Feb 19, 2016 Shelby D. Green
Maureen Brady,
Defining “Navigability”: Balancing State Court Flexibility and Private Rights in Waterways, 36
Cardozo L. Rev. 1415 (2015), available at
SSRN.
More than 86,000 square miles of inland waterways traverse and meander throughout the United States. Since ancient times, navigable waterways were not subject to private ownership, but were reserved to the public under the public trust doctrine. In contrast, non-navigable waterways could be privately owned. While riparian and littoral rights are firmly fixed in the common law, what has proven to be more fluid is the definition of “navigability.”
In Defining “Navigability”: Balancing State Court Flexibility and Private Rights in Waterways, 36 Cardozo L. Rev. 1415 (2015), Maureen Brady explains that over the last two centuries, state courts have broadened the concept of navigability, and applied the new definitions to alter existing land titles. As a consequence, many non-navigable waterways have become navigable waterways, increasing public ownership and extinguishing private rights.
Brady’s exhaustive historical analysis reveals that in judicial decisions resolving competing claims to control the use of waterways, the courts have unmoored the meaning of navigability from its early conception—touched by the tides or capable of commercial transport of people or goods—to the present liberal conception, in many states, that includes pleasure boating, floating and similar uses other than navigation. She identifies two significant movements in American history that were the driving forces for these changes: the industrial movement of the mid-nineteenth century that favored expansions of private rights and the environmental movement of the mid-twentieth century that urged greater public access.
What seems to concern Brady is not only that these shifts in the classification of waterways are occurring without notice to private owners, but that they are occurring without constraints and that some of the rationales offered have been strained, if not disingenuous. Her study is rich with cases that present both earnest and opportunistic claims to the waterways, sometimes erupting in violence that cowered even the judges. With perfectly circular logic, one case cited found a waterway to be navigable because purely recreational boating could be turned into commercial use by offering paid paddling tours. Though the trend is concerning, Brady shows that the shift has been neither linear, nor universal, as some courts have viewed the re-routing as a transmogrification that portends a host of negative externalities, including noise from more users, loss of privacy and productivity to the private owners and harm to wildlife from disturbances to habitats. One court noted that in many spots in the waterways deemed navigable under the new rules, there was less water than in a bathtub.
Brady’s main aim is to question the authority of state court judges to reshape the common law definition of navigability, charging them with conducting “judicial takings” without compensation and deprivations of property without due process. Brady does not maintain that the line between navigable and non-navigable waterways can never be redrawn, for that would lead to the ossification of the common law, whose beauty is in its ability to flex and expand as society demands. On the contrary, she insists that state judges, by having leeway to revise and reshape common law definitions, occupy the singular position to mediate between private rights and larger public interests—in water recreation, protecting the environment and in the efficient allocation of water, and to act without the political constraints that compromise legislatures.
Practical wisdom having only limited sway, Brady is doubtful of the capacity of the Due Process and the Takings Clauses to curb judicial decisions that often seem a naked transfer of property from owners to neighbors or competitors, even as modes of commercial transport change. She plumbs the cases to reveal gaps and limitations in the constitutional jurisprudence as meaningful constraints. For example, the Supreme Court has not applied the Fourteenth Amendment to judicial actions to revise common law property rules, and existing takings doctrine is not structured to address novel forms of regulatory incursions.
The most recent case in which the Supreme Court discussed the philosophical plausibility of a “judicial taking,” Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 560 U.S. 702 (2010), does not help to determine the extent to which adjustments at the margins of navigability would result in the elimination of “established rights.” While she does not predict what the world will be like if the trend continues, Brady’s analysis does conclude that the likelihood of successful takings challenges is fairly low, leaving state courts with almost unchecked power to affect property rights in waterways.
In the end, the vehicle Brady crafts for checking the abusive use of judicial power to recast rights, is both perceptive and evident. It uses the Due Process and Takings Clauses, not as discrete, mutually exclusive tests, but as interrelated parts of a whole analysis. A judicial redefinition would be invalidated if it does not conform to the requirements of the Due Process clause, ensuring that settled expectations are not unduly frustrated and that there is regard for reasonable reliance on prior law.
Even if it overcomes this hurdle, judicial redefinitions of navigability must still undergo a takings analysis, in which the owner might show, for example, that the stream on the property was a significant part of the value of the property. Though denominated as separate stages, Brady perceives that the two clauses overlap in significant respects—reliance on existing state law will simultaneously present a due process question and establish sufficient expectations to trigger the takings clause. But the difference is in the remedy—takings clause scrutiny will not prevent the change in judicial definition of such rights if a public use is present, but instead will only offer some measure of compensation.
Brady concedes that the interests on both sides are too important to offer a normative suggestion on where the line between private/public, majoritarian/individual, industry/environment, should be drawn, but the framework she develops helps to insure that at least both sides factor into the equation. She helps us to see that, in developing that calculus, the imperatives of sustainable land use in a rapidly changing world climate may require owners to cede some measure of control or accept new understandings of what it means to own property.
Jan 22, 2016 Donald Kochan
Daniel B. Kelly,
The Right to Include, 63
Emory L.J. 857 (2014), available at
SSRN.
Quite often, “private property” brings with it characterizations of individualism, isolation, and exclusion along with images of fences, gates, locks, boundaries, and barriers. In fact, a “keep out” sign has often been identified as a symbol for the essence of private property rights and their function. Professor Daniel B. Kelly reminds us that such images and characterizations miss a huge portion of the utility served by property law that fosters the capacity and motivation to hang a different sign—one that says “come on in.” Professor Kelly’s recent article, The Right to Include, 63 Emory L.J. 857 (2014), catalogs and analyzes the range of legal options available to owners to include others in the use, possession, and enjoyment of real property.
In recent property law literature, the “right to exclude” has gotten most of the ink. In fact, Kelly explains that, “[i]n delineating the bundle of rights that characterizes property, courts have not identified the right to include as a distinct attribute of ownership,” (P. 868) and most scholars have only hinted at the importance of this separate strand of rights within ownership. Professor Kelly’s work is a welcome rectification of this imbalance of affection. If indeed human beings are dependent on each other to survive and flourish, then finding ways to facilitate inclusiveness in relation to property is vital to nourishing our “interaction imperative.” Kelly thoroughly explores the rules and doctrines in property and related fields of law that have emerged to ignite inclusion and spur human sociability.
Professor Kelly dissects the reality that we do, after all, exercise our right to include every day. And, with each such inclusion, we are faced with potential conflicts. It is useful to think about just how ubiquitous inclusion is in our lives by reflecting for a moment on some archetypal examples. We invite colleagues or friends over for dinner, including them in our home. We grant our gardener access to the back gate and license to roam the grounds, taking advantage of his specialized expertise so that he can beautify our home and surrounding land. The plumber is invited in to make sure all flows well. We may share our homes with strangers in operations like Airbnb and the like. We are willing to lease our property to others, including them in order to receive the benefit of income. We enter into co-tenancies to help reduce the costs of our housing.
With each of these arrangements (and others like them) there are both rewards and risks—the dinner guest who overstays his welcome; the gardener who breaks your lawn gnome because he is just not quite as careful with your property as you would have been or as he might have been with his own property; the overnight guest who unwittingly aids a bedbug migration into your space; the tenant who fails to report the cracks in the roof that could have been repaired to avoid the ceiling collapse; or the college roommate that never wanted to do the dishes but was happy to occupy more than her fair share of the apartment with her junk. One of the greatest benefits of Professor Kelly’s work is that he helps us understand how the law anticipates and navigates these pitfalls while optimizing the potential rewards of inclusivity along the way.
Kelly reveals a roadmap for how the law should support a wide range of inclusion options in order to move owners’ private incentives toward a convergence with the socially optimal level of inclusion. Inclusion can be informal (including by choosing not to exercise or waiving one’s right to exclude), contractual (including licenses), or enabled by strengthening inclusive property forms (such as easements, leases, trusts, concurrent estates, and co-ownership arrangements). Most of the time, inclusion is a matter of choice, but Kelly also takes a valuable moment to discuss those rules that cause “involuntary inclusion” as well, such as public accommodation and antidiscrimination laws.
Key factors to consider when identifying and protecting inclusion rights, according to Kelly, include whether the rights enable sharing and exchange, facilitate financing, spread risks, and promote specialization. Along the way, the law of inclusion rights struggles with coordination difficulties (when multiple parties must negotiate over when they may use or enjoy certain parts of the property), strategic behavior (where a party included tries to expand the scope of their inclusion or when owners acquire assets for the purpose of exploiting inclusion possibilities), and usage conflicts (when, for example, a non-owner might not internalize the long term costs of her actions so she uses the property excessively or does not maintain it well).
Each purposefully-varied legal form comes with differing rights of revocability, varying levels of certainty, different remedies to vindicate rights, and different costs of negotiation, drafting, and enforcement. Kelly taps into some key insights on human nature and owner fears when he explains that, “Owners are more likely to include others if they are able to select from among multiple forms [of inclusion regimes],” (P. 919), so the law has created this diversity of “‘focal points’ around which parties can organize their activities by including others through different combinations of anti-opportunism devices” that control unwanted strategic manipulation of the inclusion and coordinate among multiple users. (P. 920.)
One need only examine one’s own activities to find anecdotal examples of our implicit recognition of the utility of inclusion. We must also remain acutely aware of some of the obstacles and problems with inclusion for which the law already has created varied legal forms to offer tailored solutions that, at the very least, mediate the potential negative effects so that we can maximize the benefits of including others in our property. By examining these issues in depth, Professor Kelly’s work advances our understanding of the contours of the right to include and our appreciation for its unique characteristics.
Dec 11, 2015 Lorna Fox O'Mahony
We must stop imagining that property is the saviour of the legal system, the knight on the white steed, or the guardian of every other right. That was the lesson Andre van der Walt, South African Research Chair in Property Law at Stellenbosch University, taught the assembled audience when he delivered the Keynote Address at the 2014 Annual Conference of the Association of Law, Property and Society. As Professor van der Walt writes in the landmark article based on that memorable address: “I prefer to see property as a gaggle of cleaners who move in after everyone has left, brandishing buckets and mops, cleaning up the property debris once the real work of maintaining the democratic legal system has been completed.” (Pp. 105-106.) In this article, van der Walt reflects on the systemic status of property rights within a wide frame of constitutional, “non-property” rights. Moving from normative theory to doctrinal analyses of the case law of South African courts implementing the Constitution of 1996, as well as examples from the United States, Canada, the United Kingdom, and Germany, the article explores how property rights are, and should be, balanced against non-property rights, including rights to life, human dignity, and equality.
This paper comes at a fascinating moment for property theory, as the politics of property law—particularly in “advanced” democracies like the United States and the United Kingdom—are being tested against a backdrop of rising socio-economic inequality, dramatically accelerated following the global financial crisis of 2008 and the “austerity” politics that followed. As the claims that markets left to their own devices are efficient and stable—or that property is an effective guardian of other rights (Pp. 32-42)—have been challenged, the landscape of unequal opportunity has been exposed, reverberating through property scholarship to spark a renewed interest in property law’s methodologies and discursive traditions across the global property community. Van der Walt explores these debates in the first section of his paper.
Van der Walt’s contribution is sympathetic to the “progressive property” school, in challenging property theories that place the right to exclude at the “core” of ownership, and ownership at the front and centre of property conversations. Yet, van der Walt goes beyond calls for value pluralism and contextualised reasoning within the sphere of property law, to challenge the proposition that property rights and entitlements take presumptive priority at the front and centre of broader debates about the allocation of resources. A core line of argument in the article is that:
…it is important for progressive property theory to recognise the relatively modest systemic status of property rights in the broader scheme of fundamental rights protection; to acknowledge that the default position is to secure the protection and promotion of non-property rights on the basis of their relatively superior normative and systemic status and not via the protection of property; and to devise conceptual and analytical tools to facilitate a distinction between the two categories of rights. (P. 42.)
While van der Walt recognises that property rights will, and should, generally be protected once the fundamental democratic conditions of our legal system are secured, understanding those rights in a wider constitutional framework has important implications for our theoretical, doctrinal, and methodological approaches to property.
This article focuses on a relatively narrow category of property disputes: access conflicts involving quasi-public land, or land to which a small group of non-owners have been granted restricted access for specific purposes (e.g., shopping centers and airports), and where the owner of the land wants to exclude or evict from land persons who want to use it for a non-property purpose. Within this narrow context, these other preferred uses and interests include the exercise of their right to free movement, assembly, free speech, public demonstration or picketing—although van der Walt also signals potentially broader applicability of this approach to contexts like housing rights and servitudes.
Despite a seemingly narrow focus, there is also far-reaching potential for the work. One of the great strengths of van der Walt’s writing (see also, AJ van der Walt, Property in the Margins, Hart, 2009) is to challenge us to critically re-evaluate our ingrained habits of thinking, the methodological blind-spots that are embedded by the dominant discourse of our discipline. On the one hand, it is (or should be) uncontroversial to argue that, in cases which engage the right to life in conflict with a property right, courts do not (and should not) take the protection of the landowner’s property right as the self-evident starting-point for deciding the case. Yet van der Walt’s analysis of these access-conflict cases highlights the distorting effects of the Blackstonian tradition on our methodologies for resolving conflicts involving property.
Thus, while the particular cases van der Walt refers to as illustrations of this approach are well-known (he discusses, for example, the totemic “progressive property” case of State of New Jersey v. Shack 58 NJ 297 (1971)), his fresh contribution to these debates offers an intellectually radical space for property lawyers to reflect on the place of property rights within the wider legal landscape, and then to show how this is actualised within doctrinal reasoning.
The Systemic Marginality of Property offers a new way to think about the complexities of property contests, the crucial role of context in legal decision-making, and the real human impacts that result from our methodological commitments, particularly when we balance property rights and entitlements against fundamental non-property rights. Joseph Singer has argued that “property law is a constitutional problem because the norms and values of a free and democratic society limit the kinds of property rights that can be created.” ((Joseph William Singer, Property as the Law of Democracy, 63 Duke L.J. 1287, 1304 (2014)) This article takes a crucial step forward for this line of analysis, by demonstrating some of the theoretical, doctrinal and methodological steps that follow from accepting that property rights are not absolute but inherently defined by the demands of living in a democratic society, characterised by dignity and equality.
Nov 23, 2015 Ezra Rosser
Lee Anne Fennell & Richard H. McAdams,
The Distributive Deficit in Law and Economics,
Minn. L. Rev. (forthcoming 2015), available at
SSRN.
Lee Anne Fennell and Richard H. McAdams’ The Distributive Deficit in Law and Economics is framed as a law and economics article but makes a significant contribution to property theory. The Distributive Deficit takes on the standard law and economics assertion “that tax is strictly superior to legal doctrine as a means of redistributing income,” (p. 7) and the related assumption “that the distributive pattern in a society will be invariant to the political form of redistribution.” (p. 14) As Fennell and McAdams note, the general acceptance of both tax superiority and the “invariance hypothesis” in law and economics can be credited largely to the work of Louis Kaplow and Steven Shavell (see here, here, and here). Fennell and McAdams’ article is a devastating and wholly convincing critique of this line of reasoning, grounded in the failure of standard law and economics approaches to take into account political action costs. Tax superiority depends on rule and tax changes having zero transaction costs when it comes to establishing the new order. Yet, as Fennell and McAdams’ argue, political action costs can vary depending on preferred mechanism. Put differently, the theoretical possibility of a tax-and-transfer solution does not necessarily mean a redistributive rule change should automatically be discarded: given political action costs, a rule change may still be more efficient than a tax-based approach.
Fennell and McAdams’ contribution is particularly valuable at this point in property law scholarship. The appropriateness and power of law and economics approaches to property, especially the information-cost theories championed by Henry Smith and Thomas Merrill, have taken center stage in debates between progressive and conservative property scholars. Tellingly, in 2015 the AALS Property Section chose to dedicate the section’s panel to “the place and scope of economic analysis.” Those seeking to diminish the importance of law and economics in property law have argued that economic-approaches alone cannot capture all that property law seeks to accomplish and that economic values are only one of many pluralistic values of import. That is to say, recent criticism has been that of the “outsider,” seeking to undermine the conservative tendency of law and economics-based property scholarship not by arguing that law and economics is a bad tool but that it should not be the only approach. Written by two University of Chicago professors, The Distributive Deficit is more of an “insider” attack. It does not question the core tenets of law and economics, it simply shows that on efficiency grounds the oft-repeated conclusion that tax-and-transfer is necessarily a superior means of redistribution compared to rule changes is incorrect. But it is an important intervention for property scholars because without it, the idea that property law should be based upon the notion of tax superiority—advanced by Yale Law professor Robert Ellickson in a recent article—might be uncritically accepted.
The Distributive Deficit begins by showing that the invariance hypothesis is false and then highlights the importance of political action costs. Fennell and McAdams define “political action costs” as “all the impediments parties encounter in achieving desired distributive outcomes through legal coercion, whether through legislation, litigation, or regulation.” (p. 22) They convincingly argue that, because of offset problems (i.e., changes are not inevitably and perfectly offset), behavioral economics (i.e., people are more than rational robots), and preferences for fairness (in terms of political action costs, punishment, and bundling goals), the invariance hypothesis is false. They then explore in greater detail the significance of political action costs. In some respects, this point is akin to that made by Ronald Coase in his introduction to The Firm, the Market, and the Law (1987), namely that we live in a world of transaction costs and therefore academics should focus on the world we live in rather than on the artificially sterile “Coasian” world. In language that arguably is a powerful response to Kaplow, Shavell, and now Ellickson, The Distributive Deficit argues that “the individuals who would give categorical and counterintuitive advice—that, outside of tax, welfarists should ignore the welfare effects of distribution—bear the burden of proving the advice is well-founded.” (p. 48) As I argue elsewhere, discussing the efficiency versus equity claims of Merrill and Smith, questions about the burden of proof and assumptions about whether property law generally works, or does not work, weigh heavily on property debates.
Ultimately, The Distributive Deficit is a great article, first, because it uses the tools of law and economics to question a core assertion—tax superiority—of most law and economics (and conservative property) literature and, second, because it is a grounded article. Though neither author would probably identify today as a critical legal scholar, the article in this way is reminiscent of a similar move by Duncan Kennedy to blunt the cold-hearted law and economics attack on the implied warranty of habitability. Similarly, The Distributive Deficit shows the power of working with economic tools as opposed to against them. Moreover, Fennell and McAdams are careful to not let their largely economic theory project escape the bounds of realism. They write, “tax superiority has traction as a normative prescription only as contrasted with some other actually available means of redistribution.” (p. 29 (emphasis added)) Were Professor Fennell not already known for her extensive scholarly work in property law, there is some risk that this article (focused as it is more on law and economics than explicitly about property law) might not immediately capture the attention of property law scholars. But in the end, The Distributive Deficit not only provides “a reason why distributive goals might at times be better pursued through legal rules than through tax mechanisms,” but, by doing so, it also provides more theoretical space and might for progressive property scholarship.
Nov 20, 2015 A. Michael Froomkin
Property Law Section Editors
The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (”jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.
Professor Donald J. Kochan
Professor & Associate Dean for Research and Faculty Development
Chapman University Dale E. Fowler School of Law
Professor Tanya Marsh
Professor of Law
Wake Forest University School of Law
Contributing Editors
Contributing Editors agree to write at least one jot for Jotwell each year.
Professor Kristen Barnes
Associate Professor of Law
The University of Akron School of Law
Professor Avi Bell
Professor of Law
University of San Diego School of Law
Professor Stephen Clowney
Associate Professor of Law
University of Arkansas School of Law
Professor Steven J. Eagle
Professor of Law
George Mason School of Law
Professor Sjef van Erp
Professor of Civil Law and European Private Law
Maastricht European Private Law Institute
Professor Lee Anne Fennell
Max Pam Professor of Law & Ronald H. Coase Research Scholar
The University of Chicago Law School
Professor Matthew J. Festa
Professor of Law
South Texas College of Law
Professor Nicole Stelle Garnett
John P. Murphy Foundation Professor of Law
The Law School, University of Notre Dame
Professor Shelby D. Green
Professor of Law
Pace Law School
Professor Thomas W. Mitchell
Professor of Law
University of Wisconsin Law School
Professor Lorna Fox O’Mahony
Executive Dean of the Faculty of Humanities
Essex Law School
Professor Ezra Rosser
Professor of Law
American University Washington College of Law
Professor Shelley Ross Saxer
Vice Dean and Laure Sudreau-Rippe Endowed Professor of Law
Pepperdine School of Law
Professor Sarah Schindler
Professor & Glassman Faculty Research Scholar
University of Maine School of Law
Professor Gregory M. Stein
Associate Dean for Faculty Development and Woolf, McClane, Bright, Allen & Carpenter Distinguished Professor of Law
University of Tennessee College of Law
Professor Laura Underkuffler
J. DuPratt White Professor of Law
Cornell University Law School
Nov 20, 2015 A. Michael Froomkin
Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.
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Nov 20, 2015 A. Michael Froomkin
The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics can go to identify, celebrate, and discuss the best new scholarship relevant to the law. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.
We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree.
Most of us are able to keep abreast of our fields, but it is increasingly hard to know what we should be reading in related areas. It is nearly impossible to situate oneself in other fields that may be of interest but cannot be the major focus of our attention.
A small number of major law journals once served as the gatekeepers of legitimacy and, in so doing, signaled what was important. To be published in Harvard or Yale or other comparable journals was to enjoy an imprimatur that commanded attention; to read, or at least scan, those journals was due diligence that one was keeping up with developments in legal thinking and theory. The elite journals still have importance – something in Harvard is likely to get it and its author noticed. However, a focus on those few most-cited journals alone was never enough, and it certainly is not adequate today. Great articles appear in relatively obscure places. (And odd things sometimes find their way into major journals.) Plus, legal publishing has been both fragmented and democratized: specialty journals, faculty peer reviewed journals, interdisciplinary journals, all now play important roles in the intellectual ecology.
The Michigan Law Review publishes a useful annual review of new law books, but there’s nothing comparable for legal articles, some of which are almost as long as books (or are future books). Today, new intermediaries, notably subject-oriented legal blogs, provide useful if sometimes erratic notices and observations regarding the very latest scholarship. But there’s still a gap: other than asking the right person, there’s no easy and obvious way to find out what’s new, important, and interesting in most areas of the law.
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