Property Law and Real Estate Commons^™

Transgressive Diy (“Do It Yourself”) Spaces, Mixed Virtual/Physical Affinity Spaces, And Building Code Vigilantism, Sara Gwendolyn Ross

Articles, Book Chapters, & Popular Press

This article first situates itself within the example of Toronto as one of UNESCO’s newly minted global “Cities of Culture.” This network of “creative cities” is intended to facilitate a framework for these cities to work together in “placing creativity and cultural industries at the heart of their development plans at the local level and cooperating actively at the international level.” As one of Toronto’s culture-oriented redevelopment strategies, its “Music City” initiative is an example of how music and sound can be used in city marketing and place branding, and how these redevelopment strategies must be more effectively deployed to …

Yesterday I Was Lying: Creeping Preclusion Of Reciprocal Fee Awards In Residential Foreclosure Litigation, Eric A. Zacks, Dustin A. Zacks

St. John's Law Review

(Excerpt

As a result of the high volume of foreclosure litigation in the wake of the Great Recession, scholars have explored several outgrowths of the foreclosure crisis, developing a burgeoning body of research. Scholars and commentators have authored studies about a wide variety of foreclosure-related topics, ranging from the disparate racial effects of the housing crisis to the many legislative and court-instituted policies enacted to ameliorate the harsh reality faced by financially distressed homeowners, all the way through books examining the aftermath of the crisis and lessons learned from the entire experience.

Our previous contributions to this evolving body of …

Alternatives To High Nebraska Agricultural Land Real Estate Taxes, Part 2 Of 2: Like-Kind Exchange, Austin Duerfeldt

Extension Farm and Ranch Management News

In part one of this series of articles, I touched on the idea that, when holding land as an investment, considering alternatives is important. We discussed the process of selling the ground, paying the capital gains and then investing in alternatives such as stocks. Here in part two, we will continue to consider the question of agricultural land being the correct investment for your portfolio but will take a different alternative approach. Now, we will look at like-kind exchanges.

1031 Like-Kind Exchange

With a 1031 like-kind exchange, we are taking a real property asset and exchanging it for another real …

Qap Out: Why The Federal Government Should Require More From How States Allocate Low-Income Housing Tax Credits, Connor Blancato

Journal of Law and Policy

Prohibitively high land acquisition and construction costs block affordable housing developers from using the Low-Income Housing Tax Credit program in high opportunity areas. Policymakers must study the history of housing policy in the United States and realize that the LIHTC program works because it suitably balances previously problematic private-market competition, federalism concerns, and compliance issues. Federal lawmakers can look to Qualified Allocation Plans drafted by individual states as a way to encourage the construction of affordable housing without upsetting this equilibrium. To encourage such development, the federal government can require states, in determining tax credit allocations through QAPs, to give …

Living Landmarks: Equipping Landmark Protection For Today’S Challenges, Kyle Campion

Journal of Law and Policy

The past few decades have brought tremendous change to New York City as gentrification continues its march through many of the city’s neighborhoods. This change has transformed formerly neglected neighborhoods into highly desired locations. While these changes have introduced potential benefits to the transformed areas, they have also put immense economic pressure on important local establishments, such as diners, bars, and other informal gathering spaces that played an important role in their communities before the neighborhoods became “hot.” Increasingly, this pressure has resulted in the shuttering of many such local establishments. Their disappearance represents not only a loss of an …

Fee Shifting: A Proposal To Solve Maine’S Intractable Access To Justice Problem, Donald F. Fontaine

Maine Law Review

The Maine Legislature should enact a new statute to award attorney’s fees in civil cases to poor litigants against their opponents. Under the proposed statute the opponent must be a corporation or other legal entity and the poor litigant must be the prevailing party in the case. The statute proposed is needed because multiple studies show that there has been an unrelenting decline during the last four decades of the poor’s access to justice. Their numbers increase and the support of the federal government declines. For those who find themselves in legal positions opposing the poor, there is little deterrent …

Property Rights In Children, Barry E. Adler, Alexis A. Alvarez

Notre Dame Law Review

In 1978, Dr. Elisabeth Landes and then-Professor, later-Judge Richard Posner, published The Economics of the Baby Shortage. The article openly discussed how economic analysis can address the allocation of babies available for adoption. The ideas expressed in the article were widely denounced as an inhumane commodification of children, something tolerable only in the twisted minds of academic authors. Despite the backlash, an odd thing happened in the more than four decades since Landes and Posner wrote on this topic: their ideas began to take hold. Today, almost all states in the United States permit, in some form, the contractual …

Drone Delivery And The Takings Clause, Brian M. Miller

Texas A&M Journal of Property Law

Amazon, Inc.’s fledgling drone shipping service, “Prime Air,” and similar services, may pose a new threat to private property rights. Companies that ship by drone would likely have to fly the drones over private land. But who owns the low-altitude airspace above private land? That issue is unsettled, but the common law supports the view that low-altitude airspace belongs to the landowners beneath. If that is correct, companies like Amazon have two main options to get drone shipping off the ground: (1) pay the landowners on the intended routes for an easement through their low-altitude airspace, or (2) count on …

"A Glass Of Milk Strengthens A Nation." Law Development, And China's Dairy Tale, Xiaoqian Hu

Journal of Food Law & Policy

Historically, China was a soybean nation and not a dairy nation. Today, China has become the world’s largest dairy importer and third largest dairy producer, and dairy has surpassed soybeans in both consumption volume and sales revenue. This article investigates the legal, political, and socioeconomic factors that drove this transformation, and building upon fieldwork in two Chinese counties, examines the transformation’s socioeconomic impact on China’s several hundred million farmers and ex-farmers and political impact on the Chinese regime. The article makes two arguments. First, despite changes of times and political regimes, China’s dairy tale is a tale about chasing the …

Twenty Things Real Estate Attorneys Can Do To Not Mess Up A Section 1031 Exchange (Part I: Items 1-10), Bradley T. Borden

Faculty Scholarship

No abstract provided.

Calibrating Intellectual Property And Innovation In Newspace, Jesse L. Silvernail

Texas A&M Journal of Property Law

The commercial space industry is soon expected to explode into a trillion- dollar industry, but patent protection in NewSpace has been largely ignored by an industry that is driven by technological innovation and rapid develop- ment. There has been little disclosure of inventions as large commercial space companies rely on trade secrets that are almost impossible to independently invent or reverse engineer. The benefits of both invention disclosure and se- crecy are well known, but there has not been analysis on inventions in the space industry. This paper fills the gap in the literature by analyzing common intellectual property practices …

Can The Penalties For Treason Co-Exist With The Concept Of Private Property? A Book Review Of Charles Yorke's "Some Considerations On The Law Of Forfeiture, For High Treason", Christopher Guzelian

Texas A&M Journal of Property Law

Charles Yorke’s book, Some Considerations on the Law of Forfei- ture, for High Treason, is 274 years old. Nevertheless, it has modern relevance. President Trump,2 prominent members of Congress (e.g., Senator Kamala Harris3), and Justice Brett Kavanaugh during his con- firmation hearing (in an exchange with Senator Lindsey Graham4) have recently discussed law related to treason.

When Worlds Collide: Protecting Physical World Interests Against Virtual World Malfeasance, Hilary Silvia, Nanci K. Carr

Michigan Technology Law Review

If a virtual-world-game character is cast upon real-world property without the consent of the landowner, inducing or encouraging players to trespass, is the virtual-world creator liable for damages? The United States Supreme Court has recognized that digital technology presents novel issues, the resolution of which must anticipate its further rapid development. It is beyond dispute that protective legislation will be unable to keep up with rapidly evolving technology. The burden of anticipating and addressing issues presented by emerging technologies will ultimately fall upon the businesses responsible for generating them. This duty was most notably adopted by the creators of Pokémon …

Fraying The Knot: Marital Property, Probate, And Practical Problems With Tribal Marriage Bans, Suzianne D. Painter-Thorne

Brooklyn Law Review

While marriage equality is thought to be the law of the land, that is not necessarily true for members of nearly a dozen Indian tribes that continue to prohibit same-sex marriage. Whether a tribe permits same-sex marriage rests on the tribes’ inherent authority to govern their own internal affairs. Acting pursuant to that inherent authority, many tribes were leaders on the issue of marriage equality, legalizing same-sex marriage when most states prohibited such marriages. Other tribes, however, like the Navajo Nation, limit marriages to “one man and one woman.” As a consequence, a married Indian couple may have their marriage …

Taking It Too Far: Growth Management And The Limits To Land-Use Regulation In Maine, Michael A. Duddy

Maine Law Review

In 1989 Maine enacted the Comprehensive Planning and Land Use Regulation Act. The Act's legislative findings declared that “ the State has a vital interest in ensuring that a comprehensive system of land-use planning and growth management is established as quickly as possible.” However, whenever the state exercises its police power to regulate private land use, it faces a constitutional limit as to how far it can go. When the land-use restriction exceeds that limit, a regulatory taking occurs. This Comment argues that the Comprehensive Planning and Land Use Regulation Act, as it is being interpreted and implemented by state …

Taking It Too Far: Growth Management And The Limits To Land-Use Regulation In Maine, Michael A. Duddy

Maine Law Review

In 1989 Maine enacted the Comprehensive Planning and Land Use Regulation Act. The Act's legislative findings declared that “ the State has a vital interest in ensuring that a comprehensive system of land-use planning and growth management is established as quickly as possible.” However, whenever the state exercises its police power to regulate private land use, it faces a constitutional limit as to how far it can go. When the land-use restriction exceeds that limit, a regulatory taking occurs. This Comment argues that the Comprehensive Planning and Land Use Regulation Act, as it is being interpreted and implemented by state …

Contract Law’S Transferability Bias, Paul Macmahon

Indiana Law Journal

When A makes a contract with B, it comes as no surprise that she is liable to B. If B can transfer her contractual rights to C, A is now liable to C. Parties in A’s position often have strong reasons to avoid being liable to suit by C. Contract law, however, seems determined to minimize and override these concerns. Under current doctrine on the assignment of contractual rights—the focus of this Article—the law often imposes its own preference for transferability on the parties. The law generally assumes that contractual rights are assignable, construes exceptions to that general rule narrowly, …

The Replicability Crisis In Patent Law, Janet Freilich

Indiana Law Journal

There is a “replicability crisis” in the scientific literature. Scientists attempting to redo experiments in reputable, peer-reviewed journals have found that staggering numbers of these experiments—up to 90%—do not work. Patents, like scientific articles, contain experiments. These experiments often form the backbone of the patent and provide crucial support for patentability. Patent examiners use these experiments to evaluate whether the invention works, and thus whether the patent should be granted. The replicability crisis in the scientific literature is therefore of utmost importance to the patent system. Transferring the insights of the replicability crisis to patents begs the question of whether …

Environmental Justice In Little Village: A Case For Reforming Chicago’S Zoning Law, Charles Isaacs

Northwestern Journal of Law & Social Policy

Chicago’s Little Village community bears the heavy burden of environmental injustice and racism. The residents are mostly immigrants and people of color who live with low levels of income, limited access to healthcare, and disproportionate levels of dangerous air pollution. Before its retirement, Little Village’s Crawford coal-burning power plant was the lead source of air pollution, contributing to 41 deaths, 550 emergency room visits, and 2,800 asthma attacks per year. After the plant’s retirement, community members wanted a say on the future use of the lot, only to be closed out when a corporation, Hilco Redevelopment Partners, bought the lot …

Public Accommodations & Human Flourishing: Sexual Orientation & Religious Liberty: An Essay In Honor Of Greg Alexander, Joseph William Singer

Cornell Journal of Law and Public Policy

Greg Alexander's monumental contributions to our understanding of property and property law are unequaled. He is also a mensch and that comes through loud and clear in his work. His recent book, Property and Human Flourishing, develops a quasi-Aristotelian theory of property that focuses our attention on the ways property law protects plural incommensurable objective values that regulate social relationships in order to empower us to become the authors of our own lives. This Essay honors him and his contributions by applying his analysis to the fraught question of whether owners of public accommodations must serve the public without regard …