Zoning is under attack from all parts of the political spectrum. Those on the right have long decried zoning, arguing that land use matters are better left to private actors who can regulate without government intervention by using covenants and servitudes. Those on the left have more recently come to recognize that zoning has been used to segregate populations along racial and economic lines. What does this widespread criticism mean for the future of zoning?
Professor Michael Alan Wolf argues in his recent article, Zoning Reformed, that zoning is too entrenched to be abolished but that it needs to be reconstituted for its second century. In particular, zoning laws need to be reformed to address three contemporary challenges: climate change, pandemic resiliency, and social justice.
Professor Wolf does not suggest that localities should abolish zoning; rather, he is worried about inertia and inaction. He writes that “to do nothing to adapt zoning and other forms of land use regulation to the stark current and anticipated realities would be an abdication of responsibility, much like waiting for COVID-19 suddenly to disappear.” (P. 177.)
In short, these important problems are not going to go away on their own, so it is imperative that we make use of zoning to address them immediately.
He starts by tracing the history of zoning, which began at roughly the same time as the last global pandemic. Early zoning codes had two goals. First, they sought to reduce the types of urban congestion that were leading to the spread of disease. Second, they aimed to protect affluent city residents from the “huddled masses” they deemed less desirable, given that the Supreme Court had already struck down overtly racial zoning schemes. This historical background section serves to remind us that, from the outset, “zoning has been inextricably linked to distinctions based on caste, race, ethnicity, and social status.” (P. 184.)
In addition to separating people, zoning also separates land uses, of course. The current pandemic brings into question the desirability of segregating residential areas from shopping and office zones.
Millions of people spent the last two years working from their homes and many of them will likely continue to do so at least part of the time. Yet current zoning codes often prohibit this mixing of uses. Describing doctors who treat patients from home via telehealth, possibly in violation of local zoning ordinances, Professor Wolf inquires, “As long as those patients are not affecting traffic and parking in the neighborhood, why is it the concern of the zoning officials and nosey neighbors?” (P. 188.)
With families forced to live in “pods,” he wonders, why should single-family zones persist? Wouldn’t it make more sense to permit the types of group living that became more common as families sought protection from Covid?
Why should people have to commute long distances, perhaps using public transit, to reach stores that might otherwise be located within walking distance? Why shouldn’t families be allowed to construct accessory dwelling units for aging parents as an alternative to moving them to senior facilities in which illnesses may spread more easily?
Why, Professor Wolf asks, should a business lose its right to operate as a nonconforming prior use merely because it was forced to shut down temporarily at the peak of the pandemic, or because it elected to modify its business by constructing a safer drive-through window?
Modest zoning amendments may be appropriate reforms to codes that were drafted without anticipating these types of questions. More generally, Professor Wolf recommends that cities revisit cumulative zoning as a means of encouraging pedestrian-oriented development.
Later in his article, Professor Wolf provides a list of possible zoning amendments, each followed by a brief explanation and justification.
For example, it would not demand a huge change to a typical zoning ordinance to allow factories and warehouses to switch to the production and storage of medical supplies and equipment. Nor would it be difficult to amend a zoning code so that shopping malls and big-box stores that have gone dark—a trend that predates the pandemic—could be transformed into food banks, testing centers, and vaccination sites.
These uses may violate current ordinances, but recent events suggest that those ordinances have become outdated for reasons most of us did not anticipate. Now that we recognize these problems, we need to update our zoning ordinances accordingly.
In his conclusion, Professor Wolf offers a six-page checklist of the types of modifications that local governments should consider. While these modifications may have made sense for years, “there should be a new sense of urgency to strengthen the weakest links in the zoning and land use regulatory chain, now that we are witnessing the serious health-related, social, and financial effects of inattention and apathy.” (P. 236.)
Zoning ordinances tend to remain on the books unmodified for long periods of time. Knowledgeable and interested individuals who need minor changes may seek variances, while the rest of the population remains unfocused on land use issues that do not affect them directly and immediately. As a result, many localities are operating under codes that have not seen major review for decades.
Professor Wolf’s article is a much-needed reminder that we need to re-examine the presumptions underlying our zoning ordinances. It is always wise to review old laws to see if they continue to serve their intended purposes. Given the many curveballs that have been thrown at all of us during the past two years, it is even more important than usual that we ask whether our land use laws are continuing to accomplish the goals for which they were adopted, particularly when some of those goals are evolving rapidly.
Professor Wolf’s article is timely, thoughtful, and creative. Even if you do not agree with some of the modifications that he proposes, there are many other necessary and useful ones to choose from. Zoning Reformed is an important and worthwhile contribution that arrives at just the right time.
Noah M. Kazis, Fair Housing, Unfair Housing
, __ Wash. U. L. R. Online
(forthcoming), available at SSRN
Walking across the parking lot from my law school to the annex building where my office is temporarily relocated, I spotted a trusted and dear colleague. She and I hugged and soon started talking about a sore topic for me, how my 1L property course was coming along. This is the second year I have been relegated to teaching my once four credit course as a two credit course. Just another one of the tragic consequences of Covid, I guess.
Only having two credits has meant that the discussion of many property topics, including housing law, has been truncated. In frustration, I uttered the words, “I’m just going to KISS it.” Her eyes widened as she inquired, “KISS it, what is that?” I replied, “I’m Going to Keep It Simple Stupid.” We looked at one another knowingly, we both laughed, and continued on our separate ways to our offices.
Soon thereafter, I came across Noah Kazis’ article, Fair Housing, Unfair Housing, in which he makes an insightful contribution to the seemingly intractable problem of unfair housing practices. Kazis’ thesis confirmed my weeks earlier conversation with my colleague; sometimes the best solution is found in keeping it simple.
Kazis offers his reader a plausible approach to impeding practices destined to result in unfair housing practices. Instead of focusing on defining and promoting fair housing, Kazis asks his reader to focus on how to eliminate practices that are certain to promote unfair housing outcomes.
The 1968 Fair Housing Act (FHA) mandates that the federal government and its grantees affirmatively further fair housing. In the more than 50 years since the FHA’s enactment, the country has made only modest progress towards significantly curtailing discrimination in housing.
As Kazis explains, the definition of fair housing is “multi-faceted, contested, and open-ended” as are the political, economic, social, and land-use regimes across the 50 states and their suburban, urban, and rural localities. (P. 7.) As a consequence of the indeterminacy of the definition and the complexity of the national housing landscape, we end up as a country where we are now. Without a consensus on what is “fair housing,” states and localities are virtually unencumbered in articulating their visions of fair housing, often to the detriment of making sustained progress in reducing discrimination in housing.
Kazis asks his reader to disrupt this way of thinking and to pivot away from trying to prescribe what constitutes fair housing. He suggests an alternative path.
Instead of articulating what fair housing looks like across the nation’s localities, Kazis encourages us to keep it simple and instead focus on the exclusionary practices that most scholars, planners, and housing experts agree tend to promote or increase exclusionary housing. Such practices include large lot zoning, bans on multi-family housing, and public housing residency preferences in predominantly white communities. (Pp. 15-16, 18.) The fix is found in dealing with the obvious first; those practices that are either already illegal or that should be suspect.
Kazis’ strategy can be imagined in two parts. First, HUD should focus on housing policies that a broad consensus of experts, advocates, providers, and consumers of housing agree are impediments to fair housing. HUD would promulgate and maintain a list of specific policies and practices, both public and private, historic and quantitative, that are suspect because of their correlation with unfair housing practices.
Second, public and private actors that maintain any of the identified suspect practices could continue these public or private practices provided they could justify, in detail and with specificity, why the suspect policy did not make housing less fair. Actors would be required to quantify the precise impacts of their suspect policies in order to address or justify them. If a public or private actor failed to meet its burden, it would be required to fully mitigate the impacts of its choices that result in unfair housing. (P. 16.)
In our complex, federal system, it is much harder to articulate a national solution to unfair housing than it is to identify laws, policies, and practices that almost facially make unfair housing more likely to occur and to persist. Kazis shifts the burden onto state and local governments to justify policies that HUD has identified as warranting special scrutiny.
His proposal seeks to clearly identify and focus on the “worst practices” that make unfair housing so pernicious. In so doing, Kazis argues there is a greater likelihood of connecting antidiscrimination enforcement processes with existing fair housing planning. (P. 18.)
Kazis is articulating one vision of how to create “clear metrics or policy prescriptions” to achieve fair housing. (P. 13.) He seeks to build upon consensus, those practices we can all agree tend to impede fair housing. Let us identify the worst practices, that destine us for unfair housing outcomes, and then incentivize states and localities to abandon these worst practices by subjecting them to consistently and persistently high levels of scrutiny. “It is time to refocus on unfair housing”–indeed.
Transportation policy is often overlooked in the legal academy. As far as I can tell, there are no traditional casebooks on the subject, no academic law blogs focusing on it, and no courses at the major law schools whose course catalogs I just happened to search.
Yet our transportation choices are hugely important. They shape our access to jobs, housing, schools, and economic opportunity. They impact our quality of life and our independence. From whether the mayor is fixing the potholes or whether the President will pass the infrastructure bill, transportation is the subject of constant debate at all levels of government.
A recent Iowa Law Review symposium, The Future of Law and Transportation, shone new light on the array of legal issues embedded in transportation decisions. It resulted in thirteen essays covering everything from the auto loan crisis to structural subsidies of sprawl. Among these, I think Reclaiming the Streets, by Vanessa Casado Pérez is especially worth a read because it deals with something most of us encounter every day but rarely consider—sidewalks.
When it comes to sidewalks, people tend to fall into two camps. The Jane Jacobs camp romanticizes them as hosting “an intricate ballet in which the individual dancers and ensembles all have distinctive parts which miraculously reinforce each other and compose an orderly whole.”
The Shel Silverstein camp holds the grim view expressed in the poetic childhood mainstay “Where the Sidewalk Ends”—“this place where the smoke blows black / And the dark street winds and bends. / Past the pits where the asphalt flowers grow.”
Writing this piece at a desk overlooking a busy park, I fall into the Jacobs camp: every day, I see how sidewalk life adds charm and vitality to our shared public realm. Pérez does, too. She spends the first part of her essay selling the benefits of sidewalks. She claims that sidewalks can “make us just as happy as when we fall in love.” She also points out that sidewalks encourage people to walk, making them healthier. They positively impact real estate prices. And they save pedestrians’ lives, too.
In making these arguments, Pérez relies on planning literature too often excluded from law reviews. She swiftly dispenses of criticisms of sidewalks. She shows that fears that sidewalks bring crime are unfounded, relying on behavioral research proving Jane Jacobs’ observation that eyes on the street make it safe. Further, she addresses the critique that sidewalk pavement could have negative environmental benefits, arguing that getting people out of their cars reduces pollution, and smart sidewalk design can mitigate storm water runoff and urban heat island effects.
Pérez then observes that the COVID-19 pandemic has allowed more people to experience the value of sidewalks, which have become our shared, safe, outdoor living room. During the pandemic, cities have expanded sidewalks into street parking, often allowing outdoor dining or adding other amenities like benches or performance space. She argues that this expansion is legally consistent with the public right of way easements in the cross-section of the street.
At the same time, Pérez points out the difficulty in making these pandemic-era choices permanent. For one thing, many sidewalks are owned or controlled by private owners. For another, transportation funding structurally favors roads, leaving fiscal breadcrumbs for sidewalks.
As an additional approach, Pérez suggests zoning and other land use regulations change to support sidewalk life. Enabling denser development and mixed-use development can complement and inspire public investments in sidewalks. She examines and supports implementation of design guidelines favoring walking infrastructure, like the Urban Street Design Guide offered by the National Association of City Transportation Officials. (I reinforce her calls for these changes in my piece in the same Iowa Law Review volume.)
Pérez hints at the issue of equity in sidewalk provision, mentioning that minority and low-income neighborhoods see more pedestrian crashes than neighborhoods without those characteristics. Roads without sidewalks, or with poorly provisioned sidewalks, see more pedestrian injuries. For readers hoping to further connect the dots between infrastructure funding and equity, I recommend Transportation Policy and the Underdevelopment of Black Communities, also in the Iowa Law Review volume, by NYU professor Deborah Archer. (In another Jotwell post, Sarah Schindler wrote about Archer’s 2020 article, “White Men’s Roads Through Black Men’s Homes.”)
In sum, Pérez’s tidy essay illuminates key policy issues associated with this seemingly mundane urban feature. Scholars and practitioners must think more carefully about the kinds of reforms that can ensure that we have the kinds of sidewalks worth our arabesques, pliés, and pas de deux.
In his recently published book, Regulatory Takings After Knick, Total Takings, the Nuisance Exception, and Background Principles Exceptions: Public Trust Doctrine, Custom, and Statutes, David Callies supplies an instructive overview of the Supreme Court’s framework for analyzing regulatory takings challenges. In so doing, he turns his attention to one of the most significant land use decisions in decades, Knick v. Township of Scott, Pennsylvania.
Nearly 100 years after its Pennsylvania Coal v. Mahon decision, the Court in Knick overruled a portion of the ripeness test for takings claims it established in Williamson Co. v. Hamilton Bank in 1985. The Knick decision eliminated the ripeness hurdle, pursuant to which, a landowner had to litigate an inverse condemnation claim in state court and have the court deny just compensation before suing in federal court. Knick left in place the finality requirement from Williamson Co., which requires a litigant to obtain a final decision from the relevant government entity before bringing a takings claim.
Landowners and property rights advocates hailed Knick as eliminating the “Catch-22” that litigants experienced under the Williamson Co. test, which required property owners to sue in state court first and then face claim preclusion or res judicata when they attempted to bring a subsequent federal challenge under the Fifth Amendment.
In Chapter 1 of his book, Professor Callies provides a detailed view into the problems encountered under the Williamson Co. ripeness test. He illustrates how Knick both eliminated the state action requirement and lowered the jurisdictional barrier to federal court by establishing the discretionary nature of the remaining ripeness doctrine. The result of the Knick decision is that ripeness no longer acts as a jurisdictional barrier to federal court.
Professor Callies also explores the 2017 Hawai`i Supreme Court decision, Leone v. County of Maui, to illustrate the importance of providing federal court access for regulatory takings claims. He explains that in Leone, the state high court “ignore[d] federal case law on regulatory takings.” In so doing, he reveals the impact and power of the Knick decision. After Knick, litigants similar to those in Leone can first bring their regulatory takings claims to federal court, thus avoiding the barriers to federal court that litigants encounter after first suing in state court.
In the remaining Chapters, Professor Callies steps through the various exceptions that could preclude a total takings claim under the 1992 decision in Lucas v. South Carolina Coastal Council. Lucas created a categorical rule for regulatory takings and established that just compensation is due whenever a government action denies a property owner “all economically beneficial use” of land.
The Court also provided an exception to the Lucas rule, writing that if the government action prevents a nuisance or is grounded in the state’s background principles of property law, the government action is not a taking. The Court explained that because property owners do not have a right to use their property for such purposes, they have no property interest to be taken.
The background principles of law exception has included the public trust doctrine, custom and customary rights, and in some cases, statutes and constitutions. In Chapters 2 – 5, Professor Callies offers a detailed discussion of the background principles and nuisance exceptions, illustrating how courts across the country have applied these concepts.
This small but mighty book offers a concise history and understanding of takings jurisprudence as it stood before and after the Knick decision. It brings clarity to a convoluted chronicle of takings litigation and presents specific situations where litigants have asserted a total taking claim and the defense has relied on the various exceptions to Lucas.
This rich and comprehensive information should aid lawyers, courts, scholars, and law students in anticipating and analyzing future factual situations that raise takings challenges. By reducing the “Catch-22” ripeness requirements, the Knick Court has given landowners greater opportunities to bring federal court challenges to government actions interfering with property rights. By carefully parsing the cases asserting the exception defenses to a Lucas categorical taking, Professor Callies has helped prepare us to address such takings claims, now coming first to federal courts.
Cite as: Shelley Ross Saxer, The Impact of Knick on Regulatory Takings and Those Pesky Lucas Exceptions
(May 9, 2022) (reviewing David Callies, Regulatory Takings After Knick, Total Takings, the Nuisance Exception, and Background Principles Exceptions: Public Trust Doctrine, Custom, and Statutes
Despite their solid, lifeless guise, monuments speak. But whose stories do they relate? Recently, there has been much debate about the role and purpose of monuments; which monuments or memorials deserve protection and which ones should be removed.
In We Are All Growing Old Together: Making Sense Of America’s Monument-Protection Laws, Professor Zachary Bray, aims to help us see that the views on these issues do not align nicely between North and South, conservative or progressive. Instead, the issue is much more multi-dimensional.
Professor Bray offers an analysis of the issue largely in the context of Confederate statue protection statutes and federal preservation laws.
While these monuments have stood boldly in the public spaces for many decades, recent events have caused us as a nation to look and ask what we are celebrating by their construction. Particularly, the Charlottesville protests of 2018 operated to thrust monuments, long in the open, into light.
Since Charlottesville, there have been many battles over all types of monuments and memorials, including namings (bridges, forts, highways and schools) and not just those celebrating the Confederacy, but also to events, persons and attitudes about industry and national fortitude and those celebrating natural areas (Bears Ears National Monument in Utah and the Owyhee Canyonlands in Oregon).
The country is now pondering the value of these in many ways—some people are violently toppling and defacing monuments; others are suing in court for their removal. In his article, Professor Bray explores what these monuments and these new contests signal about larger issues of liberty and law in the country.
He sees part of the problem as legal and the other part has to the do with stories associated with the monuments—some truthful, some contrived, and others imagined. He points out wide-ranging love and antipathy for monuments, depending on a host of factors—whether one lives in the area of a national monument (those residents feeling put upon by outside power) or in former Confederate states (those still clinging to the Lost Cause narrative).
As both natural and manmade monuments are imbued with a degree of permanence (by their protection against development and by their mass), so too do their messages take on such a character. Interestingly, preservation of some monuments with objectionable or unpopular messages are sometimes independently claimed to be worth saving on account of architectural merit. But, can we really separate those features?
Noting this conflict exists in other countries as well as here in America, Professor Bray maintains that there is yet something unique about America that makes the issue particularly intractable.
Given our colonial history, the early idea that erecting statues to war heroes (George Washington, being the first considered) was worryingly reminiscent of the monarchy just overthrown. In the words of John Quincy Adams, “Democracy has no monuments.” Congress rejected the idea of a mausoleum to Washington and the suspicion of built memorials endured.
But, there was a gradual shift in attitudes leading to the creation of rural cemeteries in the nineteenth century that commemorated events of the lives of the most significant events in the early history of the country. This shift in turn led to the filling up of public spaces with statues of war dead.
Over time, the messaging became more overt and oppressive to some, the Lost Cause Mythology in particular. The early attitudes against manmade memorials seemed to carry over against natural monuments—nature being viewed as “hostile, even demonic.” Not until the mid-nineteenth century did we begin to revere natural landscapes and begin to see a similar transformation towards Native American history and the appreciation for archeological resources.
Yet, America remains of two minds about memorials. To understand the differing views, it is necessary to consider the complex regimes at work to see what they aim to protect—from the Antiquities Act of 1906 to the National Historic Preservation Act of 1966 (NHPA) to the state statue protection statutes. While the federal laws purport to be content neutral, this is clearly not the case with the state statue protection statutes, which exist in eight southern states, and are most clearly aimed at protecting monuments to the Confederacy. By their terms, these state statutes constrain local governments and communities from any decision-making on the values of retaining certain statues in their public squares.
While most of the monuments currently in controversy were erected during the height of the post-Jim Crow era, some of the statue protection statutes were enacted or proposed in just the past couple years—for example, in North Carolina in response to the removal of the Confederate flag and in the South Carolina state capitol after the Charleston church massacre. Monuments outside the South have also been the subject of public condemnation, including the statue to Columbus in Columbus Circle in New York City.
After comparing the preservation of historic properties under the federal regime, Professor Bray asserts that state statue protection statutes should be repealed, principally because they are constitutionally suspect—their messages are discriminatory and operate to exclude.
These state statue protection statutes are anti-communitarian and tend to divide more than unite. The NHPA and related federal statutes do a much better job at preserving those things worthy of protecting. By design, these federal statutes use the nomination process and criteria for listing on the national register as means to at least purportedly embrace the wide views of communities.
To be sure, there have been howls against Presidents’ exercise of powers under the Antiquities Act, but one significant difference between this Act and state statue protection statutes is that the Antiquities Act protects national treasures that cannot be repaired or replaced. Nonetheless, Professor Bray seems open to some proposed revisions to the Antiquities Act that would allow deeper consideration of local concerns. One could also say the National Register has a lot to make up for to include the narratives of diverse people.
In the end, Professor Bray prompts us to see that the celebration of events and figures of history is a worthy endeavor, but the decision-making process on what and how long to protect may need deeper thought.
In the most powerful and important article I have read in years, The History Wars and Property Law: Conquest and Slavery as Foundational to the Field, Professor K-Sue Park blows the cover off American property law to show the central role played by historic expropriation and commodification of Native lands and Black persons.
Conquest of land and enslavement of people make up a small or nonexistent part of most first-year property law courses. But without these two organizing principles, the property course in U.S. law schools seems disjointed and oddly Anglicized. Professor Park explains this lack of cohesion as resulting from persistent erasure of two of U.S. property law’s most foundational aspects: conquest and slavery.
Park’s work has helped to publicize the stubborn impacts of past and present racial injustices in America. Over the past year, this increasing awareness of systemic racial bias has sparked an angry backlash. As Park puts it, “[w]e are in the midst of an ongoing fight over competing versions of U.S. history.”
Park discusses four characteristics of American property law that arose to facilitate the commodification of land and people and still pervade the jurisprudence today: (i) our rectangular survey system that slices land into marketable pieces, (ii) title certainty promotion using public land records, (iii) tying ownership rewards to entrepreneurial uses, and (iv) the hyper-commodification that underlies mortgage financing. In addition, Park points out that both conquest and slavery were marked by the privatization of violent racial oppression and segregation, which appears to be another pervasive property theme rooted in this history.
Park’s exhaustive study of nearly every published property casebook over the past 130 years is especially informative. Only recently have casebooks started to include any readings on the expropriation of Native lands, typically containing exactly one case, Johnson v. M’Intosh, which, in most casebooks, is inadequately connected to the rest of the course material.
Since the 1940s, property casebooks have barely mentioned slavery, although for 60 years prior, cases pertaining to property rights in enslaved persons were routinely used to illustrate quotidian property law principles such as inheritance, conversion, and conveyancing. This tactic “presented white ownership of Black people as part of the natural social order,” (P. 16) even though slavery had been abolished.
Today’s property casebooks and scholarship “amply illustrate conspicuous avoidance of the history and legacy of American chattel slavery alongside awkward, marginal mentions of the word.” (P. 21.) It is as if we hope that if no one mentions Black slavery and the near genocide of Native peoples, these horrific histories will just go away.
But when these concepts are ignored or marginalized in law schools, students never adequately consider the impact that conquest and slavery have had and continue to have on our property law system.
Expropriation of Native lands and Black chattel slavery in America are not simply historic facts to be learned. They made our law the way it is today. For example, laws creating rectangular surveys facilitated land partition, recorded land titles promoted marketability, and creditor rights to real estate encouraged expansion and monetization of land which, in turn, encouraged white settlers to expand and assist in expropriating Native lands.
A contorted conception of labor and forceful and absolute private property protections evolved in large part to protect the institution of race-based chattel slavery. The values and concerns motivating such property law developments are the fabric out of which our modern property law was woven.
Echoes of slavery and conquest still run through and influence virtually every part of property law. The traditional Anglo-centric framing of property law obscures all these impacts.
Erasure of conquest and slavery from the property law curriculum sets up a dissonance between property theory and property reality. Property theory is dominated by first-in-time, labor theory, and possession. None of these theories, however, can justify conquest or slavery.
Marshall’s opinion in Johnson recognized limited occupancy claims of Native Americans, but the case denigrated first-in-time rights held by indigenous peoples and thus abrogated the maxim.
Locke’s labor theory fares no better when held up against the facts of land expropriation. Although Locke spoke of tilling and planting land as sufficient to justify private ownership, American real property law only rewarded labor that changed a piece of land into a marketable commodity through mapping and establishing record title certainty. Furthermore, Locke’s labor theory starts with the presumption that every person is inherently, naturally entitled to their own labor, but explicitly excludes “the wild Indian” and African peoples from having that natural right.
Property law claims to adopt a possession-based approach to allocation determinations, but acts of dispossession were required to transform places and people into things subject to ownership in America. As Park explains, “lands acquired monetary value upon Native removal from them, actual or projected; human beings acquired monetary value upon their subjugation.” (P. 35.)
Because American colonists acquired property rights by forcibly wresting control away from others, U.S. property law “flipped the ancient priority of maintaining the status quo on its head” (P. 45) and created a property system founded on expropriation rather than security.
The genius of Park’s framing is that once the system is viewed as an expression of the desire to subjugate lands and enslave persons, many other distinctive facets of U.S. property law take on new meanings as well. Framing our property law as essentially a mechanism to encourage commodification and monetization of resources at all costs—including through violence and dehumanization—causes doctrines of accession, free alienability, privatization of public functions, self-help, and title certainty to take on a significantly different, racialized, hue.
Park’s work can—and should—be the catalyst for systemic reconsideration of U.S. law school property curricula. Our property law classes teach a fiction of first-in-time rules and Lockean labor justifications. It is time for scholars and students to face facts: American rules regarding property were designed to generate money through state-sanctioned and coordinated violence and theft. The rules of property law may currently support a peaceful, predictable system of private ownership, but the system originated as the honor among thieves.
As a little girl growing up in a segregated Southern town in the 1960s, I did not understand the policies and practices that led to the creation of my neighborhood. Right after my birth, my parents purchased a very small single-family home in a newly built segregated subdivision, a subdivision created for just us, a subdivision that lacked many of the services and amenities typically available in white neighborhoods.
Reading the article Home Equity: Rethinking Race and Federal Housing Policy, written by Rachel Godsil and Sarah Waldeck, caused me to think about how federal housing policy could have led to the creation of that all-Black neighborhood that provided both a safe and an unsafe space in which to grow up.
In my childhood neighborhood, we played in the street as we had no parks and we walked to an elementary school that was built on the far side of a four-lane street and within close proximity to manufacturing facilities and railroad tracks. I do not recall sidewalks or streetlights or crosswalks, but I do recall drainage ditches and flooding and the day a schoolmate was killed by a car while she was trying to cross that four-lane street to get to school.
In their article, Godsil and Waldeck declare: “With few exceptions, the government at every level has empowered white people to create ‘white spaces’ and has both stigmatized and failed to invest in Black neighborhoods and communities.” The authors propose a rethinking of federal housing policy, arguing for a corrective policy that addresses the inequities of the past and that gives agency to those who have been denied decision-making power in their choices of where to live, a decision that has been historically racialized.
They use a definition of agency that recognizes that conditions outside of the individual must exist to exercise power, i.e., that there are factors other than autonomy which can be a component of agency. Such agency would mean that “Black households are empowered to determine where and how to live.”
Godsil and Waldeck give a short history of the role of federal government decisions that are the foundation for current racialized housing policies. We are all familiar with the history of racially restrictive covenants, exclusionary zoning, and redlining.
The authors take us back even further to the distribution of land under the Homestead Act and to the failure of the government to make grants of the promised forty-acres to the formerly enslaved. Although that discussion is brief, it emphasizes the entrenchment of anti-Blackness in governmental land distribution and housing policies from the very beginning of the federal government’s role in providing for land and housing.
Several areas are proposed for corrective investments in response to those historic racialized policies, including investments in homeownership, in affordable rental housing, in community transformation, and in mass transportation. Their proposals seek to not just make changes in those areas, but to give agency to those historically impacted by those racialized policies.
Godsil and Waldeck acknowledge that their proposals are massive in size and scope, but remind us that so too were the New Deal and post-World War II programs that gave white families the power, i.e., the agency, to decide where to live.
Their proposals challenge us to ensure that Black families have that same agency to decide where to live. Corrective action in housing policies that are grounded in that agency would lead to the creation of a different type of programming and to a different allocation of resources than currently exist. One concrete example is the proposal for agency in transportation through an increase in mass-transit funding in general and more particular, for the creation of plans to build more affordable housing near transit stops.
The discussion of proposals for agency in homeownership considers administrative feasibility and even constitutional difficulties in creating programs with a preference for Black homeowners. Lingering over that discussion is how to give Black households the same agency in housing choices as white households.
As I read the article, I wondered about the feasibility for implementing even a few of the extensive proposals and for changing our thinking about federal housing policies to include corrective justice for past practices and programs.
Godsil and Waldeck predicted my skepticism: “As described, a confluence of painful circumstances [policing and Covid-related deaths] has led to an unprecedented level of interest in addressing systemic racism. We believe that the political will exists to finally begin dismantling the structures that have undergirded residential racial segregation.”
I am not as confident as Godsil and Waldeck about the existence of that political will. I am, however, persuaded that corrective justice in housing policy requires agency for Black households, an agency that means “Black households are empowered to determine where and how to live.”
And that small house where I first lived—it still stands. But my family moved in 1969 to a house just a little larger—built in another subdivision created for just us, for Black homeowners. My parents exercised what agency they did have to get us one more bedroom and a garage to park the car. No, we did not have sidewalks and we continued to play in the streets. But at least it didn’t flood.
Property law scholarship is often framed in resource-agnostic terms. The field of Property is concerned, fundamentally of course, with governing “things.” But the conceptual or theoretical frameworks often assume they can apply equally to any and all resources.
Monika Ehrman challenges this notion in her recent work, Application of Natural Resources Property Theory to Hidden Resources. The key contribution of her article is in underscoring just how important the visibility of a resource (or actually, lack thereof) can be to the formation of property.
Ehrman hones in, specifically, on hidden resources. What are “hidden” resources? They are resources we can’t see with our naked human eye. This can include resources that are concealed from us because of their physical location. For example, subsurface reservoirs of oil, gas, and groundwater are all examples of hidden resources.
The category can also include resources that are not immediately apparent to us such as migration paths, solar radiation, and wind. The same category could also encompass property rights that are not evident to a casual viewer such as, potentially, security interests.
The common thread in all these cases, as Ehrman points out, is that we tend to treat the hidden resources as if they were visible. This, in turn, creates a host of problems, many of which are familiar to property scholars, including premature exploitation, increased aggregation costs, increased property conflicts, and more generally, difficulties in conserving resources.
While others have (rightly) pointed to and analyzed the inefficiencies embedded in those allocation patterns (for instance in the case of oil and gas, groundwater, and informal title), what Ehrman does in this article is explain—at least with regards to a particular category of resources—why we end up with inefficient resource management. Her answer to this important question is: because we can’t see them. This intuitive feature turns out to have strong explanatory force.
So why is sight so important? As a species, we are highly dependent on our sight. It thus makes sense, argues Ehrman, that concepts of property are likewise informed by our visual sight. Sight also tends to bring with it an increased understanding of the resource.
Understanding the scientific properties of a resource, in turn, improves its governance. “Resource blindness,” as Ehrman calls it, causes us to apply a regime that is inapt for that particular resource.
Of course, humans can, and often do, rely on various instruments to help them understand what is going on underneath the surface, far up in the air or within a habitat. Over time, as technology evolves and our knowledge base increases, we gain a better understanding and ultimately can come to “see” resources that were previously hidden. But the point is that what we can easily see with our own eyes, at the get-go, has an intuitive pull, and ends up being influential in the way property forms.
The example of petroleum rights and their development in the United States is illustrative of how “resource blindness” impacted the development of property. At the time when the law governing subsurface resources began developing, it was almost impossible for scientists, not to mention lawmakers, to understand the behavior of the subsurface resources.
The result was that the property system that developed basically treated them as if they were above-ground surface resources. The inability to see—and hence to understand—the reservoirs led to the application of a regime that was inapt.
It was inapt because it ignored the natural boundaries of the reservoirs, which extend over large pancake-like areas, and instead, applied to them what are essentially silo-like surface rights. This in turn led to the problems of premature and over exploitation, which have been studied by property scholars and policymakers alike.
We can also find converse examples of “resource sight.” Riparianism, which allocates water rights to those abutting the water-body, is an example of how seeing something close by helps inform the allocation.
Another example of how “resource sight” can positively influence governance comes from mining districts. As Ehrman explains, once the early miners opened up the earth, they were able to visually observe the veins and lodes.
They developed resource sight, in the sense that they became aware of the characteristics of the resource. This led to the creation of the doctrine of extralateral rights. Importantly, what the mining communities were able to do is adapt the doctrine to the resource and its extraction paths, rather than adapting the extraction to the doctrine.
Sight also allows the owners and the communities around them to better define and comprehend the boundaries. Boundaries that can be easily recognized are typically more likely to be respected by others (non-owners), which is another reason why sight turns out to be useful for property governance.
The issue of sight is just as important today as it was in the early days of resource exploration. Informal rights and visible boundary recognition continue to be significant factors in property law. New technologies and new resources such as wind or deep-sea mining, are constantly posing challenges for policymakers and scholars.
In this piece, Ehrman articulates an intuition that underlies many of our familiar natural resource stories: what we see, physically, is what we get. Importantly, she opens the door for further exploring the role of sight in property, and more broadly, the connection between resource attributes and the formation of rights in them.
Cite as: Yael Lifshitz, Hidden Resources
(December 17, 2021) (reviewing Monika Ehrman, Application of Natural Resources Property Theory to Hidden Resources
, 14 Int’l J. of the Commons
627 (2020)), https://property.jotwell.com/hidden-resources/
Michael Heller and James Salzman’s new book, Mine! How the Hidden Rules of Ownership Control Our Lives, is a dream come true for property professors.
I suspect that many of us have moments when we think to ourselves, “wow, this stuff is really interesting,” imagining that property law could somehow be of general interest. Too often that dream is killed when the eyes of non-lawyers, including family members, start to glaze over when they hear words like rule against perpetuities or trademark. Heller and Salzman have succeeded in making the stories property professors tell the stuff of a bestseller. They retell many of the standard classroom or analytical stories in a way that is both interesting to the general public and somehow worthy of broad discussion.
The primary strength of the book is its ability to describe property law cases and rules in an approachable and non-academic way. Most of the stories Heller and Salzman tell are the same stories that many of us tell and that animate first year property law classes. Natore Nahrstedt’s cats make an appearance, and they are joined by Barry Bonds’ 73rd homerun ball of the 2003 season and the cells UCLA doctors removed from John Moore’s spleen.
In less than three hundred pages, Mine! covers many of the core concepts taught to 1Ls, from nuisance and the tragedy of the commons to rights of publicity and property versus liability rules. Indeed, one can foresee property professors assigning the book as supplemental reading before the semester, a way for students to get a taste of what is to come.
But, by showing how to translate property law concepts into the experiences and language of non-lawyers, Mine! also offers professors in particular a reminder of the payoff that is possible when authors do the hard work of inviting the public into the castle.
Heller and Salzman’s work sews together an endless series of illuminating and thought-provoking examples of property contestation. But rather than being anecdotal asides, the examples open up new ways of conceptualizing many of the routine annoyances of modern life. After describing the fights that can break out over whether airline passengers should be allowed to recline their seats or not, Mine! argues that these disagreements arise because airlines are making use of property uncertainty to sell the same wedge of space twice (once to the person who thinks there is a right to recline and once to the person who thinks there is a right to use the airspace above their tray table).
Indeed, throughout the book, Heller and Salzman identify businesses that exploit ownership gaps, whether caused by uncertainty or an absence of rules, to extract value. Even well-known cases, such as overfishing, are covered in enlightening ways; for example, when a jurisdiction sets a catch limit, should it continue to follow a first-come, first-served rule of capture or should it give existing fishing boats a protected yearly quota? In order to best ensure a clean water supply, should New York City build a new water treatment facility or make payments to upstream communities so that they protect the city’s water sources?
Mine! explores these and other questions in an open and inviting way. It does not attempt to convince the reader that a particular approach is better in all circumstances—it is neither a exultation of capitalism nor a cry for revolution. Those inclined to view property as theft might find fault in the authors’ argument that tweaking ownership design can lead to better societal outcomes. On the other hand, Mine! singles out inequitable inheritance rules that privilege the wealthy for particular scorn.
The book’s main point is one that property scholars will readily accept: property rules matter. How ownership is structured shapes how the world works, how we relate to one another, and how the future will unfold. Heller and Salzman are engaged in an unearthing project—an effort to make visible the hidden structure of property and elevate discussion of the property rules that ordinarily slip into the background.
For property scholars, Mine! is worth reading both for its examples and for its language. First year property teachers can mine (excuse the pun) the book for examples to add to their own teaching. Just as there is inevitably something valuable to draw from and perhaps steal from every time one sits in on the class of a colleague, so too there is lots of material here that can help bring property more to life in the classroom.
The fact that Heller and Salzman did not even discuss the wet manure in Spur v. Del Webb is a sign of just how much material they had to sort through to reach a popular audience. And that sorting and framing effort is the other major contribution made by the book. We all can struggle as we translate difficult concepts, such as numerous clausus or eminent domain, from doctrine-heavy language into the common tongue. Heller and Salzman have done that heavy lifting, which alone is enough to make Mine! a valuable read.
So head to your local bookstore, where you will likely find it displayed (what an exciting way to start a sentence about a property book!), and make this thing yours.
Newly released census data reveals that our rural places continue to shrink. The recent Intergovernmental Panel on Climate Change (IPCC) report cements that climate change is widespread and intensifying. The pandemic has hit hard in rural places, with outbreaks centered around slaughterhouses, which predominantly employ people of color. At the same time, the country as a whole is reckoning with issues of racial justice.
All of these issues surface in Professor Jessica Shoemaker’s latest article, Fee Simple Failures: Rural Landscapes and Race. The article examines ways that property law has created and perpetuated serious problems with the rural agricultural land tenure system.
Professor Shoemaker begins with an overview of rural places, focusing on issues of race and wealth. She notes the stark racial landscape of farming: 98 percent of all agricultural land in the U.S. is owned by white people. And while a large majority of the people who live in rural areas are white, the number of people of color who are rural residents has recently increased.
This growth, however, is mostly limited to poorer, segregated pockets often associated with specific employers, such as meat processing plants. Against this backdrop, existing farmers are aging, and a large amount of agricultural land will change hands in the coming years. Thus, we are presented with an opportunity for change.
Shoemaker next explains why rural and agricultural landscapes in the US are so predominantly white, with a focus on the ways that the law intentionally designed racial hierarchies in land ownership. Here, she discusses Indigenous land loss in the wake of Johnson v. McIntosh; Mexican citizens’ land loss in the aftermath of the Treaty of Guadalupe Hidalgo; and Black land loss due in part to the failed promises of redistribution and the Southern Homestead Act.
For example, Black ownership of farmland was at its highest level in 1910, when African Americans owned up to 19 million acres of farmland, by 1997 that number was down 1.5 million acres. In contrast to this loss of land, a large number of mostly white men received land through homesteading. And further west, informal grazing rights that were established mostly by white ranchers have been preserved and privileged through federal grazing management programs.
Having laid out various ways that the U.S. legal system expressly allocated land to white people while excluding people of color, Professor Shoemaker next turns to the choices that American property law has made that have helped to perpetuate and cement white farmland ownership.
Specifically, while the current racial land distribution is due in part to generational wealth transfer, the paper asserts that the fee simple itself functions to maintain early land allocations and racialized exclusion. This is because of a few key features of the fee simple. First, it is perpetual, regardless of whether the owner is actively possessing or using the land. The result is to maximize power and wealth in the earliest owners and their descendants. Second, Shoemaker focuses on the way that people can profit from the land without investing their labor in it, meaning those lucky enough to have inherited land might have no connection to farming the land, but can still gain and maintain wealth from it.
This attribute of the fee simple has allowed for the concentration of agricultural land ownership, because one need not actually work all the land that they own. These features of fee simples combine to create a land tenure system where approximately 40 percent of agricultural land is rented, and those tenant farmers are disproportionately people of color.
The paper then describes policy choices that have influenced whether people are secure or insecure in their landholdings. For example, agricultural subsidies reinforce the ownership interests of existing owners. Similarly, tax policies encourage land to remain within families through generations, and property laws allow for long-term control of land.
Because these types of policies encourage people to retain their land and pass it on to their heirs rather than sell it on the open market, land remains with its existing, mostly white owners. In contrast, many of our property rules function to dispossess people of color of their land ownership. Specifically, for structural reasons, many minority landowners fail to perfect their title through recording or the use of probate; they often purchase property through installment land contracts; they may own property as co-owners with other heirs; and they are likely to lease farmland through oral, short-term, periodic tenancies. All of this makes it more difficult, if not impossible, to access certain farm assistance programs.
After uncovering these problems as well as their roots, the article considers reforms that might alleviate them. Shoemaker notes that much of the existing property reform scholarship is centered in urban spaces.
Thus, in the last part of the article, she extends this creative thinking to our rural places and sets forth three proposals that get at the issues raised in the paper: we should think about requiring active participation in control of agricultural lands; we should focus on racial equity when considering opportunities for access to farmland; and we should not shy away from property and land tenure reforms more broadly. Here, she discusses solutions like importing the ideas behind the implied warranty of habitability and inclusionary zoning to more rural landscapes, as well as more dramatic forms of land redistribution.
One of the most thought-provoking parts of the article is Shoemaker’s proposal that, in some instances, land ownership should be connected to, and require, use. As she points out, owner-occupancy requirements exist in urban contexts, so why not in the context of rural farmland as well? This also gets at some of the great discussions we have with our 1Ls about the value of the labor theory of property, who it rewards, and why.
Overall, Shoemaker’s article presents an important and prescient issue, and one that is too often overlooked in the property law scholarship. Her proposals are concrete, and they could lead to real change in rural places.