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/.
Sep 29, 2025 Serena Williams
When teaching property law, professors often reference the historical distinction between the freehold estate and the nonfreehold estate. The nobles held the freehold estates; the peasants held the nonfreehold estates.
Thus, “from the beginning, the nonfreehold estate was seen as less important and less prestigious than the freehold estate.” Because the landlord/tenant relationship evolved from the nonfreehold estate, one might deduce that tenants are “less important and less prestigious” than property owners and thus, are less deserving of legal protections than owners of a fee simple.
Professors Clara Potter and Lauren Godshall, in their article Renting at the Edge of the World: Climate Change Protections Failing Renters, test whether that deduction is accurate and enduring. They argue that one critical area where tenants continue to receive less protection than homeowners is in the realm of climate change. They explain that current policies and programs designed to address the adverse effects of climate change are often structured around property ownership, thereby neglecting renters. This oversight exacerbates housing inequities, particularly since people of color disproportionately represent the renter population.
A central theme of their article is that laws, policies, and practices have developed such that those renting a home receive fewer protections than those owning a home. One historical example the authors briefly explore is how common law traditionally placed the risk of habitability on tenants, requiring them to bear the consequences if leased premises became uninhabitable.
Although the doctrine of the implied warranty of habitability has since emerged in some jurisdictions to protect tenants from unsafe rental conditions, questions remain about its adequacy in the face of climate-related disasters.
For instance, when a rental unit is destroyed or becomes uninhabitable due to a hurricane or flood, the tenant should be relieved of rent obligations under the implied warranty. Yet that tenant is now displaced and must compete for housing in a market simultaneously disrupted by the same event. Moreover, as the authors point out, in some jurisdictions—such as Louisiana—the lack of habitability may not excuse nonpayment of rent, leaving tenants financially vulnerable and possibly unhoused after the disaster.
While climate change threatens both renters and homeowners, the legal and policy response has overwhelmingly focused on those who own property. Renters are at risk for damage to or destruction of their rental property and government condemnation of their communities. Renters are at risk that their landlords may fail to repair and maintain the premises. Additionally, renter households may not have the financial resources to evacuate should a disaster occur. Yet, as the authors emphasize, few programs have been tailored specifically for renters affected by climate change.
Potter and Godshall review federal programs administered by FEMA, HUD and the National Flood Insurance Program that could assist renters with post-disaster benefits. Although the programs are available to renters, they have limitations. For example, financial assistance with repairs and longer-term hazard mitigation are usually only available to owner-occupied homes.
The authors also review state programs, asserting that “how a state treats renters when not in crisis is often amplified during times of crisis.” Assistance to tenants during weather-related disasters often reflects the state’s habitability and eviction protections.
Comparing how New Jersey managed relief and mitigation after Hurricane Ida with how Texas managed relief and mitigation after Hurricane Harvey, the professors conclude that certain parts of the country will be inhospitable to renters as climate change worsens. However, even in a state like New Jersey that has created some benefits for renters, programs continue to prioritize homeowners over renters.
Two local pilot programs are reviewed as well. One program in Philadelphia is designed to assist landlords, particularly small landlords renting to low-income residents, with making repairs, many related to concerns regarding climate-change habitability (e.g., heating and cooling systems and energy efficiency upgrades).
In proposing and analyzing possible solutions, the authors challenge policymakers to reimagine legal concepts to better protect renters from the detrimental effects of climate change. They recommend several reforms to ensure that tenants receive equitable treatment, including mandating landlord disclosure of prior flooding in rental units and incorporating renter needs into managed retreat policies from vulnerable areas. Most importantly, they argue for the construction of affordable, climate-resilient housing as a transformative step forward.
Rising seas, sweltering summers, hurricanes, flooding, and droughts; renters and homeowners will both suffer from the impacts of climate change. Professors Potter and Godshall emphasize how current laws and policies treat renters differently than homeowners when seeking to mitigate those impacts, leaving renters with fewer protections from the harms of climate change. Their work challenges lawmakers and legal educators alike to reconsider the legacy of the freehold/nonfreehold distinction—and, with it, the assumptions about whose interests the law is designed to protect.
Aug 29, 2025 Carol Necole Brown
Danielle Stokes,
Renewable Energy Federalism 2.0, available at
SSRN (Dec. 2, 2024).
In a time of deepening political polarization and growing judicial skepticism toward administrative power, Professor Danielle Stokes’ essay, Renewable Energy Federalism 2.0, offers a timely, thoughtful, and forward-looking response to the challenges of environmental governance in the United States. By developing the concept of “sustainable collaborative governance,” Professor Stokes updates her earlier work on collaborative federalism and provides a comprehensive framework for navigating the complex legal and political realities surrounding the renewable energy transition.
At the heart of her essay is an important conceptual evolution. Professor Stokes distinguishes between collaborative federalism, which primarily emphasizes formal cooperation between federal, state, and local governments, and collaborative governance, which encompasses a broader spectrum of actors, including private industry and civil society.
Her expanded framework recognizes that governance, particularly in the energy transition context, does not occur solely within governmental hierarchies but involves overlapping, often informal, networks of power and influence. This reorientation reflects her awareness of recent judicial and political shifts that have constrained traditional regulatory approaches.
Recent Supreme Court decisions—West Virginia v. EPA, Sackett v. EPA, and Loper Bright Enterprises v. Raimondo—serve as a backdrop for Professor Stokes’ essay. Rather than focusing on the erosion of agency authority, Professor Stokes takes these rulings as a challenge to reimagine regulatory pathways that remain constitutionally sound yet sufficiently flexible to advance decarbonization goals.
She identifies a viable path forward grounded in cooperative, multi-actor processes that can thrive even in an era of judicial retrenchment. This adaptability is one of her essay’s great strengths, reflecting a resilient scholarly approach that engages with, rather than retreats from, political and legal reality.
A defining feature of Professor Stokes’ new framework is the integration of sustainability principles at its core. She advances a tripartite structure—environment, equity, and economy—that reframes how governance decisions should be evaluated. In doing so, she challenges the long-standing dominance of economic efficiency as the central organizing principle of administrative law and environmental policy.
By elevating environmental stewardship and social equity to equal footing with economic considerations, Professor Stokes proposes a more balanced and normative foundation for energy governance. This model encourages decision-makers to weigh distributive and procedural justice alongside financial costs and benefits.
Professor Stokes’ treatment of equity is particularly impactful. She does not merely include social justice as a rhetorical flourish; rather, she embeds it in the procedural dimensions of her model. Recognizing that just outcomes require just processes, Professor Stokes calls for meaningful participation from all stakeholders in decision-making—especially those who have historically been marginalized in energy planning.
She emphasizes the value of both formal expertise and lived experience, making space for community knowledge to inform policy outcomes. In doing so, she echoes and advances the literature on energy justice, which has increasingly highlighted the inadequacy of top-down approaches that ignore local needs and informal power dynamics.
One of Professor Stokes’ most practical contributions is her clear, implementable roadmap for applying sustainable collaborative governance to renewable energy siting. She identifies five critical steps: stakeholder identification, clear articulation of roles and responsibilities, joint decision-making, plan execution, and outcome evaluation.
This procedural clarity sets her work apart from more abstract scholarly models and enhances its utility for policymakers, community organizers, and industry leaders. By providing specific guidance on process design, Professor Stokes ensures that her framework can be operationalized in diverse regulatory contexts—an essential quality for any governance model seeking to influence real-world outcomes.
Professor Stokes situates her analysis within both the existing legal environment and potential future developments, including the pending case, Seven County Infrastructure Coalition v. Eagle County. Her attention to current and anticipated jurisprudence reflects her forward-thinking perspective. Importantly, she does not treat law as a static constraint but as a dynamic field that can be shaped through principled innovation and adaptive governance strategies.
Professor Stokes acknowledges the risks posed by shifting federal administrations and the uncertainties that come with changing policy priorities. Yet, rather than offering a pessimistic diagnosis, she maintains a constructive tone and identifies governance pathways that remain open even when federal leadership is ambivalent or oppositional. This balance of realism and optimism is refreshing—and necessary—in a moment when despair can easily dominate discussions about environmental law and policy.
Finally, Professor Stokes makes an important contribution to the discourse on informal power in governance. She argues that legal structures alone cannot ensure justice if they fail to account for the influence of non-state actors and imbalances in political and economic capital.
Her analysis underscores the need to look beyond statutes and regulations to the broader ecosystem of influence that shapes energy decision-making. In doing so, she brings a critical lens to bear on governance processes and challenges assumptions that technical compliance equates to democratic legitimacy.
In sum, Renewable Energy Federalism 2.0 represents a major contribution to environmental law, energy justice, and governance theory. Professor Stokes has crafted a framework that is both visionary and grounded—responsive to doctrinal constraints yet not limited by them. Her model of sustainable collaborative governance offers a compelling roadmap for navigating the energy transition in a manner that is legally viable, socially inclusive, and environmentally responsible.
As the nation confronts the dual crises of climate change and democratic erosion, Professor Stokes’ work provides both a compass and a toolkit for building a more just and sustainable future. It stands as a model of how legal scholarship can bridge the divide between theory and practice, critique and construction, and analysis and action.
Jul 16, 2025 Donald Kochan
A new work by Professors Daniel Klerman and Stefan Bechtold, Personal Property Servitudes Revisited, is an excellent case study in when and how property rules should and can evolve. Professors Klerman and Bechtold inquire whether those buying and selling personal property (chattels) can write contracts that legally bind purchasers just as those buying and selling real property can use real covenants and equitable servitudes to bind future purchasers.
Equally as important, the authors ask whether buyers and sellers of personal property should be able to write such contracts. The traditional answer has been “no.” For a long time, concerns about notice, tracing, and administrability have limited the recognition and enforcement of servitudes attached to personal property in its transfer.
Professors Klerman and Bechtold persuasively make the case that the objections to personal property servitudes are mostly outdated—especially as technological aids help to overcome traditional obstacles to managing a personal property system that includes servitudes. The authors contend that these changes call for a “more nuanced debate about which servitudes should be enforced and which should not.” (P. 4.)
Their article provides an excellent survey of legal scholarship for and against personal property servitudes. It then explains the benefits of personal property servitudes and seeks to dispel some of the concerns with heightened recognition of them. The last third of the article examines myriad potential objections or obstacles to effective enforceability and avoidance of manipulative uses of personal property servitudes.
The traditional property-based objections to personal property servitudes have included that subsequent purchasers would have a hard time identifying the existence and scope of servitudes in personal property. Before having the confidence to engage in or set the price in a transaction, purchasers would be required to spend time, money, and other resources researching whether servitudes exist or verifying sellers’ claims regarding the existence or nonexistence of servitudes.
The ability to reliably predict what you own and limits on the ownership bundle is key. When rights are not clear or the risk of hidden threats to full ownership lingers, prices could be discounted for the risk of undiscovered information that might make a buyer’s ownership questioned or limited at some future date due to a claimed servitude. Simply the litigation costs to fight the application of a servitude might be an impediment to optimal investment in purchasing personal property. And such information costs could stymie beneficial transactions altogether or inefficiently increase transaction costs for the transfer of personal property.
To address these concerns, the authors devote the middle sections of the article to discussing the mechanics of overcoming or minimizing these notice and information cost hurdles, including exploring existing registry models (such as ship and motor vehicle registries, intellectual property registries, and real property recording systems) for guidance.
Professors Klerman and Bechtold then explore new electronic registries and technologies—and their potential to inform the growth of personal property servitude registries. They explain that existing registries and new technology (including blockchain, QR codes, RFID chips, NFC tags, and the like) could be used to create information repositories and verification devices that reduce these information costs. Quite simply, we have tremendous technological capability to “tag” personal property and track sales and attributes we may wish to attach through servitudes.
Similarly, Professors Klerman and Bechtold propose a management system for low-value, obsolete, and “orphan” servitudes. They explain that an easily accessible and searchable registration system could be a prerequisite for beneficiaries to be able to enforce their servitudes.
Moreover, registration fees could be charged to minimize creation of non-valuable servitudes and renewal fees could ensure and test the continuing value of enforcing a servitude over time.
Finally, requiring beneficiaries to post up-to-date contact information could ensure coordination between burdened owners and beneficiaries (including, of course, the ability to negotiate for the removal of the servitude should a current owner value the release more than the beneficiary values the retention of the servitude).
If Professor Klerman and Bechtold are correct about the administrability of personal property servitudes, their enforcement could greatly enhance our capacity to achieve certain objectives of the property system and enhance freedom of contract.
Personal property servitudes preserve the autonomy of owners who get to choose the terms and conditions associated with the transfer of their property. The greater power to choose not to sell or even to destroy includes the lesser power to transfer but with conditions.
Personal property servitudes allow goods to move in commerce that might otherwise be hidden away or held by parties because they fear what would happen if they transfer them. (These kinds of concerns are well known reasons for giving finders priority rights to encourage them to introduce the items into commerce rather than hiding them away in a drawer.)
A servitude may very well decrease the value of property because it limits what can be done with it and limits the pool of potential buyers. But, so long as the information cost hurdles are overcome by the plethora of new technologies available to trace ownership and servitude terms, the price can be adjusted to account for that.
Rational sellers will be reluctant to place servitudes on their personal property unless the value is greater than the foregone profit from being able to offer the same property in the market at a higher price without the servitude. That seems to be a pretty good check against silly servitudes.
Similarly, Klerman and Bechtold’s suggestion that registration and renewal fees must be paid to make a personal property servitude enforceable will ensure that un-valued servitudes will disappear over time rather than lingering as zombie servitudes burdening commerce by encumbering chattel in a way that unduly slows its movement to higher and better uses and users.
Sometimes a servitude might add value, especially if it helps preserve some characteristic of the personal property that will itself be a marketable component of the property that the acquirer can offer to future buyers who are willing to pay a higher price because of the servitude.
For example, imagine a painting with a servitude that it shall never be removed from its original frame which the artist herself carefully selected to enhance the visualization of the artwork. The owner of the artwork, who is subject to the personal property servitude, can offer the artwork for sale and make a credible claim that it has never been removed from the original frame.
The credibility comes from the existence of the servitude and a background expectation of past enforcement by the original seller or their assigns should the servitude have been violated. The new buyer accepts the terms of the servitude and pays more for the item than the buyer would have paid had no servitude existed because the buyer now owns an asset imbued with this extra guarantee of authenticity that makes the artwork even more valuable when this new buyer becomes the next seller.
Professors Klerman and Bechtold have proposed a path that could revolutionize what it means to truly own personal property. Their article is very likely to uniquely influence the future evolution of property law in a changing world.
Jun 18, 2025 P. T. Babie
Bram Akkermans & Lorna Fox O’Mahony,
Resilient Property, Climate Change and the Decision in Verein KlimaSeniorinnen Schweiz v Switzerland, 2024
Conveyancer & Prop. Law. 369, available at
Essex Research Repository (embargoed until Dec.1, 2025).
Climate change is a property problem. Exploitation of the world’s resources made possible by the concept of private property causes climate change.
Yet, property forms part of an iterative cycle. Just as it causes climate change, the consequences of global warming change property. So property is also a climate change problem. And because it is, the solutions to the problems it creates lie within the concept of property. In Resilient Property, Climate Change and the Decision in Verein KlimaSeniorinnen Schweiz v Switzerland Bram Akkermans and Lorna Fox O’Mahony show us how that might be.
In Verein KlimaSeniorinnen Schweiz v Switzerland, the Grand Chamber of the European Court of Human Rights’ (ECtHR) found that critical gaps in the Swiss Federation’s framework for mitigating climate change constituted a violation of the European Convention on Human Rights (ECHR) art. 8, which includes a right to effective protection by the State authorities from the serious adverse effects of climate change on lives, health, well-being, and quality of life. Akkermans and Fox O’Mahony examine the Grand Chamber’s treatment of art.8 ECHR, “apply[ing] the analytical toolkit of Resilient Property Theory (RPT) to consider the implications of…KlimaSeniorinnen for property law.” (P. 380.)
The importance of RPT, a concept first developed by Lorna Fox O’Mahony and Marc Roark (in Squatting and the State: Resilient Property in an Age of Crisis (2022)), and applied by Akkermans and Fox O’Mahony in this article, lies in its attempt to go beyond the merely transactional dimension of property to tackle “wicked” property problems (such as climate change) and, in doing so, to consider the implications of property law and policy for a range of individual (owners, tenants, mortgagors, trespassers, citizens), aggregated (neighbourhoods, associations, communities), and institutional (public/state, private/market, governmental and legal institutions) stakeholders. (P. 380.)
The “needs and interests of these stakeholders interact across three distinct registers of scale: the rhetorical or narrative scale on which the nature of property and property values are debated and on which political statements about the nature of property rights are made; the jurisdictional scale of property rights and entitlements, which is embedded in the wider democratic legal order; and the material scale of property—and specifically land—as a physical, material resource. These registers interact with “property” and “time”, defining and shaping how we interact with land resources.” (Pp. 380-81, footnotes omitted.)
Applying RPT to land law reveals not one lens alone, but three distinct lenses through which we must view property: contextual, methodological, and legal. Each is widened when viewed from the perspective of climate change. (Pp. 381-92.)
As any first year law student knows, because they are told as much, property is not a thing but an abstract sets of rights. Akkermans and Fox O’Mahony argue that climate change reveals an incongruity between the abstractions we are taught, and the reality of the material scale—the object of property, in this case land—to which property applies; and RPT widens this contextual lens so that property can encompass both scales.
Abstract property rights attempt to avoid the physical materiality of the object of property and, as such, allows the law to avoid the very real and detrimental impact of decisions made using those abstract rights—climate change—for the sustainability of the land resource. (Pp. 381-85.) Law, then, “masks the complex, dynamic and networked nature of peopled landscapes, allowing landholders to disown the adverse consequences of their proprietorship.” (P. 384, citing Nicole Graham.)
The methodological lens focusses on the subjects of property, those who are affected by the outcomes for the land of dematerialisation. Property, through its abstractions, discounts the lives of those who might live in or be affected by resource exploitation, and the lives of those yet to be born. (P. 385.)
Social, political, economic, and environmental change wrought by property means that there are an entire range of individual and networked stakeholders that the abstract conception of property cannot “see.” Such a narrow focus, concerned only with those who are parties to traditional transactional concerns of property law, at best misses, at worst wilfully ignores the reality of so many who are affected by the implications of climate change, both here and yet to come. (Pp. 387-88.)
Finally, the view of property allowed by the widened contextual and methodological lenses requires a final widening of the legal lens. Akkermans and Fox O’Mahony argue that “the acceleration of climate harms requires adaptation and a transition from narrow perspectives focused on “property rights” to property governance within a sustainable legal system, and a sustainable material world.” (P. 388.) This deploys the ‘resilience’ in RPT: “resilient systems have the adaptive capacity to remain in a functional state; to avoid “tipping” into an altered state, by maintaining equilibrium in the face of challenges or crises.” (P. 388, footnotes omitted) “A stable land law system”, in other words, “is not one that does not change, but one that can adapt to change.” (P. 389.)
For Akkermans and Fox O’Mahony, the legal change required of a resilient system of property means “prioritising: (1) adaptive goals that aim for multiple forms of resilience; (2) an adaptive system structure that is polycentric, multimodal and multi-scalar; (3) methods of adaptation and context-regarding flexibility; and (4) iterative processes with feedback loops and accountability mechanisms.” (P. 390.)
Akkermans and O’Mahony reveal the potential of property, both as law and as scholarship. As a matter of law, using RPT, we see property through the widened lenses of context—to see that property is not mere abstraction, but material and physical reality—methodology—having implications not only for the parties to property transactions, but also for those affected, physically and temporally, by transactions—and law—change and adaptation built through resilience. As a matter of scholarship, the three lenses, used in conjunction to view the implications of climate change for property law, show that far from being fragile, property is resilient, capable of being not only the source of, but also the innovative solution to wicked problems.
Cite as: P. T. Babie,
What Climate Change Reveals About Property’s Potential, JOTWELL
(June 18, 2025) (reviewing Bram Akkermans & Lorna Fox O’Mahony,
Resilient Property, Climate Change and the Decision in Verein KlimaSeniorinnen Schweiz v Switzerland, 2024
Conveyancer & Prop. Law. 369, available at Essex Research Repository (embargoed until Dec.1, 2025)),
https://property.jotwell.com/what-climate-change-reveals-about-propertys-potential/.
