Property Law

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Article
Volume 92.3
Decentering Property in Fourth Amendment Law
Michael C. Pollack
Professor of Law & Associate Dean for Faculty Development, Benjamin N. Cardozo School of Law.

The authors share credit and responsibility for this Article equally. The authors are grateful to Maureen Brady, Morgan Cloud, Mailyn Fidler, Barry Friedman, Ben Grunwald, Alma Magaña, and Stewart Sterk, along with participants in the Cardozo Junior Faculty Workshop for helpful conversations, suggestions, comments, and critiques. Michael Pollack thanks the Stephen B. Siegel Program in Real Estate Law for research support.

Matthew Tokson
Professor of Law, University of Utah, S.J. Quinney College of Law.

The authors share credit and responsibility for this Article equally. The authors are grateful to Maureen Brady, Morgan Cloud, Mailyn Fidler, Barry Friedman, Ben Grunwald, Alma Magaña, and Stewart Sterk, along with participants in the Cardozo Junior Faculty Workshop for helpful conversations, suggestions, comments, and critiques. Michael Pollack thanks the Stephen B. Siegel Program in Real Estate Law for research support.

The canonical test for Fourth Amendment searches looks to whether the government has violated a person’s reasonable expectation of privacy. Yet the Supreme Court has recently added a property-based test to address cases involving physical intrusions. Further, influential judges and scholars have proposed relying primarily on property in determining the Fourth Amendment’s scope. This Article exposes the overlooked flaws of a property-centered Fourth Amendment. It examines the complications of property law, explores the malleability of property rights, and reveals how governments can manipulate them. Normatively, Fourth Amendment regimes based on property are likely to be underinclusive and grounded in trivial physical contact while ignoring greater intrusions. Finally, because property is unequally distributed, its use as a determinant of Fourth Amendment protections risks leaving disadvantaged members of society with the least protection. While property concepts will sometimes be relevant, they should be used very carefully, and very little, in Fourth Amendment law.

Fourth Amendment Property Law
2
Article
75.3
Reconfiguring Property in Three Dimensions
Abraham Bell
Visiting Professor, Fordham University School of Law; Lecturer, Bar Ilan University, Faculty of Law
Gideon Parchomovsky
Professor, University of Pennsylvania Law School; Visiting Professor, Bar Ilan University, Faculty of Law

This Article greatly benefited from comments and criticisms by Ben Depoorter, Lee Anne Fennell, Mark Fenster, Sonia Katyal, Jim Krier, Tom Merrill, Adam Mossoff, Dan Richman, Ed Rock, Carol Rose, Chris Serkin, Peter Siegelman, Henry Smith, Phil Weiser, and participants in the 2007 Property Works in Progress Conference at the University of Colorado Law School.

Property Law
2
Article
75.4
The Dale Problem: Property and Speech under the Regulatory State
Louis Michael Seidman
Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center

Many people helped me think through the problems addressed in this article. I am especially grateful to Larry Alexander, Randy Barnett, David Bernstein, Julie Cohen, Lee Anne Fennell, Martin Lederman, Gary Peller, Adam Samaha, Geoffrey Stone, Mark Tushnet, and Rebecca Tushnet, and to participants at workshops at The University of Chicago Law School, Georgetown University Law Center, and Loyola University Law School. I received excellent research assistance from James Banda and Richard Harris.

Constitutional Law First Amendment Freedom of Speech Property Law
2
Article
76.2
Private Takings
Abraham Bell
Visiting Professor, University of Connecticut School of Law; Professor, Bar Ilan University Faculty of Law

This Article greatly benefited from comments and criticisms by Jonathan Barnett, Omri Ben-Shahar, Philip Blumberg, Lloyd Cohen, Bob Ellickson, Assaf Hamdani, Henry Hansmann, Christine Jolls, Sonia Katyal, Greg Keating, Dan Kelly, Dan Klerman, Yair Listokin, Tom Merrill, Gideon Parchomovsky, J.J. Prescott, Bob Rasmussen, Roberta Romano, Carol Rose, Alan Schwartz, Peter Siegelman, Henry Smith, Chris Stone, Bill Treanor, Mark Weinstein, and Ben Zipursky; and participants in the Law, Economics, and Organization Workshop at Yale University and the law and economics seminars and workshops at University of Michigan Law School, University of Southern California Gould School of Law, the Bar Ilan University Faculty of Law, and the Tel Aviv University Faculty of Law; and participants in faculty seminars at Fordham University Law School, Brooklyn Law School, University of Connecticut Law School, University of San Diego Law School, Washington University School of Law, University of Illinois Law School and George Mason University Law School. For the central ideas, I am indebted to Fred Schauer and Steven Shavell, without whom this Article would not have been possible. I am also grateful for the financial support of the John M. Olin Center for Law, Economics, and Business at Harvard Law School. All errors, of course, are mine.

Law and Economics Property Law Takings
2
Essay
77.1
Direct Voting by Property Owners
Thomas W. Merrill
Charles Evans Hughes Professor of Law, Columbia Law School

This Article has benefited from comments of participants at The Univeristy of Chicago Law School’s Symposium, Rethinking the State and Local Government Toolkit, and from a faculty workshop at Wisconsin Law School. Many thanks to Bob Ellickson for reading and commenting on an earlier version of this Article and to Erin Brantley Webb for outstanding research assistance.

Cities Property Law Public Choice
2
Essay
77.1
Controlling Residential Stakes
Lee Anne Fennell
Professor of Law, The University of Chicago Law School
Julie A. Roin
Seymour Logan Professor of Law, The University of Chicago Law School

We thank Amnon Lehavi, Lior Strahilevitz, participants in The University of Chicago Law School’s Symposium, Reassessing the State and Local Government Toolkit, and participants in the 2009 Property Works in Progress conference held at the University of Colorado School of Law for helpful comments and questions on this project. Prisca Kim and Eric Singer provided excellent research assistance.

Cities Housing Property Law
2
Essay
77.1
How to Undermine Tax Increment Financing: The Lessons of City of Chicago v ProLogis
Richard A. Epstein
The James Parker Hall Distinguished Service Professor of Law, The University of Chicago Law School; The Peter and Kirsten Bedford Senior Fellow, The Hoover Institution; and Visiting Professor at New York University Law School

In the interests of full disclosure, I advised ProLogis on some of the legal and economic issues connected with its brief. The opinions expressed here are of course my own.

Cities Financial Regulation Property Law Takings

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