Law Commons^™

Great Falls Mfg. Co. V. Garland, 124 U.S. 581 (1888): The Final Battle After Thirty Years Of Litigation Over The Rights To Great Falls On The Potomac, Julia Carbonetti

Legal History Publications

The Great Falls Manufacturing Company owned extensive land and water rights at the Great Falls on the Potomac River at the time the United States decided to use the Great Falls as a water supply to the new capital in the City of Washington. In order to use its power of eminent domain, the federal government passed two Acts between 1858 and 1888. During that time, the United States and the Great Falls Manufacturing Company pursued 30 years of litigation to argue the just compensation that was due for the property taken at Great Falls. The 30 years ended in …

Land Use And Climate Change Bubbles: Resilience, Retreat, And Due Diligence, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This Article examines events on the ground in several localities where climate change is lowering property values and analyzes how those changes in value can be reckoned with by regulators. It merges practices and principles of real estate transactions and finance with those of land use and environmental regulation.

Climate change is a planetary phenomenon whose environmental implications are far-reaching. Reports on climate change consequences increasingly focus on what is happening locally and presently, while speculation continues about long-term global consequences. In numerous communities, property values are declining because of repeated flooding, continued threats of storm surges, sustained high temperatures, …

Paradoxes, Parallels And Fictions: The Case For Landlord Tort Liability Under The Revised Uniform Residential Landlord-Tenant Act, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

In this article, I show how a coherent legal narrative must capture the revolution's radical policy by abandoning the no tort liability rule, which can be done in a number of ways: an open acknowledgement that the duty to repair creates a new property right that must be enforced by a property rule or more subtly through the use of both traditional and modern tools of jurisprudence, that is, legal fictions, equitable maxims and economic efficiency analysis. This article proceeds with a discussion of the common law landlord-tenant law, the adoption of the implied warranty of habitability, along with the …

Property And Exceptionalism In China And The Anglo-American World, 1650-1860, Tahirih V. Lee

Scholarly Publications

No abstract provided.

When Private Property Rights Collide With Growth Management Legislation, Steve P. Calandrillo, Chryssa V. Deliganis, Andrea Woods

Articles

Over the past century, ever-expanding urban and suburban growth in the United States has offered a clear sign of America’s economic vitality, but it has not come without unique challenges of its own. Indeed, efforts to promulgate “smart growth” legislation as an antidote to suburban “sprawl” have proliferated in the past three decades, but it is time we ask ourselves whether their benefits outweigh their unintended consequences. States and local governments that once enthusiastically touted such legislation are beginning to confront unforeseen obstacles–and litigation–that raise the need for immediate reform.

This Article explores the impact of growth management acts on …

Making "Smart Growth" Smarter, Steve P. Calandrillo, Chryssa V. Deliganis, Andrea Woods

Articles

The “smart growth” movement has had a significant influence on land use regulation over the past few decades, and promises to offer the antidote to suburban sprawl. But states and local governments that once enthusiastically touted smart growth legislation are beginning to confront unforeseen obstacles and unintended consequences resulting from their new policies.

This Article explores the impact of growth management acts on private property rights, noting the inevitable and growing conflicts between the two sides that legislatures and courts are now being asked to sort out. It assesses the problems with creating truly intelligent urban growth, ranging from political …

Three Things: A Tribute To Judge Morris Sheppard Arnold, Nicole Stelle Garnett

Journal Articles

On February 20, 2015, the Arkansas Bar Association hosted a tribute to Judge Morris Sheppard Arnold (8th Cir., retired). I had the privilege of clerking for Judge Arnold in 1995-96 and the great honor of being asked to speak about the Judge at the event. Greenbag graciously agreed to publish my remarks.

An Introduction To Conservation Easements In The United States: A Simple Concept And A Complicated Mosaic Of Law, Federico Cheever, Nancy A. Mclaughlin

Sturm College of Law: Faculty Scholarship

The idea of a conservation easement – restrictions on the development and use of land designed to protect the land’s conservation or historic values – can be relatively easily understood. More significant and more challenging is the complex body of state and federal laws that shapes the creation, funding, tax treatment, enforcement, modification, and termination of conservation easements.

The explosion in the number of conservation easements over the past four decades has made them one of the most popular land protection mechanisms in the United States. The National Conservation Easement Database estimates that the total number of acres encumbered by …

Industry Career Guide Ownership Dwellings And Real Estate, Ma. Concepcion G. Latoja, Denise Serrano

Angelo King Institute for Economic and Business Studies (AKI)

This industry career guide on Ownership Dwelling and Real Estate (ODRE) aims to inform readers of the range of career options that are open to those who want to work in the industry. By presenting an array of occupations typically found in this field, the reader is informed of the basic requirements to land a specific job in this industry, the associated job environment and possibilities for job movement either in terms of promotion and/or moving laterally from one type of job to another within the industry. In the context of discussing job prospects, it lays out the issues surrounding …

Landlord’S Liability For Tenant’S Nuisance: Uksc Clarifies The Law In Lawrence V Fen Tigers (No. 2), Kee Yang Low

Research Collection Yong Pung How School Of Law

Where an occupier of premises creates or causes a nuisance and affects his neighbour’s enjoyment of land, the neighbour may sue him under the tort of nuisance. Where the occupier is a tenant, the neighbour may also have recourse to the landlord. This area of law, however, has not been the subject of rigorous judicial analysis and appears to be still lacking in clarity, precision and sophistication. The position prior to the UKSC decision in Lawrence and another v Fen Tigers Ltd and others (No. 2),1 (“Lawrence”) as discerned by the authors of Markesinis & Deakin’s Tort Law2 is that, …

"Economic Property Rights" As "Nonsense Upon Stilts": A Comment On Hodgson, Daniel H. Cole

Articles by Maurer Faculty

Hodgson's (2015) critique of extra-legal 'property rights' - in this case, so-called 'economic property rights' - is right on target. This Comment contributes two further points to his critique. First, the notion of 'economic property rights' is based on what Gilbert Ryle (1949) referred to as a 'category mistake', conflating physical possession, which is a brute fact about the world, with the right or entitlement to possession, which is a social or institutional fact that cannot exist in the absence of some social contract, convention, covenant, or agreement. The very notion of a non-institutional 'right' is oxymoronic. Second, the fact …

Ownership And Possession, Thomas W. Merrill

Faculty Scholarship

One of the enduring mysteries about property is why the law protects both ownership and possession. In a pre-modern world, with low rates of literacy and no formal method of registering titles, one can understand why the law would protect possession. In such a world, there may be no concept of property beyond the understanding that persons should respect possessory rights established by others. It is less clear why possession should be protected once property comes to be understood as ownership. Ownership and possession will commonly overlap, and protecting ownership will protect possession. Nevertheless, even in the most sophisticated legal …

Who Wins Residential Property Tax Appeals?, Randall K. Johnson

Journal Articles

This article explains who wins residential property tax appeals in Cook County, Illinois. It does so by collecting and combining public sector data, which has been recently released by the Cook County Assessor. The article then uses this data to compute three statistics. Lastly, it contextualizes each statistic in order to determine if some townships, or groups of townships, win more appeals than expected

Enforcing Takings Clauses In China, Jie Cheng

All Faculty Publications

Property rights are considered fundamental in constitutional jurisprudence and essential for economic development. However, China’s economic growth over the past 30 years has posed a special paradox to many theorists: for some, it is a mysterious phenomenon that China could continue rapid growth for a few decades without proper contract law until 1999 and without constitutional private property rights until after 2004. For others, the lack of property rights explains the social unrests arising from land-taking and the potential risk of non-sustainability of further development. This does not mean that there is no property protection in China; both the Constitution …

Bank Regulation And Securitization: How The Law Improved Transmission Lines Between Real Estate And Banking Crises, Erik F. Gerding

Publications

This essay examines how securitization served as a new coupling rod joining cycles in real estate and banking markets and created a new pathway for financial contagion in the “subprime” financial crisis. Legal changes promoted the growth of securitization and improved this crisis transmission line. The essay examines the history of legislative and regulatory changes that facilitated bank participation in the markets for mortgage-backed securities. The essay then explains how securitization failed to mitigate the credit, liquidity, and interest rate risk associated with real estate when losses in residential markets became correlated nationwide. It then discusses how regulation contributed to …

Common Law Property Theory And Jurisprudence In Canada, Sarah E. Hamill

Osgoode Legal Studies Research Paper Series

In recent years, property theorists have offered varying accounts as to what exactly ownership is, typically focusing on one or more key rights to the owned thing. However, most of these theories are articulated in the abstract and do not engage the jurisprudence. This article uses the jurisprudence concerning expropriation and adverse possession to show that Canadian courts have in fact developed their own definition of ownership — one that is not reflected in the property theory discourse. The author goes on to argue that this narrower definition of ownership — made up by the rights to exclude and to …

Fractured Markets And Legal Institutions, Herbert J. Hovenkamp

All Faculty Scholarship

This article considers how we can improve legal outcomes of conflicts that occur in very small arenas. The conflicts can be of many kinds, including a nuisance dispute between neighbors, an impending collision between two moving vehicles, a joint decision between spouses about whether or on what terms to continue their marriage, or a disagreement between managers and shareholders within a firm.

The prevailing literature typically refers to these small environments as “markets.” Thinking of them as markets, however, averts our attention from larger environments that should be considered but that often do not function well as private markets. For …

Towards A New Eviction Jurisprudence, Gerald S. Dickinson

Articles

The One-Strike Rule, contemplated in a model lease provision, has been the primary mechanism employed by Congress to eliminate the “scourge of drugs” in public housing projects. The rule gives public housing authorities (PHA) discretion to evict tenants engaged in drug-related criminal activity and hold the tenant equally liable if a guest or family member engaged in the criminal activity, even if the tenant had no knowledge of the offense. The Supreme Court most notably upheld this policy in 2002 in United States Department of Housing and Urban Development v. Rucker.

Today the wisdom of that rule, which has served …

Reconciling Intellectual And Personal Property, Aaron Perzanowski, Jason Schultz

Articles

This Article examines both the forces undermining copy ownership and the important functions it serves within the copyright system in order to construct a workable notion of consumer property rights in digital media.

Part I begins by examining the relationship between intellectual and personal property. Sometimes courts have treated those rights as inseparable, as if transfer of a copy entails transfer of the intangible right, or retention of the copyright entails ongoing control over particular copies. But Congress and most courts have recognized personal and intellectual property as interests that can be transferred separately. Although the better view, this approach …

Doing A Double Take: Rail-Trail Takings Litigation In The Post-Brandt Trust Era, Danaya C. Wright

UF Law Faculty Publications

After providing a brief explanation of railroad development, railbanking, the takings cases, and the Brandt Trust decision, this Article will explore the implications of each of these three legal issues at the heart of the takings disputes. What makes the decision in Marvin M. Brandt Revocable Trust v. United States particularly disappointing is not that the Court came to the wrong conclusion in its interpretation of the railroad’s interest in federally granted railroad rights of way (“FGROWs”) granted pursuant to the 1875 General Railroad Right of Way Act, but that its wrong interpretation adds all of the 1875 Act FGROW …

The Evolution Of Relational Property Rights: A Case Of Chinese Rural Land Reform, Shitong Qiao, Frank Upham

Faculty Scholarship

The most notable, or at least the most noted, form of property evolution has been the transfer of exclusive rights from collectives to individuals and vice versa, such as the farm collectivization in Soviet Union and the establishment of the People’s Communes in Mao’s China and their reversals. Such radical moments, however, constitute only a small part of history. For the most part, property rights evolve quietly and incrementally, which is hard to explain if we take exclusive rights as the core of property, or, to put it more generally, if we are focusing solely on the question of who …

Slavery, Property, And Marshall In The Positivist Legal Tradition, Marc L. Roark

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Tools Of Ignorance: An Appraisal Of Deficiency Judgments, Alan M. Weinberger

All Faculty Scholarship

While achieving success as a major league catcher, Mike Matheny was preparing for a post-baseball career in real estate development. He could not have picked a worse time to pursue his aspiration. Matheny lost his accumulated savings and his family’s home after being held personally liable for a $4.2 million deficiency judgment following foreclosure of property he was unable to develop or market during the Great Recession. Matheny’s failure to succeed in real estate was the proximate cause of his return to baseball as manager of the St. Louis Cardinals. Matheny’s story provides the backdrop for examining the methods by …

On Bargaining For Development, Timothy M. Mulvaney

Faculty Scholarship

In his recent article, Bargaining for Development Post-Koontz, Professor Sean Nolon concludes that the Supreme Court’s recent ill-defined expansion of the circumstances in which land use permit conditions might give rise to takings liability in Koontz v. St. John’s River Water Management District will chill the state’s willingness to communicate with permit applicants about mitigation measures. He sets out five courses that government entities might take in this confusing and chilling post-Koontz world, each of which leaves something to be desired from the perspective of both developers and the public more generally.

This responsive essay proceeds in two parts. First, …

Posession As A Natural Right, Thomas W. Merrill

Faculty Scholarship

What follows is, I hope, a tribute both to Friedrich Hayek, for whom this lecture series is named, and Richard Epstein, who was kind enough to invite me to give the lecture. Hayek has long been an inspiration for his insights about the advantages of decentralized decision making and the importance of information in understanding design of institutions. Both are recurring themes in my own work. Richard was my teacher at the University of Chicago Law School and has been a guiding light ever since. His works on nuisance law, takings, and the public trust doctrine, among others, have had …

Anticipatory Remedies For Takings, Thomas W. Merrill

Faculty Scholarship

The Supreme Court has rendered two lines of decisions about the remedies available for a violation of the Takings Clause. One line holds that courts have no authority to enter anticipatory decrees in takings cases if the claimant can obtain compensation elsewhere. The other line, which includes three of the Court's most recent takings cases, results in the entry of an anticipatory decree about takings liability. This Essay argues that the second line is the correct one. Courts should be allowed to enter declaratory or other anticipatory judgments about takings liability, as long as they respect the limited nature of …

Introduction: Toward Voice And Reflexivity, Olivier De Schutter, Katharina Pistor

Faculty Scholarship

In their introductory chapter, De Schutter and Pistor argue that in light of increasing absolute and relative scarcity of land and fresh water there is urgent need to improve the governance of these and other essential resources. Emphasizing “essentiality” shifts the debate from allocative efficiency to normative concerns of equity and dignity. Essential resources are indispensable for survival and/or for meaningful participation in a given community. Their allocation therefore cannot be left to the pricing mechanism alone. It requires new parameters for governance. The authors propose Voice and Reflexivity as the key parameters of such a regime. Voice is …

Is An Apartment A Nuisance?, Michael Lewyn

Scholarly Works

In an ongoing Texas lawsuit, some homeowners allege that a nearby apartment building will constitute a nuisance. This article asserts that courts should generally reject nuisance claims against multifamily housing, based on the public interest in favor of increased housing supply and infill development.