Property Law and Real Estate Commons^™

Much Obliged? Moral Psychology And The Social Obligation Of Property: An Essay In Honor Of Gregory Alexander, Nestor M. Davidson

Cornell Journal of Law and Public Policy

Few scholars have argued as eloquently as Gregory Alexander for the normative force of social obligation in American property law and for a broader understanding of property as inherently relational. The idea that mutual regard for the ability of each person to have meaningful life choices means that ownership entails duties to others has always seemed to me-perhaps not surprisingly given my own moral intuitive priors-deeply compelling. But it is clear that other moral intuitions lead people to value just as deeply and just as intuitively property's ability to establish individual sanctuary within strong, clear boundaries. I don't have the …

It's Not Personal: Social Obligations In The Office Of Ownership, Larissa Katz

Cornell Journal of Law and Public Policy

In November 2016, the City of Vancouver passed its "Vacancy Tax By-law." The law requires homeowners to submit a property status declaration each year to the City, revealing the uses they are making of their property. An owner whose property is not rented or in use for at least 6 months a year is subject to a vacancy tax. The stated purpose of the law is to address the affordable housing crisis in Vancouver, a city where the official rental vacancy rate is less than 1%. By penalizing absentee owners, the law is intended to increase supply and to deter …

Data And The Social Obligation Norm Of Property: An Essay In Honor Of Professor Gregory S. Alexander, Christopher K. Odinet

Cornell Journal of Law and Public Policy

In the age of the Cambridge Analytica/Facebook scandal and sundry other data breaches at Under Armour, Target, and Best Buy, the issue of security and privacy in consumer data has become increasingly important. For much of the modern era, the development of technology has gone relatively unchecked, with the United States having ceded much of the policymaking terrain to Silicon Valley. This has resulted in the unbridled creation of vast amounts of consumer data. Users who engage with tech platforms generate bits and bytes about themselves based on their activities, preferences, and habits. This information-this "data"- is then harnessed by …

Community Land Trusts: Institutionalizing The Human Flourishing Theory Of Property, John A. Lovett

Cornell Journal of Law and Public Policy

Greg Alexander has made a powerful case that an owner of property in a free and democratic society will be required from time to time to provide resources, in ways appropriate to that owner, to support the development of other persons' human capabilities. In this essay, I focus attention on legal relationships epitomizing Alexander's human flourishing theory that owe their genesis in the collaborative work of community activists, who often began their efforts from positions of devout religious conviction, and public-spirited transactional lawyers. The product of that work is the property law institution known as the Community Land Trust (CLT).

The Community In The Planned Community, Nadav Shoked

Cornell Journal of Law and Public Policy

This Essay explores, and analyzes the long-term effects of, the turn in the 1980s towards a more communitarian-oriented analysis of planned communities. It shows that until late in the twentieth century property law commentators grounded the rule-making powers of condominiums and homeowners associations in the alleged consent of individual unit owners. The Essay argues that this approach, focused on a supposedly clear-cut dichotomy between consent and coercion, echoed arcane concepts characteristic of legal thinking in the late nineteenth century-concepts which realist thinkers had discredited long ago. Thus, abandoning this account of planned communities' power in favor of an explanation founded …

The Holy Grail Of Progressive Property: Essay In Honor Of Greg Alexander, Laura S. Underkuffler

Cornell Journal of Law and Public Policy

Greg Alexander is a towering figure in the legal academy. His work, over a period of forty years, has illuminated the most fundamental issues in property law and theory. It has transformed the field and inspired scholars in the United States and abroad.

During his career, Professor Alexander has arguably done more than any other single individual in explicating what human values underlie and should underlie the institution of private property in the United States and elsewhere. Through his efforts, the idea that property regimes must consider the effects of resource distribution on all members of the human family has …

Commodity & Propriety In Contemporary New York City: Essay, Katrina M. Wyman

Cornell Journal of Law and Public Policy

One of Professor Greg Alexander's central contributions to property scholarship is his emphasis on the multiple understandings of private property in the American legal tradition. Private property, he underscored in Commodity & Propriety: Competing Visions of Property in American Legal Thought 1776-1970, has never been understood by American legal elites solely as a commodity providing owners with a robust right to pursue their private preferences and accumulate wealth unfettered by government regulation. For hundreds of years, private property also has been regarded as a tool of "propriety" through which governments promote social purposes, the specifics of which have been contested …

Liberalism And The Commons, Hanoch Dagan

Cornell Journal of Law and Public Policy

It is a real privilege for me to participate in the celebration of Greg Alexander's enormous contribution to the scholarship and jurisprudence on property, which has enhanced our understanding of property in numerous ways. Alexander utilized almost every tool in a legal theorist's kit-notably: history, comparative law, and philosophical investigation-to study property and developed an innovative and nuanced theory of property. Property, for Alexander, has a core role in fostering human flourishing. A proper conception of property, he claims, must acknowledge that obligations and not just rights, and communities and not only individuals, take center stage.

Easements, Servitudes And Human Flourishing Theory, Andrea Loux Jarman

Cornell Journal of Law and Public Policy

Professor Alexander's final monograph is an exploration of what he has termed "human flourishing theory." Human flourishing theory holds that the ownership of private property carries with it obligations to foster human flourishing-whether of individual neighbours or local communities. This Article examines two cases in the British law of easements and servitudes, where the judiciary expanded the scope of doctrines of land law so as to uphold the legal right of neighbours to use private land.

Past And Present: The Dialectics Of Property: An Essay In Honor Of Gregory Alexander, Shelly Kreiczer-Levy

Cornell Journal of Law and Public Policy

This Essay explores the dialectic between stability and dynamism in property, inspired by the work of Gregory Alexander. Its focus is inheritance law and the conflicting commitments between the past and the present. Inheritance contributes an added layer of complexity to the familiar dialectic. It complicates the tension between communities and individualism and adds a dialectic between a commitment to past values, tradition and customs and a commitment to individual values and a fresh voice. This complexity advances a double, contradictory meaning of current inheritance rules. On the one hand, testamentary freedom symbolizes individualism and dynamism, because it provides owners …

The Uniform Basis Rules And Terminating Interests In Trusts Early, F. Ladson Boyle, Howard M. Zaritsky, D. Ryan Wallace

Faculty Publications

The resolution of income tax issues that may arise for trust beneficiaries who dispose of temporal interests in trusts remains relatively obscure. Additional issues exist for subsequent interest holders; the methods that the Code and Regulations prescribe for establishing, maintaining, and potentially recovering basis for successor owners of interests in a trust are not well developed.

In some instances, the trust instrument creating a temporal interest will supply a suitable path for early termination and distribution of assets. In those cases, Sub-chapter J of the Code typically governs the transaction and provides that terminating the trust and distributing its assets …

Amici Curiae Brief, Pine Mountain Preserve, Llp V. Commissioner, Filed In The U.S. Court Of Appeals For The Eleventh Circuit, Nancy Mclaughlin

Utah Law Faculty Scholarship

Amici Curiae Brief of Law Professors et al., filed in support of the government in the U.S. Court of Appeals for the Eleventh Circuit in Pine Mountain Preserve, LLP v. Commissioner, on appeal from U.S Tax Court No. 8956-13, 151 T.C. 247 (2018).

Screened Out Of Housing: The Impact Of Misleading Tenant Screening Reports And The Potential For Criminal Expungement As A Model For Effectively Sealing Evictions, Katelyn Polk

Northwestern Journal of Law & Social Policy

Having an eviction record “blacklists” tenants from finding future housing. Even renters with mere eviction filings—not eviction orders—on their records face the harsh collateral consequences of eviction. This Note argues that eviction records should be sealed at filing and only released into the public record if a landlord prevails in court. Juvenile record expungement mechanisms in Illinois serve as a model for one way to protect people with eviction records. Recent updates to the Illinois juvenile expungement process provided for the automatic expungement of certain records and strengthened the confidentiality protections of juvenile records. Illinois protects juvenile records because it …

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

Articles

In the summer of 2015, marriage equality advocates celebrated the Supreme Court’s decision in Obergefell v. Hodges, which struck down state prohibitions on same-sex marriage.The Court found that “[t]he right of same-sex couples to marry . . . is part of the liberty promised by the Fourteenth Amendment.” Two years earlier, the Court had struck down parts of the federal Defense of Marriage Act (DOMA), finding that the federal government could not discriminate against same-sex married partners. With these two decisions, the Court ensured that the marriages of same-sex couples would be recognized by the federal government and in …

Cities And Citizens Seethe: A Case Study Of Local Efforts To Influence Natural Gas Pipeline Routing Decisions, Heidi Gorovitz Robertson

Law Faculty Articles and Essays

This Article explores the reasons local governments find difficulty influencing pipeline-routing decisions. For example, federal law controls interstate natural gas pipeline permitting, which is complicated and inaccessible. State law, particularly in Ohio, heavily favors utilities, in part by preempting local efforts to make local decisions regarding oil and gas development. Finally, the information gaps are enormous between what local governments need to influence pipeline-routing decisions and what is accessible.

This Article addresses barriers to local influence by discussing the efforts of citizens and local governments to influence the routing of NexusSpectra's natural gas transmission pipeline, which was recently constructed and …

Property Law—Tax Increment Financing—A Case For Bringing Tif Back To The State Of Arkansas, Tucker M. Brackins

University of Arkansas at Little Rock Law Review

No abstract provided.

In Re: Colman Family Revocable Living Trust, 136 Nev. Adv. Op. 13 (Apr. 2, 2020), Petya Pucci

Nevada Supreme Court Summaries

A second beneficiary is entitled to a property in a trust created by decedent and her former spouse, under NRS 111.781, when (1) the property remained decedent’s separate property throughout the marriage; (2) the spouses have divorced; and (3) there is no evidence that the former spouse had contributed to the purchase of the property or its improvement.

Slicing (And Transferring) Development, John Infranca

Suffolk University Law School Faculty Works

This symposium essay applies insights from Professor Lee Fennell’s Slices and Lumps: Division and Aggregation in Law and Life to two distinct issues in zoning and land use regulation. The first is the use of transferable development rights (TDRs). TDRs provide an ideal vehicle for considering the interaction of slices and lumps, the advantages (and disadvantages) of both slicing and aggregating entitlements, and the relationship between what might be termed naturally occurring lumps and the artificial lumps created by law. The conceptual framework developed in Slices and Lumps also sheds light on recent high-profile zoning reforms and the potential for …

Artistic Justice: How The Executive Branch Can Facilitate Nazi-Looted Art Restitution, Paige Tenkhoff

Vanderbilt Law Review

Eight decades after the Holocaust, many pieces of art stolen from Jewish families still sit in the state-owned museums of former Nazi-aligned regimes. In an effort to right old wrongs, plaintiffs are bringing suit in the United States against the foreign governments who retain the art under the Foreign Sovereign Immunity Act’s expropriation exception, which permits aggrieved plaintiffs to sue foreign countries for property that was illegally taken in violation of international law. But circuit courts are split as to whether these suits against foreign sovereigns should be allowed to go forward. This Note analyzes the divergent interpretations of the …

Property, Unbundled Water Entitlements, And Anticommons Tragedies: A Cautionary Tale From Australia, Paul Babie, Paul Leadbeter, Kyriaco Nikias

Michigan Journal of Environmental & Administrative Law

As water becomes an increasingly scarce resource, a lack of clarity in relation to its use can produce both conflict among and inefficient use by users. In order to encourage markets in water and to ensure the viability and functionality of those markets, governments in many jurisdictions have moved away from commons property as a means of water allocation, and towards systems of private property in water. In doing so, one policy and legal option is “unbundling”, which seeks carefully to define both the entitlement to water and its separation into constituent parts. Advocates claim that unbundling makes water rights …