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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)),

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)),

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)),

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)),

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),

Our Joy: An Inclusive Right of Enjoyment in Property and Contract Law

Nancy Leong, Enjoyed by White Citizens, 108 Geo. L. J. __ (forthcoming, 2021), available at SSRN. 

I recall being confused by how the average 1L Property course treated the “important” property provisions. I was struck that we spent all of our time on the 5th Amendment clause that required compensation by the government for the “taking” of private property by the government. But we did not cover the 13th Amendment, which eliminated slavery, thus impacting the property rights of (predominately) white citizens.

Why were we not talking about the 13th Amendment and the supporting legislation, §1981 and §1982 of the Civil Rights Act of 1866, which granted property rights to freed blacks? What did it mean in these statutes that all persons should have the “same right” of property as that “enjoyed by white citizens”?

Nancy Leong’s Enjoyed by White Citizens seeks to solve that mystery. In the process, she helps us better understand the meaning of property rights as a general matter and illuminates the role of property rights rhetoric in struggles for civil rights and against privileged caste status.

Leong accomplishes this task by investigating the meaning of two key terms in §1981 and §1982—“white citizen” and “enjoy”—and how such terms should shape reparative legislation to address long-standing civil rights harms.

Initially, Leong claims that the term “white citizens” should be understood in a socio-legal context. Specifically, Leong (citing the work of Brant Lee) examines how the “standard person”—whether it be in legal, educational, or economic contexts—is always assumed to be white, and how then whiteness becomes the default norm by which all experiences are judged.

The default norm of whiteness appears everywhere—in the curricular choices imposed in secondary and post-secondary contexts, rigid fashion standards, like the standard size of dresses tied to the basic sizes of white women, or the ways professional identities are defined against the unspoken default norm (i.e., “writers” versus “black writers”).

This default norm of whiteness, continues Leong, curdles into white privilege, since it obscures both the ways in which white people are privileged in social, political, and economic contexts, and the ways in which harm can flow to people of color from that white privilege.

Leong then explores the way the default norm of whiteness is present within law as well. After surveying both federal and state law, Leong concludes that the acknowledgement of racial status of whiteness is relatively limited; often occurring in idiosyncratic or archaic settings.

Consequently, §1981 and §1982, stand out for their use of the term of “white citizens.” While §1981 and §1982 encouraged the provision of civil rights for the newly freed blacks, the specific language of “white citizens” was included to address federalism concerns.

As Leong states, “[i]f the proposed statute required only that non-white people receive the same rights as white people in a particular jurisdiction, it did not require states and other localities to adopt any particular level of substantive rights. It just meant that everyone had to receive the same rights.” The primacy of federalism in shaping the legislative history of the term “white citizens” suggests that its inclusion did not seek to shift the default norm of whiteness.

Leong’s treatment of the term “white citizens” in §1981 and §1982 is useful in two distinctive ways. First, Leong situates the absence of whiteness in federal and state law. Second, Leong emphasizes that while the plain meaning of the text could be read to directly confront the norm of white default, its actual legislative history suggests a more complicated, compromised vision of citizenry during Reconstruction. Leong’s pessimistic treatment of the term “enjoyed by white citizens”, however, is softened by her account of the ways in which the meaning of §1981 and §1982 have been used by judges to correct for discriminatory harms in contract and property law.

Additionally, beyond her important claims as to the meaning of the term “white citizens”, Leong advances an important reading of the term “enjoy” which may have substantial implications for property and contract law.

Leong employs three readings of the term “enjoy”: a textual reading, a contextual reading, and a subject-specific reading. The textual reading draws on dictionary definitions at the time of the passage of §1981 and §1982, to define enjoy as “take pleasure or satisfaction in the possession or experience of,” or “to possess with satisfaction; to take the pleasure or delight in possession or, “to have possess, use with satisfaction; to have hold or occupy, as a good or profitable things, or as something desirable.”

Using this definition, the term “enjoyment” could be read in a narrow or broad sense. In a narrow reading, the term “enjoy” means that non-white people should have the same right to use their property as white people do. In a broader reading, the term “enjoy” means that non-white people should be able to “take pleasure and satisfaction” in the use of their property rights in the same way as white people.

The contextual reading of enjoyment builds on the broader textual reading, situating the term “enjoy” in Founding-era documents such as the Declaration of Independence and the Federalist Papers. The subject-specific reading examines doctrines of quiet enjoyment and loss of enjoyment of life to conclude the enjoyment means those features of property, or quality of life, that go to an experience of satisfaction, functional, and pleasurable.

Leong’s consideration of the term “enjoyment” yields considerable benefits. Her reading of the term “enjoy” connects statutory interpretation, constitutional interpretation and common law interpretation. Understanding the term “enjoyment” across different interpretative strategies deepens its relationship to the types of discriminatory harms that may harm non-white people, including the ability to enjoy food, fashion, mobility, and home. Leong’s scholarship here may help resolve ongoing discriminatory harms that have plagued the sharing economy. Moreover, a broad reading of enjoyment connects civil rights concepts explicitly to key common law principles such as the right to use.

Rich in many ways, this article is an important addition to a growing body of scholarship that seeks to revive and reconsider the moment represented by the Reconstruction Amendments, including the 13th Amendment.

Cite as: Kali Murray, Our Joy: An Inclusive Right of Enjoyment in Property and Contract Law, JOTWELL (July 19, 2021) (reviewing Nancy Leong, Enjoyed by White Citizens, 108 Geo. L. J. __ (forthcoming, 2021), available at SSRN. ),

Update of Jotwell Mailing Lists

Many Jotwell readers choose to subscribe to Jotwell either by RSS or by email.

For a long time Jotwell has run two parallel sets of email mailing lists, one of which serves only long-time subscribers. The provider of that legacy service is closing its email portal next week, so we are going to merge the lists. We hope and intend that this will be a seamless process, but if you find you are not receiving the Jotwell email updates you expect from the Property section, then you may need to resubscribe via the subscribe to Jotwell portal. This change to email delivery should not affect subscribers to the RSS feed.

The links at the subscription portal already point to the new email delivery system. It is open to all readers whether or not they previously subscribed for email delivery. From there you can choose to subscribe to all Jotwell content, or only the sections that most interest you.

Relating – Equally – Through Property

Hanoch Dagan, A Liberal Theory of Property (2021).

For anyone seeking a rational and convincing justification for private property, Hanoch Dagan’s newly published book, A Liberal Theory of Property, is a compelling read. The book provides an ideal – even utopian – vision of property ownership, arguing that such ownership is, and can only be, legitimate if it is “premised on a fundamental commitment to autonomy as self-determination or self-authorship.This commitment explains and justifies both the private authority that characterizes all property types and their inherent limitations.” (P. xii.) At the same time, the book provides many highly pragmatic descriptions of how property law actually functions to promote and protect self-authorship, as well as prescriptions for how to revise property law to accomplish this function more fully.

Thus, the book is not only a fascinating read for property law professors and political philosophy diehards, but it is a (perhaps surprisingly) valuable read for those who engage in lawmaking and law practice and who want to think about the practical legal value and limits of property ownership.

The particular limits that Dagan spends a good deal of the book elaborating are limits on the right of exclusion, often considered the sine qua non of property ownership, as well as more broadly on an owner’s private authority via ownership.

However, Dagan does not articulate these limits as critiques of the institution of ownership. Rather (and this is one of the core strengths of the book), he develops an affirmative vision of property as a vehicle for self-authorship that relies on a particular vision of the rights and obligations of all property owners that are necessary to ensure that property can promote self-authorship for all.

Thus, Dagan argues in Chapters 3 through 5 of the book, a genuinely liberal property law must rest on three foundational “pillars”: 1) “carefully delineated private authority” to ensure that ownership “follows property’s contribution to self-determination;” 2) “a structurally pluralistic inventory of property types offering people real choice;” and 3) “compliance of owners’ powers with relational justice to verify that property does not offend the principle of reciprocal respect for self-determination.” (P. 4.)

Dagan frames his discussion of these three pillars in Chapter 2 by elaborating on his mission of developing a legal theory for property law that is appropriate for a “liberal polity,” (P. 10), namely a society that prioritizes autonomy. He then completes his analysis, in Chapters 6 through 8, by discussing the institutions and contexts through which a liberal understanding of property must be developed and maintained.

Thus, in Chapter 6, Dagan argues that both the legislature and the judiciary must be involved in upholding liberal property as a human right, one that may at times restrain state power. In Chapter 7, Dagan specifies the necessary features of the market in which a genuinely liberal property can flourish. Finally, in Chapter 8, Dagan analyzes how time interacts with adjustments to ownership regimes, focusing especially on circumstance in which sudden adjustments may legitimately trigger takings claims.

While I find Dagan’s entire argument about autonomy and property thought-provoking, I want to focus for the remainder of this review on Dagan’s third essential pillar: the requirement that property ownership must comply with and promote relational justice.

In developing this pillar as a foundation for his justification of property law, Dagan departs from the “conventional” view that equality must be achieved through property and private law (if at all) by compliance with “a negative duty of non-interference,” and that any more affirmative duties to achieve equality must be left to the state, for example by levying taxes to support the poor. (P. 115.) Dagan argues instead that property law depends on and must promote substantive equality by imposing a duty on private owners to “focus[] on the acceptable terms of interpersonal interactions and … the demands of justice among private persons” (P. 128.)

Dagan’s argument is one of the most powerful and convincing justifications for law reforms to dismantle structural racism (and myriad other forms of discrimination and oppression) that I have read. To understand its power, it is useful to reflect on one of several pragmatic examples that Dagan provides:

Consider the private owner of a boutique café who decides not to let customers enter the premises adducing some morally arbitrary grounds, such as their sexual orientation. Suppose, more particularly, that this café is the only one to practice discrimination against gay people in Manhattan … so that … there are easy substitutes … to the owner’s bigotry. (Pp. 124-25.)

As Dagan points out, the traditional view of property would find that the owner’s bigotry was a private matter that could only be limited for certain protected classes, which (depending on the jurisdiction) may or may not include LGBTQ individuals.

Dagan, however, argues that it is inherent to a just property law that is committed to self-determination to require the owners of cafés – and any other places of business open to the public – to allow access to all individuals.  In his words, “the prescription of relational justice runs directly from owners to nonowners…. Relational justice focuses on the acceptable terms of interpersonal interactions and establishes the demands of justice among private persons.” (P. 128, emphasis added.)

In addition to the context of public accommodations, Dagan examines the value of relational justice as a basis for expanding fair housing laws as well as owners’ responsibilities concerning such things as disclosure and rescue.

Especially at this time, when our society must prioritize legal interventions to address structural racism, Dagan’s insights are absolutely crucial for several reasons. His approach provides a powerful justification for requiring antidiscrimination rules both within and outside of property law. Dagan thereby greatly expands and legitimizes the menu of possible legal prescriptions to address discrimination.

At a more abstract, but still vital, level, he also develops the idea of antidiscrimination as a private obligation that each of us owes to our fellow human beings. In these and other respects, Dagan forces us to think of ownership as a tool partly for achieving racial and other forms of equality.

Equality, he argues, is essential to self-authorship. And self-authorship is the only legitimate justification for private property in a just society. Private ownership, then, obliges all owners to uphold equitable access to the resources we own. It will behoove us all to think deeply about the implications of Dagan’s argument.

Cite as: Rashmi Dyal-Chand, Relating – Equally – Through Property, JOTWELL (June 8, 2021) (reviewing Hanoch Dagan, A Liberal Theory of Property (2021)),

Nuisance, and Covenants, and Zoning, Oh My!

Maureen E. Brady, Turning Neighbors Into Nuisances, 134 Harv. L. Rev. 1609 (2021).

She has done it again! With her new article, Turning Neighbors into Nuisances, Professor Molly Brady once more takes us back into history to enrich our current understanding of property concepts.

Three years ago, I wrote a Jot about Professor Brady’s article, The Damagings Clauses.1 That introduction to her work has vastly informed my scholarship on eminent domain and inverse condemnation and I again recommend it to you. In addition, among several other articles, Brady published a piece in 2019, The Forgotten History of Metes and Bounds,2 which contains a compelling history of this method of property demarcation and the social functions it served to encourage development.

In Turning Neighbors Into Nuisances, she examines how tort law, contracts, and regulation interacted with each other and evolved into the system of land use regulation we know today.

With fascinating facts from historical deeds, treatises, and cases, Brady brings us into the societal cultures of the 17th century and forward as our communities transformed from agrarian life into the age of the automobile, parking lots, and high density living. Her vehicle for exploring these interactions is the nuisance covenant.

As she explains in the article, the apartment complex—and the attempts to control its prevalence among single-family dwellings by equating it to the tenements housing the poor and immigrant families—served as a test to the nuisance covenant. Brady concludes “apartments served as a focal point for debates among lawyers and judges about the interactions between the common law of nuisance and the proper scope of both contractual and regulatory freedom to define that which we do not want.”

Professor Brady begins the article by recognizing the current trend in land use regulation to move away from detached single-family zoning in order to address concerns about the “affordable housing crises, racial and economic segregation, environmental damage attending suburban sprawl, and even overall losses to the United States economy.”

Opposition to housing densification, particularly in the suburbs, might bring to mind Village of Euclid v. Ambler Realty Company in which the Supreme Court upheld the constitutionality of zoning, encouraged by the prospect of restricting apartments in a single-family area as “a right thing in the wrong place, – like a pig in the parlor instead of the barnyard.” This then leads us to the concept of nuisance and the interaction of this tort with the regulatory power to zone for the public good to avoid harmful uses.

Brady’s article “tells the story of the rise and fall of the nuisance covenant toward three different ends: (1) to illustrate how developers and owners used this hybrid legal device to prevent unwanted uses that tort and contract law could not independently exclude from neighborhoods; (2) to indicate how these covenants came to communicate strong messages about the nature of unwanted uses across time and place; and (3) to show how and why the nuisance covenant proved ill equipped to confront a new land-use challenge – the apartment building – and how both its failures and its legacies ultimately shaped the push for formal zoning regulation.”

She explains the advantages of nuisance covenants over nuisance law based on the ability to use private covenants to specifically identify unwanted activities. Some of these activities would qualify for exclusion under common law nuisance, but others were more “nuisance-like” and would probably not satisfy the nuisance requirements, but could be enforced as private covenants.

Brady takes us behind the curtain of history to examine decades of litigation over nuisance covenants and illustrates how this litigation influenced both nuisance law and public property regulation. Specifically, efforts to exclude apartments (as opposed to tenements) using nuisance covenants generally failed in the courts and prompted the move towards zoning regulation.

Turning Neighbors Into Nuisances contributes greatly to our knowledge of not only the underpinnings of our land use regulation system in America, but also the interrelationships of private law and public law as society defined the boundaries of our communal life.

With the continuing scar of racial segregation in our housing patterns, Brady’s work identifies what was probably the first racial covenant in 1843, found in the Linden Place development outside Boston that “forbid sales to ‘any negro or native of Ireland.’” She then discusses the continuing efforts to exclude the unwanted through racial zoning, racially restrictive covenants, and Federal Housing Administration policies.

Nuisance covenants likely came into existence in both England and American in the early 1800s and these covenants were drafted through the end of the century copying language almost identical to the 1825 covenant litigated in Barron v. Richard.3 As the article notes, this copying of language, even when not relevant to the particular locality, is similar to what we have seen in contract drafting over time. Brady identifies this as the first nuisance covenant case involving enforcement in the United States.

The covenant in Barron banned “any livery stable, slaughter house, tallow chandlery, smith’s shop, forge, furnace, brass or other foundry, nail or other iron factory, or any manufactory for the making of glue, varnish, vitriol, ink or turpentine; nor for dressing or keeping skins or hides, or any distillery or brewery . . . .” Brady takes us through the replication and expansion of these lists in nuisance covenants as residential communities attempted to separate work from home, and the rich from the poor.

By combining the specification of uses with broad residual clauses using terms such as “nuisance,” “noxious,” or “offensive,” nuisance covenants avoided the strict construction of covenants by using broad language that could cover unspecified or new uses, such as apartments.

I commend to you Professor’s Brady’s historical dive into the nuisance covenants that gradually led to zoning regulation and the specification of permitted uses to avoid unwanted uses in advance of any harm and without the need to consult the common law of nuisance.

  1. The Damagings Clauses, 104 Va. L. Rev. 341 (2018).
  2. The Forgotten History of Metes and Bounds,128 Yale L. J. 872 (2019).
  3. Barron v. Richard, 3 Edw. Ch. 96 (N.Y. Ch. 1837), aff’d sub nom. Barrow v. Richard, 8 Paige Ch. 351 (N.Y. Ch. 1840).
Cite as: Shelley Ross Saxer, Nuisance, and Covenants, and Zoning, Oh My!, JOTWELL (May 10, 2021) (reviewing Maureen E. Brady, Turning Neighbors Into Nuisances, 134 Harv. L. Rev. 1609 (2021)),

Dynamism and Real Property Taxes, Who Knew?

Andrew T. Hayashi, Dynamic Property Taxes and Racial Gentrification (Dec. 23, 2020), available at SSRN.

In his article, Dynamic Property Taxes and Racial Gentrification, Professor Andrew Hayashi makes the compelling case that dynamic real property tax regimes, under which gentrifying neighborhoods are taxed at a lower rate than non-gentrifying neighborhoods, encourage racial gentrification and raise challenging, previously ignored, distributional questions. (P. 20.) To put it more plainly, dynamic property taxes are real property taxes that depend upon a property’s history of values so that two properties worth exactly the same amount today, could be taxed at different rates if the properties’ values evolved in different ways over time.

As an initial matter, Hayashi’s work makes a valuable contribution to understanding just what “gentrification” is and how it affects individuals and communities. Many years ago, I attended a meeting with a mixed group of law professors and planning professors. It was there, for the first time, that I became aware that in some corners of the academy, “gentrification” is a bad word and always a bad word.

It is code for displacement of poor Black residents from their troubled inner city neighborhoods when these neighborhoods become safe again for middle-income White residents to return, bringing with them investment, renewal, safety and increased property values. The Black residents who had “always been there” when the neighborhoods were not places of investment or of safety would be slowly displaced by all the wonderful benefits that attended the return of middle-class White residents because they could not afford to pay the property taxes on their newly appreciated homes.

Before learning about gentrification from my urban planning colleagues’ perspectives, I used the term gentrification more innocuously to describe poor, sometimes dangerous neighborhoods, becoming middle and higher income neighborhoods. I recall asking my urban planner colleagues, “so for your discipline, is gentrification always bad?” Their answer was, yes. And in that moment, so much changed for me.

Today, I think it is common to understand gentrification pejoratively, with discriminatory undertones and overtones. The lines between gentrification’s victims and assailants can be more than a bit blurry.

More and more scholars, across disciplines, are writing and thinking about these intersections. For example, are gay and lesbian couples hoping for urban refuge from suburban discrimination both drivers and beneficiaries of gentrification?1

It is at this difficult intersection of beneficiary and victim, that Professor Hayashi’s scholarship makes a quite interesting contribution to the complicated discussion around gentrification. Hayashi argues that by establishing the real property tax rate using a combination of the recent history of market values and current market values, our taxing system creates a “dynamic aspect in property taxes” whose racially disparate impacts result in Black homeowners paying higher property taxes than White homeowners.

Hayashi’s tax and economic expertise is on full display as he explains two of the principle features of dynamic property taxes. First, why does the distinction between using assessment caps as opposed to phase-ins matter when taxing property?

Hayashi illustrates that the assessment cap does not benefit property owners whose properties appreciate at below the set cap rate while, in contrast, all appreciating properties benefit from phase-ins because all market value increases that occur between assessment years gets added incrementally to the assessed value. (P. 5.)

Thus, “caps tend to benefit the fastest appreciating neighborhoods for a relatively long time. In contrast, phase-ins benefit all appreciating neighborhoods, but the benefits are shorter-lived.” (P. 5.)

Second, Professor Hayashi illustrates how the treatment of property upon transfer is an important aspect of the design of dynamic property taxes. Are assessed values reset to their fair market value upon transfer?

This approach discourages property transfers, as Professor Hayashi explains, because the current owner has a more favorable effective tax rate than the buyer, a phenomenon Hayashi describes as “lock-in.” Or do assessed values remain unaffected by real estate transfers so that the buyer acquires the property at the seller’s assessed value? Under this approach, the buyer benefits from owing the property with the seller’s lower assessment ratio.

As neighborhoods’ racial demographics change, so too do home values and the trajectory of these values over time. Gentrifying neighborhoods under a dynamic property tax system benefit from lower taxes as caps and phase-ins reduce the effective tax rate for these properties. The consequence is that the effective tax ratio for gentrifying neighborhoods experiencing rapid property appreciation is lower than the effective tax ratio compared to properties with stable values, modest growth rates, or declining values.

Professor Hayashi drives home the impact of dynamic property taxes for his reader when he notes that dynamic property taxes can impact racial preferences on how wealth is distributed as “homes in neighborhoods that are rapidly becoming white may pay less in property taxes.”

As we grapple with difficult problems of racial disparities, gentrification, and demographic change going forward, it will be critically important to understand as many of the alternative explanations for these challenges as possible if we hope to craft a solution. Professor Hayashi makes a compelling case that dynamic property taxes are part of an alternative explanation. His article exposes the reader to a different view of a perennial problem with the hope that with a new perspective, perhaps new solutions can be imagined.

  1. Mia Goodnature, Daniel Henderson, & Amanda Ross, Do Gay Male and Lesbian Couples Induce Gentrification?, The American Economic Association (Dec. 23, 2018); Peter Moskowitz, When It Comes to Gentrification, LGBTQ People Are Both Victim and Perpetrator, Vice (March 16, 2017).
Cite as: Carol Necole Brown, Dynamism and Real Property Taxes, Who Knew?, JOTWELL (April 7, 2021) (reviewing Andrew T. Hayashi, Dynamic Property Taxes and Racial Gentrification (Dec. 23, 2020), available at SSRN),