Property Law and Real Estate Commons^™

Remedies And The Psychology Of Ownership, Jeffrey J. Rachlinski, Forest Jourden

Cornell Law Faculty Publications

Protecting Endangered Species Without Regulating Private Landowners: The Case Of Endangered Plants, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Property As Propriety, Gregory S. Alexander

Cornell Law Faculty Publications

Property Rules As Remedies, Emily Sherwin

Cornell Law Faculty Publications

No abstract provided.

Two- And Three-Dimensional Property Rights, Emily Sherwin

Cornell Law Faculty Publications

No abstract provided.

Ten Years Of Takings, Gregory S. Alexander

Cornell Law Faculty Publications

No area of property law has been more controversial in the past decade than takings. No aspect of constitutional law more sharply poses the dilemma about the legitimate powers of the regulatory state than the just compensation question. No question concerning constitutional property is more intractable than what sorts of government regulatory actions constitute uncompensated "takings" of private property.

Limitations of space, not to mention my own ambivalence about many of the issues, prevent me from developing a complete normative theory of the proper scope of the Takings Clause. My aim here is vastly more modest: to outline the basic …

Taking And Giving: Police Power, Public Value, And Private Right, Gerald Torres

Cornell Law Faculty Publications

This lecture is divided into three parts. First, I will outline a critique of efficiency as it has functioned as the metanarrative underlying our basic current understanding of social institutions. A metanarrative is merely a legitimating background story rooted in the claim that it is the "story that can reveal the meaning of all stories." The claim I am making is that the standards of efficiency in common usage have operated in this way in questions of social policy. For government institutions, this is summed up in the popular claim of politicians that they will "run government like a business." …

"Takings" Jurisprudence In The U.S. Supreme Court: The Past 10 Years, Gregory S. Alexander

Cornell Law Faculty Publications

No area of American property law has been more controversial in recent years than the government regulation of uses of private property. No aspect of American constitutional law more sharply poses the dilemma about the legitimate powers of the regulatory state than the requirement that the government pay compensation for takings of property. The purpose of this essay is to acquaint the non-American legal scholar who is unfamiliar with the recent developments in the United States Supreme Court “takings” jurisprudence. The essay does not presuppose any background knowledge about either American constitutional or property law. Instead it attempts to familiarize …

Property: A Special Right, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

Takings And The Nature Of Property, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

Property Rules And Liability Rules: The Cathedral In Another Light, James E. Krier, Stewart J. Schwab

Cornell Law Faculty Publications

Ronald Coase's essay on "The Problem of Social Cost" introduced the world to transaction costs, and the introduction laid the foundation for an ongoing cottage industry in law and economics. And of all the law-and-economics scholarship built on Coase's insights, perhaps the most widely known and influential contribution has been Calabresi and Melamed's discussion of what they called "property rules" and "liability rules." Those rules and the methodology behind them are our subjects here.

We have a number of objectives, the most basic of which is to provide a much needed primer for those students, scholars, and lawyers who are …

Epstein And Levmore: Objections From The Right?, Emily Sherwin, Maimon Schwarzschild

Cornell Law Faculty Publications

No abstract provided.

Contribution Arguments In Commercial Law, Steven Walt, Emily Sherwin

Cornell Law Faculty Publications

No abstract provided.

Pensions And Passivity, Gregory S. Alexander

Cornell Law Faculty Publications

This article discusses how modem fiduciary law has extended equity's tradition of constructing ownership as passive through the corporate pension system. It examines how the corporate pension system as a mode of owning pooled capital is a new stage of passive ownership. This stage creates a different aspect of the familiar problem of separating control from beneficial ownership. Berle and Means argued that the problem that the separation of control from ownership created was economic. The interests of managers and shareholders in the modern corporation diverge, and, they argued, this divergence diminishes the overall efficiency of the modern economy, dominated …

Takings And The Post-Modern Dialectic Of Property, Gregory S. Alexander

Cornell Law Faculty Publications

Ademption And The Domain Of Formality In Wills Law, Gregory S. Alexander

Cornell Law Faculty Publications

The 1990 revision of the Uniform Probate Code ("UPC") marks the second stage of probate reform in the second half of this century. The first stage was the adoption of the original UPC. While it included some changes in the substantive law of wills, its primary objective was to simplify probate procedure. The second stage, by contrast, focuses almost entirely on the substantive law of wills and will substitutes. It changes several of the primary rules of wills law, including the traditional rule requiring strict compliance with execution formalities. It also makes significant changes in the subsidiary rules of wills …

Time And Property In The American Republican Legal Culture, Gregory S. Alexander

Cornell Law Faculty Publications

Modern historians including J.G.A. Pocock and Gordon Wood have demonstrated the degree to which revolutionary American political discourse incorporated "civic republican" notions of virtue, property, and citizenship that promoted stable land ownership and active political participation. These historians also have argued that the republican view soon gave way to the now-dominant liberal view that champions the alienability of property and private over public life. Professor Alexander argues that this history is too neat. In fact, American republicanism contained unreconciled "dialectical" tensions—between individual rights and societal goals, stability of ownership and wealth redistribution, historical continuity and change—that, though now expressed in …

Real Property, E. F. Roberts

Cornell Law Faculty Publications

Ours is an era during which a whole year's worth of developments rule-wise can be brought up on a desktop screen already broken down by subject and subdivided into discrete topics. In high-tone academic neighborhoods this causes pundits to impose upon this already ordered material a new twist, re-ordering it around themes derived from economics, sociology, or even street corner opinion polling. Bean counting and number crunching are felt necessary, and understandably so, if one is to add something "intellectual" to what the machines have spewed out. The life of an old-fashioned lawyer has become hard indeed in this Republic, …

Dilemmas Of Group Autonomy: Residential Associations And Community, Gregory S. Alexander

Cornell Law Faculty Publications

We are a society of groups. De Tocqueville's observation that the principle of association shapes American society remains as valid today as it was in the mid-nineteenth century. For us, as for others, the vita activa is participation in a seemingly limitless variety of groups. The importance of group activity in our national character has strongly influenced the agenda of political questions that recur in American political and legal theory. One of the fundamental normative questions on this agenda concerns the proper relationship between groups and the polity. To what extent should the polity foster connections between associations and the …

Constructive Trusts In Bankruptcy, Emily Sherwin

Cornell Law Faculty Publications

No abstract provided.

Takings, Narratives, And Power, Gregory S. Alexander

Cornell Law Faculty Publications

"The Regulatory Takings Problem" is the title given to a story, or narrative, that has become prominent in the literature on just compensation issues. The story is one of power and fear. It is about a perceived imbalance of power between the two groups of actors involved in the process of public land-use regulation--private landowners and government regulators. It depicts scenarios of past or threatened abuse of power by local land-use regulators, and it looks to the takings clause generally and regulatory takings doctrine specifically as crucial corrective devices, essential to set the power imbalance aright. The dominant narrative describes …

Freedom, Coercion, And The Law Of Servitudes, Gregory S. Alexander

Cornell Law Faculty Publications

What do we want from a restatement of servitude law? Doctrinal simplification presents one obvious objective. Property teachers and their students commonly observe that the law of servitudes is a mess. However, doctrinal simplification surely does not present the only objective of the restatement. Developing a unified body of servitude doctrine, by itself, merely creates a sense of aesthetic coherence. Presumably the project aims at achieving more than just that. Law reformers generally seek to enhance the legal system's substantive coherence. At this level--developing a set of substantively coherent doctrinal practices--I am skeptical about the servitude restatement project.

A restatement …

A Coasean Experiment On Contract Presumptions, Stewart J. Schwab

Cornell Law Faculty Publications

Despite the theoretical importance of the Coase Theorem, scholars have given surprisingly little attention to verifying its predictions empirically. Supporters often accept the theorem as dogma, while armchair critics assail its assumptions. In an exciting series of recent articles, however, Elizabeth Hoffman and Matthew Spitzer have presented experimental evidence, as have others, that largely supports the Coasean prediction that bargainers will negotiate around inefficient property rights to reach a Pareto-optimal solution. The methodology has even gained sufficient attention to have its detractors.

The existing experiments analyze the results of bargains when one side has the power to impose unilaterally one …

South Dakota Airplane Tax Hangs By A Technical Thread, Jeffrey S. Lehman

Cornell Law Faculty Publications

No abstract provided.

History As Ideology In The Basic Property Course, Gregory S. Alexander

Cornell Law Faculty Publications

Why has history played such a prominent role in the basic property course in the twentieth century? Such a loaded question requires some explanation. Legal history is doubtless used in all the first-year common-law courses, but I have the impression that since Langdell's time it has been more conspicuous in property than in the other basic courses. At least let us provisionally accept this rather dogmatic assertion in order to examine the more interesting questions: what function has the historical perspective served in property, and what other function might history serve in the course?

Mining With Mr. Justice Holmes, E. F. Roberts

Cornell Law Faculty Publications

No abstract provided.

The Dead Hand And The Law Of Trusts In The Nineteenth Century, Gregory S. Alexander

Cornell Law Faculty Publications

This article discusses a basic paradox at the core of liberal property law. Individual freedom to dispose of consolidated bundles of rights cannot simultaneously be allowed and fully maintained. If the donor of a property interest tries to restrict the donee's freedom to dispose of that interest, the legal system, in deciding whether to enforce or void that restriction, must resolve whose freedom it will protect, that of the donor or that of the donee. Although post-realist American property lawyers acknowledge this conflict, at least nominally, it did not emerge in legal consciousness in so starkly visible a form until …

Property, E. F. Roberts

Cornell Law Faculty Publications

No abstract provided.

The Concept Of Property In Private And Constitutional Law: The Ideology Of The Scientific Turn In Legal Analysis, Gregory S. Alexander

Cornell Law Faculty Publications

In recent academic writing on the general problem of constitutional protection of property under the takings clause and due process clauses, a mode of analysis has emerged that is evidently different from the conventional analysis of constitutional property claims. In general terms, this new mode is characterized by an effort to analyze claims on an openly teleological and systematic basis. To be sure, this mode is not exclusively of recent origin. But it is a discernible trend in the body of scholarship that discusses constitutional protection of property in the context of previously unfamiliar sorts of private economic interests.

Most …

Property, E. F. Roberts

Cornell Law Faculty Publications

No abstract provided.