Jonnette Watson Hamilton and Nigel Bankes
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199579853
- eISBN:
- 9780191722745
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579853.003.0002
- Subject:
- Law, Public International Law, Environmental and Energy Law
This chapter reviews property law theory and its literature that aims to show how developments in general property theory may be relevant for energy and natural resources. It focuses on liberal ...
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This chapter reviews property law theory and its literature that aims to show how developments in general property theory may be relevant for energy and natural resources. It focuses on liberal Western understandings of property, and primarily those within the common law tradition. The chapter is organized as follows. Section I takes a broad look at the literature addressing the question of ‘what is property?’ and the issues raised by that question. It discusses a number of conceptualist and instrumentalist approaches to the matter of definition, looks briefly at the issue of commodification, and examines the literature on the categories of property. It concludes with a consideration of the numerous clauses principle. Section II addresses the problem of justifying property, or at least private property. It outlines the various explanations, dividing them into four types: the labour, desert, first possession (or occupation), and economic theories; personhood theories; liberty-based theories; and pluralist theories. It then looks at explanations for the movement of property from one category to another. The section concludes with a study of the justifications for (private) property as applied to the issue of expropriation.Less
This chapter reviews property law theory and its literature that aims to show how developments in general property theory may be relevant for energy and natural resources. It focuses on liberal Western understandings of property, and primarily those within the common law tradition. The chapter is organized as follows. Section I takes a broad look at the literature addressing the question of ‘what is property?’ and the issues raised by that question. It discusses a number of conceptualist and instrumentalist approaches to the matter of definition, looks briefly at the issue of commodification, and examines the literature on the categories of property. It concludes with a consideration of the numerous clauses principle. Section II addresses the problem of justifying property, or at least private property. It outlines the various explanations, dividing them into four types: the labour, desert, first possession (or occupation), and economic theories; personhood theories; liberty-based theories; and pluralist theories. It then looks at explanations for the movement of property from one category to another. The section concludes with a study of the justifications for (private) property as applied to the issue of expropriation.
Brett M. Frischmann
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199895656
- eISBN:
- 9780199933280
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199895656.003.0013
- Subject:
- Law, Environmental and Energy Law
This chapter explores how infrastructure theory applies to cultural-intellectual resources and delineates a class of infrastructure referred to as intellectual infrastructure. It is organized into ...
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This chapter explores how infrastructure theory applies to cultural-intellectual resources and delineates a class of infrastructure referred to as intellectual infrastructure. It is organized into four sections. It begins in Section A with the idea of the cultural environment as infrastructure. Section B describes the economic characteristics of intellectual resources. Section C focuses on applying the infrastructure criteria to delineate intellectual infrastructure. Section D considers intellectual property laws. It examines intellectual property laws as a semi-commons regime and compares it to the regulatory semi-commons discussed in the previous chapter.Less
This chapter explores how infrastructure theory applies to cultural-intellectual resources and delineates a class of infrastructure referred to as intellectual infrastructure. It is organized into four sections. It begins in Section A with the idea of the cultural environment as infrastructure. Section B describes the economic characteristics of intellectual resources. Section C focuses on applying the infrastructure criteria to delineate intellectual infrastructure. Section D considers intellectual property laws. It examines intellectual property laws as a semi-commons regime and compares it to the regulatory semi-commons discussed in the previous chapter.
Barry Barton
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199579853
- eISBN:
- 9780191722745
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579853.003.0004
- Subject:
- Law, Public International Law, Environmental and Energy Law
Common law jurisdictions do not appear to have a generally accepted body of law for ascertaining whether the attributes of property ownership attach to permits granted under statutes. This chapter ...
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Common law jurisdictions do not appear to have a generally accepted body of law for ascertaining whether the attributes of property ownership attach to permits granted under statutes. This chapter inquires into the way that different courts — mainly those of Australia, Canada, England, and New Zealand — have approached the matter, and into the way that we may expect the interaction between legislatures and courts in common law jurisdictions to proceed in the future. It is shown that the case law is not producing any consistent body of doctrine by which to determine whether a statutory resource permit has a proprietary character to it, or whether property law ideas can properly be used to construe it. The legislature often pays little attention to such matters; often its general pronouncements fail to deal with the diversity of disputes that parties bring to the courts. Given this legislative track record, it is interesting to discover that the courts are often reluctant to be entirely bound by the legislature's expressions of intention.Less
Common law jurisdictions do not appear to have a generally accepted body of law for ascertaining whether the attributes of property ownership attach to permits granted under statutes. This chapter inquires into the way that different courts — mainly those of Australia, Canada, England, and New Zealand — have approached the matter, and into the way that we may expect the interaction between legislatures and courts in common law jurisdictions to proceed in the future. It is shown that the case law is not producing any consistent body of doctrine by which to determine whether a statutory resource permit has a proprietary character to it, or whether property law ideas can properly be used to construe it. The legislature often pays little attention to such matters; often its general pronouncements fail to deal with the diversity of disputes that parties bring to the courts. Given this legislative track record, it is interesting to discover that the courts are often reluctant to be entirely bound by the legislature's expressions of intention.
Stuart Anderson
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258826
- eISBN:
- 9780191705168
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258826.003.0002
- Subject:
- Law, Legal History
This chapter focuses on lawyers' law reform: the Real Property Commissioners, their vision and, indirectly, their description of what real property meant and encompassed. Topics discussed include ...
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This chapter focuses on lawyers' law reform: the Real Property Commissioners, their vision and, indirectly, their description of what real property meant and encompassed. Topics discussed include Competing Visions of Real Property Reform in the 1820s, the methods and objectives of the Real Property Commission, and the registration of deeds.Less
This chapter focuses on lawyers' law reform: the Real Property Commissioners, their vision and, indirectly, their description of what real property meant and encompassed. Topics discussed include Competing Visions of Real Property Reform in the 1820s, the methods and objectives of the Real Property Commission, and the registration of deeds.
Anthony Scott
- Published in print:
- 2008
- Published Online:
- May 2008
- ISBN:
- 9780198286035
- eISBN:
- 9780191718410
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198286035.003.0001
- Subject:
- Economics and Finance, Development, Growth, and Environmental
This opening chapter explains how the ‘completeness’ of a property right is measured by the extent to which it has all of six ‘characteristics’. These are exclusivity, duration, flexibility, quality ...
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This opening chapter explains how the ‘completeness’ of a property right is measured by the extent to which it has all of six ‘characteristics’. These are exclusivity, duration, flexibility, quality of title, transferability, and divisibility. Each set of chapters, dealing with rights over a particular resource: water, fisheries, minerals, or forest, examines the amount and types of characteristic with which its rights are equipped. Rights are distinguished from the ‘powers’. The chapter presents ‘demand’ and ‘supply’ for characteristics as holders interact. ‘Demand’ has flowed from owners who in the course of disputes have found their rights' characteristics to be inadequate. The chapter examines sources of ‘supply’ in detail: the courts — hearing cases in property, tort or contract law; government — legislating rights and taxes directly or making rules for public-land disposal; manorial custom; and military invasion.Less
This opening chapter explains how the ‘completeness’ of a property right is measured by the extent to which it has all of six ‘characteristics’. These are exclusivity, duration, flexibility, quality of title, transferability, and divisibility. Each set of chapters, dealing with rights over a particular resource: water, fisheries, minerals, or forest, examines the amount and types of characteristic with which its rights are equipped. Rights are distinguished from the ‘powers’. The chapter presents ‘demand’ and ‘supply’ for characteristics as holders interact. ‘Demand’ has flowed from owners who in the course of disputes have found their rights' characteristics to be inadequate. The chapter examines sources of ‘supply’ in detail: the courts — hearing cases in property, tort or contract law; government — legislating rights and taxes directly or making rules for public-land disposal; manorial custom; and military invasion.
Mark A. Hall and Kevin A. Schulman
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195390131
- eISBN:
- 9780199775934
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195390131.003.008
- Subject:
- Law, Medical Law
Who owns a patient's medical information? The patient, the provider, or the insurer? All of the above? None of the above? In the emerging era of electronic medical records, no legal question is more ...
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Who owns a patient's medical information? The patient, the provider, or the insurer? All of the above? None of the above? In the emerging era of electronic medical records, no legal question is more critical, more contested, or more poorly understood. Ownership was never much in doubt in an age of paper-based records, but now that information can be easily digitized and freed from any particular storage medium, confusion reigns. How this issue is resolved can determine how or whether massive anticipated developments in electronic health records will take shape. The respective property rights of patients, providers, and insurers will strongly influence, if not determine, what form of electronic health-record interchange will predominate. And, whether rights to access and use of medical information can be commercialized may determine whether effective, comprehensive medical information networks can emerge at all in the absence of an overt government mandate. This chapter analyzes property rights in medical information from the perspective of network economics. It proposes that patients be allowed to monetize their access and control rights by assigning them to a trusted and regulated intermediary who may then place those rights in a stream of commerce that determines their value and best use. The funds generated can then be distributed both to patients and providers in order to encourage their creation and use of interconnected electronic records.Less
Who owns a patient's medical information? The patient, the provider, or the insurer? All of the above? None of the above? In the emerging era of electronic medical records, no legal question is more critical, more contested, or more poorly understood. Ownership was never much in doubt in an age of paper-based records, but now that information can be easily digitized and freed from any particular storage medium, confusion reigns. How this issue is resolved can determine how or whether massive anticipated developments in electronic health records will take shape. The respective property rights of patients, providers, and insurers will strongly influence, if not determine, what form of electronic health-record interchange will predominate. And, whether rights to access and use of medical information can be commercialized may determine whether effective, comprehensive medical information networks can emerge at all in the absence of an overt government mandate. This chapter analyzes property rights in medical information from the perspective of network economics. It proposes that patients be allowed to monetize their access and control rights by assigning them to a trusted and regulated intermediary who may then place those rights in a stream of commerce that determines their value and best use. The funds generated can then be distributed both to patients and providers in order to encourage their creation and use of interconnected electronic records.
Aileen McHarg, Barry Barton, Adrian Bradbrook, and Lee Godden
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199579853
- eISBN:
- 9780191722745
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579853.003.0001
- Subject:
- Law, Public International Law, Environmental and Energy Law
This chapter discusses the various themes addressed in this book, which explores questions of the relationship between property law and energy and natural resources in a wide range of national as ...
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This chapter discusses the various themes addressed in this book, which explores questions of the relationship between property law and energy and natural resources in a wide range of national as well as supra-national and international legal settings. The collection captures different views about the role that property plays in diverse energy and resource contexts: in civil law and common law systems; in market rules; in the law of customary and indigenous communities; and in public law and private law. It includes discussion of private rights and common property situations; and of competition for land use and resources.Less
This chapter discusses the various themes addressed in this book, which explores questions of the relationship between property law and energy and natural resources in a wide range of national as well as supra-national and international legal settings. The collection captures different views about the role that property plays in diverse energy and resource contexts: in civil law and common law systems; in market rules; in the law of customary and indigenous communities; and in public law and private law. It includes discussion of private rights and common property situations; and of competition for land use and resources.
Stuart Anderson
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258826
- eISBN:
- 9780191705168
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258826.003.0005
- Subject:
- Law, Legal History
This chapter discusses assimilation, conveyancing, and land transfer in the 19th century. Assimilating the law of real property to that of personalty was a common theme among reformers during the ...
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This chapter discusses assimilation, conveyancing, and land transfer in the 19th century. Assimilating the law of real property to that of personalty was a common theme among reformers during the 19th century, but, as Maitland pointed out, it was ‘the one steady tendency of our law’ for centuries past, nothing new. What was new was a feeling that the process was near its end. It became feasible to propose without risking ridicule that the concept of the law of real property should be abolished, or that freeholds be converted to million-year leaseholds — so that real property law would no longer have anything to attach to — or, tamely in comparison, that a new land law be drafted that would take its features from the ways in which transactions concerning personalty were commonly constructed. Removal of land's privileges was also a major cry in 19th-century politics, one that had its counterpart in more mundane law reform.Less
This chapter discusses assimilation, conveyancing, and land transfer in the 19th century. Assimilating the law of real property to that of personalty was a common theme among reformers during the 19th century, but, as Maitland pointed out, it was ‘the one steady tendency of our law’ for centuries past, nothing new. What was new was a feeling that the process was near its end. It became feasible to propose without risking ridicule that the concept of the law of real property should be abolished, or that freeholds be converted to million-year leaseholds — so that real property law would no longer have anything to attach to — or, tamely in comparison, that a new land law be drafted that would take its features from the ways in which transactions concerning personalty were commonly constructed. Removal of land's privileges was also a major cry in 19th-century politics, one that had its counterpart in more mundane law reform.
Catherine Redgwell
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199579853
- eISBN:
- 9780191722745
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579853.003.0005
- Subject:
- Law, Public International Law, Environmental and Energy Law
This chapter explores property rights protection at international law, while also considering the relationship of ‘ownership’, sovereignty, and sovereign rights of states over their energy and ...
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This chapter explores property rights protection at international law, while also considering the relationship of ‘ownership’, sovereignty, and sovereign rights of states over their energy and natural resources at international law, both within and beyond national jurisdiction, where international regimes of ownership and property rights may be applicable.Less
This chapter explores property rights protection at international law, while also considering the relationship of ‘ownership’, sovereignty, and sovereign rights of states over their energy and natural resources at international law, both within and beyond national jurisdiction, where international regimes of ownership and property rights may be applicable.
Zohar Efroni
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199734078
- eISBN:
- 9780199866137
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199734078.003.0003
- Subject:
- Law, Public International Law
Two principal missions underlay the discussion in this chapter. First, it scrutinizes the notion of “access to information” and translates it into a vocabulary that property law can process and ...
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Two principal missions underlay the discussion in this chapter. First, it scrutinizes the notion of “access to information” and translates it into a vocabulary that property law can process and analyze. Second, the analysis explored three main routes as potential legal sources to rights-of-access: copyright law, free speech law, and human rights law. It concludes that positive copyright law itself does not provide a solid and sufficiently explicit basis for such rights. Also the remaining routes have proven to a large extent unable to safeguard rights-of-access, especially when the information at issue is subject to copyright exclusivity.Less
Two principal missions underlay the discussion in this chapter. First, it scrutinizes the notion of “access to information” and translates it into a vocabulary that property law can process and analyze. Second, the analysis explored three main routes as potential legal sources to rights-of-access: copyright law, free speech law, and human rights law. It concludes that positive copyright law itself does not provide a solid and sufficiently explicit basis for such rights. Also the remaining routes have proven to a large extent unable to safeguard rights-of-access, especially when the information at issue is subject to copyright exclusivity.
Adrian Bradbrook
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199579853
- eISBN:
- 9780191722745
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579853.003.0019
- Subject:
- Law, Public International Law, Environmental and Energy Law
This chapter suggests that while the major role for promoting sustainable energy development undoubtedly rests with the legislature, the courts have the capacity to play a significant supporting role ...
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This chapter suggests that while the major role for promoting sustainable energy development undoubtedly rests with the legislature, the courts have the capacity to play a significant supporting role in this regard. It considers the options available to the courts in common law jurisdictions to influence and modify real property law so as to take full account of the societal need to advance the goal of sustainable energy development. It also examines the elements of sustainable energy development, explores the extent to which the law of real property is relevant to sustainable energy, and then considers the range of legal solutions available to the courts to achieve this goal.Less
This chapter suggests that while the major role for promoting sustainable energy development undoubtedly rests with the legislature, the courts have the capacity to play a significant supporting role in this regard. It considers the options available to the courts in common law jurisdictions to influence and modify real property law so as to take full account of the societal need to advance the goal of sustainable energy development. It also examines the elements of sustainable energy development, explores the extent to which the law of real property is relevant to sustainable energy, and then considers the range of legal solutions available to the courts to achieve this goal.
Gerhard Dannemann
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199533114
- eISBN:
- 9780191705526
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199533114.003.0007
- Subject:
- Law, Comparative Law, Law of Obligations
This chapter presents an overview of issues of concurrent liability. Topics covered include concurrent liability within unjustified enrichment, unjustified enrichment and contract law, unjustified ...
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This chapter presents an overview of issues of concurrent liability. Topics covered include concurrent liability within unjustified enrichment, unjustified enrichment and contract law, unjustified enrichment and negotiorum gestioun, justified enrichment and tort law, and unjustified enrichment and property law.Less
This chapter presents an overview of issues of concurrent liability. Topics covered include concurrent liability within unjustified enrichment, unjustified enrichment and contract law, unjustified enrichment and negotiorum gestioun, justified enrichment and tort law, and unjustified enrichment and property law.
Iñigo del Guayo, Gunther Kühne, and Martha Roggenkamp
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199579853
- eISBN:
- 9780191722745
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579853.003.0017
- Subject:
- Law, Public International Law, Environmental and Energy Law
On 19 September 2007, the European Commission (EC) proposed a number of amendments to the existing EU energy legislation, including a further step in the gradual introduction of unbundling of energy ...
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On 19 September 2007, the European Commission (EC) proposed a number of amendments to the existing EU energy legislation, including a further step in the gradual introduction of unbundling of energy activities, the so-called ownership unbundling: electricity and gas companies involved in both network (transport and/or distribution) and commercial (supply and/or production) activities, legally would no longer be allowed to be engaged in those two types of energy activities, and consequently such organizations would be asked to divest ownership in one or both activities. On 22 April 2009, the European Parliament adopted a resolution on the common position of the Council, whereby a new unbundling option was given to member states, together with the two options originally envisaged by the EC's proposal. Two months later, on 25 June 2009, the European Council adopted the new rules on the Internal Energy Market (IEM). The new Electricity and Gas Directives were published in the Official Journal of the EU on 14 August 2009 and entered into force 20 days after their publication. Member states are required to implement these directives in national law within 18 months after entry into force, with the exception of the rules on unbundling. This chapter assesses how the provision of ownership unbundling when (and if) adopted by any of the member states, will affect the property rights of gas and electricity network owners.Less
On 19 September 2007, the European Commission (EC) proposed a number of amendments to the existing EU energy legislation, including a further step in the gradual introduction of unbundling of energy activities, the so-called ownership unbundling: electricity and gas companies involved in both network (transport and/or distribution) and commercial (supply and/or production) activities, legally would no longer be allowed to be engaged in those two types of energy activities, and consequently such organizations would be asked to divest ownership in one or both activities. On 22 April 2009, the European Parliament adopted a resolution on the common position of the Council, whereby a new unbundling option was given to member states, together with the two options originally envisaged by the EC's proposal. Two months later, on 25 June 2009, the European Council adopted the new rules on the Internal Energy Market (IEM). The new Electricity and Gas Directives were published in the Official Journal of the EU on 14 August 2009 and entered into force 20 days after their publication. Member states are required to implement these directives in national law within 18 months after entry into force, with the exception of the rules on unbundling. This chapter assesses how the provision of ownership unbundling when (and if) adopted by any of the member states, will affect the property rights of gas and electricity network owners.
William G. Wagner
- Published in print:
- 1994
- Published Online:
- October 2011
- ISBN:
- 9780198204473
- eISBN:
- 9780191676291
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198204473.003.0010
- Subject:
- History, European Modern History
This chapter looks at how the high court redefined property and inheritance law based on social and economic needs, with a wider range of revision compared with those for the family law. The high ...
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This chapter looks at how the high court redefined property and inheritance law based on social and economic needs, with a wider range of revision compared with those for the family law. The high court geared toward limiting patrimonial property by giving owners more options on disposing patrimonial property, rather than by a complete abolition within the kin-group. A move to define the attributes of testamentary power is also described.Less
This chapter looks at how the high court redefined property and inheritance law based on social and economic needs, with a wider range of revision compared with those for the family law. The high court geared toward limiting patrimonial property by giving owners more options on disposing patrimonial property, rather than by a complete abolition within the kin-group. A move to define the attributes of testamentary power is also described.
Jonathan Burnside
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199759217
- eISBN:
- 9780199827084
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199759217.003.0006
- Subject:
- Law, Public International Law
This chapter shows how a biblical ideology of divine ownership affects the practice of land tenure and land use. The close connections in biblical Israel between people, land, and narrative means ...
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This chapter shows how a biblical ideology of divine ownership affects the practice of land tenure and land use. The close connections in biblical Israel between people, land, and narrative means that the biblical law of property is dynamic, not least in the area of inheritance. This raises questions about the different sources of law in the Bible, including customary law, divine revelation, and the relationship between them. There is a complex interaction between the narrative of Genesis and Exodus (including creation, the Joseph story and the Exodus) and the various sabbatical laws. These include the weekly Sabbath, sabbatical year, and jubilee years which together form a “spectrum of Sabbaths” of increasing intensity. Israel's use of the “Promised Land” repeatedly presents her with the choice of whether she will serve the ancestral god of the ancestral lands. The laws, too, present a basic choice between Pharaonic economics(amassing land) and family economics (restoring land).Less
This chapter shows how a biblical ideology of divine ownership affects the practice of land tenure and land use. The close connections in biblical Israel between people, land, and narrative means that the biblical law of property is dynamic, not least in the area of inheritance. This raises questions about the different sources of law in the Bible, including customary law, divine revelation, and the relationship between them. There is a complex interaction between the narrative of Genesis and Exodus (including creation, the Joseph story and the Exodus) and the various sabbatical laws. These include the weekly Sabbath, sabbatical year, and jubilee years which together form a “spectrum of Sabbaths” of increasing intensity. Israel's use of the “Promised Land” repeatedly presents her with the choice of whether she will serve the ancestral god of the ancestral lands. The laws, too, present a basic choice between Pharaonic economics(amassing land) and family economics (restoring land).
Hanoch Dagan
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199737864
- eISBN:
- 9780199894994
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199737864.001.0001
- Subject:
- Law, Constitutional and Administrative Law
Property law and property theory have become a thriving industry in the legal academy rendering some exciting conceptual and normative challenges. This book covers numerous property issues to provide ...
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Property law and property theory have become a thriving industry in the legal academy rendering some exciting conceptual and normative challenges. This book covers numerous property issues to provide a liberal theory of property. It analyzes the interactions between landowners and governments (both eminent domain and regulatory takings) and those regulating the governance of property owned by multiple individuals (such as co-ownership, marital property, and the law of common interest communities). This book puts emphasis on groups and it also attempts to look at property law from a broad institutional perspective to show that property law serves as the foundation for the organization of various types of groups and communities. The three parts analyzed in this book, property, state, and community are inter-connected. The book views property as an important legal regime intended to protect important individualistic values such as autonomy, personhood, and desert, and a shield for private individuals against the power of both the state and the community. It also views property as a major instrument in the pursuit of other worthy goals of the liberal state, such as aggregate welfare, social responsibility, and distributive justice.Less
Property law and property theory have become a thriving industry in the legal academy rendering some exciting conceptual and normative challenges. This book covers numerous property issues to provide a liberal theory of property. It analyzes the interactions between landowners and governments (both eminent domain and regulatory takings) and those regulating the governance of property owned by multiple individuals (such as co-ownership, marital property, and the law of common interest communities). This book puts emphasis on groups and it also attempts to look at property law from a broad institutional perspective to show that property law serves as the foundation for the organization of various types of groups and communities. The three parts analyzed in this book, property, state, and community are inter-connected. The book views property as an important legal regime intended to protect important individualistic values such as autonomy, personhood, and desert, and a shield for private individuals against the power of both the state and the community. It also views property as a major instrument in the pursuit of other worthy goals of the liberal state, such as aggregate welfare, social responsibility, and distributive justice.
Terence Daintith
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199579853
- eISBN:
- 9780191722745
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579853.003.0007
- Subject:
- Law, Public International Law, Environmental and Energy Law
This chapter analyses the rule of capture as applied to oil and gas. The rule states that oil and gas become the property of the owner of the land on which they are recovered by lawful drilling or ...
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This chapter analyses the rule of capture as applied to oil and gas. The rule states that oil and gas become the property of the owner of the land on which they are recovered by lawful drilling or other operations, regardless of whether they might have migrated from their original position under the land of another. Capture remains today the property right principle on which the structure of United States oil and gas law and regulation has been erected. The chapter addresses the following questions: Why was such an inefficient rule adopted in the first place? Why, once adopted, did it remain in place in the United States, despite the major difficulties it was perceived to create, and when other countries were succeeding in creating more rational and efficient systems?Less
This chapter analyses the rule of capture as applied to oil and gas. The rule states that oil and gas become the property of the owner of the land on which they are recovered by lawful drilling or other operations, regardless of whether they might have migrated from their original position under the land of another. Capture remains today the property right principle on which the structure of United States oil and gas law and regulation has been erected. The chapter addresses the following questions: Why was such an inefficient rule adopted in the first place? Why, once adopted, did it remain in place in the United States, despite the major difficulties it was perceived to create, and when other countries were succeeding in creating more rational and efficient systems?
Yinka Omorogbe and Peter Oniemola
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199579853
- eISBN:
- 9780191722745
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579853.003.0006
- Subject:
- Law, Public International Law, Environmental and Energy Law
This chapter examines the property rights over petroleum in situ between the federal, state, and local governments in a federation. It also discusses the legal character of the various property ...
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This chapter examines the property rights over petroleum in situ between the federal, state, and local governments in a federation. It also discusses the legal character of the various property rights given to companies for exploration and development under the various petroleum licences and leases, production-sharing contracts, pure service contracts, joint ventures, and other petroleum arrangements, as well as the rights of communities where petroleum exploration and production activities are carried out. The chapter focuses particularly on developing countries, although, where necessary and relevant, comparisons are made with more developed economies.Less
This chapter examines the property rights over petroleum in situ between the federal, state, and local governments in a federation. It also discusses the legal character of the various property rights given to companies for exploration and development under the various petroleum licences and leases, production-sharing contracts, pure service contracts, joint ventures, and other petroleum arrangements, as well as the rights of communities where petroleum exploration and production activities are carried out. The chapter focuses particularly on developing countries, although, where necessary and relevant, comparisons are made with more developed economies.
Luis Erize
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199579853
- eISBN:
- 9780191722745
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579853.003.0015
- Subject:
- Law, Public International Law, Environmental and Energy Law
The concept of eminent domain is defined more as an emanation of public powers than as an outright property right, referring thus to the authority of the Sovereign to legislate and to set forth rules ...
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The concept of eminent domain is defined more as an emanation of public powers than as an outright property right, referring thus to the authority of the Sovereign to legislate and to set forth rules applicable to the private parties. The two main issues that appear constantly in this sector are: (i) the Sovereign rights and authority over underground natural resources (eminent domain) versus the acquired rights (and thus, property rights) by holders of title to exploit such resources (with respect to reserves, as well as to the hydrocarbons produced); and (ii) the limits to regulatory powers, especially facing what is now being invoked as a state of necessity, whether as an exception to international law standards' enforcement or as a modification of the latter. The nature of the eminent domain is affirmed in Argentina's Hydrocarbons Law and in its Constitution, which refers to it as dominio originario in the new section 124. This chapter analyses the past, present and future of Argentine regulations in the light of the dialectic interplay between state intervention policies and private business initiative. It also describes the new scenarios resulting from these changes.Less
The concept of eminent domain is defined more as an emanation of public powers than as an outright property right, referring thus to the authority of the Sovereign to legislate and to set forth rules applicable to the private parties. The two main issues that appear constantly in this sector are: (i) the Sovereign rights and authority over underground natural resources (eminent domain) versus the acquired rights (and thus, property rights) by holders of title to exploit such resources (with respect to reserves, as well as to the hydrocarbons produced); and (ii) the limits to regulatory powers, especially facing what is now being invoked as a state of necessity, whether as an exception to international law standards' enforcement or as a modification of the latter. The nature of the eminent domain is affirmed in Argentina's Hydrocarbons Law and in its Constitution, which refers to it as dominio originario in the new section 124. This chapter analyses the past, present and future of Argentine regulations in the light of the dialectic interplay between state intervention policies and private business initiative. It also describes the new scenarios resulting from these changes.
Alastair Lucas
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199579853
- eISBN:
- 9780191722745
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579853.003.0021
- Subject:
- Law, Public International Law, Environmental and Energy Law
This chapter explores the role of property rights in the design of appropriate legal structures for biotic carbon sequestration. The objective is a regime that permits creation of biotic ...
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This chapter explores the role of property rights in the design of appropriate legal structures for biotic carbon sequestration. The objective is a regime that permits creation of biotic sequestration rights which can be integrated into offset trading systems. Two main issues will be explored, building on earlier, broader-scale, preliminary research: (1) defining foundational legal rights to carbon sequestration potential and sequestered carbon; and (2) shaping a property rights regime for sequestered carbon. This will be done in a particular context — in effect a case study — namely, private and public or ‘Crown’ lands in the province of Alberta, Canada.Less
This chapter explores the role of property rights in the design of appropriate legal structures for biotic carbon sequestration. The objective is a regime that permits creation of biotic sequestration rights which can be integrated into offset trading systems. Two main issues will be explored, building on earlier, broader-scale, preliminary research: (1) defining foundational legal rights to carbon sequestration potential and sequestered carbon; and (2) shaping a property rights regime for sequestered carbon. This will be done in a particular context — in effect a case study — namely, private and public or ‘Crown’ lands in the province of Alberta, Canada.
