Law Commons^™

The Commons, Capitalism, And The Constitution, George Skouras

George Skouras

Thesis Summary: the erosion of the Commons in the United States has contributed to the deterioration of community and uprooting of people in order to meet the dynamic demands of capitalism. This article suggests countervailing measures to help remedy the situation.

Should The Commercial Landlord Have A Duty To Mitigate Damages After The Tenant Abandons?: A Legal And Economic Analysis, David Crump

David Crump

When a commercial tenant abandons the premises, the landlord’s costs continue. Does the landlord, then, have the burden of mitigating damages for a suit against the tenant? Two different rules apply in different states. Some states, including Pennsylvania, put the burden of mitigation on the breaching party: the commercial tenant. Other states, however, put the burden entirely on the non-breaching party: the landlord. Texas follows this latter approach, placing the burden solely on the innocent party and not on the breaching party. The Texas rule, which puts the burden of mitigation on the non-breaching commercial landlord, has serious disadvantages. First, …

The (Somewhat) False Hope Of Comprehensive Planning, Michael Lewyn

Michael E Lewyn

Comprehensive planning at the municipal level, although useful in a variety of ways, is neither necessary nor sufficient to promote "smart" (that is, pedestrian and transit-oriented) growth. Comprehensive plans can be used to support sprawl as easily as to support smart growth, while smart growth may be promoted effectively through zoning reform or statewide legislation as well as through local planning.

Corporate “Soul”: Legal Incorporation Of Catholic Ecclesiastical Property In The United States - A Historical Perspective, Vicenç Feliú

Vicenç Feliú

This work is a revision and update of a study carried out in 1933 by Monsignor Patrick J. Dignan. Dignan’s purpose in his study was to outline the history of how the Roman Catholic Church secured laws for the protection of church property in accordance with the hierarchical nature of the Church. The purpose of the present article is to bring up to date Dignan’s work and complete a survey of the law in its present state. The article analyzes the differences in the law since the original survey to determine if Dignan’s conclusion that the Church should operate to …

Goliath Versus Goliath In High-Stakes Mbs Litigation, David J. Reiss, Bradley T. Borden

David J Reiss

The loan-origination and mortgage-securitization practices between 2000 and 2007 created the housing and mortgage-backed securities bubble that precipitated the 2008 economic crisis and ensuing recession. The mess that the loan-origination and mortgage-securitization practices caused is now playing out in courts around the world. MBS investors are suing banks, MBS sponsors and underwriters for misrepresenting the quality of loans purportedly held in MBS pools and failing to properly transfer loan documents and mortgages to the pools, as required by the MBS pooling and servicing agreements. State and federal prosecutors have also filed claims against banks, underwriters and sponsors for the roles …

Local Governments As Modern Day Robin Hoods: Solving The Mortgage Crisis With Eminent Domain, Yasmany Barroso

Yasmany Barroso

Abstract

This article addresses one of the most critical, ongoing issues of the twenty-first century, the current mortgage crisis. This crisis is one of the worst disasters in American history, leaving hundreds of thousands homeless. In response, the federal government has legislated fiercely, hoping to help struggling homeowners. However, many programs have failed to fix this problem.

This article flexes scholarly knowledge of the fifth amendment’s taking clause in proposing municipalities buy foreclosed homes to sell back to initial and prospective homeowners. The proposal is firmly rooted in reality, however, solving financing issues by further proposing that homeowners seek financing …

The Three Waves Of Married Women’S Property Acts In The Nineteenth Century With A Focus On Mississippi, New York And Oregon, Joe Custer

Joe Custer

Paper starts with a brief section on early America and social reform that provides a background on why married women's property acts (MWPA's) passed when they did in nineteenth century America. After laying the foundation, the paper delves into the three waves in which the MWPA's were passed in the nineteenth century focusing for the first time in the literature on one specific state for each wave. The three states; Mississippi, New York and Oregon, are examined leading up to passage. Next, the paper will look into the judicial reaction of each State’s highest court. Were the courts supportive of …

Evaluating Oral Histories: The Evidentiary Standard In Cases Involving The Repatriation Of Pre-Historic Human Remains, Sylvia St. Clair

Sylvia B. St. Clair

Ms. St. Clair explores the use of oral histories to prove cultural affiliation and examines how the laws of evidence must be adapted in order to accommodate this type of evidence. In cases involving the repatriation of Native American human remains, proving cultural affiliation becomes especially problematic when traditional evidence is scarce and tribal claimants rely on oral histories to prove affiliation. This type of evidence is subject to heavy skepticism, consistently challenged by science and technological advances, and examination of the court’s treatment of cases over the last decade has left confusion on the applicable standard. In face of …

Show Me The Note Q&A, David J. Reiss, Bradley T. Borden

David J Reiss

This is a Q&A relating to an article, Show Me The Note, available at http://works.bepress.com/david_reiss/63/.

"Show Me The Note" refers to a defense that seeks to forestall or prevent foreclosure by requiring the foreclosing party to produce the mortgage and the associated promissory note as proof of its right to initiate foreclosure.

Should The Mortgage Follow The Note?, John Hunt

John P Hunt

The law of mortgage assignment has taken center stage amidst foreclosure crisis, robosigning scandal, and controversy over the Mortgage Electronic Registration System. Yet a concept crucially important to mortgage assignment law, the idea that “the mortgage follows the note,” apparently has never been subjected to a critical analysis in a law review.

This Article makes two claims about that proposition, one positive and one normative. The positive claim is that it has been much less clear than typically assumed that the mortgage follows the note, in the sense that note transfer formalities trump mortgage transfer formalities. “The mortgage follows the …

Antimonopoly And The Radical Lochean Origins Of Western Water Law, Michael Blumm

Michael Blumm

This review of David Schorr's book, The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier, maintains that the book is a therapeutic corrective to the standard history of the origins of western water law as celebration of economic efficiency and wealth maximization. Schorr's account convincingly contends that the roots of prior appropriation water law--the "Colorado Doctrine"--lie in distributional justice concerns, not in the supposed efficiency advantages of private property over common property. The goals of the founders of the Colorado doctrine, according to Schorr, were to advance Radical Lochean principles such as widespread distibution of water …

How Comprehensive Planning Makes Suburbia More Sprawling, Michael Lewyn

Michael E Lewyn

Many commentators associate comprehensive land use planning with smart growth- but in fact, municipal plans can be used to further sprawl as well as smart growth.

Judicial Deference And Institutional Character: Homeowners Associations And The Puzzle Of Private Governance, Michael C. Pollack

Michael C. Pollack

Much of the study of judicial review of governing institutions focuses on the institutions of public government at the federal, state, and local levels. But the courts’ relationship with private government is in critical need of similar examination, and of a coherent framework within which to conduct it. This Article uses the lens of homeowners associations—a particularly ubiquitous form of private government—to construct and employ such a framework. Specifically, this Article proceeds from the notion that judicial deference is less appropriate the more unaccountable a governing institution is. It therefore develops a set of tests for institutional accountability and applies …

Show Me The Note!, William K. Akina, David J. Reiss, Bradley T. Borden

David J Reiss

News outlets and foreclosure defense blogs have focused attention on the defense commonly referred to as "show me the note." This defense seeks to forestall or prevent foreclosure by requiring the foreclosing party to produce the mortgage and the associated promissory note as proof of its right to initiate foreclosure.

The defense arose in two recent state supreme-court cases and is also being raised in lower courts throughout the country. It is not only important to individuals facing foreclosure but also for the mortgage industry and investors in mortgage-backed securities. In the aggregate, the body of law that develops as …

Something Rich And Strange: Progressive Land Use Regulation And The Takings Doctrine, Philip C. Dales

Philip C. Dales

ABSTRACT:

Something Rich and Strange: Progressive Zoning and the Takings Doctrine.

Philip Carter Dales

May, 2013

University of Maryland Francis King Carey School of Law

The list of municipalities adopting form-based codes continues to grow, with one study putting the number at over 250, including Miami, Denver, Cincinnati and other major cities around the United States. These codes represent land use regulation that is fundamentally different from traditional Euclidean zoning. Rather than prescribing allowable uses, FBCs focus on the governance of form, with the goal of ensuring predictable outcomes for the built environment and simplifying complex use-based zoning ordinances.

In …

Dirt Lawyers And Dirty Remics, David J. Reiss, Bradley T. Borden

David J Reiss

It is appropriate that the day-to-day practice of real estate law did not touch on the intricacies of the securitization of mortgages, let alone the tax laws that apply to mortgage-backed securities. Securitization professionals did not, however, account for the day-to-day practices of real estate lawyers as they relate to the transfer and assignment of mortgage notes and mortgages when structuring mortgage-backed securities. The consequences of this may turn out to be severe for investors, underwriters, and securitization professionals.

One of the consequences of the sale of a negotiable note not done in accordance with the requirements of the holder …

The Puzzling Persistence Of Horizontal Privity, Michael Lewyn

Michael E Lewyn

A discussion of the horizontal privity doctrine. Under this doctrine, restrictive covenants are binding upon future grantees only if the original parties to the covenant share some property interest outside the covenant- for example, if they are grantor and grantee of the same land, or if they are landlord and tenant. Although the doctrine has been often criticized by scholars, no recent court has rejected the privity requirement.

Cleaning Up The Financial Crisis Of 2008: Prosecutorial Discretion Or Prosecutorial Abdication?, David J. Reiss, Bradley T. Borden

David J Reiss

When finance professionals play fast and loose, big problems result. Indeed, the 2008 Financial Crisis resulted from people in the real estate finance industry ignoring underwriting criteria for mortgages and structural finance products. That malfeasance filled the financial markets with mortgage-backed securities (MBS) that were worth a small fraction of the amount issuers represented to investors. It also loaded borrowers with liabilities that they never had a chance to satisfy.

Despite all the wrongdoing that caused the financial crisis, prosecutors have been slow to bring charges against individuals who originated bad loans, pooled bad mortgages, and sold bad MBS. Unfortunately, …

Shifting Sands: A Meta-Theory For Public Access And Private Property Along The Coast, Melissa K. Scanlan

Melissa K. Scanlan

Over half the United States population currently lives near a coast. As shorelines are used by more people, developed by private owners, and altered by extreme weather, competition over access to water and beaches will intensify, as will the need for a clearer legal theory capable of accommodating competing private and public interests. One such public interest is to walk along the beach, which seems simple enough. However, beach walking often occurs on this ambulatory shoreline where public rights grounded in the public trust doctrine and private rights grounded in property ownership intersect. To varying degrees, each state has a …

A Home With Dignity: Domestic Violence And Property Rights, Margaret Johnson

Margaret E Johnson

This Article argues that the legal system should do more to address intimate partner violence and each party’s need for a home for several reasons. First, domestic violence is a leading cause of homelessness and family homelessness. Second, the struggle over rights to a shared home can increase the violence to which the woman is subjected. And third, a woman who decides that continuing to share a home with the person who abused her receives little or no system support, despite the evidence that this decision could most effectively reduce the violence. The legal system’s current failings result from its …

Do The Right Thing: Indirect Remedies In Private Law, Daphna Lewinsohn-Zamir

Daphna Lewinsohn-Zamir

Private law provides diverse remedies for right violations: compensatory and punitive, monetary and non-monetary, self-help and court-awarded. The literature has discussed these (and other) classifications of remedies, yet it overlooked the important distinction between direct and indirect remedies. Some remedies directly order right-infringers to realize the desired outcome, while others bring it about indirectly, by inducing them to self-comply. This classification cuts across the traditional ones.

This Article fills the gap in the literature by introducing the novel category of indirect remedies. It identifies how indirect remedies are used in current legal rules—with examples from property, contract, torts, intellectual property …

Ownership Is Nine-Tenths Of Possession: How Disparate Conceptions Of Ownership Influence Possession Doctrines, Martin Hirschprung

martin hirschprung

Possession is nine-tenths of ownership. And yet, the concept of possession remains woefully unclear in the law, thereby rendering the very idea of ownership too somewhat murky. This Article argues that there exists a reflexive relationship between possession and ownership, and that one’s understanding of ownership and its incidents influence the very concept of possession, rather than vice-versa. The Article further argues that given this reality, the application of the concept of stewardship to question of possession can aid significantly in resolving some of the most important contemporary disputes regarding possession and ownership in society, such as disputes between museums …

Conserving A Place For Renewable Power, Jacob P. Byl

Jacob P. Byl

Promoting renewable power and conserving land are often conflicting goals because renewable power requires a lot of land. The conflict is becoming an important issue on lands encumbered by conservation easements. I argue that the current legal rule allowing oil and gas development, but not wind and solar development, on conserved land does not make sense in light of the threats of climate change. The best way to encourage renewable power while respecting the intent of landowners is to have the Internal Revenue Service promulgate rules that explicitly allow renewable power going forward and interpret existing easements with a set …

Rebalancing Public And Private In The Law Of Mortgage Transfer, John P. Hunt

John P Hunt

The law governing the United States’ $13 trillion mortgage market is broken. Courts and legislatures around the country continue to struggle with the fallout from the effort to build a 21st century global market in mortgages on a fragmented, arguably archaic legal foundation. These authorities’ struggles stem in large part from the lack of clarity about the legal requirements for mortgage transfer, the key process for contemporary mortgage finance.

We demonstrate two respects in which American mortgage transfer law is unclear and offer suggestions for fixing it. Revisions to the Uniform Commercial Code adopted around the turn of the century …

Why Leave It To The Liberals? Conservative Views On Smart Growth, Michael E. Lewyn

Michael E Lewyn

Part of panel discussion on "Why Leave It To The Liberals? Conservative Views on Smart Growth"

Regulatory Takings: Survey Of A Constitutional Culture, James Valvo

James Valvo

Fifth Amendment property protections under the Takings Clause have grown increasingly contentious as governing entities have used regulations to limit what property owners can do with their land. This paper profiles regulatory takings jurisprudence from Pennsylvania Coal, to Penn Central, to Nollan and Dolan, and Tahoe-Sierra. The paper also examines conceptual constructs that have shaped the field’s evolution, including: the doctrine’s origin, the nuisance exception, the changed circumstances argument, unconstitutional conditions, temporary takings and the denominator problem.

The Public Trust In Wildlife, Michael Blumm, Aurora Paulsen

Michael Blumm

The public trust doctrine, derived from ancient property principles, is thought to mostly apply to navigable waters and related land resources. The doctrine supplies a mediating force to claims of both private ownership and unfettered government discretion over these resources, vesting the state with trust responsibility to ensure that the use of these resources promotes long-term sustainability. A related doctrine—sovereign ownership of wildlife—is also an ancient public property doctrine inherited from England. State ownership of wildlife has long defeated private ownership claims and enabled states to enact and implement wildlife conservation regulations. This paper claims that these two doctrines should …

Escaping The Malthusian Trap: Dynasty Trusts For Serious Dynasts, John V. Orth

Faculty Publications

No abstract provided.

Then And Now In The Law Of Property, John V. Orth

Faculty Publications

No abstract provided.

Institutional Free Exercise And Religious Land Use, John Infranca

John Infranca

The Supreme Court’s recent decision in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. declared that the First Amendment “gives special solicitude to the rights of religious organizations.” This recognition of institutional free exercise rights has important implications for religious land uses. The Religious Land Use and Institutionalized Persons Act (RLUIPA) protects religious landowners from the imposition, through a land use regulation, of a substantial burden on religious exercise. Most RLUIPA claims are brought by the religious institution that owns property subject to a regulation. Nonetheless, courts and commentators evaluate these claims by applying a standard derived from cases involving …