Donald L. Kochan, The [Takings] Keepings Clause: An Analysis of Framing Effects From Labeling Constitutional Rights,
45 Fla. St. U. L. Rev.
__ (forthcoming), available at SSRN
“What’s in a name?
That which we call a rose
By any other name would smell as sweet.”
These words might ring true for William Shakespeare’s tragic lovers, Romeo and Juliette, but not so much so for the takings clause in the Fifth Amendment of the United States Constitution. In his compelling new article, The [Takings] Keepings Clause: An Analysis of Framing Effects From Labeling Constitutional Rights, Professor Donald L. Kochan employs interdisciplinary research from the fields of linguistics, psychology, and business product advertising to remind his reader that the words we use to label (or frame) constitutional rights do, in fact, matter.
The majority of regulatory takings challenges are brought under either the categorical takings test articulated by the Supreme Court in Lucas v. South Carolina Coastal Councilor or the three-part balancing test the Court applied in Penn Central Transportation Co. v. New York City. Property owners hardly ever win takings claims under either of these regulatory takings frameworks.
Against this backdrop of the proverbial cards stacked against property owners who resist government’s forced acquisition of their private property through eminent domain, Kochan reminds us that James Madison, “The Father of the Constitution” viewed the role of a just government as predominantly “‘protection’ and ‘preservation,’ [of private property rights] not merely ‘compensation’. . . .”
Kochan convincingly argues that the framing of the “’Takings Clause’” wrongly emphasizes the power of government to weaken constitutionally protected rights. Instead, we should choose a label that strengthens property owners’ constitutionally protected rights to keep their property, hence, the “‘Keepings Clause.’”
To make his case, Kochan does the challenging work for the reader of detailing the history of labeling other rights and entitlements related to the Fifth Amendment and the government’s eminent domain powers. Using multiple data collection tools, he documents the first usages of the term “Taking Clause” or “Takings Clause” (hereinafter “The Takings Clause”). His painstaking research reveals that the phrase emerged relatively recently, more than 100 years after the United States Supreme Court heard its first case dealing with the Fifth Amendment and the use of eminent domain. Kochan’s research is important because it shows use of the “Takings Clause” is not justified by any longstanding practice or constitutional imperative. Hence, what is the harm in replacing The Takings Clause with one that is more constitutionally accurate in its emphasis on what the Framers of the Constitution valued, constitutional safeguards for private property owners against the government?
Kochan next does a deep dive into the literature and study on framing, importing valuable lessons from other disciplines to show the power of framing and why labels matter. If the Fifth Amendment’s integrity is aimed at protecting property owners’ right to keep their property, then The Takings Clause could be “an irresponsible frame” to the degree that it emphasizes the government’s right to take through the exercise of eminent domain.
To help prove his point, Kochan explores the framing research of psychologists Amos Tversky and Daniel Kahneman, among others, whose work led them to the conclusion that “‘the adoption of a decision frame . . . [is] an ethically significant act.’” In other words, as Kochan explains, the way we frame constitutional text will affect the way in which the meaning of that text, and the rights it affords, are perceived even relative to other constitutional rights. For example, the First Amendment clause that protects speech is framed as the Free Speech Clause. This framing emphasizes the right that is protected, freedom of speech. In contrast, it could have been framed as the “‘Abridgment of Speech Clause’” or as the “‘Suppression of Speech Clause.’” These alternative frames are more akin to the “Takings Clause” frame in their emphasize, not on the right that is protected, but rather on when the government can limit, invade, and intrude upon the important constitutional right of freedom of speech.
Marketing and advertising research further support Kochan’s claim that framing matters and that the framing of important constitutional rights matters a lot. Marketing experts understand that how we label goods, services, and rights, is important to the framing of those same goods, services, and rights. Kochan points to branding literature as additional support for his claim that the “Keepings Clause” is a more accurate label for the Fifth Amendment because it sends a strong signal of a rights-oriented approach to the Fifth Amendment rather than doubling-down on what is already a strong government power-oriented approach to the Fifth Amendment. Kochan notes that recent Supreme Court decisions confirm that the Court is predisposed against finding constitutional takings, à la: Kelo v. City of New London, Stop the Beach Renourishment Inc. v. Florida Dep’t of Environmental Protection, and Murr v. Wisconsin. Changing the label could change the perception of the Fifth Amendment.
Kochan acknowledges that his ideas are going to be met with formidable resistance as he makes the case for stripping the Takings Clause label and replacing it with a label that conveys the message that the constitutional protections guaranteed by Fifth Amendment “should be to maximize keepings and minimize takings.” And certainly, while he would be pleased if we replaced what we have come to know as the Takings Clause with the “Keepings Clause” or something else, Kochan’s goals are broader and more far-reaching. He wants to provoke the reader to think ─to think about the labels we use and their impacts. He wants us all to be more circumspect as we approach the Constitution and go about attaching labels to constitutional protections and entitlements. If labels send important signals that affect behavior, attitudes, and outcomes, then more attention needs to be given to our framing of the Constitution.
Kochan’s work is important and interesting. For those of us who spend our professional lives thinking quite a bit about Fifth Amendment protections, his work refreshes some of the debates surrounding the critical importance of private property rights in our constitutional order and its fundamental role in our economy.
Cite as: Carol Necole Brown, What’s in a Name? Apparently a Lot
(April 24, 2019) (reviewing Donald L. Kochan, The [Takings] Keepings Clause: An Analysis of Framing Effects From Labeling Constitutional Rights,
45 Fla. St. U. L. Rev.
__ (forthcoming), available at SSRN), https://property.jotwell.com/whats-in-a-name-apparently-a-lot/
Lee Anne Fennell, Owning Bad: Leverage and Spite in Property Law
, in Civil Wrongs and Justice in Private Law
(Paul B. Miller & John Oberdiek, eds.) (forthcoming Oxford University Press), available at SSRN
People sometimes exercise their property rights out of animus or an attempt to gain leverage over someone else. An owner may build a fence from which he gains no benefit because he maliciously wishes to block his neighbor’s view. Or a prospective seller may overstate the minimum price she would accept for a good in an effort to gain an advantage in the negotiations to follow. In the first case, the owner probably commits a civil wrong, while in the second case, the owner probably does not.
In a forthcoming book chapter, Professor Lee Anne Fennell examines when the exercise of property rights constitutes a civil wrong. More particularly, she asks when it is appropriate to examine the motivations of the property owner or the nonowner counterparty. Her “core insight is that there are multiple possible mechanisms through which putatively absolute property rights can be made less so, some of which involve weighing the motives and interests of nonowners instead of, or in addition to, those of owners” (P. 4).
Professor Fennell favors what she terms a “blanket” conceptualization of property rights, in which an owner has a broad set of categorical rights that may be limited in particular instances. The question then becomes, when do we poke holes in this blanket? She reminds us that any such poking has an impact on property law as a whole and not just on the parties to a particular transaction.
We may need to poke these holes occasionally to limit opportunism. But any focus on motive can be both over-inclusive, by banning spiteful acts of little consequence, and under-inclusive, by permitting acts that cause great harm but were not badly motivated. Thus, focusing on motive alone is insufficient.
Motives, which can be difficult to parse, are not the only concern. “Should the owner who constructs an ugly fence to spite or pressure her neighbor be required to remove it, while an owner who incidentally inflicts identical harm through an equally ugly but earnestly constructed fence gets a free pass?” (P. 10).
In addition, there is much to be said for protecting the exercise of property rights even when the motivation for that exercise is a bad one, since this approach avoids the need to figure out what motivated any particular owner. We do not want property law to be less functional as the price for weeding out a subset of malevolent acts. As Professor Fennell puts it, “ownership is designed to work in a manner that does not require reason-giving, and . . . requiring reasons adds to the burden of ownership in systemic ways” (P. 15).
Ultimately, Professor Fennell’s primary concern is with the smooth functioning of the property system rather than just the remedying of the occasional breakdown. Property law should advance the general welfare. Focusing on motive may accomplish that goal in some instances, but the risk of trying to determine motivation and then figure out when to bar certain exercises of rights may cause more harm than good, except in extreme cases such as anti-discrimination law. One must also remember that an owner’s counterparty can have bad motivations, and that interactions between neighbors are ongoing, back-and-forth transactions.
One solution Professor Fennell proposes to this problem is to replace property rules with liability rules or to prohibit the exercise of certain property rights altogether. Any such remedy, however, limits property rights overall, which may have downstream costs. She also floats the possibility of trading certain rights in advance, a model I hope she will explore and expand further in the future. This approach apparently would permit the advance trading of rights before bad blood can develop between neighbors, though it is unclear how the neighbors would know which rights merit transactions before a disagreement arises.
In the end, Professor Fennell concludes that we should be wary of investigating the motives of owners or non-owners. Such an approach does not serve property law well. But in some cases, this examination may be warranted and can lead to the poking of new holes in the property blanket or, perhaps, modifying property rights more broadly.
Professor Fennell’s chapter is a pleasure to read, mixing an interesting problem, memorable hypothetical examples, and a helpful grid. She wisely refrains from recommending wholesale changes to the body of property law in order to address a problem that arises only occasionally, opting instead for a more case-by-case approach. She also recognizes that any attempt to solve the problem of spite may bleed over and have effects on other, less worrisome cases, such as those in which a party is only trying to gain leverage for future negotiations or acting in her own self-interest. Property law generally does not need to concern itself with these situations.
In short, she identifies a problem, suggests some possible solutions, describes how these solutions may cause even greater harms, and reminds the reader to be wary of opting for a response that may damage the larger body of property law in the long run. In Professor Fennell’s words, “The structure of property rights is only rarely best served by motive-based carve-outs from an owner’s rights. But considering interests that stand on the other side can, and often does, justify either an exception to or a broader alteration in those property rights” (P. 23).
Stephen R. Miller, Jaap Vos & Eric Lindquist, Informal Governance Structures and Disaster Planning: The Case of Wildfire
, __ U. Ark Little Rock L. Rev. __
(forthcoming 2019), available at SSRN
Are fire-prone communities in the western United States pondering whether they should follow the lead of the Finnish people and begin raking their forests? Doubtful, but how should they prepare for the ongoing threat of increasing wildfires brought on by climate change?
A new article by Stephen R. Miller, Jaap Vos, and Eric Linquist offers a framework for wildfire planning that engages rural communities using informal governance structures currently in place. As state and local governments become more proactive in responding to the local impacts of climate change, it is vital that we develop tools to deal with the ongoing disasters that will continue to impact our communities.
This article offers important guidance on planning for disasters in the wildland-urban interface (WUI) as urban population growth encroaches into wilderness areas and generates the need for increased wildfire suppression.
Current wildfire planning strategies emphasize community engagement, regulatory and non-regulatory tools to reflect the community’s values, implementation, enforcement, and assessment of the process. The authors propose an additional level of community engagement to bridge the gap between planning strategies used in larger-scale local governments and those strategies needed by rural communities lacking the resources to implement the more formal planning processes.
Instead of using formalized local government structures such as enforcing planning and building codes and investing in emergency response equipment, rural communities are encouraged to rely on their informal governance structures such as the local Chamber of Commerce, community club, homeowners’ association, and, — I would add to the authors’ suggestions — religious groups.
Rural communities interested in wildfire planning will still need to rely on formal local government processes such as comprehensive plans and zoning. Nevertheless, the legal processes put in place must recognize the importance of “unofficial rules” and the role of informal sources of governance power to develop wildfire disaster planning that will be successful.
One of the most significant contributions of this article is the suggestion that leaders in the wildfire planning process consider using the rapid assessment tools that researchers have employed to understand the dynamics of rural communities in developing countries. The main tool used in the development world is the participatory rural appraisal (PRA).
The PRA is a mechanism to engage informal governance structures in the disaster planning process by using techniques that allow local people to conduct their own analysis upon which they can plan and take action. As the authors explain, PRAs progressed from the practice of rapid rural appraisals (RRAs) that allowed outsiders to learn about the local community.
The PRA seeks to learn quickly about the local community and find ways to use existing informal structures to allow the community to help itself. This ground-up process has been successful in understanding the informal governance structures in developing world rural communities. Similarly, uncovering and empowering informal governance in U.S. communities in conjunction with formal government structures will help enhance the disaster planning process.
Disaster planning in the face of increasing wildfires in the WUI will only be effective if rural communities utilize the power of their deeply-rooted informal governance structure to enrich the local government legal processes. Such rural community engagement will help improve the potential success of disaster planning as we confront the realities of climate change disasters. If you are interested in learning more about wildfire planning, please see a model guide developed for Idaho generated by these authors in collaboration with others, Planning for Wildfire in the Wildland-Urban Interface: A Resource Guide for Idaho Communities.
Cite as: Shelley Ross Saxer, Planning for Wildfire Disasters
(February 13, 2019) (reviewing Stephen R. Miller, Jaap Vos & Eric Lindquist, Informal Governance Structures and Disaster Planning: The Case of Wildfire
, __ U. Ark Little Rock L. Rev. __
(forthcoming 2019), available at SSRN), https://property.jotwell.com/planning-for-wildfire-disasters/
As debates about “exclusion” and “sharing” continue to animate property and political discourses, scholarship tackling questions about how and for whom property and property law works is timely.
Scholarship examining the power of property law to promote inclusion through informal, contractual and proprietary forms (e.g., easements, leases, trusts, concurrent estates, and co-ownership arrangements), or property law’s “sharing” impulse, have typically focused on the social and economic benefits of hanging a different sign: that says not “keep out” but “come on in.” The legal power to include has also been lauded as a powerful enabler of innovation for the “sharing economy”—from for-profit platforms like Airbnb and Uber to not-for-profit initiatives like foodbanks and makerspaces.
Scholarship exploring the potential of the sharing economy as a vehicle for economic growth, innovation and micro-entrepreneurialism has examined how facilitating access to property, resources, time and skills can enable those who are excluded from these opportunities under conventional ownership models.
While the emergence of the ‘sharing economy’ has prompted intense interest amongst property scholars, it has also provoked a raft of public and policy concerns linked to precarity and exploitation of labor in the “gig economy.” Professor Rashmi Dyal-Chand’s new book, Collaborative Capitalism in American Cities: Reforming Urban Market Regulations, casts new light on practices of sharing.
Focusing on the tricky challenges of inner-city economic regeneration, this account offers a fresh perspective, both theoretically and methodologically, from which to understand how pragmatic practices of collaboration and sharing can deliver economic stability, capitalist growth and inclusion.
The dilemma at the heart of this book is the endemic crisis of economic underdevelopment and stagnation, creating poverty and lack of mobility, at the core of America’s inner-cities. Dyal-Chand begins by noting how law—through racial zoning and the protection of racial covenants—produced inner-city segregation. She notes that attempts to regenerate inner city markets “fall short because their proponents misunderstand the reasons for economic instability in the inner city.” (P. 6.)
She focuses on the distinctive nature of economic instability in the urban core, which goes beyond mere wealth inequality to segregation, educational disinvestment, violence and racial strife. Dyal-Chand highlights features of inner-city networks, including a hyper-localism in economic, labor and social relationships, which sits at odds with the shift towards digitally-enabled global networks in mainstream US markets.
While Dyal-Chand reveals the features that mark out the distinctiveness of inner-city markets, her focus is avowedly not on what has failed in urban cores, but on what has worked. The book adopts a case study method—focusing on three detailed cases, investigated through detailed qualitative interviews—to understand how economic stability is produced in these settings.
The case studies focus on for-profit collaborative businesses that have adopted network techniques to generate economic stability, and applied practices of shared ownership to return wealth to employees. Dyal-Chand’s treatment of these case studies aims to understand why some entrepreneurial initiatives succeed where others have failed.
For example, in Chapter Two, she analyses the successful growth of Cooperative Home Case Associates, the largest worker owned cooperative in the United States, and its network partners Paraprofessional Healthcare Institute, Home Care Associates, and Independence Care System. Key features identified include practices of sharing critical resources, training, financing, and management expertise across networks.
By externalizing significant costs to the network, these organizations successfully leverage the power of sharing to achieve capitalist success in inner city locales. Dyal-Chand uses detailed testimony to tell the stories of these businesses from the perspective of the founders, leaders, and owner-employees.
A key insight drawn from their accounts is the role of legal frameworks and regulatory context in enabling networks or creating barriers to their establishment and successful growth. This perspective enables Dyal-Chand to identify where law (perhaps unwittingly) is calibrated to assumptions about the nature of, and conditions for, business growth that do not align to the experiences of successful inner-city businesses.
Dyal-Chand describes the phenomenon discovered through her case studies as a distinct, alternative form of capitalism: businesses share key resources rather than maintaining exclusive control, and collaboration within local networks delivers economic stability where conventional competitive capitalism has failed.
She argues that these cases provide evidence that business in America can be done differently and calls for policy makers to make room for a broader range of market practices to better meet the needs of urban America.
While this book focuses on U.S. case studies, the ideas explored will be of wider interest for property scholars, both methodologically and theoretically. Its methodology deploys a form of property story-telling that is grounded in realism. While the themes and challenges she addresses are global, her approach foregrounds the experiential evidence base, set in its local context.
Although much property story-telling is woven around the exceptional circumstances of litigation, Dyal-Chand is anchored in the lived experiences of people deploying strategies that are variously supported and impeded by regulatory frameworks, successfully and unsuccessfully lobbying for legal change or negotiating with public agencies on the interpretation and application of criteria in local contexts.
Dyal-Chand demonstrates that inner-city underdevelopment cannot simply be understood as market (or individual) failure, but as a form of regulatory failure. Systems of laws, institutions and relationships that appear to work well elsewhere are not well suited to the context of the inner city. (P. 55.) Dyal-Chand draws out a model for a different kind of capitalism—based on local collaborative networks—that appears better suited to inner city economies. She reflects on the types of legal and institutional infrastructure that would support this model and offers a wide range of recommendations for practical measures in law and regulation to support collaborative capitalism, with the potential for increasing economic stability for workers and businesses in the urban core.
In doing so, Dyal-Chand has opened up a new frame, not only for urban market regulation but for property discourse. By focusing on property not as a rights-problem but as a resource-problem, Dyal-Chand offers us a genuinely different view of the cathedral, one that effectively transcends the deadlock of contemporary property-rights discourse.
The book closes by citing Erik Olin Wright’s conceptualization of “real utopias,” described as “grounded in the real potentials of humanity, utopian destinations that have pragmatically accessible way stations, utopian designs of institutions that can inform our practical tasks of muddling through in a world of imperfect conditions for social change.”
Dyal-Chand’s vision for economic stability in America’s urban cores is grounded in real potential, and her approach offers an interesting model for scholars seeking to tackle property-resource questions in pragmatic, utopian ways.
Money can’t buy happiness, so the saying goes. But, does giving away property bring happiness? That is the proposition considered by Professor Dave Fagundes, in his new article Why Less Property is More: Inclusion, Dispossession, & Subjective Well-Being.
Professor Fagundes urges new thinking on the classic conception of property, moving away from possession and exclusion, long the centers of the construct, toward their more obscured counterparts, dispossession and inclusion. Starting with the notion that property historically has been justified for its utilitarian ends, he suggests that if we are not better off when we amass property and exclude, then a different conception of the rights inhering in property might better achieve these ends.
Professor Fagundes asks us to evaluate property from a hedonic perspective, pointing to literature that reveals that keeping property to ourselves does not improve subjective well-being. Indeed, it is quite the opposite—sharing and giving away property increases happiness in a number of respects. These dispossession and inclusion activities assist with decreasing debt, increasing mobility, and allowing individuals to refocus attention to more rewarding activities rather than on mere objects. Consequently, the real challenge is how to incorporate the hedonic upsides of inclusion and disposition into settled notions of property without doing too much violence. Professor Fagundes lays out strategies in the contexts of the sharing economy, charitable deductions, and property minimalization.
While the sharing economy represents a paradigm shift that emphasizes access over ownership, sharing promises the greatest hedonistic value when it is altruistic. That quality is generally lacking in many current sharing economy models, like Airbnb rentals, for example. Thus, Professor Fagundes recognizes the sharing economy’s potential for increasing subjective well-being without necessarily endorsing all its manifestations.
The same concerns exist with charitable donations. Studies find less hedonistic value in such donations when they are rewarded by tax deductions. While eliminating tax deductions altogether might reduce giving and produce a net loss in societal benefits, Professor Fagundes proposes tiering—the amount of any deduction being determined by the impact of the giving.
The rise of micro-apartments and tiny houses may seem contrary to cultural expectations about size and status. Nevertheless, the phenomena has been tied to greater subjective well-being, from greater affinity for getting out of dwellings to the outdoors to greater interactions with neighbors. To encourage people toward minimalism, at least in housing, Professor Fagundes suggests eliminating home purchase incentives for the grand estate. He acknowledges that this may risk making even modest homes unaffordable for many. Even apart from that proposal, to facilitate choices to live smaller for those who wish to do so, Professor Fagundes proposes normalizing the codes for tiny houses and crafting dedicated codes for them. Targeted abandonment (with registries pairing givers and needers) should also be encouraged.
Professor Fagundes asserts that strategies of inclusion and dispossession can operate to enhance overall social welfare. He posits that the current debate over the right to exclude vis-a-vis inclusion falsely presents these concepts as in opposing roles. He states that “A strong right to exclude is no doubt socially optimal, but it is not dominantly because owners’ rights enable private wealth maximization. Instead, rights of exclusion and possession are necessary as prerequisites to enable the kinds of inclusive and dispossessive acts that are most likely to increase owners’ well-being, and society’s net welfare.”
What is needed is the development of a “choice architecture” to facilitate policies of inclusion and dispossession, to prompt owners to exercise the rights to possess and to exclude toward the end of their best, other-regarding selves.
As suggested, with each of the methods identified by Professor Fagundes for realizing the hedonic upsides, significant societal downsides loom. However, there is yet value in his claims. There are no rules that prevent owners from including and dispossessing. But, the culture of property—with its almost sole emphasis on exclusion—prevents us from seeing the social value in the former.
Given that the right to exclude has long been tempered by larger societal interests—e.g., entry may be justified in case of threats to safety and owners are not allowed to exclude from spaces open to the public based solely upon race—accounting for the hedonistic value of ownership might operate to further expand access by non-owners, such as in the calculation of damages against an intruder or when a court chooses application of a liability rule in place of a property rule. The hedonistic value might be applied to reduce the net injury to the owner, in the end, possibly urging owners to allow entry. And, the recognition of the hedonistic value might be used to coax settlements between parties competing for the same rights.
If we concede that one of the ends of society is to increase happiness, individually and communally, then causing us to see the value of property from its hedonic attributes makes sense. Not only will owners be happier, but so will non-owners, the recipients of the giving.
The issue of who should own federal public lands is often an issue that raises the temperature of politics and protest, especially in the western United States. Greg Ablavsky’s recent article gives us a historical analysis that provides some important answers to these questions.
In 2014, the federal government attempted to halt illegal cattle grazing on lands controlled by the Bureau of Land Management (BLM). For two decades, Cliven Bundy, a Nevada rancher, used the land and refused to pay the BLM grazing fees. But federal enforcement was blocked by armed supporters and private militia members who agreed with Bundy that the federal public lands are unlawful infringements on the rights of states and ranchers.
Two years later, a militia group led by Ammon Bundy, Cliven Bundy’s son, seized federal buildings in the Malheur National Wildlife Refuge in Oregon. The occupation, fueled by antagonism to federal land management and control, lasted 41 days.
Federal public lands are especially significant in western states where the United States owns 47 percent of all land. The belief that public land properly belongs to either the states or to people living nearby is often grounded on assertions that federal ownership is somehow unconstitutional.
According to this theory, land within each state belongs to the state and there is no legal or historical basis for federal land holdings. Gregory Ablavsky’s wonderful legal history article, The Rise of Federal Title, buries such arguments. It also puts an exclamation mark on one of the most important lessons of property law: that governmental recognition of title is fundamental to property ownership.
Ablavsky’s article draws upon the history of western expansion across the Appalachian mountains from the original colonies and states to the fertile land beyond (especially present day Tennessee and Ohio) to show how the federal government came to have so much power over all aspects of land ownership in the territories and states. As numerous scholars have highlighted, although military conquest dominates the country’s historical imagination, non-Indians acquired land from Indian tribes largely through purchases and agreements.
What Ablavsky adds is a sense of the messiness of land claims in the frontier, in the territories, and in newly admitted states. Ablavsky describes how speculators rushed to claim western land and how fortunes were made and lost on land speculation. Adding to the chaotic mix of speculative claims were those of veterans who had been promised western land for their service and those of individuals who unilaterally asserted the right to land based on state law preemption allowances.
Though Johnson v. M’Intosh is typically taught as the mechanism—through elevation of federal title over title acquired by an individual directly from an Indian tribe—by which many of these conflicting claims were resolved, Ablavsky situates it as more a “belated capstone to the nearly century-long struggle over private purchases.” (P. 656.)
As The Rise of Federal Title shows, the low level governance practices of the federal government—the way that people came to rely upon federal government officials to resolve the many land conflicts—was arguably more important than broad legal pronouncements in establishing the primacy of the federal government when it comes to the ownership and control of land within the growing nation.
Turning to current debates, Ablavsky convincingly shows that there is no historical basis for arguments that federal public land should be turned over to the states. Although this was the cause célèbre of the Bundy family and enjoys the support of some conservative politicians, the idea that states rightly should have been admitted without the burden of internal federal land holdings or interests (national parks, BLM land, Indian reservations, etc.) has very little historical support.
The equal footing doctrine cannot do the work that those seeking federal land cessions are asking of the doctrine. Ablavsky critiques the Court’s decision in Shelby County v. Holder, which purported to be based on the idea of equal sovereignty, as historically unsupported “arbitrary line drawing.” (P. 694.)
There is a lot to this article. It is full of historical details that will interest those interested in everything from Indian land rights to matters of federalism.
The commitment of constitutional originalists to interpreting rights based on how those rights were understood historically ensures that there will always be an appetite and practical utility to legal histories of this sort. But for those more interested in the origins of property and not constitutional originalism, The Rise of Federal Title offers a more rich account of the importance of state recognition of property rights than typical origin stories for property, most notably Johnson v. M’Intosh and Harold Demsetz’s classic article, Toward a Theory of Property Rights.
As Ablavsky demonstrates beautifully, conflicting claims to property abound, especially when governance structures are in flux. Untangling these claims required the acceptance of the federal government as the final land rights and governance authority. Ablavsky highlights that this acceptance came as a matter of practical necessities recognized by the states themselves.
Ultimately, property rights themselves depend less on natural law theories of how rights emerge from the commons and more on state, or better stated here “federal,” recognition of those rights. The Rise of Federal Title is well worth reading for how it sheds light on western expansion and frontier land rights, but perhaps the article’s most important contribution to property theory is the work it does to highlight the fundamental role official governmental recognition plays in creating recognized and enforceable property rights.
What’s the best model for property – a sack of LEGO bricks or a heap of sticks? For those with a formalist view of property that emphasizes a stable set of characteristics and a distinctively self-contained architecture, the LEGOs win hands down. The blocks are standardized, free of rough edges and irregularities, and they snap cleanly together while maintaining their individual integrity. The sticks, by contrast, lack any obvious organizing principle or irreducible core. The bundles they form are loose and contingent, vulnerable to endless unbundling and rebundling. Yet the choice of bricks over sticks becomes far less clear on a functional vision of property that focuses on making property rights work well in the messy, interdependent modern world. For a functionalist, the question of optimal property structure must depend on the challenges and pressures presented by the surrounding conditions, and on what one is trying to build.
In The New Essentialism in Property, Katrina Wyman spotlights the incongruity between the formalist and functionalist facets of what she terms “the new essentialism.” Her primary focus is the influential scholarship of Henry Smith and Thomas Merrill, who are presently working on the American Law Institute’s fourth restatement of property (Smith is the lead reporter; Merrill is an associate reporter). Their vision of property as a boundary controlled, thing-based, in rem system of delegated control is steeped in formalism. Yet it also lays claim to functionalist justifications, most notably in the form of information cost savings. Opening the door to functionalism, however, requires reconciling property’s purportedly fixed core with social and economic conditions that are far from static. The resulting brand of essentialism is, as Wyman puts it, “highly malleable.” This malleability has two implications, as Wyman observes. On the one hand, it offers a response to critics who accuse the new essentialist project of neglecting important interests. On the other, it makes the new essentialism less essentialist.
New essentialism accommodates functionalism, for example, when it recognizes that an owner’s right to exclusion must sometimes yield to greater social objectives (such as nondiscrimination or airplane overflights), and that it must also be supplemented by governance mechanisms that operate through modes other than boundary exclusion (such as nuisance law). The tension between formalism and functionalism also emerges in deciding what counts as a “thing.” Merrill and Smith’s vision of property maintains that certain standard property attributes fit together well, and that keeping them intact is essential in a world of high transaction costs. But these attributes are only strongly complementary to each other under certain social and economic conditions. Moreover, there are today many competing complementarities that involve combining rights associated with many different parcels. Just as forming a contiguous path or highway requires assembling pieces of land held by multiple people, putting together limits on the rights of many owners may prove essential to controlling negative externalities or harnessing positive externalities. If we delineate property’s “things” based on the most important complementarities in the picture, we may end up with something very different than the traditional exclusion-based vision of property rights.
Of course, what functionalism demands of property in any given time and place is an empirical question, as well as a normative one (what functions do we have in mind, anyway?). Nonetheless, the notion embeds an openness to adaptation that is at odds with a formalism that assumes there is an immutable answer to the question of how property should be structured. This theoretical inconsistency between formalism and functionalism can be safely ignored so long as we focus on stylized contexts where the formalist model retains most of its functional power—family farms and isolated single-family homes. But if we take seriously the interdependence that prevails in the urban places where most human beings now live, giving functionalism free rein presents a more serious threat to formalism.
To be clear, Wyman does not frame matters so starkly, nor would she agree that changing conditions require a thoroughgoing revamping of property forms. Instead, she examines two modern examples that push at the bounds of property—hydrofracking as a form of trespass, and the dilution of the value of taxi medallions—to illustrate the challenges new essentialists face in navigating changes surrounding resource access. Yet, her analysis carries implications beyond these situated examples, and artfully queues up an important decision point for property theory.
If formalism makes property a fast-fish – contained and fixed – functionalism frees it from those points of adhesion as social and economic realities demand. The new essentialists cannot abide a loose-fish vision of property, but neither can they reasonably pretend that conditions will always replicate the agrarian past in which form and function aligned in a particular manner. Will they respond by prioritizing formalism where it conflicts with property’s functioning on the ground, or do the opposite, ceding more and more of what they claim makes property so distinctively itself? Eventually, they—and we—will have to decide whether the term “property” should denote a formal or a functional category. Do we want our property fast or loose?
Maureen E. Brady, The Forgotten History of Metes and Bounds
, 128 Yale L.J.
__ (forthcoming, 2019), available at SSRN
A decade and a half ago, as a neophyte property teacher, I read Andro Linklater’s history of the surveying and distribution of land west of the Appalachian Mountains. The central animating principle in the book—Measuring America: How the United States was Shaped by the Greatest Land Sale in History (2002)—was simple, and seemingly self-evident: When it comes to surveying and selling land, straight lines are better than squiggly ones.
(I was less convinced by Linklater’s side effort to convince readers that the metric system is infinitely better than the imperial system, although his arguments on this front brought back fond memories of my elementary school teachers’ assurances that the United States would adopt the metric system by the year 2000.)
In the years since the publication of Linklater’s book, economists have amassed substantial evidence supporting his argument that the “grid” system of land demarcation employed by the federal government in the Northwest Territories and (for the most part) thereafter in the distribution of western lands is far more efficient than the older metes-and-bounds system used in the original thirteen colonies and other early states such as Tennessee and Kentucky.
The former system relied on trained surveyors to divide land into rectangular six-by-six mile “townships,” which were subdivided and sold as 160-acre “quarter sections.” The latter, which the colonies inherited from Great Britain, relied upon idiosyncratic descriptions of parcels that utilized non-standard and impermanent features (e.g., walls, rocks, streams, trees).
Gary Libecap and Dean Lueck, in particular, have convincingly demonstrated that the metes-and-bounds system is inefficient and that, over time, parcels of land demarcated by metes and bounds come to be worth less than similar and geographically proximate parcels laid out in a grid. This, of course, is hardly surprising. After all, thanks to the ground-breaking work of Tom Merrill and Henry Smith (among others), we know that the standardization of property forms lowers information costs and facilitates efficient resource allocation.
Against this scholarly backdrop, Professor Maureen Brady steps in with new insights in the role of metes and bounds. Brady does not challenge this important point, nor does she attempt to refute or undermine the findings of Liebcap and Lueck. Rather, her article is revisionist history in the classic sense: She convincingly demonstrates that modern critics misapprehend the goals of the metes-and-bounds system.
At least in the early New England colonies, Brady shows that metes-and-bounds surveying techniques were not conceived primarily as a way to facilitate efficient land transfers. Rather, they were designed to convey customized information both about land and landowners that could not be expressed in standardized terms. In so doing, the metes-and-bounds system formed and reinforced social bonds by rooting colonists to particular communities and particular parcels of property.
Moreover, while the language of many metes-and-bounds deeds might seem obtuse to the modern reader, long-forgotten customs (such as the annual ritual of communal boundary walking) provided clarity lacking in written descriptions of land parcels. In a relatively closed and homogeneous social system, where land was plentiful, these customs, and customized descriptions, actually helped reduce conflicts over property and facilitate land transfers.
As Brady points out, information-costs theorists acknowledge that standardization involves tradeoffs: Standardization reduces transaction costs by making information easier to interpret across a broad audience, but customized information is more capable of being tailored to the needs and preferences of smaller communities.
Therefore, not surprisingly, she demonstrates that standardization became more important as the populations of the colonies grew, diversified, and became more mobile—and land became more scarce. The colonies, and later the fledgling federal government, sought to standardize the system of land demarcation in order to minimize disputes and facilitate land transactions.
Brady argues that this forgotten history of metes and bounds calls into question the dominant assumption that standardization is an important prerequisite to economic growth. Instead, she argues, customization and standardization can both be rational growth strategies at different periods of time. Perhaps—but what struck me about the article was that the metes-and-bounds system worked in the early colonial experience in large part because growth and mobility—at least not as we understand these terms today—were not the point of land records.
Of course, the American colonies were engines of imperial growth, emigration to the colonies represented mobility on a massive scale, and the readily available land on the shores of North America provided unprecedented economic opportunity for British colonists. (By the mid-eighteenth century, Americans were approximately three inches taller than their European counterparts!)
But, Brady’s account also reminds us of a time when property was more than just a commodity, when mobility was not necessarily the end-goal of life, and when communal bonds mattered far more than they do today. Reading it, I was reminded of Andrew Sullivan’s surprisingly positive essay reviewing my colleague, Patrick Deneen’s best-selling book, Why Liberalism Failed (2018). The title to the essay? “The World is Better than Ever. Why are We Miserable?”
Molly Brady’s article is a historical tour de force. But, it is more than that, and it does more than challenge presuppositions about land-demarcation systems and information standardization. It also invites readers to remember that property is not only an economic institution, but also a social institution that serves to bind people together in geographic communities.
The “rootededness” that Brady described has faded in our modern mobile culture, but like the metes-and-bounds deeds that persist in many parts of the United States, I hope that it has not disappeared completely.
James W. Ely, Jr., Buchanan and the Right to Acquire Property
, __ Cumberland L. Rev.
__ (forthcoming), available at SSRN
Can property rights really exist if we do not have a right to acquire property?
When we hear about debates over property rights, they are often about the claims of people who already own property. The focus is on how owners can use property and what regulations the state can place on the use of one’s property. We often lose sight of perhaps a more fundamental set of questions about how we protect, facilitate, and pave the way for earning the means for the acquisition of property.
Only if one can acquire property do any of those other questions even matter. We first need to ensure that people have an equal opportunity to acquire property and become owners. Property rights issues related to possession and use only becoming relevant thereafter. Professor James Ely’s recent work, Buchanan and the Right to Acquire Property, reveals this important lesson: the debate over what property owners can do with property is of little consequence if we do not first resolve the debate over whether individuals have a right to acquire property and how that right is supported.
Professor Ely’s article takes readers on a precedential tour through important jurisprudential moments too often neglected. He starts with the 1917 opinion by the U.S. Supreme Court in Buchanan v. Warley. Ely explains how the Buchanan Court—long before more well-known anti-segregation rulings like Brown—used the right to acquire property as the arrow for slaying a Louisville ordinance that prevented individuals from occupying property in areas dominated by occupants who were not of their race.
Buchanan, Ely recalls, was responsible for halting the progress of racial segregation movements in many cities. Nonetheless, he speculates that the case became a “constitutional orphan” because its property-rights focus made it an “awkward fit for post-New deal constitutionalism” while similarly interfering with and becoming eclipsed by the agenda of Progressives interested in planning and land use controls. (P. 1.)
Ely’s article is notable and worth reading for its retelling of the Buchanan precedent and for its tutorial on the development of the “right to acquire property” in various state and federal cases both before and after Buchanan. He explains that these cases were especially helpful at empowering the poor and minorities because the right to acquire rationale was focused on equalizing them in the marketplace. The later shift toward economic regulation—instead of rights—as a vehicle for social change, Ely laments, proved to be more beneficial to those who engage in rent-seeking to concentrate benefits upon certain interest groups than helpful to the individuals for whom such regulations were purportedly targeted.
Ely’s article is also an important contribution beyond simply the history of Buchanan and the right to acquire, because it traces two interconnected jurisprudential lines of inquiry in state and federal courts. His history reveals a key understanding within state and federal court opinions in the late 1800s and early 1900s—a realization that individuals cannot enjoy a right to acquire property if they are unable to acquire the means necessary to purchase property.
In other words, there must be a right to pursue a lawful calling if the right to acquire property is to be protected. Individuals must be able to use their comparative advantage in the marketplace to earn a living so that property acquisition is an attainable end. In fact, perhaps one of the reasons that the right to acquire property has not survived in a robust independent line of precedent is that by the early twentieth century the “right to acquire property had been as a practical matter folded into the right to pursue lawful callings.” (P. 11.)
Ely concludes with some comments on the modern relevance and renewed importance of understanding these historical lines of jurisprudential thought. Recent debates on occupational licensing requirements are drawing on the right to pursue lawful calling precedents and should be informed by the immediate impact the decisions in this space have on the correlated right to acquire property.
Individuals are prevented from meaningfully accessing the marketplace for property if they cannot meaningfully access the market for occupational development to earn a living. We too often see these issues as silos, looking at the costs and benefits of regulating workplaces or protecting consumers by requiring individuals to obtain licenses before they can work, and then looking independently and having separate debates on how we regulate property and make housing more affordable.
Ely’s work reminds us that there was a time when the courts understood the key interdependent relationship between acquiring property and maintaining an occupation, or calling, of one’s choice. A marketplace, and legal structure facilitating it, that allows individuals to exploit their comparative advantage in the occupational marketplace empowers them to obtain the means for acquiring property so long as the law also does not place any artificial and discriminatory barriers to such acquisition.
Beyond licensing, readers of Ely’s work on the right to acquire will leave it with a newfound appreciation for what should be an obvious point—we cannot enjoy what we cannot access. And no matter how much we improve the quality of certain assets—like the qualities of owners’ rights—they remain meaningless if some people are shut out from the ability to acquire them. Rights to acquire are a prerequisite to the value of a property system.
Most directly, Ely’s work provokes some fundamental questions that all readers will be eager to explore. What responsibility does the state have to create market conditions in which the acquisition of property is a real possibility? What duty does the state have to empower acquisition or at least remove artificial barriers to it?
Undoubtedly, the realization regarding the role that the right to acquire must play in property systems can lead to differing policy prescriptions regarding the proper means for facilitating access to property and empowering acquisition.
Not everyone believes, as Ely seems to, that the best way to achieve these things will be for the removal of legal constraints on pursuing lawful callings, enforcement of non-discrimination principles, and invalidation of state-conferred monopolies. Others will no doubt think the state needs to take a more interventionist role.
But either way, Ely’s article should be a catalyst for debating the right to acquire and revisiting its jurisprudential foundations whenever we are confronting myriad modern-day property controversies—including land use, zoning, housing affordability, homelessness, continuing issues of racial segregation, and others.
“Inclusion” is one of those words that typically elicits warm and positive feelings. However, when an entire society is described as “inclusive,” the question arises—included in what? Putting the question another way, is it even possible for a community be all-inclusive?
Often, contemporary American political and legal discourse draw Manichaean distinctions between advocacy of inclusivity and of xenophobia. With regard to land use and housing issues, complete racial and socioeconomic integration of neighborhoods thus are juxtaposed against sinister demands by NIMBYs, who demand that integration take place “not in my back yard.”
Professor Kenneth Stahl is both an advocate for inclusion and an opponent of easy over-simplification. His analyses of economics, sociology, and political theory in The Challenge of Inclusion led him to observe that, at a fundamental level, the problem resides in the very notion of “community” itself.
I argue that the NIMBY is not the principal barrier to creating inclusive communities. Rather, the very notion of community, however broadly conceived, depends on exclusion. As the theorist Michael Walzer wrote, if communities lacked the ability to exclude, they could not maintain the very thing that makes them communities: their character as “historically stable, ongoing associations of men and women with some special commitment to one another and some special sense of their common life.” The perceived selfishness of the NIMBY is an outward manifestation of this deeply embedded and widely shared desire to preserve community. Therefore, even if NIMBYism could be excised, the challenge of inclusion would remain. (P. 492.)
In particular, Stahl added, sociologists have demonstrated that a system of shared norms enforced by exclusion “enables people to survive in an impersonal urban ‘world of strangers.’” (P. 502.) Beyond that, he reiterated Elinor Ostrom’s findings that strong community oversight could substitute for private ownership: “[W]ell-organized communities with strong collective social norms can develop effective cooperative systems for sharing common resources without private property or government intervention.” Furthermore, these shared social norms “can only exist where communities strictly exclude outsiders.” (Pp. 499–500.)
Affluent political progressives willingly pay taxes for social services for the less fortunate. However, they are unwilling to give up exclusionary zoning in their own neighborhoods, which protects their property values and exclusive access to superior schools that provide their own children with entrees to elite colleges and subsequent advantages in life. In his recent book Dream Hoarders, Richard Reeves points out that Americans less frequently refer to themselves as “middle class,” and more as “lower middle class” or “upper middle class,” which he defines as the top 20 percent of the income distribution, less the top 1 percent. Affluent professionals and managers are growing in wealth and power, and, through exclusionary zoning, Section 529 plans for tax-free college savings, and the like, increasingly seem to be perpetuating a class apart. This growing demographic seems more intent on hoarding opportunities than on inclusivity.
Stahl, on the other hand, declared that “inclusion represents our society’s highest aspiration,” and it has attempted the complicated task, as he puts it, of creating communities that are both “diverse and inclusive.” (Pp. 487–88.) He observed:
“[D]iverse communities practice exclusion in much the same way homogeneous communities do, just at a different scale. Arguably, moreover, these diverse cities could not remain diverse without being exclusive at the neighborhood scale. . . . One way to reverse th[e] pattern of suburban migration and maintain a diverse city, however, is to unbundle residence from public goods and services so that individuals can choose their preferred package of municipal amenities while remaining within the city. This is precisely what exclusionary mechanisms like private schools, BIDs, and neighborhood zoning are intended to accomplish. (P. 525.)
Professor Stahl’s concrete suggestions involve compromise, thus furthering inclusion while permitting a sustainable amount of differentiation. This “municipality as a federation of neighborhoods” approach includes mechanisms for limited local management of public goods and to permit development that falls short of the inclusionary ideal. An example of the latter is the luxury apartment building which includes government-subsidized units for those with low- and moderate-incomes, the latter with separate side-street entrances and lobbies (assailed by critics as “poor doors”). This, Stahl argues, gives the poor ready access to the employment, educational, and cultural amenities of affluent neighborhoods, while assuring their affluent neighbors that “increasing diversity in their neighborhood need not lead to a tipping point of decline.” (P. 531.)
Likewise, private schools and charter schools would preserve the link between schools and residential neighborhoods, while at the same time providing a comforting option to the well-off, while also providing lower-income families some access to schooling in other areas.
Stahl understands and accepts that his approach will face substantial criticism: “As a normative matter, the idea of the diverse city as a federation of neighborhoods conflicts with a perhaps more conventional view of diversity as integration at the granular level. The federation of neighborhoods is not a recipe for mutual understanding or deep meaningful interactions between diverse groups of people. To the contrary, it accepts separation as the price of inclusion.” (P. 527.)
In an era of increased political polarization, Professor Stahl’s approach will not fully satisfy many. Yet it facilitates the kind of compromise between diverse groups that may, in the long run, best advance the cause of inclusive housing and inclusive communities. For this reason, The Challenge of Inclusion is an analysis and a set of prescriptions deserving of close attention.