Property Law and Real Estate Commons^™

Property's Problem With Extremes, Lynda L. Butler

Faculty Publications

Western-style property systems are ill-equipped to deal with extremes--extreme poverty, extreme wealth, extreme environmental harm. Though they can effectively handle many problems, the current systems are inherently incapable of providing the types of reform needed to address extreme situations that are straining the fabric of societies--situations that are stressing the integrity of core societal and natural systems to the breaking point. The American property system, in particular, is problematic. The system has a long tradition of strong individual rights and relies primarily on the efficiency norm to operate and shape the incentives of rights holders. The economic model that now …

Right On Time: A Reply To Professors Allen, Claeys, Epstein, Gordon, Holbrook, Mossoff, Rose, And Van Houweling, Dotan Oliar, James Y. Stern

Faculty Publications

A simple observation started us off in writing Right on Time. Studying and teaching intellectual property law, we noticed striking parallels between traditional first possession rules in property law and analagous rules governing the acquisition of patent, copyright, and trademark rights. We thought that established first possession principles could illuminate the workings of IP law. As we dug in, however, it became increasingly clear that our premise wasn’t quite right. While many penetrating commentators had said many penetrating things about first possession, the leading treatments tended to focus on significant individual aspects of the overall issue. What we could …

When (And Why) The Levee Breaks: A Suggested Causation Framework For Takings Claims That Arise From Government-Induced Flooding, Charles D. Wallace

William & Mary Law Review

In 1968, the United States Army Corps of Engineers finished constructing the seventy-six-mile Mississippi River-Gulf Outlet (MR-GO) navigational channel. Congress authorized the Army Corps of Engineers to begin construction to create a shipping route between New Orleans and the Gulf of Mexico. However, the MRGO also caused significant erosion and other environmental detriments that greatly increased the risk of flooding around its vicinity. The Army Corps of Engineers learned about many of these detriments and risks through numerous studies it conducted between 1998 and 2005, but never fully addressed them.

Hurricane Katrina eventually showcased the MR-GO’s defects in violent fashion. …

Property Beyond Exclusion, Lee Anne Fennell

William & Mary Law Review

Property rights have long been associated with a simple and distinctive technology: exclusion. But technologies can become outdated as conditions change, and exclusion is no exception. Recent decades have featured profound changes that have made exclusion a less useful, less necessary, and more expensive way of regulating access to resources. This Article surveys the prospects for a post-exclusion understanding of real and personal property. It proceeds from the premise that property is built upon complementarities, the nature and scale of which have undergone seismic shifts. Physical boundaries and lengthy claims on resources are designed to group complementary elements together in …

The State Of Exactions, Timothy M. Mulvaney

William & Mary Law Review

In Koontz v. St. Johns River Water Management District, the Supreme Court slightly expanded the range of land use permitting situations in which heightened judicial scrutiny is appropriate in a constitutional “exaction” takings case. In crafting a vision of regulators as strategic extortionists of private property interests, though, Koontz prompted many takings observers to predict that the case would provide momentum for a more significant expansion of such scrutiny in takings cases involving land use permit conditions moving forward, and perhaps even an extension into other regulatory contexts, as well.

Five years on, this Article evaluates the extent to which …

Researching And Keeping Up To Date With Real Estate Law In Virginia, Frederick W. Dingledy

Library Staff Publications

No abstract provided.

Murr V. Wisconsin And The Inherent Limits Of Regulatory Takings, Lynda L. Butler

Faculty Publications

This article examines the confusion surrounding constitutional protection of property under the substantive due process and takings clauses, using Murr as a springboard for reconsidering the substantive due process/takings distinction and asking whether the regulatory takings doctrine should remain a viable constitutional concept despite its muddled principles. While powerful reasons support treating as compensable economic regulations that are functionally equivalent to physical takings, important differences between physical and regulatory takings need to be recognized as limits to the degree of equivalence possible and therefore to the regulatory takings doctrine. A look back at the evolutionary paths of substantive due process, …

Brigham-Kanner Property Rights Journal, Volume 8, William & Mary Law School

Brigham-Kanner Property Rights Journal

The Federalism Dimension of Constitutional Property

October 4-5, 2018

Panel 1: The Federalism Dimension of Constitutional Property: A Tribute to Sterk

Panel 2: Background Principles of Common Law and Constitutional Property

Lunch Roundtable: Other Emerging Issues in Constitutional Protection of Property

Panel 4: The Constitutionality of Land Use Exactions

Contributing Author (Reveley)

Tenant-Victims, Abusers, And No Way To Escape: The Need For An Amendment To The Florida Residential Landlord And Tenant Act, Adam Bent

William & Mary Journal of Race, Gender, and Social Justice

Under the Florida Residential Landlord and Tenant Act, there is no right to early lease termination for tenants who must move to escape domestic, stalking, sexual, or dating violence. Florida’s failure to grant a right to early lease termination compounds the physical and psychological harm that victims face; abusers often live with the victim or know where the victim lives. In turn, abusers can return to the victim’s home and harm the victim; often, this results in serious physical harm or death. This Article explains why existing criminal and civil law does not adequately protect victims from their abusers. The …

Time For A Change In Eminent Domain: A “Dirt Farmer’S” Story Shows Why Just Compensation Should Include Lost Profits, Edward Walton

William & Mary Bill of Rights Journal

No abstract provided.

Right On Time: First Possession In Property And Intellectual Property, Dotan Oliar, James Y. Stern

Faculty Publications

How should we allocate property rights in unowned tangible and intangible resources? This Article develops a model of original acquisition that draws together common law doctrines of first possession with original acquisition doctrines in patent, copyright, and trademark law. The common denominator is time: in each context, doctrine involves a trade-off between assigning entitlements to resources earlier or later in the process of their development and use. Early awards risk granting exclusivity to parties who may not be capable of putting resources to their best use. Late awards prolong contests for ownership, which may generate waste or discourage acquisition efforts …

Natural Resource And Natural Law Part I: Prior Appropriation, Robert W. Adler

William & Mary Law Review

In recent years, there has been a resurgence of civil disobedience over public land policy in the West, sometimes characterized by armed confrontations between ranchers and federal officials. This trend reflects renewed assertions that applicable positive law violates the natural rights (sometimes of purportedly divine origin) of ranchers and other land users, particularly under the prior appropriation doctrine and grounded in Lockean theories of property. At the same time, Native Americans and environmental activists have also relied on civil disobedience to assert natural rights to a healthy environment based on public trust, fundamental human rights, and other principles. This Article …

How Bitcoin Functions As Property Law, Eric D. Chason

Faculty Publications

Bitcoin replicates many of the formal aspects of real estate transactions. Bitcoin transactions have features that closely resemble grantor names, grantee names, legal descriptions, and signatures found in real property deeds. While these “Bitcoin deeds” may be interesting, they are not profound. Bitcoin goes beyond creating simple digital deeds, however, and replicates important institutional aspects of real estate transactions, in particular recordation and title assurance. Deeds to real property are recorded in a central repository (e.g., the public records office), which the parties (and the public) can search to determine title. When one grantor executes more than one deed covering …

Cutting Pension Rights For Public Workers: Don't Look To The Courts For Help, Ronald H. Rosenberg

Faculty Publications

Every day we rely on public employees to provide us with a broad range of services necessary to daily life. These workers include public school teachers, fire and police, emergency medical technicians, park rangers, nurses just to name a few. As public employees, these people work for local and state government and they are compensated by us for their services through the taxes we pay. In general, these are modestly paid workers who also receive pensions when they retire after many years of work. Following the financial crisis of 2008-2009, government retirement trust funds significantly lost value and their long-term …

Introduction: Property In Ecology, Jonathan H. Adler

Faculty Publications

Are property rights in ecological resources compatible with environmental protection? Might they be essential?

Working at the local level, conservationists have often rediscovered Aldo Leopold’s counsel that private rights can be more effective than government regulation. Conservation goals have been dramatically enhanced by the growth of land trusts and increasing use of property instruments such as conservation easements. Land ownership in fee simple is one way a conservation organization may protect a particular place, but it is hardly necessary in many contexts. Conservation easements and other partial interests in land are often a highly cost-effective alternative, particularly where conservation is …

The Superior Solution To The “Denominator Problem” — Comparing The Majority And Dissent’S Property Benchmark Tests In Murr V. Wisconsin With A Focus On Property Owners’ Reasonable Expectations, Rosemary K. Mcguirk

William & Mary Bill of Rights Journal

No abstract provided.

When Are You An Investor Versus A Dealer In Real Property? (Powerpoint), James B. Sowell, Stephen J. Giordano

William & Mary Annual Tax Conference

No abstract provided.

A Prudential Take On A Prudential Takings Doctrine, Katherine Mims Crocker

Faculty Publications

The Supreme Court is set to decide a case requesting reconsideration of a doctrine that has long bedeviled constitutional litigants and commentators. The case is Knick v. Township of Scott, and the doctrine is the "ripeness" rule from Williamson County Regional Planning Commission v. Hamilton Bank that plaint~ffs seeking to raise takings claims under the Fifth Amendment must pursue state-created remedies first- the so-called "compensation prong" (as distinguished from a separate "takings prong"). This Essay argues that to put the compensation prong in the best light possible, the Court should view the requirement as a "prudential" rule rather than (as …

Patent Prior Art And Possession, Timothy R. Holbrook

William & Mary Law Review

Prior art in patent law defines the set of materials that the United States Patent and Trademark Office (USPTO) and courts use to determine whether the invention claimed in a patent is new and nonobvious. One would think that, as a central, crucial component of patent law, prior art would be thoroughly theorized and doctrinally coherent. Nothing could be further from the truth. The prior art provisions represent an ad hoc codification of various policies and doctrines that arose in the courts.

This Article provides coherency to this morass. It posits a prior art system that draws upon property law’s …

Section 3: Property Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Brigham-Kanner Property Rights Conference Journal, Volume 7, William & Mary Law School

Brigham-Kanner Property Rights Journal

The Future of Regulatory Takings

October 12-13, 2017

Panel 1: The Future of Land Use Regulation: A Tribute to Callies

Panel 3: Property Rights in Water

Panel 4: The Denominator Problem and Other Emerging Issues in the Regulatory Takings Field

Hohfeld And Property, Michael S. Green

Popular Media

No abstract provided.

The Schofield/Gunner Decisions And Episcopal Church Property-Splitting Litigation: Considering Proposed Improvements To The Litigation Process And The Neutral Principles Of Law Doctrine, Ten Years On, Timothy D. Watson

William & Mary Business Law Review

In recent years, the Episcopal Church in the United States has seen a spate of parishes leaving the Church. Many of these departing parishes have attempted to take property with them as they leave and continue to operate independently or realign themselves with a different denomination. The Episcopal Church maintains that this property is held by the parishes on behalf of the national Church, and has generally been successful in obtaining a return of the property through legal action. In deciding these suits, state courts have skirted carefully around the contours of ecclesiastical questions; many state courts, following the Supreme …

The Natural Property Rights Straitjacket: The Takings Clause, Taxation, And Excessive Rigidity, Eric Kades

Faculty Publications

Natural property rights theories have become the primary lens through which conservative jurists and scholars view the Constitution’s main property rights provision, the Takings Clause. One of their most striking arguments is that progressive income taxation — applying higher tax rates to higher incomes — is an unconstitutional taking of wealthy taxpayers’ property. This has become part and parcel of well-established battle lines between conservative property rights advocates and their liberal counterparts. What has gone unnoticed is that the very same argument deployed against progressive taxation also deems regressive taxation — applying lower tax rates to higher incomes — an …

Vacant Housing Study: An Examination Of Vacant And At-Risk Housing In The Middle Peninsula, Todd Scheid, Kean Devine, Eric Mccoy

Virginia Coastal Policy Center

In collaboration with Virginia Coastal Policy Center- William & Mary Law School, this report addresses the issue of vacant housing in the Middle Peninsula region with possible solutions. This report contains the results of a survey conducted by the Middle Peninsula Planning District Commission (MPPDC) and demographic data of the region to more clearly express the issues that the Middle Peninsula faces in relation to vacant and at-risk housing.

Reverse Exactions, Gregory M. Stein

William & Mary Bill of Rights Journal

When an owner applies for a permit to use property in a certain way, the government body with jurisdiction can either deny the permit, grant the permit outright, or grant the permit subject to conditions. These conditions—known as “exactions”—must meet two constitutional thresholds. First, there must be a close linkage between a problem the owner’s project will create or exacerbate, such as increased traffic caused by a proposed new shopping mall, and the exaction the government proposes, such as the dedication of land for a new right-turn lane. Second, the condition the government suggests must be proportional in magnitude to …

Brigham-Kanner Property Rights Conference Journal, Volume 6, William & Mary Law School

Brigham-Kanner Property Rights Journal

The Role of Property in Secure Societies

October 19-21, 2016

Panel 1: Land Titling, Inclusion, and the Role of Property Rights in Secure Socities

Panel 3: Property's Role in the Fundamental Political Structure of Nations

Panel 5: Eminent Domain and Expropriations as Wealth Redistribution Tools

Panel 6: Defining and Protecting Property Rights in Intangible Assets

Panel 7: Rising Seas and Private Property: Advocates and Academics Debate Format

Panel 8: Property Rights as Defined and Protected by International Courts

Buying Happiness: Property, Acquisition, And Subjective Well-Being, David Fagundes

William & Mary Law Review

Acquiring property is a central part of the modern American vision of the good life. The assumption that accruing more land or chattels will make us better off is so central to the contemporary preoccupation with acquisition that it typically goes without saying. Yet an increasing body of evidence from psychologists and economists who study hedonics—the science of happiness—yields the surprising conclusion that getting and having property does not actually increase our subjective well-being. In fact, it might even decrease it. While scholars have integrated the insights of hedonics into other areas of law, no scholarship has yet done so …

Property As A Management Institution, Lynda L. Butler

Faculty Publications

No abstract provided.

Real Estate Methods And Credits: A Summary Of Recent Developments And Strategies (Powerpoint), Brandon C. Carlton

William & Mary Annual Tax Conference

No abstract provided.