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Full-Text Articles in Property Law and Real Estate

Supreme Neglect Of Text And History, William Michael Treanor Apr 2009

Supreme Neglect Of Text And History, William Michael Treanor

Michigan Law Review

Since his classic book Takings appeared in 1985, Richard Epstein's ideas have profoundly shaped debate about the Fifth Amendment's Takings Clause to a degree that no other scholar can even begin to approach. His broad, original, and stunningly ambitious reading of the clause has powerfully influenced thinking in academia, in the judiciary, and in the political arena. The firestorm of controvery that followed the Supreme Court's recent decision in Kelo - in which the Supreme Court upheld the constitutionality of a municipal urban renewal plan that displaced long-time homeowners and conveyed their land to developers - is in critical part …

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Regulatory Takings: A Chronicle Of The Construction Of A Constitutional Concept, Garrett Power Mar 2009

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

Brigham Young University Journal of Public Law

No abstract provided.

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Development Of Ukrainian Real Property And Mortgage Law: The American Perspective, Zhanna Bulkina Mar 2009

Development Of Ukrainian Real Property And Mortgage Law: The American Perspective, Zhanna Bulkina

San Diego International Law Journal

Modern Ukrainian commercial law started to develop following the break-up of the Soviet Union in August 1991 and the reemergence of Ukraine as an independent democratic state. As a result of the break-up, in 1991 the new state of Ukraine inherited the jurisprudence, institutions and government of the former Ukrainian Soviet Socialist Republic. While Ukraine quickly shed its Soviet past by changing the communist names of streets and institutions, the transition was not as easy when it came to substantive changes in Ukrainian jurisprudence and legal thinking. Ukraine needed to develop its own system of law to establish an open …

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Property And Relative Status, Nestor M. Davidson Mar 2009

Property And Relative Status, Nestor M. Davidson

Michigan Law Review

Property does many things-it incentivizes productive activity, facilitates exchange, forms an integral part of individual identity, and shapes communities. But property does something equally fundamental: it communicates. And perhaps the most ubiquitous and important messages that property communicates have to do with relative status, with the material world defining and reinforcing a variety of economic, social, and cultural hierarchies. This status-signalingf unction of property-withp roperty serving as an important locus for symbolic meaning through which people compare themselves to others-complicates premises underlying central discourses in contemporary property theory. In particular, status signaling can skew property's incentive and allocative benefits, leading …

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Basic Arkansas Intestate Succession, Rights Of Surviving Spouses, And Related Curative Techniques For Lawyers And Landmen, J. Mark Robinette Jr. Feb 2009

Basic Arkansas Intestate Succession, Rights Of Surviving Spouses, And Related Curative Techniques For Lawyers And Landmen, J. Mark Robinette Jr.

Annual of the Arkansas Natural Resources Law Institute

Mineral interests may lay dormant for decades before becoming productive. In the interim, however, the owners of these interests do not lay dormant. They live long lives, marry, have children, and eventually, they die. Some of these persons have well-laid estate plans, know the nature and extent of their property, and upon their departure to the hereafter, leave their affairs in meticulous order with no question of who is entitled to what and where. Others depart this life leaving little more than a treasure map and their descendants. Generations and many lines of persons descended from one severed mineral owner …

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The Foreclosure Crisis And The Anti-Fragmentation Principle In State Property Law, David A. Dana Jan 2009

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 …

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Congress Needs To Help Victims Of Foreclosures, Bernadette Atuahene Jan 2009

Congress Needs To Help Victims Of Foreclosures, Bernadette Atuahene

All Faculty Scholarship

No abstract provided.

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Perpetual Property, Sarah K. Harding Jan 2009

Perpetual Property, Sarah K. Harding

All Faculty Scholarship

This paper explores the emergence of perpetual property in a number of discrete areas of property law: the longevity of servitudes in historic and environmental preservation, the ever growing time span of intellectual property rights, the disappearance of the rules against perpetual interests, and the temporally unlimited reach of cultural property claims. While the demise of temporal limitations is itself worthy of recognition and will be the focus of a significant part of this paper, my primary interest is whether these changes tell us something about shifting cultural attitudes to the institution of private property. If it is the case, …

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Putting Community Equity In Community Development: Resident Equity Participation In Urban Redevelopment, Barbara Bezdek Jan 2009

Putting Community Equity In Community Development: Resident Equity Participation In Urban Redevelopment, Barbara Bezdek

Faculty Scholarship

The special concern of this paper is to recalibrate the benefits and burdens of public-private partnerships as they remake inner city neighborhoods, by braking the rate at which urban land is being reclaimed from low-wealth residents by local government practices to disperse occupants, sweeping aside their tangible and intangible capital. Public oversight requirements have not kept pace with the dispossession, yet the costs that these development decisions impose on the social fabric of communities rend the shared networks necessary to residents’ abilities to meet basic social needs. This destruction of low-wealth communities is a form of equity-stripping, produced by local …

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The Background Principles And Core Contents Of The Real Right Law Of The People's Republic Of China, Zhu Yan Jan 2009

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.

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Properties Of Community, Gregory S. Alexander, Eduardo M. Peñalver Jan 2009

Properties Of Community, Gregory S. Alexander, Eduardo M. Peñalver

Cornell Law Faculty Publications

Theories of property presuppose conceptions of community, and of the individual's relationship to community. In contrast to the dominant theories of community at work within most Anglo-American property theorizing, which view community obligations as fundamentally instrumental and contractual, we propose in this paper a theory that views the relationship between the individual and community as constitutive and substantive. Human beings' dependence on others to flourish imposes on political communities and their individual members a shared obligation to foster and contribute to the creation and maintenance of those structures necessary for that flourishing. This obligation in turn qualifies individual rights of …

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A Statement Of Progressive Property, Gregory S. Alexander, Eduardo M. Peñalver, Joseph William Singer, Laura S. Underkuffler Jan 2009

A Statement Of Progressive Property, Gregory S. Alexander, Eduardo M. Peñalver, Joseph William Singer, Laura S. Underkuffler

Cornell Law Review

No abstract provided.

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Reforming Section 10 And The Habitat Conservation Plan Program, David A. Dana Jan 2009

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 …

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When Less Liability May Mean More Precaution: The Case Of Nanotechnology, David A. Dana Jan 2009

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 …

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The Contextual Rationality Of The Precautionary Principle, David A. Dana Jan 2009

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 …

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Virtual Property Problem: What Property Rights In Virtual Resources Might Look Like, How They Might Work, And Why They Are A Bad Idea, The, John William Nelson Jan 2009

Virtual Property Problem: What Property Rights In Virtual Resources Might Look Like, How They Might Work, And Why They Are A Bad Idea, The, John William Nelson

McGeorge Law Review

No abstract provided.

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Bordering Capabilities Versus Borders: Implications For National Borders, Saskia Sassen Jan 2009

Bordering Capabilities Versus Borders: Implications For National Borders, Saskia Sassen

Michigan Journal of International Law

A core argument of this Essay is that the capability to make borderings has itself switched organizing logics: from institutionalizing the perimeter of a territory to multiplying transversal borderings cutting across that perimeter. This switch is partly linked to the types of scalar shifts in the operational space of a growing number of systems. To the more economic systems already mentioned above, let me add such diverse instances as the policing of the illegal drug trade, the war on terror, the judicial and political struggle to protect human rights, and the environmental effort to reorganize transnational economic sectors, including the …

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Protecting Cultural Property Through Provenance, Christopher D. Cutting Jan 2009

Protecting Cultural Property Through Provenance, Christopher D. Cutting

Seattle University Law Review

This Comment recommends that Congress take action to bring consistency to the treatment of cultural property in two ways. First, ownership disputes should be settled based on the quality of provenance between competing claimants, a system similar to land title registration. Provenance is the history of a piece of cultural property that shows where it came from and where it has been. Second, to ensure provenance is a complete guide to title all cultural objects, both illegally exported and stolen cultural property should receive the same treatment. Part II of this Comment discusses the history of cultural property regulation. Next, …

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A Property Theory Of Contract, Andrew S. Gold Jan 2009

A Property Theory Of Contract, Andrew S. Gold

Faculty Scholarship

No abstract provided.

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Law And The Emotive Avatar, Llewellyn J. Gibbons Jan 2009

Law And The Emotive Avatar, Llewellyn J. Gibbons

Vanderbilt Journal of Entertainment & Technology Law

The barriers between fantasy and reality in virtual worlds are becoming increasingly permeable. There is a rhetorical need among some legal scholars to distinguish between a law of virtual worlds or concepts of net-sovereignty and the so-called real world. These metaphorical distinctions are unhelpful and confuse the issues as to exactly what is being regulated. A more productive line of analysis is to consider the avatar as an extension of the individual or an agent of the individual in virtual spaces and then to shift the focus of analysis away from the avatar and back to the individual because it …

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One May V. The 800-Pound Gorilla: An Argument For Truly Just Compensation In Condemnation Proceedings, Allison Minton Jan 2009

One May V. The 800-Pound Gorilla: An Argument For Truly Just Compensation In Condemnation Proceedings, Allison Minton

West Virginia Law Review

No abstract provided.

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Taking Property Rights Seriously: The Case Of Climate Change, Jonathan H. Adler Jan 2009

Taking Property Rights Seriously: The Case Of Climate Change, Jonathan H. Adler

Faculty Publications

The dominant approach to environmental policy endorsed by conservative and libertarian policy thinkers, so-called "free market environmentalism" (FME), is grounded in the recognition and protection of property rights in environmental resources. Despite this normative commitment to property rights, most self-described advocates of FME adopt a utilitarian, welfare-maximization, approach to climate change policy, arguing that the costs of mitigation measures could outweigh the costs of climate change itself. Yet even if anthropogenic climate change is decidedly less than catastrophic - indeed, even if it net beneficial to the globe as whole - human-induced climate change is likely to contribute to environmental …

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Property 101: Is Property A Thing Or A Bundle?, Eric R. Claeys Jan 2009

Property 101: Is Property A Thing Or A Bundle?, Eric R. Claeys

Seattle University Law Review

This Review Essay has two aims. My more immediate aim is to assess where Merrill and Smith's contribution fits in the market for first-year Property casebooks. In short, Property: Principles and Policies represents an important advance in property pedagogy. By focusing thematically on exclusion's efficiency, Merrill and Smith have captured many important features of property overlooked by other casebooks. My longer-range aim is to advance the reclamation project Merrill and Smith have begun, by clarifying further the work that exclusivity does in property law. Property: Principles and Policies brings contemporary scholarship a long way toward appreciating the virtues of exclusivity, …

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The Unbearable Cost Of Skipping The Check: Property Rights, Takings Compensation & Ecological Protection In The Western Water Law Context, 17 N.Y.U. Envtl. L.J. 1063 (2009), Scott Andrew Shepard Jan 2009

The Unbearable Cost Of Skipping The Check: Property Rights, Takings Compensation & Ecological Protection In The Western Water Law Context, 17 N.Y.U. Envtl. L.J. 1063 (2009), Scott Andrew Shepard

UIC Law Open Access Faculty Scholarship

No abstract provided.

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Assessing The Challenges Of Geologic Carbon Capture And Sequestration: A California Guide To The Cost Of Reducing Co2 Emissions, Les Lo Baugh, William L. Troutman Jan 2009

Assessing The Challenges Of Geologic Carbon Capture And Sequestration: A California Guide To The Cost Of Reducing Co2 Emissions, Les Lo Baugh, William L. Troutman

Sustainable Development Law & Policy

No abstract provided.

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Facts, Information, And The Newly Discovered Record In Pierson V. Post, James E. Krier Jan 2009

Facts, Information, And The Newly Discovered Record In Pierson V. Post, James E. Krier

Articles

Unlike Professors Fernandez, Banner, and Donahue, I am not a legal historian; like them, however, I am much interested in the comings and goings of the famous old case about the fox. It figures significantly in my course on property and in my co-authored book on the subject. The background of the case is noted in the book and will be updated in the next edition to take account of Fernandez's discovery of the hitherto lost judgment roll in the case.I Her find yields many facts, but, in my judgment, virtually no information. Facts are necessary to information, but not …

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Evolutionary Theory And The Origin Of Property Rights, James E. Krier Jan 2009

Evolutionary Theory And The Origin Of Property Rights, James E. Krier

Articles

For legal scholars, the evolution of property rights has been a topic in search of a theory. My aim here is to draw together various accounts (some of them largely neglected in the legal literature), from dated to modern, and suggest a way they can be melded into a plausible explanation of property's genesis and early development. What results hardly amounts to a theory, but it does suggest an outline for one. Moreover, it provides a primer on the subject, a reasonably solid foundation for thinking and talking about the evolution of property rights.

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Reconceptualizing Trespass, Alex Stein, Gideon Parchomovsky Jan 2009

Reconceptualizing Trespass, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

No abstract provided.

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The Stubborn Incoherence Of Regulatory Takings, Mark Fenster Jan 2009

The Stubborn Incoherence Of Regulatory Takings, Mark Fenster

UF Law Faculty Publications

The Supreme Court's unanimous decision in Lingle v. Chevron U.S.A., Inc. was met with restrained but largely appreciative notice by commentators. Lingle declared that the Takings Clause affirmatively protects property owners by awarding them compensation for regulations that impose the functional equivalent of a condemnation of their property. The regulatory takings doctrine thus differs from the substantive due process doctrine, which instead reviews the validity of a regulation and offers as its remedy the invalidation of an offending government action. Clearing the underbrush that had grown in nearly a century of Supreme Court precedent, the Court appeared to have made …

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Pavesich, Property And Privacy: The Common Origins Of Property Rights And Privacy Rights, Michael B. Kent Jr. Jan 2009

Pavesich, Property And Privacy: The Common Origins Of Property Rights And Privacy Rights, Michael B. Kent Jr.

Scholarly Works

No abstract provided.

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