Julia Mahoney and Ann Woolhandler, Federal Courts and Takings Litigation
, 97 Notre Dame L. Rev.
__ (forthcoming, 2021), available at SSRN
Federal regulatory takings doctrine has long been a hopeless muddle. How and when the federal courts should review takings claims—including through §1983—is the subject of an important new article by Professors Julia Mahoney and Ann Woolhandler.
The federal taking muddle is a product of a particularly unclear set of precedents. Except for narrow classes of takings claims that qualify for one of the handful of “categorical” takings rules (and it is far from clear which ones do), the question in a regulatory takings case essentially boils down to whether a regulation “goes too far.”
The Supreme Court “has generally eschewed any set formula for determining how far is too far,” requiring instead that lower courts “engage in essentially ad hoc, factual inquiries.” The three-part balancing test used to guide such inquiries, first articulated in Penn Central Transportation Company v. New York City, is so enigmatic that, as Justice Clarence Thomas recently observed, “nobody—not States, not property owners, not courts, nor juries—has any idea how to apply this standardless standard.”
One (of many) reason for the confusion is that the federal courts have had very little role in litigating takings cases for the last three decades. This is because, in Williamson County v. Hamilton Bank, the Supreme Court adopted an unusual prudential exhaustion doctrine that required property owners to litigate most regulatory takings cases in state courts.
The logic of adopting such a rule, the majority reasoned in Williamson County, was that federal courts could not determine whether a property owner has suffered an uncompensated taking until all state-law remedial procedures are exhausted. A result of adopting such a rule is that the development of takings law was primarily the purview of the state courts, with the Supreme Court usually stepping in only to resolve disagreements among them. (At times, the Supreme Court’s interventions confounded the confusion.)
Williamson County was controversial from the moment that it was decided, so it was not entirely surprising when the Supreme Court overruled it two years ago in Knick v. Township of Scott. Knick opened the door—and skeptics worry the floodgates—to federal judicial review of claims seeking compensation for regulatory takings. (Under the Williamson County rule, only facial challenges could originate in federal court.)
Knick, however, left many questions unanswered, including importantly: First, whether, as some scholars have begun to argue, federal courts ought to use other federal doctrines to avoid litigating takings claims; and second, whether (as is commonly assumed) civil rights claims under §1983 represent the right vehicle for resolving them. Julia Mahoney and Anne Woolhandler tackle both of these questions, neither of which lends itself to a straightforward answer.
I was never a fan of the Williamson County ripeness regime. I count myself among those who object to the Takings Clause’s compensation guarantee being treated as a “poor relation” vis-à-vis other constitutional rights.
Admittedly, however, my view is in the minority among legal scholars, many of whom worry that federal court intervention will harm the public interest by hamstringing land use and environmental regulations. These “minimalists” (as Mahoney and Woolhander call them) assert that Knick invites a return to Lochnerism and that federal courts should utilize the Pullman and Burford abstention doctrines to avoid litigating takings claims.
Mahoney and Woolhander’s article ably sets forth the historical record to demonstrate that the “anti-confiscation” principle has deeper historical roots than is commonly understood. This alone is a major scholarly contribution.
They also make a strong case that the factors justifying Pullman and Burford abstention—specifically the need for state court resolution of state law issues—are not present in most regulatory taking cases since federal courts are able to interpret and apply state law to the extent necessary to determine whether a taking has occurred.
Mahoney and Woolhander then ask whether §1983 is the correct legal mechanism for litigating takings claims in federal court. They are skeptical that this is the case.
They argue that constitutional challenges to the confiscatory effects of regulations were not litigated as §1983 civil rights claims seeking damages until relatively recently, and, indeed, that it is far from apparent that they were intended to be covered by the law.
Rather, these challenges historically arrived in federal court either through diversity jurisdiction or implied constitutional rights of action seeking injunctive relief. For at least two reasons, these arguments are thought-provoking and deserving of additional consideration by readers of their work.
First, §1983 provides a mechanism for property owners to be compensated for regulatory takings. Even if other mechanisms for challenging regulations exist in an era of skepticism over implied rights of action, I am not convinced that that non-monetary/injunctive relief would adequately protect owners and deter overregulation.
Second, if Mahoney and Woolhander are correct, then the implications of their arguments extend well beyond takings. Indeed, they call into question the legitimacy of the Monell v. New York Department of Social Services, which held that municipalities were suable persons under §1983.
Mahoney and Woolhandler’s work provides a solid foundation for thinking about the paths to federal court review of takings claims and sets the stage for further conversation on each of these subjects. They are to be commended to beginning this important conversation.
Cite as: Nicole Stelle Garnett, Knick, Federal Courts, and Regulatory Takings
(August 6, 2021) (reviewing Julia Mahoney and Ann Woolhandler, Federal Courts and Takings Litigation
, 97 Notre Dame L. Rev.
__ (forthcoming, 2021), available at SSRN), https://property.jotwell.com/knick-federal-courts-and-regulatory-takings/
Nancy Leong, Enjoyed by White Citizens, 108 Geo. L. J. __ (forthcoming, 2021), available at SSRN.
I recall being confused by how the average 1L Property course treated the “important” property provisions. I was struck that we spent all of our time on the 5th Amendment clause that required compensation by the government for the “taking” of private property by the government. But we did not cover the 13th Amendment, which eliminated slavery, thus impacting the property rights of (predominately) white citizens.
Why were we not talking about the 13th Amendment and the supporting legislation, §1981 and §1982 of the Civil Rights Act of 1866, which granted property rights to freed blacks? What did it mean in these statutes that all persons should have the “same right” of property as that “enjoyed by white citizens”?
Nancy Leong’s Enjoyed by White Citizens seeks to solve that mystery. In the process, she helps us better understand the meaning of property rights as a general matter and illuminates the role of property rights rhetoric in struggles for civil rights and against privileged caste status.
Leong accomplishes this task by investigating the meaning of two key terms in §1981 and §1982—“white citizen” and “enjoy”—and how such terms should shape reparative legislation to address long-standing civil rights harms.
Initially, Leong claims that the term “white citizens” should be understood in a socio-legal context. Specifically, Leong (citing the work of Brant Lee) examines how the “standard person”—whether it be in legal, educational, or economic contexts—is always assumed to be white, and how then whiteness becomes the default norm by which all experiences are judged.
The default norm of whiteness appears everywhere—in the curricular choices imposed in secondary and post-secondary contexts, rigid fashion standards, like the standard size of dresses tied to the basic sizes of white women, or the ways professional identities are defined against the unspoken default norm (i.e., “writers” versus “black writers”).
This default norm of whiteness, continues Leong, curdles into white privilege, since it obscures both the ways in which white people are privileged in social, political, and economic contexts, and the ways in which harm can flow to people of color from that white privilege.
Leong then explores the way the default norm of whiteness is present within law as well. After surveying both federal and state law, Leong concludes that the acknowledgement of racial status of whiteness is relatively limited; often occurring in idiosyncratic or archaic settings.
Consequently, §1981 and §1982, stand out for their use of the term of “white citizens.” While §1981 and §1982 encouraged the provision of civil rights for the newly freed blacks, the specific language of “white citizens” was included to address federalism concerns.
As Leong states, “[i]f the proposed statute required only that non-white people receive the same rights as white people in a particular jurisdiction, it did not require states and other localities to adopt any particular level of substantive rights. It just meant that everyone had to receive the same rights.” The primacy of federalism in shaping the legislative history of the term “white citizens” suggests that its inclusion did not seek to shift the default norm of whiteness.
Leong’s treatment of the term “white citizens” in §1981 and §1982 is useful in two distinctive ways. First, Leong situates the absence of whiteness in federal and state law. Second, Leong emphasizes that while the plain meaning of the text could be read to directly confront the norm of white default, its actual legislative history suggests a more complicated, compromised vision of citizenry during Reconstruction. Leong’s pessimistic treatment of the term “enjoyed by white citizens”, however, is softened by her account of the ways in which the meaning of §1981 and §1982 have been used by judges to correct for discriminatory harms in contract and property law.
Additionally, beyond her important claims as to the meaning of the term “white citizens”, Leong advances an important reading of the term “enjoy” which may have substantial implications for property and contract law.
Leong employs three readings of the term “enjoy”: a textual reading, a contextual reading, and a subject-specific reading. The textual reading draws on dictionary definitions at the time of the passage of §1981 and §1982, to define enjoy as “take pleasure or satisfaction in the possession or experience of,” or “to possess with satisfaction; to take the pleasure or delight in possession or, “to have possess, use with satisfaction; to have hold or occupy, as a good or profitable things, or as something desirable.”
Using this definition, the term “enjoyment” could be read in a narrow or broad sense. In a narrow reading, the term “enjoy” means that non-white people should have the same right to use their property as white people do. In a broader reading, the term “enjoy” means that non-white people should be able to “take pleasure and satisfaction” in the use of their property rights in the same way as white people.
The contextual reading of enjoyment builds on the broader textual reading, situating the term “enjoy” in Founding-era documents such as the Declaration of Independence and the Federalist Papers. The subject-specific reading examines doctrines of quiet enjoyment and loss of enjoyment of life to conclude the enjoyment means those features of property, or quality of life, that go to an experience of satisfaction, functional, and pleasurable.
Leong’s consideration of the term “enjoyment” yields considerable benefits. Her reading of the term “enjoy” connects statutory interpretation, constitutional interpretation and common law interpretation. Understanding the term “enjoyment” across different interpretative strategies deepens its relationship to the types of discriminatory harms that may harm non-white people, including the ability to enjoy food, fashion, mobility, and home. Leong’s scholarship here may help resolve ongoing discriminatory harms that have plagued the sharing economy. Moreover, a broad reading of enjoyment connects civil rights concepts explicitly to key common law principles such as the right to use.
Rich in many ways, this article is an important addition to a growing body of scholarship that seeks to revive and reconsider the moment represented by the Reconstruction Amendments, including the 13th Amendment.
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For a long time Jotwell has run two parallel sets of email mailing lists, one of which serves only long-time subscribers. The provider of that legacy service is closing its email portal next week, so we are going to merge the lists. We hope and intend that this will be a seamless process, but if you find you are not receiving the Jotwell email updates you expect from the Property section, then you may need to resubscribe via the subscribe to Jotwell portal. This change to email delivery should not affect subscribers to the RSS feed.
The links at the subscription portal already point to the new email delivery system. It is open to all readers whether or not they previously subscribed for email delivery. From there you can choose to subscribe to all Jotwell content, or only the sections that most interest you.
For anyone seeking a rational and convincing justification for private property, Hanoch Dagan’s newly published book, A Liberal Theory of Property, is a compelling read. The book provides an ideal – even utopian – vision of property ownership, arguing that such ownership is, and can only be, legitimate if it is “premised on a fundamental commitment to autonomy as self-determination or self-authorship.This commitment explains and justifies both the private authority that characterizes all property types and their inherent limitations.” (P. xii.) At the same time, the book provides many highly pragmatic descriptions of how property law actually functions to promote and protect self-authorship, as well as prescriptions for how to revise property law to accomplish this function more fully.
Thus, the book is not only a fascinating read for property law professors and political philosophy diehards, but it is a (perhaps surprisingly) valuable read for those who engage in lawmaking and law practice and who want to think about the practical legal value and limits of property ownership.
The particular limits that Dagan spends a good deal of the book elaborating are limits on the right of exclusion, often considered the sine qua non of property ownership, as well as more broadly on an owner’s private authority via ownership.
However, Dagan does not articulate these limits as critiques of the institution of ownership. Rather (and this is one of the core strengths of the book), he develops an affirmative vision of property as a vehicle for self-authorship that relies on a particular vision of the rights and obligations of all property owners that are necessary to ensure that property can promote self-authorship for all.
Thus, Dagan argues in Chapters 3 through 5 of the book, a genuinely liberal property law must rest on three foundational “pillars”: 1) “carefully delineated private authority” to ensure that ownership “follows property’s contribution to self-determination;” 2) “a structurally pluralistic inventory of property types offering people real choice;” and 3) “compliance of owners’ powers with relational justice to verify that property does not offend the principle of reciprocal respect for self-determination.” (P. 4.)
Dagan frames his discussion of these three pillars in Chapter 2 by elaborating on his mission of developing a legal theory for property law that is appropriate for a “liberal polity,” (P. 10), namely a society that prioritizes autonomy. He then completes his analysis, in Chapters 6 through 8, by discussing the institutions and contexts through which a liberal understanding of property must be developed and maintained.
Thus, in Chapter 6, Dagan argues that both the legislature and the judiciary must be involved in upholding liberal property as a human right, one that may at times restrain state power. In Chapter 7, Dagan specifies the necessary features of the market in which a genuinely liberal property can flourish. Finally, in Chapter 8, Dagan analyzes how time interacts with adjustments to ownership regimes, focusing especially on circumstance in which sudden adjustments may legitimately trigger takings claims.
While I find Dagan’s entire argument about autonomy and property thought-provoking, I want to focus for the remainder of this review on Dagan’s third essential pillar: the requirement that property ownership must comply with and promote relational justice.
In developing this pillar as a foundation for his justification of property law, Dagan departs from the “conventional” view that equality must be achieved through property and private law (if at all) by compliance with “a negative duty of non-interference,” and that any more affirmative duties to achieve equality must be left to the state, for example by levying taxes to support the poor. (P. 115.) Dagan argues instead that property law depends on and must promote substantive equality by imposing a duty on private owners to “focus on the acceptable terms of interpersonal interactions and … the demands of justice among private persons” (P. 128.)
Dagan’s argument is one of the most powerful and convincing justifications for law reforms to dismantle structural racism (and myriad other forms of discrimination and oppression) that I have read. To understand its power, it is useful to reflect on one of several pragmatic examples that Dagan provides:
Consider the private owner of a boutique café who decides not to let customers enter the premises adducing some morally arbitrary grounds, such as their sexual orientation. Suppose, more particularly, that this café is the only one to practice discrimination against gay people in Manhattan … so that … there are easy substitutes … to the owner’s bigotry. (Pp. 124-25.)
As Dagan points out, the traditional view of property would find that the owner’s bigotry was a private matter that could only be limited for certain protected classes, which (depending on the jurisdiction) may or may not include LGBTQ individuals.
Dagan, however, argues that it is inherent to a just property law that is committed to self-determination to require the owners of cafés – and any other places of business open to the public – to allow access to all individuals. In his words, “the prescription of relational justice runs directly from owners to nonowners…. Relational justice focuses on the acceptable terms of interpersonal interactions and establishes the demands of justice among private persons.” (P. 128, emphasis added.)
In addition to the context of public accommodations, Dagan examines the value of relational justice as a basis for expanding fair housing laws as well as owners’ responsibilities concerning such things as disclosure and rescue.
Especially at this time, when our society must prioritize legal interventions to address structural racism, Dagan’s insights are absolutely crucial for several reasons. His approach provides a powerful justification for requiring antidiscrimination rules both within and outside of property law. Dagan thereby greatly expands and legitimizes the menu of possible legal prescriptions to address discrimination.
At a more abstract, but still vital, level, he also develops the idea of antidiscrimination as a private obligation that each of us owes to our fellow human beings. In these and other respects, Dagan forces us to think of ownership as a tool partly for achieving racial and other forms of equality.
Equality, he argues, is essential to self-authorship. And self-authorship is the only legitimate justification for private property in a just society. Private ownership, then, obliges all owners to uphold equitable access to the resources we own. It will behoove us all to think deeply about the implications of Dagan’s argument.
She has done it again! With her new article, Turning Neighbors into Nuisances, Professor Molly Brady once more takes us back into history to enrich our current understanding of property concepts.
Three years ago, I wrote a Jot about Professor Brady’s article, The Damagings Clauses. That introduction to her work has vastly informed my scholarship on eminent domain and inverse condemnation and I again recommend it to you. In addition, among several other articles, Brady published a piece in 2019, The Forgotten History of Metes and Bounds, which contains a compelling history of this method of property demarcation and the social functions it served to encourage development.
In Turning Neighbors Into Nuisances, she examines how tort law, contracts, and regulation interacted with each other and evolved into the system of land use regulation we know today.
With fascinating facts from historical deeds, treatises, and cases, Brady brings us into the societal cultures of the 17th century and forward as our communities transformed from agrarian life into the age of the automobile, parking lots, and high density living. Her vehicle for exploring these interactions is the nuisance covenant.
As she explains in the article, the apartment complex—and the attempts to control its prevalence among single-family dwellings by equating it to the tenements housing the poor and immigrant families—served as a test to the nuisance covenant. Brady concludes “apartments served as a focal point for debates among lawyers and judges about the interactions between the common law of nuisance and the proper scope of both contractual and regulatory freedom to define that which we do not want.”
Professor Brady begins the article by recognizing the current trend in land use regulation to move away from detached single-family zoning in order to address concerns about the “affordable housing crises, racial and economic segregation, environmental damage attending suburban sprawl, and even overall losses to the United States economy.”
Opposition to housing densification, particularly in the suburbs, might bring to mind Village of Euclid v. Ambler Realty Company in which the Supreme Court upheld the constitutionality of zoning, encouraged by the prospect of restricting apartments in a single-family area as “a right thing in the wrong place, – like a pig in the parlor instead of the barnyard.” This then leads us to the concept of nuisance and the interaction of this tort with the regulatory power to zone for the public good to avoid harmful uses.
Brady’s article “tells the story of the rise and fall of the nuisance covenant toward three different ends: (1) to illustrate how developers and owners used this hybrid legal device to prevent unwanted uses that tort and contract law could not independently exclude from neighborhoods; (2) to indicate how these covenants came to communicate strong messages about the nature of unwanted uses across time and place; and (3) to show how and why the nuisance covenant proved ill equipped to confront a new land-use challenge – the apartment building – and how both its failures and its legacies ultimately shaped the push for formal zoning regulation.”
She explains the advantages of nuisance covenants over nuisance law based on the ability to use private covenants to specifically identify unwanted activities. Some of these activities would qualify for exclusion under common law nuisance, but others were more “nuisance-like” and would probably not satisfy the nuisance requirements, but could be enforced as private covenants.
Brady takes us behind the curtain of history to examine decades of litigation over nuisance covenants and illustrates how this litigation influenced both nuisance law and public property regulation. Specifically, efforts to exclude apartments (as opposed to tenements) using nuisance covenants generally failed in the courts and prompted the move towards zoning regulation.
Turning Neighbors Into Nuisances contributes greatly to our knowledge of not only the underpinnings of our land use regulation system in America, but also the interrelationships of private law and public law as society defined the boundaries of our communal life.
With the continuing scar of racial segregation in our housing patterns, Brady’s work identifies what was probably the first racial covenant in 1843, found in the Linden Place development outside Boston that “forbid sales to ‘any negro or native of Ireland.’” She then discusses the continuing efforts to exclude the unwanted through racial zoning, racially restrictive covenants, and Federal Housing Administration policies.
Nuisance covenants likely came into existence in both England and American in the early 1800s and these covenants were drafted through the end of the century copying language almost identical to the 1825 covenant litigated in Barron v. Richard. As the article notes, this copying of language, even when not relevant to the particular locality, is similar to what we have seen in contract drafting over time. Brady identifies this as the first nuisance covenant case involving enforcement in the United States.
The covenant in Barron banned “any livery stable, slaughter house, tallow chandlery, smith’s shop, forge, furnace, brass or other foundry, nail or other iron factory, or any manufactory for the making of glue, varnish, vitriol, ink or turpentine; nor for dressing or keeping skins or hides, or any distillery or brewery . . . .” Brady takes us through the replication and expansion of these lists in nuisance covenants as residential communities attempted to separate work from home, and the rich from the poor.
By combining the specification of uses with broad residual clauses using terms such as “nuisance,” “noxious,” or “offensive,” nuisance covenants avoided the strict construction of covenants by using broad language that could cover unspecified or new uses, such as apartments.
I commend to you Professor’s Brady’s historical dive into the nuisance covenants that gradually led to zoning regulation and the specification of permitted uses to avoid unwanted uses in advance of any harm and without the need to consult the common law of nuisance.
Andrew T. Hayashi, Dynamic Property Taxes and Racial Gentrification
(Dec. 23, 2020), available at SSRN
In his article, Dynamic Property Taxes and Racial Gentrification, Professor Andrew Hayashi makes the compelling case that dynamic real property tax regimes, under which gentrifying neighborhoods are taxed at a lower rate than non-gentrifying neighborhoods, encourage racial gentrification and raise challenging, previously ignored, distributional questions. (P. 20.) To put it more plainly, dynamic property taxes are real property taxes that depend upon a property’s history of values so that two properties worth exactly the same amount today, could be taxed at different rates if the properties’ values evolved in different ways over time.
As an initial matter, Hayashi’s work makes a valuable contribution to understanding just what “gentrification” is and how it affects individuals and communities. Many years ago, I attended a meeting with a mixed group of law professors and planning professors. It was there, for the first time, that I became aware that in some corners of the academy, “gentrification” is a bad word and always a bad word.
It is code for displacement of poor Black residents from their troubled inner city neighborhoods when these neighborhoods become safe again for middle-income White residents to return, bringing with them investment, renewal, safety and increased property values. The Black residents who had “always been there” when the neighborhoods were not places of investment or of safety would be slowly displaced by all the wonderful benefits that attended the return of middle-class White residents because they could not afford to pay the property taxes on their newly appreciated homes.
Before learning about gentrification from my urban planning colleagues’ perspectives, I used the term gentrification more innocuously to describe poor, sometimes dangerous neighborhoods, becoming middle and higher income neighborhoods. I recall asking my urban planner colleagues, “so for your discipline, is gentrification always bad?” Their answer was, yes. And in that moment, so much changed for me.
Today, I think it is common to understand gentrification pejoratively, with discriminatory undertones and overtones. The lines between gentrification’s victims and assailants can be more than a bit blurry.
More and more scholars, across disciplines, are writing and thinking about these intersections. For example, are gay and lesbian couples hoping for urban refuge from suburban discrimination both drivers and beneficiaries of gentrification?
It is at this difficult intersection of beneficiary and victim, that Professor Hayashi’s scholarship makes a quite interesting contribution to the complicated discussion around gentrification. Hayashi argues that by establishing the real property tax rate using a combination of the recent history of market values and current market values, our taxing system creates a “dynamic aspect in property taxes” whose racially disparate impacts result in Black homeowners paying higher property taxes than White homeowners.
Hayashi’s tax and economic expertise is on full display as he explains two of the principle features of dynamic property taxes. First, why does the distinction between using assessment caps as opposed to phase-ins matter when taxing property?
Hayashi illustrates that the assessment cap does not benefit property owners whose properties appreciate at below the set cap rate while, in contrast, all appreciating properties benefit from phase-ins because all market value increases that occur between assessment years gets added incrementally to the assessed value. (P. 5.)
Thus, “caps tend to benefit the fastest appreciating neighborhoods for a relatively long time. In contrast, phase-ins benefit all appreciating neighborhoods, but the benefits are shorter-lived.” (P. 5.)
Second, Professor Hayashi illustrates how the treatment of property upon transfer is an important aspect of the design of dynamic property taxes. Are assessed values reset to their fair market value upon transfer?
This approach discourages property transfers, as Professor Hayashi explains, because the current owner has a more favorable effective tax rate than the buyer, a phenomenon Hayashi describes as “lock-in.” Or do assessed values remain unaffected by real estate transfers so that the buyer acquires the property at the seller’s assessed value? Under this approach, the buyer benefits from owing the property with the seller’s lower assessment ratio.
As neighborhoods’ racial demographics change, so too do home values and the trajectory of these values over time. Gentrifying neighborhoods under a dynamic property tax system benefit from lower taxes as caps and phase-ins reduce the effective tax rate for these properties. The consequence is that the effective tax ratio for gentrifying neighborhoods experiencing rapid property appreciation is lower than the effective tax ratio compared to properties with stable values, modest growth rates, or declining values.
Professor Hayashi drives home the impact of dynamic property taxes for his reader when he notes that dynamic property taxes can impact racial preferences on how wealth is distributed as “homes in neighborhoods that are rapidly becoming white may pay less in property taxes.”
As we grapple with difficult problems of racial disparities, gentrification, and demographic change going forward, it will be critically important to understand as many of the alternative explanations for these challenges as possible if we hope to craft a solution. Professor Hayashi makes a compelling case that dynamic property taxes are part of an alternative explanation. His article exposes the reader to a different view of a perennial problem with the hope that with a new perspective, perhaps new solutions can be imagined.
Professor Gregory H. Shill’s recent article, Should Law Subsidize Driving?, reminds us of the hidden costs of driving that are borne, largely unrecognized, by the public.
When most people consider the costs of owning a car, they factor in typical expenses such as monthly loan or lease payments, insurance, maintenance, and gas. They probably do not consider other costs that are less directly related to their automobile ownership, including the construction and maintenance expense for public roadways, the negative effects their vehicles have on pedestrians and cyclists, and the health impacts of their tailpipe emissions.
By subsidizing driving in these concealed ways, the law partially externalizes the cost of driving, thereby transferring these disguised expenses to others and encouraging people to drive more than they otherwise would. And for the past century, laws and regulations have actively encouraged driving, quite possibly to the detriment of everyone.
Professor Shill begins his article by listing and describing the many negative effects of private automobiles, including death, personal injury, and property damage and the production of greenhouse gases. These downsides on their own do not necessarily argue against the widespread use of private cars, since the costs of driving must be weighed against its benefits. But he goes on to demonstrate, in extraordinary detail, that the growth of the private auto did not just happen on its own.
There are many ways in which our system of laws and regulations promotes and bankrolls the private use of the automobile. Professor Shill observes, “These subsidies lower the price of driving by comprehensively reassigning its costs to non-drivers and society at large.” (P. 498.)
In short, everyone in America, including the 100 million non-drivers, is indirectly paying part of the cost of driving, largely without even realizing it. Rather than weighing costs against benefits, we have consistently encouraged people to drive by underwriting driving.
The first two parts of Professor Shill’s article focus on the two most straightforward targets: laws relating directly to traffic and land use laws. Safety laws such as speed limits regularly go unenforced, allowing drivers greater freedom at the expense of those who are inconvenienced and harmed by this excess speed. This latter group most obviously includes accident victims other than vehicle occupants, particularly those on foot or on bicycles.
Moreover, the method of setting speed limits is arbitrary and obsolete, with pressure from traffic violators sometimes causing local officials to increase speed limits. Drivers rarely suffer for the failure to yield in a crosswalk, and jaywalking laws favor drivers over those on foot. Thus, the law not only encourages driving by forcing others to pay part of its cost, but “almost certainly produces a higher level of not just driving in general, but of negligent, reckless, and wasteful driving in particular.” (P. 504.)
Even though nonmotorists receive only limited benefits from the driving subsidies they are providing, “[a] person who does not own a car is still conscripted into underwriting driving in numerous ways, overpaying for everything from groceries to commuting.” (Id.) In short, “[n]onmotorists pay motorists to drive.” (Id.) Professor Shill demonstrates that the typical household may pay indirect costs such as these amounting to $1,012 to $1,488 per year. (P. 538.)
In the land use arena, zoning laws such as height limits and minimum lot sizes encourage sprawl, by restricting density and forcing would-be occupants to more far-flung locations. These artificial caps on population density increase the amount of driving that is necessary while reducing the likelihood that mass transit alternatives will flourish.
Free parking is not free, of course, which means that much of the cost of on-street parking is paid by someone other than the owner of the parked vehicle. Moreover, minimum parking requirements set forth in zoning codes mean that much valuable downtown land must be devoted to the storage of empty automobiles, driving up the cost of residences and exacerbating existing shortages of affordable housing in desirable locations. Professor Shill notes, somewhat ironically, that many of America’s most walkable cities could not legally be built today, since their layouts would violate subsequently enacted land use laws. (P. 553.)
Other forms of subsidy are even more hidden. For example, the growing popularity of taller vehicles, particularly SUVs, leads to more severe accidents and higher levels of dangerous pollutants, meaning that victims of SUV accidents are paying part of the costs of other people’s desire to operate these vehicles. The growing popularity of electric and hybrid vehicles reduces the per-mile cost of operation, thereby encouraging people to drive more.
The process of building and maintaining roads creates additional pollution. Tort law generally requires accident victims to prove driver negligence even though, Professor Shill argues, driving is an ultra-hazardous activity that should be held to a more pro-plaintiff strict liability standard. Vehicle safety standards consider automobile passengers but not those outside of the vehicle. Contract law often requires privity, making it difficult for accident victims other than a vehicle’s owner to recover from the product’s manufacturer.
Professor Shill does a thorough job of demonstrating, in clear prose and with much support, that vehicle owners are not paying all of the costs of driving. In other words, non-owners are suffering from the many externalities that driving creates and paying a portion of every vehicle’s overall cost.
He also shows the many ways in which this type of cost-shifting is intentional, with laws designed to encourage driving and discourage the use of mass transit. His final section is somewhat pessimistic, suggesting that reversing these trends will be unpopular and will take generations to accomplish, assuming that government officials even have the desire and stamina to begin this process. (Pp. 577-78.)
Once these laws begin to be modified, he concludes, their replacements “should be reoriented towards consensus social priorities, such as health, systematic safety, prosperity, sustainability, and equity.” (P. 578.)
Ultimately, Professor Shill recognizes that the automobile is sufficiently necessary that existing rules are unlikely to change much. But he also reminds us that “[a] different bargain is possible.” (P. 579.)
Our current system of driving laws and regulations does not merely reflect vehicle owners’ preference for driving but actually helped create that preference by partially paying for it. And that system “produces a higher level and risk of driving than would be socially optimal.” (P. 579.)
It is up to us whether we continue to live under such a regime or seek to modify it. Contributions such as Professor Shill’s excellent article do an effective job of highlighting these issues, so that when decisions of this nature are made, they can be made with a full knowledge and understanding of the underlying facts.
The Fair Housing Act is now 52 years old but housing segregation persists. Historically, the government itself supported and entrenched our reality of “two societies, one black, one white—separate and unequal.” Recognizing the vast and long-lasting harms caused by housing segregation and inequality, Congress passed The Fair Housing Act in 1968. The Act required government instrumentalities and partners act “in a manner affirmatively to further” fair housing (Section 8(d)). Government institutions and instrumentalities have not so acted, and inequitable and unfair housing continues, impacting all metrics of racial inequality.
Professor Kristen Barnes’s article, The Pieces of Housing Integration, addresses head on the government’s failures to fulfil the mission of the Fair Housing Act. She adds an important voice and perspective to existing Fair Housing scholarship.
Professor Barnes’s article specifically responds to some of the conclusions and solutions articulated in the important book on the subject, Moving Toward Integration, by Richard H. Sander, Yana Kucheva, and Jonathan Zazloff. The authors of Moving Toward Integration adopt a cautiously optimistic approach to the future of fair housing, concluding that “structural segregation” is “relatively low” and that recent Supreme Court jurisprudence clears the way for disparate impact litigation to “potentially address structural segregation.”
Barnes applauds Sander, et al. for their exhaustive study and multi-faceted proposal to improve housing equities, but gently removes the authors’ somewhat rose-colored glasses regarding, for example, the promise of disparate impact liability under the Fair Housing Act. Barnes notes that, historically, government actors have erected or even shored up barriers to fair housing more often than they have dismantled them.
Furthermore, Barnes shows how government relationships with two other key types of actors in the housing sector—namely financial institutions and real estate developers—have more often encouraged rather than discouraged residential segregation.
Right now, the country is poised to reverse course on the Trump Administration’s four-year mission to dismantle HUD’s 2015 directive to local governments that they fulfil the mandate of the Fair Housing Act (that they act affirmatively to furthering fair housing). As we attempt to move forward toward integration, it is imperative that we attend to Barnes’ cautions regarding both the tragic flaws of current disparate impact jurisprudence, and the unholy alliance of local governments, developers, and banks in the realm of housing.
The authors of Moving to Integration, along with many other legal scholars, have cast the 2015 Supreme Court opinion of Tx Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, 135 S. Ct. 2507 in a hopeful light. In the Inclusive Communities opinion, the Court upheld the use of disparate impact theory under the Fair Housing Act, but it established a framework for disparate impact litigation that, according to Barnes, undercut the goals of the Act and made it highly unlikely that disparate impact liability under the Fair Housing Act would serve as a robust tool to combat housing discrimination.
Although Sander, et al. suggest that disparate impact liability and the threat of disparate impact litigation can “pressure individual suburbs to cooperate” in achieving the long-deferred Fair Housing dream of integration, Barnes explains that the Inclusive Communities decision caused disparate-impact liability to be “stripped of its power and effectively neutralized so that the Fair Housing Act is prevented from performing the integrative work it was intended to do.”
In other words, although Inclusive Communities did not literally destroy disparate impact liability, it rendered this tool vastly less effective than it otherwise could have been. For example, Barnes concludes that the Court established an “unduly onerous” high bar for a plaintiff’s prima facie case of a racially discriminatory impact, requiring them to show a clear relationship between a specific governmental policy and an adverse impact.
Second, the government can fairly easily escape liability even if such a robust causal connection is shown, simply by articulating a valid state interest served by the policy in question. Barnes carefully deconstructs the reasoning of Inclusive Communities to show that its analogy to employer-employee relationships is faulty. Then, she explains that the framework articulated makes it extremely likely that disparate impact claims will fail.
Furthermore, even though Sander, et al. predict that frequently municipalities will not be able to articulate an important goal served by a policy creating a discriminatory impact, Barnes makes a compelling case for her conclusion that the business-necessity defense approach simply involves stating “a valid interest” served by the suspect policy—which municipalities should be easily able to do. In fact, a sufficient public purpose that could justify an otherwise-discriminatory policy may include “a community’s quality of life,” which is not only an amorphous concept but may itself be quasi-racist trope.
Barnes makes the important point that watered-down protection of disparate impact liability under the Inclusive Communities framework offers merely a pretense of protection from housing discrimination and is insufficient to achieve the residential housing integration that is so desperately needed. Even more importantly, she explains how disparate impact liability could and should be better framed in order to be effective for its purposes. Barnes cuts through politicized rhetoric about the rights of local governments to housing self-determination and states a conveniently ignored truth about the Fair Housing Act: “Contrary to the Supreme Court’s assertion that the ‘FHA is not an instrument to force housing authorities to reorder their priorities,’ the FHA is intended to accomplish exactly that in the name of racial equality.”
Barnes also approaches, with a healthy degree of skepticism, the suggestion by Sander et al. that creative new policies (such as mobility grants) could improve residential segregation. Any such policies must be framed against the uncomfortable truth that for decades and decades, all levels of the government—from local to federal, from legislatures to courts—have prioritized profit over integration both in their housing laws and policies and in their relationship with banks and developers.
Barnes suggests that governments need to be more proactive in their relationships with both financial institutions and real estate developers—a point that is not often emphasized in legal literature, but which is of paramount importance. Barnes asserts that “cities often do not ask for enough on behalf of their constituents.” As a former counsel to a national real estate developer, I agree. Developers will find a way to better achieve public purposes of integration and affordability if they are affirmatively required to do so, particularly in places where housing demands are strong.
As for financial institutions, Barnes points out that fair lending is still absent in Black neighborhoods, and predatory lending and its associated harms continue to plague households, neighborhoods, and society as a whole. Barnes explains that settlements from litigation relating to the Foreclosure Crisis recognized—and monetized—some public harms caused by predatory lending (the “racial surtax”), but points out that cities have not necessarily applied the compensation resulting from predatory lending harms to ameliorate the harms perpetuated.
The Pieces of Housing Integration is a concise, powerful article. Barnes adds a critically important voice to the hundreds of pages of empirical scholarship examining Fair Housing. She also explains how to fix a few of the most essential legal tools that could—if tweaked—make moving toward integration possible.
Residential housing must be integrated in order for our society, our economy, and our government to become healthy and sustainable. For fifty years, government agencies and instrumentalities have taken one step forward and one or two steps back in their journey toward integration. In order for us to actually move toward integration, explains Barnes, we must do more than come up with new programs and hope that future disparate impact litigation will be successful.
Our nation’s housing situation gets worse by the day. Even before the pandemic, subprime lending, exclusionary zoning, and modern-day redlining forced millions of households into unstable, unsafe, or unaffordable living situations. Now, with the pandemic wiping away jobs, we appear to be on the verge of an unprecedented national housing crisis that will start when the evictions and mortgage relief end. We need creative solutions now more than ever.
That’s why Lisa Alexander’s most recent law review article, Community in Property: Lessons from Tiny Homes Villages, is such a timely, significant contribution. Her work focuses on “tiny homes,” which she defines as being units of 400 square feet or less.
Given their small size, these homes will not be a year-round solution for everyone, but Alexander focuses on their utility for the unhoused. She notes that a tiny house can be quickly created. It can be affordably built. It offers privacy not offered by other housing types, such as homeless shelters. I’ll add to Alexander’s list that a tiny home uses fewer material resources both during construction and over the course of its life, through more compact development that uses less land, and a smaller physical footprint that uses less water and energy than a traditional home.
While Alexander recognizes the benefits of individual tiny homes, she believes the real power lies in many such homes arranged in communal villages. She draws from theories about progressive property, personhood, and the urban commons to assert that tiny homes villages can help model a new type of relationship with real property: stewardship.
Currently, property law prioritizes relationships with land that are rooted in title and in exclusive ownership and control. Alexander’s conceptual claim is that property law must recognize short-term, informal relationships that privilege sharing and co-management.
To support her push for law to evolve, Alexander shows that these villages have already sprung up in 39 different states. Residents do not simply contribute one-time “sweat equity” (typical for programs like Habitat for Humanity), and they do not get an interest in the form of fee simple ownership.
Rather, residents are required to contribute to ongoing community management, renovation, and decision-making, in exchange for a stable tenure in, and a right to exclude from, their housing unit. Particularly for the homeless, this structure allows meaningfully participation in a communal setting—which, according to Alexander, restores their dignity and sense of community. As stewards, they have limited transfer rights: they cannot sublease or rent their interest, or give it to anyone outside the community without the permission of the community.
Although villages are emerging, the concept of stewardship is not yet fixed in property law. For that, we have the formalistic tendency of property law—and the obsession with the numerus clausus, the set of fixed forms of ownership—to blame.
Alexander persuasively explains why the tenures of the residents of tiny homes villages created for the unhoused do not fit neatly into traditional categories, including tenancy, condominiums, cooperatives, and other similar arrangements. (For example, the participation requirement goes beyond what would be expected of an ordinary tenant.) She pushes theorists and policymakers alike to go beyond an essentialist view of property, drawing from an important article by Kirsten A. Carpenter, Sonia K. Katyal, and Angela R. Reilly, which discusses among other things stewardship on indigenous land.
Introducing flexibility into state law definitions of property and modifying zoning laws to allow tiny homes villages may be easier said than done. The Not-In-My-Backyard mentality, undertaken by owners of detached, single-family homes, has largely resisted making this kind of housing legal. The “invasion of your suburbs” dog whistle used repeatedly during the presidential campaign attempted to rally the NIMBY crowd to vote. Alexander is optimistic about the emerging Yes-In-My-Backyard (YIMBY) movement.
I hope she’s right. The YIMBYs have been gaining steam, although many groups are focused on perhaps the lower-hanging fruit of trying to legalize accessory dwelling units and transit-oriented development. I personally believe that zoning reform is a common-sense, nonpartisan issue. But if, given his campaign rhetoric, a vote for President Trump was a vote against inclusionary housing, then we as a nation have a long way to go. Let’s hope Lisa Alexander—whose terrific article explains why thinking small is thinking big—can help us get there.
Zoning has long-been regarded as quintessentially a local matter. And, states usually defer to local governments believing that they have better information about local conditions, preferences, and practices. In his article, Professor Elmendorf shows how those preferences and powers often operate to undermine state interests, particularly in ensuring housing opportunities for all its needy residents.
In July 2020, President Donald Trump thrust the issue of zoning for housing on the national scene when he proudly announced: “I am happy to inform all of the people living their Suburban Lifestyle Dream that you will no longer be bothered or financially hurt by having low income housing built in your neighborhood.” The announcement came after the Department of Housing and Urban Development repealed the “Affirmatively Furthering Fair Housing” (“AFFH”) mandate, adopted by former President Obama, in fulfillment of the aims of the Fair Housing Act of 1968.
That “Suburban Lifestyle Dream” (and its exclusive character) was first enabled by ordinances prohibiting blacks from living in certain neighborhoods. After those ordinances were struck down by the Supreme Court in Buchanan v. Warley, 265 U.S. 60 (1917), as a violation of the privileges and immunities clause of the United States Constitution, homeowners retooled with deed covenants that prohibited the sale of property to persons who were non-white.
When the Supreme Court ruled in Shelley v. Kraemer, 334 U.S. 1 (1948), that judicial enforcement of those covenants violated the equal protection clause, local governments stepped in with facially neutral zoning ordinances to keep out affordable housing. As President Trump hints, these measures had a disproportionate impact on the poor and people of color.
We have come to see that zoning affects not only neighborhoods, but the lives of people; barriers to housing development exacerbate inequality, excluding many from the economic, social and cultural benefits of communities. As Professor Elmendorf shows, the problem of housing is a cat and mouse game, with states imposing requirements and local governments coming up with stratagems to evade them.
The game seems to have begun in the 1960’s with the “Quiet Revolution,” when states intervened in local land-use decisions, at first out of concern about uncontrolled growth and the environmental impacts from development. In some cases, states stripped local governments of the power to ban outright certain land uses, but leaving them the power to regulate discrete perceived harms associated with those uses.
Development opponents who had lost a local battle could now use state law to go over the head of the local planners. This created what has been described as the “Double Veto.” This second chance was used by anti-development interests to block important development such as housing.
Professor Elmendorf shows that some states’ assumptions were wrong, such as their underlying assumptions about the connections between projected populations and housing targets. In other ways, states displayed naiveté, for example by presuming that local governments would act in good faith, when they could “legitimately” kill a housing project on the pretext of design, scale, and public benefits issues.
He wades through the various models of intervention. In the East, the Mt. Laurel doctrine, fashioned by the New Jersey supreme court, requires local governments to meet their “fair share” of the low-income housing needs or suffer the “builder’s remedy,” a judicial or administrative proceeding giving developers certain exemptions.
States in the West typically set quantitative targets for affordable housing units and some require local governments to enact and periodically update a comprehensive plan or “housing element,” that explains how they will meet their share of the housing needs based upon projected population growth. Localities without a compliant plan might lose state funds, but traditionally, they would not face the builder’s remedy.
Professor Elmendorf’s exhaustive analysis of the administrative and practical problems with both models, reveals that it is not enough to just tinker with the local regulatory baselines for housing development. Instead, states must strong-arm local governments to block retrogressive stratagems, including bad-faith exercises of permitting discretion.
He proposes a framework modeled after the enforcement scheme under the Voting Rights Act of 1965. Under this model, changes to voting rules had to be pre-cleared by the Department of Justice.
Requiring local governments to pre-clear permitting rules would function like a preemptive statewide zoning and development code; negotiated with the state, out of public view, in an administrative setting and codified as a component of the locality’s own general plan. The housing element then acquires de jure status as local law that controls permitting by local governments in reaching their housing quotas. The plan resembles a preemptive and self-executing intergovernmental compact.
Applying pressure from above, the state would use the threat of fiscal penalties to compel local governments to periodically revisit and liberalize their entire framework for housing development, including zoning maps, development standards and fees, and permitting procedures. This top-down pressure would encourage bottom up measures, by subtly shifting the balance of local policymaking authority toward more housing-tolerant factions, while giving these factions some cover from challenges by housing opponents.
What the article so cogently reveals is the seeming intractability of the housing problem, one that needs aggressive and sustained efforts to resolve. Yet, in his model, Professor Elmendorf stops short of giving states the power to rewrite the housing element, relegating them to the threat of withholding funds in case of withdrawals from the pact. But, why so? Surely, state legislatures can curtail local powers if they would frustrate larger state interests.
Professor Elmendorf’s analysis and model could and should be extended to the critical sphere of housing. All citizens are entitled to have their governments exercise police powers to serve the public safety, health, and general welfare. Ensuring access to housing comports with this power, but barriers to access do not. Local governments that have and continue to resist affordable housing may have to forfeit some zoning powers. Housing, one of the most urgent of human needs, is still being withheld from those who need it and by those in the position to ensure it.