Property Law and Real Estate Commons^™

Looking At Marriage, Naomi Cahn

Michigan Law Review

In a recent book (not the subject of this Review), highly successful and popular authors John Gottman and Nan Silver set out their seven effective principles for making a marriage last. The final suggestion is that spouses should "create shared meaning, an inner life together that is rich with symbols and family rituals and that honors the hopes of both partners." In a happy marriage, the couples not only provide support for each other, but also "build a sense of purpose into their lives together." Professor Gottman has developed these principles as a result of twenty years of research and …

Three Faces Of Private Property, Michael A. Heller

Articles

Private property is a rather elusive concept. Any kid knows what it means for something to be mine or yours, but grownup legal theorists get flustered when they try to pin down the term. Typically they, actually we, turn to a familiar analytic toolkit: including, for example, Blackstone's image of private property as "sole and despotic dominion"; Hardin's metaphor of the "tragedy of the commons"; and, more generally, the division of ownership into a trilogy of private, commons, and state forms. While each analytic tool has a distinguished pedigree and certain present usefulness, each also imposes a cost because it …

Uncoupling The Law Of Takings, Michael A. Heller, James E. Krier

Articles

The law of takings couples together matters that should be treated independently. The conventional view, shared by courts and commentators alike, has been that any takings case can be resolved in one of two ways: either there is a taking and compensation is due, or there is no taking and no compensation is due. These results are fine as long as one holding or the other serves the two central concerns of the Takings Clause - eficiency and justice. But a problem arises when the two purposes behind the law of takings come into cordhct, as they readily might. It …

Making Something Out Of Nothing: The Law Of Takings And Phillips V. Washington Legal Foundation, Michael A. Heller, James E. Krier

Articles

Phillips v. Washington Legal Foundation held that interest on principal amounts deposited into IOLTA accounts is the property of the various clients who handed over the money but expressed no view as to whether the Texas IOLTA program worked a taking, or, if it did, whether any compensation was due. The debates among the justices about the meaning of private property, argued in terms of contextual and conceptual severance, are unlikely to prove fruitful. We elaborate a better approach in terms of the underlying purposes of just compensation. We conclude that efficiency and justice are best served by uncoupling matters …

The Boundaries Of Private Property, Michael A. Heller

Articles

If your house and fields are worth more separately, divide them; if you want to leave a ring to your child now and grandchild later, split the ownership in a trust. The American law of property encourages owners to subdivide resources freely. Hidden within the law, however, is a boundary principle that limits the right to subdivide private property into wasteful fragments. While people often create wealth when they break up and recombine property in novel ways, owners may make mistakes, or their self-interest may clash with social welfare. Property law responds with diverse doctrines that prevent and abolish excessive …

Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier

Articles

Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand. The Justices faithfully moor their opinions to the particular terms of the Fifth Amendment, but only by stretching the text beyond recognition. A better approach is to consider the purposes of the Takings Clause, efficiency and justice, and go anew from there. Such a method reveals that in some cases there are good reasons to require payment by the government when it regulates property, but not …

Adverse Possession Of Municipal Land: It's Time To Protect This Valuable Asset, Paula R. Latovick

University of Michigan Journal of Law Reform

The laws of several states regarding adverse possession of municipal land vary widely from providing no protection to granting complete immunity from such loss. Generally, states that permit adverse possession of municipally owned land do so without articulating a rationale for allowing such a loss of a valuable municipal asset. In this Article, Professor Latovick describes why the current state of the law is unsatisfactory. She then considers the public policies raised by the issue of adverse possession of municipal land. Professor Latovick concludes by proposing that states should adopt legislation expressly protecting all municipal land from adverse possession and …

Ultra Vires Takings, Matthew D. Zinn

Michigan Law Review

When does legislative or administrative regulatory action "go[] too far" and effectively amount to an .appropriation of private property for which the Fifth Amendment requires just compensation? This question has turned out to be one of the thorniest in American constitutional law. The Supreme Court has identified several circumstances in which one can expect to find a regulatory taking, but its numerous pronouncements on the subject give no clear rule to distinguish compensable takings from noncompensable interference with property rights. Notwithstanding its volume, the commentary on the Takings Clause by and large addresses only proper governmental action that rises to …

Toward A Constitutional Kleptocracy: Civil Forfeiture In America, Stephan B. Herpel

Michigan Law Review

Leonard Levy, the legal historian who has written a number of highly regarded historical studies on various provisions of the United States Constitution, has added to his impressive oeuvre a new study of civil and criminal forfeiture. A License to Steal brings together a discussion of English legal history, a review of a number of Nineteenth Century and late Twentieth Century Supreme Court forfeiture decisions, accounts of actual applications of civil and criminal forfeiture, and a summary and critique of legislative proposals that have been made for reform of the civil forfeiture provisions of the federal drug statute. There is …

Chicana/Chicano Land Tenure In The Agrarian Domain: On The Edge Of A "Naked Knife", Guadalupe T. Lunda

Michigan Journal of Race and Law

Neither sovereignty nor property rights could forestall American geopolitical expansion in the first half of the nineteenth century. The conflicts that resulted from this clash of doctrine with desire are perhaps most evident in the history of the Chicanas/Chicanos of Texas, California, and the Southwest, who sought to maintain their land and property, as guaranteed by the Treaty of Guadalupe Hidalgo, in the aftermath of the U.S.- Mexico War. Integrating an exploration of case law with political and social histories of the period, the Author explores the sociolegal significance of Chicana/Chicano land dispossession; exposes the racial, economic, and political motivations …

The Tragedy Of The Anticommons: Property In The Transition From Marx To Markets, Michael A. Heller

Articles

Why are many storefronts in Moscow empty, while street kiosks in front are full of goods? In this Article, Professor Heller develops a theory of anticommons property to help explain the puzzle of empty storefronts and full kiosks. Anticommons property can be understood as the mirror image of commons property. By definition, in a commons, multiple owners are each endowed with the privilege to use a given resource, and no one has the right to exclude another When too many owners hold such privileges of use, the resource is prone to overuse - a tragedy of the commons. Depleted fisheries …

Facing The Facts: An Empirical Study Of The Fairness And Efficiency Of Foreclosures And A Proposal For Reform, Debra Pogrund Stark

University of Michigan Journal of Law Reform

Lenders view real estate foreclosures as too expensive and time consuming a process which needlessly increases the costs of making loans. Others complain that the foreclosure process fails to adequately protect the borrower's equity (the value of the property in excess of the debt secured by the property) in the mortgaged property.

This article tests these views by gathering new data on the fairness and efficiency of the foreclosure process. Based on the data collected (which confirms some assumptions but disproves others), the author proposes a reform of the foreclosure process to promote the interest of both lenders and borrowers. …

An Implied Cause Of Action Under The Real Estate Settlement Procedures Act, Christopher L. Sagers

Michigan Law Review

John and Janet lived for most of their early years together in a townhouse in Manhattan. It was a rental, a two-story walk-up on the Upper West Side with barely enough room for the two of them, and it ate up most of their income so that they were barely able to save anything. "Wait a minute," John said one day, "we're paying almost as much for this dump as we'd pay for a mortgage on a nice house!" So the two of them looked over their finances. Not much there. A few thousand and a 401(k) at Janet's work. …

Moving From Colonias To Comunidades: A Proposal For New Mexico To Revisit The Installment Land Contract Debate, Elizabeth M. Provencio

Michigan Journal of Race and Law

Communities of Mexican Americans in the Southwest, known as colonias, have provided many low-income buyers with affordable opportunities. Affordability, however, comes at a high price for the colonias residents. Most of the buyers live in colonias pursuant to installment land contracts, devices which allow buyers to spread the purchase price of property over a number of years but leave them without legal title or equity under New Mexico law. The buyers sacrifice their legal rights to "own" small, unimproved lots of land in developments that are often without electricity, gas, a sewage system, and indoor plumbing. The author argues …

The Cathedral' At Twenty-Five: Citations And Impressions, James E. Krier, Stewart J. Schwab

Articles

It was twenty-five years ago that Guido Calabresi and Douglas Melamed published their article on property rules, liability rules, and inalienability' Calabresi, then a law professor, later a dean, is now a federal judge. Melamed, formerly a student of Calabresi's, is now a seasoned Washington attorney. Their article-which, thanks to its subtitle, we shall call The Cathedral-has had a remarkable influence on our own thinking, as we tried to show in a recent paper2 This is not the place to rehash what we said then, but a summary might be in order. First, we demonstrated that the conventional wisdom about …

The Takings-Puzzle Puzzle, James E. Krier

Articles

My aim here is to unpack the regulatory takings problem in a way that suggests why it is intractable. The idea is to reveal some of the different types of ambiguity necessarily entailed in takings cases. Seeing these ambiguities, we readily can understand why the doctrine in this area is so confused and confusing; why there is, in short, a "takings puzzle." To my mind, it is much more difficult to understand why anyone would expect matters to be otherwise. This oddity I call the "takings-puzzle puzzle."

Curtailing The Economic Distortions Of The Mortgage Interest Deduction, William T. Mathias

University of Michigan Journal of Law Reform

Many Americans consider the mortgage interest deduction a necessary fixture of the American tax system. In this Article, Mathias examines the economic underpinnings of the deduction and finds that it cannot be justified on purely economic grounds. He then evaluates the major policy arguments for the mortgage interest deduction and concludes that it is inefficient, inequitable, and too costly in its present form to be justified on policy grounds. Finally, the author advocates for the elimination or substantial reduction in the size and scope of the mortgage interest deduction.

Adverse Possession Against The States: The Hornbooks Have It Wrong, Paula R. Latovick

University of Michigan Journal of Law Reform

The hornbook rule is that adverse possession statutes do not run against land owned by state governments. Yet, in practice, the land of many states is subject to loss by adverse possession. Few states have statutes that simply and explicitly protect all state land from adverse possession. This Article describes the variety of ways in which states protect or fail to protect their land from adverse possession. It concludes with the recommendation that, given increasing development pressures and limited state enforcement budgets, state legislatures should protect completely all state land from adverse possession.

Why Is This Man A Moderate?, Richard A. Epstein

Michigan Law Review

A Review of William A. Fischel, Regulatory Takings: Law, Economics, and Politics

Stories About Property, William W. Fisher Iii

Michigan Law Review

A Review of Carol M. Rose, Property and Persuasion: Essays on the History, Theory, and Rhetoric of Ownership

Husband And Wife Are One - Him: Bennis V. Michigan As The Resurrection Of Coverture, Amy D. Ronner

Michigan Journal of Gender & Law

Although the legal fictions of coverture and guilty property have been repudiated by statutes and the Court respectively, the Supreme Court implicitly resurrected and fused the coverture and guilty property myths in Bennis v. Michigan. In that decision, the Court approved the forfeiture of Ms. Bennis' interest in a car in which her husband engaged in sexual activity with a prostitute. This Article explores that resurrected conglomerate in three parts. Part I is a concise review of the feudal doctrine of coverture and the disabilities it imposed on married women. Part II focuses almost entirely on the decision in …

Faculty Spotlight, Michael Heller

Other Publications

Professor Michael Heller talks about his teaching and research.

Capture And Counteraction: Self- Help By Environmental Zealots (Allen Chair Symposium 1996: The Future Of Environmental And Land-Use Regulation), James E. Krier

Articles

Self-help is a largely neglected topic in American legal studies.1 With the exception of a survey by a group of law students published a dozen years ago,2 there appears to be little, if anything, in our legal literature that confronts the subject in a systematic way.3 This is so, at least, if one defines self-help as I do. To me, the term refers to any act of bypassing the formal legal system in order to get what one wants.

Pragmatism, Feminism, And The Problem Of Bad Coherence, Catharine Pierce Wells

Michigan Law Review

A Review of Reinterpreting Property by Margaret Jane Radin

Raiders Of The Lost Scrolls: The Right Of Scholarly Access To The Content Of Historic Documents, Cindy Alberts Carson

Michigan Journal of International Law

In Section I of this article, I will describe the events that led to the current controversy. In Section II, I will discuss whether the content of historic documents can be classified as cultural property. In Section III, I will consider whether control of the content of these documents interferes with intellectual freedom. In Section IV, I will discuss the intellectual property arguments raised by owners and interpreters of the Scrolls. Finally, in Section V, I will propose standards for access to, and preservation of, historic documents.

Reforming The State-Enterprise Property Relationship In The People's Republic Of China: The Corporatization Of State-Owned Enterprises, Deborah Kay Johns

Michigan Journal of International Law

Part I of this Note first describes the problems that have prodded China to restructure its SOEs and then explains the root of those problems - the state-enterprise property relationship. This part concludes with a description of the unsuccessful attempts to date to reform that relationship. To understand why these efforts have met with little success, Part II explores the way in which most transition economies have attempted to address the ambiguity in the state-enterprise property relationship, by abolishing it through privatization. Although privatization is neither economically nor ideologically suited to China, experience with privatization does hold one lesson for …

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

Articles

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 …

Chix Nix Bundle-O-Stix: A Feminist Critique Of The Disaggregation Of Property, Jeanne L. Schroeder

Michigan Law Review

Property was dead, to begin with. The coroner, Wesley Newcomb Hohfeld, revealed that the unity, tangibility, and objectivity of property perceived by our ancestors was a phantom. Property is, in fact, merely a "bundle of sticks." When conceptualized as a collection of rights, property loses its distinctive qualities and its essence. It therefore does not, or at least should not, exist. Without unity and physicality, property loses its objectivity and can only be a myth. The rabble might still believe in the old gods of property, but the educated "specialists" now know that this was vulgar superstition. Once the populace …

The Inherent Power In Mapping Ownership, Michael P. Conzen

Michigan Law Review

A Review of The Cadastral Map in the Service of the State: A History of Property Mapping by Roger J.P. Kain and Elizabeth Baigent

Marketable Pollution Allowances (Great Lakes Symposium), James E. Krier

Articles

In March 1993, the EPA auctioned off 150,010 sulfer dioxide emissions permits at the Chicago Board of Trade. The auction brought in $21.4 million and ushered in the Clean Air Act's market-based approach to sulfur dioxide control. Congress created these marketable pollution allowances (MPAs) under Title IV of the Clean Air Act Amendments of 19903 to regulate acid rain pollution. While most MPAs were bought by utilities, to be exchanged as a commodity according to need, some MPAs were removed from the market solely to prevent their use by polluters. The Cleveland-based National Healthy Air License Exchange bought one allowance …