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.

Of Progressive Property and Public Debt

Abstract: Debt is property, and, because of this, property law has a lot to say about how debts are resolved Indeed, property law is deeply woven into the fabric of the bankruptcy process — a fact that has been woefully neglected by many scholars The ability to provide debtors with relief and the ability of creditors to demand protections from discharge or diminished payments are both concepts that are intimately tied to property law However, despite the doctrinal workings of property law in this context, from a theoretical standpoint property law has been underutilized This is particularly true, as this Article asserts, in the public insolvency context — when governments go broke Instead of being relegated to a mere mechanical (and normatively side-lined) status, I argue that property theory, particularly that arising out of the progressive property movement, has much to say about public debt crises and the resolution of the different interests at play between debtors and creditors In order to contextualize this argument, I use the Puerto Rican debt crisis as a lens through which to understand how progressive property theory should be used to reform the way property law has been interpreted in the context of public debt emergencies

Retracing the Discovery Doctrine: Aboriginal Title, Tribal Sovereignty, and their Significance to Treaty-Making and Modern Natural Resources Policy in Indian Country

Abstract: One of the more misunderstood concepts of Anglo-American law is the discovery doctrine, the principle by which Europeans rationalized their presence in North America. Misinterpretation of the doctrine led to unwarranted assumptions about the relationship between the federal government and indigenous tribes in the late 19th and early 20th centuries and to misinterpretations abroad, notably in Australia. These misinterpretations by judges and Congress made the discovery doctrine into what one scholar called a perfect instrument of empire. But this article maintains that this result was a perversion of the doctrine laid down in the early 19th century by the Marshall Court. The article explains that the discovery doctrine, as articulated by the Marshall Court, actually produced very little immediate effects on native proprietary rights. However, Chief Justice Marshall laid the seeds for later misunderstandings by characterizing aboriginal title as sui generis, outside the conventional system of Anglo-America property law. In fact, had Marshall been better versed in property law, it would have been quite easy to conceptualize aboriginal title in conventional terms. Had he done so in the cases in which he used the discovery doctrine to shape native property, the federal government's interest in native lands would have been understood to be merely a right of preemption and the native interest to be a fee simple subject to a partial restraint on alienation. This interpretation would have been consistent with the Supreme Court's oft-quoted phrase that Indian title is as sacred as the fee. The discovery doctrine's effect on tribal sovereignty turned out to be much more pernicious than its effect on native property rights. The doctrine not only foreclosed relations between the Indian tribes and foreign nations and led to exclusive federal control over native affairs, it also assumed that questions about federal-tribal relations were properly left to federal courts, the courts of the conqueror in Chief Justice Marshall's words. This decision on venue equipped Marshall's successors to erect a doctrine of plenary federal power on questionable authority and to use it to give sanction to unilateral federal breaching of treaties and the breaking up of the Indian land base. This article aims to clarify the discovery doctrine by examining its origins, its adoption by the Marshall Court, and its ensuing effects on native property rights and sovereignty. Among the legacies of the doctrine was an impetus to treaty-making, which enabled some tribes to reserve important natural resources for their use, so the results of the discovery doctrine were not all adverse to the tribes. The article explores the relationship between discovery and treaty-making and also a modern alternative to the erosion of inherent tribal sovereignty initiated by the discovery doctrine: delegated sovereignty under federal pollution control statutes. The article concludes that while Chief Justice Marshall would never have countenanced his successors' interpretation of the discovery doctrine he articulated, understanding the origins, scope, and legacies of the doctrine remains foundational to native proprietary and sovereign rights in the modern world.

Personal Property Servitudes

Abstract: This article explores the lawfulness of servitudes on personal property in both common law and intellectual property regimes. The common law has from ancient times recognized the general right of owners of real property to burden land with restrictions on use - restrictions that "run with the land" - subject to various conditions and limitations. It has been more ambivalent about similar restrictions on personal property. Why? That was a question broached seventy-five years ago by Zechariah Chafee, though he never fully answered it. Today, the question has acquired a new importance because of the pervasive use of computer software licensing restrictions that, for all practical purposes, can be regarded as a form of property servitude. Software licensing restrictions implicate specialized rules of intellectual property, such as the first sale doctrine. However, those rules are basically derived from common law policies (most notably policies against restraints on alienation and restraints of trade) so the question about the legality of such restrictions is essentially no different for intellectual property than for common law property. In all events this article argues that the traditional hostility to use and resale restraints on personal property is misguided in both the common law and intellectual property contexts. While there may be legitimate reasons for limiting an owner's right to impose post-transfer restrictions on use and resale, those reasons are more exceptional than has been commonly assumed. Moreover, in the new digital world where servitude-type restrictions can be engineered into the architecture of the property right itself public policy restrictions on contractual "servitudes" may prove to be ineffectual, raising a new reason to take a fresh look at old conceptions of personal property servitudes.

Personal Property Servitudes

Abstract: This article explores the lawfulness of servitudes on personal property in both common law and intellectual property regimes. The common law has from ancient times recognized the general right of owners of real property to burden land with restrictions on use - restrictions that "run with the land" - subject to various conditions and limitations. It has been more ambivalent about similar restrictions on personal property. Why? That was a question broached seventy-five years ago by Zechariah Chafee, though he never fully answered it. Today, the question has acquired a new importance because of the pervasive use of computer software licensing restrictions that, for all practical purposes, can be regarded as a form of property servitude. Software licensing restrictions implicate specialized rules of intellectual property, such as the first sale doctrine. However, those rules are basically derived from common law policies (most notably policies against restraints on alienation and restraints of trade) so the question about the legality of such restrictions is essentially no different for intellectual property than for common law property. In all events this article argues that the traditional hostility to use and resale restraints on personal property is misguided in both the common law and intellectual property contexts. While there may be legitimate reasons for limiting an owner's right to impose post-transfer restrictions on use and resale, those reasons are more exceptional than has been commonly assumed. Moreover, in the new digital world where servitude-type restrictions can be engineered into the architecture of the property right itself public policy restrictions on contractual "servitudes" may prove to be ineffectual, raising a new reason to take a fresh look at old conceptions of personal property servitudes.