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Articles 1 - 8 of 8

Full-Text Articles in Law

Property Rights And Liability Rules: The Ex Ante View Of The Cathedral, Lucian Arye Bebchuk Dec 2001

Property Rights And Liability Rules: The Ex Ante View Of The Cathedral, Lucian Arye Bebchuk

Michigan Law Review

This Article aims to contribute to the study of how the law should allocate and protect entitlements in the presence of externalities. In their classic article published thirty years ago, Calabresi and Melamed studied such questions and offered what they labeled "one view of the Cathedral." I seek to add to the inquiry started by Calabresi and Melamed by offering an ex ante perspective and analyzing how allocations of entitlements affect parties' ex ante actions and investments. Suppose that an upstream Factory would benefit from an activity that would pollute a river and harm an activity conducted by a downstream ...


Optimal Delegation And Decoupling In The Design Of Liability Rules, Ian M. Ayres, Paul M. Goldbart Oct 2001

Optimal Delegation And Decoupling In The Design Of Liability Rules, Ian M. Ayres, Paul M. Goldbart

Michigan Law Review

Calabresi and Melamed began a scholarly revolution by showing that legal entitlements have two readily distinguishable forms of protection: property rules and liability rules. These two archetypal forms protect an entitlement holder's interest in markedly different ways - via deterrence or compensation. Property rules protect entitlements by trying to deter others from taking. Liability rules, on the other hand, protect entitlements not by deterring but by trying to compensate the victim of nonconsensual takings. Accordingly, the compensatory impetus behind liability rules focuses on the takee's welfare - making sure the sanction is sufficient to compensate the takee. The deterrent impetus ...


Just And Unjust Compensation: The Future Of The Navigational Servitude In Condemnation Cases, Alan T. Ackerman, Noah Eliezer Yanich Jun 2001

Just And Unjust Compensation: The Future Of The Navigational Servitude In Condemnation Cases, Alan T. Ackerman, Noah Eliezer Yanich

University of Michigan Journal of Law Reform

In 1967, the U.S. Supreme Court, in United States v. Rands, expanded the navigational servitude doctrine governing the federal government's power over land adjoining a navigable waterway by severely qualifying the government's Fifth Amendment obligation to compensate the landowner. This Article addresses the issue in the following ways: Part I surveys Congress' power to regulate navigable waters under the Commerce Clause. Part II summarizes the development of the navigational servitude doctrine and some of its inhibitory effects on waterfront development, especially under Rands. It explains the fundamental unfairness of the Rands principle and demonstrates why this constitutional ...


Understanding Sprawl: Lessons From Architecture For Legal Scholars, Mark S. Davies May 2001

Understanding Sprawl: Lessons From Architecture For Legal Scholars, Mark S. Davies

Michigan Law Review

What is suburban "sprawl"? Why is it undesirable? Why do many Americans nevertheless choose to live in sprawl? Do local zoning laws contribute to sprawl? Can democratic institutions discourage it? Legal scholars are beginning to study these urgent and complex questions. This Essay reviews Suburban Nation: The Rise of Sprawl and the Decline of the American Dream, by Andres Duany, Elizabeth Plater-Zyberk, and Jeff Speck, leading architects of the influential New Urbanism or traditional town planning movement. This review makes five points about the legal study of sprawl. First, Suburban Nation provides a definition of "sprawl" that the law can ...


Rejection Versus Termination: A Sublessee's Rights In A Lease Rejected In A Bankruptcy Proceeding Under 11 U.S.C. § 365(D)(4), Vivek Sankaran Feb 2001

Rejection Versus Termination: A Sublessee's Rights In A Lease Rejected In A Bankruptcy Proceeding Under 11 U.S.C. § 365(D)(4), Vivek Sankaran

Michigan Law Review

When a party files for bankruptcy under chapter 11 of the United States Code, the court typically appoints a trustee to handle all of the party's financial obligations. The trustee's responsibilities include investigating the financial condition of the debtor, the operation of the business, the desirability of continuing the business, and any other matter relevant to the disposition of the bankrupt estate. If a bankrupt party holds a commercial lease, the trustee possesses two options for dealing with the lease. One option is to reject the lease, which ends the bankrupt party's obligation to adhere to the ...


The Dynamic Analytics Of Property Law, Michael A. Heller Jan 2001

The Dynamic Analytics Of Property Law, Michael A. Heller

Articles

The standard property trilogy of private, commons, and state has become so outdated that it now impedes imagination and innovation at the frontiers of ownership. This essay suggests two approaches - creating new ideal types and synthesizing existing ones - that may help update our static property metaphors. Using these dynamic approaches to property analytics, legal theory can move beyond polarizing oppositions that have made jurisprudential debates unsolvable and rendered concrete problems invisible.


The Liberal Commons, Hanoch Dagan, Michael A. Heller Jan 2001

The Liberal Commons, Hanoch Dagan, Michael A. Heller

Articles

Following the Civil War, black Americans began acquiring land in earnest; by 1920 almost one million black families owned farms. Since then, black rural landownership has dropped by more than 98% and continues in rapid decline-there are now fewer than 19,000 black-operated farms left in America. By contrast, white-operated farms dropped only by half, from about 5.5 million to 2.4 million. Commentators have offered as partial explanations the consolidation of inefficient small farms and intense racial discrimination in farm lending. However, even absent these factors, the unintended effects of old-fashioned American property law might have led to ...


A Property Theory Perspective On Russian Enterprise Reform, Michael Heller Jan 2001

A Property Theory Perspective On Russian Enterprise Reform, Michael Heller

Book Chapters

Why have Russian enterprises performed so poorly since privatization? This is a problem with many answers, each independently sufficient: the bleak mix includes vacillating macroeconomic policy, endemic corruption, a corrosive tax structure, poor human capital, and so forth. Even well-performing companies must hide good results because visible profits or dividends provoke confiscatory taxation and mafia visits. In such a difficult environment, the rule of law generally, and corporate governance in particular, may seem not to count. Macroeconomic implosions dwarf subtle distinctions in corporate dividend rules or minority voting rights.