Law Commons^™

Condominium Government And The Right To Live In The City, Douglas C. Harris

All Faculty Publications

Condominium is an architecture of land ownership that produces separate, privately owned units within multi-unit developments. Condominium also constructs a form of private, democratic government, described as a fourth order of government, that acts beneath federal and provincial governments, and alongside municipal government, to govern owners and their property. This article considers a conflict between residential-unit owners and a commercial-unit owner within a condominium development in Vancouver’s Downtown Eastside. Drawing from material produced in litigation, the article situates the dispute within its property and urban contexts to argue that condominium government requires attention, and not just for its impact on …

The State Of Exactions, Timothy M. Mulvaney

Faculty Scholarship

In Koontz v. St. Johns River Water Management District, the Supreme Court slightly expanded the range of circumstances involving conditional land use permits in which heightened judicial scrutiny is appropriate in a constitutional “exaction” takings case. In crafting a vision of regulators as strategic extortionists of private property interests, though, Koontz prompted many takings observers to predict that the case would provide momentum for a more significant expansion of such scrutiny in takings cases involving land use permit conditions moving forward, and perhaps even an extension into other regulatory contexts, as well.

Five years on, this Article evaluates the extent …

Knowledge Commons (2019), Michael J. Madison, Brett M. Frischmann, Katherine J. Strandburg

Book Chapters

This chapter provides an introduction to and overview of the knowledge commons research framework. Knowledge commons refers to an institutional approach (commons) to governing the production, use, management, and/or preservation of a particular type of resource (knowledge). The research framework supplies a template for interrogating the details of knowledge commons institutions on a case study basis, generating qualitative data that may be used to support comparative analysis.

21st Annual Open Government Summit: Office Of The Attorney General, Access To Public Records Act & Open Meetings Act, Attorney General State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

The Right Of Publicity's Intellectual Property Turn, Jennifer E. Rothman

All Faculty Scholarship

The Article is adapted from a keynote lecture about my book, THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD (Harvard Univ. Press 2018), delivered at Columbia Law School for its symposium, “Owning Personality: The Expanding Right of Publicity.” The book challenges the conventional historical and theoretical understanding of the right of publicity. By uncovering the history of the right of publicity’s development, the book reveals solutions to current clashes with free speech, individual liberty, and copyright law, as well as some opportunities for better protecting privacy in the digital age.

The lecture (as adapted for this Article) explores …

Right On Time: First Possession In Property And Intellectual Property, Dotan Oliar, James Y. Stern

Faculty Publications

How should we allocate property rights in unowned tangible and intangible resources? This Article develops a model of original acquisition that draws together common law doctrines of first possession with original acquisition doctrines in patent, copyright, and trademark law. The common denominator is time: in each context, doctrine involves a trade-off between assigning entitlements to resources earlier or later in the process of their development and use. Early awards risk granting exclusivity to parties who may not be capable of putting resources to their best use. Late awards prolong contests for ownership, which may generate waste or discourage acquisition efforts …

The Street View Of Property, Vanessa Casado-Pérez

Faculty Scholarship

Parking on public streets is scarce. The current allocation system for parking spots based on rule of capture coupled with low parking fees creates a tragedy of the commons scenario. The misallocation of parking has consequences for commerce, for access to public spaces, and for pollution and congestion. Municipalities have not widely adopted the solution that economists propose to solve this scarcity problem: increase the price. Politics aside, the reluctance of municipalities to do so may be explained by the unique nature of public property as reflected in well-rooted legal and societal constraints. This unique nature helps explain, for example, …

Constraints On The Breadth Of A Bankruptcy Trustee’S Power To Demand A Turnover Of Assets, Timothy Diprisco

Bankruptcy Research Library

(Excerpt)

Title 11 of the United States Code (the “Bankruptcy Code”) empowers bankruptcy trustees to compel entities to turn over property to the bankruptcy estate. Property subject to the turnover provision includes “all legal and equitable interests of the debtor in property at the commencement of the case.” Although the Bankruptcy Code is federal law, property interests are still defined by state law. Occasionally, bankruptcy trustees claim property as part of the estate that courts later deem is beyond the breadth of their authority.

This memorandum examines the extent of a bankruptcy trustee’s power to compel turnover of assets. Part …

Exploring The Scope Of The Property Requirement Of Section 109(A) In Chapter 11 And 15 Cases, Rasha El Mouatassim Bih

Bankruptcy Research Library

(Excerpt)

Section 109 of title 11 of the United States Code (the “Bankruptcy Code”) provides that “only a person that resides or has a domicile, a place of business, or property in the United States . . . may be a debtor.” In In re Barnet, the United States Court of Appeals for the Second Circuit held that debtor eligibility requirements of section 109 apply to a debtor in recognition proceedings under chapter 15. If a debtor does not have a domicile or place of business in the United States, as is often the case with foreign debtors, then …

Introduction: Property In Ecology, Jonathan Adler

Faculty Publications

The papers in this volume explore the further potential for property-based institutions to preserve environmental values and enhance environmental protection. Through case studies, empirical assessments, and consideration of the institutional constraints that may alternatively facilitate or hamper private conservation efforts, these papers deepen our understanding of the institutional context in which conservation occurs and the potential for property-based approaches to supplement, if not supplant, traditional government management of natural resources and environmental regulation. Together, they aim to enhance the conservation potential of property institutions by looking at how such institutions may be extended and defended so as to maximize property’s …

Clown Eggs, David Fagundes, Aaron K. Perzanowski

Faculty Publications

Since 1946, many clowns have recorded their makeup by having it painted on eggs that are kept in a central registry in Wookey Hole, England. This tradition, which continues today, has been referred to alternately as a form of informal copyright registration and a means of protecting clowns’ property in their personae. This Article explores the Clown Egg Register and its sur- rounding practices from the perspective of law and social norms. In so doing, it makes several contributions. First, it contributes another chapter to the growing literature on the norms-based governance of intellectual property, showing how clowns—like comedians, roller …

Privatizing The Reservation?, Kristen A. Carpenter, Angela R. Riley

Publications

The problems of American Indian poverty and reservation living conditions have inspired various explanations. One response advanced by some economists and commentators, which may be gaining traction within the Trump Administration, calls for the “privatization” of Indian lands. Proponents of this view contend that reservation poverty is rooted in the federal Indian trust arrangement, which preserves the tribal land base by limiting the marketability of lands within reservations. In order to maximize wealth on reservations, policymakers are advocating for measures that would promote the individuation and alienability of tribal lands, while diminishing federal and tribal oversight.

Taking a different view, …

Empowering The Poor: Turning De Facto Rights Into Collateralized Credit, Steven L. Schwarcz

Faculty Scholarship

The shrinking middle class and the widening gap between the rich and the poor constitute significant threats to social and financial stability. One of the main impediments to upward mobility is the inability of economically disadvantaged people to use their property — in which they sometimes hold only de facto, not de jure, rights — as collateral to obtain credit. This Article argues that commercial law should recognize those de facto rights, enabling the poor to borrow to start businesses or otherwise create wealth. Recognition not only would provide benefits that exceed its costs; it also would be consistent with, …

Fracking The Public Trust, Kevin J. Lynch

Sturm College of Law: Faculty Scholarship

Climate change presents an ever more urgent threat, and earlier in 2019, atmospheric carbon dioxide levels reached an all time high for recorded history. Current federal and state policies promoting fossil fuel extraction mean that future governments will have to look very seriously at leaving fossil fuels in the ground, if our society wants to have any hope of avoiding catastrophic climate change.

One of the biggest obstacles to leaving fossil fuels in the ground is the threat of massive takings liability for any government that dares to slow or prevent the extraction of fossil fuels. This has been particularly …

The Private Law Critique Of International Investment Law, Julian Arato

Articles

This Article argues that investment treaties subtly constrain how nations organize their internal systems of private law, including laws of property, contracts, corporations, and intellectual property. Problematically, the treaties do so on a one-size-fits-all basis, disregarding the wide variation in values reflected in these domestic legal institutions. Investor-state dispute settlement exacerbates this tension, further distorting national private law arrangements. This hidden aspect of the system produces inefficiency, unfairness, and distributional inequities that have eluded the regime's critics and apologists alike.

Cutting Pension Rights For Public Workers: Don't Look To The Courts For Help, Ronald H. Rosenberg

Faculty Publications

Every day we rely on public employees to provide us with a broad range of services necessary to daily life. These workers include public school teachers, fire and police, emergency medical technicians, park rangers, nurses just to name a few. As public employees, these people work for local and state government and they are compensated by us for their services through the taxes we pay. In general, these are modestly paid workers who also receive pensions when they retire after many years of work. Following the financial crisis of 2008-2009, government retirement trust funds significantly lost value and their long-term …

The False Promise Of Health Data Ownership, Jorge L. Contreras

Utah Law Faculty Scholarship

In recent years there have been increasing calls by patient advocates, health law scholars and would-be data intermediaries to recognize personal property interests in individual health information (IHI). While the propertization of IHI appeals to notions of individual autonomy, privacy and distributive justice, the implementation of a workable property system for IHI presents significant challenges. This essay addresses the issues surrounding the propertization of IHI from a property law perspective. It first observes that IHI does not fit recognized judicial criteria for recognition as personal property, as IHI defies convenient definition, is difficult to possess exclusively, and lacks justifications for …

Property And Equity In Trademark Law, Mark Mckenna

Journal Articles

This essay, delivered as the Nies Lecture at Marquette Law School, focuses on changes in the doctrinal structure of trademark law over the course of the last century — specifically with respect to the relationship between trademark law’s limits and the broader common law of unfair competition. Changes in that relationship, I will argue, meaningfully increased trademark law's emphasis on property — what the plaintiff owns — and deemphasized legal rules that focused on the defendant’s conduct.

Johnny Appleseed: Citizenship Transmission Laws And A White Heteropatriarchal Property Right In Philandering, Sexual Exploitation, And Rape (The Whp) Or Johnny And The Whp, Blanche Cook

Law Faculty Scholarly Articles

Title 8, United States Code, Section 1409-one of this country's

citizenship transmission laws-creates a white heteropatriarchal property right

in philandering, sexual exploitation, and rape (the "WHP"). Section 1409

governs the transmission of citizenship from United States citizens to their

children, where the child is born abroad, outside of marriage, and one parent is a

citizen and the other is not. Section 1409, however, draws a distinct gender

distinction between women and men: An unwed female American citizen who

births a child outside the United States, fathered by a foreign man, automatically

transmits citizenship to her child. An unwed male American …

Biobanks As Knowledge Institutions, Michael J. Madison

Book Chapters

This chapter describes biobanks as institutions for collection, preservation, curation, and production of knowledge and information, in both material and immaterial forms. That characterization calls for research and comparative analysis of the broad diversity of specific biobanks, using a standardized research framework. Such a framework is identified and described here, as the knowledge commons framework. The chapter describes applications of the framework to biobanks to date and suggests directions for future research.

Three Against Two: On The Difference Between Property And Contract And The Example Of Deposit Accounts In Bankruptcy, Jeanne L. Schroeder, David G. Carlson

Articles

In Citizen's Bank v. Strumpf (1995), Justice Scalia announced that deposit accounts are not "property". Five years later, the Uniform Commercial Code was amended to make deposit accounts collateral for the depositary bank maintaining the account, thereby crowding the field previously occupied by the common law right of setoff. Security interests attach to personal "property." Security interests attach to deposit accounts. Deposit accounts, by syllogistic logic, are property. Does this mean that the UCC has overruled the Supreme Court? We argue not. A deposit account is a mere contract in the two-person universe that contract law presupposes. A deposit account …

Law & Neighborhood Names, Nestor M. Davidson, Dave Fagundes

Faculty Scholarship

This Article provides a novel investigation of how law both enables and constrains the ability of city residents to claim, name, and often rename their neighborhoods. A rich interdisciplinary dialogue in areas such as geography and sociology has emerged on the significance of place names, but this literature has largely ignored the legal dimensions of the phenomenon, with its implications for urban governance, belonging, and community conflict. This Article’s empirical exploration of the role of law in change and conflict regarding neighborhood identity thus advances the discourse both for legal scholars focused on urban dynamics and across disciplines.

From gentrification …

The Architecture Of Property, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

Avoiding the reduction of property to a bundle or rights or to the working out of a single master principle, the architectural theory of property sees property as an integrated system or structure anchored in certain unifying principles. Because our world is neither chaotic nor additiviely simple, property law and institutions must achieve their plural ends in a fashion that manages the inherent complexity of the interaction of valued resource attributes and human actions. In managing complexity, some of the law’s structures receive functional explanations and justifications, which can be different from the explanations and justifications that apply to the …