Open Access. Powered by Scholars. Published by Universities.®
- Discipline
- Institution
Articles 1 - 4 of 4
Full-Text Articles in Law
Rising Tides--Changing Title: Court To Mull Takings Issue, John R. Nolon
Rising Tides--Changing Title: Court To Mull Takings Issue, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
The United States Supreme Court has granted certiorari in Walton County v. Stop the Beach Renourishment, Inc., where novel questions arose concerning sea level rise and constitutional property rights of beachfront landowners. In Florida, the state government owns in trust, all beach property below the mean high tide water line, while beachfront landowners own the rights to any land above the mean high tide water line. The line shifts along with beachfront as the beach expands and contracts. In this Florida case, landowners challenge a state statute, which precludes the ocean property line from shifting in favor of the private …
Rebuilding The Public-Private City: Regulatory Taking's Anti-Subordination Insights For Eminent Domain And Redevelopment, Audrey Mcfarlane
Rebuilding The Public-Private City: Regulatory Taking's Anti-Subordination Insights For Eminent Domain And Redevelopment, Audrey Mcfarlane
All Faculty Scholarship
The eminent domain debate, steeped in the language of property rights, currently lacks language and conceptual space to address what is really at issue in today's cities: complex, fundamental disagreements between market and community about Development. The core doctrinal issue presented by development is how can we acknowledge the subordination of citizens who happen to live in areas that are attractive to wealthier citizens. In particular, how should we address the political process failure reflected in the privatized methods of decisionmaking that typify redevelopment? The conceptual language and analytical construct for appropriately addressing these issues come from critical race theory …
The Foreclosure Crisis And The Anti-Fragmentation Principle In State Property Law, David A. Dana
The Foreclosure Crisis And The Anti-Fragmentation Principle In State Property Law, David A. Dana
Faculty Working Papers
Secured credit in homes has been divided and over-divided and spun into so many separate interests that economically rational, socially beneficial modifications of loans are impossible. The mortgage story is a new one but the excessive fragmentation of property and the creation of waste and inefficiency is not new. And our legal tradition of state property law has an answer, in the form of an anti-fragmentation principle. Consistent with this principle, federal government trustees should be authorized to review mortgages and, where modification would yield greater total return than foreclosure, modify the loans. Blind trustee review, moreover, can be achieved …
Pretextual Takings: Of Private Developers, Local Governments, And Impermissible Favoritism, Daniel B. Kelly
Pretextual Takings: Of Private Developers, Local Governments, And Impermissible Favoritism, Daniel B. Kelly
Journal Articles
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 …