Taisu Zhang, Cultural Paradigms in Property Institutions
, 41 Yale J. Int’l L.
347 (2016), available at SSRN
Can we bring preferred legal norms to culture, asking culture to adapt, or do we bring culture to the formation of legal norms, asking law to adapt? This is not just a normative question causing consideration of moral or consequentialist choices. It is also an empirical one. Regardless of what we think we ought to do or might want to do, the real world may very well be constructed to preordain the sequence. Indeed, the embeddedness of culture in societal architecture may limit the bandwidth of available opportunities for law to act as an influence exogenous to culture.
To understand the interplay between culture and the law, it is useful to evaluate historical developments of legal doctrines from a comparative perspective. That is the eminently valuable project undertaken by Professor Taisu Zhang in his article, Cultural Paradigms in Property Institutions.
Zhang exposes the sometimes “muted” perspective regarding the strong cultural influence and sociological concerns in property law’s development and its theoretical understanding. By comparing and contrasting his project against many of the other influential comparative property theory endeavors, Zhang identifies both the alignments his study has with previous literature but also where his richer understanding of culture’s role fills gaps or omissions in the existing body of analysis.
There is little doubt that property theory has been dominated by economic analysis, especially in recent years, with our definition of utility most often correlated with wealth enhancement. Zhang does a great service by forcing property scholars to question whether that focus has too greatly marginalized the study of culture as a factor in property law’s development. According to Zhang, we may very well need to “re-culturalize” property theory.
The article makes a convincing point that social culture is a critical ingredient in the creation and evolution of property law institutions. Even where the same base of interactive arrangements and concerns necessitates the development of legal institutions, the content of laws and norms nonetheless takes on different tastes depending on the cultural ingredients added to the base.
To test his hypothesis, Zhang conducts rigorous country studies—comparatively studying the evolution of land mortgage law and related legal institutions in China, England, and Japan during the two centuries before large-scale industrialization. His descriptive account is vital to making an informed normative and comparative assessment of the relative advantages and disadvantages of divergent property norms within and between different societies.
Zhang’s study reveals that, “[a]lthough the negotiation of mortgage norms tended to be a rich-versus-poor process almost everywhere, the actual laws and customs that emerged from this process were profoundly different from country to country.” (P. 351.) For example, England developed a pro-creditor and pro-rich set of land mortgage norms, while China developed a pro-debtor and pro-smallholder set of land mortgage norms (with Japan similar to England but with some variations). He traces this divergence to cultural difference, including, for example, that England placed a premium on land wealth while Chinese culture was more concerned with age and generational seniority as drivers of status privileges.
Zhang explains that social status in some societies is chosen, or “distributed,” based on cultural factors, such that those with the highest status might not favor predominately wealth-enhancing or principally materialist-based norms. Furthermore, there is often a link between social status and political status within a culture.
Property “winners” are often chosen by the political process, so that status-based power (which is often defined by culture) can drive political choices designed to preserve status for the winners. If they are winners in the political process based on some non-material calculus, then we should expect that the political choices of property norms might also be based on some non-material calculus.
Consequently, those with status-based power, no matter how attained, may choose property norms that reinforce or enhance a status norm that may in fact be non-material. In fact, some status norms can become culturally sustaining “despite having strongly negative material consequences.” (P. 349.)
But how is what Zhang describes more than just elites protecting their economic self-interest? He argues that position is not necessarily distributed culturally based on economic considerations, so the maintenance of status similarly will not necessarily involve perpetuating one’s own economic self-interest. In fact, pursuing economic ends might not be the controlling value in a particular culture, and such pursuit might even threaten one’s ability to maintain his or her cultural social status.
Zhang ultimately concludes that his cultural theory “is particularly powerful—perhaps indispensable—in explaining large-scale institutional differences between societies” (P. 348) regarding how they regulate the use and transfer of property. The article is rich with revelations about various country-level differences in property institutions that “deserve country-level explanations.” (P. 352.)
Zhang’s work helps us understand why shared social cultural values, particularly regarding sociopolitical status distribution, help explain the divergent legal and institutional property-based choices made between these societies. Indeed, he concludes that culture is better than utilitarian bargaining, self-interest, wealth maximization, or other functionalist theories of norm formation at explaining why different societies might choose to structure their law to favor different status distribution norms.
Given culture’s empirically proven influence on the historical development of property institutions, we should continue to expect that local cultural factors might very well be influencing property use and regulation today. By recognizing that influence, property theorists can better contextualize and compare property norms across jurisdictions. Zhang’s work helps us understand why culture is an explanation of the property norms we have, how culture is a driver of the property norms that develop in a given society, why culture can present opportunities for law’s development, how culture can be a barrier or limitation on the alteration of property norms, and how navigating culture becomes necessary whenever one is operating within a legal system of property institutions.
William Blackstone’s Commentaries on the Laws of England bifurcated the physical universe into persons and property. In Blackstone’s description of English law, there were categories of persons (just as there were categories of property)—freemen, slaves, and wives “protected” by coverture. But each of those categories of persons consisted of whole, living natural persons. Blackstone recited the prevailing scientific and theological view of the day, that life began upon the “quickening” of “an infant … in the mother’s womb.” Blackstone similarly recited the prevailing legal view of when personhood ended—upon death. But while Blackstone clearly set forth the parameters of personhood, he failed to acknowledge that the borders of “property” did not neatly correspond, leaving the possibility of physical objects that were neither persons nor property.
This gap in English and American common law first caused problems when medical schools began to teach through anatomical study. Medical students needed cadavers to dissect, but prevailing Christian belief in literal resurrection discouraged voluntary donation. As a result, a market in fresh cadavers, rudely disinterred from their graves, emerged. Although these corpses had a market value, English and American authorities were frustrated that grave robbers could not be prosecuted for conversion and related crimes because of the clear common law doctrine, articulated by Blackstone, that human remains are not property.
Medical and scientific advances in the past century have expanded our understanding of the common law gap between persons and property and challenged us to reassess those boundaries, particularly with respect to human tissue with value for transplantation, therapy, or research. Professor Browne Lewis, The Leon and Gloria Plevin Professor of Law at Cleveland-Marshall College of Law, adds to this emerging niche of scholarship at the intersection of property law and bioethics by analyzing the legal status of frozen human eggs.
Lewis notes that the legal status of biological materials is important because “the ability of people to recover damages may be impacted by whether they have any legally recognized property interests” in them. (P. 651.) She explains that in the event of a dispute between a fertility clinic and a customer, the “owner” of the frozen eggs may receive damages for a conversion or bailment claim only if the eggs are legally protected property.
One of the most provocative and interesting sections of Lewis’ article discusses surrogacy contracts and what the nature of those transactions suggests about the legal status of “babies conceived using assisted reproductive technology.” (P. 652.) Lewis argues that these children are “treated like market place goods.” (Id.)
Lewis cites several cases where surrogacy agreements were analyzed in accordance with contract law principles rather than family law. In a 1993 California case, Lewis argues, “the court enforced the terms of the surrogacy contract in order to give the [parties procuring the surrogacy services] the benefit of their bargain,” and in so doing “the court appeared to treat the baby like any other subject of a contract.” (P. 654.)
Lewis cites these cases as evidence that “society has accepted babies being treated like property.” (P. 656.) If babies are essentially treated as property, Lewis implicitly argues, surely frozen eggs should be treated as such. These arguments, uncomfortable as they may be, are undoubtedly worthy of engagement.
When I first read Lewis’ article, I was disturbed by her casual use of the concept of “ownership.” She asserts, for example, that parents have “an ownership interest” in their children “against everyone but the other parent.” (P. 686.) She also asserts that “when eggs are inside of a woman’s body, it seems clear that she has an ownership interest in them.” (P. 666.)
In fact, though, at least since Blackstone’s time, the common law has treated human tissue attached to or within the human body as part of the person itself, and once separated from the body as part of the gray space between persons and property. There is certainly no clear and established legal precedent holding that human tissue is ever property that can be owned, even when part of one’s own body.
But these statements by Lewis—a respected bioethics scholar who is obviously quite familiar with the cases and relevant scholarship—are useful because they reveal the disconnect and tension between social and legal conceptions of personhood and ownership. They also illustrate the problems courts face in trying to navigate in the void between persons and property.
For example, Lewis discusses the landmark case of Moore v. Regents of the University of California, 793 P.2d 479 (Cal. 1990). In that case, the Supreme Court of California held that Moore could not assert a conversion claim against the doctor that removed and retained his rare and valuable cells because he had no expectation in exerting control over those cells after they were removed from his body.
Significantly, though, the court skillfully avoided stating that Moore “owned” his cells while they were still in his body. The Court also explicitly dodged the question of whether human biological material could never be considered personal property. The passionate dissent of Justice Arabian perhaps reveals why the majority thought it wise to sidestep those questions:
Plaintiff has asked us to recognize and enforce a right to sell one’s own body tissue for profit. He entreats us to regard the human vessel—the single most venerated and protected subject in any civilized society—as equal with the basest commercial commodity. He urges us to commingle the sacred with the profane. He asks much.
Moore, 51 Cal. 3d at 148.
There are arguments in favor of treating biological materials, like frozen eggs, like property. There are also arguments against. The common law will obviously be of little help in resolving this quagmire. Lewis’ article gives the reader a useful framework for thinking about these sensitive issues at the intersection of bioethics and law, while also offering some provocative insights for this ongoing debate.
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. Professor Elizabeth Kronk Warner has become her own publishing house when it comes to climate change and tribal land. And Professor Alex Skibine has argued that federal control over Indian land must be diminished. Most law students begin their study of property with Indian law, and several states now even include Indian law on their bar exams.
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.
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, 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.
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. 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, and the same arguably can be said about the U.S. economy and Indian poverty.
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 contested) 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. 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.
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.
Keenan’s analysis transcends the right to exclude, on the one hand, and progressive challenges around “inclusion” or “sharing” on the other. 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.
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.
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.” 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.” 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. 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.
Cite as: Sarah Schindler, Access, Exclusion, and Value
(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/
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.
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
(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/
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 decision 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. 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 Kelo, 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.
Cite as: Laura Underkuffler, The Challenge of Eminent Domain
(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/
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. 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. 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.