Feliu on From the Fox to Onlyfans: The Changing Landscape of Property Law @NovaLawReview

Vicenç Feliú, Nova Southeastern College of Law, is publishing From the Fox to Onlyfans: The Changing Landscape of Property Law in the Nova Law Review. Here is the abstract.

This law review article traces the rich evolution of American Property Law from its origins in Roman Law, through the influence of English Common Law, to its current complexities in the digital age. It highlights the continuous adaptation of property concepts to the evolving socio-political landscape, from fundamental principles like ownership and possession to the protection of intangible assets. The legacy of Roman Law, emphasizing property rights and contracts, laid the foundation for legal systems worldwide. The impact of English Common Law, with its doctrines of real property and equity, shaped American legal frameworks regarding ownership, title, and dispute resolution. Historical events such as the American Revolution and industrialization spurred significant developments in property law, leading to the recognition of new rights like water rights, environmental protection, and intellectual property. In the modern era, technological advancements present unique challenges, especially in intellectual property. Copyrights, patents, trademarks, and trade secrets are crucial for safeguarding innovation in a globalized economy. Issues like digital piracy, data privacy, and artificial intelligence continue to shape property law debates, emphasizing fairness, efficiency, and innovation promotion. This article underscores the enduring legacy of legal traditions and the capacity of property law to adapt to changing circumstances. By understanding its historical foundations and ongoing developments, we gain insight into how property law safeguards individual rights, drives economic growth, and fosters innovation in the United States and globally.

Download the article from SSRN at the link.

Davis on Property, Wills, & Estates in The Count of Monte Cristo: A Comparison Between the Napoleonic Code & Mississippi Law

William Davis has published Property, Wills, & Estates in The Count of Monte Cristo: A Comparison Between the Napoleonic Code & Mississippi Law. Here is the abstract.

In the literary classic The Count of Monte Cristo, the hero inherits a treasure after escaping the prison in which he was wrongly confined. The central question this comment seeks to answer is, “Was this inheritance transfer legal?” From this starting point, two different legal regimes are analyzed. Beginning with a discussion of the Napoleonic Code in force at the time of both the novel’s setting and publication, this comment then looks to modern Mississippi property law. In the end, the two legal systems are used individually to determine whether the treasure in Monte Cristo was legally transferred and possessed.

Download the comment from SSRN at the link.

Oman on Property and the Latter-day Saint Tradition @nate_oman @WMLawSchool

Nathan B. Oman, William & Mary Law School, is publishing Property and the Latter-day Saint Tradition as a William & Mary Law School Research Paper. Here is the abstract.

The Mormon tradition is marked by a deep engagement with the idea of property. The Latter-day Saints have not yet developed anything as systematic as a theory of property, but there are themes that emerge from their legal tradition. The first is a deeply ambivalent stance toward the idea of property. In contrast to optimistic Lockean stories, Mormon scripture has a darker vision of ownership as a dangerous and frequently corrupting moral force. Property is something in need of redemption. The second theme of the Latter-day Saint tradition is the effort to redeem property by transforming it from the frontier of communal obligation into a nexus of duties toward others. Third, Latter-day Saint efforts to reconceptualize property led to legal conflicts in the 19th century, conflicts that forced changes on not only Mormon practices but on the very text of Mormon scripture. Fourth, while Latter-day Saints’ aspiration for Zion is utopian, their institutional engagement with property has been intensely practical and in its own way pragmatically creative. Indeed, its traces can still be seen within some corners of American law. The final theme has been the effort to turn 19th-century Mormonism’s utopian experiments into a useable past that can continue to inform the thinking of contemporary Latter-day Saints. At the heart of this project is a process that began as early as the 1840s by which what began as sacred law was transformed into sacred history.

Download the article from SSRN at the link.

Brady on Cottages as Public Nuisances: The Long History of Land Use Regulation of the Poor @Harvard_Law

Maureen E. Brady, Harvard Law School, is publishing Cottages as Public Nuisances: The Long History of Land Use Regulation of the Poor in the DePaul Law Review. Here is the abstract.

In the Fourth Book of his Commentaries on the Law of England, in a chapter entitled “Offenses Against the Public Health, and the Public Police or Oeconomy,” William Blackstone sited his discussion of “common nuisances.” Although many things on this list of what we now call public nuisances are familiar—blockages of public roads, disorderly saloons, trades emitting offensive smells or sounds—one stands out. Blackstone described as a typical nuisance the erection of “cottages,” going on to discuss and even criticize the situation of these dwellings alongside uses like fireworks and the keeping of hogs in close quarters. The aim of this Essay is to examine Blackstone’s discussion of cottages in context, endeavoring to use it toward two ends. The first is to better understand the concept of public nuisance and its limits. As others have chronicled, there has been a renaissance in interest in the tort in recent years, spurred on by multimillion dollar litigation invoking it in contexts ranging from the opioid epidemic to climate change. Here, I engage in a close reading of Blackstone’s passage and its citations, examining why cottages were regulated as public nuisances in the first instance and how that history connects to broader developments in English (and later American) law and society. As it turns out, cottages bore a closer relationship in many ways to public nuisance “classics,” like road blockages and certain public health risks, than it might at first appear. Second, the story of the cottage illustrates the uneasy—and often, ineffective—ways that the state has deployed land use regulation to manage the poor. The story of the cottage evokes the old adage: “everything old is new again.” Cottages became targets because many sprung up informally on common property in an era in which the state was formalizing private title—not so different from the pressures on, and persistence of, informal settlements in some parts of the world today. Regulators sought to proscribe cottages to control the movement of labor while simultaneously limiting the accumulation of the poor, for a mix of seemingly legitimate and illegitimate reasons (compare the public health and safety risks of crowding to the notion that poverty and cohabitation leads to idleness). Centuries later, regulators and the citizens voting for them put forth a similar mix of motives to justify regulating apartment buildings and other forms of multifamily housing. The inclusion of cottages in Blackstone’s list illustrates the enduring appeal of land use law in all its forms—the tort law of nuisance, contract law, and regulation—as a means of defining and managing real and perceived social harms.

Download the essay from SSRN at the link.

Mirow on The Mexican Civil Code of 1928 and the Social Function of Property in Mexico and Latin America @FIULaw

M. C. Mirow, Florida International University College of Law, has published The Mexican Civil Code of 1928 and the Social Function of Property in Mexico and Latin America at 37 Emory Int'l L. Rev. 365 (2023). Here is the abstract.

The social function of property and the version of this idea expounded by French jurist Léon Duguit did not find a significant home in the Mexican Civil Code of 1928, and these ideas of property were only subsequently adopted as a guiding principles of Mexican property law. After the promulgation of the Code, private law jurists read the social function of property and Duguit’s work ahistorically into the property provisions of the Mexican Constitution of 1917 and the Civil Code of 1928. This intellectual work by jurists and commentators during and after the 1930s pulled European trends of the social function of property into the mainstream of Mexican legal thought. Thus, Mexican thinking on property joined this international trend and subsequently gained recognition as part of broader international developments in property theory. This concordance of Mexican property law with international trends was then mistakenly read back to place Mexico as the originator of the social function of property in Latin America. The Mexican incorporation of the social function of property is contrasted with related experiences of Chile in 1925, Colombia in 1936, Cuba in 1940, and Argentina in 1949.

Download the article from SSRN at the link.

James on The Mess of Dillegrout @GB2d @pillsburylaw

Robert A. James, Pillsbury Winthrop Shaw Pittman LLP, has published The Mess of Dillegrout at 26 Green Bag 2d 41 (2022). Here is the abstract.

Anglo-American land law is now founded on free socage tenure, where rights superior to any other landlord are held in exchange for purchase money or other property. A vestigial exception in the UK is the grand serjeanty tenure, which was largely abolished but is still relevant to services rendered to the King or Queen on certain holidays and ceremonies. This article reviews the grand serjeanty services in general and then focuses in detail on the service of providing a bowl of chicken stew at the coronation. The history of the origin, ownership and performance of this rite, and the recipe for the dish itself, are cited as "a window into a world that is hard to see on any other day of the calendar." A supplement to the article describes another serjeanty tenure, that of the King's Champion, who did play a role in the May 6, 2023 coronation of King Charles III--the only service at that ceremony relating to real property ownership. Note: This work is (or will be) published by the Green Bag (www.greenbag.org), which hopes you will find it useful.

Park on Property and Sovereignty in America: A History of Title Registries & Jurisdictional Power @ksuenamu @YaleLJournal @GeorgetownLaw

K-Sue Park, Georgetown University Law Center, is publishing Property and Sovereignty in America: A History of Title Registries & Jurisdictional Power in volume 133 of Yale Law Journal (2023). Here is the abstract.

This Article tells an untold history of the American title registry—a colonial bureaucratic innovation that, though overlooked and understudied, constitutes one of the most fundamental elements of the U.S. property system today. Prior scholars have focused exclusively on its role in catalyzing property markets, while mostly ignoring their main sources in the colonies -- expropriated lands and enslaved people. This analysis centers the institution’s work of organizing and “proving” claims that were not only individual but collective, to affirm encroachments on tribal nations’ lands and scaffold colonies’ tenuous but growing political, jurisdictional power. In other words, American property and property institutions did not issue from sovereigns with established authority to govern a territory—as in the understanding drawn from European legal traditions—but rather preceded and ushered in colonial and U.S. sovereign title to Native homelands. Using established scholarship on the colonies and original research on county-creation for the United States, this analysis presents new questions about how the legal infrastructure of property furthered conquest, and how the progression of conquest on the ground produced the national jurisdiction and real estate market. It shows that in the haphazard process toward the American title registry, colonists borrowed the English legal forms of the registry and county to remake them into local nuclei of colonial territorial expansion—the key governmental forms that drew settlers into Native nations’ territories and encouraged them to claim lands by reassuring them that those claims would become real property. The United States adopted this colonial approach to perfecting the Discovery claims it inherited or acquired from other Empires. The timed map of county creation— not the creation of territories, nor states, nor treaties— most accurately tracks where the United States grew its jurisdictional power, and when. For between its plans to invade and ability to govern lands-- between mere white entitlement and actual title—it created counties and registries, before transitional territories and often before obtaining Native cessions to the lands by treaty. In this way, counties came to underpin the national jurisdiction and the local institution of the registry became the common and continuous infrastructure for the entire national real estate market. This history of the title registry underscores the conceptual and practical stakes of redressing the erasure of race from our understanding of legal institutions and legal development. In particular, it also challenges us to recognize less obvious ways that the legacies of conquest and enslavement survive to structure our landscape and lives. Race works to shape law and legal outcomes in different ways, including through the familiar dynamics of exclusion from institutional protections and benefits and the predatory risks of formal inclusion. But the registry’s history also illustrates a third phenomenon: legal innovation spurred by the willingness to view racial violence as an economic resource, or the development of new institutions and practices that may appear to be facially “race-neutral,” but promote the production of property value through the dehumanizing logic of race. The minimal, low-accountability design of the title registry encouraged the proliferation of market claims without authenticating them, prioritizing the collective goal of building jurisdictional power at the direct expense of Native and Black communities whose lands and people colonists rapaciously claimed as property for that ever-growing market. The result was an institution that continues to privilege the production of property value above all—above protecting individual property interests, and above sustaining homes, communities, and life, in ways that now affect us all.

Download the article from SSRN at the link.

Ely on "All Temperate and Civilized Governments:" A Brief History of Just Compensation in the Nineteenth Century @BrighamKanner @vanderbiltlaw

James W. Ely, Vanderbilt University Law School, is publishing “All Temperate and Civilized Governments;” a Brief History of Just Compensation in the Nineteenth Century in volume 10 of the Brigham-Kanner Property Rights Journal. Here is the abstract.

This article explores the origins of the “just compensation” principle, the rationale behind the compensation requirement, and attempts to define the scope of “just compensation” throughout the Nineteenth Century. It traces the sources of the compensation requirement when property is acquired by eminent domain to English common law and the influence of natural law theorists. Courts in the United States early took the position that payment of compensation was a fundamental principle of universal application even if written constitutions contained no express compensation provision. The Fifth Amendment takings clause was seen as simply an affirmation of this overarching principle. The compensation norm was understood as a matter of “natural equity,” so that the burden of public projects was shared by the community as a whole rather than fall upon a single individual. Moreover, from the outset courts insisted that the determination of the amount of just compensation was a question for the judiciary, and that the legislature could not fix the measure of compensation. The article examines at length the evolution of “just compensation” during the Nineteenth Century. Where an entire parcel was taken, courts gravitated to the fair market value as the appropriate standard for compensation. Yet ascertaining fair market value posed difficulties, and many commentators charged that this standard did not provide adequate compensation to owners. Partial takings presented even more complicated problems. Lawmakers commonly mandated that in such cases the alleged benefits resulting from a project to the remaining land should be offset against the loss suffered by the owner, thus reducing any monetary compensation. Critics argued that supposed advantages were often illusory or inequitably benefited the entire community not the particular owner. The article probes the constitutional issues, as well as the confusion and uncertainty, arising from the offset of benefits. It also considers and questions the contested subsidy thesis, which holds that the offset of benefits amounted to a subsidy to transportation companies, especially railroads, by minimizing the expense of acquiring rights of way by eminent domain. Noting a gap between judicial rhetoric extolling the importance of private property and the frequent practice of awarding inadequate compensation when property was taken by eminent domain, the article concludes by suggesting that undercompensation was a legacy of the Nineteenth Century. In this connection, it looks at some recent cases in which courts stopped short of awarding full compensation.

Download the article from SSRN at the link.

Park on Conquest and Slavery as Foundational To Property Law @ksuenamu

K-Sue Park, Georgetown University Law Center, has published Conquest and Slavery as Foundational to Property Law. Here is the abstract.

This article demonstrates that the histories of conquest and slavement are foundational to U.S. property law. Over centuries, laws and legal institutions facilitated the production of the two commodities, or forms of property, upon which the colonial economy and the United States came to depend above all others: enclosures of Native nations’ land and enslaved people. By describing the role of property law in creating markets for lands and people, this article addresses the gap between the marginal place of these histories in the contemporary property law canon and the growing scholarly and popular recognition that conquest and enslavement were primary modes of property formation in American history. First, this article describes how the field of property law has come to omit these histories from its common understanding of what is basic to its subject by examining property law casebooks published over 130 years. For most of their history, it shows, such casebooks affirmed the racial logic of conquest and slavery and contributed to these histories’ suppression in pedagogical materials. Early treatises avowed the foundational nature of conquest, but after the first property law casebook appeared, at the time of the close of the frontier, casebooks for more than half a century emphasized English inheritance, rather than acknowledging colonization’s formative impact on the property system. In the same period, the era of Jim Crow, casebooks continued to include many cases involving the illegal, obsolete form of property in enslaved people; when they ceased to do so, they replaced them with cases on racially restrictive covenants upholding segregation. After several decades, during which the histories of conquest and slavery were wholly erased, casebooks in the 1970s began to examine these histories through a critical lens for the first time. However, the project of understanding their consequences for the property system has remained only partial and highly inconsistent. The central part of this article focuses on the acquisition of property, which, properly understood, comprises the histories of conquest, slavery, expropriation, and property creation in America. It examines the three main theories of acquisition—discovery, labor and possession-- beginning with the United States’ adoption of the Discovery Doctrine, the international law of conquest, as the legal basis of its sovereignty and property laws. In this context, it shows that the operative principle of the doctrine was not that of first-in-time, as commonly taught, but the agreement of European nations on a global racial hierarchy. Second, it turns to the labor theory, which was selectively applied according to the hierarchy of discovery, and firmly linked ideologies about non-whites and property value. It then reframes the labor theory’s central question—property creation—as a matter of legal and institutional innovation, rather than merely agricultural labor. It examines the correlation between historical production of property value in the colonies to show how the main elements of the Angloamerican land system developed through the dispossession of nonwhites-- the rectangular survey, the comprehensive title registry, headrights and the homesteading principle, laws that racialized the condition of enslavement to create property in human beings, and easy mortgage foreclosure, which facilitated the trade of human beings and land as chattel to increase colonists’ wealth. Third, it assesses how the state organized the tremendous force required to subvert others’ possession of their lands and selves, using the examples of the strategy of conquest by settlement and the freedom quests that gave rise to the fugitive slave controversy. Its analysis highlights the state’s delegation of violence and dispossession to private actors invested in the racial hierarchy of property through the use of incentives structured by law. This article concludes by summarizing how the laws that governed conquest and slavery established property laws, practices, and institutions that laid the groundwork for transformations to interests in land after the abolition of slavery, which I will address in a future companion article. This article aims throughout to offer a framework for integrating the study of English doctrines regulating relations between neighbors-- the traditional focus of a property law course—into an exploration of the unique fruits of the colonial experiment -- the singular American land system that underpins its real estate market and its structural reliance on racial violence to produce value.

Sawers on Race and Property After the Civil War: Creating the Right To Exclude

Brian Sawers, Georgetown University Law Center, is publishing Race and Property After the Civil War: Creating the Right to Exclude in volume 87 of the Mississippi Law Journal (2018). Here is the abstract.

This Article uncovers a lost history of property, showing the role that race and white supremacy played in the development of modern trespass law. Property law does not change in response to economic opportunities, evolving to ever-more efficiency. Instead, property law reflects political power. At times, the political process may reorient property law to produce a larger surplus. Oftentimes, politics produce redistribution from the weak to the powerful. States closed the range to coerce blacks into working for white landowners for low wages and under bad conditions. Southern society as a whole suffered from the planter’s greed. Low wages and cruel laws impoverished not only black and white sharecroppers, but the entire region. Changing property law was a core element of the program of legal aggression that began with the black codes and continued with Jim Crow.

The full text is not available from SSRN.

Bastias Saavedra on Possession, Ownership, and Land Sales on the Chilean Frontier (1790-1830)

Manual Bastias Saavedra, University of Bremen, Centre of European Law and Politics (ZERP), has published The Lived Space: Possession, Ownership, and Land Sales on the Chilean Frontier (1790-1830) at Historia Critica 67. Here is the abstract.

By looking into sales of indigenous land in the territory of Valdivia between 1790 and 1830, this article discusses how legal interactions were tied to the local spaces of rural habitation. Since ownership was linked with possession and use in Spanish colonial law, local social relations and shared local knowledge were crucial for determining legal ownership and ensuring the validity of land transfers. This article provides insights into how law operated in newly integrated colonial spaces, and reveals that land transfers did not yet constitute purely contractual relations but were instead socially negotiated transactions involving different levels of authority and dependency.

Download the article from SSRN at the link.