Property Law and Real Estate Commons^™

Mortgage Market Reform And The Fallacy Of Self-Correcting Markets, Robin Paul Malloy

Pace Law Review

No abstract provided.

Unsafe Loans In A Deregulated U.S. Mortgage Market, Vincent Di Lorenzo

Pace Law Review

No abstract provided.

Can't Live Without Air: Title Insurance And The Bursting Of The Real Estate Bubble, Marvin N. Bagwell

Pace Law Review

No abstract provided.

State Subprime Lending Litigation And Federal Preemption: Toward A National Standard, Alan H. Scheiner

Pace Law Review

No abstract provided.

The Importance Of Deceptive Practice Enforcement In Financial Institution Regulation, Prentiss Cox

Pace Law Review

No abstract provided.

A Glance At The Impact Of The Subprime Mortgage Crisis On The Title Insurance Industry, Suzanne M. Garcia

Pace Law Review

No abstract provided.

Condemning Religion: Rluipa And The Politics Of Eminent Domain, Christopher Serkin, Nelson Tebbe

Vanderbilt Law School Faculty Publications

Should religious landowners enjoy special protection from eminent domain? A recent federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), compels courts to apply a compelling interest test to zoning and landmarking regulations that substantially burden religiously owned property. That provision has been controversial in itself but today a new cutting-edge issue is emerging: whether the Act's extraordinary protection should extend to condemnation as well. The matter has taken on added significance in the wake of Kelo, where the Supreme Court reaffirmed its expansive view of the eminent domain power. In this Article, we argue that RLUIPA should …

The Foreclosure Crisis And The Anti-Fragmentation Principle In State Property Law, David A. Dana

Faculty Working Papers

Secured credit in homes has been divided and over-divided and spun into so many separate interests that economically rational, socially beneficial modifications of loans are impossible. The mortgage story is a new one but the excessive fragmentation of property and the creation of waste and inefficiency is not new. And our legal tradition of state property law has an answer, in the form of an anti-fragmentation principle. Consistent with this principle, federal government trustees should be authorized to review mortgages and, where modification would yield greater total return than foreclosure, modify the loans. Blind trustee review, moreover, can be achieved …

The Background Principles And Core Contents Of The Real Right Law Of The People's Republic Of China, Zhu Yan

Maryland Series in Contemporary Asian Studies

No abstract provided.

Reforming Section 10 And The Habitat Conservation Plan Program, David A. Dana

Faculty Working Papers

This Chapter in a forthcoming book to be published by AEI (edited by Jonathan Adler) provides a framework for HCP reform. The Chapter first briefly reviews the history of HCP regulations and guidance, and what we know about HCPs in practice (which is limited). It offers a range of reforms to address problems in the current HCP approach, including requirements that the Services assemble a better database regarding current HCPs and report to Congress on the program periodically; greater reliance on programmatic regulations adopted after notice and comment; development of guidelines for assessing the likely or possible environmental impacts of …

When Less Liability May Mean More Precaution: The Case Of Nanotechnology, David A. Dana

Faculty Working Papers

The heart of the Article is an exploration of the possible role of common law tort liability in both encouraging and deterring voluntary, precautionary study of new products generally and nanotechnology products in particular. A key variable in considering liability's role as an incentive or deterrent to testing is the manufacturer's subjective assessment of the probability that any injuries from its product would be detected by the injured parties and successfully attributed to the product absent research by the manufacturer itself on the adverse effects of the product. Another key variable is the legal standard for tort liability, and specifically …

The Contextual Rationality Of The Precautionary Principle, David A. Dana

Faculty Working Papers

This article defines the precautionary principle (PP) primarily based on what it is not: it is not quantitative cost-benefit analysis (CBA) or cost-cost analysis of the sort we associate with the Office of Management and Budget in the United States and U.S. policymaking and policy discourse generally. In this definition, the PP is a form of analysis in which the costs of a possible environmental or health risk are not quantified, or if they are, any quantification is likely to be inadequate to capture the full extent of the costs of not taking regulatory measures to mitigate or avoid the …

Protecting Private Property With Constitutional Judicial Review: A Social Welfare Approach, Daniel H. Cole, Peter Z. Grossman

Articles by Maurer Faculty

This article uses a social welfare approach to determine if and when the institution of constitutional judicial review of property regulation and expropriation is efficient. A model is proposed in which property rights protection is a component of social costs. Constitutional judicial review is assumed to either add to or subtract on net from those costs, affecting social welfare generally. It will be shown that under realistic conditions, reflected in real instances, that constitutional judicial review might not enhance economic efficiency or overall social welfare. We show that the efficiency of constitutional judicial review is likely to vary within the …

Regulatory Takings: A Chronicle Of The Construction Of A Constitutional Concept, Garrett Power

Faculty Scholarship

In the American constitutional system the sovereign has the power to enact “regulations which are necessary to the common good and general welfare.” But the Fifth Amendment to the United States Constitution proscribes that : “No person shall be . . . deprived of . . . property, without due process of law; nor shall private property be taken for public use, without just compensation.” And the question of whether a sovereign regulation has “taken” private property without just compensation has puzzled the United States Supreme Court for over two hundred years in over four hundred cases. This paper chronicles …

Appropriability And Property, Yonatan Even

American University Law Review

This paper challenges the malleability of the idea of property as a relative, indeterminate "bundle of rights", which appears to dominate property doctrine at least since Ronald Coase's "The Problem of Social Cost". Focusing on the core goals of property regimes, the paper proposes an alternative view of property rights - one that is centered on the ability of owners to appropriate the benefits of their assets in the face of a threat from numerous potential adversaries, rather than their ability to contract such assets away within a bilateral context. This appropriability problem, it is argued, is a defining concept …

The Meaning And Nature Of Property: Homeownership And Shared Equity In The Context Of Poverty, Michael R. Diamond

Georgetown Law Faculty Publications and Other Works

While a Blackstonian view of property envisaged a “despotic dominion” of an owner over a thing, property has never been so absolute. In fact, as I argue in this paper, the nature of property has been culturally constructed and property means different thinks across cultures and even over time within the same culture. The question of the nature of property was highlighted for me when a student questioned whether equity limitations placed on homes purchased by low income buyers using subsidized public financing created a “second class” form of homeownership. In attempting to answer this question, I examined the ideas …

Applying Old Theories To New Problems: How Adverse Possession Can Help Solve The Orphan Works Crisis, Megan L. Bibb

Vanderbilt Journal of Entertainment & Technology Law

This Note focuses on orphan works--works whose copyright owners cannot be found--and the problems they create for libraries and archives that wish to preserve and facilitate access to them. After describing the legal basis for the orphan works problem, the Note analyzes and critiques proposed legislative and scholarly solutions. After concluding that prior solutions fail to adequately address the needs of libraries and archives, the Note offers a solution based on the policy rationales underlying the traditional property concept of adverse possession, since the justifications that supported the advent of the adverse possession doctrine can also be applied to the …

Legal And Policy Choices In The Aftermath Of The Subprime And Mortgage Financing Crisis, Gerald Korngold

Articles & Chapters

This essay, delivered at a symposium at the University of South Carolina in October 2008 and forthcoming in South Carolina Law Review, sets out initial thoughts about to the legal and policy choices that decision makers must address in the aftermath of the subprime crisis that has since triggered a global financing crunch. After tracing a narrative of how subprime lending grew into a mortgage financing crisis and then a broader financial dislocation, the essay addresses two issues. First, while it is commonly stated that increased regulation will be required in secondary mortgage markets going forward, the essay explores competing …

Accession And Original Ownership, Thomas W. Merrill

Faculty Scholarship

Although first possession is generally assumed to be the dominant means of establishing original ownership of property, there is a second but less studied principle for initiating ownership, called accession, which awards new resources to the owner of existing property most prominently connected to the new resource. Accession applies across a wide variety of areas, from determining rights to baby animals and growing crops to determining ownership of derivative rights under intellectual property laws. Accession shares common features with first possession, in that both principles assign ownership uniquely in a way that imposes minimal information cost burdens on society. But …

Real Estate Law, Richard W. Gregory, Lindsey Dobbs Chase

University of Richmond Law Review

No abstract provided.

The "Middle Ground" Perspective On The Expropriation Of Indian Lands, Eric Kades

Faculty Publications

No abstract provided.

The Mismatch Between Public Nuisance Law And Global Warming, David A. Dana

Faculty Working Papers

The federal courts using the common law method of case-by-case adjudication may have institutional advantages over the more political branches, such as perhaps more freedom from interest group capture and more flexibility to tailor decisions to local conditions. Any such advantages, however, are more than offset by the disadvantages of relying on the courts in common resource management in general and in the management of the global atmospheric commons in particular. The courts are best able to serve a useful function resolving climate-related disputes once the political branches have acted by establishing a policy framework and working through the daunting …

Exclusionary Eminent Domain, David A. Dana

Faculty Working Papers

This Article explores the phenomenon of "exclusionary eminent domain" – the exercise of eminent domain that has the effect of excluding low-income households from an otherwise predominantly or entirely middle-class or wealthy neighborhood or locality, whether or not exclusion itself was the purpose of the condemnation. All condemnations exclude the condemned owner (and his or her tenants, if any) from the condemned property. Exercises of what I am calling "exclusionary eminent domain" are doubly exclusive because the displaced residents are unable to afford new housing in the same neighborhood or locality as their now-condemned, former homes. In exclusionary eminent domain, …

Eminent Domain And The Psychology Of Property Rights: Proposed Use, Subjective Attachment, And Taker Identity, Janice Nadler, Shari Seidman Diamond

Faculty Working Papers

The U.S. Supreme Court's decision in Kelo v. City of New London, allowing governments to force the sale of private property to promote economic development, provoked bipartisan and widespread public outrage. Given that the decision in Kelo was rendered virtually inevitable by the Court's earlier public use decisions, what accounts for the dread and dismay that the decision provoked among ordinary citizens? We conducted two experiments that represent an early effort at addressing a few of the many possible causes underlying the Kelo backlash. Together, these studies suggest that the constitutional focus on public purpose in Kelo does not fully, …

Condominum Arrangements In International Practice: Reviving An Abandoned Concept Of Boundary Dispute Resolution, Joel H. Samuels

Michigan Journal of International Law

This Article attempts to revive the consideration of condominium as a possible solution to contemporary boundary disputes. Part I describes specific historic instances of condominia and derives relevant lessons from each instance. Part II notes that some critics of condominium have in fact confused condominium with other forms of joint dominion over territory. This Part proceeds, therefore, to distinguish condominium from these other arrangements. Next, Part III discusses how experiences with common property regimes over common resources (such as water supplies) might inform the contemporary use of condominium. Finally, informed by lessons articulated in Parts I through III, Part IV …

Redefining Stewardship Over Body Parts , Elizabeth E. Appel Blue

Journal of Law and Health

This paper proposes one possible avenue for defining a framework to address body parts. I begin with the presumption that given the increasing use of body parts outside of our bodies, either after death or during life, society requires a framework with institutions and rules to govern our body parts. Yet there is no settled framework. Much of the controversy over differing approaches stems from whether people should be able to sell body parts. Thus, each potential framework implicitly addresses the question of monetary value. While multiple possibilities exist, the predominant models are (1) property, most often meaning ownership that …

The Geography Of Justice Wormholes: Dilemmas From Property And Criminal Law, Hari M. Osofsky

Villanova Law Review (1956 - )

No abstract provided.

"No Taking Without A Touching?" Questions From An Armchair Originalist, Nicole Stelle Garnett

Journal Articles

This paper is an invited contribution to the Bernard Siegan Memorial Conference on Economic Liberties, Property Rights, and the Original Meaning of the Constitution at the University of San Diego School of Law. The paper poses three questions about the historical evidence used to support the dominant academic view that the Fifth Amendment's Takings Clause, as originally understood, extended only to physical appropriations or invasions of private property. First, the paper questions the relevance of state and local regulatory practices to the pre-incorporation understanding of the Takings Clause. Second, the paper expresses concern about the use of state-court cases decided …

Real Property And Peoplehood, Kristen A. Carpenter

Publications

This Article proposes a theory of real property and peoplehood in which lands essential to the identity and survival of collective groups are entitled to heightened legal protection. Although many Americans are sympathetic to American Indian tribes and their quest for cultural survival, we remain unable to confront the uncomfortable truth that the very thing Indian peoples need is their land, the same land that the U.S. took from them. This is especially the case with regard to the sacred sites of Indian peoples, whose religions and cultures are inextricably linked to those sites. Federal law permits the United States …

Overcoming Another Tragedy In New Orleans: Rebuilding In The Wake Of "Kelo" And Act No. 851, William C. Spaht

Vanderbilt Law Review

During Hurricanes Katrina and Rita, thousands of Gulf Coast residents lost their homes, their possessions, their savings, and some, their lives. Those states hit hardest by the hurricanes have struggled to recover. In places like New Orleans, where hundreds of thousands of residents evacuated and may never return, uncertainty regarding the future of private property has become a fact of life. As the excerpt from Senator McPherson's letter indicates, arguably the single most critical question facing local and state governments trying to rebuild the devastated coast is how to encourage use of abandoned properties to spark the economy.

Michael A. …