The law of property is in some areas dangerously out of step with people’s innate expectations. The idea that property law is behaviorally or biologically determined has been explored in scholarly literature in both law and psychology, although perhaps not as thoroughly as it should be. This Article looks at four categories of property, in increasing order of divergence between behavioral expectations and law. This lack of congruence inevitably creates tension. Where there is high congruence, as with personal and real property, discontent focuses on the allocation of property rather than on its fundamental nature. Where there is less congruence, as in the cases of intellectual property and especially one’s person and reputation, the underlying legitimacy of the legal regime is called into question. This questioning of the legitimacy of the regime has been especially marked since the recent Supreme Court decision in Dobbs v. Jackson Women’s Health Organization. While this is not an article about Dobbs, the section on property in one’s person necessarily reflects the impact of the Supreme Court’s regrettable decision.

Citibank made front page news for reasons it would rather have avoided when it mistakenly transferred $900 million of its own money to creditors of Revlon. When Citibank discovered the error the next day, it asked (initially politely then less so) for the creditors to return the mistaken payment. Several creditors refused and Citibank was forced to initiate litigation to attempt to get the money returned. This litigation is ongoing, but the first round of the battle was won by the lenders when a federal district court ruled that they had a legal right to retain Citibank’s mistaken payment under the “discharge for value” defense. This Article briefly reviews the facts and the opinion of that case. On appeal, the Second Circuit reversed that decision and held for Citibank thereby requiring the lenders to return Citibank’s money. This piece also reviews that opinion. The primary and original contribution of the piece, however, is to discuss the tax aspects of all the possible outcomes. While some tax consequences are straightforward, there are several interesting and less certain tax results that could apply to all three parties (Citibank, Revlon, and the lenders). This Article will explain those possibilities and review the tax doctrines that will apply once Citibank’s litigation has concluded.

The Supreme Court held in Cedar Point Nursery v. Hassid that a California regulation mandating that union organizers have occasional access to privately owned farms was a per se taking because it stripped the farm owners of the right to exclude. This Article focuses on questions that arise if one accepts the Court’s conclusion that the regulation is indeed a taking, including whether to permit or enjoin the taking, how to measure compensable losses, and, more particularly, whether to compensate owners because the regulation makes them more vulnerable to what they see as profit-reducing unionization. This Article argues that owners in Cedar Point Nursery are entitled to compensation only for the loss of rights that physical takings law protects—in cases like this of temporary access mandates, losses that inhere in having to share use of a portion of the property with others. Further, we must deal with the validity of laws limiting the capacity to suppress unionization efforts in their own right.