Property Law and Real Estate Commons^™

The Mighty Myths Of Kelo, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

The press releases of property rights activists and the media’s rapid embrace of their views have perpetuated several myths about the U.S. Supreme Court’s decision in Kelo v. New London. In the immediate aftermath of this myth making, the legislatures of several states have adopted restrictions on the use of eminent domain with uncharacteristic speed. Wisely, the New York State Legislature has been more cautious in its reaction.

Fifty-One Flowers: Post-Perpetuities War Law And Arkansas' Adoption Of Usrp, Lynn Foster

University of Arkansas at Little Rock Law Review

This article traces the Rules Against Perpetuities' history, from its creation until the present, and discusses the reasons both for its existence and its decline, along with the rise of perpetual trusts. The article also provides the current status of the Rule in the states, which has continued to evolve. Part III of this article explains how the common law Rule works, and it discusses pre-Uniform Statutory Rule Against Perpetuities (USRAP) perpetuities law in Arkansas. Arkansas's constitution forbids perpetuities.

The Arkansas Supreme Court has interpreted this constitutional provision to mean that the common law Rule is law in Arkansas. Nonetheless, …

Property, Contracts, And Politics, Mark Tushnet

Michigan Law Review

Rebecca Scott is a historian, not an economist. Describing how a dispute over a mule's ownership was resolved, Professor Scott reproduces a receipt two claimants left when they took the mule from the plantation whose manager claimed it as well (p. 185). By contrast, analyzing property relations in the pre-Civil War American South, economic historian Jenny Wahl observes, "[E]conomic historians tend to [use] ... frequency tables, graphs, and charts." The differences in visual aids to understanding indicate the various ways historians and economists approach a single topic-the relation between markets and politics, the latter defined to include the deployment of …

The Morality Of Property, Thomas W. Merrill, Henry E. Smith

William & Mary Law Review

No abstract provided.

The Moral Subject Of Property , Carol M. Rose

William & Mary Law Review

No abstract provided.

Three Reasons Why Even Good Property Rights Cause Moral Anxiety , Emily Sherwin

William & Mary Law Review

No abstract provided.

Introductory Remarks: Property Law, James G. Dwyer

William & Mary Law Review

No abstract provided.

A Windfall For The Magnates: The Development Of Woodland Ownership In Denmark, Eric Kades

Faculty Publications

No abstract provided.

A.R.Buck, The Making Ofaustralian Property Law, Margaret Mccallum

Dalhousie Law Journal

Students in first year law in English-speaking common law schools in Canada follow a fairly standard curficulum, heavily weighted in favour of private law subjects such as torts, contracts and property, with criminal law, constitutional law, and perhaps a methods, theories or skills course rounding out their required courses. Most students find the content to be as they expected in courses in torts, contracts, criminal and constitutional law. These areas of law, after all, provide the law-related stories that are an increasing part ofnational and even international news. But many students find first year property a puzzle. They expect the …

From Reparation To Restoration: Moving Beyond Restoring Property Rights To Restoring Political And Economic Visibility, Bernadette Atuahene

All Faculty Scholarship

Abstract: How does a democratic state legitimize strong property rights when property arrangements are widely perceived to be defined by past theft? The answer, I argue, is through restorative justice measures that redistribute wealth based on past dispossession. This answer, however, leads to two more complex questions: Who gets priority in the restorative process given limited resources and how should the process unfold? The concise answers to these two ancillary questions are: First, instances of what I call property-induced invisibility should be prioritized as a baseline for achieving legitimacy. When property is confiscated in this manner people are removed from …

Utah Leads The Way In Regulating Land Use Exactions Through Statute But Still Has Room To Improve, Andrea B. Pace

Brigham Young University Journal of Public Law

No abstract provided.

The Mote In The Common Law's Eye: Dislodging Europocentric Barriers To Just Recognition Of Native Title In The Wake Of Yorta Yorta, Howard L. Highland

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Wake Of The Flood: Examining The Dissipation Of Property Rights Through A Model Of Post-Katrina New Orleans, Nicholas P. Devereux

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Intangible Takings, Susan Eisenberg

Vanderbilt Law Review

The Constitution protects us from our own best intentions."' During times of grave emergency, the powers granted and reserved by the federal government remain unaltered in order to avoid shortsighted solutions that would, in the long run, be worse than the current crisis. Even a simple cure for appreciable suffering may have larger implications, and the rule of law does not know whether it is constraining good or aiding evil.

In the aftermath of Hurricane Katrina, the most costly natural disaster in U.S. history, the Federal Communications Commission ("FCC") imposed a shortsighted resolution that tested the boundaries of its authority. …

Making Sense Out Of Nonsense: A Response To Adverse Possession By Governmental Entities, Andrew Dick

Nevada Law Journal

No abstract provided.

Is Water Property?, Sandra B. Zellmer, Jessica Harder

Faculty Law Review Articles

One of the most controversial issues in natural resources law is whether interests in water are property. In the western United States, water is typically viewed by appropriators as a form of private property, while in the East it is not. In either case, the law is surprisingly unsettled, notwithstanding the important consequences that follow, particularly under constitutional takings jurisprudence. Treating water as property has significant implications for investment, conservation and environmental protection as well. Establishing secure property rights can foster stewardship and wise investment of labor and capital. By the same token, the absence of property ownership can result …

The Takings Clause, Version 2005: The Legal Process Of Constitutional Property Rights, Mark Fenster

UF Law Faculty Publications

The search for coherence in takings jurisprudence has resulted in a multitude of theories but no consensus. Each theory -- whether based on conceptions of common law property rights or constitutional conceptions of justice, or based on utility, natural law, or communitarian or republican conceptions of the good --offers significant insight into the vexing legal, political, and normative issues that judicial enforcement of the Takings Clause raises. But no single theory of property or of constitutional limits on state regulation and expropriation has proven capable either of satisfactorily rationalizing existing takings law or of persuading the courts or the theory's …

Let's Roll: Applying Land-Based Notions Of Property To The Migrating Barrier Islands, Amy H. Moorman

William & Mary Environmental Law and Policy Review

No abstract provided.

Legal Fictions In Pierson V. Post, Andrea Mcdowell

Michigan Law Review

American courts and citizens generally take the importance of private property for granted. Scholars have sought to explain its primacy using numerous legal doctrines, including natural law, the Lockean principle of a right to the product of one's labor, Law & Economics theories about the incentives created by property ownership, and the importance of bright line rules. The leading case on the necessity of private property, Pierson v. Post, makes all four of these points. This Article argues that Pierson has been misunderstood. Pierson was in fact a defective torts case that the judges shoe-horned into a property mold …

Jutstice Kennedy And The Environment: Property, States' Rights, And The Search For Nexus, Michael Blumm

ExpressO

Justice Anthony Kennedy, now clearly the pivot of the Roberts Court, is the Court’s crucial voice in environmental and natural resources law cases. Kennedy’s central role was never more evident than in the two most celebrated environmental and natural resources law cases of 2006: Kelo v. New London and Rapanos v. U.S., since he supplied the critical vote in both: upholding local use of the condemnation power for economic development under certain circumstances, and affirming federal regulatory authority over wetlands which have a significant nexus to navigable waters. In each case Kennedy’s sole concurrence was outcome determinative.

Justice Kennedy has …

When Second Comes First: Correcting Patent’S Poor Secondary Incentives Through An Optional Patent Purchase System, Jordan Barry

ExpressO

As research has advanced, technologies have become more closely knit, and the relationships between them—both complementary and competitive—have become increasingly important. Unfortunately, the patent system’s use of monopoly power to reward innovators creates inefficient results by overly encouraging the development of substitute technologies and discouraging the development of complementary technologies. This paper explains how an optional patent purchase system could help ameliorate such problems and discusses the implications of such a system.

Chain Reaction: How Property Begets Property, Sabrina Safrin

Rutgers Law School (Newark) Faculty Papers

Classic theories for the evolution of property rights consider the emergence of private property to be a progressive development reflecting a society’s movement to a more efficient property regime. This article argues that instead of this progressive dynamic, a more subtle and damaging chain reaction dynamic can come into play that traditional theories for intellectual and other property rights neither anticipate nor explain. The article suggests that the expansion of intellectual and other property rights have an internally generative dynamic. Drawing upon contemporary case studies, the article argues that property rights evolve in reaction to each other. The creation of …

An Economic Analysis Of The Duty To Disclose Information: Lessons Learned From The Caveat Emptor Doctrine, Alex M. Johnson

ExpressO

No abstract provided.

Commentaries: The Ambiguous Work Of “Natural Property Rights”, Gregory S. Alexander

Cornell Law Faculty Publications

The three fascinating papers by Dick Helmholz, Jim Ely, and Mark Tushnet prompt me to ask, why was there so much talk among late 18th and 19th century American lawyers about property as a "natural" right and why has the language persisted today? More specifically, what work is the rhetoric of "natural property rights" intended to do? This is not the proper occasion for developing anything like complete answers to those questions, but I do want to offer three lines of thought that might begin to approach a fuller explanation of the puzzling persistence of natural-property-rights talk.

Eminent Domain: A Legal And Economic Critique, Nadia E. Nedzel, Walter Block

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

The Houses That Eminent Domain And Housing Tax Credits Built: Imagining A Better New Orleans, Carol Necole Brown, Serena M. Williams

Fordham Urban Law Journal

Proposals for investing in and rebuilding urban enclaves such as New Orleans are layered with controversy and difficulty. One of the most significant impediments to rebuilding New Orleans will be addressing the need to replenish the depleted rental housing market. Racial and economic integration of housing markets and appropriate use of private sector money to replenish the rental housing stock within a "reasonable" time period are indispensable components of a responsible revitalization and renewal plan. This Article contends that a combination of the smart exercise of eminent domain and of "housing production subsidies" -- housing tax credits -- is necessary …

City Governments And Predatory Lending, Jonathan L. Entin, Shadya Y. Yazback

Fordham Urban Law Journal

This Article assesses the legal challenges that cities can face in trying to deal with predatory lending. Part I provides an overview of the problem. Part II focuses on the common law and statutory claims that cities might bring, with particular emphasis on the evidentiary isses that cities can face and the requirements of standing that could severely limit the effectiveness of lawsuits brought by municipalities. The Article then turns to city efforts to regulate predatory lending pursuant to their home rule authority, efforts than can be stymied both by state laws that supersede municipal ordinances and federal regulations that …

Casenote: The Emerald Casino Fiasco, 40 J. Marshall L. Rev. 1305 (2007), Cory Aronovitz, Jon Topolewski

UIC Law Review

No abstract provided.

Placing The Commercial And Economic Loss Problem In The Construction Industry Context, 41 J. Marshall L. Rev. 39 (2007), Carl J. Circo

UIC Law Review

No abstract provided.

Is Chicago's Plan For Transformation Promoting Integration Or Reinforcing Segregation?, 41 J. Marshall L. Rev. 249 (2007), Joe O'Brien

UIC Law Review

No abstract provided.