Property Law and Real Estate Commons^™

Rluipa: Necessary, Modest, And Under-Enforced, Douglas Laycock, Luke W. Goodrich

Fordham Urban Law Journal

No abstract provided.

Rluipa Is A Bridge Too Far: Inconvenience Is Not Discrimination, Marci A. Hamilton

Fordham Urban Law Journal

No abstract provided.

Victimization On Main Street: Occupy Wall Street And The Mortgage Fraud Crisis, Sandra D. Jordan

Fordham Urban Law Journal

No abstract provided.

Spaces For Sharing: Micro-Units Amid The Shift From Ownership To Access, John Infranca

Fordham Urban Law Journal

No abstract provided.

You Can't Common What You Can't See: Towards A Restorative Polycentrism In The Governance Of Our Cities, Amy Laura Cahn, Paula Z. Segal

Fordham Urban Law Journal

No abstract provided.

Urban Commons As Property Experiment: Mapping Chicago's Farms And Gardens, Nate Ela

Fordham Urban Law Journal

No abstract provided.

Towards A Human Right To Food: Implications For Urban Growing In Baltimore City, Maryland, Becky L. Witt

Fordham Urban Law Journal

No abstract provided.

Resetting The Baseline Of Ownership: Takings And Investor Expectations After The Bailouts, Nestor M. Davidson

Faculty Scholarship

During the economic crisis that began in 2008, the federal government nationalized several of the nation’s most significant private companies as part of a broad effort to forestall a global depression. Shareholders in those companies later filed suit, alleging that the federal government in so doing—and in subsequent actions while in control of the firms—took their property without compensation in violation of the Fifth Amendment. To date, those claims have not succeeded. If these cases continue on their current trajectory, with courts rejecting arguments that the rescue of systematically important firms on the brink of collapse requires compensation for shareholders, …

From Railroads To Sand Dunes: An Examination Of The Offsetting Doctrine In Partial Takings, Louis M. Russo

Fordham Law Review

Called “shadowy at best,” the offsetting doctrine in partial takings has confused “even trained legal minds” and generated inconsistent decision after inconsistent decision.  The offsetting doctrine allows certain benefits, termed special, to offset condemnation awards, while general benefits may not be offset.  Courts blindly adhere to the doctrine despite its underpinnings rooted in eighteenth-century public policy, which was based on concerns of overly speculative valuation and arguably erroneous fairness, as well as incorrect interpretations of Takings Clause jurisprudence.  Such adherence dramatically increases the cost of financing a takings project.

In the face of blind adherence to the doctrine, municipalities are …

New Formalism In The Aftermath Of The Housing Crisis, Nestor M. Davidson

Faculty Scholarship

The housing crisis has left in its wake an ongoing legal crisis. After housing markets began to collapse across the country in 2007, foreclosures and housing-related bankruptcies surged significantly and have barely begun to abate more than six years later. As the legal system has confronted this aftermath, courts have increasingly accepted claims by borrowers that lenders and other entities involved in securitizing mortgages failed to follow requirements related to perfecting and transferring their security interests. These cases – which focus variously on issues such as standing, real party in interest, chains of assignment, the negotiability of mortgage notes, and …

Against Mushy Balancing Tests In Blight Condemnation Jurisprudence, Roderick M. Hills

Fordham Urban Law Journal

Professor Somin has written an incisive critique of the New York Court of Appeals’ decisions in Kaur and Goldstein, the gist of which is that the Court did not do enough to stop “highly abusive blight condemnations.” There are, however, two difficulties with the critique. First, as a matter of legalistic interpretation of the New York Constitution, the critique is not very persuasive. Second, as a matter of policy, Professor Somin’s proposal is unlikely to be adopted by any judge influenced by the same political process that lead to the condemnations that Professor Somin attacks.

The “New Body Snatchers”: Analyzing The Effect Of Presumed Consent Organ Donation Laws On Privacy, Autonomy, And Liberty, Maryellen Liddy

Fordham Urban Law Journal

This Note examines, in three parts, presumed consent laws as they pertain to organ donation. Part I discusses presumed consent and explains the salient features of presumed consent laws. It then discusses case law that addresses the aftermath of unauthorized organ or tissue harvesting. Part II evaluates the United States Supreme Court's evolving conceptions of the rights of individual and family-based privacy, autonomy, and liberty, for subsequent application to the presumed consent organ donation controversy. Part III analyzes presumed consent laws in light of the donors and their families' privacy, autonomy, and liberty interests. The Note concludes that current presumed …

Judicial Takings And State Action: Rereading Shelley After Stop The Beach Renourishment The Very Idea Of Judicial Takings, Nestor M. Davidson

Faculty Scholarship

When the Supreme Court recently dipped its toe into longstanding debates about judicial takings in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, the intimation that the Court might finally recognize the doctrine generated a wave of responses. Commentators concerned with the expansion of regulatory takings jurisprudence argued that it would be unwise to apply the Takings Clause to the judiciary; those inclined to defend a more vigorous application of the Clause, perhaps not surprisingly, saw a promising new avenue of vindication. It would be naive to argue that the Stop the Beach Renourishment plurality's logic could-or …

Property's Morale , Nestor M. Davidson

Faculty Scholarship

A foundational argument long invoked to justify stable property rights is that property law must protect settled expectations. Respect for expectations unites otherwise disparate strands of property theory focused on ex ante incentives, individual identity, and community. It also privileges resistance to legal transitions that transgress reliance interests. When changes in law unsettle expectations, such changes are thought to generate disincentives that Frank Michelman famously labeled demoralization costs. Although rarely approached in these terms, arguments for legal certainty reflect underlying psychological assumptions about how people contemplate property rights when choosing whether and how to work, invest, create, bolster identity, join …

Collective Action And The Urban Commons, Sheila R. Foster

Faculty Scholarship

Urban residents share access to a number of local resources in which they have a common stake. These resources range from local streets and parks to public spaces to a variety of shared neighborhood amenities. Collectively shared urban resources suffer from the same rivalry and free-riding problems that Garrett Hardin described in his Tragedy of the Commons tale. Scholars have not yet worked up a theory about how this tragedy unfolds in the urban context, particularly in light of existing government regulation and control of common urban resources. This Article argues that the tragedy of the urban commons unfolds during …

Forced Eviction And Resettlement In Cambodia: Case Studies From Phnom Penh, Chi Adanna Mgbako, Rijie Ernie Gao, Elizabeth Joynes, Anna Cave, Jessica Mikhailevich

Faculty Scholarship

This Article culminates a project undertaken by the Walter Leitner International Human Rights Clinic (“Leitner Clinic”) at Fordham Law School to examine the effects of land resettlement on communities that were forcibly evicted or are at risk of forced eviction from their homes, and, in particular, the effects of forced evictions on the Boeung Kak Lake community in central Phnom Penh and on people living with HIV/AIDS (“PLWHA”). This Article is based on field research the Leitner Clinic conducted in Cambodia in the fall of 2008. While in Cambodia, the Leitner Clinic interviewed families from four different communities: resettlement camps …

Lifting The Museum's Burden From The Backs Of The University: Should The Art Collection Be Treated As Part Of The Endowment Symposium: Tax-Exempt Organizations And The State: New Conditions On Exempt Status, Linda Sugin

Faculty Scholarship

A few universities in economic straits have recently attempted to sell artwork to address their financial woes, causing much consternation in the museum community. This Article relates the stories of some institutions' attempts to deaccession artworks, and explains why universities may suddenly perceive their art collections as important assets to monetize. It contends that the universities and their critics have fundamentally divergent conceptions of the role of the art collection in the university, which explains why they cannot agree on the legal responsibilities of universities vis-a-vis their art. The critics have a strong cultural-property conception that privileges art, while these …

Standardization And Pluralism In Property Law , Nestor M. Davidson

Faculty Scholarship

At the heart of contemporary property theory stands an intriguing puzzle. Unlike the relatively unconstrained freedom that contract law provides for private ordering, property law recognizes only a limited and standard list of mandatory forms. This standardization-known as the numerus clausus from the civil law concept that the "number is closed" -poses a basic conundrum: what can explain a persistent feature of the law that seems, at first glance, so clearly to restrict the autonomy and efficiency gains conventionally associated with private property? This Article proceeds in four parts. Part I describes the numerus clausus principle and the problems that …

Property And Relative Status , Nestor M. Davidson

Faculty Scholarship

Property does many things-it incentivizes productive activity, facilitates exchange, forms an integral part of individual identity, and shapes communities. But property does something equally fundamental: it communicates. And perhaps the most ubiquitous and important messages that property communicates have to do with relative status, with the material world defining and reinforcing a variety of economic, social, and cultural hierarchies. This status-signaling function of property-with property serving as an important locus for symbolic meaning through which people compare themselves to others-complicates premises underlying central discourses in contemporary property theory. In particular, status signaling can skew property's incentive and allocative benefits, leading …

Gender And Nation-Building: Family Law As Legal Architecture Symposium - Nation Building: A Legal Architecture: Articles And Essays, Tracy E. Higgins, Rachel P. Fink

Faculty Scholarship

Although the discipline of family law in the western legal tradition transcends the public/private law boundary in many ways, it is the argument of this Essay that family law, in the private law sense of defining the rights and obligations of members of a family, forms an important part of the legal architecture of nation-building in at least three ways. First, access to the resources of the nation-state devolves through biologically and culturally gendered national boundaries, both reflecting and reinforcing the differential status of men and women in the sphere of the family. Second, the social institution of the family …

In Defense Of Property , Kristen A. Carpenter, Sonia K. Katyal, Angela R. Riley

Faculty Scholarship

This Article responds to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous cultural heritage. Recent critiques suggest that propertizing culture impedes the free flow of ideas, speech, and perhaps culture itself. In our view, these critiques arise largely because commentators associate "property" with a narrow model of individual ownership that reflects neither the substance of indigenous cultural property claims nor major theoretical developments in the broader field of property law. Thus, departing from the individual rights paradigm, our Article situates indigenous cultural property claims, particularly …

The Houses That Eminent Domain And Housing Tax Credits Built: Imagining A Better New Orleans, Carol Necole Brown, Serena M. Williams

Fordham Urban Law Journal

Proposals for investing in and rebuilding urban enclaves such as New Orleans are layered with controversy and difficulty. One of the most significant impediments to rebuilding New Orleans will be addressing the need to replenish the depleted rental housing market. Racial and economic integration of housing markets and appropriate use of private sector money to replenish the rental housing stock within a "reasonable" time period are indispensable components of a responsible revitalization and renewal plan. This Article contends that a combination of the smart exercise of eminent domain and of "housing production subsidies" -- housing tax credits -- is necessary …

City Governments And Predatory Lending, Jonathan L. Entin, Shadya Y. Yazback

Fordham Urban Law Journal

This Article assesses the legal challenges that cities can face in trying to deal with predatory lending. Part I provides an overview of the problem. Part II focuses on the common law and statutory claims that cities might bring, with particular emphasis on the evidentiary isses that cities can face and the requirements of standing that could severely limit the effectiveness of lawsuits brought by municipalities. The Article then turns to city efforts to regulate predatory lending pursuant to their home rule authority, efforts than can be stymied both by state laws that supersede municipal ordinances and federal regulations that …

Winding Toward The Heart Of The Takings Muddle: Kelo, Lingle, And Public Discourse About The Private Property, Jane B. Baron

Fordham Urban Law Journal

People care about property. In 2005, the United States Supreme Court decided two cases with deep connections to that concern, both brought by property owners challenging the government's power under the Takings Clause to take title to, or significantly affect the value of, their property. Kelo v. City of New London has been seen as controversial while Lingle v. Chevron USA Inc. has received far less public attention. This Article argues that the significance of Kelo and of Lingle lies in the extent to which the two cases engage with, or fail to engage with, the cultural debate over the …

Urban Revitalization In The Post-Kelo Era, Lynn E. Blais

Fordham Urban Law Journal

An ongoing urban revitalization project arrested by legislative reponses to the Kelo decision is likely to play out in many cities and towns across the country in the next few years. Since Kelo was decided, thirty-four states have adopted some responsive legislation or constitutional amendment. These new laws, to varying degrees and using various mechanisms, limit the power of state and local governments to use eminent domain to faciliate economic redevlopment projects. This Article explores the reach of these statutes and their likely consequences for ongoing and future urban revitalization project.

Brownfields At 20: A Critical Reevaluation, Joel B. Eisen

Fordham Urban Law Journal

This Articles looks at brownfields policies in one state, New Jersey, and suggests how to make the approach of brownfields revitalization more development-centered and less developer-centered. Following a basic description of the New Jersey Program, this Article discusses two specific developments, the BDA initiative and the recent "Grace Period Rule," that changed some aspects of the program.

Property Outlaws, Eduardo Moises Peñalver, Sonia K. Katyal

Faculty Scholarship

Most people do not hold those who intentionally flout property laws in particularly high regard. The overridingly negative view of the property lawbreaker as a "wrongdoer" comports with the status of property rights within our characteristically individualist, capitalist, political culture. This reflexively dim view of property lawbreakers is also shared, to a large degree, by property theorists, many of whom regard property rights as a relatively fixed constellation of entitlements that collectively produce stability and efficiency through an orderly system of ownership. In this Article, Professors Peihalver and Katyal seek partially to rehabilitate the reviled character of the intentional property …

A Second Take: Re-Examining Our Regulatory Takings Jurisprudence Post-Tahoe, Robert W. Diubaldo

Fordham Urban Law Journal

This Note discusses the aftermath of the landmark case, Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agencey. This Comment first discusses the background of regulatory takings jurisprudence, from Justice Holmes' landmark Pennsylvania Coal opinion to the present. It further analyzes the recent Tahoe decision, focusing on both the strengths and weaknesses of the decision and its potential impact on the future of takings. Finally, the Comment offers a different analytical framework from which to analyze regulatory takings. Under this theory, courts would abandon the partial/total distinction, and instead focus on the actual loss from the landowner's point of view. …

First Suburbs In The Northeast And Midwest: Assets, Challenges, And Opportunities, Robert Puentes

Fordham Urban Law Journal

This article examines the decline of first suburbs, the older inner-ring suburbs closest to cities that grew up before or immediately after World War II. As families leave these areas for the expanding outer suburbs, the tax base shrinks and poverty and failing schools result. Inner suburbs lack the sophisticated governmental structures of cities to combat these problems, and without a shift in investment policies, first suburbs will continue to suffer.

The Necessary Application Of The Contract Clause To Cases Involving Restrictive Covenants And Group Famiy Day Care Homes, Heidi Marie Flinn

Fordham Urban Law Journal

This Note argues that courts should apply the Contract Clause analysis that is set for by the Supreme Court in Energy Reserves to all home based day care cases regardless of whether it is state legislative or judicial action that prevents enforcement of a restrictive covenant. It begins by explaining the background of restrictive covenants as they apply to group homes and outlines Contract Clause analysis in relation to restrictive covenants. Additionally, this Note explores the Fair Housing Act and how it is becoming the best tool to litigate cases involving covenants and group homes for the mentally ill, but …