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Publication Types
Categories
Joseph W. Singer, No Freedom without Regulation: The Hidden Lesson of the Subprime Crisis (Yale Univ. Press 2015).
Categories:
Banking & Finance
,
Government & Politics
,
Property Law
,
Discrimination & Civil Rights
,
Consumer Finance
,
Disciplinary Perspectives & Law
Sub-Categories:
Financial Markets & Institutions
,
Financial Reform
,
Contracts
,
Consumer Protection Law
,
Housing Law
,
Law & Political Theory
,
Administrative Law & Agencies
,
Property Rights
,
Real Estate
Type: Book
Abstract
"Almost everyone who follows politics or economics agrees on one thing: more regulation means less freedom. Joseph William Singer, one of the world's most respected experts on property law, explains why this understanding of regulation is simply wrong. While analysts as ideologically divided as Alan Greenspan and Joseph Stiglitz have framed regulatory questions as a matter of governments versus markets, Singer reminds us of what we've willfully forgotten: government is not inherently opposed to free markets or private property, but is, in fact, necessary to their very existence." -- Book jacket.
Joseph W. Singer, We Don’t Serve Your Kind Here: Public Accommodations and the Mark of Sodom, 95 B.U. L. Rev. 929 (2015).
Categories:
Property Law
,
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Religion
,
LGBTQ Rights Law
,
Race & Ethnicity
,
Law & Public Policy
,
Civil Rights
,
Gender & Sexuality
,
Religious Rights
,
Public Accommodations Law
Type: Article
Joseph W. Singer, Property Law Conflicts, 54 Washburn L. J. 139 (2014)
Categories:
Civil Practice & Procedure
,
Property Law
Sub-Categories:
Conflict of Laws
,
Property Rights
,
Real Estate
Type: Article
Abstract
What law applies to real property? At one time the answer to this question was simple: the law of the situs. But then the choice-of-law revolution came and legal scholars began to see reasons to depart from the situs law rule. As interest analysis and the most-significant-relationship test developed, legal theorists undermined the logical and normative basis for such a simple solution to the choice-of-law problem. In recent years, however, the situs rule has been rehabilitated and increasingly defended by some scholars while others have continued to subject it to criticism. And in fact, the rule was never dislodged in practice and it remained the presumptive rule in the Second Restatement of Conflict of Laws. Even today, courts generally apply situs law to real property issues, although important exceptions have developed over time and some brave judges have deviated from the rule in certain classes of cases. Rather than argue for or against the rule, this article explains the difference between the false conflicts cases where only one state has a legitimate interest in applying its law and the true conflicts cases where two (or more) states have such interests. That analysis shows cases under which situs law clearly should and clearly should not apply, as well as the true conflict cases that are hard because they present value conflicts generating good reasons both for application of situs law and for deviating from it. Those hard cases are of four types: (a) conflicts between situs law and the law of the domicile of one of the parties; (b) conflicts between situs law and the place where a contractual relationship is centered; (c) nuisance-type cases where the conduct is in one state and the injury is in another; and (d) the special case of federal Indian law which involves the paradoxical case of overlapping situses. The article concludes by addressing the renvoi problem. Real property law has traditionally required application of renvoi for issues involving title to real property. This article explains the reasons why that is so and why those reasons are less powerful than we may have thought.
Joseph W. Singer, The Indian States of America: Parallel Universes & Overlapping Sovereignty, 38 Am. Indian L. Rev. 1 (2014).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Native American & Tribal Law
Type: Article
Abstract
Tribal sovereignty is complex and not well-understood. That is partly because most Americans were not taught an accurate history of the United States and its relations with Indian nations. The process by which the US came to possess most of the land within its territory and its longstanding government-to-government relationship with Indian nations should be more widely known both among lawyers and the general public. That process can be better understood if we revisit standard maps of the United States as they reflect colonial acquisition of territory from both foreign nations and from Indian nations. In addition, when questions are asked about the legitimacy of tribal sovereignty, it is important to know how to answer them. This lecture is directed at those for whom tribal sovereignty is not well-known and it provides three arguments for tribal sovereignty based on history, equal protection of the laws, and democracy.
Joseph W. Singer, Bethany R. Berger, Nestor M. Davidson & Eduardo Moises Peñalver, Property Law: Rules, Policies, and Practices (Wolters Kluwer 7th ed. 2017).
Categories:
Property Law
,
Legal Profession
Sub-Categories:
Legal Education
Type: Book
Joseph W. Singer, Property (Wolters Kluwer L. & Bus. 5th ed. 2016).
Categories:
Property Law
,
Legal Profession
Sub-Categories:
Legal Education
Type: Book
Abstract
The book offers clear explanations of property law through textual treatment, with numerous examples, analytical discussion of key cases, and issues followed by hypotheticals.
Joseph W. Singer, Why Religion is Not an Excuse to Discriminate in Public Accommodations, GLAD (Legal Advocates & Defenders for the LGBTQ Community) (July 13, 2016).
Categories:
Discrimination & Civil Rights
Sub-Categories:
LGBTQ Rights Law
,
Public Accommodations Law
,
Religious Rights
Type: Other
Joseph W. Singer, Essay: Anti Anti-Paternalism, 50 New Eng. L. Rev. 277 (2016).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Article
Joseph W. Singer, Should We Call Ahead? Property, Democracy, 5 Brigham-Kanner Prop. Rts. Conf. J. 1 (2016).
Categories:
Government & Politics
,
Property Law
Sub-Categories:
Administrative Law & Agencies
,
Property Rights
Type: Article
Joseph W. Singer, Regulation is Just Another Word for Law, N.Y. Times, Opinion Pages, Room for Debate (Nov. 10, 2015).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Other
Max Weinstein, Melanie B. Leslie, David J. Reiss, Joseph W. Singer & Rebecca Tushnet, Brief for The Legal Services Center of Harvard Law School and Law Professors as Amici Curiae Supporting Appellee, Montgomery County, Pennsylvania Recorder of Deeds v. Merscorp Inc., 795 F.3d 372 (2015) (No. 14-4315).
Categories:
Property Law
Sub-Categories:
Real Estate
Type: Other
Abstract
MERS represents a major departure from and grave disruption of recording practices in counties such as Montgomery County, Pennsylvania, that have traditionally ensured the orderly transfer of real property across the country. Prior to MERS, records of real property interests were public, transparent, and provided a secure foundation upon which the American economy could grow. MERS is a privately run recording system created to reduce costs for large investment banks, the “sell-side” of the mortgage industry, which is largely inaccessible to the public. MERS is recorded as the mortgage holder in traditional county records, as a “nominee” for the holder of the mortgage note. Meanwhile, the promissory note secured by the mortgage is pooled, securitized, and transferred multiple times, but MERS does not require that its members enter these transfers into its database. MERS is a system that is “grafted” onto the traditional recording system and could not exist without it, but it usurps the function of county recorders and eviscerates the system recorders are charged with maintaining. The MERS system was modeled after the Depository Trust Company (DTC), an institution created to hold corporate and municipal securities, but, unlike the DTC, MERS has no statutory basis, nor is it regulated by the SEC. MERS’s lack of statutory grounding and oversight means that it has neither legal authority nor public accountability. By allowing its members to transfer mortgages from MERS to themselves without any evidence of ownership, MERS dispensed with the traditional requirement that purported assignees prove their relationship to the mortgagee of record with a complete chain of mortgage assignments, in order to foreclose. MERS thereby eliminated the rules that protected the rights of mortgage holders and homeowners. Surveys, government audits, reporting by public media, and court cases from across the country have revealed that MERS’s records are inaccurate, incomplete, and unreliable. Moreover, because MERS does not allow public access to its records, the full extent of its system’s destruction of chains of title and the clarity of entitlements to real property is not yet known. Electronic and paper recording systems alike can contain errors and inconsistencies. Electronic systems have the potential to increase the accessibility and accuracy of public records, but MERS has not done this. Rather, by making recording of mortgage assignments voluntary, and cloaking its system in secrecy, it has introduced unprecedented and perhaps irreparable levels of opacity, inaccuracy, and incompleteness, wreaking havoc on the local title recording systems that have existed in America since colonial times.
Joseph W. Singer, Multistate Justice: Better Law, Comity, and Fairness in the Conflict of Laws, 2015 U. Ill. L. Rev. 1923 (2015).
Categories:
Civil Practice & Procedure
,
Government & Politics
Sub-Categories:
Conflict of Laws
,
State & Local Government
,
Courts
Type: Article
Joseph W. Singer, Justifying Regulatory Takings, 41 Ohio N.U. L. Rev. 601 (2015).
Categories:
Property Law
,
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Eminent Domain
,
Property Rights
Type: Article
Joseph William Singer & Todd D. Rakoff, Problem Solving for First-Year Law Students, 7 Elon L. Rev. 413 (2015).
Categories:
Legal Profession
Sub-Categories:
Legal Education
Type: Article
Joseph W. Singer, Justice Breyer, Grokster, and the Four Chords Sing, 128 Harv. L. Rev. 483 (2014).
Categories:
Property Law
,
Legal Profession
Sub-Categories:
Biography & Tribute
,
Intellectual Property - Copyright
Type: Article
Joseph W. Singer, Property as the Law of Democracy, 63 Duke L.J. 1287 (2014).
Categories:
Property Law
,
Constitutional Law
Sub-Categories:
Property Rights
Type: Article
Joseph W. Singer, Private Law Realism, 1 Critical Analysis L. 226 (2014)(reviewing Hanoch Dagan, Reconstructing American Legal Realism and Rethinking Private Law Theory (2013)).
Categories:
Civil Practice & Procedure
,
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Private Law
,
Legal Theory & Philosophy
,
Congress & Legislation
,
Judges & Jurisprudence
Type: Article
Abstract
Hanoch Dagan argues that the legal realists conceived of law as “a dynamic institution, or set of institutions, that embodies three constitutive tensions: between power and reason, between science and craft, and between tradition and progress.” One tension that Dagan mentions but does not emphasize sufficiently is the tension between adjudication and legislation. Understanding the ways judge-made common law influences legislation and the ways that statutes affect the development of common law will improve our understanding of legal reasoning, the rule of law, and the role of judges in a free and democratic society.
Joseph W. Singer, Titles of Nobility: Poverty, Immigration, and Property in a Free and Democratic Society, 1 J. L. Prop. & Soc’y 1 (2014).
Categories:
Property Law
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Poverty Law
,
Civil Rights
,
Property Rights
Type: Article
Joseph W. Singer, Foreclosure and the Failures of Formality, or Subprime Mortgage Conundrums and How to Fix Them, 46 Conn. L. Rev. 497 (2013).
Categories:
Property Law
,
Banking & Finance
,
Consumer Finance
Sub-Categories:
Consumer Protection Law
,
Real Estate
Type: Article
Abstract
The subprime mortgage crisis was not only an economic disaster but posed challenges to traditional rules of property law. Banks helped create the crisis by marketing mortgages through unfair and deceptive practices. They induced many consumers to take out high-priced loans they could not afford and then passed the risk to investors who were fooled into thinking these were safe investments. These practices violate traditional norms underlying both consumer protection and securities regulation statutes. In addition, U.S. banks greased the wheels of the mortgage securitization process by creating a privatized mortgage registration system that has undermined the clarity and publicity of property titles. Because of securitization procedures and the lax record-keeping practices, the banks have undermined the property recording system; we no longer have clear public titles to real property in the United States. To fix the mess they left us, we must adopt norms to govern the mortgage market that will protect both homeowners and investors from predatory loans while promoting legitimate property transactions. We also need to fix the mortgage registration system so we have a legal infrastructure for property that both works well and reflects the norms of a free and democratic society.
Joseph W. Singer, The Rule of Reason in Property Law, in Property Law Perspectives II 251 (Bram Akermans, Ernst Marais & Eveline Ramaekers eds., Intersentia 2013).
Categories:
Property Law
Type: Book
Joseph W. Singer, The Rule of Reason in Property Law, 46 U.C. Davis L. Rev. 1369 (2013).
Categories:
Property Law
Sub-Categories:
Property Rights
Type: Article
Abstract
Property rights cannot work if they are not clear, and scholars generally assume that the best way to attain this goal is to define property rights by relatively rigid rules. However, recent evidence suggests that the intuitive view may be mistaken. The subprime crisis shows that clear rules do not produce clear titles if owners do not follow those rules. And during the twentieth century property law moved dramatically away from rigid rules toward flexible standards. Standards turn out to be crucial to property law, as well as increasingly important in property doctrine. Empirical evidence and historical experience alike demonstrate that rules cannot be applied without being supplemented by standards to determine the scope of those rules. Conversely, standards achieve predictability through core exemplars, precedent, and presumptions. Thus rules and standards are less distinct from each other than one might imagine. Standards perform crucial functions for property law. They perform systemic functions to shape the infrastructure and the outer contours of the property system by (1) setting minimum standards compatible with the norms of a free and democratic society, (2) protecting the justified expectations of consumers, and (3) responding to externalities and systemic effects of the exercise of property rights. Standards also determine the scope of property rights by (4) distinguishing cases; (5) resolving conflicting norms; (6) excusing mistakes; (7) escaping the "dead hand" of the past; and (8) deterring the "bad man" from abusing property rights.
Joseph W. Singer, Tribal Sovereignty and Human Rights, 2013 Mich. St. L. Rev. 307 (2013).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Native American & Tribal Law
Type: Article
Joseph W. Singer, Subprime: Why a Free and Democratic Society Needs Law, 47 Harv. C.R.-C.L. L. Rev. 141 (2012).
Categories:
Banking & Finance
,
Property Law
,
Consumer Finance
,
Discrimination & Civil Rights
Sub-Categories:
Financial Markets & Institutions
,
Consumer Protection Law
,
Housing Law
,
Law & Public Policy
,
Property Rights
Type: Article
Cohen's Handbook of Federal Indian Law (Nell Jessup Newton, Joseph W. Singer et al. eds., LexisNexis 2012) (Supplement 2017).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Native American & Tribal Law
Type: Book
Abstract
Cohen's Handbook of Federal Indian Law is an encyclopedic treatise written by experts in the field, and provides general overviews to relevant information as well as in-depth study of specific areas within this complex area of federal law. This is an updated and revised edition of what has been referred to as the "bible" of federal Indian law. This publication focuses on the relationship between tribes, the states and the federal government within the context of civil and criminal jurisdiction, as well as areas of resource management and government structure.
Joseph W. Singer, Original Acquisition of Property: From Conquest & Possession to Democracy & Equal Opportunity, 86 Ind. L.J. 763 (2011).
Categories:
Legal Profession
,
Property Law
,
Discrimination & Civil Rights
Sub-Categories:
Native American & Tribal Law
,
Legal History
,
Property Rights
Type: Article
Joseph W. Singer, Erasing Indian Country: The Story of Tee-Hit-Ton Indians v. United States, in Indian Law Stories 229 (Carole Goldberg, Kevin K. Washburn & Philip P. Frickey eds., Foundation Press 2011).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Native American & Tribal Law
Type: Book
Abstract
Indian Law Stories, penetrates the often complex and unfamiliar doctrine of federal Indian law, exposing the raw conflicts over sovereignty and property that shaped legal rulings.
Joseph W. Singer, Property Law and the Mortgage Crisis: Libertarian Fantasies and Subprime Realities, 1 Prop. L. Rev. 7 (2011).
Categories:
Consumer Finance
,
Property Law
,
Banking & Finance
Sub-Categories:
Investment Products
,
Consumer Protection Law
,
Real Estate
,
Property Rights
Type: Article
Joseph W. Singer, Property Law as the Infrastructure of Democracy, in Powell on Real Property 11-1 (Michael Allan Wolf ed., LexisNexis 2011).
Categories:
Property Law
Type: Book
Abstract
The Fourth in the Wolf Family Lecture Series on the American Law of Real Property.
Joseph W. Singer, The Anti-Apartheid Principle in American Property Law, 1 Ala. C.R.-C.L. L. Rev. 83 (2011).
Categories:
Property Law
,
Discrimination & Civil Rights
Sub-Categories:
Housing Law
,
Discrimination
,
Civil Rights
,
Public Accommodations Law
,
Property Rights
Type: Article
Joseph W. Singer, The Reliance Interest in Property Revisited, 7 Unbound 79 (2011).
Categories:
Property Law
Sub-Categories:
Property Rights
Type: Article
Joseph W. Singer, How Property Norms Construct the Externalities of Ownership, in Property and Community (Gregory S. Alexander & Eduardo Peñalver eds., Oxford Univ. Press 2010).
Categories:
Property Law
Type: Book
Gregory S. Alexander, Eduardo M. Peñalver, Joseph W. Singer & Laura S. Underkuffler, A Statement of Progressive Property, 94 Cornell L. Rev. 743 (2009).
Categories:
Property Law
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Property Rights
Type: Article
Joseph W. Singer, Democratic Estates: Property Law in a Free and Democratic Society, 94 Cornell L. Rev. 1009 (2009).
Categories:
Property Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Article
Joseph W. Singer, Normative Methods for Lawyers, 56 UCLA L. Rev. 899 (2009).
Categories:
Legal Profession
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Legal Services
,
Legal Scholarship
,
Legal Education
Type: Article
Abstract
How can we defend arguments about what the law should be based on considerations of morality, justice, fairness, liberty, rights, or human values? Are such arguments anything more than assertions of personal preferences? In this article, I argue that normative arguments are crucial for the rule of law and that both lawyers (and law students) need to know how to make and defend claims of morality and justice. In recent years, cost/benefit and efficiency analysis appear to have taken over most legal scholarship and many law school classroom discussions. Such analysis suggests that the sole goal of the legal system should be to maximize human welfare and that we can best accomplish this goal by deferring to individual preferences, whatever they happen to be, valuing the relative strength of those preferences by reference to market values, and then choosing results whose social benefits outweigh their social costs. In contrast, I argue that such analysis is wholly without any normative weight unless it occurs within a framework of institutions, laws, and practices that are consistent with minimum standards for social and economic relationships in a free and democratic society. Normative arguments are designed to define that legitimate framework. Moreover, such arguments are not merely expressions of personal preference but are evaluative assertions and moral demands we are entitled to make of each other. Moral and political theory provide resources to help lawyers make evaluative assertions about human values that the legal system should respect. At the same time, lawyers possess substantial expertise in analyzing, shaping, and defending normative claims and the methods used by lawyers should be of interest to moral and political theorists. Because there are better and worse ways of making normative arguments and because both lawyers and law students need to know how to make such arguments, this article explains four basic tasks of normative argument and outlines a number of different ways lawyers accomplish those tasks. It then applies these various normative methods to a basic property law case. Bringing to consciousness these methods will help lawyers improve them and develop the skills needed to use them. Articulating and exploring the contours of the methods used by lawyers to make and defend normative arguments will help all participants in the legal system to articulate normative reasons that can justify legal rights and institutions in a manner appropriate to a free and democratic society.
Joseph W. Singer, Critical Normativity, 20 Law & Critique 27 (2009).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
Legal Theory & Philosophy
Type: Article
Abstract
Is there any difference between a preference and a value? When we say that some course of conduct is wrong, do we have any basis for backing up our claim? Some skeptics insist that statements about right and wrong are merely expressions of preferences - strong preferences, perhaps, but preferences nonetheless. To the contrary, I want to argue that values are not the same as mere preferences. Efficiency theorists seek to maximize social welfare by satisfying preferences, whatever they happen to be. Postmodernists argue that all values are socially constructed and not founded in any supranatural order. If postmodernists and economists are right, then arguments based on considerations of justice and fairness are nothing more than rationalizations for power relationships. But I argue, in contrast, that no one really believes this. Critical analysis of skeptical arguments shows that we do make strong evaluations of human claims and that we reject certain preferences as illegitimate and not worthy of being considered in any moral calculus. This article argues that skeptical doubts about the foundation of value claims are based on the value judgment that it is wrong for some individuals to impose their values on others. To the contrary, I argue that deference to others, no matter what they think, is an interpretation of what it means to treat others with equal concern and respect, but it is a faulty interpretation of that moral value. It assumes that we are free to indulge in any preferences we like and that it is no one's business but ourselves what we choose to believe. But this again is false. The assertion of a preference is not a self-regarding act. While it may be true that holding a preference may be a self-regarding act, asserting it against another and demanding that others defer to one's preferences is anything but a self-regarding act. And actions that affect others require justification. Values are different from preferences because they entail claims we make on each other. Critical normativity requires acknowledgment that human beings cannot live without such claims but that we are obligated to be careful about them. What we need is an attitude of restraint and caution combined with a fierce belief in justice. This article illustrates this stance by telling three parables of justice, focusing on a town in Vichy France that saved thousands of Jews from the Nazis and the predicament of the main character in the movie Stranger than Fiction who sought to come to be the author of his own life.
Joseph W. Singer, Economic Regulation and the Rule of Law: Minimum Standards for the Legal Framework of a Free and Democratic Society, 48 Judges J. 4 (2009).
Categories:
Disciplinary Perspectives & Law
,
Property Law
Sub-Categories:
Law & Economics
,
Property Rights
Type: Article
Joseph W. Singer, Corporate Responsibility in a Free and Democratic Society, 58 Case W. Res. L. Rev. 1031 (2008).
Categories:
Corporate Law & Securities
,
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
,
Business Organizations
Type: Article
Abstract
Do corporations have any social responsibilities? Those who have argued both sides of this debate have failed to focus their attention sufficiently on the common law rules governing market relations, especially the law of torts, contracts, and property. This article argues that these three foundational legal institutions are all premised on a fundamental obligation of attentiveness. Actors are obligated to attend to the likely consequences of their actions on others and refrain from actions that impose unreasonable risks of harm or which impose harms that individuals are entitled to be protected against. If this is so, then the argument that corporations cannot reasonably respond to vague duties of social responsibility becomes less powerful, given the pervasive duties of all market actors to consider whether they could justify their harm-producing conduct to an impartial decision maker - in other words, whether they could explain their actions as reasonable. We want clear rules to give us guidelines about what we are and are not allowed to do. But we also want a fuzzy edge of substantive standards to induce us to think before we act - to be attentive to the ways in which our actions affect others. Such fuzzy edges create appropriate incentives to think about the effects of one's actions on others and to consider the judgments that others would make about the justice or appropriateness of our own conduct, given the impact it will have on others who, after all, have equal rights. And we care so much about this that we have enshrined it in the basic law governing the market system.
Joseph W. Singer, Things that We Would Like to Take for Granted: Minimum Standards for the Legal Framework of a Free and Democratic Society, 2 Harv. L. & Pol'y Rev. 139 (2008).
Categories:
Disciplinary Perspectives & Law
,
Property Law
Sub-Categories:
Law & Political Theory
,
Law & Economics
,
Legal Theory & Philosophy
Type: Article
Abstract
We live in an age that glorifies the free market, small government and freedom of contract. Regulations are viewed as interferences with liberty and mandatory terms in contracts are derided as paternalistic interferences with autonomy. This free market model fails adequately to describe either our settled social values or our law. If we recognize the truism that there is no liberty without law, we will see that even our most libertarian states have comprehensive networks of regulations that set minimum standards for economic relationships. Rather than asking, Why interfere with freedom of contract? We would do better to recognize that all contracts are subject to minimum standards regulations and ask, What are the minimum standards for transactions of this sort? Some minimum standards merely set rules of the road; others, however, shape the contours of our way of life. We impose minimum standards regulations, not because government officials know better than individuals what is in their own best interest, but because we live in a free and democratic society and such a society promotes social relations of a certain type; this means that certain contract terms are out of line and certain contract demands must be taken off the table. Mandatory contract terms do limit our freedom to agree to contrary terms but we as a society demand those mandatory terms to create the legal framework of a free and democratic society that treats each person with equal concern and respect. We cannot create such a society by deferring to preferences, whatever they happen to be; some preferences cannot be indulged in a free and democratic society. Identifying appropriate minimum standards requires us to go beyond economic and legal theory by using useful aspects of moral and political philosophy, in conjunction with law, to shape the contours of our way of life.
Joseph W. Singer, Book Review, 15 Soc. & Legal Stud. 605 (2006) (reviewing Johan van der Walt, Law and Sacrifice: Toward Post-Apartheid Theory of Law (2006)).
Categories:
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Legal Theory & Philosophy
,
Foreign Law
Type: Article
Joseph W. Singer, The Ownership Society and Takings of Property: Castles, Investments, and Just Obligations, 30 Harv. Envtl. L. Rev. 309 (2006).
Categories:
Property Law
Sub-Categories:
Eminent Domain
,
Property Rights
Type: Article
Joseph W. Singer, After the Flood: Equality and Humanity in Property Regimes, 52 Loy. L. Rev. 243 (2006).
Categories:
Property Law
,
Discrimination & Civil Rights
Sub-Categories:
Poverty Law
,
Property Rights
Type: Article
Joseph W. Singer, Nine-Tenths of the Law: Title, Possession & Sacred Obligations, 38 Conn. L. Rev. 605 (2006).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Native American & Tribal Law
Type: Article
Abstract
As part of a symposium celebrating the publication of the 2005 edition of Cohen's Handbook of Federal Indian Law, this article examines the Supreme Court's recent opinion in City of Sherrill v. Oneida Indian Nation of New York, which held that the Oneida Nation is subject to local property taxation when it reacquires land from a non-Indian possessor even though the Oneida Nation had never lost the title to that land. A federal statute passed in 1790 and still in effect today (called the Nonintercourse Act) prohibits the alienation of Indian lands without the consent of the United States. In 1795, the State of New York illegally took lands belonging to the Oneida Indian Nation, and under the Nonintercourse Act, the transfer of title was not valid. When the Oneida Nation repurchased the land, it argued that it had united title and possession, that the land had been Indian country and that Congress had never extinguished the tribal title or diminished the Oneida Reservation, and that the land therefore was subject to tribal sovereignty and immune from local property taxation. The Supreme Court rejected the claim on the ground that the Oneida Nation had waited too long to sue and that reliance interests had developed on the part of non-Indian owners and the state, and these reliance interests must be protected to prevent the piecemeal loss of state sovereignty to the Haudenosaunee nations. This article criticizes the Supreme Court's ruling by arguing that it is wrong to blame the Oneida Nation for failing to sue to recover its lands until 1970 when more than half a dozen jurisdictional (and other) legal barriers barred suit until 1966 and would even bar the lawsuit today. Further, the Court adds insult to injury by blaming the Oneida Nation for the failure of the United States to act expeditiously to protect its rights under the Nonintercourse Act and under the trust obligation of the United States toward the Oneida Nation. The Supreme Court's ignorance of these jurisdictional barriers (or unwillingness to focus on them) suggests the importance of the publication of the new edition of Cohen's Handbook.
Joseph W. Singer, Double Bind: Indian Nations v. The Supreme Court, 119 Harv. L. Rev. F. 1 (2005).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Native American & Tribal Law
Type: Article
Abstract
This comment responds to Professor Philip Frickey's excellent article, (Native) American Exceptionalism in Federal Public Law, - Harv. L. Rev. - (2005), in which Frickey reacts to the Supreme Court's increasing discomfort with the exceptional character of the federal rules governing Indian nations. He argues that the Court fails to recognize that the anomalous character of the rules governing the relations between Indian Nations and the United States arises out of the need to reconcile the irreconcilable premises of constitutionalism and colonialism. He argues that the Court must learn to live with ambiguity and appreciate that it is not possible to apply all the norms usually applied in federal public law to Indian nations without doing grave injustice. Although Professor Frickey is correct to argue that the Court must learn to live with inconsistencies and to appreciate the need for special rules associated with the special status of native nations, this comment argues that the Supreme Court also needs to pay better attention to granting Indian nations the same rights as non-Indians when Indian nations are similarly situated to non-Indians. In many ways, the Supreme Court has been denying justice to Indian nations both by denying them the special rights that adhere to their special status and by denying them rights and powers they would be granted if they were non-Indian owners or sovereigns. It is important to recognize when the Court accepts a reason for denying rights to Indian nations that it would reject if the case involved a non-Indian owner; the Court should refrain from doing this unless there is a compelling reason for treating the tribe differently.
Joseph W. Singer, Same Sex Marriage, Full Faith and Credit, and the Evasion of Obligation, 1 Stan. J. C.R. & C.L. 1 (2005).
Categories:
Discrimination & Civil Rights
,
Family Law
,
Property Law
Sub-Categories:
LGBTQ Rights Law
,
Civil Rights
,
Domestic Relations
,
Property Rights
Type: Article
Abstract
Now that same sex marriages have been occurring in Massachusetts for almost a year, the issue of interstate recognition is no longer merely a theoretical issue. Most scholars have either argued that the full faith and credit clause does not mandate recognition of same sex marriages or that it does so for limited purposes or for marriages of Massachusetts residents but not nonresidents seeking to evade their restrictive home state marriage laws. This article argues that the full faith and credit clause should be interpreted to require interstate recognition of same sex marriages validly celebrated in Massachusetts and that Congress does not have the power to deny such recognition under the "effects thereof" language of the full faith and credit clause. Rather than focusing on the rights of same sex couples to have their valid Massachusetts marriages recognized elsewhere, we should focus on the obligations inherent in the marriage relationship. Both Congress and the majority of states have passed so-called Defense of Marriage Acts (DOMAs). If these laws are constitutional, they effectively authorize partners in same sex marriages to relocate to other states and evade their obligations as spouses and parents under Massachusetts law. Those states have made themselves havens for fleeing debtors. Using traditional and modern choice-of-law analysis, as well as analogies to the law of divorce and corporate governance, this article argues that the full faith and credit clause should be interpreted to require recognition of marriages that are valid where celebrated to avoid inconsistent obligations, to allow free interstate travel and commerce, and to prevent the states from authorizing married partners to walk away from their concededly valid and persisting obligations under Massachusetts law.
Joseph W. Singer, Symposium Foreword: Indian Nations & the Law, 41 Tulsa L. Rev. 1 (2005).
Categories:
Discrimination & Civil Rights
,
Property Law
Sub-Categories:
Native American & Tribal Law
,
Property Rights
Type: Article
Joseph W. Singer & Joseph P. Kallt, Myths and Realities of Tribal Sovereignty: The Law and Economics of Indian-Self-Rule (Harvard Project on Am. Indian Econ. Dev. & Univ. of Ariz. Native Nations Inst. for Leadership, Mgmt., & Pol'y 2004).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Native American & Tribal Law
,
Law & Economics
Type: Book
Joseph W. Singer, Canons of Conquest: The Supreme Court's Attack on Tribal Sovereignty, 37 N. Eng. L. Rev. 641 (2003).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Native American & Tribal Law
Type: Article
Joseph W. Singer, Something Important in Humanity, 37 Harv. C.R.-C.L. L. Rev. 103 (2002).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Article
Joseph W. Singer, Lone Wolf, Or How to Take Property By Calling it a "Mere Change in the Form of Investment", 38 Tulsa L. Rev. 37 (2002).
Categories:
Property Law
,
Discrimination & Civil Rights
Sub-Categories:
Native American & Tribal Law
,
Property Rights
Type: Article
Joseph W. Singer, Starting Property, 46 St. Louis U. L.J. 565 (2002).
Categories:
Property Law
,
Legal Profession
Sub-Categories:
Legal Education
Type: Article
Joseph W. Singer, The Edges of the Field: Lessons on the Obligations of Ownership (Beacon Press 2000).
Categories:
Property Law
Sub-Categories:
Property Rights
Type: Book
Abstract
In The Edges of the Field Harvard law professor Joseph William Singer offers a cogent look at America's complex relation to property and ownership. Incorporating examples as far-reaching as the experience of Malden Mills owner Aaron Feuerstein, the Torah, and the musical Rent, Singer reminds us that ownership is a curious blend of security and vulnerability between owner and nonowner. He proposes that the manner in which property shapes social relations of power is as important as ownership rights.
Joseph W. Singer, Property and Social Relations: From Title to Entitlement, in Property and Values: Striking an Equitable Balance of Public and Private and Private Interests (Charles Geisler ed., 2000).
Categories:
Property Law
Type: Book
Abstract
Property and Values offers a fresh look at property rights issues, bringing together scholars, attorneys, government officials, community development practitioners, and environmental advocates to consider new and more socially equitable forms of ownership. Based on a Harvard Law School conference organized by the Equity Trust, Inc., in cooperation with the American Bar Association's Commission on Homelessness and Poverty, the book: explains ownership as an evolving concept, determined by social processes and changing social relations challenges conventional public-private ownership categories surveys recent studies on the implications of public policy on property values offers examples from other cultures of ownership realities unfamiliar or forgotten in the United States compares experiments in ownership/equity allocation affecting social welfare and environmental conservation The book synthesizes much innovative thinking on ownership in land and housing, and signals how that thinking might be used across America. Contributors - including David Abromowitz, Darby Bradley, Teresa Duclos, Sally Fairfax, Margaret Grossman, C. Ford Runge, William Singer and others - call for balance between property rights and responsibilities, between private and public rights in property, and between individual and societal interests in land.Property and Values is a thought-provoking contribution to the literature on property for planners, lawyers, government officials, resource economists, environmental managers, and social scientists as well as for students of planning, environmental law, geography, or public policy.
Joseph W. Singer, Pay No Attention to That Man Behind the Curtain: The Place of Better Law in a Third Restatement of Conflicts, 75 Ind. L.J. 659 (2000).
Categories:
Civil Practice & Procedure
Sub-Categories:
Conflict of Laws
Type: Article
Joseph W. Singer, Entitlement: The Paradoxes of Property (Yale Univ. Press 2000).
Categories:
Property Law
Type: Book
Joseph W. Singer, Property, in The Politics of Law: A Progressive Critique (David Kairys ed., 3rd ed. 1998).
Categories:
Property Law
Type: Book
Abstract
Long considered one of the most important books on the role and operation of the law, The Politics of Law offers a provocative, intelligent critique of traditional jurisprudence.
Joseph W. Singer, Rent, 39 B.C. L. Rev. 1 (1998).
Categories:
Property Law
Sub-Categories:
Property Rights
Type: Article
Joseph W. Singer, The Stranger Who Resides With You: Ironies of Asian American and American Indian Legal History, 40 B.C. L. Rev./19 B.C. Third World L.J. 171 (1998).
Categories:
Discrimination & Civil Rights
,
Property Law
Sub-Categories:
Civil Rights
,
Native American & Tribal Law
,
Race & Ethnicity
,
Property Rights
Type: Article
Joseph W. Singer, Property and Equality: Public Accommodations and the Constitution in South Africa and the United States, 12 S. Afr. J. Pub. L. 53 (1997).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Property Law
Sub-Categories:
Public Accommodations Law
,
Race & Ethnicity
,
Comparative Law
,
Property Rights
Type: Article
Joseph W. Singer, No Right to Exclude: Public Accommodations and Private Property, 90 Nw. U. L. Rev. 1283 (1996).
Categories:
Property Law
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Law & Public Policy
,
Civil Rights
,
Public Accommodations Law
,
Property Rights
Type: Article
Joseph W. Singer, Property and Social Relations: From Title to Entitlement, in Property Law on the Threshold of the 21st Century 69 (G.E. van Maanen & A.J. van der Walt eds., 1996).
Categories:
Property Law
Sub-Categories:
Property Rights
Type: Book
Abstract
Proceedings of an international colloquium 'Property Law on the Threshold of the 21st Century', 28-30 August 1995, Maastricht.
Joseph W. Singer, Publicity Rights and the Conflict of Laws: Tribal Court Jurisdiction in the Crazy Horse Case, 41 S.D. L. Rev. 1 (1996).
Categories:
Discrimination & Civil Rights
,
Civil Practice & Procedure
Sub-Categories:
Jurisdiction
,
Choice of Law
,
Native American & Tribal Law
Type: Article
Joseph W. Singer, Conference on Jurisdiction, Justice, and Choice of Law for the Twenty-First Century: Case Four: Choice of Law Theory, 29 New Eng. L. Rev. 692 (1995).
Categories:
Civil Practice & Procedure
Sub-Categories:
Jurisdiction
,
Choice of Law
Type: Article
Joseph W. Singer, Remembering What Hurts Us Most: A Critique of the American Indian Law Deskbook, 24 N.M. L. Rev. 315 (1994).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Native American & Tribal Law
Type: Article
Joseph W. Singer, Well Settled?: The Increasing Weight of History in American Indian Land Claims, 28 Ga. L. Rev. 481 (1994).
Categories:
Discrimination & Civil Rights
,
Property Law
Sub-Categories:
Native American & Tribal Law
,
Property Rights
Type: Article
Joseph W. Singer & Jack M. Beermann, The Social Origins of Property, 6 Can. J.L. & Jurisdiction 217 (1993).
Categories:
Property Law
,
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Law & Public Policy
,
Eminent Domain
,
Property Rights
Type: Article
Joseph W. Singer, Jobs and Justice: Rethinking the Stakeholder Debate, 43 U. Toronto L.J. 475 (1993).
Categories:
Property Law
,
Labor & Employment
Sub-Categories:
Labor Law
,
Workers' Compensation
,
Property Rights
Type: Article
Joseph W. Singer, Re-Reading Property, 26 New Eng. L. Rev. 711 (1992).
Categories:
Property Law
,
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Native American & Tribal Law
,
Gender & Sexuality
,
Law & Public Policy
,
Social Welfare Law
,
Critical Legal Studies
,
Property Rights
Type: Article
Abstract
Symposium on Feminist Critical Legal Studies and Postmodernism: Part One: A Diversity of Influence.
Joseph W. Singer, Facing Real Conflicts, 24 Cornell Int'l L.J. 197 (1991).
Categories:
Civil Practice & Procedure
Sub-Categories:
Choice of Law
,
Conflict of Laws
Type: Article
Joseph W. Singer, Sovereignty and Property, 86 Nw. U. L. Rev. 1 (1991).
Categories:
Property Law
,
Discrimination & Civil Rights
Sub-Categories:
Native American & Tribal Law
,
Eminent Domain
,
Property Rights
Type: Article
Joseph W. Singer, The Continuing Conquest: American Indian Nations, Property Law, and Gunsmoke, 1 Reconstruction 97 (1991).
Categories:
Discrimination & Civil Rights
,
Property Law
Sub-Categories:
Native American & Tribal Law
,
Eminent Domain
,
Property Rights
Type: Article
Joseph W. Singer, A Pragmatic Guide to Conflicts, 70 B.U. L. Rev. 731 (1990).
Categories:
Civil Practice & Procedure
Sub-Categories:
Conflict of Laws
,
Choice of Law
Type: Article
Joseph W. Singer, Property and Coercion in Federal Indian Law: The Conflict between Critical and Complacent Pragmatism, 63 S. Cal. L. Rev. 1821 (1990).
Categories:
Discrimination & Civil Rights
,
Property Law
Sub-Categories:
Native American & Tribal Law
,
Property Rights
Type: Article
Jack M. Beermann & Joseph W. Singer, Baseline Questions in Legal Reasoning: The Example of Property in Jobs, 23 Ga. L. Rev. 911 (1989).
Categories:
Property Law
,
Labor & Employment
,
Discrimination & Civil Rights
Sub-Categories:
Social Welfare Law
,
Property Rights
Type: Article
Joseph W. Singer, Persuasion, 87 Mich. L. Rev. 2442 (1989).
Categories:
Legal Profession
Sub-Categories:
Legal Education
Type: Article
Joseph W. Singer, Real Conflicts, 69 B.U. L. Rev. 1 (1989).
Categories:
Civil Practice & Procedure
Sub-Categories:
Choice of Law
,
Conflict of Laws
Type: Article
Joseph W. Singer, Should Lawyers Care About Philosophy?, 1989 Duke L.J. 1752 (reviewing Richard Rorty, Contingency, Irony, and Solidarity (1989) & Elizabeth V. Spelman, Inessential Woman: Problems of Exclusion in Feminist Thought (1988)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Article
Joseph W. Singer, Legal Realism Now, 76 Calif. L. Rev. 467 (1988)(reviewing Laura Kalman, Legal Realism at Yale, 1927-1960 (1986)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Article
Joseph W. Singer, The Reliance Interest in Property, 40 Stan. L. Rev. 611 (1988).
Categories:
Labor & Employment
,
Property Law
,
Discrimination & Civil Rights
Sub-Categories:
Social Welfare Law
,
Labor Law
,
Property Rights
Type: Article
Joseph W. Singer, Radical Moderation, 1985 Am. B. Found. Res. J. 329 (reviewing Bruce Ackerman, Reconstructing American Law (1984)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Article
Joseph W. Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1 (1984).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Critical Legal Studies
,
Legal Theory & Philosophy
Type: Article
Joseph W. Singer, Catcher in the Rye Jurisprudence, 35 Rutgers L. Rev. 275 (1983).
Categories:
Government & Politics
Sub-Categories:
Judges & Jurisprudence
,
Public Law
,
Politics & Political Theory
Type: Article
Joseph W. Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 Wis. L. Rev. 975.
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Legal Theory & Philosophy
,
Judges & Jurisprudence
Type: Article