Reliance Interests and Takings Liability for Rail-Trail Conversions: \u3ci\u3eMarvin M. Brandt Revocable Trust v. United States\u3c/i\u3e

On October 1, 2013, the U.S. Supreme Court granted certiorari in a relatively obscure case,Marvin M. Brandt Revocable Trust v. United States. On its face, the case involves an interpretation of the property rights created by the General Railroad Right of Way Act of 1875, which gave to any railroad, chartered by a state or territory, [t]he right of way [200 feet wide] through the public lands of the United States. The 1875 Act was passed after a brief hiatus in congressional support for railroads following the era of lavish land grants between 1862 and 1871, in which over 94 million acres of public lands were given over to the transcontinental and other state-chartered railroads for sale to assist in financing the road\u27s construction. Besides being an obscure case based on an equally obscure law, the procedural posture of the case is even more unusual, as the government prevailed in the U.S. Court of Appeals for the Tenth Circuit, and yet it supported the grant of certiorari

Tearing Down the Wall: How Transfer-on-Death Real-Estate Deeds Challenge the Inter Vivos/Testamentary Divide

This Article will examine one of the most recent will substitutes, the transfer-on-death (“TOD”) real-estate deed. Nearly half of the states have recognized, through common-law forms or legislation, a mechanism to allow for the transfer of real property on death without using a will, without following the will formalities, and without necessitating probate. This new tool in the estate planner’s toolbox is invaluable: revocable trusts have proven too expensive for decedents of modest means, and wills continue to require formalities that can easily frustrate non-lawyer-drafted estate documents. But the variety of TOD deed rules and mechanisms that the different states have adopted has led to disparity and uncertainty in form and outcome, resulting in litigation and frustration of decedent’s intent. We believe this uncertainty and frustration will continue as even more states adopt the Uniform Real Property Transfer on Death Act (“URPTODA”), which purports to stabilize the law and facilitate testamentary intent. States grappling with this new form interpose significant differences, and lawyers and judges are not all on the same page as to the consequences. One source of confusion is the URPTODA’s provision that TOD deeds are non-testamentary and, at the same time, the Uniform Act provides that the property rights do not transfer until death. Although it is one thing to declare that TOD deeds are non-testamentary even though property rights don’t transfer until death—which in itself goes against centuries of formal legal rules—it is quite another to get all the other legal consequences to fall into place accordingly. For instance, would a state’s anti-lapse statute apply to save a beneficiary designation if the deed is deemed non-testamentary, even though the intent is to have the real property transfer upon death? In our opinion, the TOD deed pushes the juridical binary of inter vivos and testamentary transfers beyond coherence and rationality. The law of will substitutes has already undermined the rationality of maintaining the divide, and in this Article, we will argue that the time has finally come to reject the division between inter vivos and testamentary transfers and seek a rational and holistic set of tools and formalities to gain the benefits of probate avoidance that will substitutes provide with the ease of control and full revocability of wills. Elevating form over functionality, although a characteristic of the common law, inevitably disserves the interests of those who cannot afford lawyers who can easily draft around the sometimes-arcane distinctions between testamentary and inter vivos transfers to gain the benefits of each while avoiding the burdens

Doing a Double Take: Rail-Trail Takings Litigation in The Post-\u3cem\u3eBrandt Trust\u3c/em\u3e Era

After providing a brief explanation of railroad development, railbanking, the takings cases, and the Brandt Trust decision, this Article will explore the implications of each of these three legal issues at the heart of the takings disputes. What makes the decision in Marvin M. Brandt Revocable Trust v. United States particularly disappointing is not that the Court came to the wrong conclusion in its interpretation of the railroad’s interest in federally granted railroad rights of way (“FGROWs”) granted pursuant to the 1875 General Railroad Right of Way Act, but that its wrong interpretation adds all of the 1875 Act FGROW lands to the class of potential takings cases that already suffer serious legal and logical infirmities. The Court’s hasty decision simply compounds the disastrous effects of the Court of Federal Claims’ already disastrous takings jurisprudence in this area

Foreword: Toward a Multicultural Theory of Property Rights

This panel, sponsored by the Minority group and Property Sections of the AALS for the January, 2000 annual meeting, was composed of an exciting group of scholars critically analyzing traditional theories of property and current distribution of resources. The panel, entitled Reviewing the Legacy of Liberalism: Life, Liberty, and the Pursuit of Happiness -- Linking Property to Rights, challenged traditional notions of property rights, from a discussion of the gender implications of African property law, to a critique of traditional analyses of Johnson v. M\u27Intosh, to property as heteronormative. Because the articles provide so much rich and thought-provoking material, I would like to focus my comments on ways in which ongoing historical disputes about property rights will be manifested in the coming years as highlighted in the papers that follow

Untying the Knot: An Analysis of the English Divorce and Matrimonial Causes Court Records, 1858-1866

Historians of Anglo-American family law consider 1857 as a turning point in the development of modern family law and the first big step in the breakdown of coverture and the recognition of women\u27s legal rights. In 1857, The United Kingdom Parliament ( Parliament ) created a new civil court to handle all divorce and matrimonial causes, removing the jurisdiction of: the ecclesiastical courts over marital validity; the Chancery over custody of children and separate estates; the royal courts over marital property; and Parliament over full divorce. The new Divorce and Matrimonial Causes Court, a wing of the admiralty and probate courts, would handle all matters familial beginning in 1858. The 1858 divorce court was the first attempt in the Anglo-American legal system to create a court specially dedicated to the family, a court that would take a holistic approach to what was perceived in the 1850s to be a social and moral crisis -- the so-called divorce epidemic among the wealthy, and the exclusion from divorce by a rapidly-growing, vocal middle class. And although many aspects of women\u27s disabilities under coverture remained intact in the new court, married women\u27s demands for legal reform and independent legal rights influenced much of the reform rhetoric. The creation of the court marked the final shift in the modern secularization of divorce and an acceptance of the appropriateness of judicial oversight in matrimonial affairs. The creation of a civil court to handle these varied aspects of legal divorce was a rejection of ecclesiastical and legislative control over the marital relationship as well as a unification of family property, custody, and marital status. The property rights of the parties would become intertwined with the custody needs of children and an ethic of marital fault. For over a century, marital fault would become the focus, the key to divorce, a determinant in property distributions, and a major factor in determining the best interests of children. The administrative logistics of negotiating the breakdown of the marital relationship would be made simpler and less costly, thus making the remedy available to a wider class of litigants. The new court dealt the final death blow to the ecclesiastical courts and the highly selective and guarded parliamentary divorce. Its rules were the precursor to modern family law and led the way toward the creation of specialized family courts, whose procedures and rules were believed to minimize the animosity, destructiveness, and expense of traditional adversarial litigation

The Shifting Sands of Property Rights, Federal Railroad Grants, and Economic History: \u3ci\u3eHash v. United States\u3c/i\u3e and the Threat to Rail-Trail Conversions

This Article is an analysis of a federal circuit case from 2005 that has spawned some disturbing precedents in the area of federal transportation and railbanking policy. Specifically, the National Trails System Act (NTSA) provides a mechanism for preserving unused railroad corridors for future reactivation while allowing interim recreational trail and mixed utiity use along the corridor. Converting rail corridors to recreational trails is a very popular process and communities across the country are demanding more and more conversions, as people seek the amenities of linear parks and greenways. Hash v. United States, however, deals with the property rights underlying the thousands of miles of railroad corridors that were granted directly to the railroads by the federal government out of public lands. The Court of Appeals for the Federal Circuit held that the government no longer had any interest in these lands, even though the railroads only received easements. This ruling effectively ordered that the application of the NTSA to federally granted corridors is a facial taking requiring compensation in all cases. However, the United States Supreme Court has never found that any federal law works a facial taking, and the Court upheld the railbanking act as permissible under Interstate Commerce. Yet, the effect of this case is to find a facial taking fifteen years after the Supreme Court said there was not one. The decision renders null a number of federal statutes enacted to dispose of these corridors and generally throws a wrench into the otherwise relatively stable jurisprudence of federal railroad property law. And although at least one successor case is on appeal, it is critical that this decision be revisited in a thorough manner. Even if successive courts adopt the property determinations of the Hash decision, there are a number of ancillary issues that are critical to railbanking, corridor preservation, and interim trail use that need to be resolved before we lose these corridors forever

Reliance Interests and Takings Liability for Rail-Trail Conversions: \u3ci\u3eMarvin M. Brandt Revocable Trust v. United States\u3c/i\u3e

On October 1, 2013, the U.S. Supreme Court granted certiorari in a relatively obscure case,Marvin M. Brandt Revocable Trust v. United States. On its face, the case involves an interpretation of the property rights created by the General Railroad Right of Way Act of 1875, which gave to any railroad, chartered by a state or territory, [t]he right of way [200 feet wide] through the public lands of the United States. The 1875 Act was passed after a brief hiatus in congressional support for railroads following the era of lavish land grants between 1862 and 1871, in which over 94 million acres of public lands were given over to the transcontinental and other state-chartered railroads for sale to assist in financing the road\u27s construction. Besides being an obscure case based on an equally obscure law, the procedural posture of the case is even more unusual, as the government prevailed in the U.S. Court of Appeals for the Tenth Circuit, and yet it supported the grant of certiorari