Property Claims Research Articles

The Vinson Court and the Idol of Restraint

The Vinson Court and the Idol of Restraint Fewjudicial characteristics gamer greater praise than that of judicial self-restraint. Yet the most restrained Court of the twentieth century, that of ChiefJustice Fred M. Vinson, is largely considered a failure. Using the Vinson Court as a historical case study, this article questions the merit ofthisjudicial ideal. I. Judicial restraint is generally contrasted with judicial activism. Indeed, it has become commonplace to criticize the latter while extolling the former.1 Such criticism has come from scholars, politicians, and judges alike.2 Perhaps more notably, the vitriol has come from both the Left and the Right.3 Despite its frequent usage, judicial activism has no clear definition. Some believe it a vacuous phrase, used merely to dismiss decisions one seeks to paint as politically partisan.4 Since judicial decisions are rarely, if ever, transparently political, however, proving such partisanship is far from straightforward. Regardless of what makes an activist judge, the parameters ofjudicial restraint have usually been easier to draw. If activist judges interpret the law as they please, restrained judges are seen as impartially deferring to ZACHARY BARON SHEMTOB other authorities whenever possible. James Bradley Thayer, perhaps judicial self-re­ straint’s most influential advocate, argued that the best judges should avoid nullifying executive and legislative acts unless they are clearly unconstitutional.5 Richard Posner succinctly summarizes judicial self-restraint as a judge’s reluctance to “declare legislative or executive action”6 void, and such deference “at its zenith when action is challenged as unconstitutional.”7 Indeed, while “judicial activism” was originally invoked as a form of judicial abuse,8 praise for a restrained judiciary has existed since our nation’s very founding. Alexander Hamilton warned against judges enshrining their own values into law by overturning legislative or executive prerog­ atives.9 Chief Justice John Marshall was cautious not to nullify legislative enactments, openly decrying the appearance of judicial partisanship.10 Indeed, up until the Dred Scott decision, today largely recognized as “the worst imaginable case ofjudicial activism,”11 the Court only once overruled a federal statute and declared state statutes void a mere handful of times.12 134 JOURNAL OF SUPREME COURT HISTORY With the turn-of-the-century and the Industrial Revolution, the idea of an unre­ strained (and thereby more activist) Court began to grow increasingly prominent.13 Interestingly, although today judicial activ­ ism is widely associated with the Left, this label was first used to denounce conserva­ tive jurists during the Progressive Era. These conservatives—today perhaps better conceived as classical liberals—sought to support property claims and the newly rising industrial elite, and nullified state and legislative statutes through implicit, immutable property rights and a nebulous “freedom of contract.”14 In Baldwin v. Missouri (1930), Oliver Wendell Holmes, Jr., an advocate ofrestraint, complained that his activist brethren’s political support for industry, and its refusal to respect legisla­ tive or executive prerogatives, had “hardly any limit but the sky.” Louis D. Brandeis agreed, chastising the Court for acting as a sort of“super legislature” in New State Ice v. Liebmann (1932), a decision preventing state legislatures from demanding busi­ nesses have licenses in order to sell ice. The Court’s activism reached its peak during President Franklin D. Roosevelt’s first term. The President had been elected on a platform ofeconomic reform, and shortly after taking office attempted to pass a package of sweeping financial measures.15 When the Justices struck a number of these, Roosevelt threatened to retaliate by packing the Court with his own Democratic appointees. Al­ though the President’s plan fizzled, the Court majority became markedly less willing to overturn executive and congressional stat­ utes. 16 When a number of the more conserva­ tive Justices died or retried shortly thereafter, Roosevelt crafted a Court almost entirely loyal to his progressive economic agenda. The resulting Court, led by Chief Justice Harlan F. Stone, soon became splintered between the judicial ideologies of Felix Frankfurter and Hugo L. Black.17 While The author argues that the Vinson Court (pictured in 1953) was perhaps the most restrained of the twentieth century in terms of judicial activism. It had the lowest nullification rate of federal, state, and local...

Valuing Catastrophe Bonds Involving Credit Risks

Catastrophe bonds are the most important products in catastrophe risk securitization market. For the operating mechanism, CAT bonds may have a credit risk, so in this paper we consider the influence of the credit risk on CAT bonds pricing that is different from the other literature. We employ the Jarrow and Turnbull method to model the credit risks and get access to the general pricing formula using the Extreme Value Theory. Furthermore, we present an empirical pricing study of the Property Claim Services data, where the parameters in the loss function distribution are estimated by the MLE method and the default probabilities are deduced by the US financial market data. Then we get the catastrophe bonds value by the Monte Carlo method.

The development of the concept of securities in Latvian legislation

The doctrinal analysis and legal regulation of the legal nature of the securities in Latvian law is fragmented and unclear. This paper discovers that according to the prevailing legal doctrine the securities are classified as intangibles under Latvian law and that leads to the exclusion of the dematerialized securities from the context of the property law. In contrast the bearer debt securities due to their dual legal nature get the legal treatment associated with the tangible movables, including the right to raise property claim and the protection of the bona fide acquirer, while other securities as intangibles do not have the benefit of these substantial property law rules, which leads to the significant legal uncertainty in case of the unauthorized transfer of the securities. The research takes the comparative approach, since historically Latvian securities law has experienced significant influence of the German law.

Legal Geographies of Catastrophe: Forests, Fires, and Property in Colonial Algeria

Forest fires in Algeria in the 1850s and 1860s suggest a link between environmentally induced catastrophes and the geographies of property and territory in the colony. In eastern Algeria, these fires helped fuel a discussion over the security and reliability of European settlers’ property rights and of the colonial state's ability to guarantee them. Following a brief analysis of forestry policy in France and Algeria, this paper analyzes some of the correspondence and official reports that emerged in the wake of major conflagrations. By the early 1860s, settlers and private forestry companies were calling the colonial state's credibility into question and demanding far‐reaching changes to the property law and land‐use regimes in place in the colony. Eventually, colonial authorities moved to help cement settlers’ property claims, eliminating enclaves and imposing new rules on “native” Algerians’ rights to use the forest. This essay concludes by suggesting that the process of making property private, in Algeria and elsewhere, is informed by perceptions of risk and by the modes of awareness inspired by environmentally induced catastrophic events.

Interpretation of Micro-Organism Under the TRIPS Agreement

The present article provides an assessment of the implications of intellectual property claims in relation to micro-organisms. It fundamentally focuses on the lack of a precise definition of the term 'micro-organism' resulting in inherent anomalies in patenting these life forms. Though the TRIPS Agreement mandates patent protection for micro-organisms, it does not define micro-organisms, thus there is no standard definition for member nations to follow. This has wide implications for developing countries rich in bio-diversity, such as India. The lack of a precise definition may cause conflicting or dubious interpretations of the term 'micro-organism', which in turn may lead to the patenting of non-patentable objects.

Unravelling property relations around forest carbon

Market‐based interventions to Reduce Emissions from Deforestation and Forest Degradation (REDD+) enable the carbon stored in land and forests to be traded as a new and intangible form of property. Using examples from Cambodia, the Philippines and Papua New Guinea, we examine the property negotiations underpinning this new forest carbon economy. We show that the institutions and land use negotiations needed to ‘produce’ forest carbon interact recursively with existing property claims over land and forests. Even where customary rights are formally recognized (PNG, Philippines), claims to forest carbon are still complicated by ambiguities and complexities surrounding rights to forested land. Meanwhile the new value attached to forest carbon can stimulate efforts to appropriate land and forest resources associated with it, creating new power relations and property dynamics. This interplay between forest carbon and underlying contested property claims in rural forest settings creates an unstable basis for forest carbon markets and raises questions about future access to forested land.

Ethnographic artifacts and value transformations

Transactions of ethnographic artifacts between Indigenous producers, European collectors, museums, and the state create and transform multiple notions of value. In this paper we discuss how an artifact's value is generated and transformed through various transactions linked to the documentation and property claims made by scientific collectors, such as Eric Mjoberg, Herman Klaatsch, and Ursula McConnel. Such artifacts have now entered a new dynamic given Aboriginal claims for repatriation and other forms of reappropriation. We argue that the entanglement of artifacts in the property claims of the collectors, the pro-ducers (or their descendants), the granting bodies, and the public institutions, exposes artifacts to complex processes of value accretion and transformation.

How Does the Changing Access to Resources Affect the Power and Authority of the Postsocialist Romanian State?

In the past two decades, former postsocialist countries such as Romania have experienced very radical changes in terms of government and resource policy (Swinnen, 1997; Swinnen et al., 1997; Szelenyi, 1998; Turnock, 1998). To make sense of these changes this review paper will make use of recent postsocialist literature, which links the access and control over resources to the exercise of power and authority in the postsocialist state (Berry, 1993; Lund, 2002; Verdery, 2002; Ribot and Peluso, 2003; Sikor, 2006; Sikor and Lund, 2009; Sikor, Stahl and Dorondel, 2009).The review paper aims to re-trace this line in postsocialist thinking in the relevant literature and show how the concepts of property and access to resources are connected to the crucial concepts of power and authority. It will perform a critical review of the relevant literature and also explore the aforementioned concepts of property, access, power, authority and state.It will furthermore show how these concepts feed into the formation and consolidation of the Romanian postsocialist state. Since conflicts over property are emphasised by postsocialist researchers (de Waal, 1996; Giordano and Kostova, 1996; Verdery, 1999; Rabinowicz and Swinnen, 1997; Swinnen and Mathjs, 1997; Szelenyi, 1998; Sikor, 2003; Sikor, Stahl and Dorondel, 2009; Dorondel and Sikor, 2009), these are underlined here and thought to be the main thread connecting property and access to resources with power and authority in the new state. More specifically, the paper will reveal how said conflicts force actors to seek the authorization of their property claims at the door of the state. By doing so, they grant the new state the authority to do so again in the future and thereby contribute to the consolidation of its legitimacy.Essentially this review paper argues that changes to resource access engender conflicts, which in turn lead to the formation of a new social contract between the postsocialist state and its people (Lund, 2002).

The Past in the Present: Struggles Over Land and Community in Relation to the Dukuduku Claim for Land Restitution, South Africa

Land restitution has become an important means to rectify South Africa's skewed property relations after decades of racially discriminatory laws and practices. The Dukuduku forest in KwaZulu-Natal is subject to one such claim to land restitution, which remains unsettled more than a decade after it was lodged. While being planned for incorporation into the adjacent wetland park and World Heritage Site, the forest has over the last decades become home to an increasing number of predominantly subsistence farmers, some of whom form part of the group of land claimants. This study of the Dukuduku forest attempts to explore the interplay of community and authority in a setting where claims for historical redress materialises both in processes of land restitution and in the acquisition of land through ‘illegal squatting’. Land restitution at Dukuduku involves the restoration of lost rights to land and resources and the formalisation of these rights. Overlapping and differently founded claims, however, drawing differently on the past and the present, form a complexity that defies such straightforward processes. The struggle over the Dukuduku forest is one over different interpretations of what constitutes authority and community. The land claim process feeds into existing struggles and creates new ones, and in this way, the larger cause of the land claimants – to obtain recognition of property claims and land belonging – is infused by conflicts external and internal to the community of claimants.

Pricing catastrophe risk bonds: A mixed approximation method

This paper presents a contingent claim model similar to the one described by Lee and Yu (2002) for pricing catastrophe risk bonds. First, we derive a bond pricing formula in a stochastic interest rates environment with the losses following a compound nonhomogeneous Poisson process. Furthermore, we estimate and calibrate the parameters of the pricing model using the catastrophe loss data provided by Property Claim Services (PCS) from 1985 to 2010. As no closed-form solution can be obtained, we propose a mixed approximation method to find the numerical solution for the price of catastrophe risk bonds. Finally, numerical experiments demonstrate how financial risks and catastrophic risks affect the prices of catastrophe bonds.

Who Owns 'Us'? Property Claims on Human Tissue from Moore to Myriad

Who Owns 'Us'? Property Claims on Human Tissue from Moore to Myriad

Laboratory Specimens and Genetic Privacy: Evolution of Legal Theory

Although laboratory specimens are an important resource for biomedical research, controversy has arisen when research has been conducted without the knowledge or consent of the individuals who were the source of the specimens. This paper summarizes the most important litigation regarding the research use of laboratory specimens and traces the evolution of legal theory from property claims to claims related to genetic privacy interests.

Working-Class Conservationism in New York: Governor Alfred E. Smith and “The Property of the People of the State”

In New York in the 1920s, Gov. Alfred E. Smith—an archetypically urban machine politician—led a series of conservationist crusades in which he dismissed the claims of private property and antagonized powerful corporations. Propelled by the enthusiastic support of urban ethnic voters and armed with a notorious mastery of political rhetoric, Smith aggressively expounded a working-class conservationism, pursuing equal access to the benefits of his state's natural blessings for citizens of every background. Indeed, the progressive Smith went as far as to demand what I describe as a “redistribution of environmental wealth.” Smith's career illustrates the conservation program of a leading urban progressive and prominent national figure who promoted a vigorous, state-centered conservation platform in the interwar period.

Thorner v Major and others [2009] 1 WLR 776

PROPRIETARY ESTOPPEL: A NEW CHAPTER DAWNS?The decision of the Court of Appeal in Thorner v Major1 briefly constructed an almost impossible strait-jacket around potential claimants under proprietary estoppel, reminiscent of the way the strict requirements under the Willmot v Barber2 probanda had earlier limited such claims3. The Court of Appeal held in Thorner v Major4 that an assurance of rights had to be clear and unequivocal in order to give rise to property rights and on the facts of this case the assurances had been too vague to give rise to such rights. In an area of law based on informality and often vague promises it appeared that the law was now in retrenchment and was reasserting the need for very strict limitations on the circumstances in which property claims under proprietary estoppel could arise.

"Nations Will Not Survive Without Their Cultural Heritage" Karol Estreicher, Polish Cultural Restitution Plans and the Recovery of Polish Cultural Property from the American Zone of Occupation

Abstract As the war and Nazi occupation intensified, the registration of cultural losses became a considerable component of salvage efforts and laid the foundation for postwar restitution of Polish movable cultural property. Cultural losses registration was a coordinated effort by the Polish government-in-exile in London and the Polish underground government in Nazi-occupied Poland. It involved hundreds if not thousands of curators, art scholars, librarians, university professors and students, museum employees, and couriers. Nevertheless, one individual emerged as the leader of Poland’s efforts to publicize its cultural losses and lobby for the return of Polish cultural property looted by the Nazis. Passionate about Poland’s cultural assets, Karol Estreicher, an art historian and bibliographer from the Jagiellonian University in Kraków, would not rest until Poland had recovered its most important treasures, including the Veit Stoss (Wit Stwosz) altarpiece from St. Mary’s Church in Kraków. The article examines Polish cultural losses registration and plans for the restitution of cultural property and compensation for Poland’s cultural losses. Polish restitution efforts in the American occupation zone are discussed in the context of American cultural restitution and reparations policy as formulated by the Roberts Commission and the U.S. State Department. Finally, the question of using cultural assets as war reparations is examined with respect to Polish plans for reparation claims of German cultural property.

Human Work in Catholic Social Thought

In Catholic Social Thought, work is at the center of issues related to morality and economic life. It is simultaneously objective and subjective. Workers are the real agents of production, and therefore labor should have priority over capital. The able-bodied have a moral obligation to work to obtain the things they need, but everyone has a claim on the basic necessities of life. Hence the property claims of the well-to-do are not to exclude the poor from what they need. The property-right claim of stockholders depends on the firm serving work and the interests of workers. In unions, workers' natural right to form associations aligns with the right to participate in decisions affecting their lives. Numerous groups and organizations have some degree of complicity in workplace injustice and some degree of responsibility to address it.

Comparative Study of RKC and GCM Mode of Operation

In the race of designing an efficient ‘Authenticated Encryption (AE) mode of operation’ several efforts have been done over past few years. In practical, when we have to send any data, we also need integrity and authentication along with the encrypted message. These requirements in real world prioritize Authenticated Encryption, in spite of using encryption and authentication schemes separately. In an AE scheme the parts responsible for authentication and privacy are tightly coupled so that they can work efficiently. The other reason for using AE scheme is that an AE scheme is less likely to be used incorrectly than the combination of two different schemes. In this paper comparative study of two prominent Authenticated Encryption modes (RKC and GCM) is done that are free from any intellectual property claims. General Terms Security, Authenticated Encryption modes.

Stigma Damages and Diminution of Property Claims in Environmental Class Actions

One of the less documented effects of the 2008 U.S. housing collapse has been the rise in lawsuits seeking to recover damages for diminution of value and stigma to property. Many of these suits involve properties with little to no actual “diminished” value and simply look to collect on homes that are “underwater” or less valuable due to the depressed market, unrelated to perceived, alleged environmental conditions. While some of these claims have come in the form of condemnation, lost rent, and lost rental opportunity actions, this article focuses on a particularly dangerous variety: local and regional class actions based on actual or threatened environmental contamination. The article notes that these mass attacks pose an especially high threat of costly litigation and unjust outcomes for defendants and recommends strategies for effectively defending them in precertification discovery. The article also undertakes an elemental analysis of federal class certification requirements and explores the recoverability of environmental stigma damages.

Local Power Structures and Their Effect on Forest Land Allocation in the Buffer Zone of Tam Dao National Park, Vietnam

This article examines how household property claims over forest land used for economic production were established in communes bordering Tam Dao National Park in northern Vietnam under the decentralized implementation of forest land allocation policies. Using data from surveys of households living on the edge of Tam Dao National Park, this study examines “who got what” when household access to forest land used for production was established. This demonstrates the community interests that constitute the local power structures affecting distribution of access to forest land. In this case, household access to forest land used for production is determined greatly through entrepreneurial and institutional factors. If decentralized forest land allocation policies have any hope of circumscribing land use so that it corresponds to the uses laid out in land use plans, we must first understand how local power structures affect household access to forest land.

After Change of Position: Good Faith Exchange in the Modern Law of Restitution

This chapter models the defence of bona fide purchase as it exists in the modern law of restitution in the wake of the recognition of the defence of change of position in English law. It counters suggestions that the latter defence has rendered the former redundant and suggest a new way of understanding it that severs the defence from its traditional association with title-based property claims. It posits the following conclusions: First, the defence still has a place in the modern law of restitution, though its principal function is different to that of change of position. Whereas the latter aims to protect recipients against individual injustices stemming from actual or potential losses caused by their receipt, the former deploys a broad policy of transactional security in exchange dealings, with the primary (economic) objective of facilitating the free transfer of wealth. Second, the defence logically applies in those cases in which a defendant has received a benefit under a contract with a third party (one other than the plaintiff). Where a defendant enters an exchange transaction with the plaintiff himself (or one acting as agent for the plaintiff), the requisite guarantees of transactional security are provided by the law of contract; in particular by the principle of contract law known as the 'objective principle.' Although the good faith of the defendant is relevant in these cases, the defence of bona fide purchase has no part to play. Third, the defence is legitimately to be regarded as a defense, with the onus on the defendant to prove both that value has been given and that it was given in good faith, without notice of the plaintiff's rights. Discussions about the defendant's 'knowledge' of the plaintiff's rights in three-party cases must, on this basis, be shifted squarely within the parameters of the defence debate. Fourth, the defence must be available both in the law of property and in the law of restitution. Finally, following on from this, the defence must be available in both personal and proprietary claims and the conditions for its operation of the defence should be the same in either case. One important, potential consequence of this analysis is that the availability of the defence in the law of restitution should not depend, as it currently does, on a recipient having actually executed an exchange for benefits it has received from the third party. Logically speaking, it should be sufficient that it has contracted for those benefits in good faith. The current insistence on executed exchange can be seen, on this approach, to give too little protection to the security of receipts in commercial transactions.