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Everything Old is New Again: Breathing New Life into the Fee Simple Absolute

Lee Anne Fennell, Fee Simple Obsolete, 91 N.Y.U. L. Rev. 1457 (2016), available at SSRN.

“And don’t throw the past away. You might need it some other rainy day.” These lyrics to Peter Allen’s song, Everything Old is New Again, sum up the fee simple absolute (“fee simple”) perfectly. This antiquated doctrine that is the backbone of our real property system, the most adored and alienable of the estates in land, receives new life, a new purpose even, in Lee Anne Fennell’s compelling article, Fee Simple Obsolete.

Fennell gives the reader just enough history about the development and context of the fee simple to lay the foundation for a discussion with the reader about the ways in which the old fee simple has become an anachronism in a largely urban society. With eighty percent of Americans living in urban centers, the need for flexibility in reconfiguring precious urban land is at a premium.

According to Fennell, the problem of the fee simple, as originally conceptualized, is that such “[s]patially rooted estates of endless duration deal poorly with the problem of optimizing urban land use because they scatter everlasting vetoes among individual landowners over the most critical source of value in a metropolitan environment.” (P. 1461.)

Flexibility in reconfiguring land uses is optimal, and Fennell offers a clear and compelling proposal for rethinking the most foundational of the present estates in land. And so, she argues for the emergence of alternative tenure forms that would pivot away from the temporal infinity and physical rootedness of the fee simple to more nimble forms of property ownership.

To make her case, Fennell offers two proposals for modernizing the fee simple – first, a callable fee and second, the floating fee. Fennell proposes an expressly callable fee, a possessory estate that would be subject to a call option if pre-set conditions are not met. Fennell notes that the present fee simple is, in fact, a callable fee because of eminent domain which allows government to convey the fee simple to itself (or even another private entity) upon payment of just compensation and the articulation of a public purpose. (P. 1482.)

But, political limitations on the use of eminent domain are tighter than the legal restriction Fennell envisions being imposed on the callable fee. Thus, the expressly callable fee could address impediments to value-optimizing reconfigurations while simultaneously reducing reliance on government’s use of eminent domain which is often viewed as unfair and over-reaching. (P. 1483.)

Under Fennell’s floating fee model, the possessory estate is not permanently attached, or moored, to a particular legal description. Rather, the estate would represent “a portable claim over equivalent property in other locations.” (P. 1490.)

As with the expressly callable fee, Fennell points to a variation of the floating fee as an exemplar that addresses the feasibility of her proposal. Land readjustment is an approach that has been used domestically, though more extensively in other countries, to develop and/or improve urban infrastructure while simultaneously increasing the value and utility of real property. It is a form of land consolidation rather than a method of land acquisition. And, while land readjustment could be pursued through legislative means, resort to the floating fee would permit individuals to affirmatively opt into a system of land tenure that is specifically designed to be subject to redevelopment in this type of way. (P. 1491.)

The benefit of both options is that they allow real property to be more readily adapted to achieve value-maximizing uses. Through the lens of these two alternatives, Fennell analyzes the comparative strengths and weaknesses of the design features of the fee simple.

She argues, convincingly, that the foundational structure of the fee simple limits its ability to adapt and align with the real property demands of an increasingly interdependent society where the ability to reconfigure property uses is critical.

Fennell also identifies two categories of external impacts that once were appropriately ignored by the fee simple but that have emerged as too important to put to the side. What was needed in the past is different from what is needed now. The first is the holdout situation and the attendant assembly costs associated with holding out. The second externality pertains to the costs of coordinating governance mechanisms that reach “positive spillovers” that flow from the beneficial and nonreciprocal contributions of proximate land users. (P.1473.)

So, let’s put an end to the endlessness is what Fennell says. Let’s end the “forever” estate with its prized holdout entitlements and make the old fee simple new again by shifting it in favor of time-limited estates that facilitate agglomeration, collective management, and “adaptive fluidity.” (P. 1504.)

Fennell is very realistic about what she is proposing to her reader. She knows that change can be difficult and that hers is a very bold proposal. After all, she is advocating the “retrofitting of property for modern conditions” and such ideas are not for everyone. (P. 1494.) As the saying goes, many people are most comfortable with the devil they know.

Fennell acknowledges the objections that attend the shift in tenure forms and entitlements of the majority of real property owners from the fee simple to a form of defeasible fee. (P. 1498.) She confronts the objections to her proposal in the same convincing and clear manner in which she lays out her ideas: (1) We already have some iterations of these ideas in place. (2) The nonexistence of these forms of property does not support the argument that they lack value. (3) The need for agglomeration and flexibility in urban spaces cannot be fully addressed with the current fee simple and ordinary market solutions do not help achieve the optimal amount of agglomeration and flexibility. (4) The uniqueness of the challenge – “repeatedly assembling and reassembling” valuable urban land uses requires a unique approach. (5) The ability to reconfigure and readapt urban spaces does not have to lead to displacement and dispossession; the system could be made flexible to offer long-term options for those who desire more tenure security.

Fennell’s article is a joy to read. It is a fresh look at the fee simple and proof (which I unashamedly share with my first year property students) that grappling with the fee simple remains a worthy and honorable task. Only by understanding the fee simple, what it is and why it was created, can we imagine the next iteration of the fee simple in our increasingly urban society.

Cite as: Carol Necole Brown, Everything Old is New Again: Breathing New Life into the Fee Simple Absolute, JOTWELL (August 1, 2017) (reviewing Lee Anne Fennell, Fee Simple Obsolete, 91 N.Y.U. L. Rev. 1457 (2016), available at SSRN),

Trusts as Ownerless Property

Alexandra Popovici, Trust in Quebec and Czech Law: Autonomous Patrimonies?, 24 Eur. Rev. Private L. 6 (2016).

When comparing common law and civil law in the area of property, the trust is always presented as a legal institution of ownership typical for the common law and absent in the civil law. The trust, then, represents one of the major differences between these two legal traditions. While such a formal differentiation might be justifiable, the civil law indeed, like the common law, often generates institutions with some of the attributes of the common law trust but with varying characterizations of interest.

Alexandra Popovici’s article discusses the unique characteristics of instruments with trust-like qualities in civil systems, and she reveals the drafting history around the Québec Civil Code treatment of the issue.

Since the French Revolution (1789), and the ensuing abolition of the feudal system with its “ownership” of the feudal lord (“dominium directum”) and “ownership” of the person in possession (“dominium utile”), the civil law made a rigorous choice for a unified approach to ownership.

The French Declaration of Human and Civic Rights of 26 August 1789 stated in article 17 that the “right to property is inviolable and sacred.” This was reflected in article 544 of the French Civil Code, which defines ownership as “the right to enjoy and dispose of things in the most absolute manner, provided they are not used in a way prohibited by statutes or regulations.”1 The consequence of this approach is that an object can only have one subject as owner (although several subjects can be co-owners, but they then share full ownership rights). All others who claim property entitlements are seen as having only a limited property right.

In the case of a trust, however, the trustee is entitled (“owner”) at common law and the beneficiary has an entitlement (“ownership”) in equity.

From a civil law perspective, this is a – forbidden – split ownership. Still, civil lawyers also accept the great advantages of trust law and have devised ways to achieve them: permitting someone to manage property (which is separate from the manager’s other property) for the benefit of another, who is also seen as having a property entitlement. In order not to go against the basic premise of the unity of ownership, the solution chosen was that the “trustee” concluded a contract with either the “settlor” or the “beneficiary” under which the trustee agreed to use her property rights only for the benefit of the beneficiary. The beneficiary, however, is not given any property right.

Civil law systems differ in their approach as to how far they are willing to protect the beneficiary.2  Québec, a leading civil law jurisdiction in North America, has chosen its own, rather fascinating, solution. The trust property is owned by no one, so the unitary concept of ownership is not violated, whereas at the same time both trustee and beneficiary seem to exercise what looks like property rights. In other words, exercise of property rights is separated from entitlement to property rights.

The Québec Civil Code (Article 1261) states that “(t)he trust patrimony, consisting of the property transferred in trust, constitutes a patrimony by appropriation, autonomous and distinct from that of the settlor, trustee or beneficiary and in which none of them has any real right.” In other words: according to Québec law, no one “owns” the trust property. It is a patrimony (in civil law the term for the whole of a person’s assets and debts) managed by the trustee as a non-owner. Also, the beneficiaries are non-owners.

This approach to trust law was, until recently, very specific for Québec, but has now reached the European continent. The new Civil Code of the Czech Republic states in Article 1448, paragraph 3: “The rights arising from the right of ownership in the property in a trust are exercised by the trustee in his own name and on the account of the trust; however, the property in a trust is not owned by the administrator or the founder, or the person entitled to receive a performance from the trust.” The text is clearly based upon the Québec model.

In her article, Alexandra Popovici gives an overview of the Québec Civil Code’s drafting history, which is very intriguing. It appears that approaching the trust property as an “affected patrimony” is derived from ideas developed by the French author Pierre Lepaulle. His ideas were almost forgotten on the continent of Europe, partly because at the end of his career he came back on his earlier views and began to consider the trust as a legal person, but not in Québec.

Popovici explains that, in the final draft of the Québec Civil Code (as presented by the Québec Ministry of Justice), Lepaulle’s older ideas suddenly resurfaced. It seems that this happened under the influence of a rather theoretical article by Pierre Charbonneau, a Québec notary, published in 1983, which was based upon German pandectist writings from the 19th century. The approach taken earlier by the Supreme Court of Canada in Royal Trust Co. v. Tucker, in which the court (Beetz, J.) qualified the trust as “a sui generis property right”, was set aside.3

The Québec approach, although now followed in the Czech Republic, is not followed in the two leading civil jurisdictions in Europe: France and Germany. Their trust law is far more pragmatic and less based upon what seems an ideological desire, having its roots in anti-feudalism so characteristic of the French Revolution, to keep the civil law unaffected by the common law’s fragmented ownership.

  1. In the mixed legal system of Scotland feudal tenure (with its distinction between dominium directum and dominium utile) was abolished in 2004 by the Abolition of Feudal Tenure etc. (Scotland) Act 2000 and replaced by civil law unitary ownership. []
  2. Willem Loof, Of Trustees and Beneficial Owner:  An Inquiry Into The Proprietary Aspects of Trusts and Trust-like Devices From a European Private Law Perspective (2016) (PhD Dissertation, Maastricht University) (on file with author). []
  3. Royal Trust Co. v. Tucker, [1982] 1 S.C.R. 250 at. 272. Beetz, J. stated: “That leaves only the trustee in whom ownership of the trust property can be vested. Clearly the right of ownership is not the traditional one, since, for example, it is temporary and includes no fructus. It is a sui generis property right, which the legislator implicitly but necessarily intended to create.“ []
Cite as: Sjef Van Erp, Trusts as Ownerless Property, JOTWELL (July 4, 2017) (reviewing Alexandra Popovici, Trust in Quebec and Czech Law: Autonomous Patrimonies?, 24 Eur. Rev. Private L. 6 (2016)),

The Sticks in the Chinese Property Rights Bundle

Shitong Qiao, The Evolution of Chinese Property Law: Stick by Stick?, in Private Law in China and Taiwan: Legal and Economic Analyses (Yun-chien Chang et al. eds., Cambridge University Press, forthcoming 2017), available at SSRN.

There is ongoing disagreement among Western scholars as to whether property rights are in personam or in rem rights, and scholars’ views have evolved over time. Blackstone emphasized dominion and exclusion. Scholars in the twentieth century shifted the focus to the “bundle of rights.” More recently, some property law scholars have emphasized the view that property is a “law of things.”

As Shitong Qiao, a law professor at the University of Hong Kong, observes in a recent book chapter, most of these scholars adopt a Western perspective. Consequently, these scholars have overlooked the relevance of this discussion to the evolution of property law in developing countries, including China.

Professor Qiao contends that the “sticks in the bundle” approach is best suited to an examination of Chinese property law given how that law has evolved in the past quarter-century. For practical reasons and for internal political reasons, China has had to deal with property rights on a piecemeal basis – what he refers to as a “stick by stick” approach – rather than all at once. As China and its people have experimented, different forms of property have developed in which different groups of sticks are arranged in different ways.

At first glance, China might seem to have adopted an in rem approach. Most notably, the Chinese Constitution and the Property Rights Law of 2007 both appear to treat law as primary, with property rights differing from contract rights. But this in rem view is not entirely accurate. China’s recent land reform is not simply a series of privatization transfers by the state and by agricultural collectives to individual ownership.

To begin with, no land in China has actually been privatized. The right to use land and the legal title to that land have been separated in both the urban and rural settings, though in somewhat different ways. The Chinese state continues to own all urban land while agricultural collectives still own all rural land. This public and collective ownership is an ongoing manifestation of Communist ideology and is seen as necessary for the government to maintain a certain level of credibility.

Meanwhile, the state has sold off the right to use urban land that it continues to own. This system of land use rights arose as property norms began to evolve in the 1980s and 1990s, informally ratifying the separation of ownership and use. These dynamically evolving norms led to changes in law that formally authorized these ongoing transfers of the right to use land.

Chinese land use rights today are a hybrid of contract rights and property rights. Technically, those who acquire land use rights in China obtain only personal contract rights, which are not analogous to the rights in land that are found in common law jurisdictions. In this way, the state has managed to retain considerable control over land while expanding private use of land.

Similar events occurred in rural areas, where farmers created rights in property that changed over time and were later ratified by the government. These rights, too, are personal in nature, and the alienability of rural land is restricted considerably. Meanwhile, as China has urbanized, the government has converted much rural land to urban uses, to the detriment of the former occupants of that agricultural land. The government has statutorily capped the compensation to which the rural land’s former occupants are entitled.

As a result, farmers enjoy little of the massive profit that typically results from the development of their land for urban purposes, with most of that profit going to government bodies and to real estate development entities. In property terminology, the government has retained the “stick” of non-agricultural use, a reality that has led to considerable illegal urban use of land that is still technically designated for agricultural purposes only. This means that rural rights are not rights in rem.

Professor Qiao concludes by noting that “Chinese policymakers have taken the … pragmatic approach of adjusting the bundle of property rights cautiously and carefully while keeping land ownership public.” (P. 32.) Although there is considerable enthusiasm in China for private ownership of land, there are practical constraints to complete privatization. The government has opted instead to allow private experimentation, which it then ratifies if the experiments are successful. During the past three decades, this has meant that ownership and use have been severed and that sticks in the property bundle have been rearranged in different manners to reflect gradual changes in attitude toward private property rights.

Professor Qiao’s chapter contributes to property scholarship in several important and meaningful ways. He reminds his readers that scholarship focusing on Western attitudes toward property can easily overlook non-Western cultures and legal systems. He emphasizes how cultural context influences social and legal attitudes toward property rights. He reminds the reader that China is still in an experimental phase in which private parties test out new approaches and the government endorses the ones that seem to work best.

Thus, when Chinese policymakers “try to accommodate new changes in reality in their daily work through gradual policy and legal reforms, they do not take property as an undivided concept but adjust the rights and obligations of the related parties with great care.” (Id.) In sum, Chinese property law is not evolving in a unitary fashion but rather is changing “stick by stick.”

Cite as: Gregory M. Stein, The Sticks in the Chinese Property Rights Bundle, JOTWELL (June 15, 2017) (reviewing Shitong Qiao, The Evolution of Chinese Property Law: Stick by Stick?, in Private Law in China and Taiwan: Legal and Economic Analyses (Yun-chien Chang et al. eds., Cambridge University Press, forthcoming 2017), available at SSRN),

Zoning for Dollars and Drones?

Troy A. Rule, Drone Zoning, 95 N.C. L. Rev. 133 (2016), available at SSRN.

My family was enjoying a sunny Southern California day in our new expansive backyard with a sparkling pool and secluded privacy when, all of a sudden, a drone hovered overhead. It appeared to be watching and taunting us as one of my sons-in-law made a lewd gesture skyward and we all yelled at it to go away.

I’m not a gun owner, but the feeling of having no control over the invasion of my property made me appreciate how someone (such as my older brother who does own guns) might feel compelled to shoot down the unmanned aircraft. How can such a trespass be allowed? As a property professor, the concept of owning the air rights above my property in addition to my surface rights seems to be debatably sacrosanct – cujus est solum ejus usque ad coelum – other than as limited by federal aviation requirements or other police power necessities.

Professor Troy A. Rule in his article Drone Zoning identifies the wide variety of complex regulatory challenges engendered by the increasing attractiveness of civilian drones. He addresses questions as to whether drone activity should be regulated at the state or local level rather than at the federal level and how municipal governments should develop drone policies for their communities.

In thinking of a title for this jot about Professor Rule’s thought-provoking article, I was reminded of the phrase “Zoning for Dollars” (a not-so-subtle take off of the 1970s television show Bowling for Dollars), which Jerold S. Kayden used to describe “incentive zoning.” With incentive zoning, municipalities grant developers the right to avoid certain zoning restrictions in return for the developer’s voluntary agreement to provide needed community infrastructure and amenities.1

Professor Rule explains how to design an efficient drone zoning law at the local level, and he provides charts to illustrate the use of principles of economics to develop these laws. For example, a cost-benefit analysis would show that “drone use should be legally permissible only when and where its net social benefits are greater than zero.” (P. 186.)

However, couldn’t a municipality permit drones where the net social benefits of the drone activity are less than zero so long as the person or company is willing to provide community benefits in the form of “incentive zoning” for drones? Such an approach could allow municipalities to “supply[] the flexibility and local participation needed to optimally balance drone use with landowner safety and privacy in communities” (P. 200), while at the same time obtaining community amenities to offset the social costs of permitting drones.

State and local governments need to be proactive nationally to ensure that they have a strong and unified voice as to the regulatory framework needed to control civilian drone use. As Professor Rule so crucially points out, the Federal Aviation Administration has, so far, chosen to regulate drones on its own instead of “actively inviting state and local governments to join in forming a coordinated drone regulatory system.” (P. 143.) Federal regulation is important for restricting drone activity near sensitive areas such as airports, military facilities, and higher-altitude airspace; managing nationwide drone registration programs; and establishing uniform drone manufacturing and performance standards.

Nevertheless, the potential for local impacts as well as national benefits makes drone regulation ripe for a combined regulation framework at the federal, state, and local levels. A similar longstanding debate about the division of authority among federal, state, and local governments over communications services has resulted in national regulation under the Federal Communications Commission with very limited state and local control. However, communication services, which are now wireless in many geographic areas, are not as locally intrusive as low-flying drones and may not serve as a viable model of federalism.2

Drone zoning is certainly a local function if viewed from a land use zoning model founded on the state’s delegation of its police power. Professor Rule’s writings on drones and local government should spur state and local action to address the increasing use of civilian drones in our communities.3

Other models of regulation should be considered in addition to local zoning, national preemptive authority, and common law actions such as nuisance and trespass. Perhaps we should restrict drones to overflight of public roads and highways to avoid trespass claims and maintain residential privacy? Individual, temporary permits could be granted to private owners wishing to fly drones over their own property for purposes such as wedding photos or real estate marketing videos.

This permitting method for individual flexibility is the same as Professor Rule’s suggestion for drone zoning exceptions in residential areas. Commercial operations may also consider granting easements over their private properties in exchange for payment by civilian drone users such as Amazon and the newly announced Google X.

Yes, property rules are ancient and convoluted at times, but they should be explored for purposes of regulating civilian drone use in the same way that they have been used for other new ideas and technologies such as intellectual property and “cyberspace.”

  1. See Jerold S. Kayden, Zoning for Dollars: New Rules for an Old Game? Comments on the Municipal Art Society and Nollan Cases, 39 Wash. U. J. Urb. & Contemp. L. 3 (1991). []
  2. See, e.g., T. Randolph Beard et al., Developing a National Wireless Regulatory Framework: A Law and Economics Approach, 16 CommLaw Conspectus 391 (2008). []
  3. See also Troy A. Rule, Airspace in an Age of Drones, 95 B.U. L. Rev. 155 (2015). []
Cite as: Shelley Ross Saxer, Zoning for Dollars and Drones?, JOTWELL (June 1, 2017) (reviewing Troy A. Rule, Drone Zoning, 95 N.C. L. Rev. 133 (2016), available at SSRN),

Same Base, Different Taste: The Cultural Ingredient in Property Law

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.

Cite as: Donald Kochan, Same Base, Different Taste: The Cultural Ingredient in Property Law, JOTWELL (May 3, 2017) (reviewing Taisu Zhang, Cultural Paradigms in Property Institutions, 41 Yale J. Int’l L. 347 (2016), available at SSRN),

Of Persons, Property, and Frozen Eggs

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.

Cite as: Tanya Marsh, Of Persons, Property, and Frozen Eggs, JOTWELL (April 10, 2017) (reviewing Browne Lewis, “You Belong to Me”: Unscrambling the Legal Ramifications of Recognizing a Property Right in Frozen Human Eggs, 83 Tenn. L. Rev. 645 (2016)),

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),

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)),

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)),

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),