Property Law and Real Estate Commons^™

Judicial Takings Or Due Process, Eduardo M. Peñalver, Lior Jacob Strahilevitz

Cornell Law Review

No abstract provided.

Pluralism And Property, Gregory S. Alexander

Cornell Law Faculty Publications

Welfarism is no longer the only game in the town of property theory. In the last several years a number of property scholars have begun developing various versions of a general vision of property and ownership that, although consistent with welfarism in some respects, purports to provide an alternative to the still-dominant welfarist account. This alternative proceeds under different labels, including “virtue theory” and “progressive,” but for convenience purposes let us call them collectively “social obligation” theories. For what they have in common is a desire to correct the common but mistaken notion that ownership is solely about rights. These …

Property's Memories, Eduardo M. Peñalver

Cornell Law Faculty Publications

This short essay, presented at Fordham's conference on the social functions of property (and in an earlier form at a conference on law and memory at USC), explores the relationship between property and memory. It distinguishes between property as the object of memory ("memory of property") and property as a medium of memory ("memory in property"). With respect to both kinds of memory, the common law expresses a great deal of ambivalence towards memory. Unlimited memory is no less dangerous to a system of property than it is to an individual’s ability to think. Recent reforms of adverse possession, the …

Fannie Mae, Freddie Mac, And The Future Of Federal Housing Finance Policy: A Study Of Regulatory Privilege, David J. Reiss

Cornell Law Faculty Publications

The federal government recently placed Fannie Mae and Freddie Mac, the government-chartered, privately owned mortgage finance companies, in conservatorship. These two massive companies are profit-driven, but as government-sponsored enterprises they also have a government-mandated mission to provide liquidity and stability to the United States mortgage market and to achieve certain affordable housing goals. How the two companies should exit their conservatorship has implications that reach throughout the global financial markets and are of key importance to the future of American housing finance policy.

While the American taxpayer will be required to fund a bailout of the two companies that will …

The Illusory Right To Abandon, Eduardo M. Peñalver

Cornell Law Faculty Publications

The unilateral and unqualified nature of the right to abandon (at least as it is usually described) appears to make it a robust example of the law’s concern to safeguard the individual autonomy interests that many contemporary commentators have identified as lying at the heart of the concept of private ownership. The doctrine supposedly empowers owners of chattels freely and unilaterally to abandon them by manifesting the clear intent to do so, typically by renouncing possession of the object in a way that communicates the intent to forgo any future claim to it. A complication immediately arises, however, due to …

Developing The Final Frontier: Defining Private Property Rights On Celestial Bodies For The Benefit Of All Mankind, Taylor R. Dalton

Cornell Law School J.D. Student Research Papers

Sustainable colonization and exploitation of the lunar surface, Mars, or near by asteroids is still decades away. However, NASA, the Obama Administration, and other agencies around the world have shown a growing interest in establishing a human presence on the moon, mars, and beyond.

Unfortunately, the legal regime concerning the use of the Moon and other celestial bodies, which is necessary to further development in outer space, is largely unsettled. One important unsettled area is the ownership status of celestial bodies and whether private property rights on those bodies are permissible and desirable.

This Paper takes the view that private …

Max Weber On Property: An Effort In Interpretive Understanding, Laura R. Ford

Cornell Law School J.D. Student Research Papers

This article reviews Max Weber’s scholarly work pertaining to property, beginning with his first dissertation and ending with the compilation that is Economy and Society. Three phases of Weber’s work are described in detail: a legal phase, an economic-historical phase, and a sociological phase. It is argued that the sociological phase represents the culmination of the two prior phases, drawing on material and arguments from those earlier phases. In the sociological phase of his writing, it is argued that Weber developed a theory of property that is capable of accounting for that phenomenon in all of its dimensions: structural, material, …

Comment On Enterprise Duty To Serve Underserved Markets, David J. Reiss

Cornell Law Faculty Working Papers

FHFA invited further comment on the merit of considering properties without affordable use restrictions as part of the Enterprises’ duty to serve, noting that affordable housing preservation “encompasses efforts to keep unsubsidized properties in good condition while maintaining affordability for low- and moderate-income households.” (Page 32102)

FHFA should be certain that any aid given to buildings without affordable use restrictions will actually be passed on in large part to their tenants, whether through lower rents or improved conditions. I question whether that is in fact the case.

There are two main rationales for subsidizing multifamily buildings without affordable use restrictions. …

The Truth About Property Rules: Some Obstacles To The Economic Analysis Of Remedies, Emily Sherwin

Cornell Law Faculty Publications

Property Rules, as famously described by Calabresi and Melamed, are remedial rules that place a prohibitively high penalty on violations of rights. This essay examines two aspects of property rules. In each case, the form of the rule is critically important. The first question addressed is the capacity of property rules to affect behavior that takes place outside the context of litigation. Most economic analysis assumes that when a right is protected by a property rule, the property rule will guide private decisionmaking at the time of a contemplated violation, and possibly before that time. Yet, to have this effect, …

The Need For A National Civil Justice Survey Of Incidence And Claiming Behavior, Theodore Eisenberg

Cornell Law Faculty Publications

Civil justice issues play a prominent role in society. Family law issues such as divorce and child custody, consumer victimization issues raised by questionable trade practices, and tort issues raised by surprisingly high estimated rates of medical malpractice, questionable prescription drug practices, and other behaviors are part of the fabric of daily life. Policymakers and interest groups regularly debate and assess whether civil problems are best resolved by legislative action, agency action, litigation, alternative dispute resolution, other methods, or some combination of actions. Yet we lack systematic quantitative knowledge about the primary events in daily life that generate civil justice …

Solar Rights For Texas Property Owners, Sara C. Bronin

Cornell Law Faculty Publications

In response to Jamie France's note, A Proposed Solar Access Law for the State of Texas, Professor Bronin urges future commentators to focus on three additional areas of inquiry related to proposed solar rights regimes. Bronin argues that such proposals would be strengthened by discussion of potential legal challenges to the proposals, related political issues, and renewable energy microgrids. Ms. France’s proposal for the State of Texas includes the elimination of preexisting private property restrictions that negatively affect solar access. Bronin argues that this proposal would be strengthened by a discussion of potential challenges under federal and state takings clauses. …

A Fixer-Upper For Finance, Robert C. Hockett

Cornell Law Faculty Publications

Three facts bear notice in connection with our current financial troubles. The first is that the First World War, before the Second began, was known as "the Great War." The second is that the global Depression that struck between those two wars, which for now we can still label "Great," commenced with the burst of a multiyear real estate price bubble prior to the 1929 stock market crash. The third is that the U.S. accordingly addressed that depression through mutually reinforcing new regimes not only of financial regulation, but also of home mortgage finance - the very reforms that brought …

Waste No Land: Property, Dignity And Growth In Urbanizing China, Eva M. Pils

Cornell Law Faculty Working Papers

The Chinese state does not allow rural collectives to sell land, but takes land from them and makes it available on the urban property market. While rural land rights are thus easily obliterated, the newly created urban rights in what used to be rural land enjoy legal protection. The state justifies these land takings by the need for urbanization and economic growth. The takings have resulted in an impressive contribution of the construction and property sector to state revenue and GDP growth, but also in unfairness toward peasants evicted from their land and homes. The example discussed here shows that …

Solar Rights, Sara C. Bronin

Cornell Law Faculty Publications

The rights to access and to harness the rays of the sun - solar rights - are extremely valuable. These rights can determine whether and how an individual can take advantage of the sun’s light, warmth, or energy, and they can have significant economic consequences. Accordingly, for at least two thousand years, people have attempted to assign solar rights in a fair and efficient manner. In the United States, attempts to assign solar rights have fallen short. A quarter century ago, numerous American legal scholars debated this deficiency. They agreed that this country lacked a coherent legal framework for the …

Land Virtues, Eduardo M. Peñalver

Cornell Law Faculty Publications

This article has two goals. First, I explore some of the descriptive and normative shortcomings of traditional law and economics discussions of the ownership and use of land. These market-centered approaches struggle in different ways with features of land that distinguish it from other "commodities." The complexity of land - its intrinsic complexity, but even more importantly the complex ways in which human beings interact with it - undermines the notion that owners will focus on a single value, such as wealth, in making decisions about their land. Adding to the equation land's "memory," by which I mean the combined …

The Social-Obligation Norm In American Property Law, Gregory S. Alexander

Cornell Law Faculty Publications

This article seeks to provide in property legal theory an alternative to law-and-economics theory, the dominant mode of theorizing about property in contemporary legal scholarship. I call this alternative the social obligation theory.

I argue that American property law, both on the private and public sides, includes a social-obligation norm but that this norm has never been explicitly recognized as such nor systemically developed. I argue that a proper understanding of the social obligation explains a remarkably wide array of existing legal doctrine in American property law, ranging from the power of eminent domain to the modern public trust doctrine. …

Reply: The Complex Core Of Property, Gregory S. Alexander

Cornell Law Faculty Publications

No abstract provided.

A Statement Of Progressive Property, Gregory S. Alexander, Eduardo M. Peñalver, Joseph W. Singer, Laura S. Underkuffler

Cornell Law Faculty Publications

What would a progressive theory of property look like? Although such a theory might take root within any number of specific normative frameworks, this Statement of Progressive Property outlines several features progressive theories of property should have in common. The Statement argues that we should understand property as both an idea and an institution, that property confers power and shapes community, both in its legal and social dimensions, and that property should be understood as serving plural and incommensurable values whose accommodation is possible through reasoned deliberation and practical judgment.

What The New Treasury Must Do, Robert C. Hockett

Cornell Law Faculty Publications

After a number of heady false starts, against the backdrop of threatened financial catastrophe, Congress and the White House enacted a stopgap financial “bailout”plan early in October 2008. From that point onward the “plan” has repeatedly morphed, morphed again, and morphed back through a string of remarkably fleeting guises. One suspects this dynamic will continue, at least for a while, as a new president and Congress find their footing in the first half of 2009.

Bringing It All Back Home: How To Save Main Street, Ignore K Street, And Thereby Save Wall Street, Robert C. Hockett

Cornell Law Faculty Publications

No abstract provided.

Properties Of Community, Gregory S. Alexander, Eduardo M. Peñalver

Cornell Law Faculty Publications

Theories of property presuppose conceptions of community, and of the individual's relationship to community. In contrast to the dominant theories of community at work within most Anglo-American property theorizing, which view community obligations as fundamentally instrumental and contractual, we propose in this paper a theory that views the relationship between the individual and community as constitutive and substantive. Human beings' dependence on others to flourish imposes on political communities and their individual members a shared obligation to foster and contribute to the creation and maintenance of those structures necessary for that flourishing. This obligation in turn qualifies individual rights of …

A Statement Of Progressive Property, Gregory S. Alexander, Eduardo M. Peñalver, Joseph William Singer, Laura S. Underkuffler

Cornell Law Review

No abstract provided.

Modern Lights, Sara C. Bronin

Cornell Law Faculty Publications

This Article functions as a companion to a piece, Solar Rights, recently published in the Boston University Law Review. In that piece, the author analyzed the absence of a coherent legal framework for the treatment of solar rights - the rights to access and harness the rays of the sun. The growing popularity of, and need for, solar collector technology and other solar uses calls for reform. Answering the call for reform in Solar Rights, this Article proposes a framework within which a solar rights regime might be developed. First, as a baseline, any regime must recognize the natural characteristics …

The Dissolution Of The Matrimonial Property Regime And The Succession Rights Of The Surviving Spouse, Maria Álvarez Torné

Cornell Law Faculty Working Papers

These pages are addressed to examining the problems arising from the regulation of the dissolution of the matrimonial property regime on the death of one of the spouses in relation to the determination of the succession rights of the surviving spouse in Private International Law (from now on, PIL). I will specifically try to analyse the conciliation difficulties between what is stipulated in each relevant field after the death of one of the spouses. The surviving spouse’s situation often depends on the simultaneous effect of the matrimonial property regime and also of Succession Law. In fact, this study deals with …

Human Genetics Studies: The Case For Group Rights, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

How The Residential Mortgage-Backed Securities Market Impacts Dirt Lawyers And Their Clients, David J. Reiss

Cornell Law Faculty Publications

No abstract provided.

Demythologizing Property And The Illusion Of Rules: A Response To Two Friendly Critics, Gregory S. Alexander

Cornell Law Faculty Publications

Academic life can be a depressing experience. Despite the enormous amount of time many academics spend producing written scholarship, most of us have little expectation that more than a tiny handful of people will read our published work, if indeed it is read at all. And probably even fewer of us have any expectation whatsoever that the results of our often wrenching labor will be publicly aired. It is a rare occasion when an academic’s scholarship is the subject of public recognition. But oh, how we crave any sort of public commentary, favorable or critical! So, I am extremely grateful …

Property As Constitutional Myth: Utilities And Dangers, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

Property, Rules, And Property Rules, Emily Sherwin

Cornell Law Faculty Working Papers

This essay examines two aspects of “property rules” in the sense defined by Judge Guido Calabresi and Douglas Melamed. In each case, the form in which property rules are cast is critically important.

The first question addressed is the capacity of property rules to affect behavior prior to and outside litigation. Most economic analysis of property rules and liability rules assumes that the choice between them will guide decisionmaking at the time of a contemplated rights violation, and possibly prior to that time. To have this effect, property rules (and liability rules) must be established by determinate legal rules that …

Wrestling With Muds To Pin Down The Truth About Special Districts, Sara C. Bronin

Cornell Law Faculty Publications

Federal, state, and local governments encourage and empower special districts—board-run, special purpose local government units that are administratively and fiscally independent from general purpose local governments. Special districts receive incentives, grants, and freedom from limitations (such as limitations on tax and debt) imposed on general purpose local governments. Special districts are treated favorably because they are small in size, which theoretically means they foster democratic participation; are limited in purpose, meaning that states can tailor the special districts' powers to serve specific problems; and are viewed as efficient solutions to specific problems. Though special districts have tripled in number over …