Property Law and Real Estate Commons^™

Intangible Takings, Susan Eisenberg

Vanderbilt Law Review

The Constitution protects us from our own best intentions."' During times of grave emergency, the powers granted and reserved by the federal government remain unaltered in order to avoid shortsighted solutions that would, in the long run, be worse than the current crisis. Even a simple cure for appreciable suffering may have larger implications, and the rule of law does not know whether it is constraining good or aiding evil.

In the aftermath of Hurricane Katrina, the most costly natural disaster in U.S. history, the Federal Communications Commission ("FCC") imposed a shortsighted resolution that tested the boundaries of its authority. …

The Legal And Social Implications Of Insolvent Cross-Border Real Estate Developers, Edward T. Canuel

Vanderbilt Journal of Transnational Law

This article analyzes the phenomena associated with cyclical real estate markets, discussing the theoretical and market influences which motivate developers during this cycle. Fluctuating commercial real estate markets necessitate a focus on market upswings and downswings, and consideration of the roles and motivations of a wide array of actors, ranging from industry analysts and developers to lenders. Legal considerations, particularly during real estate downturns, or busts, include a variety of issues, particularly if the commercial real estate developers in question conducted business internationally. This Article details the theoretical and economic conditions found during real estate market cycles, with special emphasis …

Is The Suite Life Truly Sweet? The Property Rights Luxury Box Owners Actually Acquire, Amanda Schlager

Vanderbilt Journal of Entertainment & Technology Law

Part I of this Note offers a look at the rising trend of luxury boxes, with a discussion of what separates a license from a lease. Part II will look at the property rights frequently given to one who "leases" a luxury box and will analyze what interest in land he actually receives. Part III presents the implications of misnomers in luxury box leasing and presents possible repercussions for both luxury box owners and those to whom the owners would lease them. It also suggests a better method for creating and governing these arrangements. Finally, it asserts that because of …

The "Public Use" Of Private Sports Stadiums: Kelo Hits A Homerun For Private Developers, Cristin F. Hartzog

Vanderbilt Journal of Entertainment & Technology Law

Part I of this note briefly discusses the principle of eminent domain and the evolution of the Supreme Court's interpretation of the Takings Clause. Part II analyzes the application of the Court's interpretations of the "public use" requirement of the Takings Clause on the issue of whether it is proper for a state to exercise its power of eminent domain pursuant to a stadium development project. Finally, Part III offers a solution to the conflict between property owners' interests in keeping their land and cities' interests in creating economic growth.

Finding A Right To The City: Exploring Property And Community In Brazil And In The United States, Ngai Pindell

Vanderbilt Journal of Transnational Law

Increasing poor people's access to property and shelter in urban settings raises difficult questions over how to define property and, likewise, how to communicate who is entitled to legal property protections. An international movement--the right to the city--suggests one approach to resolving these questions. This Article primarily explores two principles of the right to the city--the social function of property and the social function of the city--to consider how to better achieve social and economic justice for poor people in urban areas. Using Brazil as one example of a country incorporating these principles within constitutional and statutory provisions and employing …

Competing Claims: The Struggle For Title In Nicaragua, Michael Roche

Vanderbilt Journal of Transnational Law

Nicaragua's Sandinista Revolution of the 1980s left the country's property scheme in a state of disarray. For eleven years, the leftist Sandinista government instituted mass land confiscations and agrarian reform that caused many individuals to lose their property and flee the country. The transition to democracy begun in 1990 has been a difficult process for the country's new presidents who have been forced to reconcile competing claims and fight corruption from within their own ranks. In this Note, the Author examines the property legacy created by the Sandinista Revolution. With another round of presidential elections scheduled for November 2006, the …

Historic Preservation In Southeast Asia: The Role Of Public-Private Partnerships, Patrick Stough

Vanderbilt Journal of Transnational Law

The role of globalization in the rapid economic success of Southeast Asia is exemplified by the growing westernization of the region's cities. While globalization has its benefits, such as encouraging investment and global connectivity, it also threatens the cultural heritage of a given area by encouraging a sort of homogeneity that makes modern cities all look alike. In particular, the goal of economic development often stands at odds with the preservation of structures and properties that reflect the cultural heritage of the region. Furthermore, many of the countries of the region are under pressure to better protect property rights, another …

Preface--International Legal Dimensions Of Art And Cultural Property, Jeffrey A. Schoenblum

Vanderbilt Journal of Transnational Law

The market for art and cultural property is international.' Demand is intense and not particularly local in terms of consumer preference. Supply responds to this intense international demand. Like most anything else, art finds its way to whomever is prepared to pay for it. Regulation affects how it arrives at its ultimate destination, but generally does not prevent it from getting there...

The symposium's contributors have sought to address the complex legal and policy issues raised by an explosive global market in art and cultural property. These articles will prove invaluable in the shaping of the international legal response to …

Globalization In Art Law: Clash Of Interests And International Tendencies, Erik Jayme

Vanderbilt Journal of Transnational Law

In my view, it is important to articulate the different interests involved in international art cases. Globalization has added the interests of the global civil society to the traditional claims and counter claims of private parties and of states or nations. Thus, public access to art works has been fostered by anti-seizure statutes protecting international exhibitions. And, it is this line of tendencies and arguments which conceives of famous art works as treasures of mankind and which should prevail in the future.

The Meaning Of Value: Assessing Just Compensation For Regulatory Takings, Christopher Serkin

Vanderbilt Law School Faculty Publications

This Article argues that valuing compensation provides just such a window into deeper theories of takings, revealing a host of considerations that map on to specific approaches to takings law. 4 Moreover, compensation rules properly applied can advance the substantive goals of various takings regimes. At the least, since the range of monetary values that can be assigned to takings claims corresponds to diverse social values, compensation rules should be applied consistently with core constitutional values. This Article therefore argues that the adequacy of compensation cannot be determined in the abstract but must rather be judged by how effectively a …

Reflections On Litigating Holocaust Stolen Art Cases, Donald S. Burris, E. R. Schoenberg

Vanderbilt Journal of Transnational Law

In this Article we have attempted to provide an overview of the Nazi-looted art cases in their historical context. We have based the discussion on our knowledge and experience in litigating art law cases, particularly cases involving Nazi art looting, post-war restitution, and recent developments in art law.

Any discussion of the legal implications of crimes committed by Nazi authorities during the Holocaust must begin with an obvious disclaimer. While bringing cases to recover artwork stolen by Nazi authorities is self-evidently a worthy pursuit, and while our firm is very proud to be intensively involved in this effort, we cannot …

Imaginatively Public: The English Experience Of Art As Heritage Property, Joseph L. Sax

Vanderbilt Journal of Transnational Law

England was once hugely prosperous and possessed an extraordinary share of the world's great art. In the years following the French Revolution, political turmoil in Europe brought a number of superb works of art on the market, and English collectors avidly bought them. Even earlier, young aristocrats returned to England from their grand tours with a keen appreciation of the aesthetic achievements of the continent and the means to acquire any works that pleased them.

With few exceptions, these treasures entered the collections of individuals as their private property. In its scope, this was a unique experience in privatization, unlike …

Public Ruses, Christopher Serkin, James E. Krier

Vanderbilt Law School Faculty Publications

The Fifth Amendment's public use requirement - a dead letter for decades - has recently been resurrected by the Michigan Supreme Court, overruling Poletown, and by the United States Supreme Court, granting certiorari in Kelo v. City of New London. At issue in these cases is the government's ability to condemn property from one private property owner and retransfer it to another, usually with a justification of more-or-less indirect economic benefits to the community. This Essay first argues the legitimacy of these government actions exists on a spectrum from true public uses, to public ruses that primarily benefit private interests …

Nationbuilding 101: Reductionism In Property, Liberty, And Corporate Governance, O. L. Reed

Vanderbilt Journal of Transnational Law

In this Article, Professor Reed re-examines the importance of property as a formal legal institution. He continues by arguing that central to creating property is the right to exclude others from resources acquired without force, theft, or fraud. In countries where this right has been firmly established, per capita income far exceeds that of countries lacking a strong right to exclude. Professor Reed then asserts the importance to nation builders of appreciating the virtual semantic equivalence of the terms "property" and "liberty." Finally, he argues that both the specific and broad senses of corporate governance can be reduced to property …

Multilateral Management As A Fair Solution To The Spratly Disputes, Wei Cui

Vanderbilt Journal of Transnational Law

The Spratlys are a scattered group of islands in the South China Sea over which China, the Philippines, Vietnam, Malaysia, and Brunei have made conflicting jurisdictional claims. Although there has been significant academic discussion of this dispute, the Author argues that much of it is hampered by a discourse obsessed with the regional balance of power and security-related strategies that are only tenuously related to each nation's specific legal claims in the Spratlys. In this Article, the Author suggests that a more productive approach to the Spratly disputes is one focused on finding a solution that is "fair" to all …

The Law Of Last Resort, Barry E. Adler

Vanderbilt Law Review

A financially distressed individual or corporation employs the bankruptcy process only as a last resort. The study of bankruptcy law, however, need not, and should not, be an afterthought. The traditional bodies of law that compose private ordering are the laws of property, contract, and tort. Property law establishes private entitlements that can be specifically enforced against the world. Contract law permits individuals to exchange obligations and thus invest one another with entitlements. Tort law creates its own set of entitlements and imposes liability for unwanted interference with those or other entitlements. These bodies of law are often presented as …

The Critical Resource Theory Of Fiduciary Duty, D. Gordon Smith

Vanderbilt Law Review

This Article proposes a new theory to unify the law of fiduciary duty. The prevailing view holds that fiduciary law is atomistic, arising for varied reasons in established categories of cases (such as trustee-beneficiary and director-shareholder) and ad hoc in relation- ships where one person trusts another and becomes vulnerable to harm as a result. By contrast, the critical resource theory of fiduciary duty holds that every relationship properly designated as "fiduciary" conforms to the following pattern: One party (the "fiduciary') acts on behalf of another party (the "beneficiary') while exercising discretion with respect to a critical resource belonging to …

Retelling Allotment: Indian Property Rights And The Myth Of Common Ownership, Kenneth H. Bobroff

Vanderbilt Law Review

The division of Native American reservations into individually owned parcels was an unquestionable disaster. Authorized by the General Allotment Act of 1887, allotment cost Indians two-thirds of their land and left much of the remainder effectively useless as it passed to successive generations of owners. The conventional understanding, shared by scholars, judges, policymakers, and activists alike, has been that allotment failed because it imposed individual ownership on people who had never known private property. Before allotment, so this story goes, Indians had always owned their land in common. Because Indians had no conception of private property, they were unable to …

Palestinian Private Property Rights In Israel And The Occupied Territories, Stacy Howlett

Vanderbilt Journal of Transnational Law

As the birth pangs of an emerging Palestinian state rage on, one question bars settlement, reconciliation, and peace: who is entitled to the land? On a macrocosmic level, this question has and will be answered through diplomatic negotiations, political pressure, and violence. The microcosmic question of the disposition of private property, however, must be taken into consideration before any lasting peace agreement can be reached.

The rights and interests of Palestinian refugees and Israeli settlers with respect to the land they have an interest in must be balanced with national needs for territorial continuity and peace. By tracing the transfer …

Renegotiation And Secured Credit: Explaining The Equity Of Redemption, Marshall E. Tracht

Vanderbilt Law Review

"In general, all persons able to contract are permitted to determine and control their own legal relations by any agreements which are not illegal, or opposed to good morals or to public policy; but the mortgage forms a marked exception to this principle."'

I. INTRODUCTION "Once a mortgage, always a mortgage." This cryptic comment, oft-repeated, summarizes a central tenet of mortgage law: The equity of redemption is essential, immutable, and unwaivable. In other words, every mortgage borrower has the right, at any time after default, to redeem the collateral by repaying the debt until the lender has completed a "foreclosure" …

Property And Economic Liberty As Civil Rights: The Magisterial History Of James W. Ely, Jr., Douglas W. Kmiec

Vanderbilt Law Review

This formidable six-volume collection by respected Vanderbilt legal historian, James W. Ely, Jr., is a paean to property as a civil right. The argument of the volumes is made through selected essays by multiple authors, covering colonial time to the present day. It is property, Ely writes in the series introduction, that secures individual autonomy from government coercion, prevents an over-concentration of political authority generally, and encourages investment and economic development., Ely knows the main lesson of history is remembering. The vast literature on the institution of private property, until now, was not sufficiently culled, digested, and assembled, however, to …

Significant Trends In The Trust Law Of The United States, Edward C. Halbach, Jr.

Vanderbilt Journal of Transnational Law

In examining significant trends in American trust law, several observations are worth mentioning at the outset. First, trust law in the United States is primarily a matter of state law; thus, the trends discussed below may appear in some states but not in others. Second, procedural merger of law and equity in this country has been substantially accomplished in nearly all states, but this should not be understood as eliminating the importance of equitable doctrine and remedies. Third, without abandoning the basic definition of a trust as a fiduciary relationship, there appear to be subtle but practically significant departures from …

The Innocent Buyer Of Art Looted During World War Ii, Michelle I. Tumer

Vanderbilt Journal of Transnational Law

This Note considers the legal issues relating to innocent buyers of looted art. After providing some historical background on the massive displacements of art that took place during World War II, the Note surveys recent developments, including the different types of disputes that have arisen in the past few years. It then provides a legal framework for analyzing one type of dispute, that of the innocent buyer of looted art.

Original owners face difficult evidentiary burdens and other litigation barriers, but law and policy nevertheless favor original owners above innocent buyers. In particular, courts have become increasingly impatient with the …

The Endangered Species Act And Private Property: A Matter Of Timing And Location, J.B. Ruhl

Vanderbilt Law School Faculty Publications

For all the controversy surrounding the effect of the Endangered Species Act ("ESA") on private property, precious little information has accompanied the heated calls for strengthening or weakening the law's land use proscriptions. Preservationist groups and property rights groups alike depend on staking out higher moral ground and producing "poster child" stories of imperiled species or property owners. The Fish and Wildlife Service ("FWS"), which implements the ESA for most of the listed endangered and threatened species, has compiled reams of data on its administrative functions' in support of its recent efforts through administrative (in lieu of legislative) reform to …

The Nexus Of Federal And State Law In Railroad Abandonments, Marc A. Sennewald

Vanderbilt Law Review

The United States Congress embarked on a new era in the regulation of interstate commerce when it created the Interstate Commerce Commission ("ICC") in 1887 to regulate railroad traffic.' A major purpose of the ICC regulatory framework, as amended by the Transportation Act of 1920, was to preempt actions by state and local authorities that prevented railroads from abandoning unprofitable lines. When Congress passed the Transportation Act, 252,588 miles of track criss-crossed the United States; by 1990 the number of rail- way miles had decreased by almost half.

Although the relative ease with which railroads abandoned unprofitable lines augmented their …

Reflections On "Buchanan V. Warley Property Rights, And Race, James W. Ely, Jr.

Vanderbilt Law Review

The landmark decision of Buchanan v. Warley' has long deserved greater attention from scholars. Decided during the so-called Progressive Era, when segregationist attitudes were at full tide, Buchanan combined judicial protection of individual property rights with solicitude for racial minorities. Indeed, Buchanan represents both the resolute defense of property owners' rights against regulation and the most significant judicial victory for civil rights during the early decades of the twentieth century.

One can only speculate about the lack of scholarly interest in Buchanan. Possibly, the dual nature of Buchanan has made it difficult for scholars to assess. Perhaps the property-centered focus …

Lest We Forget: Buchanan V. Warley And Constitutional Jurisprudence Of The "Progressive Era", Richard A. Epstein

Vanderbilt Law Review

The two principal papers in this collection are devoted to an analysis of one of the Supreme Court's landmark decisions of the Progressive era, Buchanan v. Warley.' Both David Bernstein and Michael Klarman reveal ambitions that go beyond a single case, as each discusses in detail a large part of the Progressive era jurisprudence on race relations that set the stage for Buchanan v. Warley. A short introduction is hardly the place to quibble with these papers on points of detail. But it is the place to raise one neglected theme that requires fresh emphasis. The constitutional jurisprudence that led …

The Role Of The "Harm/Benefit" And "Average Reciprocity Of Advantage" Rules In A Comprehensive Takings Analysis, Lynda J. Oswald

Vanderbilt Law Review

A "regulatory taking" occurs when the government does not formally exercise its power of eminent domain, but enacts a law or undertakes an action that results in a de facto "taking" of property for which compensation is constitutionally mandated., The United States Supreme Court has struggled for decades to determine when a land use regulation is a valid exercise of the police power (and thus not subject to the compensation requirement of the Fifth Amendment to the United States Constitution) and when such a regulation goes "too far" and becomes a regulatory taking.

The Supreme Court has developed a number …

The Right To Stay, Patrick M. Mcfadden

Vanderbilt Journal of Transnational Law

People often fight for their homes. Once established, homes are vital centers of life, and their threatened loss generates predictable resistance. This Article shows how the human desire not to be moved is protected by the law. Such protection can be found in both U.S. domestic and international law, although the two systems of law vary widely in their approach. Since World War II, international scholars and lawmakers have been deeply concerned with promoting the legal rights of people to leave and return to their own countries. This Article emphasizes a different, but equally important right: the right of people, …

Argument For The Allocation Of Resources To The Development Of A Well-Defined System Of Real Property Law In The Czech Republic, Donovan W. Burke

Vanderbilt Journal of Transnational Law

This Note analyzes the enormous burden that the Czech Republic faces in its transition from a command to a market economy. Part of the burden is the privatization of real property. Toward privatization, the government of the Czech Republic has thus far focused its resources on allocating real property to private parties through the process of restitution. Technically, title to real property in the Czech Republic has always been held by private parties, but such ownership was meaningless because the state had virtually limitless power to use the property. The author recognizes that unless the Czech government develops substantive real …