Property Law and Real Estate Commons^™

Consumer Claims For Insurance Company Drone Surveillance, Chad J. Pomeroy

Faculty Articles

Many people do not own their homes outright-they finance the purchase of their home by taking out a mortgage against it. This typically means that the homeowner is contractually obligated to do a number of things-like pay real property taxes, keep the property in good condition, and keep it insured, even as prices skyrocket. But even worse, the pool of providers is materially shrinking with some insurers now either not writing or limiting new policies or tightening underwriting standards in some markets. Insurance companies pull out of markets because they cannot make enough money in those markets to be profitable. …

A Workable Common Law Baseline For Regulatory Takings, Adam J. Macleod

Faculty Articles

Rights to use property are property rights. The Takings Clause of the Fifth Amendment requires governments to provide just compensation when they take property. In our constitutional republic, legislatures are competent to change the law, and legal changes sometimes alter private rights, including use rights. The Takings Clause does not forbid such legal changes. It only requires compensation for property rights taken as a result.

To give use rights the constitutional protection that the Takings Clause requires, courts need a baseline of rightful property use to show when a change in the law that adversely affects use rights amounts to …

Color Inside The Lines: Achieving Pharmaceutical Deal Certainty When The Courts Keep Redrawing The Ip Lines, James Farrington

Texas A&M Journal of Property Law

In The Genome Defense, Jorge Contreras vividly describes the story of how gene patents were challenged in Association for Molecular Pathology v. Myriad Genetics and the U.S. Supreme Court’s reversal of the USPTO’s long-standing practice of allowing patents on human genes. This Article examines how pharmaceutical companies navigate intellectual property challenges in the wake of the Myriad decision and other landmark cases that have redrawn the boundaries of patent-eligible subject matter. Drawing on the Author’s 35 years of experience in life science transactions, the Article analyzes three key strategies that pharmaceutical companies employ: (1) adapting their business and licensing …

From Myriad To Moderna: The Modern (Bio)Pharmaceutical Company, Ana Santos Rutschman

Texas A&M Journal of Property Law

This Article examines the emergence of two modern pharmaceutical companies: Myriad and Moderna. After providing a brief background on each company, this Article contrasts them across the following areas: the technologies they have brought to market; their location; their start-up stages and the role that venture capital played in catalyzing their evolution from start-ups to large corporate structures; their relationships with other entities in the private sector, in academia and in the public sector; and their intellectual property and licensing strategies.

Red Gate Motel, Inc. V. Albanese, 317 A.3d 1123 (R.I. 2024), Desiree James

Roger Williams University Law Review

No abstract provided.

Property Law— Squaring The Mold Predicament With Arkansas Landlord-Tenant Law, Katherine James Clark

University of Arkansas at Little Rock Law Review

No abstract provided.

Enhancing The Uniform Partition Of Heirs Property Act: The Need For Broader Use And Essential Modifications, Donna Arzanipour

Touro Law Review

The Uniform Partition of Heirs Property Act (“UPHPA”) seeks to address complex and inequitable conflicts that arise when partitioning heirs property. This Note explores the legislative history of the UPHPA, along with the legal and societal significance of the UPHPA, which provides mechanisms to prevent forced sales of family-owned property. Through a comparative analysis of states that have adopted their versions of the UPHPA, this Note considers the law’s potential to protect family land, reduce the risk of displacement, and promote longterm economic stability for communities, especially those in rural and minority populations. While recommending that all states should adopt …

Controlling The Mischief Of New York’S Foreclosure Abuse Prevention Act Through Constitutional Pre-Emption, Shelby D. Green

Touro Law Review

No abstract provided.

Genetic Property Rhetoric And The Public Domain, David Fagundes

Faculty Articles

Among the many themes that illuminate Jorge Contreras’s The Genome Defense, this Essay focuses on property. It considers the rhetorical role played by property in convincing both courts and the public that patenting genetic data was legally and ethically objectionable. This Essay begins by locating property—and public property—as a major theme in the dialogue surrounding the Myriad litigation. It then situates this rhetorical move in the context of property-talk generally, highlighting the distinctiveness of leveraging public rather than private ownership as a means of accessing moral intuitions. Finally, this Essay reflects on what the use of public property rhetoric …

Destroy, Rebuild, Repeat: How To Break The Climate Disaster Cycle, Mark P. Nevitt

Faculty Articles

Climate change is fundamentally reshaping how we live, where we live, and whether we invest in or retreat from climate-exposed communities—but climate and disaster law is not changing with the climate. This legal latency is driven by antiquated statutes, doctrines, and policies that have not kept pace with the climate moment. Ex ante adaptation decisions governing where to live are life and death choices that shape ex post disaster response. Laws and policies should facilitate sound climate decisionmaking, but too often they frustrate individual and governmental decisions on whether to stay or retreat. In this Article, I argue that laws …

Teaching Client Counseling In The Shadow Of Homelessness, Gregory Zlotnick

Faculty Articles

Working with clients at risk of or experiencing, homelessness teaches personal and professional humility like few other experiences in law school or the practice of law. Yet such sensitive work also provides an opportunity for law students to develop both a keener understanding of their own professional identity-with its capacities and limitations and critical counseling skills. This essay draws upon experiences gained in three distinct law school projects that work with clients at risk of or experiencing, homelessness.

After providing a brief overview of each project, the essay will explore methods used for training and supervising students during their counseling …

The Reedy Creek Improvement District: A Comparative Analysis Underscoring The Problems In Hampering Special Districts, J. Patrick Moll

Dickinson Law Review (2017-Present)

In 2022, the Florida legislature passed a bill that removed the administration of the Reedy Creek Improvement District, the special district governing the Walt Disney World Resort. The bill replaced it with the Central Florida Tourism Oversight District. Governor Ron DeSantis hailed this legislation as a success in reigning in a corporation operating with unchecked and unprecedented levels of governmental authority. Since its inception, however, the replacement administration has contended with claims of ethical violations, inefficiency, and unconstitutional enactment. Before the repeal of the Walt Disney World special district, special districts themselves were not often present in the Nation’s everyday …

Subsurface Trespass In The Restatement (Fourth) Of Property: An Appraisal And Alternative Account, Joseph A. Schremmer

Faculty Articles

Building on the scholarly work of leading property theorists Henry Smith and Thomas Merrill, the recently approved Fourth Tentative Draft of the Restatement (Fourth) of Property prescribes treating all entries below ground as ordinary trespasses. That includes entries in the shallow subsurface by building foundations and utility lines, as well as invasions in the deep subsurface by mining shafts, oil and gas wells, and substances injected for disposal and storage. The Restatement comes at an important time in the development of subsurface trespass law, as developers, courts, and policymakers grapple with the growing use of subsurface technologies for horizontal drilling, …

Knudsen V. Dejean, 311 A.3d 102 (R.I. 2024), Ma Camille Briones

Roger Williams University Law Review

No abstract provided.

Takings Doctrinalization, Gerald S. Dickinson

Washington and Lee Law Review

The U.S. Supreme Court’s takings jurisprudence is shaped by an unusually strong reliance on doctrinalist methods of interpretation and reasoning. From Pennsylvania Coal Co. v. Mahon to Penn Central Transportation Co. v. City of New York to Kelo v. City of New London, the Court heavily consults its past takings decisions or refers to the tests, principles, or standards from those decisions as epistemic guides to draw meaning from the Takings Clause. This long history of takings doctrinalization, however, was abruptly disturbed in Nollan v. California Coastal Commission and Dolan v. City of Tigard. There, Justices Scalia and …

Social Purpose Reit, Evan Absher

Faculty Works

The United States grapples with a severe housing affordability crisis, often attributed to restrictive zoning laws, speculative private equity investment, and policy deficiencies. Each of these factors contributes to the housing shortage, but addressing any single factor in isolation is insufficient to resolve the underlying issue. A holistic solution requires increasing housing availability across the entire affordability spectrum through both the production of new units and the preservation of existing affordable housing.

This article argues the misalignment of interests among key local stakeholders—residents, community organizations, and investors is the fundamental cause of the housing crisis. Realignment requires a transformation of …

Nevada’S Blockchain Gamble: Can A State Embracing Web3 Technology Lead Probate Courts Into The Digital Age?, Ariel Sweeney

FIU Law Review

Probate stands as a bastion of legal formalism, seemingly resistant to the transformative currents of digital innovation that have swept through other domains of American law. While financial transactions, real property conveyances, and contract execution have increasingly begun exploring the use of Web3 technologies such as blockchain and smart contracts, estate and probate law remain tethered to paper-based procedures and rigid execution requirements. Nevada was the first state to provide legal support for Web3 technology, amending its Uniform Electronic Transactions Act statutes in 2017 to recognize blockchain-based transactions as valid and judicially enforceable. Yet despite this progressive legislative framework, the …

Fifty Years Of Protecting The Surviving Spouse: The Origin And Evolution Of Florida's Elective Share, Flavia Argamasilla

FIU Law Review

Currently, Florida’s elective share framework calculates the amount a surviving spouse is entitled to based on a decedent’s “elective estate.” Although this “elective estate” represents a significant improvement from previous law, where a decedent was free to completely disinherit a surviving spouse, issues still loom regarding the fairness of the framework. Granting a surviving spouse a fixed share of 30 percent of the decedent’s “elective estate” regardless of the length of the marriage can lead to inequitable outcomes. For instance, a surviving spouse who was married to the decedent for any period of time, one month even, can elect to …

The Effectiveness Of The Minnesota Buffer Law And Its Impacts On People, Ellen P. Isakson

Journal of Earth and Life Science

In January 2015, the then-governor of Minnesota Mark Dayton announced new legislation that would require 50-foot vegetation buffers along all waterways in Minnesota; this legislation would come to be known as the Minnesota buffer law, exact requirements being “perennial vegetative buffers of up to 50 feet along lakes, rivers, and streams and buffers of 16.5 feet along ditches” (Albert, 2017; MN Board of Water and Soil Resources [MN BWSR] 4 ). A buffer in the context of vegetation and natural resource management is a strip of vegetation around a body of water “designed to intercept stormwater runoff and minimize soil …

Free Speech Versus Property: When Deception Can (And Can't) Give Rise To Tresspass, Jareb Gleckel, Elizabeth Nisbet

University of San Francisco Law Review

No abstract provided.

The Legal Debate: Corner Crossing And Public Land Access, Kaden Leverenz

Undergraduate Theses, Professional Papers, and Capstone Artifacts

Is it legal to cross from one corner of public land to an adjacent corner of public land across checkerboarded landscapes in the American West? This question regarding corner crossing has become one of the most prominent and unresolved issues in public land access. Although federal courts in Iron Bar Holdings v. Cape (2025) confirmed corner crossing, without touching or damaging private land, does not constitute trespass, the legal landscape still remains unsettled. Public land users play a significant role in shaping the direction of this issue, as demonstrated by past public mobilizations against large-scale land sell-offs. Therefore, this paper …

Zoning The Subsurface, Hannah Jacobs Wiseman, Anne Menefee, Seth Blumsack, Michael Helbing

Faculty Scholarship

The vast rock formations underlying the United States stand at an important Demsetzian turning point, at which the externalities of inadequately defined property rights justify the costs of solidifying formal property rights for this resource. This need arises from the growing scarcity of pore space (tiny openings) in subsurface rocks—property that is critical to address climate change. Efforts to mitigate and adapt to climate impacts require large-scale underground storage of carbon dioxide, water, and energy within the pore space of subsurface reservoirs. The subsurface will also continue to house millions of miles of pipelines, hundreds of thousands of waste disposal …

The Law Of Digital Resurrection, Victoria J. Haneman

Scholarly Works

The digital right to be dead has yet to be recognized as an important legal right. Artificial intelligence, augmented reality, and nanotechnology have progressed to the point that personal data can be used to resurrect the deceased in digital form with appearance, voice, emotion, and memory recreated to allow interaction with a digital app, chat bot, or avatar that may be indistinguishable from that with a living person. Users may now have a completely immersive experience simply by loading the personal data of the deceased into a neural network to create a chatbot that inherits features and idiosyncrasies of the …

A Multiple Perspective Analysis On Urban Poverty In Developing Nations: A Case Study On Nigeria, Colonial Implications, And Modern-Day Outcomes, Julian Rivera-Williams

CMC Senior Theses

This paper will dissect urbanization and poverty in Nigeria as a case study of the challenges of underdevelopment and the lingering effects of colonialism in Africa. To draw a complete understanding of challenges faced by developing nations facing systemic underdevelopment, high poverty, and low productivity– nations like Nigeria, my research will uncover colonial impacts and post-colonial policies that initiated urban poverty and underdevelopment outcomes we see today. The purpose of my thesis is to encompass existing fragmented academia on the causes and consequences of underdevelopment and connect historical implications to current impacts of global development today including the influence of …

What's Law Got To Do With It? The Role Of The Law In Creating And Exacerbating Racial Disparities In Colonial Land Grants After The War Of 1812, Melisa Marsman

Articles, Book Chapters, & Popular Press

While the reciprocal relationship between law and race is complex and multifaceted, it has deep historical roots in colonial legal systems that played a crucial role in producing and perpetuating racial inequalities. The effects of these historical injustices persist today, evident in the numerous examples of racial disparities across various aspects of life, including land ownership. This article aims to uncover the role of settler-colonial land laws in creating and exacerbating land-based racial inequalities in colonial land grants, with a specific focus on those affecting the Black Refugees of the War of 1812.

Tortious Interference Revisited, Danielle D'Onfro, Cathy Hwang

Scholarship@WashULaw

Tortious interference with contract has bedeviled legal commentators for over a century. It can provide relief in some situations where straightforward contract breach cannot reach. But these claims have also been derided for threatening competition, at-will employment, free speech, and important guardrails on other private law claims. The doctrine is also difficult to square with theories of efficient contract breach and the long-held view that contracts on their own are not property interests.

Perhaps because of its intellectual awkwardness, tortious interference claims were relatively rare until the twenty-first century. In the last twenty years, the doctrine has exploded in popularity, …

A Civil Rights Defense Of Gentrification, Carol Brown

Law Faculty Publications

Scholars across disciplines such as sociology, economics, and urban planning are writing about gentrification. The literature and beliefs surrounding gentrification are very diverse, but what often connects the various views is a negative perception that gentrification always disadvantages and displaces low-income minority residents, physically or culturally. But the connotations of race and class associated with gentrification in the minds of many do not align with the empirical research and scholarly findings. Thus far in law, there is no thick legal account of gentrification and its legal or policy implications. Much of the legal writing is predicated upon an inaccurate conception …

Equitable Obligations And Property In Choice Of Law, Tiong Min Yeo

Research Collection Yong Pung How School Of Law

This chapter argues against the unitary characterisation, for choice of law purposes, of equitable principlesas they apply to claims relating to property as either property or obligation, and that they should be characterised as property or obligation in accordance with the functions of the equitable principles in each instance.

Reconstructing The Meaning Of "Forty Acres And A Mule", Cynthia Nicoletti

Faculty Scholarship

This article offers a new interpretation of the land grant to freedpeople contained in General William T. Sherman’s Special Field Orders No. 15. Issued in January 1865 at the end of the Civil War, Sherman’s Orders are widely considered to be the origin of the government promise to endow freedpeople with “forty acres and a mule” as they transitioned from slavery to freedom. As such, the Special Field Orders have played a central role in shaping the cultural memory of the Civil War, historical accounts of Reconstruction, and contemporary debates over reparations for slavery. They have also been misunderstood and …

Property Problems In The New Non-Marriage: Inheritance, Eliot Tracz

American University Journal of Gender, Social Policy & the Law

Marriage equality has been a hotly contested topic for many years, in both the court of public opinion and in courts of law. Major Supreme Court cases have found that marriage is a fundamental right, yet issues such as marriage outside of one’s race or to a person of the same gender have still been topics of litigation. At times, the very definition of marriage has been at issue, but throughout all of this litigation, courts have consistently defined marriage as a relationship between two people.