Property Law and Real Estate Commons^™

Do Legal Origins Predict Legal Substance?, Anu Bradford, Yun-Chien Chang, Adam S. Chilton, Nuno Garoupa

Faculty Scholarship

There is a large body of research in economics and law suggesting that the legal origin of a country – that is, whether its legal regime is based on English common law or French, German, or Nordic civil law – profoundly impacts a range of outcomes. However, the exact relationship between legal origin and legal substance has been disputed in the literature and not fully explored with nuanced legal coding. We revisit this debate while leveraging novel cross-country data sets that provide detailed coding of two areas of laws: property and antitrust. We find that having shared legal origins strongly …

Title Insurance: Protecting Property At What Price?, Stewart E. Sterk

Articles

The real property recording system is designed to protect purchasers and mortgagees against defects in title. Navigating that system is beyond the capacity of most laymen; historically, purchasers hired lawyers and other professionals to identify and eliminate title risks. Institutional lenders, however, sought more protection than a lawyer's opinion could provide, leading to the development of title insurance. Title insurance, unlike most other insurance, is focused not on risk spreading but on risk elimination. By examining title before issuing a policy, a title insurer minimizes the likelihood of a successful claim by an insured whose title turns out to be …

Properties Of Intimacy, Emily J. Stolzenberg

Faculty Publications

Today, nearly nineteen million U.S. adults are cohabiting with an intimate partner. Yet family law continues to struggle with the question whether these unmarried partners should have relationship-based rights in one another’s property. Generally speaking, states answer “no.” Because cohabitants are not spouses, they’re treated like strangers. As a result, their property rights usually follow title, and richer partners tend to walk away with a large proportion of the property acquired during the relationship. This Article shows the “cohabitant problem” to be no anomaly, but rather the clearest manifestation of family law’s overarching structure. In marital property regimes as well …

Fraudulent Transfers: Void And Voidable, David G. Carlson

Articles

This Article explores the civil procedure attendant to private fraudulent transfer litigation (primarily outside the context of bankruptcy). In such litigation, courts ponder whether fraudulent transfers are void or voidable. In fact, they are both simultaneously! According to the theory "at law," a fraudulent transfer is "void." That is, a creditor with a judgment could simply levy the property from a fraudulent grantee as if the grantee had no property rights. This Article questions the constitutional viability of this ancient attitude. Meanwhile, "equity" viewed the transfer as voidable. The grantee gets title, but the title might be set aside. The …

The Compensation Constraint And The Scope Of The Takings Clause, Thomas W. Merrill

Faculty Scholarship

The idea I wish to explore in this Essay is whether the established methods for determining just compensation can shed light on the meaning of other issues that arise in litigation under the Takings Clause. Specifically, is it possible to “reverse engineer” the Takings Clause by reasoning from settled understandings about how to determine just compensation in order to reach certain conclusions about when the Clause applies, what interests in private property are covered by the Clause, and what does it mean to take such property?

The proposed exercise is positive or descriptive in nature rather than normative. The hypothesis …

Private Largess In The Digital Age: Privacy In Reich's The New Property, Raymond H. Brescia

Touro Law Review

No abstract provided.

Table Of Contents

Touro Law Review

No abstract provided.

Erisa Defined Benefit Plans Are Not "Trust" Worthy, Stewart E. Sterk

Articles

No abstract provided.

Classical Liberal Property And The Question Of Institutional Choice, Thomas W. Merrill

Faculty Scholarship

Richard Epstein’s property scholarship tracks his classical liberal theory of government. The classical liberal would permit state intervention to overcome collective-action problems but not to engage in redistribution of wealth. With respect to private law, Epstein harbors no clear preference for either the legislature or the courts as a source of limits on owners’ autonomy to overcome collective-action problems. With regard to public law, in contrast, Epstein would elevate the courts to a superior status relative to legislatures and would have courts enforce the classical liberal ideal as a matter of constitutional law. This article questions whether giving such power …

Nine Ways Of Looking At Oklahoma City: An Essay On Sam Anderson’S Boom Town, Rodger D. Citron

Scholarly Works

No abstract provided.

Race And Property Law, K-Sue Park

Georgetown Law Faculty Publications and Other Works

This chapter offers an outline for understanding the key role of race in producing property values in the history of the American property law system. It identifies major developments in the mutually formative relationship between race and property in America that made and remade property interests in America through the processes of 1) dispossessing nonwhites, 2) degrading their homelands, communities, and selves, and 3) limiting their efforts to enter public space and occupy or acquire property within the regime thereby established. First, it describes the use of law to create the two most important forms of property in the colonies …

Fraudulent Transfer As A Tort, David G. Carlson

Articles

Fraudulent transfer law has historically been an in rem right of a creditor to property fraudulently received by a third party. In a minority of states, courts have treated fraudulent transfers as creating an in personam liability of the transferring debtor, the recipient, and any other third party who "conspired" with the transferor to achieve the transfer. This Article examines the wisdom of this modern trend and finds it wanting. The United States Supreme Court in 1861 was correct: fraudulent transfers are not wrongs. They merely create in rem rights.

Property Transitions, Michael A. Heller

Faculty Scholarship

Time plays a key role in this book. The last two chapters discussed two reasons why time matters to the life of property: over time, owners effect voluntary changes to property in order to carry out their life plans and the state imposes involuntary changes (from the individual owner’s perspective) in response to changing circumstances, shifting needs and wants, and revised public goals. For the state to function – and to remain justified on liberal principles – the government must have this ability to adjust ownership. However, state-initiated transitions to ownership – implemented through governments’ police and takings powers – …

Heirs Property In Georgia: Common Issues, Current State Of The Law, And Further Solutions, Caitlin Henderson

Georgia Law Review

In Georgia, real property passes through an intestate estate
in the form of heirs property. Under this system, heirs share
ownership of the property as tenants in common. This form of
ownership poses several obstacles to realizing the land’s full
potential and, in certain circumstances, courts will partition
the property in forced sales or will physically divide the
property among the heirs. Heirs property and its accompanying
problems are particularly common in Georgia due to strict
policies concerning will execution formalities. Georgia and the
U.S. Congress have attempted to cure the problems associated
with heirs property through the adoption of …

An Eye For An Eye And A Tooth For A Tooth: An Analysis Of Georgia’S Landlord Retaliation Law, Nicole Hammett

Georgia Law Review

Landlord retaliation laws protect tenants from landlords’
harmful retaliatory actions in response to tenants’ exercise of
their legal rights. In May 2019, Georgia joined the majority of
other states by enacting H.B. 346, an act establishing the
requirements for a prima-facie case of landlord retaliation.
Georgia’s eviction and poverty rates are higher than the
national average, and this law stands to address underlying
issues that drive those problems.
Other states’ landlord retaliation laws offer best practices in
addressing landlord retaliation. These include implementing
rent abatement protections and expanding the scope of
protected actions. Improving low-income individuals’ access to
counsel and …

Diverse Holdings And Diversified Holdings: Uncertainty In Georgia’S Procedure For Seeking Judicial Review Of Rezoning Decisions, Laura E. Nelson

Georgia Law Review

To determine the proper procedure by which landowners
may seek judicial review of adverse decisions on rezoning
applications, Georgia courts must consider the nature of
rezoning decisions. For decades, the courts have held—with
little explanation—that rezoning decisions are legislative acts
subject to de novo review. Then, in the 2017 case Diversified
Holdings, LLP v. City of Suwanee, the Georgia Supreme
Court classified rezoning decisions as adjudicative acts that
may only be reviewed by writ of certiorari. Because the court
did not explicitly overturn the decades of precedent classifying
rezoning decisions as legislative acts, however, the nature of
rezoning decisions—and thus …

The Limits Of Equity, Michael Lewyn

Scholarly Works

"Equity" is a common buzzword in urban planning circles. However, nearly any land use decision can be justified as more equitable than the alternatives.

Regaining Control Over The Climate Change Narrative: How To Stop Right-Wing Populism From Eroding Rule Of Law In The Climate Struggle In India, Binit Agrawal

Fordham Environmental Law Review

No abstract provided.

Innovative Regulatory And Financial Parameters For Advancing Carbon Capture And Storage Technologies, Zen Makuch, Slavina Georgieva & Behdeen Oraee-Mirzamani

Fordham Environmental Law Review

No abstract provided.

Textiles As A Source Of Microfiber Pollution And Potential Solutions, Lea M. Elston

Fordham Environmental Law Review

No abstract provided.