Property Law and Real Estate Commons^™

Why Kelo Is Not Good News For Local Planners And Developers, Daniel H. Cole

Articles by Maurer Faculty

When the Supreme Court announced its 2005 decision in Kelo v. City of New London, few legal scholars were surprised at the outcome, which was premised on precedents extending back to the middle of the 19th century. Legal scholars were surprised, however, by the intense political reaction to Kelo (fueled substantially by Justice O'Connor's hyperbolic dissent), as property-rights advocates, legislators (at all levels of government), and media pundits assailed the ruling as a death knell for private property rights in America.

Kelo's combination of relative legal insignificance and high political salience makes it an interesting case study in cross-institutional dynamics, …

Beyond Worship: The Religious Land Use And Institutionalized Persons Act Of 2000 And Religious Institutions' Auxiliary Uses, Sara C. Bronin

Cornell Law Faculty Publications

Religious institutions have long offered their congregants services that go beyond worship. Particularly in the last two decades, they have begun expanding far beyond their traditional offerings to a wider and more diverse array of auxiliary uses - non-worship uses that are affiliated with a religious institution. (One type of large religious institution, the megachurch, is fast gaining members by offering schools, community centers, dining facilities, even movie theaters and gymnasiums.) Government has long granted special protections to the worship uses of religious institutions. A recent federal law - the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) …

The Just And The Wild, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

It's Not About The Fox: The Untold History Of Pierson V. Post, Bethany Berger

Faculty Articles and Papers

For generations, Pierson v. Post, the famous fox case, has introduced students to the study of property law. Two hundred years after the case was decided, this Article examines the history of the case to show both how it fits into the American ideology of property, and how the facts behind the dispute challenge that ideology. Pierson is a canonical case because it replicates a central myth of American property law, that we start with a world in which no one has rights to anything and the fundamental problem is how best to convert it to absolute individual ownership. The …

Listening To All The Voices, Old And New: The Evolution Of Land Ownership In The Modern West, Charles Wilkinson

Publications

No abstract provided.

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 …

Undeserving Heirs?--The Case Of The "Terminated" Parent, Richard Lewis Brown

University of Richmond Law Review

Every state has an intestate succession statute that prescribes how the property of those who die without a will should be distributed. Every state also by statute authorizes the government to intervene in the parent-child relationship in the most draconian manner possible by involuntarily terminating parental rights. This article explores how the law functions at the intersection of these two statutory schemes-the inheritance regime, as expressed through intestate succession statutes, and the child welfare regime, as expressed through termination of parental rights statutes ("TPR statutes").

Visions Of Guadalupe: Traces Of The Ghost Panel, Gerald Torres

Cornell Law Faculty Publications

No abstract provided.

The Presumption Of Undue Influence Resurrected: He Said/She Said Is Back, Christine Manolakas

McGeorge School of Law Scholarly Articles

No abstract provided.

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 …

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 …

"We Shall Not Be Moved": Urban Communities, Eminent Domain And The Socioeconomics Of Just Compensation, James J. Kelly Jr.

Journal Articles

If eminent domain is to serve true community development, statutory reforms must limit its propensity to abuse while still preserving its effectiveness. The first part of this article offers a normative legal theory of eminent domain as constrained by both the availability of alternative means of achieving public objectives and the inability of some condemnees to be made whole by cash compensation. The consideration of the land needs of both the condemnor and the condemnee is crucial to the respective evaluations of public use and just compensation as limitations on eminent domain. In the context of urban redevelopment, the theory …

The Great Mall Of China: Should The United States Restrict Importation Of Chinese Cultural Property?, Inbal Baum

Cardozo Arts & Entertainment Law Journal

No abstract provided.

No Guarantees: Lessons From The Property Rights Gained And Lost By Married Women In Two American Colonies, Yvette Joy Liebesman

All Faculty Scholarship

While our own history demonstrates long-term forward progress and expansion of women’s rights, it is also marked with periods of back-treading, and there is no absolute assurance that the rights women in the United States enjoy today will be present in the future. Rights of property, suffrage, and liberty are not guaranteed to last forever, and not just in places such as Iran and Afghanistan. Indeed, we are only a few generations removed from circumstances in which our own freedom was sharply curtailed, and they are under a continuing threat.

The Potential Impact Of Aboriginal Title On Aquaculture Policy, Diana Ginn

Articles, Book Chapters, & Popular Press

This chapter discusses the potential impact of aboriginal property rights on the development of aquaculture policy by considering whether such rights could provide a basis for First Nation peoples to participate in aquaculture or to manage the participation of others in this industry. The purpose of the chapter is to describe the relevant law as it now stands, to identify issues that have not yet been decided and to consider how the courts might approach such issues in the future.

A Principled Approach To Property Rights In Canadian Aquaculture, Phillip Saunders, Richard Finn

Articles, Book Chapters, & Popular Press

The 1995 Federal Aquaculture Development Strategy summarized some of the difficulties facing aquaculture development in a federal state such as Canada, where the jurisdictional entitlements relevant to this “new” (or at least newly significant) industry are by no means clear:

Aquaculture is a formidable policy challenge. As a new industry, it straddles the line between fishing and farming, cuts across significant regional differences and is placed in a context involving the participation of municipal, provincial/territorial and federal governments.

Caution, Cooperative Agreements, And The Actual State Of Things: A Reply To Professor Fletcher, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

This short article argues that tribal governments considering entering into cooperative agreements with federal, state, or local governments ought to maintain a healthy skepticism regarding the non-tribal governments sitting across from them at the negotiating table and the appropriateness of entering into cooperative agreements.

Treading On Hallowed Ground: Implications For Property Law And Critical Theory Of Land Associated With Human Death And Burial, Mary Clark

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Emergence Of Exacted Conservation Easements, Jessica Owley Lippmann

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Common Law Property Metaphors On The Internet: The Real Problem With The Doctrine Of Cybertrespass, Shyamkrishna Balganesh

Faculty Scholarship

The doctrine of cybertrespass represents one of the most recent attempts by courts to apply concepts and principles from the real world to the virtual world of the Internet. A creation of state common law, the doctrine essentially involved extending the tort of trespass to chattels to the electronic world. Consequently, unauthorized electronic interferences are deemed trespassory intrusions and rendered actionable. The present paper aims to undertake a conceptual study of the evolution of the doctrine, examining the doctrinal modifications courts were required to make to mould the doctrine to meet the specificities of cyberspace. It then uses cybertrespass to …

The Changing Culture Of American Land Use Regulation: Paying For Growth With Impact Fees, Ronald H. Rosenberg

Faculty Publications

No abstract provided.

Contextualizing The Losses Of Allotment Through Literature, Kristen A. Carpenter

Publications

In this article, the Author undertakes a law and literature approach to a major Indian law problem: understanding the losses of allotment. Allotment was a mid 19th - early 20th century federal legislative program to take large tracts of land owned by Indian tribes, allocate smaller parcels to individual Indians, and sell off the rest to non-Indians. The idea was that Indians would abandon traditional patterns of subsistence to become American-style farmers, and great tracts of land would be freed up for the advance of white settlement. A key component of the federal government's larger project of assimilating Indians into …

Today's Indian Wars: Between Cyberspace And The United Nations, S. James Anaya

Publications

No abstract provided.

The Green Costs Of Kelo: Economic Development Takings And Environmental Protection, Jonathan H. Adler, Ilya Somin

Faculty Publications

The Supreme Court’s recent decision in Kelo v. City of New London has rekindled the debate over “economic development” takings—condemnations that transfer property from one private owner to another solely on the ground that doing so might improve the local economy or increase tax revenue. While such takings have been condemned by many commentators on both the right and the left, environmentalists have been notably absent among Kelo’s critics. Some environmentalists have even defended the Kelo decision and the use of eminent domain to spur private economic development. At the same time, scholarly commentary on Kelo and other economic …

Save The Cities, Stop The Suburbs?, Nicole Stelle Garnett

Journal Articles

The fact that the word "sprawl" is uttered by curling the upper lip into a snarl captures some of the emotion generated by the current debate over American land use policy. Two recent books - Robert Bruegmann's defense of sprawl and Joel Kotkin's ambitious but short history of great cities - provide an opportunity to consider sprawl's costs and benefits and also to examine the case for legal efforts to curtail sprawl in order to save our cities. These are important questions because, as Bruegmann observes, calls for "stopping" sprawl may proceed from serious misconceptions about its extent, causes, and …

Indian Land Claims: Sherrill And The Impending Legacy Of The Doctine Of Laches, Patrick W. Wandres

American Indian Law Review

No abstract provided.

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.

Indefeasible Title In British Columbia: A Comment On The November 2005 Amendments To The Land Title Act, Douglas C. Harris

All Faculty Publications

In November 2005, as part of an omnibus statute amending 11 different acts, the British Columbia government made several significant changes to BC's Land Title Act. The government announced that the changes to the title registration system would 'ensure immediate legal certainty of land title for a person acting in good faith, who unknowingly acquired a fee simple interest in the property through a forged transfer, provided the individual did not participate in the fraud'. In an effort to assuage fears of those who had acquired interests in a system that, if it needed to be fixed, had been somewhat …

From An Act Of God To The Failure Of Man: Hurricane Katrina And The Economic Recovery Of New Orleans, Wendy B. Scott

Villanova Law Review (1956 - )

No abstract provided.

Property And Television, John G. Sprankling

McGeorge School of Law Scholarly Articles

Property rights are-in large part-based on societal expectations. What shapes those expectations? One factor is television, our culture's most important medium of communication. The modern "reality show" may be particularly powerful in affecting the attitudes of viewers because it presents a model of "real life" behavior. This essay is the first legal scholarship to explore the relationship between television and property rights. It focuses on Survivor, the CBS program that chronicles the lives of "castaways" trying to survive in a tropical wilderness, where property is both scarce and vital. Survivor is a "reality show"-and one of the most successful programs …