Property Posts
Natural Resource Property Customs
In an era of space exploration, e-commerce, and internet, the United States follows the same Civil War-era mining law, enacted prior to the invention of the lightbulb and automobile. This article examines the history of American natural resource customs in mining systems and how those customary property traditions ultimately led to our current mining laws.
Sidewalk Government
This Article is the first to systematically examine the incoherence of the property law of sidewalks and of the fragmented regulatory architecture that municipalities have built to manage them. The Article demonstrates how both legal regimes have in fact deepened sidewalk conflict and have confused and undermined accountability for the quality and accessibility of the sidewalks.
Cedar Point Nursery and the End of the New Deal Settlement
The United States Supreme Court case Cedar Point Nursery v. Hassid has sparked intense criticism, with critics arguing that the decision threatens to transform the law of property rights so as to “hobble” government land use regulation and even undermine democracy. This Article explains why the objections of Cedar Point’s detractors are misplaced and that it is best understood as another step in the normalization of property rights.
Ownership Concentration: Lessons from Natural Resources
This Essay suggests that where the concentration of land ownership is a concern, one might draw lessons for reform by looking to the field of natural resources law, which employs a range of deconcentration mechanisms affecting fisheries, mineral extraction, farmland, and the like that have proven a considerable success.
Comparative Property Law and the Pandemic: Vulnerability Theory and Resilient Property in an Age of Crises
This Article examines the range of ways that governments adapted their approaches to property, housing, and homelessness during the pandemic.
The Institute in the Courts: Supreme Court of Nevada Adopts Sections of Restatement of the Law Third, Property (Servitudes)
Recently, in Moretto Trustee of the Jerome F. Moretto 2006 Trust v. ELK Point Country Club Homeowners Ass’n, Inc., 507 P.3d 199 (Nev. 2022), the Supreme Court of Nevada adopted Restatement of the Law Third, Property (Servitudes) §§ 6.7 and 6.9 “to govern issues concerning an association’s authority to enact rules regarding the restriction of individually owned property.”
A Defense of Horizontal Privity in American Property Law
This article attempts to present a balanced and nuanced view with two major aims: to show why many of the objections against horizontal privity are weak and to argue for why horizontal privity may be worth keeping.
The Perils and Promise of Public Nuisance
This article utilizes the opioid litigation to explore the three most common sets of objections to public nuisance: (1) traditionalist, (2) formalist, and (3) institutional. Public nuisance can seem unusual, even outlandish. At worst, it is a potentially capacious mechanism allowing executive branch actors to employ the judicial process to address legislative and regulatory problems. Nevertheless, its perils are easily overstated and its promise overlooked.
Project Updates from the 2022 ALI Annual Meeting
Learn more about the actions taken at this year’s ALI Annual Meeting, held last month, where the membership met to discuss and vote on twelve ALI project drafts.
Digitizing the Warranty of Habitability
The warranty of habitability was touted fifty years ago as a gamechanger in rebalancing power between tenants and landlords. This Article explores whether an affirmative use of the warranty, coupled with a new technology and community organizing approach, can improve tenant outcomes.