Property Law and Real Estate Commons^™

Shadow Probate, Felix Chang

Nevada Law Journal

This Article argues that nonprobate instruments (trusts, life insurance, retirement plans, and joint accounts) now comprise a shadow probate system that per-forms the core functions of probate but evades judicial oversight and public scrutiny. Like probate, shadow probate facilitates succession, though in a manner that caters to the privacy, business continuity, and asset sheltering goals of wealthy clients. By contrast, most households use wills for estate planning—or they avoid planning altogether and lapse into intestacy.

Wills and intestacy must wind through probate courts, which are vested with state authority and therefore follow due process. Shadow probate, on the other hand, …

The New Necessity, Ezra Rosser

William & Mary Law Review

According to the U.S. Supreme Court, cities are free to criminalize homelessness. The 2024 case City of Grants Pass v. Johnson is the most important homelessness case in decades and was a significant blow to advocates for the unhoused. The conservative majority rejected the idea that city ordinances criminalizing sleeping in public amounted to cruel and unusual punishment insofar as they penalized status. There is no sidestepping the loss. But within the faint glow of the embers of the oral argument and of the decision itself, there is the possibility that a new understanding of necessity, supported by the same …

Bankrupt Crypto Organizations, Kara Bruce, Christopher K. Odinet, Andrea Tosato

Faculty Scholarship

This Article provides the first comprehensive analysis of the intersection between decentralized autonomous organizations (DAOs) and American bankruptcy law. DAOs are blockchain-based entities that enable individuals to pursue common goals using decentralized decision-making and automated governance. Since their recent emergence, DAOs have proliferated dramatically—with over 20,000 organizations managing over $20 billion in assets and engaging in activities ranging from investment management to real estate and even attempting to purchase historic copies of the U.S. Constitution. Yet like any other organization, DAOs can fail, creating an urgent need to understand what happens when unstoppable code meets immovable bankruptcy law.

Our investigation …

Soil And Sovereignty: An Analysis Of Federal And State Laws Affecting Foreign Investment In U.S. Agricultural Land, Brantley Swindell

Mercer Law Review

Foreign ownership of U.S. agricultural land has risen significantly in recent years. From 2014 to 2023, the share of agricultural acres owned by foreign interests increased by 67%. Although the share of agricultural acres owned by foreign countries and interests only amounts to just over 3% of the total U.S. private farmland, the U.S. federal government and many states have passed laws to prohibit, restrict, limit, regulate or create requirements for foreign ownership of agricultural land and real property. As of 2025, twenty nine states have passed laws to regulate such foreign ownership.

This Comment outlines the regulations on foreign …

Outbound Investment Restrictions And International Law’S Challenge, Harlan Grant Cohen

Seattle University Law Review

The Outbound Investment Rule, restricting U.S. investment in certain Chinese advanced technology sectors, has largely been portrayed as an incremental measure, a modest extension to fill loopholes in the existing investment screening regime. But while perhaps the logical next step in the securitization of the economy, the Outbound Investment Rule actually reflects a momentous shift in the relationship between governments and business, one playing out in the United States and around the world and worth attention. Unlike traditional investment screening, the Outbound Investment Rule operates like a sanctions regime, designed not to protect the U.S. economy, but to hamper the …

Resilient Dispute Resolution Systems For International Energy Conflicts, Guillermo J. Garcia Sanchez

Seattle University Law Review

Energy-related conflicts are on the rise, spanning diverse issues such as the impacts of rare mineral mining on local communities, the impacts of sanctions on energy investments due to the Russia-Ukraine war, and the impacts of expanded subsidies on the electric vehicle and solar panel industries. Increasingly, companies, communities, and governments are clashing over the challenges of pursuing disparate and sometimes competing energy policies. This Article argues that dispute resolution mechanisms in the energy investment sector must be fundamentally rethought. Traditional semi-adjudicatory models, which focus on winners and losers, fail to accommodate the complex and multifaceted nature of contemporary energy …

Restricting Data Flows Is A Sign Of Weakness, Nikolas Guggenberger

Seattle University Law Review

There has been a seismic shift in American attitudes toward the free flow of data across borders.  In less than a decade, the United States has transitioned from condemning barriers to digital trade to constructing a digital fortress of its own. It passed legislation requiring TikTok’s parent company to divest its U.S. operations or face a nationwide ban affecting 170 million U.S. users, citing national security concerns about its ties to China and the potential for data surveillance and content manipulation. Upon legal challenge by TikTok on First Amendment grounds, the Supreme Court affirmed the ban’s constitutionality. Recent federal legislation …

Product Nationality And Corporate Identity, Trang (Mae) Nguyen

Seattle University Law Review

Global supply chains have long depended on a deceptively technical device: the attribution of a “nationality” to goods. A trade law principle, rules of origin assign products an “economic passport” that governs how they are treated at the border, including what markets they may enter and which tariff rates apply. In recent years, however, product nationality has taken on a new and far more ambitious role. As U.S. trade policy increasingly intersects with national security and human rights policy, policymakers rely on nationality-based measures to police supply chain linkages, curb geopolitical issues, and discipline firms for their links to forced …

Global Supply Chain Resilience In Emerging Technologies: A Case Study Of Bitcoin Mining, Kishanthi Parella, Carla L. Reyes

Seattle University Law Review

The United States has put into motion bold plans in critical and emerging technologies to bolster its national and economic security.  For example, the federal government created a national bitcoin strategic reserve and a stockpile of other cryptocurrency; while several states have committed to or are considering similar goals.  However, the security of these reserves is dependent on two types of supply chains within the Bitcoin mining industry: analogue supply chains, relating to the physical components needed for Bitcoin mining, and data supply chains, relating to the complex and layered logistical network of actors that create input into the software …

Volume 49 Masthead

Seattle University Law Review

Volume 49 Masthead

A Comparative Study Of Chinese And American Approaches To Shaping International Outer Space Law And Norms, Ariel G. Silverman

Seattle University Law Review

This article explores convergences and divergencies in the United States and PRC’s responses to the stalemate in the United Nations over the future of outer space resource governance. I do so by systematically analyzing these leading space-faring nations’ policy-positions and tactics deployed to shape norms around three substantive areas of outer space resource governance: rights of ownership and scope of utilization of space resources, mechanization of the “benefits sharing” principle, and the rights and responsibilities of the private sector. I theorize that these leading space-faring nations have adopted divergent approaches due to their differing historical relationships with international law and …

Table Of Contents

Seattle University Law Review

Table of Contents

Third-Party Funding: Balancing Transparency, National Security, And Access To Justice, Victoria Shannon Sahani

Seattle University Law Review

Many lawmakers who have recently become aware of the multi-billion-dollar global third-party funding industry are raising new national security concerns that further complicate preexisting, longstanding debates about transparency, disclosure, access to justice, and the best way to regulate third-party funding. In response, this Article briefly asserts three main points relating to the question of how best to regulate third-party funding. First, this Article explains the third-party funding industry, including its global regulatory landscape and how it serves three distinct populations: consumers, businesses, and law firms. Second, this Article explains that third-party funding is one tool that can help expand access …

The Field Of International Business Transactions Law, Kathleen Claussen

Seattle University Law Review

This Article studies the evolution of the scholarly subfield referred to as the law of “international business transactions” (IBT). It reviews data on academic articles, courses, textbooks and other signifiers of the growth of this research area. Beginning around 1960, scholars began to use the term “international business transactions” and by the 1980s, several law schools were offering a course by that title. A handful of dedicated textbooks soon followed. These data reflect a gradual increase in research on the topic of IBT, particularly in the United States, but also considerable diversity of subject matters covered by those works. The …

Kim Gyeong-Seok And The Origins Of Northeast Asia’S Corporate Accountability Movement For War And Colonialism, Timothy Webster

Seattle University Law Review

For the past three decades, a transnational reparations movement has unfolded across Northeast Asia. Hundreds of victims—assisted by attorneys, academics, and activists—seek remedies from Japan for various atrocities committed during World War II, colonialism, and other historical injustices.  They press their claims in street protests, legislative hearings, dramatic performances, and other fora.  The “comfort women” are the best known of these claimants; their global redress campaign ex-tends from noisy protests outside of Japan’s embassy in Seoul, to mute statues in raucous boroughs of Berlin.  More obscure, though larger in number, were the roughly one million Koreans who performed forced labor …

Navigating Compliance In A Geopolitical Era: The Case Of Chinese Multinationals In The United States, Ji Li

Seattle University Law Review

This Article examines how Chinese multinational companies (MNCs) approach compliance in the United States amid deepening geo-political rivalry and intensified regulatory scrutiny. Drawing on original survey data, this Article maps variations in compliance structures, staffing, and governance mechanisms across Chinese firms and identifies key determinants such as industry-specific regulatory intensity, listing status, and organizational imprinting from headquarters. The analysis employs a dual institutional framework to explain how compliance systems emerge from the interplay between host-state regulatory demands and home-state institutional legacies, producing hybrid structures that blend local adaptation with headquarters-driven replication. Findings reveal that while certain compliance features—such as committee …

When Tokenized Real-World Assets Collide With Real World, Biying Cheng, David J. Reiss

Cornell Law Faculty Publications

The city of Detroit filed a public nuisance lawsuit in July of last year in the Michigan Circuit Court for the Third Judicial Circuit against Real Token, its co-founders and 165 affiliated entities, alleging building code and safety violations across over 400 Detroit residential properties.[1] RealT is a blockchain real estate platform that sells fractional interests in individual U.S. rental properties through the issuance of crypto security tokens.

On July 22, the judge issued a temporary restraining order — later converted into a preliminary injunction on Nov. 4 — barring RealT from collecting rent, pursuing evictions without a certificate of …

The Effectiveness Of Public-Private Partnerships In Addressing Residential Urban Development Challenges In Greater Cairo, Sara Nagy Abdelmessih

Theses and Dissertations

This research explores the effectiveness of Public-Private Partnerships (PPPs) in tackling the residential urban development challenges facing Cairo today. In the past two decades, PPPs have emerged as a dominant mode of housing production, positioned as collaborative ventures between state agencies and private developers. They have become integral to the expansion of Greater Cairo, producing vast new urban extensions under the promise of mobilizing private capital, technical expertise, and delivery capacity. Yet, questions remain about whether these arrangements genuinely address Egypt’s most urgent housing needs, or whether they reproduce market-driven logics that leave large segments of the population excluded.

The …

Law And The (Re)Production Of Class Hierarchies In Egypt, Ahmad Abdelnaby

Theses and Dissertations

This thesis investigates how Egypt’s legal system, structurally tilted toward the elite and constitutive of inequality, has interacted with the country’s entrenched culture of class-based discrimination to produce a legal culture uniquely comfortable with hierarchy. It contends that class-based discrimination in Egypt has evolved from a social prejudice into a juridical condition, one in which the law does not merely mirror inequality but actively constructs and rationalizes it. By examining the intersection between legal structure and Egypt’s entrenched moral order of class-based discrimination, the study reveals a legal culture that no longer hides its hierarchies behind the veil of neutrality …

Changing Duress: Giving Heirs Of Holocaust Victims An Easier Path To Recover Their Predecessors' Property, Jonathan M. Woolston

William & Mary Business Law Review

As claimants continue to come forth asserting claims for artworks their predecessors owned before the Holocaust, they run up against difficulties in trying to reclaim the property. While oftentimes it is not difficult to negotiate an informal return of property due to the immense public pressure and stigma on Nazi-looted works, more complex cases arise when artworks were sold to finance escape from the impending horrors of the Holocaust. In these situations, claimants face much greater difficulties in reclaiming the artworks. For one, the doctrine of duress prevents contracts from being voided if that duress was not applied by a …

Property Law For Positive Externalities: Carving New Sticks For The Bundle, J.B. Ruhl, James Salzman

William & Mary Law Review

Property law has long confronted a troubling puzzle: Why does doctrine focus so much on eliminating harms flowing as negative externalities from uses of property—curbing pollution, nuisances, and other harmful land uses—while largely ignoring the potential to encourage positive externalities? Why such a strong focus on preventing bads instead of promoting goods? Using a case of a natural capital resource and the ecosystem services of flood control, water purification, and pollination it provides, this Article explains how and why existing doctrine fails to recognize these benefits as distinct property interests, leading to systematic underinvestment in conservation and service provision. We …

The Poly Problem In Zoning: Redefining "Family" For A Changing Society, Aric K. Short, Tanya Pierce

Faculty Scholarship

Single-family zoning has long dictated not only where people may live but also with whom. Although extensively critiqued for perpetuating racial and economic exclusion, these laws also privilege relationships defined by blood, marriage, or adoption and marginalize nontraditional families. This Article focuses on a particularly overlooked group: polyamorous families who often face legal uncertainty, social exclusion, and housing discrimination due to restrictive zoning definitions of “family.”

As polyamory gains cultural visibility and increasing legal recognition—through West 49th Street, LLC v. O’Neill and municipal reforms in cities like Somerville and Cambridge—now is the time to examine zoningÊs role in reinforcing outdated …

The Exactions Illusion: Sheetz’S Missing Dissent, Lee Anne Fennell, Timothy M. Mulvaney

Faculty Scholarship

In April 2024, the Supreme Court unanimously handed down Sheetz v. County of El Dorado, a land use exactions case billed as narrow, inevitable, constitutionally compelled, and obviously correct.  It was none of those things. Sheetz instead ushered in an open-ended shift of policy control over the built environment from state and local legislatures to courts. By its terms, the holding extended the Court’s stringent “exactions” test—which requires the government to prove nexus and proportionality between development conditions and development impacts—beyond its original context of parcel-specific administrative bargains to reach an unspecified set of legislated property conditions. Yet the decision’s …

Land Use And Sovereignty Along The Catawba River, Thomas C. Brugh, Lucile C. Rencher

Student Scholarship

This document-based case study explains how land-use change along the Catawba River Corridor (Lancaster and York Counties, South Carolina) has been produced through the interaction of property rights (dominium) and rule-setting authority (imperium), showing why sovereignty continues to shape development even after land disputes appear “settled.” Through analyzing legal records (Treaty of Nation Ford, the 1959 Catawba Division of Assets Act, the 1986 Supreme Court timing decision, and the 1993 Settlement Act), planning documents, parcel records, and field observations, we trace how shifting jurisdiction and title certainty structured what kinds of land uses were possible and when. We argue that …

Roman–Dutch Law, Scottish Civil Procedure And Fusing Of The Common And Civil Jurisprudence, Zia Akhtar

Notre Dame Journal of International & Comparative Law

The range and breadth of Roman law have extended and been assimilated into the distant corners of Europe based on the concept of Jus Commune. Law of Scotland is one of the countries which has adopted Roman legal principles in its substantive law. The Scots law is a non-codified Civil law in which legal principles have been drawn from both the civilian (i.e. Roman law) and common law traditions. It also owes its evolution to the jurists who developed the causes of action in the civil courts of the country. These Roman law foundations still persist in Scottish law and …

From Russia Without Love: A Unique Path Forward For Western Asset Holders Looking To Recover Expropriated Property In Russia, Anthony Liberatori

Northwestern Journal of International Law & Business

Chelsea Football Club, Sean Baker’s Academy Award-winning film “Anora,” and billionaire parties in St. Barth’s: the rapid rise of Russian capital since the collapse of the Soviet Union has permeated international popular culture and underscores the modern global economy. However, Vladimir Putin’s invasions into Ukraine in 2014 and 2022 have caused the international community — particularly the West — to sanction Russia, challenging its place in an increasingly globalized supply chain, and harkening anti-Russian sentiment not seen since the Cold War. In response to sanctions, Russia has begun nationalizing Western assets left behind within its borders, leaving company owners scrambling …

Feudal Is Fine Because Property Is Sovereignty: Rational Basis Equal Protection And The New Noncitizen Land Laws, Jill M. Fraley

Scholarly Articles

States are enacting a new wave of land laws restricting noncitizens’ ownership of real property, prompting immediate constitutional challenges grounded in equal protection and federal preemption. Most commentators assume these laws are unlikely to survive modern scrutiny. This Article argues that these land laws rest on a constitutional logic that remains both doctrinally intact and normatively compelling: the treatment of real property as an incident of state sovereignty rather than an ordinary site of economic regulation.

Against prevailing accounts, this Article shows that the Court’s jurisprudence has never subjected all citizenship-based classifications to heightened scrutiny. Instead, the Court has consistently …

Facilitating Mortgage Modification To Save Homes And Mitigate Lender Losses, Julia Patterson Forrester Rogers

Faculty Journal Articles and Book Chapters

Homeowners in financial distress or whose homes have been damaged by natural disaster may avoid foreclosure if their lender agrees to modify the loan to reduce payments. Commercial loans may also be modified to avoid foreclosure or in response to changed circumstances or changing market conditions. Although loan modifications are generally beneficial to both borrowers and lenders, barriers to modification exist. The Consumer Financial Protection Bureau (CFPB) has addressed some of the roadblocks to residential loan modifications by regulating the procedures that mortgage servicers must follow in dealing with delinquent borrowers, but the CFPB and its regulations are at risk …

Truth And Consequences: What Catastrophe Teaches Us About Homeownership And Underinsurance, Kenneth S. Klein

Lewis & Clark Law Review

The firestorms enveloping Los Angeles in January 2025 made yet more inescapable the reality of the increasingly overwhelming impacts that climate change is having on communities. Many thousands of owner-occupied homes were destroyed. Most homes have insurance, but many homeowners will be surprised to find themselves underinsured, meaning their insurance proceeds will be materially less than the insurer-reported, incurred cost of rebuilding their destroyed home. The human consequences on these homeowners, each of whom has lost everything in a single week, are a now sadly all too imaginable tragedy in real time.

How underinsurance happened and what could have been …

Property Law As History, Michael Allan Wolf

UF Law Faculty Publications

Because property law and history are so inextricably intertwined, it has become even more important for law professors to share with students and colleagues the ways in which knowledge of history unlocks difficult concepts, suggests workable solutions to contemporary puzzles, and makes very dry concepts—destructible contingent remainders, running covenants, privity, and the Rule in Dumpor’s Case—much easier to digest.   Sampling from the doctrinal menu of a typical first-year property course--adverse possession, present estates and future interests, landlord-tenant, concurrent interests, servitudes, land transactions, eminent domain, regulatory takings, and zoning--this article identifies two aspects of the law of property as history, using …