Restraint on alienation

About: Restraint on alienation is a research topic. Over the lifetime, 46 publications have been published within this topic receiving 360 citations.

Evolution of Rules in a Common Law System: Differential Litigation of the Fee Tail and Other Perpetuities

Abstract: This paper presents a variation on the Rubin-Priest theory of the evolution of common law rules toward efficiency. It offers the fee tail and similar restraints on alienation as examples of how inefficient rules can lead to inefficient uses of land, which cause owners to seek the help of courts in freeing their lands from the inefficient constraints. In other words, there is a feedback loop that provides courts with opportunities to overturn inefficient common law rules. We should expect this common law drift toward efficiency to be stronger for property rules than for tort rules. Because efficient property rules are important to a healthy economy, the common law process may have an internal advantage in its external competition with other legal systems.

Reforming Property Law to Address Devastating Land Loss

Abstract: Tenancy-in-common ownership represents the most widespread form of common ownership of real property in the United States. Such ownership under the default rules also represents the most unstable ownership of real property in this country. Thousands of tenancy-in-common property owners, including members of many poor and minority families, have lost their commonly-owned property due to court-ordered, forced partition sales as well as much of their real estate wealth associated with such ownership as a result of such sales. Though some scholars and the media have highlighted how thousands of African-Americans have lost an untold amount of property and substantial real estate wealth as a result of partition sales, partition sales also have negatively impacted a wide range of other property owners. Some scholars have estimated that Hispanics in New Mexico lost nearly two millions acres of property in that state alone soon after the end of the Mexican-American War as a result of the manner in which land claims were settled pursuant to the Treaty of Guadalupe Hidalgo. Low- to moderate- income and poor white property owners in places like Appalachia have indicated to researchers that they feel at risk of losing their property as a result of partition sales. Though partition sales of tenancy-in-common property heretofore has been identified as a phenomenon impacting exclusively rural landowners, Hurricane Katrina revealed that there are a number of vulnerable tenancy-in-common property owners in urban cities and municipalities. There are even a surprising number of middle class, white property owners who own tenancy-in-common property under the default rules in some places in this country such as in Maine.This Article, the lead article for this issue of the Alabama Law Review, reviews and analyzes the Uniform Partition of Heirs Property Act (UPHPA), a uniform act that represents the most significant reform to partition law in this country in modern times. I served as the Reporter, the person charged with principal responsibility for drafting a uniform act promulgated by the National Conference of Commissioners on Uniform State Laws, for the UPHPA. The Article summarizes those aspects of partition law that have resulted in thousands of property owners losing millions of acres of property and the real estate wealth associated with such property. The Article also provides an analysis of key sections of the UPHPA, and this analysis makes clear that the UPHPA represents a very comprehensive and innovative reform to what heretofore had long been perceived to be the intractable problem of tenancy-in-common land loss. For example, the drafters of the UPHPA drew in part on international comparative law in drafting certain sections of the UPHPA, including by drawing on the law governing exit of common ownership in countries such as Australia, Canada, England, and Scotland. Moreover, the Council of State Governments selected the UPHPA as one of thirty-five newly enacted statutes or uniform acts for inclusion in its 2013 Suggested State Legislation publication (from hundreds of submissions by state officials from across the country) to encourage states to consider it as a model. The UPHPA has been enacted into law in four states, it was introduced for consideration in four other jurisdictions in 2014, and a number of states are on the cusp of introducing it for consideration in 2015.

Speaking of inconvenient truths -- a history of the public trust doctrine

Abstract: In the nearly four decades since Professor Joe Sax published an article in the Michigan Law Review, there has been a flood of academic writing and court decisions on the public trust doctrine. The vast majority of these articles and judicial opinions give a brief synopsis of the doctrine's Roman, English and early American roots. In a nutshell, the generally accepted history is that from Justinian's Institutes through Magna Carta and Bracton, Hale and Blackstone reporting on English law, and Chancellor Kent acknowledging the reception of English and Roman law in America, the public has deeply rooted rights in access to and use of resources important to the public welfare. Arnold v. Mundy, Martin v. Waddell and Illinois Central Railroad v. Illinois are cited repeatedly as precedent for present day recognition of a doctrine that will limit the authority of the state to alienate resources while imposing constraints on governmental and private use of those resources. As propounded by Professor Sax and the many adherents to his argument, an expansive public trust doctrine will restore the wisdom of antiquity while serving as a powerful tool for the protection and preservation of natural resources and the environment. The only problem with these ambitions for the public trust doctrine is that they rely on a mythological history of the doctrine. There was nothing resembling the modern idea of public trust in Roman law and the claimed restraint on alienation of state owned waters and lands is belied by a history of pervasive private ownership in both Rome and England. Magna Carta had little or nothing to do with such public rights, nor is there significant support in Bracton, Hale, or Blackstone for the imagined doctrine. The one concept of English law on which the modern public trust doctrine relies--the prima facie rule pursuant to which title to submerged lands is presumed to be in the Crown absent a showing to the contrary--was a sixteenth century fabrication that did not take hold in England until late in the nineteenth century, well after American law had developed on its own. Ironically, the invented prima facie rule served to feather the nest of the Crown, not to protect the rights of the public. American law would serve the same government self-dealing many centuries later in Phillips Petroleum v. Mississippi, though in the name of the public good. American public trust law, even today, is founded on a New Jersey decision that misunderstood the Roman and English history and contradicted the contemporary law and practice of that state. That decision was overruled less than three decades later and only eight years after the United States Supreme Court had embraced its public trust theories in a title dispute to which it had no relevance. A half century later, the Supreme Court revived the public trust concept, along with the mistaken history, in a case that has been badly misconstrued both legally and sociologically. Professors Kearney and Merrill have set the record straight on the economic and political history, but the legal significance of Illinois Central continues to be misunderstood, notwithstanding the Court's clear explanation of Illinois Central's narrow holding only three decades later in Appleby v. City of New York. Relying on both original and secondary sources, this paper sets the historical record straight. While the courts will do what they choose, those with expansive ideas about the public trust doctrine should be discomfited by the conclusions reached. Presumably they and their academic enablers make persistent reference to the history of Roman and English law because they understand that precedent is important in a rule of law system. If their claims for precedent are incorrect, as demonstrated in this paper, they must look to other justifications for a doctrine that threatens the property rights of millions of individuals while recognizing in the courts expansive powers to invalidate the democratic choices of the elected representatives of the people. …

The Essential Structure of Property Law

Abstract: This article examines a characteristic of property entitlements that is fundamental to the structure of property systems that has received scant academic attention, a characteristic referred to as the mutual exclusivity principle. According to this principle, a property system does not allow for the existence of incompatible rights. Two people cannot separately be the owners of the same resource, for instance. By contrast, two people can each hold valid but contradictory contract rights to the resource. Although the existing property literature has stressed the “exclusive” nature of property, the various ways in which property is imagined to be exclusive, such as by conferring “rights to exclude,” fail to capture the essence of property as a distinct legal institution. Unlike these alternative conceptions of exclusiveness, the mutual exclusivity principle holds true across the range of different types of property entitlements, including not just fee simple ownership but also security interests and servitudes, and across the range of assets subject to property law, including not just land and physical objects but also intangibles like intellectual property and corporate shares.Recognizing the role of the mutual exclusivity principle yields a number of practical insights. It helps explain various institutional features of property law, such as the system of future interests, the use of possession-based rules, the role of recording systems, and the negative, thing-based structure of property entitlements. It illuminates connections between property and other fields like corporations law and it calls into question aspects of existing doctrine, such as the preferred status of exclusion rights under the U.S. Constitution’s Takings Clause. It also modifies the influential theory that property law is heavily shaped by problems of high information costs: while existing accounts seem to suppose that property law entails relatively high information costs because it imposes a relatively broad set of duties on others, many of the information cost problems identified in the literature actually result from the mutual exclusivity problem, rather than from the breadth of property duties.At a more general level, understanding the centrality of the mutual exclusivity principle suggests some change in direction is called for within the wider property literature. American property scholarship has been preoccupied with questions about the scope and strength of property rights, overlooking the separate problem of ascertaining who happens to hold a given right, a problem distinctive to property law. Property, this article argues, is at least as much about title chains, patent searches, and creditor priorities as it is about trespass, remedies, and eminent domain.