Property Law and Real Estate Commons^™

Gone Too Far: Measure 37 And The Perils Of Over-Regulating Land Use, Sara C. Bronin

Cornell Law Faculty Publications

In November 2004, Oregonians passed a ballot measure, Measure 37, that presented a radical remedy for landowners by preventing the state from engaging in regulatory takings without compensating landowners. It required that local governments either monetarily compensate landowners whose properties fall in value as a result of land use regulations or, under certain conditions, exempt those landowners from the regulations altogether. At its core, Measure 37 addressed Oregon voters' concern that - for all the good the land use system had done - the government had gone too far in prohibiting landowners from using their land as they saw fit. …

Why Rent Control Is Still A Regulatory Taking, R. S. Radford

ExpressO

The Supreme Court has repeatedly declared that land-use regulations that fail to substantially advance legitimate state interests violate the Takings Clause of the Fifth Amendment. This standard seems readily applicable to rent control, a policy that has been shown to exacerbate the problems is intended to remedy, and to impose social heavy costs that would not otherwise exist. Nevertheless, the California Supreme Court has declared that it will not strike down rent control under the substantial advancement standard, nor will it apply a heightened level of scrutiny to such regulations.

In response to these rulings, California rental property owners have …

Why Rent Control Is Still A Regulatory Taking

ExpressO

The Supreme Court has repeatedly declared that land-use regulations that fail to substantially advance legitimate state interests violate the Takings Clause of the Fifth Amendment. This standard seems readily applicable to rent control, a policy that has been shown to exacerbate the problems is intended to remedy, and to impose social heavy costs that would not otherwise exist. Nevertheless, the California Supreme Court has declared that it will not strike down rent control under the substantial advancement standard, nor will it apply a heightened level of scrutiny to such regulations.

In response to these rulings, California rental property owners have …

Teaching Property Stories, Laura S. Underkuffler

Journal of Legal Education

No abstract provided.

Federal-State Negotiations Over Federal Enclaves In The Early Republic, Adam S. Grace

ExpressO

This article examines practical solutions arrived at by the federal and state governments in resolving early interpretive issues that arose under Article I's "Enclave Clause." Focusing on the federal government's creation of federal "enclaves" for use in a national lighthouse system, the article compares these politically-based solutions with the later development of Supreme Court "Enclave Clause" jurisprudence.

Overcoming Poletown: County Of Wayne V. Hathcock, Economic Development Takings, And The Future Of Public Use, Ilya Somin

George Mason University School of Law Working Papers Series

County of Wayne v. Hathcock is an important step forward in public use takings law. The Michigan Supreme Court was right to overturn its notorious 1981 Poletown decision and forbid condemnations that transfer property to private parties solely on the grounds that the new owners will contribute to “economic development.” Poletown was the best known and most widely criticized decision justifying a nearly unlimited condemnation power.

As the Poletown case dramatically demonstrates, the economic development rationale is a virtual blank check for eminent domain abuse for the benefit of private parties. Poletown upheld a condemnation as a result of which …

20th Annual Environmental Law Institute, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the 20th Annual Environmental Law Institute held by UK/CLE in March 2005.

The Rhetorics Of Takings Cases: It's Mine V. Let's Share, Susan Ayres

Nevada Law Journal

No abstract provided.

The Rhetorics Of Taking Cases: It's Mine V. Let's Share, Susan Ayres

Faculty Scholarship

Regulatory takings cases originated in 1922 when Justice Holmes, in Pennsylvania Coal Co. v. Mahon, ruled that "while property may be regulated to a certain extent, if a regulation goes too far it will be recognized as a taking." This simple rule has resulted in over eighty years of case law that Carol Rose states has left takings law to "muddle along." While many legal scholars decry the incoherence and inconsistency of takings case law, this article provides a rhetorical analysis that explains the "muddle" as a result of rhetorical tensions between a Sophistic approach ("Let's Share") and an Aristotelian …

Destabilizing The Normalization Of Rural Black Land Loss: A Critical Role For Legal Empiricism, Thomas W. Mitchell

Faculty Scholarship

Mitchell's study exemplifies the New Legal Realist goal of combining qualitative and quantitative empirical research to shed light on important legal and policy issues. He also demonstrates the utility of a ground-level contextual analysis that examines legal problems from the bottom up. The study tracks processes by which black rural landowners have gradually been dispossessed of more than 90% of the land held by their predecessors in 1910. Mitchell points out that despite the continuing practices that contribute to this problem, there has been very little research on the issue, and what little attention legal scholars have paid to it …

What Is A Tragedy Of The Commons? Overfishing And The Campaign Spending Problem, Shi-Ling Hsu

ExpressO

Over the thirty-seven years since its publication, Garden Hardin's "Tragedy of the Commons" has clearly become one of the most influential writings of all time. The tragedy of the commons is one of those rare scholarly ideas that has had an enormous impact in academia and is also commonly used outside of academia. In legal scholarship, the tragedy of the commons has been used to characterize a wide variety of resource problems, including intellectual property rights, overcrowding of telecommunications spectra, air and water pollution, and of course, the classic environmental commons problem, overfishing. But I suggest this embarrassment of citation …

Making Laws And Sausages: A Quarter-Century Retrospective Of Penn Central Transportation Co. V. City Of New York, Gideon Kanner

William & Mary Bill of Rights Journal

No abstract provided.

Brief Of The American Planning Association Et Al. As Amici Curiae In Support Of Respondents, Kelo V. New London, No. 04-108 (U.S. Jan. 21, 2005), John D. Echeverria

U.S. Supreme Court Briefs

No abstract provided.

Brief Of The National League Of Cities Et Al. As Amici Curiae Supporting Respondents, Kelo V. New London, No. 04-108 (U.S. Jan. 21, 2005), J. Peter Byrne

U.S. Supreme Court Briefs

No abstract provided.

Cultural Displacement: Is The Glbt Community Gentrifying African American Neighborhoods In Washington, D.C.?, Chris Mcchesney

The Modern American

No abstract provided.

The Applicability Of Constructive Eviction, Implied Warranty Of Habitability, Common-Law Fraud, And The Consumer Fraud Act To Ommissions Of Material Facts In A Commercial Lease, 38 J. Marshall L. Rev. 1289 (2005), Robert W. Gray

UIC Law Review

No abstract provided.

Re-Validating The Doctrine Of Anticipatory Nuisance, George P. Smith Ii

Scholarly Articles

The law of nuisance has long been seen as the heart of real property law - this because of its distributive and re-distributive force in land use. In its present form, while often ad hoc in application, a nuisance is defined generally as merely some interference with the use and enjoyment of the land. The most common remedy to abate a nuisance is injunctive relief in equity. Yet, judicial creativity has been seen through the use of such remedies as awards of permanent damages and the compensated injunction. The doctrine of anticipatory nuisance is brought into focus usually when a …

The Passage Of Community Property Laws, 1939-1947: Was "More Than Money" Involved?, Jennifer E. Sturiale

Michigan Journal of Gender & Law

Part I of this article reviews the legal landscape that provided the backdrop against which Michigan, Nebraska, Oklahoma, Oregon, and Pennsylvania later adopted community property laws. It also examines the tax consequences of the two Supreme Court cases, Lucas v. Earl and Poe v. Seaborn, that resulted in the disparate tax treatment of married couples in common law and community property law states. Part II briefly reviews the subsequent passage of community property laws by Michigan, Nebraska, Oklahoma, Oregon, and Pennsylvania; the passage of a federal tax reduction bill that provided for equal treatment of community property law and …

Summary Of Hantges V. City Of Henderson, 121 Nev. Adv. Op. 32, Patti Ross

Nevada Supreme Court Summaries

A citizen has standing to challenge redevelopment plans, however the challenge must be done within the time proscribed under NRS 279.609. Additionally, the court held that the members of the City of Henderson’s Redevelopment Advisory Commission (“Advisory Commission”) were not “public officers” pursuant to NRS 281.4365 and therefore were not subject to the conflict of interest requirements of NRS 281.411 to 281.581.

Strike That, Reverse It: County Of Wayne V. Hathcock: Michigan Redefines Implementing Economic Development Through Eminent Domain, Rachel A. Lewis

Villanova Law Review (1956 - )

No abstract provided.

Unmasking The Predatory Loan In Sheep's Clothing: A Legislative Proposal, 21 Harv. Blackletter L. J. 129 (2005), Debra Pogrund Stark

UIC Law Open Access Faculty Scholarship

No abstract provided.

The Fair Housing Act And Religious Freedom, 11 Tex. J. C.L. & C.R. 1 (2005), Michael P. Seng

UIC Law Open Access Faculty Scholarship

No abstract provided.

Laying Down The Law: Bringing Down The Legal Cartel In Real Estate Settlement Services And Beyond, Margaret O. Rentz

Georgia Law Review

America is in the midst of an explosion in the demand for legal services, yet few Americans can afford to pay the ever-increasing cost of legal fees and are thus continually deprived of access to the legal system. Non lawyers have responded to this problem by entering the market and attempting to provide basic legal services at deeply discounted rates. Under the guise of "consumer protection," the bar has responded by blocking non lawyers from 'practicing law" with unauthorized practice statutes. A debate has emerged over whether UPL statutes actually serve American consumers or merely guard the legal cartel's economic …

Accumulation, Anthony Paul Farley

Michigan Journal of Race and Law

Anthony Farley brings a focus on class back to Critical Race Theory by exploring the intersection of race and class as a singular concept that finds its creation in the marking of difference through the primal scene of accumulation. Professor Farley's Essay contends that the rule of law is the endless unfolding of that primal scene of accumulation. By choosing to pray for legal relief rather than dismantling the system, the slave chooses enslavement over freedom. Professor Farley discusses the concept of ownership as violence and explains that property rights are the means of protecting the master class until everything …

Examining Compliance With Fiduciary Duties: A Study Of Real Estate Agents (With V. Carlos Slawson Jr.), Royce De R. Barondes, Carlos V. Slawson Jr.

Faculty Publications

The traditional default rule in the United States has been that, where two brokerage firms participate in the sale of a piece residential real estate, both firms are fiduciaries of the seller. This article provides original empirical evidence showing to be erroneous a common assumption - that, in conflicts between their principals and third parties, real estate agents promote their principals' interests - underlying revisions made in a number of jurisdictions to those principles in the last twenty years. This article examines whether agents act in accordance with their duties along two dimensions: First, we hypothesize that selling agents may …

Irresponsible Legislating: Reeling In The Aftermath Of Kelo, Patricia E. Salkin

Scholarly Works

No abstract provided.

Yes, West Virginia, There Is A Special Priority For The Purchase Money Mortgage: The Recognition Of Purchase Money Mortgage Priority In West Virginia, Abraham M. Ashton

West Virginia Law Review

No abstract provided.

Land, Labor And Reparations, Guadalupe T. Luna Northern Illinois University

Cleveland State Law Review

Kim David Chanbonpin and Ronald L. Mize, Jr. bring to LatCrit two legal historical essays that connect property and labor issues to the present. The first draws from the former Mexican land base presently comprising the American Southwest. The second examines a class of "agricultural underdogs" that provided their labor to the nation's food production systems during wartime. Both articles bring real life consequences impacting our communities of color generally but gente of Mexican descent specifically. The authors' treatment of difficult questions however, extends legal engagement that demands compensation for past injuries with consequences into the present. Their assertions of …

How The Border Crossed Us: Filling The Gap Between Plume V. Seward And The Dispossission Of Mexican Landowners In California After 1848, Kim David Chanbonpin

Cleveland State Law Review

The goal of this paper is to show how the rule in Plume v. Seward and the actual practice of the Board of Land Commissioners in California at the time are not in synch. In Section II, I provide the historical background to the United States imperialist goal of Manifest Destiny. This section also gives a factual introduction to Plume and the procedure of the Board of Land Commissioners. Section III contrasts the result in Plume with the outcomes in the Board's decisions in factually similar land claims. Section IV analyzes the Guadalupe-Hidalgo Treaty Land Claims Act proposed to Congress …

The Arkansas Trust Code: Good Law For Arkansas, Lynn Foster

University of Arkansas at Little Rock Law Review

No abstract provided.