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Analogous or Not?

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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2 Responses

  1. Dave says:

    Interesting analogy. One point of disanalogy is that ownership of land is zero-sum but citizenship is not. The law has to make a decision about which person gets to stay on the land: the original owner or the long-term trespasser.

    This enables a utilitarian rationale for AP that doesn’t arise in the immigration/amnesty context. The law has AP in part to punish lazy landowners, and to reward productive uses of land (even if the latter amounts to trespass).

    Since there is no “lazy landowner” to punish, and similarly no zero-sum in which the adverse possessor compares favorably to the original owner from the perspective of productive land use, this rationale doesn’t seem to map onto immigration.

  2. Chris says:

    Interesting analogy–not sure the notoriety element is there, though. Also not sure about the dense-thicket-of-statutes disanalogy, since adverse possession is generally governed by statutes of limitation for ejectment, I think.