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Post-Koontz Exactions

Timothy M. Mulvaney, The State of Exactions, 61 Wm. & Mary L. Rev. 169 (2019).

Land-use regulation allows the government to condition approval of a land-use permit on the landowner’s surrender of a property interest (exaction) so long as there is an “essential nexus” and “rough proportionality” between the condition demanded and the anticipated impact of the proposed land use.  Professor Timothy Mulvaney has written extensively about the many legal and policy issues surrounding exactions and he continues to enlighten us in his new article, The State of Exactions.

Mulvaney reviewed the almost 130 cases in a five-year period that cited the Supreme Court’s 2013 decision in Koontz v. St. Johns River Water Management District to illustrate the various ways in which lower courts have applied the Koontz holdings.

In Koontz, the Court extended to two new circumstances the rather stringent scrutiny set out for physical exactions in the Court’s previous decisions in Nollan v. California Coastal Commission (“essential nexus”) and Dolan v. City of Tigard (“rough proportionality”).

First, both the majority and dissent in Koontz agreed that when the government denies a permit application because the applicant refuses to accept the suggested exaction, the proposed exaction will be subject to Nollan and Dolan scrutiny so long as the exaction was a concrete and specific demand. Prior to Koontz, courts had only applied Nollan and Dolan scrutiny to conditions attached to a permit that was issued to the applicant.

Second, the 5-4 majority required that permits conditioned on the payment of monetary, also called “in-lieu,” exactions were subject to Nollan and Dolan judicial scrutiny.

Some takings observers predicted that Koontz would provide momentum for a further expansion of takings protections across a range of specific regulatory issues moving forward. Mulvaney concludes that, five years on, these doctrinal predictions have not come to pass, a conclusion that he ultimately supports on normative grounds.

In my view, one of these specific regulatory issues on which Mulvaney concentrates is of special importance: whether exactions imposed via legislation are subject to the stringent scrutiny of the “nexus” and “proportionality” tests to which exactions imposed administratively are subject. The dissent in Koontz was particularly concerned that the majority decision would restrict local governments from charging reasonable permitting fees by applying higher judicial scrutiny to these legislatively-imposed requirements.

Mulvaney explains that 90 of the nearly 130 lower court decisions citing Koontz did so based on general principles, such as a summary of takings law and the unconstitutional conditions doctrine. However, the remaining cases addressed issues such as whether courts would apply Nollan and Dolan scrutiny to permit conditions imposed by broad legislative action.

Elsewhere, I have argued that, throughout land use law doctrines, increased judicial scrutiny has been imposed on government decisions that are individualized in nature rather than more generally applied to all landowners.1This increased scrutiny has generally been justified by concerns about government overreach in individualized situations. However, the limited empirical evidence available has shown that the government in the land use permitting context has not engaged in the extortionate behavior feared by some scholars, as well as the Koontz majority.

This distinction in judicial scrutiny for individualized decision-making has been captured by differentiating between adjudicative/administrative decision-making and legislative action. Mulvaney notes that eight of the ten courts addressing this issue since Koontz have not extended Nollan and Dolan scrutiny to permit conditions imposed through legislative action.

Only two post-Koontz decisions, both penned by Federal District Court Judge Charles Breyer, rejected the legislative-administrative distinction. These decisions were later limited in application by a subsequent Supreme Court decision and San Francisco’s repeal of the challenged ordinance.

Thus, contrary to concerns voiced by the Koontz dissent that Nollan and Dolan scrutiny would be expanded to apply heightened constitutional scrutiny to a “vast array of land-use regulations,” lower courts have not subjected legislative actions to increased scrutiny.

Nevertheless, following the Koontz decision, some scholars continue to argue that legislatively-imposed monetary fees should be subject to Nollan and Dolan scrutiny. Justice Clarence Thomas similarly maintains that the administrative/legislative distinction should not govern the level of scrutiny to be applied such that cities would be able to “legislatively impose exactions that would not pass muster if done administratively.”2

Professor Mulvaney touches on several other issues that space constraints preclude me from exploring. However, I will note that I concur with his opinion that the relationship between takings law and the unconstitutional conditions doctrine is particularly attenuated.

Mulvaney’s ’s review of post-Koontz decisions regarding exactions is very informative and his observations and conclusions are comforting to those of us who support the legislative-administrative distinction that supplies the underpinning of judicial review and legislative deference in land use decision-making.

  1. See, e.g., Shelley Ross Saxer, When Local Government Misbehaves, 2016 Utah L. Rev. 105 (2016).
  2. See California Bldg. Industry Ass’n v. City of San Jose, Calif., 136 S.Ct. 928, 929 (2016) (J. Thomas, concurring in the denial of certiorari) (quoting Parking Assn. of Georgia, Inc. v. Atlanta, 515 U.S. 116, 117 (1995) (“I continue to doubt that ‘the existence of a taking should turn on the type of governmental entity responsible for the taking.’”).
Cite as: Shelley Ross Saxer, Post-Koontz Exactions, JOTWELL (January 28, 2020) (reviewing Timothy M. Mulvaney, The State of Exactions, 61 Wm. & Mary L. Rev. 169 (2019)), https://property.jotwell.com/post-koontz-exactions/.

The Universal and Uniquely Human Custom (Not Right) of Property

Bart J. Wilson, The Meaning of Property in Things in The Property Species: Mine, Yours, and the Human Mind (forthcoming 2020), available at SSRN.

What is the meaning of “property”?  If you think there cannot be a fresh and intriguing perspective yet to offer on that question, you’ll be pleased and surprised to read the new work by Professor Bart Wilson.

In the opening chapter for his forthcoming book, The Property Species: Mine, Yours, and the Human Mind, Dr. Wilson challenges scholars of all disciplines to reconsider their prior assumptions about the origins of property and its meaning. In doing so, he announces in the chapter’s opening line the claim he sets out to defend in the book: “Property is a universal and uniquely human custom.” (P. 1.)

To narrow the discussion a bit further, Dr. Wilson refines the claim he seeks to establish as: “All humans have property in things, and Homo sapiens is the only animal to have property in things.” (P. 2.) In ways far too detailed to summarize here, he anticipates and effectively defends this basic claim against obvious and immediate adverse responses you might expect from cultural relativists, biologists, legal centrists, philosophers, lawyers and others.

A few highlights of Dr. Wilson’s supporting analysis will give a sense of his claim. For example, haven’t we all heard about other animals besides humans staking claim to territory or defending what might be called their possessions in food or mates? Dr. Wilson points out that such examples might easily but too quickly be analogized to the human conception of property.

When you consider the usual examples offered about non-human behaviors of this type, they can almost always be better explained as only acts to retain possession, defensive acts to threats of loss of possession and the concomitant risk to exclusive use, or other reactions to a fear of dispossession. But, as Dr. Wilson reminds us, “[p]ossession . . . is only nine points of the law.” (P. 5.) The “last tenth,” he explains, “is the origins of property in humans, and not simply its like and unlike effects.”  Only once focused on that aspect of human property, can we “begin to trace what property is and how it works.” (P. 6.)

So, how do we locate that last tenth, the origins of property as a human concept? Dr. Wilson walks us through several steps. One is that humans, unlike any other animal, have “symbolic thought” which is “what makes many uniquely human capabilities possible: language, creativity and innovation, art, and trade.” (P. 6.)

Dr. Wilson’s inquiry is initially focused on “things” – tools, utensils, ornaments, and so forth—because he makes the bold claim that “[n]ot every human community has property in land, but all human groups have property” in things of this sort. (P. 8.)

Symbolic thought makes property a uniquely human custom because we transform our relationship with, and use of, “things” beyond that of other animals by “socially transmitting” these things with “moral force and shared expectations” that are developed based on (sometimes distinct across communities) “meaning-laden customs.” (P. 13.)

Humans do not simply follow impulse regarding things.  We do not unidirectionally seek only to acquire or to use which is “[t]he common feature to all nonhuman practices regarding food and mates.” (P. 7.) In contrast, “[h]uman beings . . . appear to be the only species to teach their progeny how not to acquire things.” (P. 7.)

According to Dr. Wilson, herein lies the universality of property as well. For this, Dr. Wilson integrates lessons from cognitive linguistics, including his reporting that “linguists have identified . . . a semantic element” common in every human language: the concept “MINE,” which appears to develop naturally in children.

When tied to the teaching regarding not acquiring things mentioned above, three other universal linguistic concepts come into play to define property as a human custom. These are “NOT,” “GOOD, and “BAD.”  So, according to Dr. Wilson, humans are taught and develop customs regarding “Not Mine” (or, “yours”) and the “good and bad ways to acquire things in their community.” (P. 7.)  Dr. Wilson also then concludes that, because these concepts must be “socially taught and socially learned,” property “is a custom because it is a moral practice.” (P. 8.)

Dr. Wilson explains that identifying property as a “custom” and recognizing its origins as such is consequential.  For one thing, doing so “avoid[s] reifying property as a right” which inevitably devolves into a battle of which rights trump other rights. Customs, on the other hand, are designed to “fit” within a larger set of community interactions and coordinate with other customs much more freely than the strictures of rights-based values. Once we see property as “about what humans do” and “about how we orderly conduct ourselves with regard to things” (P. 11.) then property can be used to facilitate the “moral scheduling pattern” of communities. (Pp. 13, 14.)

If Dr. Wilson’s claims are correct, the focus by lawyers, economists, and others on “property rights” and how to define them may be not just missing the point but perhaps distorting the point of property as well. According to Dr. Wilson, “Property rights are the expectations defined by property, not the content of property.” (P. 14.) He uses these conclusions to challenge the oft-invoked bundle-of-sticks metaphor and to rebut legal realist claims that property has no prior normative content absent its definition by the state.

Many of us law professors teaching the first class of property for the semester this coming month will start by asking our students the traditional “What is Property?” question. Dr. Wilson’s work offers a rich new set of considerations for the answer to that question; and, we would be wise to keep his proof of customary origins in mind before too quickly getting sucked into the rights-based conveyor belt generated by the language of judicial resolution of property disputes that will dominate the course.

Dr. Wilson’s hopes to appeal not to a particular group of scholars fixed on their own path but instead to overcome the far too enduring obstacle present in scholarly inquiry when “different disciplines talk past each other in their own languages with different assumptions and different questions.” (P. 3.)

Indeed, legal scholarship (including property scholarship) and legal scholars are often guilty of academic stove-piping. Thus, Dr. Wilson’s work independently makes a valuable contribution by his invitation to greater interdisciplinarity in property research.

Furthermore, the substance of the work itself reminds us that so many questions about property are of interest to myriad fields of inquiry.  Opening the communication lines across multiple fields has very valuable cross-pollination effects.

As Dr. Wilson notes, “[d]epending on which department you visit at your favorite university, you will hear some rather different perspectives on property.” (P. 2.)  What those departments don’t do often enough is talk in order to discover their differences and understand the diversity of perspectives in order to seek synthesis. This work is an example of the exploration that is possible when we look beyond our department’s walls.

Cite as: Donald Kochan, The Universal and Uniquely Human Custom (Not Right) of Property, JOTWELL (December 18, 2019) (reviewing Bart J. Wilson, The Meaning of Property in Things in The Property Species: Mine, Yours, and the Human Mind (forthcoming 2020), available at SSRN), https://property.jotwell.com/the-universal-and-uniquely-human-custom-not-right-of-property/.

“Takings” from the Community

Yxta Maya Murray, The Takings Clause of Boyle Heights, 43 N.Y.U. Rev. L. & Soc. Change 109 (2019).

That the Constitution ensures that private property will not be taken by the government except for a public use and then only with just compensation is one of those principles learned in high school civics class. But, what is this “property” covered by the Fifth Amendment? It is not defined in the Constitution; rather the Supreme Court has stated that the term finds its contours and limits in state law, not under the federal constitution, and then only that which has been recognized and affirmed over the ages by custom, state statutes and judicial pronouncements.

Legal theorists often say that property is about the power of exclusion, by an “owner,” that is, one who holds “title,” as acquired through various established ways—voluntary transfer, inheritance, adverse possession. There are, to be sure, respected alternative theories recognizing property “rights” which are not necessarily founded on “ownership”—such as personhood and expectations and reliance on government benefits. In a recent article, Professor Yxta Maya Murray, describes a novel theory of property held by residents of Boyle Heights, a Los Angeles neighborhood, which she calls the “Boyle Heights property jurisprudence” that appears grounded in their collective experiences in the community.

The residents believe that property rights arise from the labor and cultural capital invested in the community by the residents. From this vantage, a taking of property, no different than if the government itself physically invaded their homes, occurs when there is loss of possession and leaseholds as a consequence of gentrification that is encouraged and facilitated by governmental development initiatives. Professor Murray calls their legal thought a form of “community constitutionalism.” The residents maintain that housing insecurity “takes” “property” because its poor residents should have the right to continued possession, unmolested by the government or investors or by immigrating “hipsters.”

The main issue addressed in the article is whether we can or should indulge this “jurisprudence” as a way of halting what seems to the residents of Boyle Heights to be the wrongful loss of community, or at least to provide compensation to those residents harmed through displacements and higher costs for access to spaces for living and doing business. Professor Murray offers insight into this question through a series of interviews of residents in Boyle Heights, a neighborhood long-burdened by huge shortages of affordable housing and now exposed to high decrees of gentrification, largely resulting from the loosening of rent control laws.

Landlords are now able to evict tenants who had been paying modest rents to convert their property into new spaces with new, higher rents that are out of reach for most of the current community residents. Professor Murray asks whether a “Boyle Heights takings jurisprudence” is so “off the wall,” as not to be entitled to serious consideration as we evaluate legal intervention on behalf of the residents. She does not think so.

In the interviews conducted by Professor Murray, the residents who were uncoached and unschooled in the lingo of property philosophy nonetheless expressed their worries in the many long-voiced notions of property. They spoke about how they had viewed the long-held protections against rent escalations as a form of property, not unlike Charles Reich’s “New Property.” The residents also spoke about how the new gentry were outsiders who brought values and interests out of sync with those long-held in the community, resonating Eduardo Penalver’s observations on property as facilitating the formation and maintenance of strong communities whose values differ dramatically from the mainstream.

The residents spoke of the demoralization from the loss of home and business because rents were too high, evoking Gregory Alexander’s human flourishing thesis. They also talked about being “surrounded” by gentrifiers, implicating Loretto v. Teleprompter Manhattan CATV Corp, where the Supreme Court found that a minor but permanent occupation in the guise of a cable television apparatus, effected a per se taking. In the resident’s view, there is a de facto psychological occupation of land by the gentrifiers that proves so disturbing of the enjoyment of the community so as to be an invasion. The residents stated that “property” was everything, echoing Laura Underkuffler, that property should be understood as a part of the foundational human conflict between I and thee (or we); Joseph William Singer’s work identifying  property as being about our way of life; and Matthew Desmond’s contention that “without stable shelter, everything else falls apart.”

On its face, the Boyle Heights property jurisprudence does not align with recognized Fifth Amendment case law and the residents’ assessments of housing as a “pillar” of human rights is not supported by takings jurisprudence. The Supreme Court long ago rejected the idea of housing (and education) as fundamental rights, at least on the federal level.

Takings jurisprudence as we know it now is not so much concerned with the interests that should be preserved, instead it is focused on which public interests would be furthered by a taking, at least as it involves the exercise of eminent domain. And, the line between a valid regulation and compensable taking is a fuzzy one, as the Supreme Court has insisted over time – see, for example, Penn Central Transp. Co. v. New York City and Pennsylvania Coal v. Mahon, which together instruct that only those regulations that go too far amount to a taking.

Could the same community values recognized as a basis for the government’s offensive use of police powers – for example, to clean up blighted areas in Berman v. Parker – also be used defensively to prevent community disruption?

The stories of worries and losses from gentrification and the government’s myopic pursuit of development seem no less relevant in setting the boundaries of property than the rights of tenants in avoiding uninhabitable conditions or violent evictions. Rent control itself was already an incursion into traditional property. The cause was based on the belief that homelessness was a social problem that could not be remedied through bilateral relationships, but also that having a home was fundamental to dignity—one of the interests that property has historically served.

Property and its protections are not static or fixed. Having regard for the “Boyle Heights takings jurisprudence” might well remind us about what property is about. Property exists to serve human values and is limited to that end.

Cite as: Shelby D. Green, “Takings” from the Community, JOTWELL (November 19, 2019) (reviewing Yxta Maya Murray, The Takings Clause of Boyle Heights, 43 N.Y.U. Rev. L. & Soc. Change 109 (2019)), https://property.jotwell.com/takings-from-the-community/.

Reconsidering the Strength of the Boundary Line

David A. Dana & Nadav Shoked, Property’s Edges, 60 B.C. L. Rev. 753 (2019).

I was thrilled when I discovered Property’s Edges, a recent article by David Dana and Nadav Shoked, who are both at Northwestern University School of Law. Their article sets up an extremely helpful framework to think about boundaries, borders, and the liminal spaces in between purely public and purely private. Specifically, Dana and Shoked suggest that property law distinguishes the borders of an asset from its center. Thus, we have (or should have) weaker rights of ownership in the edges of an asset, which are close to its boundary with private property, than we do at its core.

They use this framework—viewing ownership on a continuum from public to private—to dismantle the prevailing belief, espoused by many lawmakers and some scholars, that private property protections are unitary across a given asset, with the boundary line serving as a hard division between private and public space.

Shoked and Dana begin by examining existing property narratives, which the authors view as including this unitary idea of private property, or what we might think of as a formal boundary approach to property.

According to this view, property theory presumes entitlements are just as strong at the center of the property as at its edges. Thus, if the border is crossed, some sort of wrong has been committed and harm ensues. However, the authors assert that the law in fact does not uphold this unitary vision of property ownership.

Rather, they suggest that “the law treats property not as a binary private/public choice, but as a spectrum proceeding from a core of intensely-protected private property into much less protected edges of private property that blend into the public space.” In making this argument, Shoked and Dana look at three examples: trespass, aerial navigation, and police searches.

With respect to their example of trespass, the authors admit that a tort claim for trespass might exist regardless of where on a person’s property the offender enters. However, there will typically only be meaningful harm, and thus a substantial award of damages, if the trespass occurs on the “core” of the property (e.g., “the residence, the place of business, the cultivated area,” rather than the area near its boundary).

Similarly, while police need a warrant to search a person’s house or its “curtilage,” they do not need one to search the “open fields” surrounding it. Thus, these examples support the claim that the law already acknowledges the idea of property “edges,” despite what some lawmakers might believe.

The article then focuses on the reasons that the law tends to protect certain parts of private property more than others. The authors present normative, empirical, and administrative points, suggesting that both efficient development of land and privacy are advanced more by protecting the core of property than its edges.

They also suggest that there are public interests at stake: “At some physical point, as the space draws closer to the public realm or to the property of others, the public becomes a better arbiter of the space’s best uses.”

The idea here is that the public use of this space should be more efficient than a private owner’s use or decision about its use would be. Further, a conception of ownership that offers greater protection for the home than a parcel’s boundaries comports with public expectations about privacy and property, a point that has been corroborated by experiments and surveys.

Finally, the authors argue that, if we actually protected all parts of property equally, too much would wind up being litigated, including small and harmless intrusions.

The article then relies on three disparate ideas—lead poisoning caused by lead pipes; drones flying over private property; and shoreline rights in the face of climate change—to illustrate the problems that arise when legislators rely on a unitary vision of property, especially as technological advances stretch the workability of existing legal frameworks. One of the article’s strengths is the way that it relies on these varied examples to show how the law already views core and edges differently, and the problems that arise when relying on strict boundary demarcations between public and private land.

The authors begin this part of the paper by examining the need to replace lead pipes in residential areas. Here, they point to the problems that arise in deciding which pipes are the responsibility of the private homeowner, which are the responsibility of the government, and where to draw those lines.

In another example, the authors recognize that the unitary vision of property has inspired our current shoreline property ownership regime, which often sets a demarcation between public beach and private upland sand.

Further, the law establishes clear rules and different outcomes for gradual versus sudden changes in land, and additions versus subtractions to land. The problem with this approach, according to the article, is that shorelines are not constant; they are malleable and will continue to move over time. Specifically, oceans are rising because of climate change. This means current shoreline changes generally take the form of a decrease in dry sand, which results in beachfront property owners losing property.

Shoked and Dana suggest that if courts used an edges approach to considering public and private beach rights, they would not need to try to characterize shorefront land as solely public or solely private. The authors suggest that courts already do this in part through an application of the public trust doctrine, which recognizes that there are both public and private entitlements to beaches.

The article concludes by extending the idea of property edges from real property to intellectual property. Here, the authors focus on music sampling and the idea that copyright law distinguishes the core, or signature essence, of a work of art from its edges.

In sum, the article’s success lies in its introduction of a new term for a familiar concept: the “edges” of property. By defining this space—where both private and public interests exist—Shoked and Dana allow us to understand court decisions and statutes that stray from the formal boundary approach to property law, and to recognize the problems that can arise from “boundary fetishism.”

Cite as: Sarah Schindler, Reconsidering the Strength of the Boundary Line, JOTWELL (October 21, 2019) (reviewing David A. Dana & Nadav Shoked, Property’s Edges, 60 B.C. L. Rev. 753 (2019)), https://property.jotwell.com/reconsidering-the-strength-of-the-boundary-line/.

Projecting and Puppeteering

Maureen E. Brady, Property and Projection, 133 Harv. L. Rev. __  (forthcoming 2020), available at SSRN.

Suppose an unfriendly neighbor, professional rival, disgruntled employee, or random malcontent decides to send a message—from you. Said enemy projects words or images onto your real estate—the facade of your home or office building, say—turning your private property into an “unwitting billboard” showcasing an unwanted message.1 The affront is palpable, but a viable cause of action has proved as hard to nail down as the light beams themselves. Claims based on these fact patterns have so far foundered: courts find these projected intrusions too incorporeal to count as trespass,2 yet too fleeting and harmless to count as nuisance.

In Property and Projection, Maureen Brady surveys this interesting terrain and convincingly argues that such targeted acts of “communicative appropriation” should be actionable. This result seems so well supported that it initially seems surprising that courts have yet to reach it. In fact, projected speech of the sort Brady examines turns out to be an intriguing entry point into the nature and evolution of property entitlements, as well as a fascinating legal puzzle in its own right. There’s a great deal to unpack and enjoy in the piece, including the detailed history of old-fashioned light-related cases that Brady provides. I will focus in this short jot on what I found most compelling about Brady’s argument: the idea that these projections conscript property into the role of an unwilling speaker whose messages may be attributed in error to the owner.

Brady identifies the nub of the wrong caused by projected messages as a form of commandeering—one that is unusually destructive of the owner’s dignity, autonomy, and control. Because onlookers are likely to associate the property with its owner, the speech will seem to come from that owner rather than from the third party speaker. Property, in short, is turned into a puppet. As Brady notes, similar risks of misattribution animate other legal protections, including the right of publicity. Commandeering a person’s property for expressive ends, just like appropriating her identity, causes her to lose control over her self-presentation.

The First Amendment adds a wrinkle here, as it does for the right of publicity, but Brady rightly resists the notion that it immunizes projective commandeering. Although there are some settings in which free speech rights require private property interests to yield, including public fora, these contexts are rather limited; none involves an appropriation of property that generates the misimpression that the owner herself is speaking. And, as Brady emphasizes, being forced to speak is as much an imposition on free speech as is forced silence. To be sure, a private party and not the government is ventriloquizing the owner’s real estate. But normative concerns surrounding forced speech undermine any claim that the law must enable that compulsion.

Notice, for instance, that A’s right to free speech does not include the right to hold a gun to B’s head and force to recite A’s preferred philosophical positions, nor the right to plaster bumper stickers touting A’s favorite political candidates all over B’s car. These are prime examples of the way in which many liberties that we take for granted, such as not being forced by another private actor to say things we do not believe, are not expressly delineated but rather broadly “shielded” by nonspecific rights to bodily integrity and security in property.3 This lack of specification is central to the appeal of property’s exclusion-based architecture.4 You need not possess a specific right to keep an interloper from scrawling limericks on your dining room wall, for instance, because you can keep uninvited people off your property altogether, whatever their aims may be.  But exclusion is only a proxy for harm prevention, and one that engages poorly with projection.

In considering how to formulate protection against projection, Brady wisely recognizes the need to distinguish between purposeful projections of light displays and incidental projections of light, such as a dog owner accidentally casting light on her neighbor’s home as she searches for her pet (a scenario that I can attest is far from hypothetical). Trespass law would be unable to distinguish the cases, Brady explains, because it employs a “strict binary”—either the light beam is an intruder or it is not.

Brady suggests instead that tweaks to nuisance law could offer a better path to liability, one that could distinguish the incidental from the purposeful, and the harmful from the harmless—especially once the indignity of misattribution and commandeering is recognized. One way of threading the needle would be to ask whether the owner’s beamed-upon property is instrumentalto the objectives of the light-beamer, rather than merely incidentally impacted as the beamer pursues unrelated goals. Scholars have suggested asking analogous questions in takings and tort contexts.5 The intuition in these analyses is that making affirmative use of someone else’s property to achieve one’s own ends is qualitatively different from harming someone’s property as a byproduct of one’s other pursuits. In place of a conflict between two legitimate goals—where weighing, balancing, and the availability of self-help all seem relevant—there is just the question of whether one party should be able to turn something belonging to someone else into a tool for achieving her own ends.

There are many other questions and considerations that the projection cases implicate, and Brady’s piece does a splendid job of addressing them.  It is notable, for example, that most of the cases litigated so far involve labor disputes. In that context and others, distributive questions interact with realities of property distribution and with questions about how best to ensure that the relevant stakeholders have effective opportunities to speak. The issues are difficult and intricate, but for anyone wishing to navigate them, Brady’s analysis lights the way. 

  1. Brady, Property and Projection at 7.
  2. Or at least not the kind of trespass that warrants categorical protection. See id. at 16-19 (discussing cases that that treat intangible intrusions as trespass but apply a nuisance-like standard).
  3. See Matthew H. Kramer, Rights Without Trimmings, in “A Debate Over Rights: Philosophical Enquiries” 7, 11-13 (Matthew H. Kramer et al. eds., 1998).
  4. See, e.g., Henry E. Smith, Property as the Law of Things, 125 Harv. L. Rev. 1691, 1709-10 (2012).
  5. See Brian Angelo Lee, Uncompensated Takings: Insurance, Efficiency, and Relational Justice, 97 Tex. L. Rev. 935, 973-74 (2019); Oren Bar-Gill and Ariel Porat, Harm-Benefit Interactions, 16 Am. L. & Econ. Rev. 86, 86-88 (2014); Jed Rubenfeld, Usings, 102 Yale L.J. 1077, 1114-18 (1993).
Cite as: Lee Anne Fennell, Projecting and Puppeteering, JOTWELL (September 19, 2019) (reviewing Maureen E. Brady, Property and Projection, 133 Harv. L. Rev. __  (forthcoming 2020), available at SSRN), https://property.jotwell.com/projecting-and-puppeteering/.

Reclaiming State Authority Over Zoning

John Infranca, The New State Zoning: Land Use Preemption Amid a Housing Crisis, 60 B.C. L. Rev. 823 (2019).

In 2019, Oregon became the first state to pass legislation that essentially bans single-family zoning.1 As states across the country struggle to respond to the housing affordability crisis, Oregon’s actions do not stand alone. John Infranca’s recent article, The New State Zoning: Land Use Preemption Amid a Housing Crisis, may have been published before Oregon’s historic vote but it is essential reading for those interested in the future of zoning.

The article does a masterful job collecting examples of similar moves by states to preempt local zoning as a way to facilitate the construction of more dense housing. It also persuasively argues that states are going to increasingly use state preemption through state regulation as a way to respond to the housing affordability crisis.

As Infranca shows, there has traditionally been a great deal of deference to localities regarding zoning. But, state preemption is on the rise when it comes to housing construction because interest groups and state governments recognize the need to check local NIMBYism.

The New State Zoning is great not simply because it does a great job collecting material—the footnotes are fabulous and the examples are well presented—but also because it shows how state-level zoning efforts related to affordable housing are different in kind today than they were during the first wave of such state activity.

Infranca shows how the first generation of state land use interventions—the Mt. Laurel line of cases and legislative response, Massachusetts’ development approval-tied “antisnob” ordinance, and California’s imposition of affordability planning on localities—largely operated by piggy-backing on local zoning authority.

He argues that the new wave of state interventions we are witnessing today, in contrast, get their power by declaring that certain forms of more dense development can take place as a matter of right. This second generation of state interventions works “by directly displacing specific elements of local zoning,” they “displace, rather than simply channel, local land use decision-making.” (P. 886.)

The article provides in-depth coverage of changes in rules related to accessory dwelling units (ADUs) and the ways states are starting to encourage ADU development. Frankly, when I first came to the section on ADUs, I was skeptical that such a case study would add a lot to a strong article. There are good articles already out there about ADUs; indeed, Infranca wrote one of the better ones.2 And, as a reader, I was more interested in what Infranca thinks more generally about YIMBYism and the rise of YIMBY groups as actors in the zoning space.3 But the payoff for The New State Zoning’s discussion of ADUs happens at the end of the article.

Infranca argues that because residents who otherwise support standard NIMBY policies can support ADUs under the banner of a right to use one’s property, ADUs may create political space for greater density and more transformative zoning changes. Not only do ADUs potentially help cities deal with the high cost of housing by providing additional housing units, but they serve as a wedge which can help break the hold single family zoning has urban space.4

We are entering a period of bipartisan appreciation of the connection between housing unaffordability and zoning restrictions.

For years, liberals emphasized particular market conditions and housing quality while conservatives focused on supply constraints. But just as the implied warranty and works like Evicted force conservatives to acknowledge the importance of quality, so too progressives are slowly being forced to reckon with how regulation impacts supply.5

As Infranca notes, in 2016 the Obama Administration released a report that “highlighted the national implications of local land use regulations” and called for lowering the many local land use barriers to housing development. (P. 826.) Put differently, as The New State Zoning convincingly argues, “the evidence is clear that [local restrictive] regulations drive up costs and that most cities are not moving to liberalize local zoning,” therefore, “state governments are justified in preempting overly restrictive local zoning.” (P. 885.) Local zoning is so ubiquitous and so accepted, that it is easy to forget a crucial component of the Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), holding, namely, that cities are exercising delegated authority.

Infranca’s article is a tremendous contribution, not only because it does such a wonderful job marshalling evidence in support of his argument that a new era of state zoning is upon us, but also because it shows the ways assertive state actions can be powerful tools to attack even seemingly intractable problems such as housing affordability.

  1. See Laura Bliss, Oregon’s Single-Family Zoning Ban Was a ‘Long Time Coming’, Citylab (July 2, 2019); Laurel Wamsley, Oregon Legislature Votes To Essentially Ban Single-Family Zoning, Nat’l Pub. Radio (July 1, 2019).
  2. John Infranca, Housing Changing Households: Regulatory Changes for Micro-Units and Accessory Dwelling Units, 25 Stan L. & Pol’y Rev. 53 (2014).
  3. For more on YIMBYism see Kenneth A. Stahl, “Yes in My Backyard”: Can a New Pro-Housing Movement Overcome the Power of NIMBYs?, 41 Zoning & Plan. L. Rev. 1 (2018).
  4. For great graphic depictions of the prevalence of single family zoning in many cities see Emily Badger & Quoctrung Bui, Cities Start to Question an American Ideal: A House With a Yard on Every Lot, N.Y. Times (June 18, 2019).
  5. See Benjamin Schneider, Liberal America’s Single-Family Hypocrisy, The Nation (May 8, 2019).
Cite as: Ezra Rosser, Reclaiming State Authority Over Zoning, JOTWELL (August 15, 2019) (reviewing John Infranca, The New State Zoning: Land Use Preemption Amid a Housing Crisis, 60 B.C. L. Rev. 823 (2019)), https://property.jotwell.com/reclaiming-state-authority-over-zoning/.

Should Government Compensate Street Gangs for the Loss of “Identity Property?”

Frank Rudy Cooper reminds us that, “We are born unable to protect ourselves, we become feeble with age, we must fear natural disasters, and our social institutions might work against us.”1  Vulnerability is the inescapable condition of all humankind that compels us to construct various means of mitigating that vulnerability through “resilience.” The creation and accumulation of property is one of the ways in which we buffer ourselves against our own fragile natures and the threatening forces of the world around us.

In her recent article, Professor Lua Kamál Yuille confronts vulnerability and property-centered modes of resilience in a compelling reframing of the modern street gang as a creator of “identity property.” (P. 467.)

We know that gangs fill institutional and societal gaps, replacing family, school, and work. Yuille, however, explores this gap-filling role through the lens of Martha Albertson Fineman’s “vulnerability theory.” She situates the gang’s creation and maintenance of its “identity property” firmly in the milieu of “resilience”—“the accumulation of sufficient resources to allow individuals to confront, adapt to, ameliorate, compensate for, or contain vulnerability.” (P. 475.)

Yuille ties together the strands of vulnerability theory with those of property theory, particularly Charles A. Reich’s “new property” and Margaret Jane Radin’s conception of personhood and property.

She also connects vulnerability theory with Eduardo Peñalver’s notion of “property as entrance” —a means of uniting individuals into communities. Yuille’s work, therefore, is the first to relate the vast scholarship on street gangs to both evolving vulnerability theory and established property theory.

Yuille’s article both begins and ends with the premise that “local governments should compensate gang members for refraining from certain, otherwise lawful, gang activity.” (P. 467.) Yuille challenges the notion of the gang and its members as purely pathological. Instead, she argues that gang membership and gang activity is the natural response to human vulnerability and to the state’s failure to respond to that vulnerability when it affects underserved populations, such as Blacks, Latinos, and poor people.

Gangs, then, are “social institutions creating and operating in alternative markets . . . [in an effort to] provide[] resilience to . . . universal vulnerability.” (P. 466.)

Human beings use social intuitions and the relationships that these institutions engender to create and accumulate resilience. Vulnerability theory posits that the “responsive state”— one that constantly monitors vulnerability and updates or supports institutions in response to levels of vulnerability–is the answer to mitigating human vulnerability through resilience.

In essence, “[t]he responsive state must alter institutional arrangements that create resilience and privilege, while perpetuating disadvantage.” (P. 476.) When the state fails to respond to vulnerability or acts to undermine resilience, individuals and communities will build their own means of producing resilience.

Yuille argues that gangs are one of these alternate resilience-producing institutions. Gangs, then become gap-fillers in building resilience in marginalized and disadvantaged communities. Gangs do this by generating capital for their members and their communities. Much of this capital is “identity property,” such as clothing, colors, signs, symbols, graffiti, tattoos and other physical markings, other intangible assets and “intellectual property” and, of course, claiming a kind of dominion over real property in the form of gang territory.

The “responsive state” is unresponsive to the needs of gang members and their communities. This lack of state responsiveness prompts gang members to create their own resiliency mechanisms–parallel mechanisms that mirror the mainstream. The recognition of this phenomenon allows one to eschew the traditional perception of a gang member as an “outlaw,” instead reconstituting him/her as a vulnerable subject.

Yuille contends that the parallel system created by gangs and their members can function as a bridge between that system and mainstream systems of capital and resilience building. In fact, she argues that one of the goals of the parallel system is eventual admittance into the mainstream system.

Once she has established a reframing of the gang and its members, Yuille turns her attention to gang injunctions and their resilience-destroying effects.

The gang injunction is a law enforcement technique that seeks to strip gangs and their members of the very things that Yuille has identified as “gang capital”—which is “capital having value in the normative spaces gangs create” (P. 479)—by categorizing the conduct of named gangs as a public nuisance.

Under such injunctions, conduct that is not criminal, but that can be associated with gangs, can be enjoined. This conduct includes, but is not limited to, appearing in public with a known gang member, possessing objects that can deface property (such as pens, markers and paint), and using language, signs and symbols that refer to gangs.

Gang injunctions destroy access to the mechanisms that gang members have created to build resilience. Worse, because having been the subject of an injunction appears on an individual’s background check, gang injunctions increase the individual gang member’s vulnerability by obstructing the person’s pathway to legitimate employment and access to services, such as public housing or social programs. As such, gang injunctions are a failure of state responsiveness.

Vulnerability theory, Yuille argues, calls for the state to rectify its failure by constructing alternative methods for gang members to build resilience.

The “compensated gang injunction” is one such alternative. Such compensation, Yuille argues, can work to build a bridge between the parallel resilience system of the gang and mainstream resilience systems. Payment could take the form of a “conditional cash transfer”—the conditions being participation in education programs, job training, or other services that build resilience in the mainstream.

This new approach recognizes the universal human vulnerability of street gang members, their efforts at creating resilience through a parallel property regime, and the need to build a bridge between that parallel regime and the mainstream. Thus, Yuille closes the loop of her argument by ending where she began: proposing “the paid injunction as the responsive state alternative to the standard approach” to gang activity. (P. 485.)

  1. Frank Rudy Cooper, Always Already Suspect: Revising Vulnerability Theory, 93 N.C. L. Rev. 1339, 1343 (2015).
Cite as: Jamila Jefferson – Jones, Should Government Compensate Street Gangs for the Loss of “Identity Property?”, JOTWELL (July 18, 2019) (reviewing Lua Kamál Yuille, Manufacturing Resilience on the Margins: Street Gangs, Property & Vulnerability Theory, 123 Pa. St. L. Rev. 463 (2019)), https://property.jotwell.com/should-government-compensate-street-gangs-for-the-loss-of-identity-property/.

What’s in a Name?

Nestor Davidson and David Fagundes, Law and Neighborhood Names, 72 Vand. L. Rev. __ (forthcoming, 2019), available at SSRN.

What’s in a name? According to Nestor Davidson and David Fagundes, in Law and Neighborhood Names, a lot. As the authors recognize, the conflicts over neighborhood names that seem to be popping up in city after city may, at first glance, seem “trivial,” “cosmetic,” or (I might add) downright silly. Perhaps for these reasons, government regulation of neighborhood naming has largely been passive, reactive, or weak. But neighborhood names are emblems for the communities, values, and conflicts that they demarcate.

Law and Neighborhood Names provides a new perspective on this complex phenomenon. The authors also provide a pragmatically effective set of tools for addressing the injustices that so regularly flow from gentrification.

To be sure, gentrification is just one of the contemporary issues, though a key one, on which this article sheds new light. The authors also provide fresh insights on important debates about ownership, governance, identity, and space – informing conversations within the fields of property law, local government law, and toponomy (the sociology of place naming).

For example, they make a compelling and startlingly sensible case (effectively, a prima facie case) for a neighborhood to claim ownership of a neighborhood name as a form of cultural property. Although such claims are context-dependent, they argue that groups seeking to protect neighborhood names that have developed from the “bottom up” should be able to meet the three basic conditions of ownership of cultural property.  These conditions are: [1] a coherent group of people that “can claim ownership;” [2] a “thing … that is the object of a property relation;” and [3] “a relationship whereby the thing is constitutive of the people’s identity.” (P. 801.) By demonstrating the pragmatic potential for groups historically marginalized in neighborhood naming contests to make such an argument, the authors strengthen the doctrinal understanding of cultural property. Their analysis is an effective means of transforming the battle over renaming parts of Harlem from a debate about culture and history into a debate that is also about law.

In addition, Davidson and Fagundes provide a fascinating analysis of the multiple connections between legal regulation of neighborhood naming (especially covert forms of regulation) and the ongoing dynamics around formal and informal neighborhood governance. The bluntest example is the taxing authority available to some business improvement districts (BIDs), which allowed one San Francisco BID to use much of its tax revenue to invest in and advocate for a neighborhood name change.

Broadly, the authors’ analysis of the implications of such efforts for local government law raises crucial questions about the power and perils of devolving democracy to the very local, and often informal, level. Such localized democracy can better respond to local preferences and information, but it can also risk exclusion of those with less money and political power.

These observations about neighborhood naming as a case study of local democracy relate to a third conversation to which the authors contribute compellingly. As the authors describe, the vocabulary and values underlying the legal concept of cultural property are useful tools for neighborhood residents who seek collectively to protect their neighborhood’s identity, history, and culture by preserving its name.

The concept of cultural property is useful because it is a tool for understanding, defining, deploying, and “concretizing” the pluralist values – “belonging, history, identity, and pride” – that people associate with being a part of a neighborhood. (P. 822.) Though socially powerful, these values can seem more “diffuse.” As a legal matter, it can therefore be easier to dismiss or underappreciate these values, especially when a community raises them in response to more financially grounded claims that renaming a neighborhood can raise property values and produce other economic benefits. (P. 821.)

This is a crucial point, perhaps the most valuable one for those of us who live in and work to support and nurture urban neighborhoods. It is relevant to discussions about affordable housing, health care, financial access, access to work, and local development.

While Davidson and Fagundes provide a range of interesting examples of neighborhood naming conflicts, the one that I kept turning over in my mind as I read this article was the attempt by a local group of realtors to rename a portion of Harlem “SoHa,” perhaps to leverage some of the success of the already-gentrified SoHo neighborhood. (P. 759.) It is the example with which the authors begin, and for good reason. It compellingly captures the range of losses that those who live in – and once lived in, visited, and felt association with – Harlem would experience if that name became a historical relic.

Consequently, a reasonable metric for assessing the authors’ analytical and normative claims is to consider their potential value for those who seek to preserve Harlem as their neighborhood’s name. My answer is strongly positive. Indeed, it is interesting to consider how arguments about cultural property might fare – in court, local government meetings, and other legal and extra-legal settings.

One response to the proposed renaming in Harlem was the reintroduction in 2017 by state senator Brian Benjamin of the Neighborhood Integrity Act, a piece of legislation originally introduced in 2011 to prevent the renaming of a portion of Brooklyn, that would penalize those who “advertise a property as part of, or located in, a designated neighborhood that is not traditionally recognized as such.” (P. 766.)

That bill has yet to be passed into law, despite supportive commentary by Harlem residents that it would help avoid “erasure” (P. 819) and would protect their neighborhood’s “history, culture and character.” (P. 790.) It is promising indeed to ponder whether the bill would have a better chance of passing if such commentary was made in support of the claim that the name “Harlem” is the cultural property of its residents.

Cite as: Rashmi Dyal-Chand, What’s in a Name?, JOTWELL (June 24, 2019) (reviewing Nestor Davidson and David Fagundes, Law and Neighborhood Names, 72 Vand. L. Rev. __ (forthcoming, 2019), available at SSRN), https://property.jotwell.com/whats-in-a-name/.

“Property” as a Dynamic Technology, and Its Consequences

Lee Anne Fennell, Property Beyond Exclusion, 61 William & Mary L. Rev. __ (forthcoming 2019), available at SSRN.

While the layperson tends to think of “property” in terms of things, modern legal discourse tends to conceive of property as a “bundle of sticks,” i.e., a collection of rights with respect to land, or to tangible and intangible objects.1 In her new article Property Beyond Exclusion, University of Chicago law professor Lee Anne Fennell has a different take. Fennell focuses not so much on any specific contents of the bundle; rather, her focus is on the changes in their nature.

Professor Fennell’s thesis in Property Beyond Exclusion is that rights generally associated with landed property increasingly should not be structured around physical boundaries. While physical demarcation of parcels of land remains our “workhorse strategy,” it is “becoming less efficacious and more costly” (P. 3).

Professor Fennell questions whether physical boundaries really are most broadly conducive to liberty. Landowners may want to exercise informal control of lands outside their deeded perimeters, in part, because real or metaphorical fences exclude others, for whatever motivation, from resources necessary to complete their own projects.

As she enunciates her theme, “[t]he increased interdependence among properties that has accompanied widespread urbanization raises questions about two central features of an exclusion-centric model of real property: boundary defense as a proxy for resource defense, and the capacity of owners to monopolize unique resources.  The first of these features has made boundary exclusion less useful while the second has made it more socially costly” (P. 13).

If the advantages of boundary exclusion are becoming less valuable, Fennell argues that the costs of that strategy are increasing because of the harmful effects of the monopoly powers that it grants parcel owners.

The early part of Professor Fennell’s essay focuses on the decreasing benefits and increasing costs of physical boundaries. She then turns to a general description of the facets of modern life that should lead us to change our conception of property. She writes that “we are seeing a move from enduring lumps of ownership to slices of access on demand.” Fennell gives as an example the diminished need to own a large home if infrequent houseguests could be put up in the spare bedrooms of neighbors (P. 20).

She concedes that sometimes acquiring “slices” of assets instead of “lumps” of bounded property might be impractical. In some instances, an owner might regard access on demand as important, or the good might be one that everyone might want to use at the same time. Thus, rather than a dramatic change, “we are likely observing a transitional phase in resource use. As it becomes increasingly attractive for people to access certain kinds of resources on demand, full-strength ownership of those assets will presumably become less popular” (P. 22).

All of this doesn’t imply that boundary exclusion will become obsolescent; merely that we must consider, in varied situations, whether a better alternative exists. Likewise, zoning and restrictive covenants now feature coarse-grained prohibitions. A “modest move” in transitioning from boundary-based restrictions “would entail focusing more explicitly on actual impacts experienced by neighbors, both positive and negative, rather than on summarily excluding classes of uses” (P. 32).

As Professor Fennell recognizes, her analysis is more a departure point for discussion than a rigorous system. For instance, she notes the question of “whether it is even logically possible for a resource arrangement to diverge from an exclusion model. At least when we are talking about rival resources like real and personal property, it might seem that any affirmative use implies exclusion of all other uses. Isn’t it, then, exclusion all the way down?”

A more fundamental critique of Professor Fennell’s essay is premised on her view that “[p]roperty . . . is best approached as a functional category. As the management of resources becomes increasingly fine-grained . . . resource access can morph from a modality that focuses on stocks to one that focuses on flows” (P. 35).

Property is an important social institution, and one that over time has derived its meaning beyond the utilitarian or functional. As Professor Fennell noted, even the system of boundary exclusion does not prevent extraterritoriality. “For example, homeowners are often territorial about the curb space outside their homes and may attempt to keep others from parking there, even though they do not always need the space for their own uses, and even though they do not actually own the space” (P. 11).

While Professor Fennell pointed that the particularities of objects such as coffee pots and automobiles hinder shared use, “[t]he owner interacts with the thing and suits it to her purposes, perhaps even adorning it with personalizing touches. Sentimental attachments may form as well, though this need not occur in order for temporal economies of scale to exist—it is enough that there are gains from having the same object day to day, even if those gains are practical rather than emotional” (P. 26). The gains, though, are likely both practical and emotional. Moreover, inevitably the sharing of such resources among many people would result in their standardization.

As Professor Fennell recognizes, “[a] life is built up around the home, and to switch homes would disrupt far more than one’s interactions with the residence itself. Some of the reasons may be quite personal in nature, but many are simply practical: knowing where to get the best deals on groceries, perfecting the commuting route, finding one’s regular coffee shops, fitness classes, and dry cleaners” (Pp. 26–27). Again, the balance between a life built upon a web of intimate and neighborly associations, and a transactional life stressing functionality is important. The antithesis of a home with its intimate associations is a residential lot with its market price. Here, Fennell touches upon various proposals that the protection of homeowners’ rights be reduced from a property rule entailing injunctive relief for violations to something akin to eminent domain being exercised by private parties to whom the land presumptively has a greater pecuniary value. Where market value is king, sentimentality is forsaken.

Lee Anne Fennell has written an excellent introduction to the challenges that we will face as technology facilities the sharing of resources. The story of the effects upon human beings of a transition from traditional property to a stream of goods and services flowing by is yet to be written.

  1. See generally Thomas W. Merrill & Henry E. Smith, What Happened to Property in Law and Economics?, 111 Yale L.J. 357 (2001).
Cite as: Steve Eagle, “Property” as a Dynamic Technology, and Its Consequences, JOTWELL (May 20, 2019) (reviewing Lee Anne Fennell, Property Beyond Exclusion, 61 William & Mary L. Rev. __ (forthcoming 2019), available at SSRN), https://property.jotwell.com/property-as-a-dynamic-technology-and-its-consequences/.

What’s in a Name? Apparently a Lot

Donald L. Kochan, The [Takings] Keepings Clause: An Analysis of Framing Effects From Labeling Constitutional Rights, 45 Fla. St. U. L. Rev. __ (forthcoming), available at SSRN.

“What’s in a name?
That which we call a rose
By any other name would smell as sweet.”

These words might ring true for William Shakespeare’s tragic lovers, Romeo and Juliette, but not so much so for the takings clause in the Fifth Amendment of the United States Constitution. In his compelling new article, The [Takings] Keepings Clause: An Analysis of Framing Effects From Labeling Constitutional Rights, Professor Donald L. Kochan employs interdisciplinary research from the fields of linguistics, psychology, and business product advertising to remind his reader that the words we use to label (or frame) constitutional rights do, in fact, matter.

The majority of regulatory takings challenges are brought under either the categorical takings test articulated by the Supreme Court in Lucas v. South Carolina Coastal Councilor or the three-part balancing test the Court applied in Penn Central Transportation Co. v. New York City. Property owners hardly ever win takings claims under either of these regulatory takings frameworks.1

Against this backdrop of the proverbial cards stacked against property owners who resist government’s forced acquisition of their private property through eminent domain, Kochan reminds us that James Madison, “The Father of the Constitution” viewed the role of a just government as predominantly “‘protection’ and ‘preservation,’ [of private property rights] not merely ‘compensation’. . . .”

Kochan convincingly argues that the framing of the “’Takings Clause’” wrongly emphasizes the power of government to weaken constitutionally protected rights. Instead, we should choose a label that strengthens property owners’ constitutionally protected rights to keep their property, hence, the “‘Keepings Clause.’”

To make his case, Kochan does the challenging work for the reader of detailing the history of labeling other rights and entitlements related to the Fifth Amendment and the government’s eminent domain powers. Using multiple data collection tools, he documents the first usages of the term “Taking Clause” or “Takings Clause” (hereinafter “The Takings Clause”). His painstaking research reveals that the phrase emerged relatively recently, more than 100 years after the United States Supreme Court  heard its first case dealing with the Fifth Amendment and the use of eminent domain. Kochan’s research is important because it shows use of the “Takings Clause” is not justified by any longstanding practice or constitutional imperative. Hence, what is the harm in replacing The Takings Clause with one that is more constitutionally accurate in its emphasis on what the Framers of the Constitution valued, constitutional safeguards for private property owners against the government?

Kochan next does a deep dive into the literature and study on framing, importing valuable lessons from other disciplines to show the power of framing and why labels matter. If the Fifth Amendment’s integrity is aimed at protecting property owners’ right to keep their property, then The Takings Clause could be “an irresponsible frame” to the degree that it emphasizes the government’s right to take through the exercise of eminent domain.

To help prove his point, Kochan explores the framing research of psychologists Amos Tversky and Daniel Kahneman, among others, whose work led them to the conclusion that “‘the adoption of a decision frame . . . [is] an ethically significant act.’” In other words, as Kochan explains, the way we frame constitutional text will affect the way in which the meaning of that text, and the rights it affords, are perceived even relative to other constitutional rights. For example, the First Amendment clause that protects speech is framed as the Free Speech Clause. This framing emphasizes the right that is protected, freedom of speech.  In contrast, it could have been framed as the “‘Abridgment of Speech Clause’” or as the “‘Suppression of Speech Clause.’” These alternative frames are more akin to the “Takings Clause” frame in their emphasize, not on the right that is protected, but rather on when the government can limit, invade, and intrude upon the important constitutional right of freedom of speech.

Marketing and advertising research further support Kochan’s claim that framing matters and that the framing of important constitutional rights matters a lot. Marketing experts understand that how we label goods, services, and rights, is important to the framing of those same goods, services, and rights. Kochan points to branding literature as additional support for his claim that the “Keepings Clause” is a more accurate label for the Fifth Amendment because it sends a strong signal of a rights-oriented approach to the Fifth Amendment rather than doubling-down on what is already a strong government power-oriented approach to the Fifth Amendment. Kochan notes that recent Supreme Court decisions confirm that the Court is predisposed against finding constitutional takings, à la: Kelo v. City of New London, Stop the Beach Renourishment Inc. v. Florida Dep’t of Environmental Protection, and Murr v. Wisconsin. Changing the label could change the perception of the Fifth Amendment.

Kochan acknowledges that his ideas are going to be met with formidable resistance as he makes the case for stripping the Takings Clause label and replacing it with a label that conveys the message that the constitutional protections guaranteed by Fifth Amendment “should be to maximize keepings and minimize takings.” And certainly, while he would be pleased if we replaced what we have come to know as the Takings Clause with the “Keepings Clause” or something else, Kochan’s goals are broader and more far-reaching. He wants to provoke the reader to think ─to think about the labels we use and their impacts.  He wants us all to be more circumspect as we approach the Constitution and go about attaching labels to constitutional protections and entitlements.  If labels send important signals that affect behavior, attitudes, and outcomes, then more attention needs to be given to our framing of the Constitution.

Kochan’s work is important and interesting. For those of us who spend our professional lives thinking quite a bit about Fifth Amendment protections, his work refreshes some of the debates surrounding the critical importance of private property rights in our constitutional order and its fundamental role in our economy.

  1. Carol Necole Brown & Dwight H. Merriam, On the Twenty-Fifth Anniversary of Lucas: Making or Breaking the Takings Claim, 102 Iowa L. Rev. 1847, 1891 (2017).
Cite as: Carol Necole Brown, What’s in a Name? Apparently a Lot, JOTWELL (April 24, 2019) (reviewing Donald L. Kochan, The [Takings] Keepings Clause: An Analysis of Framing Effects From Labeling Constitutional Rights, 45 Fla. St. U. L. Rev. __ (forthcoming), available at SSRN), https://property.jotwell.com/whats-in-a-name-apparently-a-lot/.