providing rules for jurisdiction, choice of law and coordination of multi-territorial actions. As long as the rules are applied by the court that issues a judgment (the “rendering court”), most of the obstacles to recognition and enforcement − differing jurisdictional rules and choice of law …

Modernization Of New York's Land Use Laws Continues To Meet Growing Challenges Of Sustainability, Patricia E. Salkin, Jessica A. Bacher

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There has never been a more challenging time to practice land use planning and zoning law in New York. With goals of sustainability at the forefront of the land use regulatory agenda, this brief account of recent developments in land use law highlights some discernable trends, namely: the modernization and increased flexibility of New York State planning and zoning enabling acts, the inspired local initiatives and lethargic State response to affordable housing issues, and the increasing impact of alternative energy systems on local regulatory schemes.

Part I of this article explores the impacts on community development caused by the many …

Identical Cousins? On The Road With Dilution And The Right Of Publicity, Mary Lafrance

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The dilution doctrine and the right of publicity have a great deal in common, because both represent property-like rights that have evolved from legal doctrines largely unrelated to property concerns. Although both doctrines have engendered controversy in the United States, the dilution doctrine generally evokes greater skepticism and confusion. This Article evaluates how these concepts are viewed in a number of jurisdictions outside the United States. From this examination, two conclusions emerge. First, despite the similarities between the doctrines, countries do not tend to adopt or reject them in tandem. Second, the degree to which each doctrine achieves widespread and …

Harry Potter And The (Re)Order Of The Artists: Are We Muggles Or Goblins?, Gary Pulsinelli

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In "Harry Potter and the Deathly Hallows," author J.K. Rowling attributes to goblins a very interesting view of ownership rights in artistic works. According to Rowling, goblins believe that the maker of an artistic object maintain an ongoing ownership interest in that object even after it is sold, and is entitled to get it back when the purchaser dies. While this view may strike some as rather odd when it is applied to tangible property in the 'muggle' world, it actually has some very interesting parallels to the legal treatment of intangible property, particularly in the areas of intellectual property …

Mortgage Law In China: Comparing Theory And Practice, Gregory M. Stein

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The first Chinese law focusing specifically on property rights became effective on October 1, 2007, which means that China's breakneck real estate development before that date occurred in a nation with no published law of real estate. Thus those who have been buying, selling, and lending against Chinese real estate have been operating in a world of significant legal uncertainty. Even with the new code, property law as it is practiced is likely to diverge significantly from the published rules.

This Article examines Chinese mortgage law as it actually operates in the field, focusing on both legal and business issues. …

Restitution As A Remedy For Refugee Property Claims In The Israeli-Palestinian Conflict, Michael Kagan

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This Article examines restitution as an autonomous human right for refugees displaced in the Israeli-Palestinian conflict, and assesses the implications of taking such a rights-based approach. The author concludes that the refugees have a strong legal claim to restitution. In international law, compensation is relevant only when restitution is materially impossible, where property has been damaged or declined in value so that restitution is not a complete remedy for the victim's loss or where a refugee chooses not to seek restitution. Current empirical research about land usage in Israel indicates that a great deal, and possibly the majority, of lost …

Doomed To Re-Repeat History: The Triangle Fire, The World Trade Center Attack, And The Importance Of Strong Building Codes, Gregory M. Stein

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Imagine this: You are a member of a commission charged with recommending changes to the building code of a densely-packed urban city, say New York. Your recommendation is that high-rise office buildings are overly safe and that your city should relax its codes. That, more or less, is what happened in New York in 1968. Fifty-seven years after the Triangle Waist Company fire, in which 146 people trapped in the upper floors of an unsafe building burned, jumped, or fell from a collapsed fire escape to their deaths, New York City relaxed its safety rules for high-rise buildings.

In his …

Acquiring Land Use Rights In Today's China: A Snapshot From On The Ground, Gregory M. Stein

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For the interested observer of real estate markets, China is the most fascinating place in the world today, and the coming years promise to be no less intriguing than the recent past has been. This Article offers an overview of how a specific segment of the Chinese real estate market - the acquisition of land use rights - operates in practice, from both a legal and business perspective.

I recently interviewed dozens of Chinese and Western experts who are taking part in one of the greatest real estate booms in world history. My conversations with these real estate developers, bankers, …

The Study Of Intellectual Property At The William S. Boyd School Of Law, Mary Lafrance

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This article discusses the intellectual property program at William S. Boyd School of Law.

Finding A Right To The City: Exploring Property And Community In Brazil And In The United States, Ngai Pindell

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Increasing poor people's access to property and shelter in urban settings raises difficult questions over how to define property and, likewise, how to communicate who is entitled to legal property protections. An international movement - the right to the city - suggests one approach to resolving these questions. This Article primarily explores two principles of the right to the city - the social function of property and the social function of the city - to consider how to better achieve social and economic justice for poor people in urban areas. Using Brazil as one example of a country incorporating these …

The Embarrassing Rule Against Perpetuities, Peter A. Appel

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The Rule Against Perpetuities offers an opportunity for those who teach property or trusts and estates to review some of the major schools of jurisprudence and how accurately or inaccurately those schools characterize law and legal development. At first blush, the idea that the rule can be used to advance a student's mastery or consideration of theory seems absurd. But this essay will outline an innovative approach to the rule that allows those who teach it to mix theory in with the difficult problems that the rule creates.

The modern pedagogical approach to the rule treats it as an embarrassment …

Space Resources, Common Property, And The Collective Action Problem, Glenn Harlan Reynolds

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The subjects of lunar mining, asteroidal resource extraction, and orbital solar power are again attracting considerable attention, leading to more discussion of space property rights regimes. This article discusses both private-property regimes and centralized regulatory regimes of the sort envisioned by the 1979 Moon Treaty, and also notes that private property regimes may actually be both more productive of wealth and more beneficial for the space environment than centralized regulatory schemes.

Thinking Property At Rome, Alan Watson

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It is a commonplace among writers on slavery that there is an inherent contradiction or a necessary confusion in regarding slaves as both human beings and things. In law there is no such contradiction or confusion. Slaves are both property and human beings. Their humanity is not denied but (in general) they are refused legal personality, a very different matter.

Things as property may be classed in various ways, and the classification may then have an impact on owners' rights and duties. A thing may be corporeal or incorporeal, immoveable or moveable. Some moveables may be classed as res se …

Constitutional Law - Due Process - Notice By Publication Is Constitutionally Inadequate In Tax Sale Proceeding, Martin A. Geer

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In 1976 the Michigan Supreme Court’s determined in Doe v. State that procedural due process requires an owner of a significant interest in real property to be given notice of the state’s foreclosure petition and a meaningful opportunity for a hearing which he may challenge the state’s claim that property taxes remain unpaid without legal justification. This casenote examines the existing legal precedent during the Doe v. State decision, the Michigan Supreme Court’s decision and analysis, and the legislature’s actions following the decision.