Yearly Archives: 2019

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

Jul 18, 2019 Jamila Jefferson – JonesAdd a Comment

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.)

What’s in a Name?

Jun 24, 2019 Rashmi Dyal-ChandAdd a Comment

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.

“Property” as a Dynamic Technology, and Its Consequences

May 20, 2019 Steve EagleAdd a Comment

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.² 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.

What’s in a Name? Apparently a Lot

Apr 24, 2019 Carol Necole BrownAdd a Comment

“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.³

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.

Should Owner Motivation Limit the Exercise of Property Rights?

Mar 20, 2019 Gregory M. SteinAdd a Comment

People sometimes exercise their property rights out of animus or an attempt to gain leverage over someone else. An owner may build a fence from which he gains no benefit because he maliciously wishes to block his neighbor’s view. Or a prospective seller may overstate the minimum price she would accept for a good in an effort to gain an advantage in the negotiations to follow. In the first case, the owner probably commits a civil wrong, while in the second case, the owner probably does not.

In a forthcoming book chapter, Professor Lee Anne Fennell examines when the exercise of property rights constitutes a civil wrong. More particularly, she asks when it is appropriate to examine the motivations of the property owner or the nonowner counterparty. Her “core insight is that there are multiple possible mechanisms through which putatively absolute property rights can be made less so, some of which involve weighing the motives and interests of nonowners instead of, or in addition to, those of owners” (P. 4).

Professor Fennell favors what she terms a “blanket” conceptualization of property rights, in which an owner has a broad set of categorical rights that may be limited in particular instances. The question then becomes, when do we poke holes in this blanket? She reminds us that any such poking has an impact on property law as a whole and not just on the parties to a particular transaction.

We may need to poke these holes occasionally to limit opportunism. But any focus on motive can be both over-inclusive, by banning spiteful acts of little consequence, and under-inclusive, by permitting acts that cause great harm but were not badly motivated. Thus, focusing on motive alone is insufficient.

Motives, which can be difficult to parse, are not the only concern. “Should the owner who constructs an ugly fence to spite or pressure her neighbor be required to remove it, while an owner who incidentally inflicts identical harm through an equally ugly but earnestly constructed fence gets a free pass?” (P. 10).

In addition, there is much to be said for protecting the exercise of property rights even when the motivation for that exercise is a bad one, since this approach avoids the need to figure out what motivated any particular owner. We do not want property law to be less functional as the price for weeding out a subset of malevolent acts. As Professor Fennell puts it, “ownership is designed to work in a manner that does not require reason-giving, and . . . requiring reasons adds to the burden of ownership in systemic ways” (P. 15).

Ultimately, Professor Fennell’s primary concern is with the smooth functioning of the property system rather than just the remedying of the occasional breakdown. Property law should advance the general welfare.  Focusing on motive may accomplish that goal in some instances, but the risk of trying to determine motivation and then figure out when to bar certain exercises of rights may cause more harm than good, except in extreme cases such as anti-discrimination law. One must also remember that an owner’s counterparty can have bad motivations, and that interactions between neighbors are ongoing, back-and-forth transactions.

One solution Professor Fennell proposes to this problem is to replace property rules with liability rules or to prohibit the exercise of certain property rights altogether. Any such remedy, however, limits property rights overall, which may have downstream costs. She also floats the possibility of trading certain rights in advance, a model I hope she will explore and expand further in the future. This approach apparently would permit the advance trading of rights before bad blood can develop between neighbors, though it is unclear how the neighbors would know which rights merit transactions before a disagreement arises.

In the end, Professor Fennell concludes that we should be wary of investigating the motives of owners or non-owners. Such an approach does not serve property law well. But in some cases, this examination may be warranted and can lead to the poking of new holes in the property blanket or, perhaps, modifying property rights more broadly.

Professor Fennell’s chapter is a pleasure to read, mixing an interesting problem, memorable hypothetical examples, and a helpful grid. She wisely refrains from recommending wholesale changes to the body of property law in order to address a problem that arises only occasionally, opting instead for a more case-by-case approach. She also recognizes that any attempt to solve the problem of spite may bleed over and have effects on other, less worrisome cases, such as those in which a party is only trying to gain leverage for future negotiations or acting in her own self-interest. Property law generally does not need to concern itself with these situations.

In short, she identifies a problem, suggests some possible solutions, describes how these solutions may cause even greater harms, and reminds the reader to be wary of opting for a response that may damage the larger body of property law in the long run. In Professor Fennell’s words, “The structure of property rights is only rarely best served by motive-based carve-outs from an owner’s rights. But considering interests that stand on the other side can, and often does, justify either an exception to or a broader alteration in those property rights” (P. 23).