Property Law and Real Estate Commons^™

Three Faces Of Private Property, Michael A. Heller

Articles

Private property is a rather elusive concept. Any kid knows what it means for something to be mine or yours, but grownup legal theorists get flustered when they try to pin down the term. Typically they, actually we, turn to a familiar analytic toolkit: including, for example, Blackstone's image of private property as "sole and despotic dominion"; Hardin's metaphor of the "tragedy of the commons"; and, more generally, the division of ownership into a trilogy of private, commons, and state forms. While each analytic tool has a distinguished pedigree and certain present usefulness, each also imposes a cost because it …

Uncoupling The Law Of Takings, Michael A. Heller, James E. Krier

Articles

The law of takings couples together matters that should be treated independently. The conventional view, shared by courts and commentators alike, has been that any takings case can be resolved in one of two ways: either there is a taking and compensation is due, or there is no taking and no compensation is due. These results are fine as long as one holding or the other serves the two central concerns of the Takings Clause - eficiency and justice. But a problem arises when the two purposes behind the law of takings come into cordhct, as they readily might. It …

From Jeans To Genes: The Evolving Nature Of Property Of The Estate, A. Mechele Dickerson

Faculty Publications

No abstract provided.

The Innocent Buyer Of Art Looted During World War Ii, Michelle I. Tumer

Vanderbilt Journal of Transnational Law

This Note considers the legal issues relating to innocent buyers of looted art. After providing some historical background on the massive displacements of art that took place during World War II, the Note surveys recent developments, including the different types of disputes that have arisen in the past few years. It then provides a legal framework for analyzing one type of dispute, that of the innocent buyer of looted art.

Original owners face difficult evidentiary burdens and other litigation barriers, but law and policy nevertheless favor original owners above innocent buyers. In particular, courts have become increasingly impatient with the …

Significant Trends In The Trust Law Of The United States, Edward C. Halbach, Jr.

Vanderbilt Journal of Transnational Law

In examining significant trends in American trust law, several observations are worth mentioning at the outset. First, trust law in the United States is primarily a matter of state law; thus, the trends discussed below may appear in some states but not in others. Second, procedural merger of law and equity in this country has been substantially accomplished in nearly all states, but this should not be understood as eliminating the importance of equitable doctrine and remedies. Third, without abandoning the basic definition of a trust as a fiduciary relationship, there appear to be subtle but practically significant departures from …

Making Something Out Of Nothing: The Law Of Takings And Phillips V. Washington Legal Foundation, Michael A. Heller, James E. Krier

Articles

Phillips v. Washington Legal Foundation held that interest on principal amounts deposited into IOLTA accounts is the property of the various clients who handed over the money but expressed no view as to whether the Texas IOLTA program worked a taking, or, if it did, whether any compensation was due. The debates among the justices about the meaning of private property, argued in terms of contextual and conceptual severance, are unlikely to prove fruitful. We elaborate a better approach in terms of the underlying purposes of just compensation. We conclude that efficiency and justice are best served by uncoupling matters …

The Boundaries Of Private Property, Michael A. Heller

Articles

If your house and fields are worth more separately, divide them; if you want to leave a ring to your child now and grandchild later, split the ownership in a trust. The American law of property encourages owners to subdivide resources freely. Hidden within the law, however, is a boundary principle that limits the right to subdivide private property into wasteful fragments. While people often create wealth when they break up and recombine property in novel ways, owners may make mistakes, or their self-interest may clash with social welfare. Property law responds with diverse doctrines that prevent and abolish excessive …

Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier

Articles

Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand. The Justices faithfully moor their opinions to the particular terms of the Fifth Amendment, but only by stretching the text beyond recognition. A better approach is to consider the purposes of the Takings Clause, efficiency and justice, and go anew from there. Such a method reveals that in some cases there are good reasons to require payment by the government when it regulates property, but not …

Adverse Possession Of Municipal Land: It's Time To Protect This Valuable Asset, Paula R. Latovick

University of Michigan Journal of Law Reform

The laws of several states regarding adverse possession of municipal land vary widely from providing no protection to granting complete immunity from such loss. Generally, states that permit adverse possession of municipally owned land do so without articulating a rationale for allowing such a loss of a valuable municipal asset. In this Article, Professor Latovick describes why the current state of the law is unsatisfactory. She then considers the public policies raised by the issue of adverse possession of municipal land. Professor Latovick concludes by proposing that states should adopt legislation expressly protecting all municipal land from adverse possession and …

Mortgage Drafting: Lessons From The Restatement Of Mortgages, Dale A. Whitman

Faculty Publications

The American Law Institute's adoption of the Restatement (Third) of Property: Mortgages may have significant impact on the negotiation and drafting of mortgages. Rather than merely reciting the prevailing case law, the Restatement proposes approaches the American Law Institute believes are desirable as a matter of sound policy. This Article highlights key areas in which the new Restatement may affect mortgage drafting and suggests useful techniques for mortgage drafters.

Toward A Constitutional Kleptocracy: Civil Forfeiture In America, Stephan B. Herpel

Michigan Law Review

Leonard Levy, the legal historian who has written a number of highly regarded historical studies on various provisions of the United States Constitution, has added to his impressive oeuvre a new study of civil and criminal forfeiture. A License to Steal brings together a discussion of English legal history, a review of a number of Nineteenth Century and late Twentieth Century Supreme Court forfeiture decisions, accounts of actual applications of civil and criminal forfeiture, and a summary and critique of legislative proposals that have been made for reform of the civil forfeiture provisions of the federal drug statute. There is …

Rising Seas, Coastal Erosion, And The Takings Clause: How To Save Wetlands And Beaches Without Hurting Property Owners, James G. Titus

Maryland Law Review

No abstract provided.

Reforming The Law: The Payment Rule As A Paradigm , Dale A. Whitman

Faculty Publications

The concept of negotiability of promissory notes is solidly entrenched in American commercial law. It derives from the English common law notion that a negotiable instrument is a reification of the obligation it describes; the instrument is regarded as a tangible form of the obligation. This notion has multiple ramifications, but three stand out. The first is the holder in due course doctrine which asserts that, when a negotiable instrument is transferred by the correct process (negotiation, which requires delivery of the paper) to someone with the right qualities (good faith, lack of notice, and payment of value), the maker …

The Tragedy Of The Anticommons: Property In The Transition From Marx To Markets, Michael A. Heller

Articles

Why are many storefronts in Moscow empty, while street kiosks in front are full of goods? In this Article, Professor Heller develops a theory of anticommons property to help explain the puzzle of empty storefronts and full kiosks. Anticommons property can be understood as the mirror image of commons property. By definition, in a commons, multiple owners are each endowed with the privilege to use a given resource, and no one has the right to exclude another When too many owners hold such privileges of use, the resource is prone to overuse - a tragedy of the commons. Depleted fisheries …

First Comes Love, Then Comes Marriage? Applying Washington's Community Property Marriage Statutes To Cohabitational Relationships, Jennifer L. King

Seattle University Law Review

The “Creasman presumption” held that, absent any evidence to the contrary, the way property was titled at the end of a cohabitational relationship was presumed to be the way the parties intended. The “exceptions” to the Creasman presumption should be the rule to ensure the flexibility required by equity in these types of cases, while keeping distinct the lines between marriage and cohabitation. To promote this thesis, Part II discusses the facts of Creasman and then dispels the myth of importance surrounding its presumption. Part III reviews the facts of In re Marriage of Lindsey, looks at whether cohabitation …

The Politics Of Property Rights, John D. Echeverria

Oklahoma Law Review

No abstract provided.

The Takings-Puzzle Puzzle, James E. Krier

Articles

My aim here is to unpack the regulatory takings problem in a way that suggests why it is intractable. The idea is to reveal some of the different types of ambiguity necessarily entailed in takings cases. Seeing these ambiguities, we readily can understand why the doctrine in this area is so confused and confusing; why there is, in short, a "takings puzzle." To my mind, it is much more difficult to understand why anyone would expect matters to be otherwise. This oddity I call the "takings-puzzle puzzle."

The Public Duty Doctrine And Municipal Liability For Negligent Administration Of Zoning Codes, Shelly K. Speir

Seattle University Law Review

This Comment first provides a brief background of the development of the public duty doctrine. Part II discusses the two major types of zoning cases: those involving negligent misstatements and those involving negligent issuance of permits or inspections. The use of the public duty doctrine in both types of cases is then analyzed under relevant Washington case law. Part III argues for the abolition of the public duty doctrine and Part IV concludes.

The Cathedral' At Twenty-Five: Citations And Impressions, James E. Krier, Stewart J. Schwab

Articles

It was twenty-five years ago that Guido Calabresi and Douglas Melamed published their article on property rules, liability rules, and inalienability' Calabresi, then a law professor, later a dean, is now a federal judge. Melamed, formerly a student of Calabresi's, is now a seasoned Washington attorney. Their article-which, thanks to its subtitle, we shall call The Cathedral-has had a remarkable influence on our own thinking, as we tried to show in a recent paper2 This is not the place to rehash what we said then, but a summary might be in order. First, we demonstrated that the conventional wisdom about …

A New Image Of The Slave Auction: An Empirical Look At The Role Of Law In Slave Sales And A Conceptual Reevaluation Of The Nature Of Slave Property, Thomas D. Russell

Sturm College of Law: Faculty Scholarship

This legal history article presents a new understanding of the nature of slave property. Slave property was divided and fragmented into many different interests including those with application to real property such life estates, remainders, shifting and spring interests, and leasehold interests. With regard to these interests, the article overlays the first-year, law-school property course onto slaves as property. Property interests in slaves were also divided by credit mechanisms including mortgages and secured credit transactions. Warranties are another example of divided property interests in slaves.

The fragmented, Hohfeldian nature of slave property distributed the stake that southerners had in the …

Why Is This Man A Moderate?, Richard A. Epstein

Michigan Law Review

A Review of William A. Fischel, Regulatory Takings: Law, Economics, and Politics

Stories About Property, William W. Fisher Iii

Michigan Law Review

A Review of Carol M. Rose, Property and Persuasion: Essays on the History, Theory, and Rhetoric of Ownership

The Metaphysics Of Tracing: Substituted Title And Property Rhetoric, Craig Rotherham

Osgoode Hall Law Journal

Tracing is conceptualized as the "following" of an object through an exchange transaction and into the product of that exchange. Why is this so and what are the consequences? This article argues that the presentation of tracing in the metaphysical language of transmutation allows the doctrine to be depicted as consistent with axiomatic notions of property that understand it as pre-political and that preclude judicial readjustment of proprietary rights. However, the metaphysical conceptualization of tracing gives the remedy a conceptual structure that has resulted in the doctrine developing dysfunctionally when compared with the normative justifications that motivated its initial development. …

A New Image Of The Slave Auction: An Empirical Look At The Role Of Law In Slave Sales And A Conceptual Reevaluation Of Slave Property, Thomas D. Russell

Sturm College of Law: Faculty Scholarship

This legal history article presents a new understanding of the nature of slave property. Slave property was divided and fragmented into many different interests including those with application to real property such life estates, remainders, shifting and spring interests, and leasehold interests. With regard to these interests, the article overlays the first-year, law-school property course onto slaves as property. Property interests in slaves were also divided by credit mechanisms including mortgages and secured credit transactions. Warranties are another example of divided property interests in slaves.

The fragmented, Hohfeldian nature of slave property distributed the stake that southerners had in the …

The Antiwilderness Bias In American Property Law, John G. Sprankling

McGeorge School of Law Scholarly Articles

No abstract provided.

Faculty Spotlight, Michael Heller

Other Publications

Professor Michael Heller talks about his teaching and research.

Values And The Public Lands, Dale Jamieson

Challenging Federal Ownership and Management: Public Lands and Public Benefits (October 11-13)

11 pages.

Contains 3 pages of references.

Regulatory Takings And Ripeness In The Federal Courts, Gregory M. Stein

Vanderbilt Law Review

The Supreme Court held in 1987 that compensation is required automatically whenever a municipality takes property by regulation. The Court has also held repeatedly that federal courts cannot even hear such claims until the landowner meets a demanding ripeness test. Landowners are often unable to survive the protracted ripening period even though their claims might ultimately have proved to be valid. And the occasional municipality that loses a takings case may be liable for a huge award that reflects the lengthy ripening period. Federal courts have persistently refused to acknowledge this tension between takings law and takings procedure.

This Article …

Takings Law And The Regulatory State: A Response To R.S. Radford, William Michael Treanor

Fordham Urban Law Journal

In the Winter 1994 issue of the Fordham Urban Law Journal, R.S. Radford reviewed Dennis Coyle's book "Property Rights and the Constitution." Radford's theory relies on the idea that property rights deserve greater constitutional protection than they have received in the 60 years since the Supreme Court accepted the legitimacy of the regulatory state. This article reviews Radford's interpretation and criticism of Coyle's theory, analyzes Radford's theories in light of recent cases, and discussed the constitutional implications of Radford's analysis and how they relate to the economic regulations that they empower.

Civil Forfeiture And The Eighth Amendment After Austin, James E. Beaver, Kit G. Narodick, Joseph M. Wallin

Seattle University Law Review

Imagine owning an expensive piece of property, a piece of real estate perhaps, or maybe a car or boat. Now imagine having your property forcefully taken away from you because someone suspects, or pretends to suspect, that you are using the property in the commission of criminal acts. Then, imagine having to hire a lawyer and start a lawsuit to recover your property. After spending a small fortune in legal fees to recover your own property, imagine you lose your lawsuit, not because you could not prove your rightful ownership before its forceful seizure, but because you could not prove …