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Land Tenure Complications and Development Challenges on Indian Reservations

Jessica A. Shoemaker, Complexity’s Shadow: American Indian Property, Sovereignty, and the Future, Mich. L. Rev. (forthcoming), available at SSRN.

This is both a good and a bad moment to be working at the intersection of property law and Indian law. Positively, there are a number of scholars exploring this intersection, showing how the rights of Indians should influence our understanding of property and how property law impacts tribes.

Professors Kristen Carpenter, Sonia Katyal, and Angela Riley have done important work on the significance of Indians’ collective rights and identity when it comes to intellectual property.1 Professor Elizabeth Kronk Warner has become her own publishing house when it comes to climate change and tribal land.2 And Professor Alex Skibine has argued that federal control over Indian land must be diminished.3 Most law students begin their study of property with Indian law,4 and several states now even include Indian law on their bar exams.5

But it is also a bad moment: many reservations continue to be mired in poverty, marked by underdevelopment that can be traced in part to problems in how reservation land is governed. The self-determination era has reached maturity, yet an “Indian problem” remains when it comes to economic growth. As popular and political awareness of the association between reservation poverty and trust land grows, tribes face the prospect that reactionary thinking will once again threaten the tribal land base.6

Jessica Shoemaker’s recent article, Complexity’s Shadow: American Indian Property, Sovereignty, and the Future, does a great job detailing and explaining the web of rules and overlapping governance structures that contribute to the underdevelopment of Indian land. Although Complexity’s Shadow draws upon property theory and the work of scholars interested in legal complexity, the real strength of the piece is just how grounded it is in reservation land restrictions.

An almost impenetrable maze of federal, state, and tribal rules governs how land can be used on reservations, limiting the ability of tribal members and non-Indian owners to get permissions or to use their land productively. Reservation land can fall in one or more boxes, each with its own set of regulations: trust land, fee land, land owned by Indians, non-Indian-owned land, land with fractionated ownership, leased land, and so on.

Indeed, the number of ways land can be categorized can approach the absurd: not only might land within a reservation be subject to the authority of a neighboring non-Indian government,7 which is somewhat akin to land in Iowa being subject to the land law of Nebraska, but there is even a category for structures that pass intestate, though the land does not pass, to the surviving non-Indian spouse of a deceased tribal member. (Pp. 42-43.) By paying careful attention to the details of these categories, Shoemaker impresses on the reader both her command of these regulations and the overarching complexity of this area of law.

Complexity’s Shadow should become, along with Judith Royster’s earlier article, The Legacy of Allotment, one of the go-to sources for scholars interested in the problems of fractionated reservation land. But besides being an article destined to be cited in many footnotes, Complexity’s Shadow should also interest property scholars who ordinarily consider Indian property rights only in passing.

On the one hand, the problems in the Indian land tenure system demonstrate the paralyzing effects a web of rules and regulations can have in a way that accords nicely with many of the concerns that animate the work of information theorists.

On the other hand, by showing the different ways that trust land, fee land, and allotted land can be treated based on a whole array of factors, the article highlights both the ubiquity of governance property and the complications inherent in property law that progressive scholars tend to emphasize.8

Few groups have as many assumptions made about their use of land and have had as many different property regimes imposed upon them as American Indians. As the late Vine Deloria Jr. observed, “continual experimentation with property rights” by Congress is standard practice when it comes to Indian land.9 Simple calls—such as those championed by conservative think tanks—to convert land held in trust to individually owned fee land raise the possibility that policies similar to those of the allotment era will once again be imposed and tribes will once again suffer significant land loss.

Shoemaker’s observations of Indian poverty and land tenure complexity are much more nuanced than the kneejerk—make them like us—position of many non-Indians. At the very end of the article, Shoemaker switches from focusing on detailing the nature of top-down land use controls to calling for gradual change based on local experimentation.

Though Shoemaker largely leaves to future scholars and local communities the work of showing what approaches can succeed in freeing reservation land from its current unworkable complexity, Complexity’s Shadow provides a great foundation for such work, which is crucial if Indian nations are to thrive. While it is tempting to see issues of Indian law and Indian property law as matters of tangential importance, an understanding of U.S. property law that neglects Indians is incomplete,10 and the same arguably can be said about the U.S. economy and Indian poverty.

  1. See Kristen A. Carpenter, Sonia K. Katyal & Angela R. Riley, In Defense of Property, 118 Yale L.J. 1022 (2009); Angela R. Riley & Kristen A. Carpenter, Owning Red: A Theory of Indian (Cultural) Appropriation, 94 Tex. L. Rev. 859 (2016). []
  2. See, e.g., Elizabeth Kronk Warner, South of South: Examining the International Climate Regime from an Indigenous Perspective, in International Environmental Law: Perspectives from the Global South (2015); Elizabeth Kronk, Application of Environmental Justice to Climate Change-Related Claims Bought by Native Nations, in Tribes, Land, and the Environment (Sarah Krakoff & Ezra Rosser eds., 2012). []
  3. See Alex T. Skibine, Using the New Equal Protection to Challenge Federal Control over Tribal Lands, 36 Pub. Land & Resources L. Rev. 3 (2015). []
  4. See, e.g., Jedediah Purdy, Property and Empire: The Law of Imperialism in Johnson v. M’Intosh, 75 Geo. Wash. L. Rev. 329 (2007) (collecting examples of property textbooks that begin with Johnson v. M’Intosh). []
  5. See Gloria Valencia-Weber & Sherri Nicole Thomas, When the State Bar Exam Embraces Indian Law: Teaching Experiences and Observations, 82 N.D. L. Rev. 741 (2006). []
  6. See, e.g., Naomi Schaeffer Riley, One Way to Help Native Americans: Property Rights, The Atlantic, July 30, 2016; Naomi Schaeffer Riley, The New Trail of Tears: How Washington Is Destroying American Indians (2016). []
  7. See Brendale v. Confederated Tribes & Bands of the Yakima Nation, 492 U.S. 408 (1989). []
  8. See, e.g., Gregory S. Alexander, Governance Property, 160 U. Penn. L. Rev. 1853 (2012). []
  9. Imre Sutton, Indian Land Tenure: Bibliographical Essays and a Guide to the Literature 1 (1975) (quoting Vine Deloria). []
  10. See Ezra Rosser, The Ambition and Transformative Potential of Progressive Property, 101 Calif. L. Rev. 107 (2013). []
Cite as: Ezra Rosser, Land Tenure Complications and Development Challenges on Indian Reservations, JOTWELL (March 9, 2017) (reviewing Jessica A. Shoemaker, Complexity’s Shadow: American Indian Property, Sovereignty, and the Future, Mich. L. Rev. (forthcoming), available at SSRN), https://property.jotwell.com/land-tenure-complications-and-development-challenges-on-indian-reservations/.

Property Governance Through Resistance: Subversive Property Explores Progressive Potential for Property Outsiders to Re-create Spaces of Belonging and Propriety

Research exploring the intersections of law, property, and society through jurisdictional and international lenses has flourished in the last decade in response to a pressing need for analytical insights into the property problems that dominate much of our current political discourse. Debates about access to places and spaces, linked to a concern around “who belongs” in our countries, in our communities, and in public spaces and private places, raise important questions about the role that property plays in enabling exclusion or inclusion, particularly for marginalised “outsiders.”

Against this backdrop, Sarah Keenan’s new book has come along at a crucial moment. It offers an insightful analysis into how property rules prevent marginalised or outsider groups from developing a sense of belonging in places that are dominated by, and governed through, an insider norm.

What I most welcomed in this book is that Keenan offers a new way of thinking through the dilemma of how property can deliver progressive outcomes for marginalised outsiders. Notwithstanding her focus on excluded identities, Keenan remains optimistic about the role that property can play in countering dominant norms that prevent belonging and in supporting the production of new, resistant spaces of belonging through “subversive property” strategies that, over time, re-create places and spaces on their own terms.

Consider, for example, the “traditional” (though contested1) case of the mythical squatter outsider who matured, over time, to become a nascent citizen and property owner. The cases that Keenan tackles are both timelier and more challenging, and the book is all the more rewarding as a result.

Keenan engages with a range of methodological approaches, including property theory, critical legal geography, and phenomenology, pursuing a “problem-led” approach to the questions around property’s role in the construction of spaces of belonging, particularly for people who are deliberately constructed as “out of place.” As a socio-legal study, the frame is set not by the law but by the social justice problem. This orientation positions the book as an interesting counterpoint to other works concerned with property inequality and exclusion.

Some property theorists start from the law, constructing their theories on the scaffolding of familiar and well-established categories. Some challenge the assumptions of the canon by starting from the person, particularly the perspective of the marginalised, unpropertied subject.2 And property scholars in the critical legal geography tradition typically take as their starting point the “site” or place, working to construct legal conceptions of space through which the governance strategies of property law and property politics can be understood.3

Subversive Property cuts across subjectivity and place to shine a fresh light on identity, belonging, and property relationships. Drawing on the associations between property and propriety, Keenan considers both what it means to have property and to be properly oriented in space, with a particular focus on how “social properties” – captured in identity criteria such as whiteness, Christianity, and heterosexuality – determine who belongs.

While noting that “property tends to keep things in place, helping the world retain its shape and providing a strong linkage between the past, the present and the future” (P. 7), Keenan focuses on the opportunities for property and propriety to be subverted to reshape spaces of belonging. Using examples that range from case law challenges to Australia’s “Northern Territory Intervention” to queer women asylum seekers, Keenan argues that relations of belonging that do not fit the current conceptual, physical, and social orientation can, through sustained action, be “made to fit” by causing the space around them to adapt and reshape.

This book provides a timely account of the reach and significance of property analyses for legal scholarship both within and beyond the property community. From the familiar jumping-off point of “property as exclusion,” Keenan shines a light on the acute political, social, and personal dimensions of the governance of identity through spatiality, propriety, and belonging, over time.

Within the “progressive property” frame, Keenan locates her approach against recent work concerned with property, responsibility, and social/structural injustice. She finds common ground with approaches that emphasise a model of the property subject that is interconnected rather than discrete. Her approach pays attention not only to property rights but to their spatial effects and to the property subject’s responsibility for their use of resources.

Perhaps inevitably for a project that starts not from the safe harbour of the existing law but from urgent concerns about the role of the law and governance of property relationships in instances of acute social injustice, Keenan argues that:

For property…to operate as an instrument of meaningful political change, it must first be conceptualised in a way that pays attention to how propertied subjects come to be constituted, and the relationship between property and space, rather than just arguing that pre-existing propertied subjects should act with a greater sense of responsibility towards pre-existing social space.

(P. 61-62.)

Keenan’s analysis transcends the right to exclude, on the one hand, and progressive challenges around “inclusion”4 or “sharing” on the other.5 She expresses a broader concern with property as a spatially contingent relationship of “belonging” that is not merely dependent on, but capable of, (re)producing particular spaces and times – that, over time, produce the ultimate subversion when communities of resistance change the spaces and places they occupy and become normalised as conventional property.

Keenan’s analysis offers critical political potential for scholars concerned with social justice and inequality. It is a great read, wide-ranging, and deeply theorised but buzzing with real-world examples that demonstrate the potential of her approach to open new lines of action on the pressing property inequality issues of our time.

  1. Despite the portrayal of adverse possession as an archetypal example of property law’s openness to outsiders under certain conditions, some scholars have argued that the property identities of “adverse possessors,” “squatters,” and “trespassers” have always been important, such that it is property “insiders” – for example, neighbouring landowners – who have been most able to convert use and occupation into property rights. Kate Green, Citizens and Squatters: Under the Surfaces of Land Law, in Land Law: Themes and Perspectives 229 (Susan Bright and John Dewar eds., 1998). []
  2. See AJ van der Walt, Property in the Margins (2009); Lorna Fox O’Mahony, Property Outsiders and the Hidden Politics of Doctrinalism, 67 Current Legal Probs. 409 (2014); Ezra Rosser, Destabilizing Property, 48 Conn. L. Rev. 397 (2015). []
  3. See Antonia Layard, Shopping in the Public Realm: a Law of Place, 37 J.L. & Soc’y 412 (2010); Nicholas Blomley, The Boundaries of Property: Complexity, Relationality, and Spatiality, 50 Law & Soc’y Rev. 224 (2016). []
  4. Daniel B. Kelly, The Right to Include, 63 Emory L.J. 857 (2014). []
  5. Rashmi Dyal-Chand, Sharing the Cathedral, 46 Conn. L. Rev. 647 (2013). []
Cite as: Lorna Fox O'Mahony, Property Governance Through Resistance: Subversive Property Explores Progressive Potential for Property Outsiders to Re-create Spaces of Belonging and Propriety, JOTWELL (February 8, 2017) (reviewing Sarah Keenan, Subversive Property: Law and the Production of Spaces of Belonging (2015)), https://property.jotwell.com/property-governance-through-resistance-subversive-property-explores-progressive-potential-for-property-outsiders-to-re-create-spaces-of-belonging-and-propriety/.

The Passage of the Fair Housing Act of 1968: Stories to Be Told

Jonathan Zasloff, The Secret History of the Fair Housing Act, 53 Harv. J. on Legis. 247 (2016).

The enactment of the Fair Housing Act of 1968 (“FHA”) is a story filled with intrigue — coercion, duplicity, and back-room deals. In The Secret History of the Fair Housing Act, Professor Jonathan Zasloff provides a riveting account of the maneuvers by the various protagonists in that story.

Some fifty years later, the plots and impacts continue to unfold. Starting with President Lyndon Johnson, who had handily pushed through the Civil Rights Act of 1964, even before his landslide election for his full term, Professor Zasloff shows how it took almost every political arrow in Johnson’s quiver to quash opposition to the FHA.

After the enactment of the Voting Rights Act of 1965, the political mood in Congress and the nation had shifted. Even as the Senate and Republican caucuses became more liberal, national attitudes toward civil rights started to sour, largely in reaction to the urban riots in 1966 and 1967. Some objected that fair housing legislation was an unconstitutional expansion of federal power over the states. Some feared that it would “quite literally hit them where they lived.” (P. 264.)

These worries underlie the persistent, yet questionable claims that Congress designed the FHA to mollify southern legislators and appease those opposed to any broadening of civil rights; that it was enacted only because it was without meaning and largely symbolic, toothless in its enforcement anatomy. Indeed, it has been blamed by some for stalling the cause of fair housing by sending “the premature message that the problems had been solved.” (P. 248.)

Professor Zasloff aims to debunk these claims, instead showing that the FHA has muscle. Even though the Department of Housing and Urban Development (“HUD”) was denied the power to bring civil enforcement suits, the Attorney General could, and the FHA conferred upon HUD the power to regulate financial institutions involved in housing as well as issue regulations on the meaning and definitions of the Act, making private litigation easier. That HUD did not always employ these powers in the furtherance of fair housing, even itself committing acts of intentional discrimination in housing funding, was not because the FHA was lacking.

If nothing else, Professor Zasloff maintains, the legislation served to change the behavior of the would-be racist landlord. It changed the social meaning of housing discrimination; it was no longer disloyalty to the white community to rent or sell to blacks, but simply law-abiding behavior. He backs up this assertion with statistics and demographics showing that housing patterns, while not entirely free of segregation, have nonetheless improved since enactment.

Professor Zasloff, however, does not remark on what remains a seemingly intractable problem: cases where an intent to discriminate is not apparent, where housing discrimination occurs in different guises, subtle and camouflaged in ostensibly neutral legislative language, governmental policy, and private practices – such as exclusionary zoning, redlining in lending and casualty insurance, and the refusal to accept housing vouchers.

While the circuit courts had been largely in accord on the question of whether the FHA also covers denial of housing opportunities by disparate impact, it took three certiorari petitions, two of which were dismissed after the cases settled, before the Supreme Court affirmed the disparate impact theory in Texas Dep’t of Housing and Community Affairs v. The Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015). In doing so, the Court looked to the legislative history to discern the broad purposes of the FHA — “to provide, within constitutional limitations, for fair housing throughout the United States.” 42 U.S.C. § 3601.

As with the Civil Rights Act of 1866, the FHA was passed pursuant to congressional power under the Thirteenth Amendment to eliminate the badges and incidents of slavery. In construing the former statute in the same year the FHA was enacted, the Supreme Court declared that “[w]hen racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery.” Jones v. Mayer Co., 392 U.S. 409, 442-43 (1968). Still, it was not until 2013 that HUD issued regulations on the disparate impact theory. See Implementation of the Fair Housing Act’s Discriminatory Effects Standard. 24 C.F.R. § 100.500.

But how much of the delays by HUD and debate about the alternative theory for combatting discrimination by proving disparate impact – adopted by the Court in 2015 as informed by an understanding of the FHA as a broad-purpose statute – might have been avoided if the “secret history” that Professor Zasloff reveals had been known earlier? Might the courts have acted differently if they had studied the seemingly relentless obstructive maneuvers, first aimed at watering down Johnson’s proposed bill, then by blocking a vote altogether through filibuster?

Would knowledge that Senate Minority Leader Everett Dirksen’s deciding vote for cloture was in surrender to Chicago Mayor Richard Daley, who contrived to run a strong opponent against Dirksen for his Senate seat, help us to appreciate the importance of the FHA? Would knowledge of how the two exceptions (“Mrs. Murphy” renting rooms in her boarding house and owners selling their homes without use of a broker) came to be written into the act have informed the post-enactment interpretation of its breadth? In fact, Professor Zasloff recounts, at one point, as a ploy, Senator Howard H. Baker, Jr. proposed an amendment to exempt all single-family homes from the purview of the Act. If passed, that amendment would have rendered the law virtually meaningless. That it failed shows that the Senators were determined to enact legislation that had teeth. In the end, the FHA passed the Senate by seventy-one to twenty.

Even as Professor Zasloff believes that understanding the secret history of the FHA should force us to look for other causes of segregated housing patterns in the United States, it also remains unknown whether the courts would have taken greater liberties in the name of interpretation if they had been aware of the FHA’s contentious origins.

Recognizing the perhaps subtle difference between legislative history (committee reports and comments made at hearings) and the history of the legislation (the back-room maneuverings), the story of the enactment of the FHA is yet illuminating, helping either to orient or to shore up our thinking on the importance of fair housing. The secret history of the FHA should prompt us to acknowledge that any fault in achieving housing fairness does not lie in the Act.

Cite as: Shelby D. Green, The Passage of the Fair Housing Act of 1968: Stories to Be Told, JOTWELL (January 9, 2017) (reviewing Jonathan Zasloff, The Secret History of the Fair Housing Act, 53 Harv. J. on Legis. 247 (2016)), https://property.jotwell.com/the-passage-of-the-fair-housing-act-of-1968-stories-to-be-told/.

Access, Exclusion, and Value

Jonathan Klick & Gideon Parchomovsky, The Value of the Right to Exclude: An Empirical Assessment, 165 U. Pa. L. Rev. (forthcoming 2016), available at SSRN.

The concepts of exclusion and access occupy the minds of many property scholars. We regularly debate the problems with, and benefits of, exclusion. We talk about how foundational the right to exclude is, and should be. We talk about whether and when the right to exclude should bend to accommodate other interests. And we talk about the value of exclusion. While these debates have filled many pages in law journals and hours of panel discussions, Professors Jonathan Klick and Gideon Parchomovsky noticed that something was missing from the discourse: empirical evidence.

They seek to fill that void with The Value of the Right to Exclude: An Empirical Assessment, forthcoming in the University of Pennsylvania Law Review. The authors undertake their analysis by examining the effect of the passage of right-to-roam laws in England and Wales on property values (P. 5 n.18), perhaps motivated to quantify Professor Henry Smith’s statement that “giving the right-to-roam stick to a neighbor or to the public affects the value of the remaining property.”1 These laws give members of the public some recreational access—for activities like walking and hiking—to some private property. Klick and Parchomovsky’s article suggests that even small limitations on the right to exclude that result from right-to-roam laws can significantly decrease property values.

Klick and Parchomovsky begin by laying out the debates in the literature surrounding the importance of the right to exclude. On the one hand, we have what the authors call the “pro-exclusion camp,” who view the right to exclude as perhaps “the most defining feature of property.” (P. 11 n.62, citing Hanoch Dagan, Reconstructing American Legal Realism and Rethinking Private Law Theory 164-65 (2013).) In contrast, the authors also lay out the views of those in the progressive property movement. These scholars—whom Klick and Parchomovsky call “pro-access”—generally reject the idea that the right to exclude is the key to property. Progressive property scholars also believe that the “moral foundation of property is human flourishing.”2 Thus, these scholars seek to increase recognition of public access to, and interest in, private property. This setup is important, because it allows Klick and Parchomovsky to identify a fundamental divide between property law theorists with respect to how central the right to exclude actually is. And as they explain, “[i]f courts accept the proposition that the right to exclude is the sine qua non of private property … it would significantly undermine the ability of the state to advance the other goals of the progressive property movement. … Conversely, if courts accept the view that the right to exclude is merely another stick in the property bundle … it would give the state the liberty to adopt policies that curb owners’ right to exclude with impunity.” (P. 16.)

Right-to-roam laws present an appropriate lens through which to examine the balance between access and exclusion, and thus the value of exclusion. As Klick and Parchomovsky point out, the right-to-roam law adopted in England and Wales occupies a middle ground; it is not overly invasive because private property owners can still exclude a number of activities, and members of the public are allowed to roam over only certain parts and types of land. And there are convincing efficiency and distributive justice justifications for adopting a public right to roam. So, if we were to pass a similar law in the U.S., thereby placing at least some restriction on the right to exclude, how might it affect property values? Here is where the empirical element of the authors’ work comes into play.

In order to examine the value of the right to exclude in this context, the authors looked at the net change in real estate prices in England and Wales for areas where a great deal of land was affected by the passage of the right-to-roam statute as compared to areas where less property was affected. What they found suggests “that the passage of the right to roam statute in 2000 led to substantial declines in real estate prices in those counties and municipal authorities where a relatively large fraction of the land area was designated as access land.” (P. 39, examining data from 1995-2014 in their analysis.) Further, the effect was enduring; the authors did not find a recovery and normalization of the market over time. Thus, they determined that the right to exclude holds great value to private property owners, and even a slight infringement upon that right in order to allow greater public access may cause property values to drop.

The authors acknowledge potential limitations in the design of their study, but try to control for those issues when possible. However, because land subject to the right to roam is often rural and open, it may not be encumbered by houses, and thus it is hard to know whether changes in the housing sales prices that the authors analyzed can be attributed to the right to roam; there are so many factors that affect real estate values, including distances from urban centers of commerce and deindustrialization. Further, even if we accept the authors’ conclusion—that even a slight reduction in a property owner’s right to exclude could negatively impact the value of that owner’s private property—it is still unknown what the net impact of something like a right to roam may be. That’s because the study does not include a measure of the subjective benefit that members of society at large gain through increased access to private land, though the authors recognize that this is harder to measure and quantify.

The authors state, “[t]o the extent that access rights and exclusion rights are capitalized into real estate values, this suggests that the loss of exclusion rights dominates the increase in access rights.” (P. 5.) But they recognize that it is also possible that the benefit to the public at large is not sufficiently captured by local private property values, and thus those benefits could outweigh the costs imposed on the landowners. Perhaps in a follow-up piece, the authors could conduct qualitative interviews to try to capture, and then compare, some information about the public benefit. While the article at hand focuses on costs, the grand debate about tradeoffs between access and exclusion could be furthered even more if we had empirical data about the value of exclusion relative to access.

These points notwithstanding, the article still makes an important contribution to the literature. We now have some empirical grounding to refer to in our discussions about the right to exclude. Were the United States to adopt a right-to-roam law, the government might be required to pay just compensation to affected landowners; this study assists in determining how much that compensation might be.3 The article also contributes to debates about value in other contexts, such as eminent domain and privately owned public open space. Both policymakers and property theorists are well-served by attempts to quantify the value of exclusion.

  1. Henry E. Smith, Property is Not a Bundle of Rights, 8 Econ. J. Watch 279, 286 (2011). []
  2. Gregory S. Alexander, Intergenerational Communities, 8 Law & Ethics Hum. Rts. 21, 24 (2014). []
  3. We must, of course, consider the different histories and cultures of England and Wales as compared to the U.S.; we cannot be certain that the value of the right to exclude would be the same here. []
Cite as: Sarah Schindler, Access, Exclusion, and Value, JOTWELL (November 25, 2016) (reviewing Jonathan Klick & Gideon Parchomovsky, The Value of the Right to Exclude: An Empirical Assessment, 165 U. Pa. L. Rev. (forthcoming 2016), available at SSRN), https://property.jotwell.com/access-exclusion-and-value/.

Reconfiguring Property Theory and Legal Rules in the Sharing Economy

Shelly Kreiczer-Levy, Consumption Property in the Sharing Economy, 43 Pepp. L. Rev. 61 (2015).

In this moment of the sharing economy, Shelly Kreiczer-Levy explores why we can no longer think in terms of the traditional categories of private and public or neatly divide objects purchased for personal consumption and property intended for commercial exchange. The lines between these fundamental categories are being dissolved.

The effect is profound and wide-ranging. With the dissolution of boundaries comes the need to revise legal rules and doctrines germane to the regulation and functioning of an economy in which sharing is the norm rather than an occasional aberration. Property law and theory are at the heart of this project of revision and are central to Kreiczer-Levy’s analysis.

In some respects, Kreiczer-Levy’s article serves as a primer on basic aspects of the sharing economy. The work covers commonplace assets that individuals share, reasons why we share, who shares, benefits and costs associated with sharing, different types of sharing arrangements (e.g., private individual-based or commercially based), and methods for facilitating sharing (e.g., websites, advertising).

But this work is much more than an introduction. Kreiczer-Levy provides a sophisticated framework for understanding the sharing economy. She begins by explaining how the distinction between personal consumption property and commercial property has been fundamental to the shaping of legal rules and doctrines. Not only has this dichotomy been relevant in property law, as Kreiczer-Levy notes, it is fundamental to other areas of the law such as tax, privacy law, bankruptcy, criminal law, and insurance.

Exploring the rationales for this essential distinction, Kreiczer-Levy argues that it is related to the values and assumptions that the law recognizes in connection with each type of property. The dichotomy also relates to the kinds of relationships existing between people—family or friends, neighbors or strangers—with respect to the various assets being exchanged or protected from exchange.

As Kreiczer-Levy eloquently notes, there are different kinds of sharing. If objects that individuals typically purchase for personal consumption, like the home or car, are now being shared, do the same rationales (e.g., privacy) for protecting these objects and spaces make sense?

Kreiczer-Levy calls for a reconsideration of the categories and the legal rules that rely upon them. She posits that because use access is arguably valued as highly as ownership in the sharing economy and use is also related to benefits that society typically associates with ownership, such as intimacy, independence, and self-expression, this should factor into the reevaluation of legal doctrines.

Also, sharing can be, paradoxically, both intimate and not. This duality can exist within one exchange. The author urges that the law’s first step towards managing that duality is to acknowledge it.

Kreiczer-Levy revisits the personhood theory of Margaret Radin, also taking into account other important recent scholarship on the home and its cultural, economic, and legal meanings to provide a thoughtful analysis of how central property doctrines and laws are complicated by the emergence of the sharing economy and to suggest some ways for revising the laws in its wake. Rather than advocating stunting the growth of sharing enterprises through restrictive regulatory maneuvers or subsuming all transactions under the heading of commercial activity—the two main approaches she identifies as having been adopted by local governments in response to the sharing economy—she presents an alternative that is aimed at preserving and reforming the personal consumption property category.

Kreiczer-Levy reimagines the category as an “intermediate space.” This perspective appreciates that the phenomenon of sharing personal assets gives rise to “new types of transactions and interactions and a unique set of personal and social benefits and costs.” Owners and users shape this intermediate space, exemplifying collaborative consumption. By supplementing property doctrine and rules to think spatially, rather than merely in terms of the personal and commercial, she seeks to achieve a more productive and accurate account of consumption property interactions.

Everything, however, is not rosy in the sharing economy. Broaching the subject of discrimination, Kreiczer-Levy raises several difficult questions: What of the private right to discriminate? What level of legal protection should the law accord to owners regarding decisions about with whom they share their resources? Do the same justifications hold for granting special legal protections to personal consumption property when those objects are shared?

In raising these important questions, Kreiczer-Levy exposes significant gaps between what is occurring and the law’s conceptualization and treatment of sharing transactions. Reviewing the goals and purposes of fair housing and public accommodations laws and associated legal doctrines, she queries whether it makes sense to categorically exclude personal consumption property from the scope of those laws.

Kreiczer-Levy concludes that such exclusion is counter to the values of “interaction and exchange” that define the sharing economy. Thus, a new legal framework is required. The framework should encompass considerations of how the property is used (i.e., primarily for personal consumption or by multiple users in a series of ongoing transactions).

Local and state governments are in a tizzy trying to find ways to tackle the sharing economy. Their panic is evident from the flurry of ordinances and other regulation popping up across the country that at times has caused more upheaval and confusion than calm and clarity. In seeking courses of action to address the sharing phenomenon, government officials and property legal scholars would do well to consider the issues and strategies Kreiczer-Levy proposes.

Cite as: Kristen Barnes, Reconfiguring Property Theory and Legal Rules in the Sharing Economy, JOTWELL (October 26, 2016) (reviewing Shelly Kreiczer-Levy, Consumption Property in the Sharing Economy, 43 Pepp. L. Rev. 61 (2015)), https://property.jotwell.com/reconfiguring-property-theory-and-legal-rules-in-the-sharing-economy/.

Does Compensation Deter Takings? New (and Surprising) Evidence

Ronit Levine-Schnur & Gideon Parchomovsky, Is the Government Fiscally Blind? An Empirical Examination of the Effect of the Compensation Requirement on Eminent Domain Exercises, 45 J. Legal Stud. (forthcoming 2016), available at Penn Law: Legal Scholarship Repository Paper 1595 (Oct. 13, 2015).

This article delves into the issue of compensation, which looms large in debates about eminent domain for two reasons. The first reason is the concern that owners may be systematically undercompensated when property is taken by eminent domain because the constitutionally mandated “fair market value” measure of compensation, articulated in United States v. Miller (U.S. 1943), does not take account of subjective losses.

The second is the presumption, especially prevalent among law and economics scholars, that the compensation requirement cures the “fiscal illusion” problem (i.e., the fact that government actors presumably ignore costs that are not reflected in their budgets). According to this view, compensation ought to deter excessive takings by forcing “takers” to internalize the financial cost of their actions. This assumption is reflected in post-Kelo v. New London (U.S. 2004) state eminent domain reforms that mandate above-market compensation for certain categories of takings. It is also offered as a justification for compensating certain categories of “regulatory takings.”

Unfortunately, there is a dearth of scholarship empirically testing the fiscal illusion hypothesis. One particular challenge is disentangling the political and financial pressures influencing takings policies. For example, a handful of studies found that federally funded takings slowed following the enactment of the federal law mandating additional compensation for relocation assistance in the early 1970s.

These studies are cited for the proposition that heightened compensation deters the exercise of eminent domain. However, the relocation assistance mandate was itself a response to a mounting concern that the takings for urban renewal and interstate highway construction were excessive and unjust. Given the political pressure to reduce takings activity, the causal connection between the increased compensation mandate and the decline in the use of eminent domain that followed is difficult to establish. More recently, the post-Kelo backlash demonstrated the powerful effects of political pressure on governmental decisions whether or not to take property by eminent domain.

Drawing upon a novel data set from Israel, Ronit Levine-Schnur and Gideon Parchomovsky begin to fill the gap in our understanding about the connection between compensation and takings in their forthcoming article, Is the Government Fiscally Blind? An Empirical Examination of the Effect of the Compensation Requirement on Eminent Domain Exercises. In contrast to the United States, where compensation is constitutionally mandated whenever property is taken by eminent domain, Israeli law does not mandate compensation for all physical takings of real property. In fact, local governments are permitted to take up to 40% of a parcel of property for certain public uses without providing any compensation. Compensation is graduated when between 41% and 99% of a parcel is taken (e.g., if a local government takes 45% of a parcel, the compensation due is 5% of the parcel’s value; if it takes 75% of the parcel, the compensation due is 35%, etc.).

Moreover, in 2001, the Israeli Supreme Court—in a sharp departure from past practice—carved out an exception for total takings, requiring the government to pay full compensation whenever it takes the entirety of a parcel. (Prior to 2001, even total takings enjoyed the 40% compensation exemption.) This legal shift set up a perfect natural experiment, since the change presumably should have incentivized governments to avoid total takings after 2001.

Levine-Schnur and Parchomovsky analyzed all exercises of eminent domain by the City of Tel Aviv between 1990 and 2014 (a total of 3140 cases) to determine whether the takings behavior was influenced by these unique compensation rules. They expected to see two “notch points” in the City’s eminent domain behavior: First, they expected that takings would be bunched around the 40% compensation exemption; second, in the post-2001 period, they expected to find fewer total takings, which cause the government to lose the exemption. They found neither.

On the contrary, only 3% of takings fell in the 35 to 45% range, and most takings in the exempt category bunched around 25%. The only other discontinuity point was at 100% of the total parcel: nearly half of takings were total takings. Moreover, the rate of total takings increased after the 2001 legal change. That is to say, the Israeli Supreme Court’s decision that mandated full compensation for total takings had no observable effect on the City of Tel Aviv’s takings behavior.

At a minimum, these findings suggest that the compensation requirement is not the only factor influencing government takings behavior. As Levine-Schnur and Parchomovsky observe, “[O]ur findings refute the claim that without mandatory compensation, government officials will be oblivious to the private cost of their actions and will take the maximum percentage of every lot that they can possibly take without compensation.” Indeed, the following are most certainly true: The government might take parcels in their entirety for political reasons, since partial takings are not only incompletely compensated in Israel but may leave owners with dramatically devalued remnants of property. The government might also take entire parcels because it needs them (or believes that it needs them) in their entirety. And, the government might take less than the 40% safe harbor because it doesn’t need the excess land and doesn’t want the trouble of maintaining post-takings vacant property.

Unfortunately, the authors’ data set focuses on a major urban city situated in a specific cultural context, making it difficult to extrapolate the findings to other contexts (e.g., suburban U.S. localities). Indeed, this “anecdata” difficultly represents a persistent problem with all efforts to empirically measure eminent domain activity since, by definition, all real property is situated in specific places and cultural contexts. Still, Is the Government Fiscally Blind? represents a significant contribution to the literature on eminent domain. It also invites further investigation into the effects of graduated compensation requirements both domestically (in states that have increased compensation levels above the federal constitutional minimum) and internationally.

Cite as: Nicole Stelle Garnett, Does Compensation Deter Takings? New (and Surprising) Evidence, JOTWELL (September 28, 2016) (reviewing Ronit Levine-Schnur & Gideon Parchomovsky, Is the Government Fiscally Blind? An Empirical Examination of the Effect of the Compensation Requirement on Eminent Domain Exercises, 45 J. Legal Stud. (forthcoming 2016), available at Penn Law: Legal Scholarship Repository Paper 1595 (Oct. 13, 2015)), https://property.jotwell.com/does-compensation-deter-takings-new-and-surprising-evidence/.

The Challenge of Eminent Domain

Yxta Maya Murray, Detroit Looks Toward a Massive, Unconstitutional Blight Condemnation: The Optics of Eminent Domain in the Motor City, 23 Geo. J. on Poverty L. & Pol’y 395 (2016), available at SSRN.

One usually thinks of law review articles as detached, dry, formal, and arcane. This is particularly true of those dealing with property. Even if articles are billed as an “interdisciplinary” effort, this generally means the occasional introduction of similarly detached and desiccated material from other fields.

The article Detroit Looks Toward a Massive, Unconstitutional Blight Condemnation: The Optics of Eminent Domain in the Motor City, by Yxta Maya Murray, shatters that mold. In this work, Murray – a legal scholar and the author of six novels – writes of the infinitely complex layers of law, politics, psychological bias, and human need that eminent domain involves in a way that it has not been done before.

Eminent domain has long been an extremely controversial idea in the American legal and political landscape. Indeed, the Kelo decision1 can well be described as the most universally vilified United States Supreme Court decision in the last twenty years. That decision, which upheld the taking of modest private homes for the purpose of commercial and residential economic development, ignited a firestorm of controversy. Some of this reaction might be discounted as unjustified popular hysteria, fueled by politicians and interest groups with little understanding of the true legal issues involved. But the breadth and depth of public outrage indicated that something about this decision tapped a raw nerve beyond the usual concern about winners and losers in politics and government.

Particularly powerful, in my view, was the lurking recognition that the losers in that case – and other eminent domain cases – were preordained. Justice O’Connor, in her famous dissent in Kelo, expressed the view that after the decision “all private property is now vulnerable to being taken and transferred to another private owner,” in the service of some imagined public benefit.2 But we know better. The risk of loss of one’s home through eminent domain is not a risk equally extended to all; it is, as a structural matter, extended only to a particular class of persons. If the goal is to create “new jobs and increased tax revenue,” or “beautiful …, spacious …, [and] well-balanced spaces,” as stated in Kelo3, there is little doubt how the older, “run-down” neighborhood will fare as compared with an area of half-million-dollar homes with manicured lawns and gardens.

The idea that the community-destruction aspects of eminent domain fall on those without political and economic power is not new. Although Murray agrees with this, her article takes on a much deeper and more difficult issue: What if eminent domain is used to eliminate blocks of presumably vacant and crumbling structures that everyone – including politically and economically disenfranchised residents – believe must be removed? What if – in other, more specific words – eminent domain is used as a transformation strategy in Detroit?

Murray introduces us to Detroit, the real Detroit, through both narratives and photographs. “Detroit,” she writes, “is the most dilapidated city in the nation and desperately needs to repair or remove the unsound housing that clutters its many neighborhoods.” (Pp. 397-98.) Murray has long been a critic of eminent domain, with particular criticism of so-called “blight condemnation.” Such programs, she has written, exploit and normalize racial and class-based vulnerabilities that determine the urban targets of removal efforts. However, in this article – through detailed interviews with developers and city residents, legal and political analysis, and relentless critiques of her own and others’ points of view – she explores the issues more deeply. She concludes that eminent domain, as a tool, might in fact be used in a way that vindicates both human and institutional values.

The ride toward that conclusion is both unsparing and rough. First, Murray points out that the Detroit Blight Removal Task Force, which is in the process of condemning dilapidated properties under an enhanced version of the city’s Nuisance Abatement Program, is operating in violation of both state and federal law. Under this scheme, titles of condemned property are transferred to the Detroit Land Bank Authority with no payment of compensation.

Next, Murray discusses how the views of political and economic decisionmakers are the product of what she calls the “optics” of eminent domain. (P. 421.) In a “downward-looking” view, dilapidated neighborhoods are equated with threats of illness and contagion. Blight is described in these accounts as a “malignant disease,” a “cancer” that is “contagious” and “radioactive,” as well as a “calamity,” a “tumor” to be excised. (P. 425.) In pictures and in narrative accounts, including those by photojournalists, poverty is mesmerizing, which gives observers a kind of “voyeur’s pleasure.” (P. 421.) The “upward” or aspirational gaze, on the other hand, contemplates visions of commercial beauty and affluence such as have been achieved with Detroit’s “Starbucks-bejeweled downtown” (P. 401). Images are created of coffers filled with jobs and money, and developers and allied politicians are portrayed as heroes with out-sized powers.

In both visions, the poor people who live in condemned neighborhoods are rendered invisible. For instance, a neighborhood after blight removal is seen by eminent domain architects as a “blank slate,” a “frontier.” (P. 432.) As Murray quotes one African-American woman, who works with the homeless, “‘[p]eople in Detroit don’t like that because … [it] means there’s nothing here.’” (P. 429.)

Murray’s critique of such visions, however, is not – itself – uncritical or simplistic. She forces herself to reckon, by her own account, with her own personal biases and the lenses through which she sees the world. She also wrestles with the truth – expressed by those she interviewed on Detroit’s streets – that “you can’t be a city full of poor people forever.” (P. 407.) Some economic development and capital investment is necessary to improve conditions and reduce abject poverty.

Murray’s suggested solution is surprising, in a way: that formal eminent domain should be used, with the stated goal of the alleviation of poverty in condemned neighborhoods. However, this is eminent domain with a twist. The decisionmakers will not be the usual city politicians and developers, left to their own judgment. Rather, “officials should 1) avoid using ‘anti-poverty’ as a cover for [economic programs that primarily benefit the upper classes] …; 2) guard against the condescension and paternalism [that interviews with people on the street consistently identified]; and 3) ensure that the agenda [for eradicating Detroit’s poverty traps] be shaped … by low-income people,” (P. 448) who understand those problems and are less likely to peer disgustedly at themselves.

This is not easy reading. We, in the academy, are not used to relentless and no-holds-barred critiques of our own motivations and biases. Yet, if we are honest, we know that Murray is right when she states that “legal actors who engage a low-income community in an eminent domain (or any other) scheme [for the purpose of rehabilitating it must] learn from that community.” (P. 449.) The goal is not simply to come up with another test – such as the “alleviation of poverty” or “awareness of human dignity” – in the legal equation of eminent domain; rather, we must learn how “to be with low-income people.” (Pp. 449-50.) Those who want to address the nation’s severe problems in Detroit and other urban centers must create “a practice of caring about” low-income people, pay attention to them, and challenge their own perspectives and ways of relating to others. (P. 452.)

Murray is not naive; she acknowledges that “I risk catastrophic understatement when I admit that this proves [to be] a very ambitious aspiration, even among intimates.” (P. 450.) “Disgust, hate, prurience, and condescension are difficult to prove [and graph].” (P. 447.) However, perhaps it took a novelist and scholar to figure out that we should try.

  1. Kelo v. City of New London, 545 U.S. 469 (2005). []
  2. Id. at 494 (O’Connor, J., dissenting) (emphasis added). []
  3. Id. at 481, 483. []
Cite as: Laura Underkuffler, The Challenge of Eminent Domain, JOTWELL (August 11, 2016) (reviewing Yxta Maya Murray, Detroit Looks Toward a Massive, Unconstitutional Blight Condemnation: The Optics of Eminent Domain in the Motor City, 23 Geo. J. on Poverty L. & Pol’y 395 (2016), available at SSRN), https://property.jotwell.com/the-challenge-of-eminent-domain/.

European Property Law as New Private Law?

Christian von Bar, Grundfragen europäischen Sachenrechtsverständnisses, 70 JuristenZeitung 845 (2015).

Looking at property law from only one particular national perspective – even if that perspective is impressive, as is the case with U.S. law – is, in our globalising world, no longer possible. Markets are integrating, both at a regional and at a worldwide level, and what happens elsewhere, in both economic and legal terms, affects all of us.

This is how European Union law, and the laws of the E.U. Member States, may begin to affect U.S. lawyers (but certainly not them alone) after the agreement on the Transatlantic Trade and Investment Partnership (TTIP) enters into force. The creation of one integrated transatlantic market will result in more and more areas where U.S. and E.U. law will meet and may result in legal conflict.

The European Union does not have one system of property law. Each Member State has its own law of property. However, E.U. internal market law, with its freedom of goods, services, capital, and persons, has an increasing impact on national property law. More and more the question is raised if a European property law could be developed.

In his recently published article (based upon his recently published book), Christian von Bar from the University of Osnabrück in Germany explains his view on how a European property law could look like.1 His approach is based on the civil law tradition, more particularly the German civil law tradition. In that tradition, the academic analysis of the law is highly abstract and aimed at overall systematisation by presenting strictly defined concepts and meticulously formulated rules. As a consequence, law professors play a prominent role in the process of lawmaking and adjudication.

The civil law tradition in France is less rigorous and more open. To give but one example from property law: Under the German Civil Code, “ownership” is the most complete right a person can have regarding a physical thing (§ 90 German Civil Code). As a consequence of this definition, ownership of claims does not exist; you can only be “entitled” to a claim.

It may be obvious that, given this very strict definition, German property law has considerable problems incorporating virtual ownership. In France, however, “ownership” is not so much a strictly delineated concept, but far more an open “notion.” Under French law, therefore, ownership of claims is possible. Do not make the mistake that this is just a play of words: In a codified civil law system, different rules may apply to ownership in comparison to entitlement. Understanding concepts is vital and definitions matter, also in legal practice.

Christian von Bar’s article clearly reflects the German style of legal thinking. In a long and carefully built line of arguments, he describes the common features of the European property law systems. His focus is on not only the civil law tradition in Germany, France, or the Scandinavian countries (which are far more open to a case-based than a rule-based approach), but also the common law tradition that can be found in England, Wales, Northern Ireland, and Ireland.

In Europe we also have several so-called “mixed” legal systems (Cyprus, Malta, and Scotland) and so-called “micro” legal systems (e.g. the Channel Islands, where old customary property law from the Duchy of Normandy still applies, and Liechtenstein). The article does not discuss these mixed and micro systems.

In his article von Bar asks himself three questions: (1) Can sufficient common elements be found in the legal systems of the European Union to establish a European law of patrimonial rights with effect against third parties (patrimony meaning a person’s assets or estate), (2) what can such a European “property” law say about the content of such rights, and (3) how can the various property law systems be analysed in such a way that they can be studied from an overall viewpoint, without ignoring regional differences? He then asks himself, first of all, what “property law” is and what “property rights” are, which objects of property law can be found, and which types of property rights can be distinguished.

The objects of property rights are classified by von Bar as, first of all, everything that is not a person, but still is an entity; things are those objects (entities) as to which property rights are possible. He then goes on to distinguish tangibles from intangibles (“normative things”) and qualifies a plot of land as a normative thing with a physical substratum (“normative Sachen mit einem physischen Substrat”).

It is the law that creates ownership of a particular plot of land, by delineating what the law accepts as plots of land. As long as there is no, by legal definition, plot of land, there can be no object of property law and hence no ownership of land. This qualification should be understood against the background of the German system of land registration under which, to mention but one aspect, a transfer of land cannot take place without the exact boundaries of the relevant plot of land having been set before the transfer becomes effective.

In a highly interesting part of von Bar’s article, he then discusses the various types of property rights by describing these in terms of physical characteristics of their object, and the temporal nature and content of such rights. Certain property rights are possible only with regard to tangibles (such as, in the German tradition, ownership), other property rights are possible with regard to both real and normative things (e.g. security rights). Some property rights are of unlimited duration (such as ownership), others are limited in time, whereas, again, some property rights give you almost complete power over an object (again: ownership) and others only limited powers (security rights).

The study offered by von Bar comes rather close to the “new private law” analysis, recently advocated by, among others, Henry Smith from Harvard Law School.2 The new private law analysis looks at interactions between individuals and firms from the perspective that contracts, torts, and property are connected to one another, belonging to one system of law: private law, distinguished from public law, which deals with interactions between individuals and the government. For property lawyers who are interested in this approach, von Bar’s study shows how European legal scholarship could contribute to this development in the U.S.

  1. His book is entitled: Gemeineuropäisches Sachenrecht Band I (C.H. Beck, 2015). He played a prominent role in the attempt to write a European Civil Code, which failed due to political pressure from leading European states, such as France, Germany, and the United Kingdom. []
  2. See the “new private law” blog. []
Cite as: Sjef Van Erp, European Property Law as New Private Law?, JOTWELL (July 12, 2016) (reviewing Christian von Bar, Grundfragen europäischen Sachenrechtsverständnisses, 70 JuristenZeitung 845 (2015)), https://property.jotwell.com/european-property-law-as-new-private-law/.

Do Something! Sins of Omission in Property Law

Property often seems like a force field, a socially protected clearing in which an owner can act (within specified bounds) or do nothing at all. On this account, property is institutionalized noninterference. Trouble arises, we are given to understand, only when someone—an owner, an outsider, or the government—does something that impinges on someone else’s entitlements. The pervasive language of exclusion and encroachment, of boundaries defended and breached, cultivates the perception that property law operates to constrain action, not to compel it.

Two recent articles challenge the idea that property law is, or should be, complacent about inactivity. Nadav Shoked’s piece, The Duty to Maintain, examines the affirmative obligations that law routinely places on owners and finds them to be normatively well-grounded. And in Passive Takings, Christopher Serkin suggests that there are circumstances in which government should be subject to takings liability for passivity as well as for action. Each of these pieces emphasizes the contingent and interdependent nature of property interests, and each highlights the weakness and ultimate incoherence of using a line between acts and omissions to determine the duties owed by and to owners.

Shoked uses the recent foreclosure crisis as a central example and a lens through which to evaluate the normative status of legal obligations to care for and maintain one’s property. The duty to keep one’s property to a certain standard is a quite longstanding one, however, manifested in myriad well-established doctrines, as Shoked demonstrates. Bringing these pockets of affirmative obligations together shows that property law is a mechanism for distributing obligations, not just for protecting spaces from cross-boundary incursions. Shoked’s analysis complements recent accounts of the affirmative obligations of owners by Larissa Katz and Robert Ellickson; instead of focusing on what duties owners are particularly well-positioned to perform, Shoked considers what duties are fairly implied from relationships among property owners. In so doing, he stresses the socially embedded nature of each owner’s holding and the potential for omissions as well as acts to generate negative spillovers.

Recognizing the positive obligations of ownership puts pressure on another well-accepted but faulty idea: that ownership is always wanted or voluntary. As Shoked observes, the duties attaching to ownership can produce negative-value property, like Detroit lots that would not sell for one dollar. Neglected property represents a social threat precisely because it exposes a gap in a usually unnoticed system of widely dispersed and continually ongoing maintenance activity undertaken by owners collectively. The need to keep that system in good working order connects to a set of questions I have touched on previously: what forms of unwanted ownership should the law tolerate or enforce, and when should it help owners unburden themselves of undesired ownership?

Just as an owner’s inaction can generate harm when it interacts with natural or human-made forces, so too can a government’s inaction. Here we come to Serkin’s piece, which suggests that the government could commit a taking by failing to act. His core example is sea level rise, which could interact with a previously innocuous regulatory constraint (such as a limit on building height) to deprive an owner of valuable use of her land. Other kinds of government inaction can generate momentous losses for private property owners as well, as where the government has deprived owners of self-help alternatives but then fails to act itself. As Serkin is careful to note, not all such lapses will rise to the level of a taking, just as not all affirmative acts that diminish value constitute takings. Moreover, even those omissions that constitute takings would not obligate the government to act; it could instead pay just compensation to avoid concentrating burdens on particular landowners. Yet the government is put to a choice—act or pay—that mirrors the one choice it faces when its actions constitute a taking.

Serkin’s concerns about passivity resonate for a reason: Inaction rarely occurs in a vacuum, but rather against a backdrop of pervasive and indeed inevitable governmental involvement in constructing the conditions of resource access, including the allocation of property entitlements. The web of past and ongoing government involvement in property interests can turn regulatory continuity or passivity into a dynamic reallocation of societal burdens at least as significant as new regulatory impositions. Such an idea is hardly far-fetched. Indeed, a recent Maryland decision, Litz v. Maryland Department of the Environment, 446 Md. 254 (2016), recognized that inaction can generate a viable takings claim, at least where past actions give rise to a duty towards the landowners in question.

Both Shoked and Serkin enrich our understanding of property rights by focusing on the potential for harm to flow from inactivity. Their ideas could be extended further by questioning not only the line between acts and omissions, but also the (equally mutable) line between harms and benefits. Social losses from inactivity encompass not only the damage inflicted by neglected homes and rising tides—large as those may be—but also the opportunity costs of failing to put together the most valuable urban uses and connect them with the most useful infrastructure and institutional arrangements. While the doctrinal sources of duty that Shoked and Serkin examine may not stretch far enough to address these latter sorts of losses, the project of property must ultimately find ways to do so. By chipping away at assumptions about inaction, Shoked and Serkin offer fresh insights for adapting property to meet these evolving challenges.

Cite as: Lee Anne Fennell, Do Something! Sins of Omission in Property Law, JOTWELL (June 20, 2016) (reviewing Christopher Serkin, Passive Takings: The State’s Affirmative Duty to Protect Property, 113 Mich. L. Rev. 345 (2014); Nadav Shoked, The Duty to Maintain, 64 Duke L.J. 437 (2014)), https://property.jotwell.com/do-something-sins-of-omission-in-property-law/.

Do Progressive Property Scholars Really Want to Limit Nollan and Dolan to Administrative Exactions?

Timothy M. Mulvaney, Legislative Exactions and Progressive Property, Harv. Envtl. L. Rev. (forthcoming), available at SSRN.

In Legislative Exactions and Progressive Property, Professor Timothy Mulvaney provides a clear and thoughtful discussion of whether legislative exactions should be subjected to the same heightened level of scrutiny that applies to administrative exactions under current Supreme Court doctrine. For those who view exactions as a device that internalizes externalities and forces owners wishing to intensify their use of land to bear the full cost of their development, the conventional wisdom is that Nollan v. California Coastal Commission and Dolan v. Tigard should be read as narrowly as possible.

Both of those cases addressed only administrative exactions and did not need to decide the question of whether similar rules should apply in cases in which the exaction is imposed through more generally applicable legislation. Those who believe that Nollan and Dolan hold government actors to an unreasonably high standard may naturally resist expanding their reasoning to legislative exactions. While acknowledging and largely agreeing with this first-order reasoning, Mulvaney notes second-order effects of confining those two cases to administrative exactions. These second-order effects, he argues, might be more harmful in the long run than those who object to expanding the reach of Nollan and Dolan may have initially recognized.

Mulvaney notes and discusses three straightforward and persuasive reasons why progressive property scholars may object to interpreting Nollan and Dolan as applying to legislative exactions: reliance on “the checks and balances of democratic government, the likelihood of reciprocal advantages stemming from legislation, and an aversion to judicial usurpation of the legislative process.” (P. 8.) But he discourages too much reliance on the initial appeal of these arguments by noting that any approach that applies a higher level of scrutiny to administrative exactions risks marginalizing administrative action more generally, which may lead to closer scrutiny of administrative acts in other contexts.

More broadly, any interpretation that leads regulators to rely more heavily on inflexible legislative processes reduces the ability of regulators to consider the individual facts presented by particular humans who may merit the greater flexibility that only administrative exactions can afford. By raising these second-order concerns, Mulvaney is warning progressive property scholars to be careful what they wish for.

Mulvaney’s warning springs from the progressive property movement, which encourages the consideration of individualized factors when assessing what ownership means and when deciding how a land use law should be applied to a particular owner. Relying on this influential line of scholarship, he suggests that only more flexible administrative exactions can be tailored to these circumstances and—citing the work of several progressive property scholars—that the use of legislative exactions exclusively might disfavor marginalized groups. His creative and thorough review of the literature seeks to caution progressive property scholars that attempts to limit the perceived damage of Nollan and Dolan in this way might backfire, or at least to consider the question with care before assuming otherwise.

But Nollan, Dolan, and the more recent Koontz v. St. Johns River Water Management District give progressive property scholars plenty to worry about already. To the extent the Supreme Court seems attentive to the individualized circumstances of particular property owners, it seems most concerned with the rights of those who wish to intensify existing uses of property, a group that may overlap little with the types of owners of concern to progressive property scholars.

Thus, in Dolan, the Court demanded a high level of correlation between the externalities the owner would create—increased road traffic from an enlarged store and increased water runoff from an expanded and paved parking lot—and the measures the government sought to impose to ameliorate those problems. In Koontz, the Court required the government defendant to make a similar showing before it could impose a monetary fee on a landowner to offset the negative environmental effects the owner’s proposed development was expected to have on local water resources. The Court shows heightened concern for the rights of the owner that wishes to use property more intensively, with a concomitant reduction in concern about the rights of that owner’s neighbors.

These applicants may be the sorts of owners whose stories concern progressive property scholars. Or they may simply be what many takings plaintiffs are: property owners who believe that government efforts to require them to bear costs they would rather not bear infringe unconstitutionally on their private property rights. And scholars are likely to disagree about the extent to which these two groups intersect. But it is not clear that increased consideration of individualized stories will benefit the types of owners (or neighbors) about which progressive property scholars are most concerned.

Justice Alito’s opinion for the five-member Koontz majority is instructive. It portrays regulatory officials as overreaching bureaucrats who must be vigilantly monitored rather than as public servants charged with protecting the common good. If they are not supervised, regulatory officials may engage in “out-and-out…extortion.” (Koontz, 133 S. Ct. 2586, 2595). They might seek “to evade the limitations of Nollan and Dolan.” (Id.) Their activities may be “pressuring someone into forfeiting a constitutional right” and “coercively withholding benefits from those who exercise them.” (Id.) The Koontz Court demonstrates no similar concerns about the behavior of property owners.

In short, exaction cases present a real problem to progressive property scholars, who are concerned with individual human stories. The reason is that these cases, much like nuisance cases, often present facts in which an owner’s gain is a neighbor’s loss. Regulatory takings law, however troubled and confusing it may be, seeks to strike a balance between the applicant’s right to use property and the community’s right not to suffer unreasonably from that use.

Mulvaney insightfully reminds us that progressive property scholars need to be concerned with the individual parties on both sides of that dispute and warns us against reflexively assuming that the wisest course is to limit Nollan and Dolan to administrative exactions. It is entirely possible, though, that after reflecting on the issues Mulvaney raises, those same scholars will conclude that their initial instinct was correct, and that the application of Nollan and Dolan to legislative exactions will cause more harm than good. At least now they will have reached that conclusion after a more sophisticated consideration of the issues his fine article highlights.

Cite as: Gregory M. Stein, Do Progressive Property Scholars Really Want to Limit Nollan and Dolan to Administrative Exactions?, JOTWELL (May 17, 2016) (reviewing Timothy M. Mulvaney, Legislative Exactions and Progressive Property, Harv. Envtl. L. Rev. (forthcoming), available at SSRN), https://property.jotwell.com/do-progressive-property-scholars-really-want-to-limit-nollan-and-dolan-to-administrative-exactions/.