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Articles 1 - 30 of 47
Full-Text Articles in Law
Teaching Property - A Conceptual Approach, Dale A. Whitman
Teaching Property - A Conceptual Approach, Dale A. Whitman
Missouri Law Review
The property course has shrunk. This fact is well-documented, and is obvious to anyone who has taught the course over any appreciable length of time. For many decades, Property received six credits in most law schools - typically three in the Fall and three in the Winter semester of the first year. Now, few schools give the course more than four or five credits, and some have cut it to three. The change seems to have occurred mainly over the last two decades. While it is doubtful that many Property teachers would have chosen this reduction, it is now an …
Boundaries Of Exclusion, Geogrette Chapman Phillips
Boundaries Of Exclusion, Geogrette Chapman Phillips
Missouri Law Review
This article is a story about boundaries and exclusion and about how - or whether - there is a community based right to exclude nonresidents. The right of the individual to own property, to defend that property and to exclude others from entering that property are sticks in the bundle of rights enshrined in US property law. The limitations on that exclusion are determined by the creation of a legally defined property line that bounds these rights. That part of our story is relatively straightforward. However, we do not live our lives in isolation. We surround ourselves with a chosen …
Real Estate Practice In The Twenty-First Century, Ann M. Burkhart
Real Estate Practice In The Twenty-First Century, Ann M. Burkhart
Missouri Law Review
The next century will bring profound changes in real estate law and in the ways that it is practiced. This prediction may seem rather unremarkable for any area of law or for almost any other area of human endeavor. But the changes in real estate law will be exceptional because of their relative rapidity and comprehensiveness. Real estate law, perhaps more than any other area, has changed very slowly since the beginning of the common law legal system. The mortgage, which will be the engine for this century's developments, is a particularly striking example of this slow rate of evolution.' …
Report On The Resolution Of Outstanding Property Claims Between Cuba & The United States, Michael J. Kelly, Patrick J. Borchers, Erika Moreno, Richard C. Witmer, James S. Wunsch, Arthur B. Pearlstein
Report On The Resolution Of Outstanding Property Claims Between Cuba & The United States, Michael J. Kelly, Patrick J. Borchers, Erika Moreno, Richard C. Witmer, James S. Wunsch, Arthur B. Pearlstein
Michael J. Kelly
This commissioned report to USAID outlines two models for resolution of property claims between Cuba and the United States: (1) a bilateral tribunal that will apply international law for the claims of those who were U.S. nationals at the time of the taking, and (2) a special claims court within the Cuban judiciary that will apply Cuban law based on the Spanish Civil Code for the claims of those who were Cuban nationals at the time of the taking. The report includes a complete audit of FCSC files for American claimants, an extensive review of the property claims systems employed …
Overcoming Another Tragedy In New Orleans: Rebuilding In The Wake Of "Kelo" And Act No. 851, William C. Spaht
Overcoming Another Tragedy In New Orleans: Rebuilding In The Wake Of "Kelo" And Act No. 851, William C. Spaht
Vanderbilt Law Review
During Hurricanes Katrina and Rita, thousands of Gulf Coast residents lost their homes, their possessions, their savings, and some, their lives. Those states hit hardest by the hurricanes have struggled to recover. In places like New Orleans, where hundreds of thousands of residents evacuated and may never return, uncertainty regarding the future of private property has become a fact of life. As the excerpt from Senator McPherson's letter indicates, arguably the single most critical question facing local and state governments trying to rebuild the devastated coast is how to encourage use of abandoned properties to spark the economy.
Michael A. …
Mortgage Law In China: Comparing Theory And Practice, Gregory M. Stein
Mortgage Law In China: Comparing Theory And Practice, Gregory M. Stein
Scholarly Works
The first Chinese law focusing specifically on property rights became effective on October 1, 2007, which means that China's breakneck real estate development before that date occurred in a nation with no published law of real estate. Thus those who have been buying, selling, and lending against Chinese real estate have been operating in a world of significant legal uncertainty. Even with the new code, property law as it is practiced is likely to diverge significantly from the published rules.
This Article examines Chinese mortgage law as it actually operates in the field, focusing on both legal and business issues. …
Background Principles And The Rule Of Law: Fifteen Years After Lucas, James L. Huffman
Background Principles And The Rule Of Law: Fifteen Years After Lucas, James L. Huffman
James L. Huffman
Abstract
The Supreme Court’s 1992 decision in Lucas v. South Carolina Coastal Council was welcomed by property right advocates. Justice Scalia’s opinion for the Court established a categorical taking where all economic value is lost as a result of regulation. Not surprisingly, advocates of unconstrained environmental and land use regulation were dismayed, although many were quick to suggest (hopefully) that Lucas’s impacts would be minimal since most regulations do not destroy all economic value.
Fifteen years later some who saw only dark clouds on the regulatory horizon as a consequence of Lucas now see a rainbow with a pot of …
The Benchmark Of Expectations: Regulatory Takings And Surface Coal Mining, Darren Botello-Samson
The Benchmark Of Expectations: Regulatory Takings And Surface Coal Mining, Darren Botello-Samson
Darren Botello-Samson
In 2006, the United States Court of Federal Claims issued a decision in BENCHMARK RESOURCES CORPORATION v. UNITED STATES, a case involving a regulatory takings challenge to enforcement of the Surface Mining Control and Reclamation Act (SMCRA), a federal law regulating the environmental effects of surface coal mining. Such cases are not rare, as the Claims Court has visited this question on a number of occasions. The ruling in BENCHMARK did not depart from the federal judiciary's doctrine on SMCRA takings cases. The ruling is worth noting, however, for the ways in which it highlights the key aspects of a …
The Cultural Property Claim Within The Same Sex Marriage Controversy, Marc R. Poirier
The Cultural Property Claim Within The Same Sex Marriage Controversy, Marc R. Poirier
Marc R. Poirier
The Cultural Property Claim within the Same Sex Marriage Controversy.
Marc R. Poirier, Seton Hall University School of Law
This article argues that traditionalist opposition to same sex marriage can be understood as a cultural property claim -- the sort of claim that is often made by Native American tribes and other subordinated cultural groups of a right to control the uses of sacred or culturally central rituals, places and objects. Ultimately, it disagrees with the traditionalist position, and argues that traditionalists should not be allowed to maintain a property-like right to exclude same sex couples from marriage. Nevertheless, the …
Land Use Regulation: The Weak Link In Environmental Protection, A. Dan Tarlock
Land Use Regulation: The Weak Link In Environmental Protection, A. Dan Tarlock
All Faculty Scholarship
Professor William Rodgers is one of the handful of legal academics who have shaped and influenced environmental law since it was created out of whole cloth in the late 1960s. The staggering quantity, quality, breadth, and creativity of his scholarship are perhaps unrivaled among his peers. It is easy to criticize the gap between the environmental problems that society faces and the inadequate legal tools and institutions that we have created to confront them. Professor Rodgers has always been able to see both the deep flaws in environmental law and the possibilities for more responsive legal regimes.
Liberty's Equal?: An Essay On Property's Rhetoric, Steven Semeraro
Liberty's Equal?: An Essay On Property's Rhetoric, Steven Semeraro
Steven Semeraro
Legal analysis of the compensation problem in Takings law has shifted its focus from the welfare economics and traditional philosophy to a more or less self-conscious linguistic investigation of the rhetorical devices used to convey the concept of property through language. Insight comes from understanding the signs and categories that our society uses to communicate about and understand property, rather than from a comprehensive view of what is best for society. This essay focuses on a partially concealed rhetorical device that has been repeatedly used by courts to justify the appropriateness of compensating individuals whose property loses some value as …
Property, Persona, And Publicity, Deven R. Desai
Property, Persona, And Publicity, Deven R. Desai
Deven R. Desai
This article focuses on two interconnected problems posed by the growth of online creation. First, unlike analog creations, important digital creations such as emails are mediated and controlled by second parties. Thus although these creations are core intellectual property, they are not treated as such and service providers terminate or deny access to people’s property all the time. In addition, when one dies, some service providers refuse to grant heirs access to this property. The uneven and unclear management of these creations means that historians and society in general will lose access to perhaps the greatest chronicling of human experience …
The Frontier Of Eminent Domain, Alexandra B. Klass
The Frontier Of Eminent Domain, Alexandra B. Klass
Alexandra B. Klass
The Supreme Court’s 2005 decision in Kelo v. City of New London brought the issues of takings and public use into the national spotlight. A groundswell of opposition to government-initiated “economic development takings” the Court deemed a public use under the Fifth Amendment led to eminent domain reform legislation in over 30 states. Many people are surprised to learn, however, that another type of economic development taking is alive and well in many western states that are rich in natural resources. In those states, oil, gas, and mining companies have the power of eminent domain under state constitutions or state …
Walking The Beach To The Core Of Sovereignty: The Historic Basis For The Public Trust Doctrine Applied In Glass V. Goeckel, Robert Haskell Abrams
Walking The Beach To The Core Of Sovereignty: The Historic Basis For The Public Trust Doctrine Applied In Glass V. Goeckel, Robert Haskell Abrams
University of Michigan Journal of Law Reform
In 2004, a split panel of the Michigan Court of Appeals announced its conclusion that Michigan littoral owners of property owned to the water's very edge and could exclude members of the public from walking on the beach. In that instant almost 3300 miles of the Great Lakes foreshore became, in theory and in law, closed to public use. The case became the leading flash point of controversy between the vast public and ardent private property rights groups. A little more than one year later, the Michigan Supreme Court reversed that ruling as errant on public trust grounds and returned …
Streedhana And Mehr, Krishna Kumari Areti
Streedhana And Mehr, Krishna Kumari Areti
Krishna Kumari Areti prof
Streedhana is the exclusive property of woman under Hindu Law. Mehr, which is also known as Dower, is also the exclusive property of woman under Islamic Law. But, both are very different and at the same time not different as both reflect the position of women in Indian society. Both are in monetary form and given at the time of or during the time of marriage or in connection with the marriage.
Historical Evolution And Future Of Natural Resources Law And Policy: The Beginning Of An Argument And Some Modest Predictions, Sally K. Fairfax, Helen Ingram, Leigh Raymond
Historical Evolution And Future Of Natural Resources Law And Policy: The Beginning Of An Argument And Some Modest Predictions, Sally K. Fairfax, Helen Ingram, Leigh Raymond
The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)
8 pages.
Includes bibliographical references
"Sally Fairfax, UC-Berkeley, Helen Ingram, UC-Irvine, and Leigh Raymond, Purdue University" -- Agenda
El Estado Moderno Y La Sociedad De Intercambio En La Obra De Thomas Hobbes, Alejandro Pérez Y Soto Dominguez
El Estado Moderno Y La Sociedad De Intercambio En La Obra De Thomas Hobbes, Alejandro Pérez Y Soto Dominguez
Alejandro Pérez y Soto Dominguez
No abstract provided.
Use Of Motive Evidence In Judicial Review Of Rezonings, Michael Allen Dymersky, Jesse Richardson
Use Of Motive Evidence In Judicial Review Of Rezonings, Michael Allen Dymersky, Jesse Richardson
Law Faculty Scholarship
In this Article, Michael Allen Dymersky and Jesse J Richardson Jr examine the widespread rule of judicial review that a court should not consider evidence of motive in reviewing legislative actions by local government. They evaluate the rule in the context of a rezoning case in Highland County, Virginia, in which a group of plaintiffs conclusively established that improper motive prompted one supervisor to vote in favor of rezoning the subject property. The Highland County Circuit Court invoked the rule against judicial review of motive evidence to foreclose any consideration of the admitted improper personal motives that had inspired that …
Property Outlaws, Eduardo M. Peñalver, Sonia K. Katyal
Property Outlaws, Eduardo M. Peñalver, Sonia K. Katyal
Cornell Law Faculty Publications
Most people do not hold those who intentionally flout property laws in particularly high regard. The overridingly negative view of the property lawbreaker as a wrong-doer comports with the nearly sacrosanct status of property rights within our characteristically individualist, capitalist, political culture. This dim view of property lawbreakers is also shared to a large degree by property theorists, many of whom regard property rights as a fixed constellation of allocative entitlements that collectively produce stability and order through ownership. In this Article, we seek to rehabilitate, at least to a degree, the maligned character of the intentional property lawbreaker, and …
Introductory Remarks: Property Law, James G. Dwyer
Introductory Remarks: Property Law, James G. Dwyer
William & Mary Law Review
No abstract provided.
A.R.Buck, The Making Ofaustralian Property Law, Margaret Mccallum
A.R.Buck, The Making Ofaustralian Property Law, Margaret Mccallum
Dalhousie Law Journal
Students in first year law in English-speaking common law schools in Canada follow a fairly standard curficulum, heavily weighted in favour of private law subjects such as torts, contracts and property, with criminal law, constitutional law, and perhaps a methods, theories or skills course rounding out their required courses. Most students find the content to be as they expected in courses in torts, contracts, criminal and constitutional law. These areas of law, after all, provide the law-related stories that are an increasing part ofnational and even international news. But many students find first year property a puzzle. They expect the …
A Warning To States — Accepting This Invitation May Be Hazardous To Your Health (Safety, And Public Welfare): An Analysis Of Post-Kelo, Joshua Ulan Galperin
A Warning To States — Accepting This Invitation May Be Hazardous To Your Health (Safety, And Public Welfare): An Analysis Of Post-Kelo, Joshua Ulan Galperin
Elisabeth Haub School of Law Faculty Publications
Focusing on Delaware, this article will argue that the United States Supreme Court's decision in Kelo v. New London gave state legislatures an open invitation to shape their public use frameworks, but their responses must be measured and well-reasoned because the consequences of reactionary legislation may put a stranglehold on state and local governments trying to exercise eminent domain for unanimously accepted public uses. Part I will trace the most pertinent federal jurisprudence through Kelo. Part II will survey Delaware’s public use jurisprudence. Part III will introduce the Delaware General Assembly’s legislative response to Kelo. Part IV will serve as …
Property And Radically Changed Circumstances, John Lovett
Property And Radically Changed Circumstances, John Lovett
John Lovett
Although Hurricane Katrina altered our national dialogue about many issues, few scholars have addressed whether the storm changed thinking about fundamental property relationships. This article fills that void in two ways. First, it creates a theoretical framework for understanding property law in the context of events producing radically changed circumstances. It does this by defining these events, exploring the mismatch between property law’s traditional focus on stability and environments of radical change, creating a taxonomy of property relationships tailored for this exploration, describing typical problems confronted after an event of radical change, and finally developing a set of normative criteria …
Real World Toys And Currency Turn The Legal World Upside Down: A Cross-Sectional Update On Virtual World Legalities, Ian W. Gillies
Real World Toys And Currency Turn The Legal World Upside Down: A Cross-Sectional Update On Virtual World Legalities, Ian W. Gillies
Ian W. Gillies
With 40 million members on the leading virtual world and overall user growth at 22%, some experts are saying virtual worlds are to the new millennium what websites were to the 90s. Just as the technological and economic growth of the internet drove numerous moral and legal issues to the forefront of society, so also will virtual world growth expand the overlapping moral and legal boundaries between virtual and real world experience. This paper provides a technology and market overview of virtual worlds and explores the intersection of some social and legal issues arising from the financial opportunity and virtual …
The Takings Clause, Version 2005: The Legal Process Of Constitutional Property Rights, Mark Fenster
The Takings Clause, Version 2005: The Legal Process Of Constitutional Property Rights, Mark Fenster
UF Law Faculty Publications
The search for coherence in takings jurisprudence has resulted in a multitude of theories but no consensus. Each theory -- whether based on conceptions of common law property rights or constitutional conceptions of justice, or based on utility, natural law, or communitarian or republican conceptions of the good --offers significant insight into the vexing legal, political, and normative issues that judicial enforcement of the Takings Clause raises. But no single theory of property or of constitutional limits on state regulation and expropriation has proven capable either of satisfactorily rationalizing existing takings law or of persuading the courts or the theory's …
Restitution As A Remedy For Refugee Property Claims In The Israeli-Palestinian Conflict, Michael Kagan
Restitution As A Remedy For Refugee Property Claims In The Israeli-Palestinian Conflict, Michael Kagan
Scholarly Works
This Article examines restitution as an autonomous human right for refugees displaced in the Israeli-Palestinian conflict, and assesses the implications of taking such a rights-based approach. The author concludes that the refugees have a strong legal claim to restitution. In international law, compensation is relevant only when restitution is materially impossible, where property has been damaged or declined in value so that restitution is not a complete remedy for the victim's loss or where a refugee chooses not to seek restitution. Current empirical research about land usage in Israel indicates that a great deal, and possibly the majority, of lost …
The Devil In The Details: On Intelligent Design, Racial Conspiracy Theories, And The Theology Of Whiteness, Brant T. Lee
The Devil In The Details: On Intelligent Design, Racial Conspiracy Theories, And The Theology Of Whiteness, Brant T. Lee
Akron Law Faculty Publications
It is a central problem in the great American conversation about race to explain persistent racial inequality. The dominant narrative tells us that, historically, racial inequality was caused directly and simply, by explicit and intentional racial discrimination based on unreasoning race hatred. The paradigmatic examples are slavery and segregation; the icon is Bull Connor. Together, the Civil War and the civil rights movement comprise America's delivery from this original sin. In law, this redemption is reflected in the Emancipation Proclamation and in the fulfillment of the Civil War-era constitutional amendments [FN6] through Brown v. Board of Education and the antidiscrimination …
Why Mortgagors Can't Get No Satisfaction, R. Wilson Freyermuth
Why Mortgagors Can't Get No Satisfaction, R. Wilson Freyermuth
Faculty Publications
This article addresses current law governing mortgage satisfaction, the need for effective reform, and the extent to which URMSA provides (or fails to provide) that reform.
Enacting Libertarian Property: Oregon's Measure 37 And Its Implications, Michael Blumm
Enacting Libertarian Property: Oregon's Measure 37 And Its Implications, Michael Blumm
Michael Blumm
In November 2004, for the second time in four years, Oregon voters opted for a radical initiative that is transforming development rights in the state. The full implications of this substantial change in property rights have yet to be fully realized, but it’s clear that the post-2004 land use world in Oregon will be dramatically different than the previous thirty years.
Land development rights in the state were significantly curtailed by a landmark law the Oregon legislature, encouraged by pioneering Governor Tom McCall, enacted in 1973. Implementation of that law survived three separate initiatives that sought to rescind it in …
American Cities, Urban Planning, And Place Based Crime Prevention, Edward H. Ziegler
American Cities, Urban Planning, And Place Based Crime Prevention, Edward H. Ziegler
Edward H Ziegler
This article discusses the regulatory techniques of place based crime prevention in the context of implementing zoning and planning laws in the United States. The article examines the specific planning and regulatory techniques that can be utilized in the urban planning process to incorporate public standards and guidelines related to crime prevention into the design and site plans of new development projects. The article provides a survey of regulatory techniques and a brief overview of a number of studies of place based crime prevention programs.