Category Archives: Property

Henry Smith, ‘Property as complex interaction’

Abstract: In his important article, Benito Arruñada draws out the significance of sequential exchange for property rights and traces inadequacies in the economics of property rights to its overly contractual focus, to the exclusion of multiple transactions on the same asset. In this comment, I argue that although Arruñada’s problem is a genuine one, it […]

Thomas Simmons, ‘A Chinese Inheritance’

Abstract: A society’s values may be discernible in its intestacy laws, the laws which govern the distribution of a decedent’s estate when there is no valid will. Upon examination, unique characteristics among competing intestacy schemes emerge. The most startling characteristic of Chinese inheritance law is its willingness to invoke judicial review of an heir’s conduct […]

Rainer Kulms, ‘Trusts As Vehicles for Investment’

Abstract: Financial markets have become the main drivers for legal change. Investors are interested in in funds which promise high returns while assuring protection from moral hazard and immunity against third party claims, irrespective of whether the fund is organized as a trust, a corporate entity or contractual investment scheme. Global finance has forced legislators […]

‘The Lucrative Business of Lending Against an Expected Inheritance’

David Horton and Andrea Cann Chandrasekher, Probate Lending, 126 Yale Law Journal 102 (2016). Recently, private companies have begun advancing funds to estate beneficiaries in exchange for the beneficiaries’ anticipated inheritances from those estates. These ‘probate loans’, which have never even been mentioned in another law review article, are explored in detail by Professors David […]

‘Of Persons, Property, and Frozen Eggs’

Browne Lewis, “You Belong to Me”: Unscrambling the Legal Ramifications of Recognizing a Property Right in Frozen Human Eggs, 83 Tennessee Law Review 645 (2016). William Blackstone’s Commentaries on the Laws of England bifurcated the physical universe into persons and property. In Blackstone’s description of English law, there were categories of persons (just as there […]

Adam Hirsch, ‘Testation and the Mind’

Abstract: This Article explores the panoply of state-of-mind rules in inheritance law. In areas of law concerned with wrongdoing, consideration of mental states achieves specific deterrence and moral justice. By comparison, in the inheritance realm, I argue that consideration of mental states can serve to economize on decision costs. The Article looks at state-of-mind rules […]

Bowrey and Graham, ‘The Placelessness of Property, Intellectual Property and Cultural Heritage Law in the Australian Legal Landscape: Engaging Cultural Landscapes’

Abstract: Australia has an appalling history of dispossession of Aboriginal and Torres Strait Islander (ATSI) Peoples and recognition of this motivates research that seeks to advance Indigenous rights by amending Australian laws in ways that better connect property, people and culture to place and environment. The ambition is often to open up the Australian legal […]

Shai Stern, ‘Property’s Tipping Point’

Abstract: There is a clear tension in the law between exercises of state police power in land-use regulation, including zoning laws, on the one hand, and takings under the Fifth Amendment on the other. Courts have struggled to find a dividing line between the two, but for their efforts we are left only with is […]

Adam Mossoff, ‘Trademark as a Property Right’

Abstract: Although trademark is a property right, the conventional wisdom among modern commentators and prominent judges is that it is only a regulatory entitlement that promotes consumer welfare. This essay fills a lacuna in modern trademark theory by identifying how and why nineteenth-century courts first defined trademark as a property right, and how this explains […]

Danielle D’Onfro, ‘Limited Liability Property’

Abstract: This Article offers a new theory of secured debt that aims to answer fundamental questions that have long puzzled bankruptcy scholars. Are security interests property rights, contract rights, or something else? Why do secured debt holders enjoy a priority right that, in bankruptcy, requires them to be paid in full before other debt holders […]