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Working paper
The Dilemma of Localism in an Era of Polarization
In: Yale Law Journal, Band 128, Heft 4
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Affordable Housing Law and Policy in an Era of Big Data
In: Fordham Urban Law Journal, Band 44, Heft 277
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Resetting the Baseline of Ownership: Takings and Investor Expectations After the Bailouts
In: Maryland Law Review, Band 75, Heft 722
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Nationalization and Necessity: Takings and a Doctrine of Economic Emergency
In: 3 Brigham-Kanner Property Rights Conf. J. 187 (2014)
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A Most Useful Ball of Thread
In: Journal of Affordable Housing & Community Development, Band 21, S. 285
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What is Urban Law Today? An Introductory Essay in Honor of the Fortieth Anniversary of the Fordham Urban Law Journal
In: Fordham Urban Law Journal, Band 41, Heft 1579
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New Formalism in the Aftermath of the Housing Crisis
In: Boston University Law Review, Band 93, Heft 389
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Sketches for a Hamiltonian Vernacular as a Social Function of Property
In: Fordham Law Review, Band 80, Heft 101
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Vertical Learning: On Baker and Rodriguez's 'Constitutional Home Rule and Judicial Scrutiny
In: Denver University Law Review, Band 86, Heft 1425
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Standardization and Pluralism in Property Law
At the heart of contemporary property theory stands an intriguing puzzle. Unlike the relatively unconstrained freedom that contract law provides for private ordering, property law recognizes only a limited and standard list of mandatory forms. This standardization-known as the numerus clausus from the civil law concept that the "number is closed"-poses a basic conundrum: what can explain a persistent feature of the law that seems, at first glance, so clearly to restrict the autonomy and efficiency gains conventionally associated with private property? This puzzle has garnered significant scholarly attention in recent years. Some scholars have argued that standardization, although paternalistic, in fact enhances efficiency. These accounts emphasize the potential of standardization to facilitate alienation, scale property interests appropriately for productive use, and reduce information-cost externalities. Another group of scholars has argued that the numerus clausus embodies inherent categories of meaning. Under these perspectives, the numerus clausus reflects the normative coherence of existing social patterns, the objective well-being of interest holders, or underlying democratic values. Although these attempts to explain standardization in property law offer significant insights, they suffer from two interlocking limitations. Efficiency perspectives focus on the meta-structure of standardization, largely ignoring what the rich and interesting content of the individual forms reveals about the phenomenon. Conversely, approaches to standardization that focus on content have much to say about that substance, but essentially shunt aside persistent structural aspects of the phenomenon. Any comprehensive theory must thus account for what these attempts to explain standardization leave out-that structure and content together are important to unraveling the problem of the numerus clausus. To begin with structure, standardization is a feature of property law that transcends context. Versions of the numerus clausus are ...
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Relational Contracts in the Privatization of Social Welfare: The Case of Housing
In: Yale law & [and] policy review, Band 24, Heft 2, S. 263-316
ISSN: 0740-8048