Property Law and Real Estate Commons^™

Market-Anticipatory Approaches To Rural Property Vacancy, Ann M. Eisenberg

Faculty Publications

No abstract provided.

Notes From The Periphery: Finding More Than (Non)Ownership In Property Law?, Estair Van Wagner

Articles & Book Chapters

Property law structures the way we make decisions about how we live together and with the world around us. In doing so, it shapes, but is also shaped by, our relationships with the places we inhabit and encounter. Traditionally, non-owners are defined by their distance and exclusion from the primary legal relationship and their lack of enforceable interests. Yet, land use conflicts continue to arise because people routinely assert relationships with land and resources that they are not formally recognised as owning but with which they are deeply entangled. This chapter touches briefly on three examples: the relations of Indigenous …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Property Rights: Fiercely Contested, Strongly Guarded, And Continually Defended. How The Supreme Court's Decision In Cedar Point Emphasized The Court's Devotion To Private Property Rights, Sarah Haddon

American University Law Review

In 1975, California’s Agricultural Labor Relations Board (the “Board”) enacted a regulation allowing union organizers to access agricultural employers’ private properties “for the purpose of meeting and talking with employees and soliciting their support” (the “access regulation”). The access regulation does not require the union organizers to obtain consent before entering employers’ properties; instead, union organizers must only file a “written notice of intention to take access.” The notice provides the union organizers access to an employer’s property for three hours a day up to 120 days each year during the hour before the workday, during lunch, and after the …

What's In Your Box? Removing The Tiffany Standard Of Knowledge In Online Marketplaces, Hayley Dunn

Catholic University Journal of Law and Technology

Online shopping is a quintessential component of modern life. Millions of products from trusted brands are conveniently available at single-stop online marketplaces such as Amazon, eBay, and Alibaba with the click of a button from the comfort of home. But is the product delivered to the consumer’s front door actually the same as the one found on a store shelf? Pervasive trademark infringement in online marketplaces makes the answer to this question difficult, that is, until the consumer experiences negative consequences from a counterfeited product.

Under Tiffany (NJ) Inc. v. eBay, Inc., online marketplaces face almost no liability …

Town Of Exeter V. State, 226 A.3d 696 (R.I. 2020), Madalyn E. Mcgunagle

Roger Williams University Law Review

No abstract provided.

Yanku V. Walgreen Co., 224 A.3d 1130 (R.I. 2020), Jill Elizabeth Magnus

Roger Williams University Law Review

No abstract provided.

Naughton V. Guilloteau, 219 A.3d 742 (R.I. 2019), Ryan Coyne

Roger Williams University Law Review

No abstract provided.

Pollack V. 217 Indian Avenue, L.L.C., 222 A.3d 478 (2019), Shannon Griffin

Roger Williams University Law Review

No abstract provided.

Voting For History: One Person, One Vote And The Creation Of National Register Historic Districts, Jonathan Stark-Sachs

Roger Williams University Law Review

No abstract provided.

The Battle Of Brandy Creek: How One Black Community Fought Annexation, Tax Revaluation, And Displacement, Mark Dorosin

Journal Publications

The Brandy Creek community is a working class, Black neighborhood located just east of I-95, south of Weldon, North Carolina.' In 2005, this rural neighborhood and its surrounding land were legislatively annexed into the city of Roanoke Rapids as part of a planned economic development project. The decision to pursue legislative annexation allowed city officials to bypass the statutory notice and municipal service requirements of a city-initiated, involuntary annexation. Residents were never informed of Roanoke Rapids' intent to annex the community and had no opportunity to voice their opinions on the issue to town officials. In fact, the community first …

Pore Space Property, Joseph A. Schremmer

Faculty Scholarship

Through modern technology we can use the void pore space of underground rock formations for a growing number of socially beneficial purposes. These run the gamut from unconventional oil and gas production to climate change mitigation. The common law of property and tort, however, has struggled to keep up with advancing technology in this area. Significant questions remain about the nature of property rights in pore space. Of particular interest are the limits, if any, on an owner’s right to use pore space for beneficial purposes when it extends beneath the land of another. For example, may A hydraulically fracture …

Race And Property Law, K-Sue Park

Georgetown Law Faculty Publications and Other Works

This chapter offers an outline for understanding the key role of race in producing property values in the history of the American property law system. It identifies major developments in the mutually formative relationship between race and property in America that made and remade property interests in America through the processes of 1) dispossessing nonwhites, 2) degrading their homelands, communities, and selves, and 3) limiting their efforts to enter public space and occupy or acquire property within the regime thereby established. First, it describes the use of law to create the two most important forms of property in the colonies …

Pore Space Property, Joseph Schremmer

Faculty Articles

Through modern technology, we can use the void pore space of underground rock formations for a growing number of socially beneficial purposes. These run the gamut from unconventional oil and gas production to climate change mitigation. The common law of property and tort, however, has struggled to keep up. Significant questions remain about the nature of property rights in pore space. Of particular interest are the limits, if any, on an owner’s right to use pore space for beneficial purposes when it extends beneath the land of another. For example, may A hydraulically fracture an oil well on her property …

Who Owns The Skies? Ad Coelum, Property Rights, And State Sovereignty, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

In light of the history of the doctrine of ad coelum, as well as the states’ preeminent role (secured by the Tenth Amendment) in regulating property and airspace up to the 500-foot level, it is remarkable that the federal government has begun to claim that it controls everything above the blades of grass. This chapter challenges those statements, demonstrating that history and law establish that property owners, and the states, control the airspace adjacent to the land.

Charles Reich: Due Process In The Eye Of The Receiver, Harold Hongju Koh

Touro Law Review

No abstract provided.

Workplace Violence, Firearm Prohibitions, And The New Gun Rights, Dru Stevenson

University of San Francisco Law Review

No abstract provided.

Climate-Induced Human Displacement And Conservation Lands, Jessica Owley

Articles

As climate change leads to both internal displacement and mass migrations, we need not only new places for people to live but also new locations for infrastructure projects and other public needs. Some of the most attractive areas for these new land uses are currently unoccupied land, including land set aside for conservation. Numerous laws restrict the availability and possible uses of public conservation land. Individual agreements and property restrictions encumber private conservation land, varying in the ease with which the restrictions can be modified. For example, privately protected areas in the United States are often encumbered with perpetual conservation …

Mediation: Embedded Assumptions Of Whiteness?, Sharon Press, Ellen E. Deason

Cardozo Journal of Conflict Resolution

This Article began with the murder of George Floyd by an officer of the Minneapolis Police Department on May 25, 2020, after a convenience store employee reported that Floyd used a counterfeit $20 bill to purchase cigarettes. Seventeen minutes after the police arrived, Floyd was unconscious, pinned beneath them. The events were recorded by bystanders and the public was confronted with visual evidence of what has been happening to Black, Indigenous, and People of Color (BIPOC) especially Black men-for centuries. It was dramatic testimony that law enforcement is based on a system that is the product of systemic racism and …

Classical Liberal Property And The Question Of Institutional Choice, Thomas W. Merrill

Faculty Scholarship

Richard Epstein’s property scholarship tracks his classical liberal theory of government. The classical liberal would permit state intervention to overcome collective-action problems but not to engage in redistribution of wealth. With respect to private law, Epstein harbors no clear preference for either the legislature or the courts as a source of limits on owners’ autonomy to overcome collective-action problems. With regard to public law, in contrast, Epstein would elevate the courts to a superior status relative to legislatures and would have courts enforce the classical liberal ideal as a matter of constitutional law. This article questions whether giving such power …

Negative-Value Property, Bruce R. Huber

Journal Articles

Ownership is commonly regarded as a powerful tool for environmental protection and an essential solution to the tragedy of the commons. But conventional property analysis downplays the possibility of negative-value property, a category which includes contaminated, depleted, or derelict sites. Owners have little incentive to retain or restore negative-value property and much incentive to alienate it. Although the law formally prohibits the abandonment of real property, avenues remain by which owners may functionally abandon negative-value property, as demonstrated recently by busts in certain coal and oil & gas markets. When negative-value property is abandoned, whether formally or functionally, the rehabilitation …

Standing To Sue In Land Use Litigation, Daniel R. Mandelker

Scholarship@WashULaw

Third party standing to sue is essential in land use litigation. Questionable land use decisions will not be taken to court unless a third party can sue, but third party standing is limited. Standing law is fragmented, obstinate, excessively restrictive, and split between judicial and statutory requirements. Reform is necessary so that third parties can have access to court to protect public values. This Article explains why third party standing should be expanded, and it includes a conceptual model that can guide reform. It discusses conflicting third party standing rules in the Supreme Court, including the dominant restrictive rule that …

Climate Changes Property: Disasters, Decommodification, And Retreat, Michael Pappas, Victor B. Flatt

Publications

No abstract provided.

Introduction To The Symposium On The Impact Of Indigenous Peoples On International Law, S. James Anaya, Antony Anghie

Publications

No abstract provided.

Embedded Property, Douglas C. Harris

All Faculty Publications

The institution of property arises in the tension between autonomy and community. It serves not simply to demarcate spaces of individual control and authority, but also to balance individual with collective interests. Private property and common property emphasize individual and collective interests, respectively, but the bifurcation may not be as stark as it appears. Condominium constructs separate titles to individual units, and these private interests are carefully mapped in a constituting plan that marks their boundaries. Democratic rights, usually conveyed in the form of shares in a condominium corporation, are the third element of ownership within condominium. The analysis reveals …

Diverse Holdings And Diversified Holdings: Uncertainty In Georgia’S Procedure For Seeking Judicial Review Of Rezoning Decisions, Laura E. Nelson

Georgia Law Review

To determine the proper procedure by which landowners
may seek judicial review of adverse decisions on rezoning
applications, Georgia courts must consider the nature of
rezoning decisions. For decades, the courts have held—with
little explanation—that rezoning decisions are legislative acts
subject to de novo review. Then, in the 2017 case Diversified
Holdings, LLP v. City of Suwanee, the Georgia Supreme
Court classified rezoning decisions as adjudicative acts that
may only be reviewed by writ of certiorari. Because the court
did not explicitly overturn the decades of precedent classifying
rezoning decisions as legislative acts, however, the nature of
rezoning decisions—and thus …

An Eye For An Eye And A Tooth For A Tooth: An Analysis Of Georgia’S Landlord Retaliation Law, Nicole Hammett

Georgia Law Review

Landlord retaliation laws protect tenants from landlords’
harmful retaliatory actions in response to tenants’ exercise of
their legal rights. In May 2019, Georgia joined the majority of
other states by enacting H.B. 346, an act establishing the
requirements for a prima-facie case of landlord retaliation.
Georgia’s eviction and poverty rates are higher than the
national average, and this law stands to address underlying
issues that drive those problems.
Other states’ landlord retaliation laws offer best practices in
addressing landlord retaliation. These include implementing
rent abatement protections and expanding the scope of
protected actions. Improving low-income individuals’ access to
counsel and …

Do Legal Origins Predict Legal Substance?, Anu Bradford, Yun-Chien Chang, Adam S. Chilton, Nuno Garoupa

Faculty Scholarship

There is a large body of research in economics and law suggesting that the legal origin of a country – that is, whether its legal regime is based on English common law or French, German, or Nordic civil law – profoundly impacts a range of outcomes. However, the exact relationship between legal origin and legal substance has been disputed in the literature and not fully explored with nuanced legal coding. We revisit this debate while leveraging novel cross-country data sets that provide detailed coding of two areas of laws: property and antitrust. We find that having shared legal origins strongly …

Fraudulent Transfer As A Tort, David G. Carlson

Articles

Fraudulent transfer law has historically been an in rem right of a creditor to property fraudulently received by a third party. In a minority of states, courts have treated fraudulent transfers as creating an in personam liability of the transferring debtor, the recipient, and any other third party who "conspired" with the transferor to achieve the transfer. This Article examines the wisdom of this modern trend and finds it wanting. The United States Supreme Court in 1861 was correct: fraudulent transfers are not wrongs. They merely create in rem rights.

Erisa Defined Benefit Plans Are Not "Trust" Worthy, Stewart E. Sterk

Articles

No abstract provided.