Property Law and Real Estate Commons^™

Background Principles, Takings, And Libertarian Property: A Reply To Professor Huffman, J.B. Ruhl, Michael C. Blumm

Vanderbilt Law School Faculty Publications

One of the principal, if unexpected, results of the Supreme Court's 1992 decision in "Lucas v. South Carolina" Coastal Commission is the rise of background principles of property and nuisance law as a categorical defense to takings claims. Our writings on the background principles defense have provoked Professor Huffman, a devoted advocate for an expanded use of regulatory takings to protect landowner development rights, to mistakenly charge us with arguing for the use of common law principles to circumvent the rule of law, Supreme Court intent, and the takings clause. Actually, ours was not a normative brief at all, but …

Comment On Enterprise Duty To Serve Underserved Markets, David J. Reiss

Cornell Law Faculty Working Papers

FHFA invited further comment on the merit of considering properties without affordable use restrictions as part of the Enterprises’ duty to serve, noting that affordable housing preservation “encompasses efforts to keep unsubsidized properties in good condition while maintaining affordability for low- and moderate-income households.” (Page 32102)

FHFA should be certain that any aid given to buildings without affordable use restrictions will actually be passed on in large part to their tenants, whether through lower rents or improved conditions. I question whether that is in fact the case.

There are two main rationales for subsidizing multifamily buildings without affordable use restrictions. …

Land Rights And Socio-Economic Development Of Afro-Brazilian Communities, Noah Browne, Anne Dana, Katherine Shea

Duke Law Student Papers Series

Law students and recent graduates who spent the Spring 2010 semester studying the land rights of Afro-Brazilian communities have submitted their final report to community leaders and Brazilian government officials, institutions, and non-government organizations engaged in the issue.

Written under the supervision of Laurence R. Helfer, the Harry R. Chadwick, Sr. Professor of Law, the report contains insights gleaned from the students’ intense study and research, both at Duke Law and on the ground in Brazil. Along with Helfer, the students spent their 2010 Spring break in Brazil as part of the seminar. They met with members of quilombos -- …

Transformation Of Land Rights In Indonesia: A Mixed Private And Public Law Model, Daryono

Washington International Law Journal

Transformation of land rights from colonial to post-colonial systems in many developing countries was primarily undertaken by two different models: firstly, it was entirely governed by private law to allow voluntary transformation, and secondly, it was under public law where the state placed a tight administrative control during the transformation process. Both models had benefits and limitations, but they generally failed to develop modern property rights systems. A third regime of a mixed private and public law model has been promoted to create balance between private and public orders experienced within Indonesia. The mixed private and public law transformation creates …

Locating The International Interest In Intranational Cultural Property Disputes, Joseph P. Fishman

Vanderbilt Law School Faculty Publications

This Article considers the extent to which there may be an international interest in how intranational disputes over cultural property are settled. Drawing on the norms underlying recent global scrutiny of states’ destruction of cultural objects located within their own territory, I identify two factors that may justify internationalizing otherwise domestic conflicts over cultural property: discriminatory intent and harm to cultural diversity. I argue that where neither of these concerns is implicated, the international community should pursue a policy of non-intervention, both because local authorities are likely to be more competent adjudicators and because eliciting a global referendum on cultural …

The New Financial Assets: Separating Ownership From Control, Tamar Frankel

Faculty Scholarship

This Article is organized in three parts. Part One examines the nature of financial assets and their transition by market transactions from contracts to property. The discussion highlights the gray areas which financial assets occupy in decoupling, falling within both contract and property law.

Part Two describes four types of decoupled financial assets. The first type separates into two financial assets: ownership benefits and ownership risks. The presumed reduction of owners' risks prompted some academics to justify reducing the owners' protection. I suggest that attempts to protect owners from ownership risk have failed. Therefore, the suggestion was ill-conceived. The second …

Laying To Rest An Ancien Régime: Antiquated Institutions In Louisiana Civil Law And Their Incompatibility With Modern Public Policies, Christopher K. Odinet

Faculty Scholarship

Man faces unprecedented challenges as he barrels through the twenty-first century. The world is now approaching a population of seven billion people, concentrated largely in crowded, overdeveloped urban centers. Global climate change is predicted to cause massive population displacement related to the disappearance of coastal lands and to create dire food shortages within the coming decade. Increasingly, societies are forced to make systemic adaptations to handle the strain of these modern-day crises. Governments must be innovative and adaptive in their efforts to protect the public. When the fundamental goals and objectives of society alter, the law should be modified to …

The Inviolate Home: Housing Exceptionalism In The Fourth Amendment, Stephanie M. Stern

All Faculty Scholarship

The ideal of the inviolate home dominates the Fourth Amendment. The case law accords stricter protection to residential search and seizure than to many other privacy incursions. The focus on protection of the physical home has decreased doctrinal efficiency and coherence and derailed Fourth Amendment residential privacy from the core principle of intimate association. This Article challenges Fourth Amendment housing exceptionalism. Specifically, I critique two hallmarks of housing exceptionalism: first, the extension of protection to residential spaces unlikely to shelter intimate association or implicate other key privacy interests; and second, the prohibition of searches that impinge on core living spaces …

Getting Back The Public's Money: The Anti-Favoritism Norm In American Property Law, John Martinez

Buffalo Law Review

No abstract provided.

A Survey Of The Law Of Easements In West Virginia, John W. Fisher Ii

West Virginia Law Review

No abstract provided.

Rural Property Law, Alan Romero

West Virginia Law Review

No abstract provided.

The Newly-Enacted Cplr 3408 For Easing The Mortgage Foreclosure Crisis: Very Good Steps, But Not Legislatively Perfect, Mark C. Dillon

Pace Law Review

No abstract provided.

Theoretical Tension And Doctrinal Discord: Analyzing Development Impact Fees As Takings, Michael B. Kent Jr.

William & Mary Law Review

One of the lingering questions about the law of regulatory takings concerns the proper scope and application of the Supreme Court’s exactions jurisprudence, known as the Nollan/Dolan test. A recurring issue in the case law is the extent to which the Nollan/Dolan framework applies to takings challenges brought against development impact fees. Judicial decisions on the issue split over two primary questions. First, there is a debate about whether Nollan/Dolan is limited to physical exactions or whether the test might also apply to monetary exactions as well. Second, there is a difference of opinion over whether Nollan/Dolan applies only to …

Public Communities, Private Rules, Hannah J. Wiseman

Scholarly Publications

As the American population grows, communities are seeking creative property tools to control individual land uses and create defined community aesthetics, or distinctive “built environments.” In the past, private covenants were the primary mechanism to address this sort of need. Public communities, however, have begun to implement covenant-type “private” rules through zoning overlays, which place unusually detailed restrictions on individual property uses and, in so doing, have created new forms of “rule-bound” communities. This Article will argue that all types of rule-bound communities are uniquely important because they respond to resident consumers’ heightened demand for a community aesthetic. It will …

The Remnants Of Exaction Takings, Timothy M. Mulvaney

Faculty Scholarship

This article explores the ability of local governments to impose discretionary permit conditions, or "exactions, " to offset the burdens that new development places upon existing infrastructure and the environment. Over fifteen years ago, in Nollan v. California Coastal Commission and Dolan v. City of Tigard, a deeply divided U.S. Supreme Court ruled that the Takings Clause of the Fifth Amendment significantly restricts this governmental authority, for the clause requires the judiciary to apply a more stringent level of scrutiny in reviewing permit conditions than is accorded outright permit denials. These "regulatory takings " decisions provide land use regulators with …

The Truth About Property Rules: Some Obstacles To The Economic Analysis Of Remedies, Emily Sherwin

Cornell Law Faculty Publications

Property Rules, as famously described by Calabresi and Melamed, are remedial rules that place a prohibitively high penalty on violations of rights. This essay examines two aspects of property rules. In each case, the form of the rule is critically important. The first question addressed is the capacity of property rules to affect behavior that takes place outside the context of litigation. Most economic analysis assumes that when a right is protected by a property rule, the property rule will guide private decisionmaking at the time of a contemplated violation, and possibly before that time. Yet, to have this effect, …

The Need For A National Civil Justice Survey Of Incidence And Claiming Behavior, Theodore Eisenberg

Cornell Law Faculty Publications

Civil justice issues play a prominent role in society. Family law issues such as divorce and child custody, consumer victimization issues raised by questionable trade practices, and tort issues raised by surprisingly high estimated rates of medical malpractice, questionable prescription drug practices, and other behaviors are part of the fabric of daily life. Policymakers and interest groups regularly debate and assess whether civil problems are best resolved by legislative action, agency action, litigation, alternative dispute resolution, other methods, or some combination of actions. Yet we lack systematic quantitative knowledge about the primary events in daily life that generate civil justice …

Weighing The Need To Establish Regulatory Takings Doctrine To Justify Takings Standards Of Review And Principles, James E. Holloway, Donald C. Guy

William & Mary Environmental Law and Policy Review

This article revisits and examines whether the fairness and justice doctrine of Armstrong v. United States can justify and fashion standards of review to protect the right to just compensation of the Takings Clause. The Court has relied on Armstrong to show the purpose of the Takings Clause in many takings decisions. However, can Armstrong serve a greater purpose? In Dolan v. City of Tigard, the United States Supreme Court applied the unconstitutional conditions doctrine to justify the need for a standard of review to protect the right to just compensation. The Court transported questionable constitutional doctrine to validate Justice …

The Right To Exclude In The Shadow Of The Cathedral: A Response To Parchomovsky And Stein, Eric R. Claeys

NULR Online

Reconceptualizing Trespass, by Professors Gideon Parchomovsky and Alex Stein, falls in the genre of law and economics scholarship inspired by Guido Calabresi and A. Douglas Melamed’s classic article, One View of the Cathedral (“the Cathedral”). Reconceptualizing Trespass argues that, in property torts, scholarship under the Cathedral has focused too much on damage awards with the features of Cathedral liability rules, and too little on damage awards that have the features of Cathedral property rules. Ideally, the authors argue, property rule damages should award owners approximations of their subjective values over their property; as a second-best substitute, such damages …

Split Estate, Thomas A. Ipri

Library Faculty Research

The concept of a split estate refers to the fact that owners of a property do not necessarily own the minerals and resources that reside under the property.
/="/">Debra Anderson’s Split Estate highlights the more damning aspects of this oddity by documenting how oil and gas companies are setting up shop on home
/="/">owner’s land. In some instances, oil rigs are constructing within 100 feet of people’s homes.