Property Law and Real Estate Commons^™

Race And The Covid-19 Eviction And Housing Crisis, Bradey Camille Baltz

Arkansas Law Notes

Historical and present discriminatory housing, land use, property, and criminal policies and laws have contributed to an inaccessibility of homeownership and wealth accumulation for people of color in the United States. “People of color rent at higher rates than white people,” and thus, face a higher risk of eviction. People of color are also overrepresented in jobs most affected by the COVID-19 pandemic, like the restaurant and hotel industries. As compared to white workers, Black and Latinx Americans are less likely to have access to paid sick leave and family leave, forcing them to choose to go to work when …

Fracturing The Rule Of Capture: The Improper Application Of The Rule Of Capture To Subsurface Intrusions Resulting From Hydraulic Fracturing, Alexis K. Désiré

Seattle Journal of Technology, Environmental, & Innovation Law

Imagine that during the course of hydraulically fracturing a tract of land—a process used to extract gas from low-permeability rock formations —a drilling company causes fractures, as well as some of the materials necessary to the fracturing process, to cross the boundary of its property line and enter an adjoining property—that is, it makes a subsurface intrusion onto a neighbor’s property. Assume further that, because the company’s fractures have extended into the neighbor’s property, oil and gas from the neighboring land travels to the company’s wellbore, causing the neighbor to bring a tort action against the company for harms related …

Law School News: National Housing Advocate Named To Lead Rwu's New Real Estate Initiatives 02/08/2022, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Getting Real, Getting Personal: Fictions And Realities Of Property Across Borders (Review Of Lionel Shriver, Property: Stories Between Two Novellas And Ayelet Waldman, Love & Treasure), Jorge L. Contreras

Utah Law Faculty Scholarship

From our earliest days, we are steeped in stories revolving around the acquisition, and loss, of property. For these reasons, Lionel Shriver’s collection of short fiction – Property: Stories between Two Novellas – and Ayelet Waldman’s novel Love & Treasure are particularly worthy of attention. Each of these works sheds new and interesting light on assumptions about property across national and cultural boundaries and raises questions about the place of property in shaping the human experience.

The History Wars And Property Law: Conquest And Slavery As Foundational To The Field, K-Sue Park

Georgetown Law Faculty Publications and Other Works

This Article addresses the stakes of the ongoing fight over competing versions of U.S. history for our understanding of law, with a special focus on property law. Insofar as legal scholarship has examined U.S. law within the historical context in which it arose, it has largely overlooked the role that laws and legal institutions played in facilitating the production of the two preeminent market commodities in the colonial and early Republic periods: expropriated lands and enslaved people. Though conquest and enslavement were key to producing property for centuries, property-law scholars have constructed the field of property law to be largely …

Opportunity Zones, 1031 Exchanges, And Universal Housing Vouchers, Brandon Weiss

Scholarly Articles in Law Reviews & Journals

The Tax Cuts and Jobs Act of 2017 contained former President Trump's signature economic development initiative: the Opportunity Zone program. Allowing a deferral of capital gains tax for certain qualifying investments in low-income areas, the Opportunity Zone program aims to spur economic development by steering capital into economically distressed neighborhoods. The program is the latest iteration of an overly simplistic market-based approach to community development an approach that transcends political party-based on a flawed yet enduring notion that mere proximity of capital will solve deeply entrenched issues of poverty and racial inequality. In reality, the legacy of Opportunity Zones is …

Survey Of State Laws Governing Fees Associated With Late Payment Of Rent, Ryan Sullivan

Nebraska College of Law: Faculty Publications

The Survey contains both a cumulative and detailed account of the laws of each state governing late fees and penalties associated with late payment of rent involving residential tenancies. States that impose late fee maximums vary greatly on the amount and form of the limitation—some limit the late fee to a certain percentage of the rental amount, a few states impose a dollar amount maximum, and several states impose both. Some states, rather than limiting the late fee to a certain amount, only require that the late fee be “reasonable.” Additionally, a handful of states mandate that late fees can …

Law School News: The Dean Meets The Governor 01-26-2022, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Monsanto: Creator Of Cancer Liability

DePaul Business & Commercial Law Journal

No abstract provided.

Impact Of Corporate Response To Controversial Presidential Statements Or Policies

DePaul Business & Commercial Law Journal

No abstract provided.

How The Subprime Mortgage Crisis Sparked New Legislation And Changed The Way Millennials Purchase Real Estate, Troy T. Kramer

The Journal of Business, Entrepreneurship & the Law

This article will explore the Generation Y's approach to the real estate market and analyze how the Subprime Mortgage Crisis stunted Millennials’ economic development. It also analyzes what ways legislation has changed and government has influenced the economy since 2008 to prevent another free fall of the global economy and to protect consumers from predatory lending practices and under-regulation of the financial sector. Further, this article will analyze how Millennials differ from previous generations in their method of purchasing homes and investing in real estate—with a specific eye towards advances in technology. This article also gives advice to first-time homebuyers …

Tokenized: The Law Of Non-Fungible Tokens And Unique Digital Property, Joshua A.T. Fairfield

Scholarly Articles

Markets for unique digital property--digital equivalents of rare artworks, collectible trading cards, and other assets that gain value from scarcity--have exploded in the past few years. At root is the next iteration of blockchain technology, unique digital assets called non-fungible tokens. Unlike bitcoin, where one coin is the same as another, NFTs are unique, each with different attributes. An NFT that represented ownership of Boardwalk would be quite different from one that represented Baltic Avenue.

NFTs have grown from a few early breakout successes to a rapidly developing market for unique digital treasures. The attraction to buyers is that, unlike …

Property As The Law Of Virtual Things, Joshua A.T. Fairfield

Scholarly Articles

Property law in the twentieth century moved from the law of things to the law of rights in things. This was a process of fragmentation: Under Hohfeldian property, we conceive of property as a bundle of sticks, and those sticks can be moved to different holders; the right to possess can be separated from the record ownership right, for example. The downside of Hohfeld's model is that physical objects—things—become informationally complicated. Thing-ness constrains the extravagances of Hohfeldian property: although we can split off the right to possess from the right to exclude, use, destroy, copy, manage, repair, and so on, …

Eminent Domain And Unfettered Discretion: Lessons From A History Of U.S. Territorial Takings, Jill M. Fraley

Scholarly Articles

Eminent domain is a minimal constitutional protection for private property and one that is subject to far more discretion than previously recognized by scholars. This Article traces a novel legal history of land takings within the U.S. Territories, focusing on some of the most egregious and controversial incidents and problematic patterns originating within eminent domain law. Comparing this history to recent research that demonstrates how takings in the States have disproportionately impacted Black communities, this Article articulates three patterns of injustices in takings echoing between Black mainland communities and indigenous communities in the Territories: large-scale federally funded actions, local government …

Reshaping Washington's Public Lands Trust Doctrine, Audrey Bell

Selected Articles on Washington State Constitution History

In this paper, I will discuss how Washington state’s trust duties related to federally-granted public lands management have and have not been reconciled with article XVI, section 1 of the Washington constitution. First, I will provide a foundation for the management of federally-granted public lands and the storied history of Congress's intent in providing land grants to the states. Next, I will examine the provisions of the Enabling Act of 1889 ("Enabling Act") and the Washington constitution that govern the management of those granted lands. Third, I will chart the historical treatment of Washington state trust duties related to the …

Inheriting Citizenship, Scott Titshaw

Articles

Most of us become citizens at birth based either on our birthplace or our parents' citizenship status. Over thirty countries recognize birthplace citizenship, but inherited citizenship is nearly universal. Such universal legal rules are rare, and they are particularly remarkable in the context of citizenship, where state sovereignty is near its apex. This Article explores why inherited citizenship is necessary, even in nations recognizing birthplace citizenship. It surveys the history, definitions, purposes, current rules, politics, and global trends in this area and identifies three modern categories of birthright citizenship laws: primary inherited citizenship systems, dual inherited and birthplace systems, and …

Condominium: A Transformative Innovation In Property And Local Government, Douglas C. Harris

All Faculty Publications

Condominium is a form of ownership that produces separate parcels of land and a structure of local government within multi-unit developments. As one form of common interest community, condominium packages private property with a co-ownership interest in common property and rights to participate in the governing organisation. A statutory innovation, the condominium form has been adopted in jurisdictions around the world and has quickly become the dominant form of land ownership for new-build housing in many cities. As an increasingly prominent feature of urban real estate, condominium is changing the nature of ownership and of local government, and is one …

Apartheid-Era Chicago, 55 Uic L. Rev. 219 (2022), Karl Muth

UIC Law Review

No abstract provided.

Breaches Of Fiduciary Duty And Exculpatory Clauses In Illinois Condominium Declarations, 55 Uic L. Rev. 289 (2022), Kenneth Michaels

UIC Law Review

No abstract provided.

Adaptive Rezoning For Social Equity, Affordability And Resilience, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

In this Article, I will show how the legacies of the institutional barriers to housing still persist to deprive many of the predicates for economic thriving and personal flourishing and how existing zoning philosophy cannot be justified by the need to protect health and safety. Righting the inequities of the past and of the present will require dismantling some of the institutions, apparently legitimate and well-meaning, but operating devilishly to create and perpetuate hardship and exclusion. This will require laying bare the institutions to reveal their ignoble essence. We need a radical overhaul of the historic zoning regime from one …

Non-Debt And Non-Bank Financing For Home Purchase: Promises And Risks, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

This Article explores the phenomenon of the NDNBs in home purchase and finance that has gained a growing presence in the mortgage marketplace since the 2008 crisis. Part II offers a deeper discussion of the risk-prone practices leading to the 2008 housing crisis and the regulatory and industry responses for recovery. Parts III and IV describe the emerging new models of home purchase. Part IV explores some of the apparent and hidden risks in these transactions. Part VI concludes with suggestions for assessing and managing risks and for reforms.

Innate Property: The Danger Of Incongruency Between Law And The Biological And Behavioral Roots Of Property And Possessiveness, Aaron Schwabach

Cardozo Law Review de•novo

Property law is, in some areas, dangerously out of step with property expectations. Property—the idea that a place, object, or idea can belong to a person—is at the root of the world’s economies and thus also at the root of much of its laws. Property is neither solely a creature of positive law, nor of some abstract natural law with a moral underpinning, but rather may be biologically determined, much as Noam Chomsky proposed for languages in Aspects of the Theory of Syntax.1 The idea that ownership is at least behaviorally, and perhaps to some extent instinctively, determined has been …

Do We Own What We Post?: The Fundamental Property Right To Destroy Your Presence On The Internet, Olivia Shangrow

Seattle University Law Review

This Note will explore the well-established right to destroy your own property and how such a fundamental right can and should be applied to our online property to develop more protective data privacy legislation. Part I highlights the longstanding pillar of property law establishing a right to destroy one’s property, and how that can and should be applied to your digital identity. Part II will discuss the ambiguity of personal data ownership online and the ill effects resulting from the lack of control of our personal information on the Internet. Part III examines the current state of data privacy legislation …

Race To Property: Racial Distortions Of Property Law, 1634 To Today, Bethany Berger

Faculty Articles and Papers

Race shaped property law for everyone in the United States, and we are all the poorer for it. This transformation began in the colonial era, when demands for Indian land annexation and a slave-based economy created new legal innovations in recording, foreclosure, and commodification of property. It continued in the antebellum era, when these same processes elevated nationalized property transactions over other rights; and gained new tactics after the end of slavery through the early twentieth century, when the pursuit of racial hierarchy expanded private owners' rights to exclude and tied occupation of physical space to status. The influence of …

Escaping Circularity: The Fourth Amendment And Property Law, João Marinotti

Maryland Law Review

No abstract provided.

Eliding Original Understanding In Cedar Point Nursery V. Hassid, Bethany Berger

Faculty Articles and Papers

Cedar Point Nursey v. Hassid is a triumph of the conservative majority of the Supreme Court. In holding that temporary entries to land are takings without regard to duration, impact, or the public interest, the Court fulfilled the decades-long ambitions of anti-regulatory advocates of private property. Progressive and conservative scholars agree that the decision runs roughshod over precedent. This essay focuses on a less obvious aspect of Cedar Point: its flagrant departure from original understanding. American law at the time of the founding recognized a robust right to enter private property. Trespass law did not even reach entries unless they …

Trade Transparency: A Call For Surfacing Unseen Deals, Kathleen Claussen

Articles

For many years, the executive branch has concluded foreign commercial agreements with trading partners pursuant to delegated authority from Congress. The deals govern the contours of a wide range of U.S. inbound and outbound trade: from food safety rules for imported products to procedures and specifications of exported goods, to name two. The problem is that often no one-apart from the executive branch negotiators- knows what these deals contain. A lack of transparency rules has inhibited the publication of and reporting to Congress of these unseen deals. Dozens if not hundreds of foreign commercial deals are unseen in two ways: …

Butler V. Gavek, 245 A.3d 750 (R.I. 2021), David Braga

Roger Williams University Law Review

No abstract provided.

Frederick Douglass And The Hidden Power Of Recording Deeds, Randall K. Johnson

Faculty Works

This Essay answers a single question: What led Frederick Douglass to accept an appointment as the D.C. Recorder of Deeds, especially at the height of his public service career? A possible answer, which is informed by the historical record and more contemporary accounts, is that Douglass accepted such an appointment for three reasons. The first reason is that the D.C. Recorder has been long recognized as an exemplar of fairness, perhaps due to its ministerial obligations, even when there could be no such expectation with respect to how Black folks are treated. The second reason is this office provided Douglass …

Trespass Plus: Ag-Gag And The Right To Exclude, Anthony B. Derron

Publications

The recent proliferation of agricultural anti-whistleblower legislation, or "ag-gag," has finally given the right to exclude the weight that property theory claims it deserves. By offering hefty fines and imprisonment to would-be agricultural trespassers, ag-gag is one of the few legal frameworks to treat the right to exclude seriously. Scholars and judges are taking notice. Given the significant environmental harms that agriculture causes – nearly one-third of all greenhouse gas emissions – and the conspicuous First Amendment concerns, it’s no wonder. But what commentators aren’t noticing is just how radical ag- gag is when compared to the legal regimes of …