Aug 5, 2026 Lisa Owens
In K-Sue Park’s Property and Sovereignty in America: A History of Title Registries & Jurisdictional Power, it is the near-invisible, mundane title registry that is at the center of the early American settlement and dispossession of indigenous landholders.
Title registries are one of the local, everyday legal institutions that are often treated as background noise of the legal system, Through archival research, Park shows that these title registries came into being not because American sovereignty was already made manifest, but in order to manifest American sovereignty.
Early America expanded its territory by deploying title registry systems both in tandem with treaties which dispossessed indigenous property, and then, once it began its westward expansion, ahead of that dispossession. The continent could not be taken by physical force, so while settlers focused on the language of co-existence, the legal system of property interjected to “settle” claims in favor of dispossession and racial hierarchy.
Even as these registries operated as functions “open to all”, they served in reality to legalize tenuous claims to property and legitimize the now-black letter “constructive notice” in Property Law. Cheap and decentralized, the federal government benefited from land accretion to settlers, as indigenous lands and populations shrank.
Park traces American territorial expansion through the creation of these local registries. It was this massive dispossession, undergirded by the Title Registry, that enabled the formation of states. Territorial America could not have been claimed, and American sovereignty would have been impossible, without this massive transfer of physical possession to subsidize and scaffold the symbolic one.
In our present-day America, we are continually contending with the relationship between law and power. In moments of crisis, it is tempting to locate power in dramatic acts or headline-making decisions. Park’s account offers a different lesson. Sometimes, durable power is wielded by the background machinery that exists at the corners of our world, operating so quietly and persistently that at times we forget it is there. Precisely because such institutions operate without spectacle, they are less likely to be interrogated. Their persistence allows them to become embedded, naturalized, and difficult to disentangle from the social order they help produce.
Dispossession in early America did not occur only through singular acts of violence but through a steady consolidation of claims. This slow and subtle wounding did not produce resistance to stop its forward-marching force. For legal scholars today, and in particular those attentive to the ways institutions structure power, the more pressing version of these questions may be directed inward.
What would it mean to construct a counterweight to power when that power is embedded in doctrines, default rules, and recording systems that appear facially neutral and professionally indispensable? If the mechanics of dispossession were dispersed across clerical offices and ordinary procedures, what forms of critique or reform could realistically interrupt them?
Thus, K-Sue Park ultimately offers a timely reminder. The reminder is that tectonic power does not only show up in grandiose acts, but is also embedded in the mundane. The machinery of title, operating through routine filings and local offices, functioned as an engine of sovereignty precisely because it appeared administrative and unremarkable. Especially in the context of our own current legal and political milieu, a challenge also follows from that insight. Serious engagement with power continues to require concerted attention and scrutiny to even the seemingly unremarkable technologies of law and our own mundane legal routines.
Jul 2, 2026 Gregory M. Stein
Utilities must find quick ways to meet a sudden surge in the need for electricity after years of flat or declining demand. Many utilities are currently racing to meet huge increases in electrical demand by constructing new plants, refurbishing old ones, or building nuclear facilities, while also upgrading local grids.
A new report from Energy Innovation, a non-partisan think tank focusing on energy and climate, authored by Eric G. Gimon, offers creative alternatives to this approach, which he refers to as the “firm fixation.” This term reflects the common approach of building new plants to meet the demands of individual data centers, rather than adopting a more modular approach.
The sudden need for additional electricity, most notably for data centers, has enormous legal implications, particularly for land use and environmental law. Legal policy makers, however, do not necessarily have the technical backgrounds required to assess these questions.
Mr. Gimon’s report bridges that gap, addressing technical issues in a way that is approachable to lawyers and others. It will allow lawyers to make policy decisions based on a clearer understanding of the engineering issues involved.
As Mr. Gimon states, “[a] deeper understanding of data center demand attributes yields a more complete solution set which includes data center flexibility, onsite storage, portfolios of clean energy, and others.” (P. 3.) Rather than simply building and building, it may be possible to upgrade the existing system to generate power in cleaner, more creative ways.
Mr. Gimon illustrates the problem by emphasizing six important characteristics of new data center clients that the casual observer might overlook. These six features, described below, suggest alternatives to simply building more plants.
The first feature is the split-incentive problem. Different types of decision-makers are involved at different phases of data-center development. First on the scene are the center developers, who act much like real estate developers. They acquire land, water, and electric connection rights that they will later sell or lease.
Since these developers may not yet know who their future buyers or occupants will be, they feel the need to keep their options open. As a result, they may decide not to make choices that will limit the flexibility of future operators. Moreover, grid projects are likely to remain active for decades while modern chips last only a couple of years. This means that builders and their ultimate users have different incentives and different time horizons.
Feature number two is the clustering of data centers. Rather than being spread somewhat evenly across the country, data centers tend to be bunched in a small number of regions with reliable power, dense fiber, a skilled workforce, tax incentives, and available land. Clustering of this type stresses the nearby grid by increasing demand in areas that already face high demand.
New entrants to the market, moreover, will prefer to locate in areas that have already demonstrated success. These newer players are attracted to these areas, which “function as anchors, just like a department store in a shopping mall.” (P. 10.)
This clustering creates “enduring centers of digital infrastructure,” such as Northern Virginia’s Data Center Alley, which, Mr. Gimon reports, handles about 70 percent of the world’s internet traffic. (P. 10.) Demand of this magnitude can sometimes overwhelm the local grid.
The third characteristic is the fact that, contrary to popular belief, electricity demand from data centers is not steady. In fact, demand varies considerably between operational and idle states. These swings occur within very short time periods as users switch learning modes and various chips turn on and off. These types of usage swings would generally not be considered acceptable by other power users.
Electric customers such as these demand the availability of more power than they are likely to use at any given time. Mr. Gimon notes that batteries may be used as buffers against these types of variations.
Characteristic number four concerns flexibility, namely whether customers can manage demand. Mr. Gimon notes that flexibility depends on whether a data center is owned and operated by a single user or whether it houses co-located users. In the latter case, the owner has less control over what the operators demand within the facility. Once again, batteries may serve as useful countermeasures that can level off unpredictable demand.
The fifth feature is the need for backup power during outages or disturbances. While all users require nearly 100% availability, this need is especially acute for users such as banks, stock exchanges, and the military. Backup typically takes the form of diesel generators with on-site fuel storage capabilities; battery backups that can last 72-96 hours are not economically feasible at present.
However, “massive tank farms for the generators’ on-site fuel require complex fire protection, spill containment, and environmental risk mitigation,” making them impractical. (P. 14.) They also face significant permitting challenges in some jurisdictions.
The last of the six characteristics is that data centers are often built in a modular fashion. Developers construct multiple “racks” and “pods,” and a given client may need only one or a handful of these infrastructure units. As demand grows, developers can expand accordingly.
Developers, then, add modules in phases in response to market needs. This means that power demands will increase correspondingly. Thus, “projects of all sizes need a power supply that can grow and expand with them.” (P. 17.)
After describing these six important qualities of data center power users, Mr. Gimon goes on to address some of the problems power plants face. Captive power plants are not as reliable as many assume and must, for example, endure downtime for maintenance.
Beyond this concern, what happens to these plants when demand drops or the power is no longer needed? “Investors will want to know if Plan B exists and that the captive plant is in and of itself an attractive asset with a bright future.” (P. 20.) Captive plants, then, are not necessarily a feasible solution to these increased power needs.
Mr. Gimon then offers suggested solutions to these problems. “[S]ingle, stand-alone generation resource matching for any given industrial load has rarely been the historical course,” he observes. (P. 17.)
Policymakers have maximum leverage at the point where new entrants interconnect with the existing grid. This is not a time to act unreasonably, but it is a suitable moment to ensure that new users cover all infrastructure costs their projects will create. This is the surest way of “reducing the likelihood of [their] being saddled with extraordinary requirements later.” (P. 28.)
The largest users might work to reduce other demands on the grid. For example, by paying for the installation of heat pumps and rooftop solar and storage in single-family households, heavy users could reduce demand elsewhere to free up sufficient capacity within the existing system. In addition, by increasing reliance on renewables, modulating demand, and using battery storage, on-site generation may meet demand in ways that are clean, cheap, and fast.
As data centers continue to grow, there is intense pressure to build power-generating facilities to meet this suddenly stepped-up demand. Pressure of this type can have predictable effects on land use, especially in certain regions of the country.
This technical but approachable report reminds legal readers that there are straightforward alternatives to constructing more power generation facilities. It is a useful resource for legal readers who might not have the engineering background needed to understand the specialized issues but can benefit from an accessible treatment of the problem aimed at policy makers.
Jun 17, 2026 Rosa Newman
Gentrification occupies an uneasy place in property scholarship. It is often invoked as evidence of property’s distributive failures: market allocation displaces vulnerable residents, concentrates capital, and entrenches inequality. In A Civil Rights Defense of Gentrification, Professor Carol Brown challenges this dominant narrative. Rather than treating gentrification as a phenomenon inherently at odds with civil rights, Brown argues that it can, under the right legal conditions, advance core commitments of the Fair Housing Act and the broader project of residential integration.
The article’s central contribution lies in its dual task of challenging prevailing assumptions and constructively reimagining legal strategies.
On the first task, Brown surveys dominant narratives about gentrification and juxtaposes them with empirical research showing variability in displacement outcomes. As an example, she highlights cases in which investment has stabilized neighborhoods and expanded housing options without mass out-migration. By doing so, she exposes how normative intuitions about gentrification can go unexamined in legal scholarship and practice. Gentrification is often portrayed as a monolithic process of exclusion: wealthier, usually white, individuals move into lower-income neighborhoods, property values rise, and poorer residents are forced out. Brown begins by dissecting this narrative, drawing on interdisciplinary literature in sociology, economics, and housing studies to show that the connection between gentrification and displacement is neither automatic nor uniform across contexts.
On the second task, Brown moves beyond critique to articulate how legislative and administrative actors, from local zoning authorities to federal housing agencies, might recalibrate law to ensure that reinvestment enhances inclusion rather than exclusion.
Displacement, Brown explains, is contingent: it depends on housing supply elasticity, tenure patterns, regulatory frameworks, and the availability (or absence) of affordability protections. The widespread belief that gentrification necessarily harms historically marginalized communities, she suggests, often obscures more than it reveals. This is particularly true where vacant or underutilized urban infrastructure offers opportunities for community-preserving reinvestment without irreversibly disrupting long-term residents’ lives. By collapsing reinvestment into displacement, legal discourse risks misdiagnosing both the problem and the remedy.
From this foundation, Brown proposes a conceptual shift: instead of treating gentrification as a threat to be stopped, scholars and policymakers should consider whether it can be harnessed as a civil rights tool that promotes desegregation and equitable access to the city’s economic and social engines. She situates this argument within the broader goals of the Fair Housing Act (FHA) and civil rights jurisprudence, emphasizing that law has long sought to dismantle racialized and economic segregation in housing markets but often with limited success. Brown’s insight is that reframing gentrification as potentially pro-integration opens new possibilities for legal intervention. Gentrification can be reoriented toward equal access.
This reframing is significant for property law because it revamps the baseline. Much of the gentrification debate presumes that neighborhood stability, often framed as preserving existing demographics, is itself the normative good. Brown does not dismiss the value of such preservation, but she presses a harder question: preservation of what, and for whom?
In neighborhoods marked by concentrated poverty and historic disinvestment, reinvestment may introduce not only higher property values but also improved infrastructure, services, and political capital. If managed equitably, these changes can enhance, rather than undermine, the material conditions of long-term residents.
Brown highlights mechanisms such as inclusionary zoning, affordability mandates, tax incentives, and targeted subsidies to ensure that reinvestment does not devolve into exclusion. These instruments are familiar to property scholars, but Brown embeds them within a civil rights framework that gives them new normative coherence.
Instead of treating inclusionary zoning as a technocratic response to supply shortages, for example, she situates it as a means of aligning market growth with anti-segregation principles. In her account, the failure is not reinvestment itself but the absence of legal guardrails that tether property development to civil rights commitments.
The article arrives at a moment when cities face acute housing shortages and intensifying segregation. Brown’s intervention is a reminder that property law’s deepest commitments to stability, investment-backed expectations, and alienability need not conflict with civil rights objectives. Properly structured, they can serve them.
This reframing, while bold, remains attentive to implementation challenges. Brown does not romanticize market processes. She acknowledges that policymakers and community advocates have good reasons for skepticism toward gentrification and that well-intentioned reinvestment efforts can go awry without safeguards. She also recognizes that without intervention, rising rents and property taxes can destabilize low-income households. Her defense of gentrification is therefore conditional: it depends on robust regulatory oversight and sustained public investment in affordability. It is a civil rights defense that urges careful, rights-based governance of the economic forces that shape cities. This is dependent on robust regulatory oversight and sustained public investment in affordability. The article’s force lies in its insistence that abandonment of reinvestment is not a civil rights strategy; governance of reinvestment is.
The value of Brown’s article for the broader legal academy lies in its ability to destabilize entrenched assumptions and propose new normative frameworks for analyzing urban transformation.
Whether one ultimately embraces Brown’s normative conclusion, the article compels engagement. For practitioners and policymakers, the article serves as a reminder that legal tools need not be confined to defending the status quo or mitigating harm. Instead, law can be mobilized to ensure that positive social transformations are coupled with safeguards that protect and empower marginalized residents. Even readers skeptical of the article’s premise will find value in its integration of interdisciplinary evidence and its imaginative legal interventions.
In sum, A Civil Rights Defense of Gentrification is an important contribution because it reframes a contentious policy issue through a civil rights lens that is both ambitious and grounded. Brown’s work encourages readers to rethink how law conceptualizes neighborhood change, challenges us to interrogate widely held but under-examined assumptions, and points toward legal strategies that align economic transformation with commitments to equity and inclusion.
May 7, 2026 Sara Bronin
Scholarship that highlights the far-reaching consequences of the failure of American land use law to address climate change deserves our attention. That’s why, for the second year in a row, my JOTWELL review covers this critical issue. My choice last year, Jonathan Rosenbloom’s “Sacrifice Zones,” explained how local governments could deploy a variety of zoning strategies to reduce development in areas prone to natural hazards—including relocating residents.
This year, I recommend “Land Law Localism and the Climate Resilience Paradox” by Sarah J. Adams. Adams argues that we should not count on localities to reconcile their parochial motivations with the broader imperative to adapt governance frameworks to address climate change. Her detailed, expansive article urges us to recalibrate local land use regulations before we zone ourselves out of existence.
Adams begins by demonstrating that the primary mechanism by which localities regulate land use—zoning codes—are generally written to protect and preserve property rights and economic interests, and that these aims are often at odds with the need to advance climate resilience and adaptation. (Her lengthy discussion in Part II, providing myriad examples of this tension, interweaving race-related issues, and explaining the dubious, segregatory impact of local land use laws, is excellent.)
Adams explains how these conflicts lead localities to choose “protection” and “accommodation” strategies—like early-warning systems and sea walls—that facilitate development in hazard-prone areas. She acknowledges that these strategies can contribute to resilience, but she argues that over the long-term, “they facilitate hazard area occupancy and development that puts more people, structures, infrastructure, and cultural assets in harm’s way…[and] hasten[] the point at which communities will experience intolerable conditions.” (P. 64.)
Using flood risk as her key example, she delves into the National Flood Insurance Act of 1968, including a provision regarding localities’ adoption and enforcement of “adequate land use and control measures,” 42 U.S.C. § 4012(c). Despite this provision, the federal government neither requires nor incentivizes local governments to limit development in hazard areas. Adams calculates that just 12% of communities have modified their zoning laws in ways sufficient to earn discounts for their flood-insurance policyholders through a voluntary program created by the statute.
My team on the National Zoning Atlas, which has so far logged over a million pages of zoning codes across more than 9,800 jurisdictions, is producing evidence that complements this calculation. We have found that so-called floodplain zones do not necessarily limit development. In our online map, www.zoningatlas.org, users can toggle on the “FEMA Flood Map” layer to see the significant amount of development allowed by local zoning in areas subject to flooding. We have also found that many jurisdictions name floodplain zones in their zoning text, but fail to include those districts on the official zoning map. This mismatch renders the text reference meaningless.
Adams’ article has helped me understand our findings. She explains that local officials are often tempted to generate tax revenues from high-value waterfront development or build affordable housing in low-lying floodplains. They are driven by politics and the demands of existing property owners to capitalize on their investments—and kick the can down the road. Alarmingly, flooding (which she further covers in a companion article, “Federal Flood Policy and Maladaptation”) is just one of many climate hazards that Adams argues we are ill-equipped to avoid. Adams’ article warns us not to blindly extol the virtues of localism or the principle of subsidiarity (a preference for decisions made at the local level).
She might overstate when she says that scholars “[n]early ubiquitously” presume local governments are the proper authorities for a wide range of regulatory spheres. (My arguments against local control in this sphere go back to 2008, and other scholars have offered similar views.) That quibble aside, “Land Law Localism and the Climate Paradox” delivers a powerful rationale for rethinking the way we empower, require, or incentivize local governments to be part of a broader solution to our climate crisis.
Across her recent scholarship and in her prior work, Adams has articulated the mismatch, or maladaptation, between local laws and our long-term resilience, even survival. She argues that while making data-supported decisions now will be hard, it won’t be nearly as hard as the future we face without them. We would do well to heed her call to action.
Apr 9, 2026 Andrea Boyack
“The waters are rising, but so am I. I am not going under, but over.”
~ Catherine Booth, founder of the Salvation Army
In his recent article, Struggle Against the Water: Connecting Fair Housing Law and Climate Justice, Professor Jade Craig explains the outsize impact that flooding has had and will continue to have on Black communities in the United States. Rising sea levels and intense weather-related hazards destroy property and displace people. Over the past several years, more people have been displaced by natural disasters than by war. Climate changes fuel increasingly dire global and local refugee crises. The “struggle against the water” is real. Research demonstrates that so-called “100-year” floods now occur much more frequently – once a decade or even annually. Flood devastation poses a mortal threat to people living in floodplains. And a majority of the 30 million Americans who live in flood-prone areas today are both poor and Black.
It is not residents’ bad luck or poor choices that cause the disparate adverse effects of climate change. Black communities are located in climate-vulnerable areas because, for generations, racist land use policies dictated that they be located there. Today’s environmental and economic injustice is thus rooted in historic racism. There is, however a silver lining to the dark cloud of climate harms, says Craig. The imperative to respond to an impending environmental catastrophe provides an opportunity to simultaneously address persistent housing segregation and inequality.
The claim that historic injustices situated Black populations in climate-vulnerable locations is neither new nor contested (at least, by any serious scholar). Numerous studies published over the past few decades provide a wealth of both quantitative data and qualitative details regarding the forced settlements of racial minority groups in “discarded and unwanted space,” those areas which were “swampy, mosquito infested, prone to smoke from fires, and frequented by floods.” (Pp. 741, 752.) Examples are legion: Village Creek in Birmingham, Alabama; East Austin, Texas; Cadillac Heights in Dallas, Texas; along the Anacostia River in Washington, DC; and, of course, the Lower Ninth Ward of New Orleans, Louisiana, which was decimated by Hurricane Katrina in 2005. “The vulnerability of these communities to climate-induced flooding is a result of the Racial Path Dependence that began with their establishment in the first place,” asserts Craig. (P. 754.)
Craig’s thesis is that because racial injustice causes the outsized environmental harms borne by Black communities, government responses should mitigate not only the environmental harms themselves but also the underlying race-based housing inequality. Justice, logic, and morality provide theoretical support for this premise, but Craig recognizes that it will be practically difficult to design and implement an effective solution. Although state and federal disaster relief programs exist to fund aid to vulnerable community members suffering property loss, in the months since Craig’s article was published, the Trump Administration has stymied the effectiveness of those programs.
Funding (or lack thereof) is only one aspect of addressing community flood vulnerability. People impacted by climate dangers need homes and neighborhoods, not just money. Disaster relief funds can be allocated either to rebuild communities or relocate their members, but it is ineffective and wasteful to rebuild a community that will almost inevitably be decimated by another flood. Relocation may therefore be the most efficient and sustainable response to increasing environmental threats. But forcing people to leave their homes and community compounds the injustices that situated Black communities in these vulnerable areas to begin with. Craig explains that it is a “cruel irony” for “climate retreat policies” to require the same people who were forced to occupy vulnerable land to now “abandon the communities they built and called their own.” (P. 766.) As they cope with the impacts of climate change, affected people and communities must be provided with dignity alongside dollars.
Although the reality of environmental and racial injustices naturally elicits anger and frustration, Craig manages to strike a positive, hopeful note in Struggle Against the Water. Craig believes that community flooding can be framed as a “remarkable opportunity to reduce patterns of segregation and disadvantage based on where people live.” (P. 768.) As Craig points out, marrying fair housing mandates to environmental resiliency efforts is not just smart, sustainable policy; it is the law. After all, the Fair Housing Act provides that the Secretary of Housing and Urban Development and “all executive departments and agencies” shall “administer the programs and activities related to housing and urban development in a manner affirmatively to further fair housing.”
What must resiliency efforts do to meet the fair housing mandate? Craig suggests that, at a minimum, responses should reflect input from impacted communities. Fair housing requires that residential desegregation and equal access to opportunity neighborhoods should be prioritized in the context of disaster mitigation, although Craig points out that integration imposes some unavoidable costs on relocated Black individuals who lose social networks and endure the stress of insufficient neighborhood inclusivity.
Craig’s prescription for fair housing and climate justice is essentially threefold. First, buy-out or resiliency funding must be calculated prospectively and be sufficient to cover new housing, relocation costs, and necessary supports rather than simply reimburse the market value of destroyed property. Second, the use of resiliency funds must be tailored to the impacted community’s own priorities and choices. Craig believes that robust community engagement and individual counseling/education efforts can provide essential dignity and autonomy. Finally, land-use processes must pre-emptively identify sustainable solutions to community displacement. People fleeing climate disasters should have sustainably sited, racially integrated, mixed-income communities with the necessary physical and social infrastructure in place before disaster strikes. Current disaster and housing programs fail to embrace these three elements.
“In many ways, climate retreat policy provides a missed opportunity to both advance population shifts to climate-safe areas as well as fair housing goals in a market where there is very little incentive to make choices focused on the benefits of racial integration,” explains Craig. (P. 785.) Understanding the connection between racial injustices in housing and racial injustices from climate change enables community residents to win the struggle against the water. Equitable, sustainable solutions to housing inequality and environmental injustice can lift vulnerable community residents out of the floodwaters and onto higher ground, both literally and figuratively.
Mar 9, 2026 Shelley Ross Saxer
Understanding the gravity of the problem with water scarcity in the western United States is complex enough before considering the doctrine of Federal Reserved Rights. Professor Alexader Pearl in his recent article, Homelands Not Graveyards, helps readers navigate and understand this complex mix of doctrines, policies, and priorities that help the law develop in this space.
More specifically, Professor Pearl focuses on Federal Reserved Rights that are known as “Winters rights” in the context of federal Indian law water rights jurisprudence. These implied water rights were first recognized by the United States Supreme Court in 1908 in Winters v. United States, 207 U.S. 564, a case involving the Fort Belknap Reservation created by agreement in 1888.
The Winters Court resolved a dispute between non-tribal prior appropriators and Indian tribes by holding that the federal government had the power to reserve the waters of the Milk River to support the irrigation of the dry and arid portions of the reservation. These reserved water rights were based on the 1888 agreement, whether express or implied, and could not be appropriated under state law or repealed when Montana was admitted to the Union in 1889. Id. at 577.
The doctrine of Federal Reserved Rights implicitly reserves an amount of water sufficient to satisfy the purposes for which the United States reserved public land “for uses such as Indian reservations, military reservations, national parks, forest[s], or monuments.”
Professor Pearl positions his article in the uncertainty of water rights for tribal communities and their rights to tribal homelands in the Colorado River Basin after the Supreme Court’s decision in Arizona v. Navajo Nation, 599 U.S. 555 (2023).
His article brings together the primary foundations of federal Indian law to understand the Court’s decision as “the collision of Winters principles, treaty rights, and trust law.” (P. 1725.) As the Court in Navajo Nation acknowledged at the outset, the problem of water scarcity in the western United States has been with us for a long time, but it is getting worse with climate change, and the period from 2000 through 2022 was one of the driest in the last 1200 years. Arizona v. Navajo Nation, 599 U.S. at 561.
People in the western United States must use water from the resources available, and federal reserved rights are protected against state water regimes.
To illustrate the principles of federal Indian law establishing sovereignty “akin to a guardian-ward relationship with the federal government” (P. 1715), Pearl discussed Johnson v. M’Intosh, Cherokee Nation v. Georgia, Worcester v. Georgia, Ex Parte Crow Dog, and United States v. Kagama.
The first three cases, known as Marshall’s Trilogy, established tribal sovereignty with exclusive federal power over Indian affairs. However, the nature and source of congressional power over Indian affairs remains unclear after Crow Dog and Kagama. (Pp. 1720-21.) Pearl then viewed the validity of treaty rights through the decisions of Lone Wolf v. Hitchcock and United States v. Winans and perceives the Winans decision as strengthening treaty rights and confirming the federal role over Indian affairs. He reviewed the trust law decisions in United States v. Mitchell I & II and concluded that the Mitchell line of cases is relevant to water rights because resources reserved by treaty are trust assets. In addition, these cases also confirm that the federal government is bound by both treaty and a trustee’s fiduciary duty. (P. 1723.)
Finally, the principles from the Court’s opinion in Winters “that reservations included that amount of water necessary to provide a permanent home for the tribal community even if such rights were not expressly laid out in the treaty” (P. 1725), combine with these other foundations of sovereignty, treaty rights, and trust law, to set the stage for the Navajo Nation’s request in Arizona v. Navajo Nation. The Navajo Nation sought to “compel water resource planning, assessment, and other conduct as the basis of their request for equitable relief” because “the United States owes the Nation trust duties in managing water resources.” (P. 1725.)
Professor Pearl emphasizes one of many problems with the Navajo Nation opinion as “engag[ing] in legal analysis concerning Mitchell and progeny while ignoring the relevance of the relief sought.” (P. 1731.) Instead of asking whether there is a trust duty to assist in water resource assessment and planning, and then asking whether the trustee breached the duty, the majority resorted to using the United States v. Jicarilla Apache Nation decision that sought legal damages, not equitable relief as sought by the Navajo Nation. (P. 1734.) If the Court could misunderstand the difference between the remedies sought in trust claims, it could also fail to distinguish between treaty claims and trust claims, which follow different standards of interpretation. (P. 1736.)
Pearl also expresses disappointment that the Court rejected using Indian canons of construction as the basis for treaty interpretation, the exact place where they should apply. (P. at 1733.)
The Navajo Nation Court affirmed the Winters doctrine that “[t]he 1868 treaty reserved necessary water to accomplish the purpose of the Navajo Reservation.” Arizona v. Navajo Nation, 599 U.S. at 569. However, it held that while the United States maintains a general trust relationship with Indian tribes, there is not a duty “to take affirmative steps to secure water for the Tribe.” Id. at 566.
Professor Pearl’s article is a valuable read because it makes clear the implications of this decision on the security of Winters rights as tribal governments cannot rely on federal government support in their state negotiations over water rights. (P. 1737.) Adding insecurity to Winters rights, and federal reserved rights in general, will intensify the struggle of the multitude seeking access to water resources in times of climate change, shrinking water availability, and increasing water demands.
Feb 6, 2026 Shelby D. Green
The Yellowstone River ecosystem is breathtaking, unparalleled in its wonder and expanse. The river is the longest free-standing river in the United States. But, its transcendent beauty and abundance are threatened by overuse and climate change (rising temperatures, snowmelt, greater runoff, and reduced summer flows).
In Equity Along the Yellowstone, Professor Jason A. Robison laments the myriad of threats to the Yellowstone River, even as more than seventy-five years ago, an interstate compact was entered into for the asserted purpose of ensuring its future. The Yellowstone Compact is a domestic water treaty between Montana, Wyoming, and North Dakota. Ratified in 1951, the Compact aimed to establish a rational regime for allocating uses of the Yellowstone River that would avoid constant litigation in the Supreme Court. These negotiations took over two decades.
What concerns Professor Robison most about that Compact is the lack of equity in its fashioning and its implementation. Instead of fairness and evenhanded dealing—two of the usual components of equity (see Peter Charles Hoffer, The Law’s Conscience 7 (1990))—Professor Robison focuses on the marginalization of the basin tribes. These tribes include the Eastern Shoshone and Northern Arapahoe in Wyoming, and the Crow and Northern Cheyenne in present-day Montana. Their connections to the Yellowstone River go back to time immemorial. Their relationship is intergenerational, place-based, and extends beyond the River itself to the entire landscape encompassed by the River’s 71,000-square-mile basin.
Animating this article was Charles Wilkinson’s lament in The Eagle Bird: Mapping a New West (1992), where he stated that “we need to develop an ethic of place…. [which] respects equally the people of a region and the land, animals, vegetation, water, and air…. An ethic of place ought to be a shared community value and ought to manifest itself in a dogged determination to treat the environment and its people as equals, to recognize both as sacred, and to insure that all members of the community not just search for but insist upon solutions that fulfill the ethic.” [emphasis added.]
Ethics is said to refer to moral tenets or principles; the collective doctrines relating to the ideals of human conduct and character. It means imperatives regarding the welfare of others that are recognized as binding upon a person’s conduct, in a way different from the imperatives of law abidance. See Geoffrey C. Hazard Jr., Ethics in the Practice of Law 1–2 (1978).
Although the Compact, by its terms, strove toward some semblance of equity—specifically, “Equitable Division and Apportionment”—Professor Robison contends that this goal was unattainable. The necessary constituents and original claimants of the River’s bounty, the Native tribes, were excluded from the negotiations and the drafting. They were also afforded no role in the Compact’s administration.
Even as the Compact purported to protect “rights to the use of the waters of [the] Yellowstone River and its tributaries owned by or for Indians, Indian tribes, and their reservations,” those rights were not delineated, and the Compact contains no provisions for their enforcement. By necessity, equity is an evolving concept and must be seen in context as notions of right and justice have expanded over the time of human existence. Here, that context, Professor Robison suggests, is the changing attitudes and federal policies regarding Native tribes, from allotment to reorganization to termination—each era suggesting a different notion of the government’s treatment of and responsibilities toward the tribes.
Professor Robison claims that equity, as a norm, should look different in the 21st century than it did seventy-five years ago, when the prevailing attitude toward Native tribes was one of control and paternalism. He fears that construing or interpreting the Compact as relegating the basin tribes’ water rights to pre-1950 appropriative rights would indeed “affect adversely” their tribal water rights. To achieve true equity, Professor Robison turns to international water compacts for guidance. He points specifically to the 1997 U.N. Watercourses Convention, which calls for “equitable and reasonable utilization and participation.” The Convention identifies a non-exhaustive list of factors to be considered together, without assigning them any relative weight.
In the end, Professor Robison calls for equity, both procedural and substantive, as the new norm. By procedural equity, he means direct representation of each basin tribe, consistent with the federal policy of Native tribes’ self-determination as co-sovereigns, which involves principles of inclusivity and transparency. By substantive equity, he means that Native tribal rights to water must be given the highest priority, although in making the allocations, various factors should be relevant, including physical and climatic conditions, the rate of return flows, and wasteful uses, among others.
The impediments to reallocating and redesigning the Compact—whether through amendment, statutory law, memoranda of understanding, or rules and regulations—are not insubstantial, as he acknowledges. Even if political opposition could be overcome, the structure best suited to achieve fair governance might not be apparent until one approach has been tried and found wanting. Finally, an additional challenge remains: how should representatives of the Native tribes be selected?
The idea of treating Native peoples equitably seems uncontroversial in a broad philosophical sense. What resonates here, however, is the deep incongruity in the states’ actions. They entered into an agreement intended to protect a delicate, finite resource from their own excesses. Yet, they entirely omitted the interests of their neighbors—peoples whose claim to the resource predates recorded time, and for whom the water is not only essential to life but integral to their very identity. Alas, it seems in the current political climate, where the societal and economic focus is narrow and fixed on the immediate moment, Professor Robison’s plea for the original notion of “equity,” may only be aspirational.
Jan 8, 2026 Sarah Schindler
In her recent essay, Slum Managers, Professor Anika Singh Lemar interrogates the distinction between ownership and management of rental housing. Numerous legal commentators and legislators have focused on the harms associated with large commercial entities purchasing rental housing, and some have even proposed prohibiting or placing limits on certain types of ownership to address the housing affordability crisis. However, fewer lawmakers and scholars have discussed who manages these properties. Professor Lemar investigates whether management might have an even greater impact on rental housing and its tenants than ownership.
Property management often has more to do with the actual lived experience of a tenant than the property’s ownership. Indeed, it is generally the management company that is responsible for making repairs, ensuring safety, collecting rent, and carrying out evictions. As Lemar points out, small owners can also be or employ bad managers. Thus, Lemar’s thesis is that lawmakers and others interested in tenants’ rights should be pushing for laws and policies that focus more on harmful management practices and less on forms of ownership.
Lemar begins by addressing many of the problems that tenants in rental housing face, and points out that bad “landlords come in all shapes and sizes.” (P. 1210.) She then turns to the question of ownership and notes that there is still an “open question” regarding “[w]hether large-scale corporate owners generally are less likely to undertake routine maintenance and capital repairs than other landlords.” (P. 1211.) Thus, policies that attempt to limit certain forms of corporate ownership tend to romanticize the idea of small landlords without sufficient evidence that their practices are, in fact, better for tenants. Further, large corporate landlords still own a limited share of rental properties, and thus any attempts to regulate them to the exclusion of other landlords will not impact the majority of tenants or rental properties. Finally, there is some concern that, by limiting corporate ownership of rental properties, these laws could just limit renters’ access.
Lemar also recognizes that although we ostensibly have tenant protections in the form of housing codes and the warranty of habitability, those protections “largely go unenforced.” (P. 1219.) This decision not to enforce the law means that tenants suffer while owners benefit. Given this, she then turns to her solution, which is to regulate quality—a more direct approach to protecting tenants and ensuring higher-quality rental housing. While Lemar acknowledges that it is harder to regulate the management of rental properties than their ownership, she believes the ends of improving tenants’ quality of life justify the means.
There are a number of ways that states or localities could do this, but Lemar focuses primarily on two approaches: licensing and receivership. First, regulators could require licensing of property managers. While acknowledging some of the barriers to entry and other concerns associated with licensing programs, Lemar also discusses their benefits, which are most evident when they are preceded by education or training and a test of expertise. Here, this might include a seminar focused on complying with the housing code. She also believes that the “primary benefit” of requiring property managers to be licensed might be the ability of local regulators to “remove bad actors from the marketplace altogether.” (P. 1225.) That way, even if a property manager manages properties owned by multiple landlords (or one landlord with multiple corporate forms), the property manager could be removed for failure to meet standards at a single property.
While licensing should ideally prevent problems before they happen, she also discusses receivership as another solution to protect tenants after harmful or illegal housing quality issues have arisen. Unlike licensing of property managers, which does not really exist in the form that Lemar envisions, most jurisdictions do allow for receivership when a property has been glaringly mismanaged. That said, it is uncommon because it is viewed as a harsh penalty that impinges on property rights. Lemar argues that, “[r]ather than erecting hurdles to receivership, policymakers ought to ease the process . . . .” (P. 1229.) Indeed, she suggests that the process could be automated: if a property manager reaches a prescribed number of violations, the receivership process would kick in. Finally, Lemar argues that receivership could be linked with licensure—if there were a number of licensed property managers in a given jurisdiction, they could serve as the pool from which to find a receiver. At base, the essay encourages us as scholars to rethink our focus on property ownership and think more about management in the context of rental property.
Nov 27, 2025 Ezra Rosser
Professor Sara Bronin’s book, Key to the City, pulls back the curtain on how urban zoning works. And through in-depth city case studies, it shows how communities can be improved through zoning changes.
For those who write and teach in the property law space, the most interesting part of the book is probably how Professor Bronin pushes for major deregulatory changes without falling into the trap of arguing for the scrapping of all rules. And all readers who care about urban spaces will appreciate the breadth and depth of the community profiles used to both illustrate and inform Professor Bronin’s arguments.
This is a book that should be read by those who teach Property and by everyone who cares about the future of cities.
As the title suggests, Key to the City is an urbanist’s take on zoning. Professor Bronin does not shy away from the first person but neither does she let personal stories overwhelm the text. It is not a “look at me” book but instead an invitation by Professor Bronin to consider cities through her eyes.
Those who are less enamored of cities—including this reviewer who still longs for the off-the-grid cabin where he was born and struggles with the fact that even in bedroom communities you can usually see your neighbors—may not agree with the book’s attacks on suburbs or neglect of rural spaces. But if readers set aside their own anti-urban biases, Professor Bronin offers up a vision for improving urban spaces by reinvigorating communities and freeing up the creative potential of cities.
Key to the City came out of Professor Bronin’s work as head of the Planning & Zoning Commission of Hartford and as founding leader of the National Zoning Atlas, so it is not surprising that the book has examples from across the nation while still being grounded on the zoning reform efforts that happened in Hartford.
The book takes readers from the recording studios of Nashville, Tennessee (made possible by permissive zoning) to the streets of Burlington Vermont. Drawing on rich portraits of zoning issues in Austin, Baltimore, Buffalo, Burlington, Chicago, Delray Beach (FL), Galveston, Las Vegas, Nashville, Phoenix, San Diego, and, of course, Hartford, the book’s refrain is that bad zoning decisions have choked off valuable forms of urban dynamism and cities need to free themselves from overly restrictive rules.
While the housing affordability crisis, or perhaps the housing supply crisis, has led numerous scholars to highlight the need to reform zoning to allow greater density and to check on the power of NIMBY property owners, Professor Bronin takes a broader perspective on the problem of excessive regulations. Readers are likely to leave convinced of at least two things: (1) zoning should be defined broadly, and (2) thriving urban environments are often built on mixed, multi-layered uses.
Key to the City repeatedly calls out the ways car-centric transportation harms urban spaces by making development too expensive as a result of parking space requirements and by prioritizing traffic speed over walkability. Similarly, the book highlights how allowances for light industrial uses such as craft brewing, for entertainment venues such as nightclubs, and even for small corner stores in residential areas can help cities meet resident needs and support a vibrant urban community.
The final substantive chapter of the book argues for a curated approach to urban development, suggesting that planners should ensure continuity of lines and forms. Professor Bronin argues that even with such limits designed to ensure cohesiveness there is still lots of space for individual preferences.
Coming at the tail end of a largely deregulatory book, the celebration of curated neighborhoods is not fully convincing. Nor, for that matter, is the ode to the Georgetown neighborhood of Washington, D.C. as the country’s best neighborhood (curation is great if it is built on an exclusionary pile of money and privilege, but it is very hard to reproduce elsewhere). But such points actually add to the book rather detract; ultimately, Key to the City is itself a celebration of well-planned urban development, something still exemplified in these curated neighborhoods.
Professor Bronin’s work challenges readers to think big when it comes to zoning reform. And it illuminates the beauty that is possible in urban spaces and the ways in which poorly conceived regulations can thwart our collective hopes for cities. Residents in the communities with such poorly conceived regulations deserve better, and Key to the City stands as a powerful call for (thoughtful) action.
Oct 29, 2025 W. Keith Robinson
In 2020, the Supreme Court’s decision in NCAA v. Alston rocked college athletics by dismantling the NCAA’s amateurism model. In the wake of Alston, the ability of student-athletes to profit from their name, image, and likeness (NIL) has transformed college sports. Athletes are now recruited for their athletic ability and also viewed as economic actors. While the NCAA has revised its policies to allow for athlete compensation tied to NIL, the broader legal and regulatory terrain remains unstable. It is against this backdrop that Professor Mitchell Crusto’s thought-provoking article, What is Property?: A Libertarian Perspective of Name, Image, and Likeness, offers an important intervention.
A longtime leader in exploring how property law intersects with issues of race, class, and power, Professor Crusto turns his attention to the NIL revolution with great depth. His central claim is that NIL should be understood not as a right of publicity but as a form of property. That conceptual shift, he argues, would more effectively enable student-athletes to realize the economic value of their NIL while offering them stronger protection against exploitation.
Professor Crusto’s article could not be timelier. College athletics is undergoing a sea change. From the expansion of the College Football Playoff to ongoing efforts to enlarge the NCAA men’s and women’s basketball tournaments, college sports is being reshaped. Yet amid the chaos, Congress has failed to enact a national NIL framework. Instead, states have filled the vacuum with a patchwork of legislation which is often designed less to protect athletes than to give their states’ colleges and universities a competitive edge in recruiting.
Professor Crusto’s article is valuable on multiple levels. It provides a comprehensive and accessible introduction to NIL law. More importantly, it advances a compelling argument for grounding NIL rights in property rather than tort, explaining how such a move would better promote autonomy, dignity, and economic justice for student-athletes. The article also includes a proposed legislative model that would recognize and protect NIL as property. Ultimately, what makes his article so powerful is its focus on athletes because they are the ones that generate the value at the heart of college sports.
The article grounds its argument in a critique of the current legal framework surrounding NIL. Current NIL doctrine is rooted in tort law, specifically the common law right of publicity. As Professor Crusto explains, the right of publicity emerged from the broader right to privacy, a doctrine with varying definitions. That history raises concerns about whether the right of publicity can bear the full weight of the modern NIL economy.
One of the article’s key criticisms is that few states have codified the right of publicity, leaving it vulnerable to inconsistency. Even where it exists, the right tends to lack transferability which is one of the most critical features of property law. This makes it poorly suited for the commercial realities of NIL licensing. Without the ability to transfer or assign rights, NIL becomes a less useful asset. The article notes that under a right of publicity framework, NIL protections are also largely reactive. That is, they arise only when someone misappropriates an athlete’s likeness without permission. In contrast, property rights are proactive. They give the owner affirmative control over use, transfer, and exclusion.
Professor Crusto argues that grounding NIL in property law better serves the legal and economic interests of athletes. A property-based framework would allow student-athletes to license their NIL rights to third parties, who in turn could enforce those rights against infringers. It would also make clear that NIL can be transferred, inherited, or securitized. These are key to enabling athletes to participate in the same market that already governs the institutions profiting from their labor and identity. Tellingly, Professor Crusto reports that only one state, Texas, has enacted legislation addressing the descendability of general NIL rights. That statutory silence underscores the need for a more comprehensive legal theory that views NIL as a form of property.
In turn, Professor Crusto articulates three core justifications for treating NIL as property, grounding his claims in constitutional theory, economic fairness, and public policy. First, Professor Crusto roots his argument in foundational constitutional principles. He contends that NIL is a modern extension of private property embraced by the Framers and includes not only physical assets but also the right in one’s person or persona. He draws an analogy to intellectual property, noting that just as federal law protects creations of the mind, so too should it protect the attributes of identity through which individuals generate value. Under this view, the right to one’s NIL flows directly from a deeper constitutional commitment to autonomy and ownership.
Second, Professor Crusto contends that treating NIL as property is a more effective mechanism for maximizing economic value and guarding against exploitation. Property law offers tools that tort law does not: the ability to license, transfer, and inherit rights; to use NIL as collateral; and to incorporate NIL into estate planning and intergenerational wealth strategies to name a few. These are concrete advantages that could materially improve the financial futures of college athletes.
Third, Professor Crusto argues that treating NIL as property would advance several public policy goals. Most notably, it would provide stronger safeguards for athletes, many of whom are students of color or from economically marginalized communities. In addition, this framework could help address broader structural inequities. For example, empowering younger individuals to treat NIL as a transferable, inheritable asset may contribute, however modestly, to narrowing the generational wealth gap.
In sum, Professor Crusto has offered a thoughtful and timely intervention into a complex and rapidly evolving legal landscape. His article clearly lays out the current state of college athletics, explains what NIL is and how it operates under existing legal frameworks, and carefully diagnoses the limitations of grounding NIL rights in the tort of right of publicity. Further, it advances a compelling case for reimagining NIL through the lens of property law and explains the practical and policy benefits that would follow.
This is a work that will resonate across multiple audiences. It could be assigned just as easily in a first-year Property course as in a Sports Law seminar. It offers value to scholars interested in doctrinal development, to policymakers looking for implementable reforms, and to athletes and advocates working on the front lines of NIL equity. Professor Crusto has contributed to an important ongoing conversation by clarifying the rights at stake and offering a solution for how to protect them. Anyone interested in the future of college athletics and the rights of college athletes would do well to read this article.
Cite as: W. Keith Robinson,
The Case for NIL as Property, JOTWELL
(October 29, 2025) (reviewing Mitchell F. Crusto,
What is Property?: A Libertarian Perspective of Name, Image, and Likeness, 16
Harv. J. of Sports & Ent. L. 1 (2025)),
https://property.jotwell.com/the-case-for-nil-as-property/.
