Law Commons^™

Liberty At The Borders Of Private Law, Donald J. Smythe

Akron Law Review

Liberty is both dependent upon and limited by the State. The State protects individuals from the coercion of others, but paradoxically, it must exercise coercion itself in doing so. Unfortunately, the reliance on the State to deter coercion raises the possibility that the State’s powers of coercion might be abused. There is, not surprisingly, therefore, a wide range of literature on the relationship between law and liberty, but most of it focuses on the relationship between public law and liberty. This Article focuses on the relationship between private law and liberty. Private laws are enforced by courts. Since the judiciary …

Wills, Trusts, And Estates, J. William Gray Jr., Katherine E. Ramsey

University of Richmond Law Review

No abstract provided.

The Mcdonnell Case: A Clarification Of Corruption Law Or A Confusing Application Of Corruption Law, Henry L. Chambers Jr.

University of Richmond Law Review

No abstract provided.

From The Editors: Ferguson And Its Impact On Legal Education Symposium, Marc Spindelman, Thomas D. Cobb, Kellye Testy, Kate O'Neill

Journal of Legal Education

No abstract provided.

The Curious Untidiness Of Property & Ecosystem Services: A Hybrid Method Of Measuring Place, John Page, Ann Brower, Johannes Welsch

Pace Environmental Law Review

Theoretically, this paper builds on ideas of ecosystem services (ES) in landscapes, property theories of plurality and marginality, and the legal geography of localized place. Methodologically, we will explore three divergent ways of measuring ES in a propertied landscape. Substantively, combining property theory and spatial methods in this way will allow for future consideration of property arrangements that might be more optimal and representative of contextualized place.

Part II presents the qualitative method--a narrative description of the flow of resources and services across a transect from the mountains to the sea. Narrative is effective in describing the aesthetics and indelibly …

A 2015 Analysis And Update On U.S. Pore Space Law —The Necessity Of Proceeding Cautiously With Respect To The “Stick” Known As Pore Space, Trae Gray

Oil and Gas, Natural Resources, and Energy Journal

No abstract provided.

Do You Know The Fair Market Value Of Your Property?: A Call To The Legislature To Revise Section 775.089, Florida Statutes, Governing Restitution, Adam M. Hapner

Barry Law Review

No abstract provided.

Lessons From Institutional Shareholder Services: Governing Benefit Corporations' Third-Party Standard, Tammi S. Etheridge

Michigan Business & Entrepreneurial Law Review

Almost one hundred years ago, Henry Ford, as CEO of the Ford Motor Company, announced a plan to cease payment of special dividends to shareholders. Instead, the company would reinvest its profits to employ more workers and build more factories. Investing in new workers and factories would cut the cost of cars and make them affordable to more people. Ford publicly declared that his “ambition [was] to employ still more men, to spread the benefits of this industrial system to the greatest possible number, to help them build up their lives and their homes. To do this we are putting …

The Secured Party And His Nemesis, The Trustee In Bankruptcy: After-Acquired Property, Unidentified Proceeds, And Selected Preference Problems, John P. Finan

Akron Law Review

A trustee in bankruptcy, in addition to succeeding to the rights of the bankrupt,' has several avoiding powers. Some of these avoiding powers are based on practices which, like vice, are of "so frightful mien that to be hated [need] but to be seen." Preferences may not be included among such practices. Indeed, the English view exhibits ambivalence towards preferences. At one time it regarded "preferences [as] the good fortune of the creditor." A later view was "that the preferring of one creditor over others within a short time of bankruptcy and in contemplation thereof, was a 'fraud on the …

I'M In The Pursuit Of Your Property: How The Government Disguises A Taking, Amanda Miller

Touro Law Review

No abstract provided.

Pot In My Backyard: Curtilage Concept Endorsed By The Queens Supreme Court To Suppress Physical Evidence Of Marijuana, Laura J. Mulholland

Touro Law Review

No abstract provided.

The Legal Status Of Charter Schools In State Statutory Law, Preston C. Green Iii, Bruce D. Baker, Joseph O. Oluwole

University of Massachusetts Law Review

Given the recent increase in charter schools as an alternative to the traditional public education system, this Article explores the legal status and position of charter schools. Charter schools exhibit many characteristics of private schools, particularly in terms of management, but also retain many public school features. Thus, this Article explores areas of the law where charter schools were either classified as public or private in terms of state statutes or regulations, discussing recent and some pending litigation. First, this Article discusses whether charter schools, charter school boards and officials, or educational management organizations which manage charter schools are entitled …

Exposing The Hocus Pocus Of Trusts, Kent D. Schenkel

Akron Law Review

Part II makes the conceptual case for viewing the trust as an elective cost-externalization device. Part III offers the spendthrift trust as the archetypal model for purposes of our analysis, briefly describes the spendthrift trust, and explores its consequences to outsiders to the trust deal. Part IV offers some reasons why the elective externalities of trusts persist. Part V first examines and rejects a couple of approaches to minimizing the externalized costs of trusts that rely on the “bundle of sticks” approach to property interests. It then moves beyond the bundle of sticks approach, settling on a solution based on …

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

Michigan Journal of Environmental & Administrative Law

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 …

Legal Nature And Contractual Conditions In Know-How Transactions, Carlos M. Correa

Georgia Journal of International & Comparative Law

No abstract provided.

The Coming Wave Of Pretextually Profiteering Social Entrepreneurs: A Case Study At The Nexus Of Property And Civil Rights, David Groshoff

William & Mary Environmental Law and Policy Review

This Article builds on my prior publications employing case studies that serve as the prisms through which this Article applies a legal analysis to a newly trending problem in social entrepreneurship.

Specifically, this Article reviews the financial and property interests implicated when, in the milieu of an aging baby-boomer demographic likely to display decaying neurocognitive abilities, ostensibly socially beneficent limited liability companies (“LLCs”) pretextually pose as small businesses with a desire to serve people suffering from particular alleged mental disorders. In reality however, these brand-managed social entrepreneurs may represent conveniently detachable arms of integrated corporate enterprises that have hundreds of …

International Tax Free Exchanges: The Structure Of I.R.C. Section 367, Vikram A. Gosain

Georgia Journal of International & Comparative Law

No abstract provided.

Easier Easements: A New Path For Conservation Easement Deduction Valuation, Nicholas Carson

Northwestern University Law Review

Conservation easements, a valuable tool in the conservationist’s toolbox, have grown increasingly popular since the 1980s, when Congress introduced changes to the federal tax code making easement donations more financially attractive. And with deductions reaching hundreds of thousands, or even millions, of dollars, conservation easement deductions are big business. However, expanded incentives and loosened regulations invite abuse, especially when the tax implications are large and donated easements are hard to value. Valuation of real estate remains an inexact science, dependent on inconsistent appraisal methods and subjectivity. Conservation easements can be even more difficult to value than other easements because, by …

Notice And Remedies In Copyright Licensing, B. J. Ard

Missouri Law Review

Copyright owners claim the power to designate practically any term of a copyright license as a “condition” enforceable in copyright. In doing so, these licensors purport to translate breach of the most trivial or idiosyncratic term into the basis for a copyright infringement suit. This Article argues that these licenses are most problematic when licensors provide inadequate notice of unexpected terms. License conditions are typically buried in boilerplate that no reasonable consumer reads, and licensors have few incentives to make them more salient. These circumstances not only threaten unwitting users with copyright liability, but also impede copyright’s own goals by …

Foreign Debt - Act Of State Doctrine - Unilateral Deferral Of Obligations By Debtor Nations Is Inconsistent With United States Law And Policy: Allied Bank International V. Banco Credito Agricola De Cartago, Marc J. Lewyn

Georgia Journal of International & Comparative Law

No abstract provided.

Valuing Control, Peter Dicola

Michigan Law Review

Control over property is valuable in and of itself. Scholars have not fully recognized or explored that straightforward premise, which has profound implications for the economic analysis of property rights. A party to a property dispute may actually prefer liability-rule protection for an entitlement resting with the other party to liability-rule protection for an entitlement resting with her. This Article presents a novel economic model that determines the conditions under which that is the case—by taking account of how parties value control. The model suggests new opportunities for policymakers to resolve conflicts and to develop better information about property disputes …

Will Ticket Scalpers Meet The Same Fate As Spinal Tap Drummers? The Sale And Resale Of Concert And Sports Tickets, Gregory M. Stein

Pepperdine Law Review

Some people purchase concert or sports tickets for their own entertainment and then are unable to use their tickets. They may have a scheduling conflict, or their favorite team may be underperforming. Other people buy tickets with the intention of giving them as gifts. Still others purchase with the goal of reselling the tickets at a profit. This Article examines the transferability of tickets to performances and sporting events. What, exactly, is a “ticket”? What property and contract rights does the initial ticket holder acquire? Does the holder have the legal power to transfer these rights? To what extent can …

Contested Shore: Property Rights In Reclaimed Land And The Battle For Streeterville, Joseph D. Kearney, Thomas W. Merrill

Northwestern University Law Review

Land reclaimed from navigable waters is a resource uniquely susceptible to conflict. The multiple reasons for this include traditional hostility to interference with navigable waterways and the weakness of rights in submerged land. In Illinois, title to land reclaimed from Lake Michigan was further clouded by a shift in judicial understanding in the late nineteenth century about who owned the submerged land, starting with an assumption of private ownership but eventually embracing state ownership. The potential for such legal uncertainty to produce conflict is vividly illustrated by the history of the area of Chicago known as Streeterville, the area of …

A Bundle Of Confusion For The Income Tax: What It Means To Own Something, Stephanie Hunter Mcmahon

Northwestern University Law Review

No abstract provided.

Belk V. Commissioner: Land Substitutions In Conservation Easements, Morgan Davis

Loyola of Los Angeles Law Review

No abstract provided.

Marital Contracting In A Post-Windsor World, Martha M. Ertman

Florida State University Law Review

No abstract provided.

Due Process For Cash Civil Forfeitures In Structuring Cases, Timothy J. Ford

Michigan Law Review

On January 22, 2013, Tarik “Terry” Dehko sat down to pay the bills for his small Michigan grocery store when a federal agent entered his office. The agent told Dehko that the Internal Revenue Service (IRS) had executed a seizure warrant and taken the market’s entire bank account—more than $35,000. When Dehko asked how he could run his business without its bank account, the agent replied, “I don’t care.” The government did not charge Dehko with a crime that day. In fact, Dehko had never been charged with any crime in his life. Instead, the government waited until July 19 …

Emergency Takings, Brian Angelo Lee

Michigan Law Review

Takings law has long contained a puzzle. The Fifth Amendment to the U.S. Constitution requires the government to pay “just compensation” to owners of private property that the government “takes.” In ordinary circumstances, this requirement applies equally whether the property is confiscated or destroyed, and it also applies to property confiscated in emergencies. Remarkably, however, courts have repeatedly held that if the government destroys property to address an emergency, then a “necessity exception” relieves the government of any obligation to compensate the owner of the property that was sacrificed for the public good. Although the roots of this startling principle …

Homelessness At The Cathedral, Marc L. Roark

Missouri Law Review

This Article argues that legal restraints against homeless persons are resolved by applying certain nuisance-like approaches. By drawing on nuisance restraints that adopt property-based and social-identity information, courts and decision-makers choose approaches that create conflict between homeless identities and adopted social identities. These approaches tend to relegate the social choice of whether to tolerate homeless persons to one of established social order (property) or broadly conceived notions of liberty (constitutional rights or due process rights). This Article argues for a broader conception of social identity, which may force parties to internalize certain costs of action, tolerate certain uses, or abate …