Law Commons^™

Timber Piracy, Statutory Interpretation, And Legislative Intent: The Louisiana Supreme Court’S Decision In Sullivan V. Wallace, Mirais Holden

Mirais Holden

The Louisiana legislature imposes punitive treble damages on timber pirates, those who cut or remove timber from land belonging to another. For many years in Louisiana, it was unclear whether those same treble penalties applied to co-owners of land who sell timber of which they only own a part, without the consent of their fellow co-owners, in a blatant attempt to steal the full profit for themselves. In a historical circuit split, one Louisiana circuit held that the treble damage statute did apply to timber-pirating co-owners, while another Louisiana circuit held that it did not. The author of this case …

Recent Developments In U.S. Eminent Domain Law, Joyce Palomar

Joyce Palomar

No abstract provided.

Dora And William Donner Were Busy People, Richard H. Maloy

Richard Maloy

No abstract provided.

Locking In Wedlock: Reconceptualizing Marriage Under A Property Model, Ruth Sarah Lee

Ruth S Lee

Legal commentators have long understood divorce laws to reflect our cultural and ideological understanding of the role of marriage, but have criticized topical divorce laws for either failing to match up with current notions of fairness, or for under-compensating at least one party. As divorce laws have evolved, the way we conceptualize marriage has also evolved. Marriage has been modeled as, inter alia, a commitment, a governance, a promise, a tort-doctrinal duty, a status, and now more popularly, a contract or a partnership. Each model provides its own corollary for fairness and opportunism between spouses, possible remedies upon divorce, and …

Contract + Tort = Property: The Trade Secret Illustration, Matthew E. Cavanaugh Mba Cpa Esq.

Matthew E. Cavanaugh MBA CPA Esq.

This article commences with an introduction to the use of Hegel’s famous dialectical method as an arithmetic analysis of law. It reviews Hegel’s assertion that the sum of property and contract is tort and crime, and then suggests a better dialectic is that contract plus tort equals property. This article then reviews the doctrines of contract, tort, and property, focusing on the plaintiff’s rights and remedies, and who can be defendants in each of the three doctrines. The article next reviews the law of one particular type of intellectual property, trade secrets, because this article uses trade secrets as a …

Florida S.B. 1196 And Condominium Assessment Collection Measures Sweeping Or Sleeping?, Rose Brill

Rose Brill

FLORIDA S.B. 1196 AND CONDOMINIUM ASSESSMENT COLLECTION MEASURES: SWEEPING OR SLEEPING? Florida’s recent Senate Bill 1196 (2010) has created waves in the condominium law arena. This article suggests that by considering various issues that have arisen in the legal community since July 1, 2010, the Bill’s effective date, condominiums will be better able to collect the assessments they need to maintain and improve their buildings. Healthier condominiums will instill confidence in the housing market, generate interest in condominium purchases, and play a role in the overall economic recovery. In particular, the article analyzes two of the Bill’s most contentious provisions, …

Possession, Order And Violent Conflict: Property Rights In A Fragile State, Daniel Fitzpatrick

Daniel Fitzpatrick

Lawyers trained in stable socio-political contexts tend to overlook or underestimate the importance of social order in considering fundamental concepts of property such as possession. This article argues that there are correlations between social order and the interpretive complexity of possessory rules. Efficiency-oriented theories of property suggest a preference for bright-line rules of possession as interpretive simplicity reduces the costs of information transmission to a broad property audience. An alternative approach explains rule complexity by reference to concerns for social justice, including relief against dispossession. The article suggests that the sources of rule complexity in property systems may lie not …

International Trust Domestication: Migrating An Offshore Trust To A U.S. Jurisdiction, Christopher M. Reimer

Christopher M. Reimer

What should an estate planning attorney know before repatriating a foreign trust to the United States?

U.S. and non-U.S. residents should consider the benefits of migrating trusts from offshore jurisdictions to a domestic state, such as Wyoming. For decades, foreign trusts held allure for families seeking to preserve wealth from the steady drain of taxation and the inevitable risk of creditor attack. But the federal government now imposes burdensome reporting and tax requirements on foreign trusts. Many states also offer tax, asset protection, substantive, and structural benefits that mitigate the comparative advantage of offshore trusts.

First, this article explains rationales …

(Dis)Owning Religious Speech, Jessie Hill

Jessie Hill

To claims of a right to equal citizenship, one of the primary responses has long been to assert the right of private property. It is therefore somewhat troubling that, in two recent cases involving public displays of religious symbolism, the Supreme Court embraced property law and rhetoric when faced with the claims of minority religious speakers for inclusion and equality. The first, Pleasant Grove City v. Summum, is a free speech case in which the defendant evaded a finding that it was discriminating against the plaintiff’s religious speech by claiming a government speech defense. In the process, it claimed as …

Integrated Eastern States Water Management: Borrowing From The Coastal Zone Management Act, Robert H. Abrams

Robert H Abrams

More robust planning and management is needed to confront new patterns of water use and increasingly extreme and less predictable variations in water availability. Items such as water allocation law, an incomplete array of water management objectives, and the comparatively rigid operating rules for water facilities, that in the past had barely mattered, are now much more important. Neither the water law of most Eastern states nor the existing water institutions are adequate to the needs of a less stable, and possibly shorter, water supply. The failure of adaptation has the potential to cause serious economic and environmental harm if …

When The Law Is Silent, Trespassers W… : Law And Power In Implied Property Rights, Ann Brower

Ann Brower

In the daftly magical world of Winnie the Pooh, Piglet lives in a house signposted “TRESPASSERS W.” The golden silence that follows the W allows Pooh and his friends to wonder about the sign’s meaning, which Piglet insists honors his grandfather, Trespassers William. Piglet’s grandfather aside, silence in the law allows competing interpretations to arise and flourish in the realms of rhetoric, narrative, power and politics. In this paper we combine interest group politics, political ecology, property theory, and narrative assertion to propose a theory of implied property rights – how they work, whom they benefit, and when and why …

One Property, Many Properties. Designing The Liberal Egalitarian Commons, Anna Di Robilant

anna di robilant

In the last two decades pessimistic accounts of common ownership, such as Hardin’s allegory of the “tragedy of the commons”, have, largely, vanished and scholars look at common ownership with novel interest. Common ownership regimes are seen as yielding a variety of desiderata: a more democratic, efficient and responsible management of natural resources, the participatory production of more diverse information and cultural artifacts, and, generally, the more efficient use of scarce resources. With few exceptions, the idea that common ownership could deliver greater economic equality has been largely absent from the commons discourse This article expands the focus of the …

Empower The Neighborhood And Save The City; Why Courts Should Permit Neighborhood Control Of Zoning, Kenneth A. Stahl

Kenneth Stahl

Whether cities should delegate zoning authority to neighborhood groups is one of the most hotly contested issues in municipal politics, yet it is also essentially a moot point. Since a bizarre series of Supreme Court cases in the early twentieth century, it has been largely settled that cities may not constitutionally delegate the zoning power to sub-municipal groups, at least where the power is delegated specifically to landowners in a certain proximity to a proposed land use change.

This article argues that courts have erred in prohibiting cities from devolving zoning control to proximate landowners, a scheme I designate a …

Res Or Rules? Patents And The (Uncertain) Rules Of The Game, Emily Michiko Morris

Emily Michiko Morris

RES OR RULES? PATENTS AND THE (UNCERTAIN) RULES OF THE GAME

Emily Michiko Morris

ABSTRACT

The stakes at play in modern-day patent infringement suits can be worth hundreds of millions of dollars. Just take a look at the $612.5 million that Research In Motion, Ltd., paid to settle NTP, Inc.’s patent infringement suit against it. How could RIM have made such an expensive mistake? After all, patents are public records, so ideally patent infringers should simply do their homework and avoid such massive liability. In reality there are a multitude of reasons why some technology companies find themselves infringing others’ …

The End Of Mortgage Securitization? Electronic Registration As A Threat To Bankruptcy Remotenes, John P. Hunt, Richard Stanton, Nancy Wallace

John P Hunt

A central tenet of asset securitization in the United States—that assets are bankruptcy remote from their sponsors—may be threatened by innovations in the transfer of mortgage loans from the loan-originators (sponsors) to the legal entities that own the mortgage pools (the Special Purpose Vehicles (SPVs)). The major legal argument advanced in the paper is that because the mortgage is an interest in real property, the bankruptcy-remoteness rules applicable to real property, including § 544(a)(3) of the Bankruptcy Code, create a risk to the bankruptcy remoteness of mortgage transactions unless proper recording occurs. We review the traditional mortgage transfer process and …

"Systemic Poverty As A Cause Of Recessions", Robert Ashford

Robert Ashford

This article argues that the failure to address and ameliorate systemic poverty is a major cause of recessions. Recessions occur (and sub-optimal employment and growth persist) when a critical mass of market participants come to believe that the distribution of future earning capacity is not sufficient to purchase what can be produced despite the physical and technological capacity to employ available labor and capital to produce more over the same period even at lower unit cost. The essence of systemic poverty is widespread inadequate earning capacity. In recessionary periods, with rising unemployment, the problem of inadequate earning capacity (which perennially …

Adverse Possession, Takings, And The State: The Confounding Problem Of Government Adverse Possesssion, William Marra

William Marra

Adverse possession is one of the most fascinating areas of property law. Much has been written on the topic, but one of the most compelling questions regarding adverse possession has, remarkably, never been fully addressed in the literature: Should government be allowed to adversely possess land in the same manner as private individuals? And, relatedly, when the government adversely possesses land, does this constitute a constitutional ‘taking’ that requires the government to pay just compensation?

My article, Adverse Possession, Takings, and the State: The Confounding Problem of Adverse Possession, tackles these two important but ignored questions. Almost every jurisdiction permits …

Don’T Burst The Bubble: An Analysis Of The First-Time Homebuyer Credit And Its Use As An Economic Policy Tool, Sarah Webber

Sarah J Webber

When faced with a looming real estate crisis, Congress hastily acted to stabilize the market by offering the first-time homebuyer credit (FTHC). This tax credit was promoted as a solution to remove the excess inventory of homes for sale and prevent a significant decrease in home values. The FTHC failed to deliver on its promises. Through an analysis of the FTHC focusing on the creation of the credit, the economic impact of the credit, and the alternatives to the credit, this article concludes that Congress improperly used the tax code to create the FTHC in the promotion of economic policy.

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity George P. Smith, II Matthew Saunig Abstract: Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk. This Article seeks to develop a theory of economic captivity …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …