Property Law and Real Estate Commons^™

Examining The Public Use Doctrine And Whether Expanding A Private University Is A Public Use, Chad Olsen

Brigham Young University Journal of Public Law

No abstract provided.

Original Acquisition Of Property: From Conquest & Possession To Democracy & Equal Opportunity, Joseph William Singer

Indiana Law Journal

2010 Harris Lecture, delivered April 5, 2010, Indiana University, Maurer School of Law, Bloomington, Indiana

Virtues Of Common Ownership, Anna Di Robilant

Faculty Scholarship

Professor Michael Sandel's theory of justice is attractive and inspirational for lawyers interested in social change. Sandel's call to go beyond egalitarian liberalism has real and important implications for legal and institutional engineering. However, Sandel's theory of justice is parsimonious of recommendations for medium level institutional design. It offers little detailed guidance to private lawyers called upon to design background rules for the allocation of scarce resources and necessary burdens. This essay will discuss how Sandel's theory of justice may help orient the work of lawyers and policymakers interested in a question that is central to recent property debates: the …

Public Entrenchment Through Private Law: Binding Local Governments, Christopher Serkin

Vanderbilt Law School Faculty Publications

Anti-entrenchment rules prevent governments from passing unrepealable legislation and ensure that subsequent governments are free to revisit the policy choices of the past. However, governments — and local governments in particular — have become increasingly adept at using private law mechanisms like contracts and property conveyances to make binding precommitments into the future. Simultaneously, courts and state legislatures in recent years have reduced the availability of core de-entrenching tools, like eminent domain, that have traditionally allowed governments to recapture policymaking authority from the past. These changes threaten to shift democratic power intertemporally. This Article develops a typology of mechanisms for …

"Going Green" The Wrong Way: How Governments Are Unconstitutionally Delegating Their Legislative Powers In Pursuit Of Environmental Sustainability, Brandon L. Boxler

Legislation and Policy Brief

Through either executive or legislative power, state and local governments are rapidly effecting policies that encourage environmental sustainability.  Many of these policies have logically targeted buildings and infrastructure, both of which have a significant adverse impact on the environment.  In the United States, 38 percent of the nation’s carbon dioxide emissions and 67 percent of its electricity usage come from buildings.  New laws and policies are attempting to decrease these figures by requiring construction projects to “go green” and implement sustainable building practices.  These legal initiatives have the potential to create substantial environmental benefits by reducing energy consumption, greenhouse gas …

Laudable Goals And Unintended Consequences: The Role And Control Of Fannie Mae And Freddie Mac, Andrea Boyack

Faculty Publications

The United States is struggling to emerge from an era of loose mortgage underwriting standards – lapses in credit analysis that led to origination and securitization of toxic loans. The fallout has been crippling, costing borrowers their homes, investors their money, and the government its taxes.

The Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act) passed last summer was the first comprehensive effort to address the problems in the system that led – in sequence – to the subprime crisis, the housing crisis, and the financial crisis. The Dodd-Frank Act, which contains over 2,300 pages of legislation, …

Irish Hills Natural Reserve Conservation Plan Update, Bijan N. Riley

Master's Theses

The Irish Hills Natural Reserve Conservation Plan is a unique component of the City
of San Luis Obispo’s green belt that provides a number of hiking and mountain biking
trails within a short distance from the downtown core as well as ensures that valuable
habitat be preserved into the future. As the subject of my thesis project, IHNR presented the opportunity to pursue an aspect of city planning that can often be over-looked and, conservation planning. Conservation planning is an important element of the planning profession in that it incorporates such elements into the future growth of cities. With proper …

A Presence Of The Past: The Legal Protection Of Singapore’S Archaeological Heritage, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

Singapore is not well known for its archaeological heritage. In fact, chance finds in the early 20th century and systematic archaeological excavations since the 1980s conducted at sites around the Singapore River have unearthed artefacts shedding light on the island’s early history. In addition, the value of archaeology for a deeper knowledge of Singapore’s British colonial past is increasingly being recognized. Nonetheless, Singapore law provides only a rudimentary framework to facilitate archaeological investigations and protect cultural artefacts. This article considers how the National Heritage Board Act (Cap 196A, 1994 Rev Ed), the Planning Act (Cap 232, 1998 Rev Ed), and …

A Foxy Hedgehog: The Consistent Perceptions Of Carol Rose, Jedediah Purdy

William & Mary Bill of Rights Journal

Presented at the 2010 Brigham-Kanner Property Rights Conference.

Response, Carol M. Rose

William & Mary Bill of Rights Journal

Presented at the 2010 Brigham-Kanner Property Rights Conference.

The Backwards Gesture: Historical Narratives In Carol Rose's Property Scholarship, Daniel J. Sharfstein

William & Mary Bill of Rights Journal

Presented at the 2010 Brigham-Kanner Property Rights Conference.

The Florida Beach Case And The Road To Judicial Takings, Michael C. Blumm, Elizabeth B. Dawson

William & Mary Environmental Law and Policy Review

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, the U.S. Supreme Court unanimously upheld a state beach restoration project against landowner claims of an unconstitutional taking of the property. This result was not nearly as surprising as the fact that the Court granted certiorari on a case that turned on an obscure aspect of Florida property law: whether landowners adjacent to a beach had the rights to future accretions of sand and to maintain contact with the water.

The Court’s curious interest in the case was piqued by the landowners’ recasting the case from the regulatory taking …

The Silver Lining In The Red Giant: China’S Residential Mortgage Laws Promote Temperance Among The Surging Middle Class, Clayton D. Laforge

Law Student Publications

This comment examines the rise of China‘s middle class and proactive governance to protect its economy from a housing bubble during the global downturn. An analysis of recently enacted Chinese labor and corporate laws demonstrates how the government facilitated the rise of the middle class. The comment dis-cusses the ramifications of strict domestic residential mortgage regulations and how China‘s tempered investment structure secured its domestic housing market. Part II of this comment examines China‘s investment and consumption patterns compared to domestic growth. Part III discusses how the surging middle class grew to seek investment opportunities in the real estate market …

Condemning The Decisions Of The Past, Christopher Serkin

Vanderbilt Law School Faculty Publications

This brief Essay, part of a Fordham Urban Law Journal Symposium on eminent domain in New York, argues that there is a seldom-recognized purpose to eminent domain: preserving the ability of elected representatives to respond to the will of the people. The essay proposes that eminent domain allows government to depart from the policy choices of administrations which came before and is therefore a tool for preserving "democratic legitimacy." It explores this theory by examining examples such as breaking up the adult use zones in Times Square and reclaiming New York's waterfront.

The Inevitable Trend Toward Universally Recognizable Signals Of Property Claims: An Essay For Carol Rose, Robert C. Ellickson

William & Mary Bill of Rights Journal

Presented at the 2010 Brigham-Kanner Property Rights Conference.

Rose's Human Nature Of Property, Henry E. Smith

William & Mary Bill of Rights Journal

Presented at the 2010 Brigham-Kanner Property Rights Conference.

Fannie Mae, Freddie Mac, And The Future Of Federal Housing Finance Policy: A Study Of Regulatory Privilege, David J. Reiss

Cornell Law Faculty Publications

The federal government recently placed Fannie Mae and Freddie Mac, the government-chartered, privately owned mortgage finance companies, in conservatorship. These two massive companies are profit-driven, but as government-sponsored enterprises they also have a government-mandated mission to provide liquidity and stability to the United States mortgage market and to achieve certain affordable housing goals. How the two companies should exit their conservatorship has implications that reach throughout the global financial markets and are of key importance to the future of American housing finance policy.

While the American taxpayer will be required to fund a bailout of the two companies that will …

The Doctrine Of Discovery And The Elusive Definition Of Indian Title, Blake Watson

School of Law Faculty Publications

On April 15, 2011, the Lewis & Clark Law Review hosted its Spring Symposium, entitled “The Future of International Law in Indigenous Affairs: The Doctrine of Discovery, the United Nations, and the Organization of American States.” While the Symposium participants agree that the doctrine of discovery should be rejected, they disagree on the impact of the discovery doctrine on native land rights in the United States. This Article examines the differing views of Indian title. Specifically, it contrasts the “limited owner” view of Indian title, under which Indian tribes retained nearly all of their proprietary rights, subject only to …

Reassessing The Citizen Virtues Of Homeownership, Stephanie M. Stern

All Faculty Scholarship

The assumption that homeownership creates more politically and civically engaged citizens who contribute to local communities (as well as national democracy) dominates property law. This belief underlies influential theories of property and land use and justifies housing policies promoting homeownership and expanding homeownership’s reach. This Essay challenges the “citizenship virtues” of homeownership and contends that the evidence reveals a far more modest, and particularized, picture of citizenship effects than commonly assumed. I explore psychological, historical, and economic factors that may underlie the variable citizenship effects from homeownership. Some of these factors elucidate not only why owners and tenants perform similarly …

Adverse Possession, Private-Zoning Waiver & Desuetude: Abandonment & Recapture Of Property And Liberty Interests, Scott Andrew Shepard

University of Michigan Journal of Law Reform

Adverse-possession doctrine labors under a pair of disabilities: a hesitancy by theorists to embrace the abandonment-and-recapture principle that informs the doctrine, and a substantial unwillingness of governments to abandon an antiquated and outmoded maxim shielding them from the doctrine's important work. Removing these disabilities will allow a series of positive outcomes. First, it will demonstrate that all would-be adverse possessors, not just those acting "in good faith" or with possessory intent, should enjoy the fruits of the doctrine. Second, it will provide valuable additional means by which the public may monitor the performance of government employees, and additional discipline to …

Conservation Easements And The Doctrine Of Changed Conditions: A Comparative Analysis Of The New York And Arkansas Statutes, Daniel P. Harvey

Buffalo Environmental Law Journal

No abstract provided.

The Illusion Of Due Process In West Virginia's Property Tax Appeals System: What Illusion?, Steven R. Broadwater

West Virginia Law Review

No abstract provided.

Strategic Default: The Popularization Of A Debate Among Contract Scholars, Meredith R. Miller

Scholarly Works

A June 2010 report estimates that roughly 20% of mortgage defaults in the first half of 2009 were “strategic.” “Strategic default” describes the situation where a home borrower has the financial ability to continue to pay her mortgage but chooses not to pay and walks away. The ubiquity of strategic default has lead to innumerable newspaper articles, blog posts, website comments and editorial musings on the morality of homeowners who can afford to pay but choose, instead, to walk away. This Article centers on the current public discourse concerning strategic default, which mirrors a continuing debate among scholars regarding whether …

Has The Time For Large Gaming Property Involved Reits Finally Arrived?: A Review Of The Potential For Reit Investment In Destination Gaming Resort Properties, Simon Johnson

UNLV Gaming Law Journal

Destination gaming resorts demand massive amounts of capital in order to fund their investment in real property, much of which comprises areas where they realize predominantly passive business, including the hotel tower. Consequently, they generate substantial income from passive business, such as fees for hotel occupancy, even as most of their income is attributable to active business, such as gaming and personal services. Because they blend separable passive and active real property, a REIT can theoretically acquire all or some of the real property, realizing income under an operator lease with a substantially unrelated gaming or hotel lessee. Alternatively, a …

Adverse Possession And Boundary By Acquiescence In Arkansas: Some Suggestions For Reform, Lynn Foster, J. Cliff Mckinney Ii

University of Arkansas at Little Rock Law Review

No abstract provided.

Adverse Possession Of The State's Property, John W. Fisher Ii

West Virginia Law Review

No abstract provided.

Government Property And Government Speech, Joseph Blocher

William & Mary Law Review

The relationship between property and speech is close, but complicated. Speakers use places and things to deliver their messages, and rely on property rights both to protect expressive acts and to serve as an independent means of expression. And yet courts and scholars have struggled to make sense of the property-speech connection. Is property merely a means of expression, or can it be expressive in and of itself? And what kind of “property” do speakers need to have—physical things, bundles of rights, or something else entirely?

In the context of government property and government speech, the ill-defined relationship between property …

Stop The Stop The Beach Plurality!, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The plurality opinion in Stop the Beach Renourishment v. Florida Department of Environmental Protection articulated a new doctrine of "judicial takings," and justified it with arguments drawing on text, history, precedent, and "common sense." This essay argues that the opinion falls makes a mockery of such forms of interpretation, represents raw pursuit of an ideological agenda, and indicates why the Regulatory Takings Doctrine more generally should be abandoned or limited.

"On The Take": The Black Box Of Credit Scoring And Mortgage Discrimination, Cassandra Jones Havard

All Faculty Scholarship

Subprime credit, a relatively new method of risk-based pricing, has been hailed as a way to open up markets and provide access to credit to those who would otherwise be excluded. Evidence suggests that subprime mortgage segmentation increases rather than reduces exclusionary practices in lending. Furthermore, what is unclear is how lenders determine who qualifies as a subprime borrower. This concern became manifested when studies demonstrated that minority borrowers, regardless of creditworthiness, are more likely to receive expensive, sub-prime loans. The disparity is properly attributed to lenders’ credit pricing policies which included discretionary increases despite the objectively-determined risk-based interest rate …

Law Day Oral Argument Session 5th District Court Of Appeal, 2011, Honorable Kerry I. Evander, Presiding Judge, Honorable Jay P. Cohen, Honorable Bruce W. Jacobus

Law Day Presentations

As part of the fifth annual Law Day event, a three judge panel from the Florida Fifth District Court of Appeal is hearing appellate oral arguments in the FAMU College of Law Ceremonial Moot Courtroom. The first arguments are regarding evidence and jury instruction issues; the second case involves real property, mortgages and liens, as well as jurisdiction issues; the final arguments are regarding juror non-disclosure. A question-and-answer session follows each set of arguments during which the justices and attorneys entertain questions about the appellate process and organization of the court.