Property Law and Real Estate Commons^™

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 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 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 …

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 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 …

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.

Property Rights & The Demands Of Transformation, Bernadette Atuahene

All Faculty Scholarship

The conception of property that a transitional state adopts is critically important because it affects the state’s ability to transform society. The classical conception of real property gives property rights a certain sanctity that allows owners to have near absolute control of their property. But, the sanctity given to property rights has made land reform difficult and thus can serve as a sanctuary for enduring inequality. This is particularly true in countries like South Africa and Namibia where—due to pervasive past property theft— land reform is essential because there are competing legitimate claims to land. Oddly, the classical conception is …

Property And Transitional Justice, Bernadette Atuahene

All Faculty Scholarship

Transitional justice is the study of those mechanisms employed by communities, states and the international community to deal with a legacy of systematic human rights abuses and authoritarianism in order to promote social reconstruction. There is a well developed transitional justice literature on how states can deal with past violations of civil and political rights, which discusses the value of truth commissions, and international and domestic prosecutions. The transitional justice literature on how to deal with past violations of property rights, however, is significantly less developed. The goal of this essay is to begin an important conversation about how transitional …

All Charities Are Property-Tax Exempt, But Some Charities Are More Exempt Than Others, Evelyn Brody

All Faculty Scholarship

Attention from the media notwithstanding, the nonprofit sector continues to achieve remarkable success in state supreme courts and statehouses in defending property-tax exemptions. But budget pressures remain. While the intermediate use of “payments in lieu of taxes” has not yet become a systematic compromise solution, PILOTs are attracting growing interest from local taxing jurisdictions. This Article highlights three issues— who decides the parameters of exemption, legislatures or courts; what are the specific factors and vulnerable subsectors; and how exemption is granted or withheld in practice—and concludes with several PILOT case studies. The Appendix sets forth a fifty-one-jurisdiction review of state …

The Internet Is A Semicommons, James Grimmelmann

Faculty Scholarship

The Internet is a semicommons. Private property in servers and network links coexists with a shared communications platform. This distinctive combination both explains the Internet's enormous success and illustrates some of its recurring problems.

Building on Henry Smith's theory of the semicommons in the medieval open-field system, this essay explains how the dynamic interplay between private and common uses on the Internet enables it to facilitate worldwide sharing and collaboration without collapsing under the strain of misuse. It shows that key technical features of the Internet, such as its layering of protocols and the Web's division into distinct "sites," respond …

Land Seizures In The People's Republic Of China: Protecting Property While Encouraging Economic Development, Jarrett Noble

Global Business & Development Law Journal

No abstract provided.

Property Rights & The Demands Of Transformation, Bernadette Atuahene

Michigan Journal of International Law

Countries like those in Southern Africa will never emerge from the indomitable shadow of inequity and the serious threat of backlash unless real property is redistributed; but, the conception of property these countries explicitly or implicitly adopt can adversely affect their ability to redistribute. Under the classical conception of real property (the classical conception), redistribution is difficult because title deed holders are a privileged group who are given nearly absolute property protection. Strangely, the classical conception is ascendant in many transitional states where redistribution is essential. The specific question this Article addresses is: for states where past property dispossession has …

Stop Shutting The Door On Renters: Protecting Tenants From Foreclosure Evictions, Eloisa Rodriguez-Dod

Faculty Publications

This article discusses existing and proposed federal and state law affecting tenants’ rights in foreclosure. As “Foreclosure” signs rapidly join “For Sale” signs across the country, the national foreclosure crisis has not only displaced homeowners, but a plethora of renters as well. The approach taken by states concerning tenants affected by foreclosure varies greatly. Furthermore, a recently enacted Federal law, created specifically to help tenants in foreclosure, does not relieve the uncertainty in resolving this issue. In addition to being the first to critique the new federal law, this article offers recommendations for legislation that may better protect tenants from …

The Social-Obligation Norm Of Property: Duguit, Hayem, And Others, M C. Mirow

Faculty Publications

This article discusses and analyzes the sources and methods used by Leon Duguit in constructing the social-obligation or social-function norm of property as set out in an influential series of lectures in Buenos Aires published in 1912. The work of Henri Hayem has been underappreciated in the development of Duguit's ideas. Hayem should be restored as a central influence on Duguit's thought and as one of the main and earliest proponents of the idea of the social-function norm. The article also examines the influence of Charmont, Comte, Durkheim, Gide, Hauriou, Landry, and Saleilles in Duguit's thought on property and its …

Horse Cents: A Tax Guide For Homeowners Offering Their Homes For Rent During The World Equestrian Games, Meghan Jackson Tyson

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.