Property Law and Real Estate Commons^™

Evolution Of Rules In A Common Law System: Differential Litigation Of The Fee Tail And Other Perpetuities, Jeffrey E. Stake

Articles by Maurer Faculty

This paper presents a variation on the Rubin-Priest theory of the evolution of common law rules toward efficiency. It offers the fee tail and similar restraints on alienation as examples of how inefficient rules can lead to inefficient uses of land, which cause owners to seek the help of courts in freeing their lands from the inefficient constraints. In other words, there is a feedback loop that provides courts with opportunities to overturn inefficient common law rules. We should expect this common law drift toward efficiency to be stronger for property rules than for tort rules. Because efficient property rules …

Virtual Property, Joshua Fairfield

Articles by Maurer Faculty

This article explores three new concepts in property law. First, the article defines an emerging property form - virtual property - that is not intellectual property, but that more efficiently governs rivalrous, persistent, and interconnected online resources. Second, the article demonstrates that the threat to high-value uses of internet resources is not the traditional tragedy of the commons that results in overuse. Rather, the naturally layered nature of the internet leads to overlapping rights of exclusion that cause underuse of internet resources: a tragedy of the anticommons. And finally, the article shows that the common law of property can act …

Preserving And Promoting Minnesota’S Recreational Trails: State V. Hess, Robin M. Wolpert

William Mitchell Law Review

This article assesses the significance of Hess for Minnesota’s recreational trail system and the conversion of rails to trails. Part II describes the legal context within which Hess was decided, with particular emphasis on the methodology of constructing ancient deeds to railroads and the public policy underlying the MTA. Part III sets forth the facts giving rise to the Hess decision and details the approach adopted by the court of appeals—an approach which, if affirmed by the supreme court, would have facilitated a parcel by parcel attack on the state’s ownership of its recreational trails and potentially limited the application …

Case Note: Procuring A Different Cause: The Return Of The Procuring Cause Doctrine As Applied To Minnesota Real Estate Commission Disputes In Rosenberg V. Heritage Renovations, Llc, Robert Schug

William Mitchell Law Review

This note first examines some useful history and terminology regarding real estate commission disputes, the procuring cause doctrine, and Minnesota Statutes section 82.21.4 It follows with a summary of the facts of the Rosenberg decision and the Minnesota Court of Appeals’ and Minnesota Supreme Court’s analysis of the case. This note then analyzes the supreme court’s decision to apply the procuring cause doctrine in Rosenberg, and concludes with a plea to the Minnesota legislature to clarify that the effect of the statute is to abrogate that doctrine.

Note: Poison In Our Own Backyards: What Minnesota Legislators Are Doing To Warn Property Purchasers Of The Dangers Of Former Clandestine Methamphetamine Labs, Signe Land Levine

William Mitchell Law Review

The article begins with an overview of the problems of meth abuse and manufacture in Minnesota, as well as the toxins that are left behind after physical evidence of meth labs has been removed. A discussion of current statutory seller disclosure provisions in Minnesota and in other states then follows. The article next analyzes proposed Minnesota legislation that has attempted to address the problem. A survey follows of six statutory models that provide guidance for drafting legislation to encompass disclosure, buyers’ remedies, filing forms in county land records, and requiring state-wide standards for proper cleanup. Finally, a comprehensive workable solution …

Publicity Rights As Moral Rights, David Landau, David Westfall

Scholarly Publications

Recent legal history has witnessed the creation of a large number of new forms of property. Consequently, judges and legislators have generally been willing to imbue these new forms of property with all or most of the attributes of traditional property. In this article we try to explain this trend by examining one important new kind of property, the publicity right. Publicity rights initially emerged in response to functionalist considerations: transferable rights were needed to keep pace with commercial custom. As time went on, courts began to expand the attributes of the right to new frontiers, such as inheritability. In …

Casting Lots: The Illusion Of Justice And Accountability In Property Allocation, Carol Necole Brown

Buffalo Law Review

No abstract provided.

Justice Scalia's Footprints On The Public Lands, Bret C. Birdsong

Scholarly Works

This article explores Justice Scalia's views of judicial review of administrative action, as revealed in his writings on public land law, as both a scholar and a Supreme Court justice. It examines and explains why Professor Scalia favored judicial review of public land administration while Justice Scalia seems to abhor it. In a sweeping law review article published in 1970, Professor Scalia argued that the doctrine of sovereign immunity historically did not apply in public lands cases. On the Court he has penned two of the most significant decisions addressing judicial review of public lands administration, each of them imposing …

The Emergence Of Exacted Conservation Easements, Jessica Owley Lippmann

Articles

No abstract provided.

Recovering Homelands, Governance, And Lifeways: A Book Review Of Blood Struggle: The Rise Of Modern Indian Nations, Kristen A. Carpenter

Publications

No abstract provided.

A Property Rights Approach To Sacred Sites Cases: Asserting A Place For Indians As Nonowners, Kristen A. Carpenter

Publications

Although the Free Exercise Clause prohibits governmental interference with religion, American Indians have been unsuccessful in challenging government actions that harm tribal sacred sites located on federal public lands. The First Amendment dimensions of these cases have been well studied by scholars, but this Article contends that it is also important to analyze them through a property law lens. Indeed, the Supreme Court has treated the federal government's ownership of public lands as a basis for denying Indian religious freedoms claims. This Article contends that such holdings rely on an "ownership model" of property law wherein the rights of the …

Policing The Spectrum Commons, Philip J. Weiser, Dale N. Hatfield

Publications

One of the most contested questions in spectrum policy is whether bands of spectrum left as unlicensed will fall victim to the tragedy of the commons. Advocates of increased unlicensed spectrum often downplay what enforcement measures are necessary to minimize interference and to prevent the tragedy of the commons problem. Even imposing spectrum etiquette requirements in addition to the FCC's equipment certification program will fail to address this concern effectively, as the development of such measures - e.g., the requirement that devices listen before they talk - does not ensure that they will be followed. Indeed, if there are incentives …

Indigenous Peoples’ Participatory Rights In Relation To Decisions About Natural Resource Extraction: The More Fundamental Issue Of What Rights Indigenous Peoples Have In Lands And Resources, James Anaya

Publications

No abstract provided.

Divergent Discourses About International Law, Indigenous Peoples, And Rights Over Lands And Natural Resources: Toward A Realist Trend, S. James Anaya

Publications

In this article renowned scholar S. James Anaya analyzes the divergent assessments of international law's treatment of indigenous peoples' demands to lands and natural resources. The author explores several strains of arguments that have been advanced within this debate, including state-centered arguments and human rights-based arguments. The author also examines the shortcomings of recurring interpretive approaches to international law that consider indigenous peoples' rights to land and resources. From this analysis the author identifies a more promising approach within the human rights framework--which he describes as a realist approach--that focuses on the confluence of values, power, and change. The author …

Back To The Future Of Conservation: Changing Perceptions Of Property Rights & Environmental Protection, Jonathan H. Adler

Faculty Publications

Property rights hold a central place in our Constitutional design and provide the foundation for America's market economy. Admiration of private property has not been universal, however. Some environmental scholars and policymakers have been particularly critical of classical liberal conceptions of private property on both theoretical and practical grounds, suggesting that traditional, classical liberal notions of property rights are incompatible with the demands of environmental protection. These perspectives influenced the development of command-and-control environmental regulation in the 1960s and 1970s. In recent years, however, the perception of private property's role in environmental conservation has begun to change. Disregard for the …

Losing Ground: Seminole And The Annexation Power Of Municipalities In Oklahoma, Kristen M. O'Connor

Oklahoma Law Review

No abstract provided.

Title 60, Section 74 Of The Oklahoma Statutes: A Unique Form Of Tenancy By The Entirety, Tom R. Russell

Oklahoma Law Review

No abstract provided.

In Re Adelphia Communications Corp. (Decided Dec. 5, 2003), Phillip Mahoney

NYLS Law Review

No abstract provided.

Comptroller Of City Of New York V. Mayor Of New York (Decided July 29, 2004), Leslie Spitalnick

NYLS Law Review

No abstract provided.

Unsubsidizing Suburbia, Nicole Stelle Garnett

Journal Articles

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

Condemnation Of Low Income Residential Communities Under The Takings Clause, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

In Part 1 of this paper, I describe the evolution of interpretation of the "public use" clause that authorizes the use of eminent domain for urban redevelopment. In Part 2, I chart the effort to narrow the scope of public use in order to eliminate or police redevelopment by condemnation. In this part, I present and analyze the arguments for such reinterpretation and the new rules suggested for how public use should be understood. I also sketch the changing economic and political situation of cities that lead them to take this activist approach to positive economic planning. I conclude that …

The Supremacy Of Soundexchange: Federal Preemption Of State Escheat Laws, Marc Shaw

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Where Have All The Royalties Gone? Emerging Technologies And The Lack Of Equitable Mechanical Royalties, Cole Sternberg

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Connecticut: Ace Equip. Sales, Inc. V. Buccino, Michael J. Graetz

Faculty Scholarship

Ace Equip. Sales, Inc. v. Buccino, 869 A.2d 626 (Conn. 2005) (reversing adoption of the civil law rule that afforded an inherent riparian right by virtue of abutting property ownership).

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 …

Eminent Domain And Secondary Rent-Seeking, Gregory S. Alexander

Cornell Law Faculty Publications

In Re Hoery V. United States: Compensating Homeowners For Loss Of Property Value Due To Toxic Pollution Under The Continuing Tort Doctrine, Elizabeth Ann Coleman

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Reconstructing The World Trade Center: An Argument For The Applicability Of Personhood Theory To Commercial Property Ownership And Use, Mary Clark

Scholarly Articles in Law Reviews & Journals

No abstract provided.

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.

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 …