BEN MCFARLANE, University of Oxford - Faculty of Law
Email: ben.mcfarlane@law.ox.ac.uk
ANDREW ROBERTSON, University of Melbourne - Law School
Email: a.robertson@unimelb.edu.au

This note considers the decision of the House of Lords in Thorner v Major [2009] UKHL 18. It considers its effect on the doctrine of proprietary estoppel and its treatment of the earlier House of Lords decision in Yeoman’s Row Management Ltd v Cobbe. It welcomes the fact that the Thorner decision involves a withdrawal, by the majority of the House of Lords, from the strict positions adopted by each of Lord Scott and Lord Walker in the earlier case. The note considers how proprietary estoppel will operate in the future, particularly in cases where one party relies on another’s commitment to give that party a right in the future.

DONALD PALMER, University of California, Davis - Graduate School of Management
Email: dapalmer@ucdavis.edu
MICHAEL W. MAHER, University of California, Davis - Graduate School of Management
Email: mwmaher@ucdavis.edu

We argue that the mortgage meltdown can be considered a “normal accident�. Our analysis suggests that the mortgage industry’s complex and tightly coupled technology made it vulnerable to failure, irrespective of the level of greed and fraudulent behavior exhibited by mortgage industry executives. Our normal accident analysis also suggests that insufficient regulatory oversight contributed to the debacle. But our analysis suggests that simply increasing the amount of regulation over the mortgage industry is unlikely to reduce its susceptibility to failure. Indeed, if inappropriately designed, increasing the amount of regulation could increase the likelihood of future failure.

AMNON LEHAVI, Interdisciplinary Center Herzliyah - Radzyner School of Law
Email: alehavi@idc.ac.il

Takings jurisprudence is engaged in a constant paradox. It is conventionally portrayed as chaotic and “muddy,� and yet attempts by the judiciary to create some sense of order in it by delineating this field into distinctive categories that apply to each a different set of rules are often criticized as analytically incoherent or normatively indefensible.

This Essay offers an innovative approach to the taxonomic enterprise in takings law, by examining what is probably its starkest and most entrenched division: that between taking and taxing. American courts have been nearly unanimous in refusing to scrutinize the power to tax, viewing this form of government action as falling outside the scope of the Takings Clause. Critics have argued that the presence of government coercion, loss of private value, and potential imbalances in burden sharing mandate that the two instances be conceptually synchronized and subject to similar doctrinal tests.

The main thesis of the Essay is that this dichotomy, and other types of legal line-drawing in property, should be assessed not on the basis of a “pointblank� analysis of allegedly-comparable specific instances, but rather on a broader view of the foundational principles of American property law and of the way in which takings taxonomies mesh with the broader social and jurisprudential understanding of what “property� is.

Identifying American property law as conforming to two fundamental principles-formalism of rights and strong market propensity-but at the same time as devoid of a constitutional undertaking to protect privately-held value against potential losses as a self-standing “strand� in the property bundle, the Essay explains why prevailing forms of taxation do seem to be disparate from other forms of governmental interventions with private property. Focusing attention on property taxation, the Essay shows why taxation is considered a “lesser evil� type of government coercion, how the taking/taxing dichotomy better addresses the public-private interplay in property law, and why taxation is often viewed as actually empowering property rights and private control of assets.

JOSHUA C. TATE, Southern Methodist University (SMU) - Dedman School of Law
Email: jctate@smu.edu

In recent years, scholars have given much attention to the problem of charitable trust enforcement. Departing from the common law, section 405(c) of the Uniform Trust Code provides that “[t]he settlor of a charitable trust, among others, may maintain a proceeding to enforce the trust.� This Article addresses the question of whether, and to what extent, a settlor’s right to enforce a charitable trust should be assignable to third parties. Should the law permit the settlor of a charitable trust to assign her enforcement rights after the creation of the trust, or should assignments be recognized only if they are spelled out in the trust instrument? How many potential assignees may the settlor properly select? Once the right has been assigned to a third party, should that third party also retain the right of assignment, so that the right can potentially be passed from one individual to the next in perpetuity? What would be the ramifications of granting a right of assignment to the settlor’s personal representative? Any resolution of these issues must protect the interests of charitable beneficiaries, but also be fair to trustees and not overwhelm the courts with frivolous litigation.