Law Commons^™

Property Vs. Political Holdouts. The Case Of The Tgv Rail Line Lyon-Budapest In Italy, Livia C. Navone

Livia C. Navone

While the law and economics literature commonly justifies the takings power on the ground that it is necessary to overcome holdouts and, thus, allow efficient development projects to move forward, this paper shows that the standard theory is highly incomplete. It conveniently ignores the ability of politically powerful groups to block development projects by exercising their de facto veto power over proposed projects. Such groups do not necessarily have rights in any properties directly affected by the project. Consequently, once these groups, which I label “political holdouts,” are added to the analysis, it becomes clear that the payment of just …

Property As/And Constitutional Settlement, Timothy Zick

Popular Media

No abstract provided.

Taxation, Craig D. Bell

University of Richmond Law Review

No abstract provided.

Things Fall Apart: The Illegitimacy Of Property Rights In The Context Of Past Theft, Bernadette Atuahene

All Faculty Scholarship

In many states, past property theft is a volatile political issue that threatens to destabilize nascent democracies. How does a state avoid instability when past property theft causes a significant number of people to believe that the property distribution is illegitimate? To explore this question, I first define legitimacy relying on an empirical understanding of the concept. Second, I establish the relationship between inequality, illegitimate property distribution, and instability. Third, I describe the three ways a state can achieve stability when faced with an illegitimate property distribution: by using its coercive powers, by attempting to change people’s beliefs about the …

Imperfect Property Rights, James Bessen

Faculty Scholarship

In theory, property rights allow markets to achieve Pareto optimal allocations. But the literature on contracting largely ignores what happens when property rights are imperfectly defined and enforced. Although some models include weak enforcement or poorly defined rights or "anticommons," this paper develops a general model that includes all of these possibilities. I find that combinations matter: Policy prescriptions to remedy individual imperfections are sometimes inappropriate under other conditions. For example, stronger penalties for violating rights can decrease Pareto efficiency, contrary to a common view. Also, collective rights organizations, such as patent pools, sometimes worsen problems of overlapping claims.

Regulatory Takings: A Chronicle Of The Construction Of A Constitutional Concept, Garrett Power

Garrett Power

In the American constitutional system the sovereign has the power to enact “regulations which are necessary to the common good and general welfare.” But the Fifth Amendment to the United States Constitution proscribes that : “No person shall be . . . deprived of . . . property, without due process of law; nor shall private property be taken for public use, without just compensation.” And the question of whether a sovereign regulation has “taken” private property without just compensation has puzzled the United States Supreme Court for over two hundred years in over four hundred cases. This paper chronicles …

Real Property, Mortgages, And The Economy: A Call For Ethics And Reforms, Shelby D. Green

Pace Law Review

No abstract provided.

Smoke And Mirrors: Predatory Lending And The Subprime Mortgage Loan Securitization Pyramid Scheme, Navid Vazire

Pace Law Review

No abstract provided.

Mortgage Market Reform And The Fallacy Of Self-Correcting Markets, Robin Paul Malloy

Pace Law Review

No abstract provided.

Unsafe Loans In A Deregulated U.S. Mortgage Market, Vincent Di Lorenzo

Pace Law Review

No abstract provided.

Can't Live Without Air: Title Insurance And The Bursting Of The Real Estate Bubble, Marvin N. Bagwell

Pace Law Review

No abstract provided.

A Glance At The Impact Of The Subprime Mortgage Crisis On The Title Insurance Industry, Suzanne M. Garcia

Pace Law Review

No abstract provided.

State Subprime Lending Litigation And Federal Preemption: Toward A National Standard, Alan H. Scheiner

Pace Law Review

No abstract provided.

The Importance Of Deceptive Practice Enforcement In Financial Institution Regulation, Prentiss Cox

Pace Law Review

No abstract provided.

A Superfund Solution For An Economic Love Canal, Mehmet K. Konar-Steenberg

Pace Law Review

No abstract provided.

Bad Faith In Cyberspace: Grounding Domain Name Theory In Trademark, Property, And Restitution, Jacqueline Lipton

Jacqueline D Lipton

The year 2009 marks the tenth anniversary of domain name regulation under the Anti-Cybersquatting Consumer Protection Act (ACPA) and the Uniform Domain Name Dispute Resolution Policy (UDRP). Adopted to combat cybersquatting, these rules left a confused picture of domain name theory in their wake. Early cybersquatters registered Internet domain names corresponding with other’s trademarks to sell them for a profit. However, this practice was quickly and easily contained. New practices arose in domain name markets, not initially contemplated by the drafters of the ACPA and the UDRP. One example is clickfarming – using domain names to generate revenues from click-on …

State Constitutional Limits On New Hampshire's Taxing Power: Historical Development And Modern State, Marcus Hurn

The University of New Hampshire Law Review

[Excerpt] "The New Hampshire Constitution is, in most of its fundamental parts, very old. It is long (nearly 200 articles) and wordy, even by the standards of the eighteenth century. It expresses essential principles in more than one place, in more than one way, and in language that to modern eyes is more suited to political philosophy than to positive law. Most of it was copied from the original Massachusetts Constitution, itself based on a draft by John Adams. However, there is no other state in the union with a structure of taxing powers and limits comparable to New Hampshire‘s."

Fiber Optic Foxes: Virtual Objects And Virtual Worlds Through The Lens Of Pierson V. Post And The Law Of Capture, John W. Nelson

John W. Nelson

Virtual worlds are more successfully blurring the lines between real and virtual. This tempts many to try and equate virtual property with tangible property. Such an equation creates problems when the common law of property is applied to virtual objects over which users can not possess complete dominion and control. The result is a conversion of the tangible resources that support virtual worlds into a virtual commons. Accordingly, the common law of contracts, rather than that of property, should be used to govern transactions between a user and owner of a virtual world.

Evaluating The Economic Performance Of Property Systems, James Bessen

Faculty Scholarship

How should the economic performance of property systems be evaluated? Benefit-cost analysis is widely used to evaluate non-market based regulation when prices are not available. Market prices provide better information for property systems, but market prices are not necessarily socially optimal when property rights are imperfect. This paper discusses two practical approaches to evaluating the performance of property systems, one based on an analysis of institutional performance, the other based on measuring incentives. As an illustration, I show how these approaches might be used to evaluate the US patent system.

Debunking Blackstonian Copyright, Shyamkrishna Balganesh

All Faculty Scholarship

This is a review of Neil Weinstock Netanel’s Copyright’s Paradox (2008).

Trust Law And The Title-Split: A Beneficial Perspective, Kent D. Schenkel

Kent D Schenkel

Recent functional analyses of the trust tend to emphasize its effect on the parties to the trust deal and give less attention to the nature of the beneficiary’s interest, especially in relation to persons outside the trust transaction. In contrast, this article takes a critical approach to the trust from the primary perspective of the benefits it provides to beneficiaries. From this perspective, it finds that while the trust maintains the flexibility of a contract it also restricts legal interests of third parties who are strangers to the trust bargain; a feat that contracts are unable to accomplish. Third parties …

Virtual Property, Real Concerns, Nelson S. Dacunha

Nelson S DaCunha

The status of digital property protection, especially in virtual worlds, is uncertain to say the least. Several theories have been postulated supporting the case for property rights for players of virtual worlds. Game designers have likewise provided support for maintaining full rights to all aspects of their games. North American society outside of the gaming world, and the legal establishment have written off virtual world property as either child’s play, a passing fad, or too complex to regulate effectively. Virtual worlds, however, have a large economic foothold and deal with large amounts of real money. These virtual worlds will likely …

Public Communities, Private Rules, Hannah Wiseman

Hannah Wiseman

As the American population grows, communities are seeking creative property tools to control individual land uses and create defined community aesthetics. In the past, private covenants were the sole mechanism to address this sort of need. Public communities, however, have begun to implement covenant-type or “private” rules, through zoning overlays, which place unusually detailed restrictions on individual property uses and, in so doing, creating new forms of “rule-bound” communities. While these communities are important, as they respond to consumers’ demand for a community aesthetic, this article will also highlight their unique problems. Many community consumers are marginally familiar with private …

Litigating Second Life Land Disputes: A Consumer Protection Approach. , Paul Riley

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Perils Of Popularity: David Josiah Brewer And The Politics Of Judicial Reputation, J. Gordon Hylton

Vanderbilt Law Review

David Brewer is hardly a household name in the contemporary legal academy. Most American professors of constitutional law would have a hard time placing his nearly twenty-one years of service on the U.S. Supreme Court, though most would be savvy enough to guess "Lochner era." He is probably the least well-known of all the Justices whose careers are examined in this Symposium. (Brewer's longtime colleague Rufus Peckham is probably his chief contender for this title.) For the record, Brewer sat on the Supreme Court from January of 1890 until his death in March of 1910.

In his own era, Brewer …

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 …

The Meaning And Nature Of Property: Homeownership And Shared Equity In The Context Of Poverty, Michael Diamond

Saint Louis University Public Law Review

No abstract provided.

Selling The Government Property Beneath A Religious Monument That Violates The Establishment Clause: Constitutional Remedy Or Infringement?, Jonathan R. Slabaugh

Saint Louis University Public Law Review

No abstract provided.

Traditional Knowledge: Are We Closer To The Answer(S)? The Potential Role Of Geographical Indictions, Daniel Gervais

ILSA Journal of International & Comparative Law

The debate concerning the protection of, and access to, "traditional knowledge ' 2 has been going on for some time.

Real Estate Development In Cuba: Present And Future, Antonio R. Zamora

ILSA Journal of International & Comparative Law

During the last twenty years, the Cuban government has faced two very significant challenges that have seriously threatened its survival.