The Oxford Introductions to U.S. Law Property

by Merrill, Thomas W.; Smith, Henry E.

• ISBN13: 9780195314762
• ISBN10: 019531476X
• Format: Paperback
• Copyright: 2010-04-21
• Publisher: Oxford University Press

Summary

The Oxford Introductions to U.S. Law: Property provides both a bird's eye overview of property law and an introduction to how property law affects larger concerns with individual autonomy, personhood, and economic organization. Written by two authorities on property law, this book gives students of property a coherent account of how property law works, with an emphasis on describing the central issues and policy debates. It is designed for law students who want a short and theoretically integrated treatment of the subject, as well as for lawyers who are interested in the conceptual foundations of the law of property.

Author Biography

Thomas W. Merrill is a professor of law at Columbia Law School, where he teaches in the areas of property, environmental law, natural resources, administrative law, and legislation. After graduating from Grinnell College and Oxford University, he received his J.D. from the University of Chicago, and then clerked for the Hon. David Bazelon, U.S. Court of Appeals for the D.C. Circuit, and the Hon. Harry Blackmun, U.S. Supreme Court. From 1987-1990 he served as Deputy Solicitor General, U.S. Department of Justice. He began his academic career at the Northwestern University School of Law and has also taught at the Yale Law School. His publications include Property: Principles and Policies (with Henry E. Smith, Foundation 2007), and Property: Takings (with David Dana, Foundation 2002). He is, in addition, the author of more than 75 academic articles on property, environmental law, administrative law, constitutional law, and the Supreme Court.

Henry E. Smith is a professor of law at Harvard Law School, where he directs the Project on the Foundations of Private Law and teaches in the areas of property, intellectual property, natural resources, remedies, and taxation. After receiving an A.B. from Harvard, a Ph.D. in Linguistics from Stanford, and a J.D. from Yale, he clerked for the Hon. Ralph K. Winter, U.S. Court of Appeals for the Second Circuit, taught at the Northwestern University School of Law, and was the Fred A. Johnston Professor of Property and Environmental Law at Yale Law School. He has written primarily on the law and economics of property and intellectual property. His publications include Property: Principles and Policies (with Thomas W. Merrill, Foundation 2007), The Privilege Against Self-Incrimination: Its Origins and Development (with R.H. Helmholz et al., Chicago 1997); Restrictiveness in Case Theory (Cambridge studies in linguistics no. 78, 1996). He is the co-editor of the Research Handbook on the Economics of Property Law (with Kenneth Ayotte, forthcoming 2009).

Table of Contents

The Institution of Property	p. 1
Exclusion and the Bundle of Rights	p. 4
The Thing's the Thing	p. 8
General Justifications, General Concerns	p. 11
Further Reading	p. 16
Original Acquisition and the Scope of Property Claims	p. 17
First Possession	p. 18
Discovery and Creation	p. 23
Accession	p. 30
Adverse Possession	p. 34
Sequential Possession, Finders, and the Relativity of Title	p. 38
The Mosaic of Acquisition Principles	p. 40
Further Reading	p. 40
The Domain of Property	p. 43
The Demsetz Theory	p. 43
Personhood	p. 51
Inherently Public Property	p. 55
Hybrid Resources	p. 59
Further Reading	p. 63
Owners as Gatekeepers	p. 65
Laws for Owner Protection	p. 66
Self-Help	p. 71
Exceptions to the Right to Exclude	p. 74
Necessity	p. 75
Custom	p. 76
Public Accommodation Laws	p. 79
Antidiscrimination Laws	p. 81
Owner Powers	p. 84
Licenses	p. 85
Bailments	p. 87
Abandonment and Destruction	p. 89
Transfer by Sale, Gift, and Inheritance	p. 91
Further Reading	p. 94
Dividing Property Rights	p. 95
Estates and Future Interests	p. 95
How the System Works	p. 104
Co-Ownership	p. 113
Marital Interests	p. 118
Further Reading	p. 122
Managing Property	p. 123
Why Separate Management Authority from Other Incidents of Ownership?	p. 125
Leasing	p. 129
Property and Contract	p. 131
Models of the Lease Contract	p. 135
Implied Warranty of Habitability	p. 138
Transferring Leasehold Interests	p. 143
Common Interest Communities	p. 146
Trusts	p. 153
Further Reading	p. 157
Land Transactions and Title Records	p. 159
Land Sale Contracts	p. 159
Title Records	p. 166
Mortgages	p. 176
Further Reading	p. 181
Neighbors and Neighborhood Effects	p. 183
The Coase Theorem	p. 185
Tort Liability: Nuisance	p. 192
Modification of Property Rights: Easements	p. 200
Contract: Covenants Running with the Land	p. 207
Public Regulation: Zoning	p. 215
Further Reading	p. 221
Government Forbearance	p. 223
The General Form of the Problem	p. 224
Sources of Forbearance	p. 229
The Rule of Law	p. 233
Procedural Due Process	p. 233
Vested Rights	p. 236
Stare Decisis	p. 238
Waivers of Sovereign Immunity	p. 239
Explicit Takings	p. 241
Public Use	p. 242
Just Compensation	p. 248
Regulatory Takings	p. 251
Further Reading	p. 258
Index	p. 259
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