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Where the Sidewalk Begins

Vanessa Casado Perez, Reclaiming the Streets, 106 Iowa L. Rev. 2185 (2021).

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.”1

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.”2

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.

  1. Jane Jacob, The Death and Life of Great American Cities, Ch. 2 (1961).
  2. Shel Silverstein, Where the Sidewalk Ends, in Where the Sidewalk Ends 64 (1974).
Cite as: Sara Bronin, Where the Sidewalk Begins, JOTWELL (June 7, 2022) (reviewing Vanessa Casado Perez, Reclaiming the Streets, 106 Iowa L. Rev. 2185 (2021)), https://property.jotwell.com/where-the-sidewalk-begins/.

The Impact of Knick on Regulatory Takings and Those Pesky Lucas Exceptions

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, JOTWELL (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 (2020)), https://property.jotwell.com/the-impact-of-knick-on-regulatory-takings-and-those-pesky-lucas-exceptions/.

Rethinking the Role and Values of Monuments

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.

Cite as: Shelby D. Green, Rethinking the Role and Values of Monuments, JOTWELL (April 5, 2022) (reviewing Zachary Bray, We Are All Growing Old Together: Making Sense of America's Monument-Protection Laws, 61 Wm. & Mary L. Rev. 1259 (2020)), https://property.jotwell.com/rethinking-the-role-and-values-of-monuments/.

Honor Among Thieves: US Property Law, Conquest, and Slavery

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.”1

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.

  1. Park cites to several news articles discussing the ongoing debate, for example, America’s History Wars, The Economist (July 10, 2021).
Cite as: Andrea Boyack, Honor Among Thieves: US Property Law, Conquest, and Slavery, JOTWELL (February 24, 2022) (reviewing K-Sue Park, The History Wars and Property Law: Conquest and Slavery as Foundational to the Field, 131 Yale L. J. 1062 (2022)), https://property.jotwell.com/honor-among-thieves-us-property-law-conquest-and-slavery/.

Justice, Just Us, and Housing Policy: A Call for Correction

Rachel D. Godsil and Sarah E. Waldeck, Home Equity: Rethinking Race and Federal Housing Policy, 98 Denv. L. Rev. 523 (2021).

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.

Cite as: Serena Williams, Justice, Just Us, and Housing Policy: A Call for Correction, JOTWELL (January 25, 2022) (reviewing Rachel D. Godsil and Sarah E. Waldeck, Home Equity: Rethinking Race and Federal Housing Policy, 98 Denv. L. Rev. 523 (2021)), https://property.jotwell.com/justice-just-us-and-housing-policy-a-call-for-correction/.

Hidden Resources

Monika Ehrman, Application of Natural Resources Property Theory to Hidden Resources, 14 Int’l J. of the Commons 627 (2020).

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, JOTWELL (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/.

The Dream of Property Professors

Michael Heller & James Salzman, Mine! How the Hidden Rules of Ownership Control Our Lives (2021).

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.

Cite as: Ezra Rosser, The Dream of Property Professors, JOTWELL (November 22, 2021) (reviewing Michael Heller & James Salzman, Mine! How the Hidden Rules of Ownership Control Our Lives (2021)), https://property.jotwell.com/the-dream-of-property-professors/.

Rethinking the Fee Simple in Rural America

Jessica A. Shoemaker, Fee Simple Failures: Rural Landscapes and Race, 119 Mich. L. Rev. 1695 (2021).

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.

Cite as: Sarah Schindler, Rethinking the Fee Simple in Rural America, JOTWELL (October 21, 2021) (reviewing Jessica A. Shoemaker, Fee Simple Failures: Rural Landscapes and Race, 119 Mich. L. Rev. 1695 (2021)), https://property.jotwell.com/rethinking-the-fee-simple-in-rural-america/.

Sneaking in Through the Back Poor Door: Why Mixed-Income Housing Merely Manages Discrimination

“Cities are difference engines, and one of the qualities they assign is the place of class in space.”1  Professor Audrey G. McFarlane uses this quote to open her 2019 article, The Properties of Integration: Mixed-Income Housing as Discrimination Management. In this article, she argues that mixed-income housing policy operates within an inherent tension between our political and policy desires to integrate and our “enduring expectations and practices for race and class separation and exclusion.” (Pp. 1146-47.)

McFarlane argues that, rather than seeking to eradicate class- and race-based discrimination, mixed income housing policy instead seeks merely to “manage” such discrimination. Unfortunately, “Managing discrimination requires taking on the mindset of those who would discriminate.” (P. 1212. )

Given the racialized nature of class in the United States, the result of such “management” is that the concerns of those who benefit from discrimination – a group that is overwhelmingly wealthy and white – are placed at the forefront of mixed-income housing policy. In short, “we are choosing to build housing based on market preferences [for classist and racist exclusivity], while also aspiring to economically integrate in a society shaped by racial segregation and discrimination.” (P. 1144.)

McFarlane uses the “poor door” controversy to help illustrate this tension. “Poor doors” are separate entrances for the lower-income residents who inhabit the affordable units of mixed-income buildings. Unlike the main building entrances used by the wealthier market-rate residents, these entrances are not just separate–they are unequal.

Under mixed-income housing policy, affordable units are integrated into newly constructed buildings or communities in an effort to provide to lower income people integrated housing and access to the amenities of the city–such as better transportation, schools and employment opportunities.

The market-rate entrances, which are located on the buildings’ front façades, have luxury amenities, like doormen and valets, while the entrance set aside for the lower-income residents are merely functional and usually hidden on the side of the building, away from the main entrance. Some buildings even preclude access to community amenities, like gyms and courtyards to preserve exclusivity by keeping the poorer residents from mixing with their economic “betters.”

The public reaction to poor doors has been mixed, with some commentators exhibiting moral outrage at yet another humiliation foisted upon lower income people, and others, noting our historic preference for exclusivity, finding the use of poor doors to be a reasonable outcome that is reflective of class distinctions typically made in services and accommodations.

No commentators, however, reached the brilliant insight of McFarlane’s conclusion: “[M]ixed-income housing is a poor door strategy itself.” (P. 1145.)

Like the actual physical poor doors, the metaphorical poor door of mixed-income policy gives to racial minorities and lower income people entree to spaces from which they are typically excluded, while also avoiding the usual “NIMBY” objections to affordable housing developments by, in effect, hiding the poor and people of color from view.

Given the tacit acceptance of discrimination inherent in mixed-income housing policy, McFarlane argues that its embrace of discrimination management calls for a critical analysis of both the purported benefits of integration and the costs of tolerating discrimination. The fruits of such an analysis, she contends, should be used to decide if and how we should seek to manage discrimination going forward.

Despite the race-neutral nature of mixed-income housing policy’s focus on economic integration, the intersection of race and class provides an ever-present backdrop. However, the racially neutral approach of mixed-income housing policy serves to obscure the problem of racial discrimination and hyper-segregation that the Fair Housing Act (FHA) was meant to combat.

McFarlane contends that, “In the context of the United States’ protracted history of racial segregation, the quest for racial integration undeniably undergirds inclusionary housing’s mixed income, racially neutral, class-based strategy.” (P. 1158.) And she continues by explaining that “Racial integration as a policy goal lingers in the background, undefined, undiscussed, and unfulfilled.” (P. 1158.)

Thus, “[w]hile the FHA appears to address a fundamental deprivation of a right based on one’s skin color and African heritage, it imperfectly addressed that the right can also be denied by income which is structured by race.” (P. 1183.)

McFarlane charts the ideological history of mixing as a “utopian social ideal,” noting that upper classes have always controlled the means and degree of mixing, keeping the lower classes close in proximity when they were needed as servants, and pushing them away as technology and transportation improvements have mitigated the need for residential proximity.

McFarlane’s premise, therefore, is that mixed-income housing policy legitimizes the racist and classist impetuses and the ongoing quest for white supremacist social dominance behind the United States’ exclusionary housing history. McFarlane’s thesis is rooted in social dominance theory, which posits that society is organized into dominant and subordinate groups and that the dominant group maintains its status through the use of “legitimizing myths” that justify its systemic advantages.

Thus, mixed-income housing policy does not see concentration of affluence as a problem, only the concentration of poverty. In fact, mixed-income housing policy works to legitimize notions of both Blackness and poverty as deviant and, thus, in need of being physically cordoned-off from affluence in order to preserve the middle- and upper-class statuses of certain spaces. Hence, the need to “sneak” the poor in through mixed-income housing’s physical and metaphorical poor doors.

McFarlane questions why we accept status preservation as legitimate, thus giving credence to social domination. She notes that mixed-income housing policy is promoted as “domination ameliorating,”2 but is, in fact, “domination enhancing”3 because it is centered on the preferences and concerns of the socially dominant class – those who are affluent and racialized as white.

For this reason, McFarlane concludes that housing policy should be examined to identify domination enhancing versus domination ameliorating features and ensure that features that are initially identified as domination ameliorating are in fact so. As she notes, what at first glance appears to be both beneficial and beneficent–mixed-income housing policy–may actually be a perpetuation of old systems of disadvantage and subordination.

  1. Michael Sorkin, What’s Behind the “Poor Door”?, The Nation (April 2, 2014).
  2. See Jim Sindanius & Felicia Pratto, Social Dominance: An Intergroup Theory Of Social Hierarchy And Oppression (1999). (P. 38-39.) McFarlane sites the work of Sindanius and Pratto who use the terms “hierarchy-enhancing” and “hierarchy-attenuating” to make this same argument regarding perpetuation of amelioration of systems of social dominance.
  3. See id.
Cite as: Jamila Jefferson – Jones, Sneaking in Through the Back Poor Door: Why Mixed-Income Housing Merely Manages Discrimination, JOTWELL (September 22, 2021) (reviewing Audrey G. McFarlane, The Properties of Integration: Mixed-Income Housing as Discrimination Management, 66 UCLA L. Rev. 1140 (2019)), https://property.jotwell.com/sneaking-in-through-the-back-poor-door-why-mixed-income-housing-merely-manages-discrimination/.

Knick, Federal Courts, and Regulatory Takings

Julia Mahoney and Ann Woolhandler, Federal Courts and Takings Litigation, 97 Notre Dame L. Rev. __ (forthcoming, 2021), available at SSRN.

Federal regulatory takings doctrine has long been a hopeless muddle.1 How and when the federal courts should review takings claims—including through §1983—is the subject of an important new article by Professors Julia Mahoney and Ann Woolhandler.

The federal taking muddle is a product of a particularly unclear set of precedents. Except for narrow classes of takings claims that qualify for one of the handful of “categorical” takings rules (and it is far from clear which ones do),2 the question in a regulatory takings case essentially boils down to whether a regulation “goes too far.”

The Supreme Court “has generally eschewed any set formula for determining how far is too far,” requiring instead that lower courts “engage in essentially ad hoc, factual inquiries.”3 The three-part balancing test used to guide such inquiries, first articulated in Penn Central Transportation Company v. New York City,4 is so enigmatic that, as Justice Clarence Thomas recently observed, “nobody—not States, not property owners, not courts, nor juries—has any idea how to apply this standardless standard.”5

One (of many) reason for the confusion is that the federal courts have had very little role in litigating takings cases for the last three decades. This is because, in Williamson County v. Hamilton Bank, the Supreme Court adopted an unusual prudential exhaustion doctrine that required property owners to litigate most regulatory takings cases in state courts.6

The logic of adopting such a rule, the majority reasoned in Williamson County, was that federal courts could not determine whether a property owner has suffered an uncompensated taking until all state-law remedial procedures are exhausted. A result of adopting such a rule is that the development of takings law was primarily the purview of the state courts, with the Supreme Court usually stepping in only to resolve disagreements among them. (At times, the Supreme Court’s interventions confounded the confusion.)7

Williamson County was controversial from the moment that it was decided, so it was not entirely surprising when the Supreme Court overruled it two years ago in Knick v. Township of Scott.8 Knick opened the door—and skeptics worry the floodgates—to federal judicial review of claims seeking compensation for regulatory takings. (Under the Williamson County rule, only facial challenges could originate in federal court.)

Knick, however, left many questions unanswered, including importantly: First, whether, as some scholars have begun to argue, federal courts ought to use other federal doctrines to avoid litigating takings claims; and second, whether (as is commonly assumed) civil rights claims under §1983 represent the right vehicle for resolving them. Julia Mahoney and Anne Woolhandler tackle both of these questions, neither of which lends itself to a straightforward answer.

I was never a fan of the Williamson County ripeness regime. I count myself among those who object to the Takings Clause’s compensation guarantee being treated as a “poor relation” vis-à-vis other constitutional rights.9

Admittedly, however, my view is in the minority among legal scholars, many of whom worry that federal court intervention will harm the public interest by hamstringing land use and environmental regulations. These “minimalists” (as Mahoney and Woolhander call them) assert that Knick invites a return to Lochnerism and that federal courts should utilize the Pullman and Burford abstention doctrines to avoid litigating takings claims.

Mahoney and Woolhander’s article ably sets forth the historical record to demonstrate that the “anti-confiscation” principle has deeper historical roots than is commonly understood. This alone is a major scholarly contribution.

They also make a strong case that the factors justifying Pullman and Burford abstention—specifically the need for state court resolution of state law issues—are not present in most regulatory taking cases since federal courts are able to interpret and apply state law to the extent necessary to determine whether a taking has occurred.

Mahoney and Woolhander then ask whether §1983 is the correct legal mechanism for litigating takings claims in federal court. They are skeptical that this is the case.

They argue that constitutional challenges to the confiscatory effects of regulations were not litigated as §1983 civil rights claims seeking damages until relatively recently, and, indeed, that it is far from apparent that they were intended to be covered by the law.

Rather, these challenges historically arrived in federal court either through diversity jurisdiction or implied constitutional rights of action seeking injunctive relief. For at least two reasons, these arguments are thought-provoking and deserving of additional consideration by readers of their work.

First, §1983 provides a mechanism for property owners to be compensated for regulatory takings. Even if other mechanisms for challenging regulations exist in an era of skepticism over implied rights of action, I am not convinced that that non-monetary/injunctive relief would adequately protect owners and deter overregulation.

Second, if Mahoney and Woolhander are correct, then the implications of their arguments extend well beyond takings. Indeed, they call into question the legitimacy of the Monell v. New York Department of Social Services, which held that municipalities were suable persons under §1983.10

Mahoney and Woolhandler’s work provides a solid foundation for thinking about the paths to federal court review of takings claims and sets the stage for further conversation on each of these subjects. They are to be commended to beginning this important conversation.  

  1. Carol M. Rose, Mahon Reconstructed: Why the Takings Issue Is Still a Muddle, 57 S. Cal. L. Rev. 561 (1984).
  2. See, e.g., Cedar Point Nursery v. Hassid, 594 U.S. __ (2021) (holding that a California labor regulation granting unions access to certain employer’s place of business up to three hours a day, 120 days a year [was/was not] a categorical taking of an easement).
  3. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U. S. 302, 326 (2002) (internal quotation marks omitted).
  4. 438 U. S. 104, 124 (1978).
  5. Bridge Aina Le’a, L.L.C. v. Hawaii Land Use Comm’n, 592 U. S. __ (2021) (Thomas, J., dissenting from the denial of certiorari).
  6. 473 U.S. 172 (1985).
  7. See, e.g., Nicole Stelle Garnett, From a Muddle to a Mudslide: Murr v. Wisconsin, 2016-17 Cato Sup. Ct. Rev. 131 (2017).
  8. 139 S. Ct. 2162 (2019).
  9. Dolan v. City of Tigard, 512 U.S. 374, 393 (1994) (“We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation…”).
  10. 436 U.S. 658 (1978).
Cite as: Nicole Stelle Garnett, Knick, Federal Courts, and Regulatory Takings, JOTWELL (August 6, 2021) (reviewing Julia Mahoney and Ann Woolhandler, Federal Courts and Takings Litigation, 97 Notre Dame L. Rev. __ (forthcoming, 2021), available at SSRN), https://property.jotwell.com/knick-federal-courts-and-regulatory-takings/.