Property Law and Real Estate Commons^™

"We Shall Not Be Moved": Urban Communities, Eminent Domain And The Socioeconomics Of Just Compensation, James J. Kelly Jr.

Journal Articles

If eminent domain is to serve true community development, statutory reforms must limit its propensity to abuse while still preserving its effectiveness. The first part of this article offers a normative legal theory of eminent domain as constrained by both the availability of alternative means of achieving public objectives and the inability of some condemnees to be made whole by cash compensation. The consideration of the land needs of both the condemnor and the condemnee is crucial to the respective evaluations of public use and just compensation as limitations on eminent domain. In the context of urban redevelopment, the theory …

Unsubsidizing Suburbia, Nicole Stelle Garnett

Journal Articles

Review essay of The Urban Origins of Suburban Autonomy by Richardson Dilworth, Harvard University Press, 2005.

Brief Amicus Curiae Of Professors David L. Callies, James T. Ely, Paula A. Franzese, Nicole Stelle Garnett, James E. Krier, Daniel R. Mandelker, John Copeland Nagle, John Nolon, J.B. Ruhl, Shelley Ross Saxer, A. Dan Tarlock, Laura Underkuffler, And Edward F. Ziegler In Support Of Petitioners, David L. Callies, Nicole Stelle Garnett, John Copeland Nagle

Court Briefs

No. 04-108
Susette Kelo v. City of New London

On Writ Of Certiorari To The Supreme Court of Connecticut

From the Summary of Argument

The Connecticut Supreme Court's decision was in keeping with Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), which provides that legislative assertions of public use should be subjected to rational basis review. The application of such broadly deferential review in public use cases is inappropriate. Application of rational basis review to the exercise of eminent domain in cases such as this effectively eviscerates the Fifth Amendment's public use limitation. Moreover, lower courts' responses to …

Ordering (And Order In) The City, Nicole Stelle Garnett

Journal Articles

Over the past two decades, the broken windows hypothesis by George Kelling and James Q. Wilson has revolutionized thinking about urban policy. This now-familiar theory is that uncorrected manifestations of disorder, even minor ones like broken windows, signal a breakdown in the social order that accelerates neighborhood decline. The response to this theory has been a proliferation of policies focusing on public order. Largely missing from the academic debate about these developments is a discussion of the complex and important role of property regulation in order-maintenance efforts. This Article attempts to fill that property law gap in the public-order puzzle …

The Public-Use Question As A Takings Problem, Nicole Stelle Garnett

Journal Articles

Government officials regularly use the power of eminent domain to benefit private entities, and just as regularly justify their actions with assertions about the need to promote "economic development." Rather, the remarkable thing about these cases is that the courts questioned the government's right to do so. In Hawaii Housing Authority v. Midkiff, the United States Supreme Court reaffirmed that the Fifth Amendment demands broad deference to a government's decision to exercise the power of eminent domain. Midkiff makes clear that "public use" challenges are subject to rational-basis review. That is, so long as a taking can be justified by …

Using The Pervasive Method Of Teaching Legal Ethics In A Property Course, Thomas L. Shaffer

Journal Articles

The first-year introductory course in property law is about all that is left of the traditional black-box curriculum. It is where beginning law students cope with and despair of the arcana of English common law; where, with more detachment than, say, in the torts course, analysis of appellate opinions is what "thinking like a lawyer" means, with no more than peripheral and begrudging attention to modem legislation and administrative law; where legal reasoning is a stretching exercise and initiatory discipline. And, incidentally, surviving bravely the rude invasion of teachers of public law, it is where a teaching lawyer can point …

Moral Nuisances, John Copeland Nagle

Journal Articles

Nuisance law provides a remedy for activities that substantially interfere with the use and enjoyment of one's land. Most nuisance cases today involve environmental pollution or unwanted noises, sights, or smells. Historically, though, nuisance law had a much broader application that regulated brothels, saloons, and gambling parlors - what I call moral nuisances.

I articulate a theory of moral nuisances that applies when (1) a substantial and legally cognizable interference with a landowner's use or enjoyment of his or her land is caused by (2) an action that is regarded as immoral by a reasonable person within the community (3) …

The Secret Lives Of The Four Horsemen, Barry Cushman

Journal Articles

"Outlined against red velvet drapery on the first Monday of October, the Four Horsemen rode again. In dramatic lore they are known as Famine, Pestilence, Destruction, and Death. These are only aliases. Their real names are Van Devanter, McReynolds, Sutherland, and Butler. They formed the crest of the reactionary cyclone before which yet another progressive statute was swept over the precipice yesterday morning as a packed courtroom of spectators peered up at the bewildering panorama spread across the mahogany bench above." Or so Grantland Rice might have written, had he been a legal realist. For more than two generations scholars …

Introduction: The Ancient Roots Of Modern Forfeiture Law, Jimmy Gurulé

Journal Articles

Civil forfeiture is one of the most potent weapons available to prosecutors in the “war on drugs” and against traditional organized crime. Unlike criminal forfeiture it is in rem and based on a legal fiction that property used in violation of law must be held responsible for harm that it has caused. The conceptual underpinnings of civil forfeiture are long established and can be traced back to English common law, but they also create the potential for abuse. There is currently federal legislation that considers scaling back the reach of civil forfeiture and recent Supreme Court decisions have also limited …

Shaping Today's Forfeiture Law: A Conversation With Senator Mcclellan, G. Robert Blakey

Journal Articles

In any society, the government's ability to interfere with life, liberty or property is always open for full discussion. In this conversation, Professor Blakey discusses property in the context of organized and white-collar crime, in addition to criminal forfeiture, and frames his discussion around his work with Senator John McClellan on drafting the Organized Crime Control Act.

Intestate Succession In A Polygamous Society, Barry Cushman

Journal Articles

The pursuit of polygamous unions by members of the Church of Jesus Christ of Latter-Day Saints in nineteenth-century Utah posed challenges for the law of the family unique in the annals of American legal history. The exotic familial relationships generated by plural marriages created novel and peculiar problems for the traditional law of intestacy. Mormon leaders, in an effort to avoid these problems, urged their polygamous brethren to make wills. Many polygamists, however, either neglected to plan their estates or were actively opposed to doing so. Mormon legislators accordingly sought to craft statutory schemes that would accommodate the peculiar inheritance …

Criminal Redistribution Of Stolen Property: The Need For Law Reform, G. Robert Blakey, Michael Goldsmith

Journal Articles

The development of sophisticated fencing systems for the sale of stolen property to consumers has paralleled the industrialization of society. Although crimes against property and attempts to control them have ancient origins, most theft before the Industrial Revolution was committed for immediate consumption by the thieves and their accomplices rather than for redistribution in the market-place. Society's small population, inadequate transportation and communication systems, and technological inability to mass produce identical goods constrained large-scale fencing because there were few buyers and because stolen property could be readily identified. The unprecedented economic and demographic growth in eighteenth-century Europe, however, removed these …

The Federal Income Tax Effects Of The Missouri Version Of The Uniform Divorce Act, Alan Gunn

Journal Articles

The marital property provisions of the new Missouri divorce law render the tax treatment of property transfers and alimony payments unclear. As to property transfers, the problem is that the new law appears to give the wife an interest in property that previously would have been regarded as belonging to the husband. Since this is so, it is possible to argue that a “transfer” of appreciated property to the wife is part of a “division” of property between “co-owners,” and therefore not taxable. Although transfers of appreciated property in connection with a divorce are usually taxable, divisions of community property …

Men And Things: The Liberal Bias Against Property, Thomas L. Shaffer

Journal Articles

When a property teacher sets out to learn about the human facts in his subject—if, for instance, he wants to learn about the behavioral aspects of the law of the dead (wills, trusts, future interests and death taxation)—he will be discouraged by the fact that psychological literature has a great deal to say about sex, and even quite a bit about death, but almost nothing about property.

There are a couple of metaphysical essays by Jean-Paul Sartre, and, from the founders of psychoanalysis, the theory that our concern about property begins at the potty chair. But for the most part …

The Rule Of Announcement And Unlawful Entry: Miller V. United States And Ker V. California, G. Robert Blakey

Journal Articles

Mr. Justice Frankfurter, in his classic dissent in United States v. Rabinowitz, pointed out that "the safeguards of liberty have frequently been forged in controversies involving not very nice people." Few cases decided by the Supreme Court since Rabinowitz have better illustrated that observation than Miller v. United States and Ker v. California. This Article will consider the problems posed in the administration of federal criminal justice by the "liberty forged" in these two decisions.

Until the Miller decision in 1958, the Supreme Court had never squarely considered and decided a question of announcement and unlawful entry. It is therefore …

Partition Of Oil And Gas Interests And The Effect On Mineral Rights Of Surface Partition, Thomas L. Shaffer

Journal Articles

Interests in oil and gas in place are of three kinds: ownership of minerals independent of surface ownership, royalty interests, and "working" or leasehold interests. All three are forms of property, susceptible of ownership by cotenants, and cotenancies of the first and third categories are at least theoretically open to actions for partition.

Partition of interests in oil and gas raises practical legal difficulties in three areas: (1) How does mineral ownership fit into the statutory partition scheme? (Each of the nation's fifty states has a statute concerning partition of either realty or personalty or both.) (2) How is a …

Affidavits And Notice Under Ohio Mechanics' Lien Statute, Joseph O'Meara

Journal Articles

Recent cases under the Ohio Mechanics' Lien Statute have tended to emphasize the existing confusion in the perfecting of mechanics' liens and the need for statutory revision. The scintilla rule should be abandoned. Nor should the doctrine of stare decisis call up misgivings.

Alienability Of Contingent Remainders, Joseph O'Meara, William K. Divers

Journal Articles

There is no longer any such thing as a determinable interest in land in Ohio. The ordinary words appropriate to create a determinable interest in land are words indicating duration of time, e. g., "Until Gloversville shall be incorporated as a village". Although not made an issue by the parties, the supreme court's decision turned upon the legal effect of the following clause: "To have and to hold the premises aforesaid unto the said grantees and their successors so that neither the said grantor or his heirs nor any other person claiming title through or under him shall or will …