The lack of affordable housing in our nation’s most generative cities is an ongoing tragedy. The cause is hardly mysterious: incumbent residents—homeowners, sometimes joined by renters—artificially suppress housing supply by blocking development. The result reflects neither the verdict of free markets nor the outcome of democratic processes, but rather political and regulatory dynamics that are powerfully and systematically skewed against change.
In their new article, Professors Roderick Hills and David Schleicher dust off what might seem like just another wonky policy tool, the transferable development right (TDR), and repurpose it as a coalition-building device that can help unstack the political deck to facilitate development.
The backstory is familiar to those who have been following the land use literature. Incumbent homeowners are a dominant political force, as William Fischel’s work has emphasized. The home looms large in their personal portfolios, and risk aversion drives them to oppose anything that might be perceived as a potential threat to home values—including virtually any and all residential development.
This appears to be true not only in suburbs, the original focus of Fischel’s work, but also in cities, where land use politics typically operate at a fragmented, sub-city scale. Incumbent renters may also strongly oppose development, fearing gentrification, neighborhood changes, and displacement.
The collective power of incumbents to block change arises from the “hyperlocal” politics that surround zoning. Against a backdrop of restrictions, new developments are proposed seriatim and typically require a localized map amendment to the zoning ordinance.
Incumbents who are near a proposed new development are physically proximate to each other and have little difficulty coordinating. Zoning, as Hills and Schleicher explain, does not just reflect but also produces and perpetuates political clout through “constituency effects” that bind together the beneficiaries of the status quo and enable them to entrench it.
The interests on the other side enjoy no comparable constituency effects, Hills and Schleicher argue. The most obvious beneficiaries of development are would-be residents who have no ability to coordinate with each other or influence local political outcomes. There are, however, some better-organized proxies for their interests: employers who lose out on talent and developers who lose out on purchasers.
But employers and developers may not be able to overcome hyperlocal resistance either, because their own interests are often diffuse and fragmented. Projects considered one by one face tremendous headwinds, as local opponents rally against a lone developer who has no way to tie her interests to those of other developers who came before or will come after. Employers too would benefit collectively from more housing development, but they have only a fragmented interest in each particular development.
If there is no natural coalition capable of countering the incumbents, Hills and Schleicher suggest, then we ought to use policy to create one. They thus suggest using TDRs as a bundling mechanism—one that can connect development tightly enough to popular causes (like environmentalism and historic preservation) to pass political and legal muster.
TDRs are a special-purpose currency that enables the owner of a “sending” property to shift some of its development potential (height, say, or density) to a “receiving” property. The fact that owners on both the “sending” and the “receiving” ends of the TDR have an interest in the transaction occurring makes TDRs a potential coalition-building tool—although it may not be easy to keep those interests aligned.
For example, Hills and Schleicher discuss policy tweaks that would keep those with TDRs to sell from pushing for downzoning in receiving areas in order to increase the value of their entitlements. Other efforts may be necessary to keep those who support restrictions on the sending sites but oppose development on the receiving sites from finding ways to effectively unbundle the two parts of the deal.
Hills and Schleicher cite the High Line in New York as a compelling example of the coalition-building potential of TDRs. The owners under the High Line were restricted from developing into the airspace occupied by the park but were given TDRs that they could sell to those in the surrounding area. The park itself provided a nexus between competing interests, as well as a highly attractive focal point. Notably, the very reason for restricting development—to build an elevated park in airspace over the owners’ properties—also made the adjacent areas much more attractive for development than they otherwise would have been.
One might wonder about the generalizability of this sort of example, given the complex and localized political economy of zoning, the highly contextual way in which land use battles play out on the ground, and the many moving parts in TDR design—which is itself a political product.
Ultimately, what I find most valuable about Hills and Schleicher’s project lies not in any particular approach to TDRs, but rather in its insight that constructing durable bundles of interests offers a way to directly counter the political malfunctions that afflict zoning.
We might think about a variety of ways to carry out this bundling. For example, the recent success of some jurisdictions in loosening the grip of single-family-home zoning likely stemmed in part from the flexibility that the new zoning designations granted single-family homeowners to reconfigure their own properties—perhaps adding an accessory dwelling unit or converting their home to a duplex or three-flat.
Could this trend be further expanded (and its impact heightened) by making the added density permitted under new zoning rules transferable to other properties instead? Or perhaps a modified TDR format might be used to deliver benefits to neighbors who are impacted by nearby development, as other recent work has suggested.
Many other approaches might be imagined as well. Whatever the best policies turn out to be, Hills and Schleicher’s work seems sure to catalyze creative engagement with the ways in which land use law produces constituency effects, and with fresh efforts to reshape regulatory policy in ways that will benefit our cities and their residents—present and future.
Cite as: Lee Anne Fennell, Bundle and Conquer
(August 12, 2020) (reviewing Roderick M. Hills, Jr. & David Schleicher, Building Coalitions Out of Thin Air: Transferable Development Rights and “Constituency Effects” in Land Use Law
, 12 J. Legal Analysis
79 (2020)), https://property.jotwell.com/bundle-and-conquer/
The Fifth Amendment’s Takings Clause provides “nor shall private property be taken for public use without just compensation.” The Takings Clause therefore raises three distinct legal questions: First, when has property been “taken,” triggering the just compensation requirement? This is the question raised in “regulatory takings” cases. Second, to what extent does the clause prohibit takings except for “public uses”? This is the question raised in “public use cases,” when the government takes property by eminent domain with the intention of transferring it to a private party. These first two questions receive the most scholarly attention.
In the recent article What is Just Compensation?, Wanling Su provides a deep historical analysis and unique process-based focus on the third question triggered in Takings Clause analysis—what amount of compensation for property that is taken is “just”? This is the question raised whenever the government takes property, by eminent domain or otherwise, and property owners are entitled to be compensated for their loss.
Su’s work examines the question that has—perhaps not surprisingly—received the least attention in the scholarly literature on takings. But that is not to say that it has received no attention.
Scholars addressing the question typically assume that property owners are systematically undercompensated when their property is taken, although this assumption has been challenged, including by me. Concerns about under-compensation flow from the substantive legal standard used to determine what compensation is due when property is taken by the government (by eminent domain or regulation).
In United States v. Miller, the Supreme Court held that “just compensation” is the equivalent of “fair market value”—that is, the price that a willing buyer and willing seller would agree upon in a voluntary market transaction. There are many problems with applying this standard in the takings context—including the facts that the seller is typically unwilling and the market is nonexistent, leading to a high risk of error. Scholarly commentators primarily focus on the fact that the “fair market value” standard fails to take into account factors such as the owner’s subjective attachment to her property.
Su approaches the question from a different angle by focusing on process rather than substance. Su argues, convincingly in my view, that the Fifth Amendment’s “just compensation” requirement requires a jury determination of the compensation due when property is taken by the government.
Historically, the article is a tour de force. It links the right to a jury determination of value to the ancient English common law writ of Ad Quod Damnum (“to what damage”). (P. 1492.) Su traces the jury requirement in the takings context as far back as 1086, when William the Conqueror surveyed all the value of lands in England, relying entirely on jury assessments, for the Domesday Book. (P. 1498.) She demonstrates that the right of a jury assessment of value when property is taken was required by the Magna Carta (Pp. 1501-03), was endorsed by the Framers of the Constitution (Pp. 1506-09), and was assumed to be required by courts throughout the colonial and early republican eras. (Pp. 1505-13.)
Her historical analysis leaves, in my mind at least, little question that the Seventh Amendment, as originally understood, guarantees a jury determination of what compensation is “just” when private property is taken. She calls the constitutionality of alternatives to jury determinations, such as the commissions permitted by the Federal Rules of Civil Procedure, into serious question. And, she urges the federal courts to restore the proper understanding of the just compensation required by guaranteeing a right to a jury determination of property values. (Pp. 1518-27.) I’m convinced that she’s right on this important point.
That said, I remain uncertain whether her argument satisfactorily answers the question of whether the compensation awarded when property is taken is “just” or not. My uncertainty flows from three concerns.
The first is that, although the Fifth Amendment’s takings clause has been incorporated against the states, the Seventh Amendment’s jury right has not been incorporated against the states. So it is not clear whether the jury-right identified by Su applies to the vast majority of takings, which are accomplished by state and local—not federal—actors.
The second is that, as I have previously argued, most compensation calculations result from bargains made in the shadow of eminent domain—not in eminent domain proceedings, judicial or otherwise. That is to say, most of the time, private property owners accept the compensation offered by government actors under the threat of eminent domain. (Pp. 126-30.) They have good reason to do so since eminent domain proceedings impose what Thomas Merrill has called high “due process costs” on both bargaining parties. Jury trials undoubtedly increase those costs, perhaps further deterring private property owners from challenging compensation offers. (Of course, jury trials impose high due process costs on both sides, so a jury guarantee might increase compensation offers.)
The third, and most important, of my concerns is the following: Su offers a procedural solution to a substantive problem. If the fair-market-value standard systematically results in under-compensation by disregarding important “values” (such as subjective attachment to property), then restoring the right to a jury determination of fair-market value does not solve the under-compensation problem. It might be that juries are more sensitive to such attachments and will increase compensation awards to compensate for them. But, Su’s own analysis suggests that this isn’t necessarily the case.
In the end, Su’s account of the jury process for just compensation determinations does not leave assurances that jury awards will be just. Nevertheless, she provides a convincing account of why justice requires jury awards in the case of takings, adding an important perspective and new historical insights into the takings discussion.
Paul Babie, Private Property Suffuses Life
, 39 Sydney L. Rev.
135 (2017), available at SSRN
There is ongoing disagreement among property scholars about the fundamental nature of property. Some view property ownership as a bundle of unfettered rights while others envision property as a complex web of rights and responsibilities. Paul Babie’s Private Property Suffuses Life, while technically a review of two recent books, manages to review those works while also offering additional insights into this larger skirmish.
At one level, “private property allows us to exert control over things and over people.” (P. 137.) Under this view, owners enjoy “liberal freedom of choice about the allocation, control and use of things.” (Id.) If an owner controls a particular asset, all others lack dominion over that same asset, which means that the owner “control[s] the lives of others.” (Id.) An owner can use their property as they choose, and no one else may interfere. This broad conception of property is widespread in modern life, having arisen in England, spread to the United States, and then infiltrated the rest of the world, most recently Asia.
But, as Babie notes, summarizing Morris Cohen, “every choice a person makes determines the course of others’ lives.” (P. 138.) Property ownership is not just individual dominion, but also a web of relationships. Because of this interdependence, the state can restrict an owner’s use of their property rights if that use harms others. Property ownership thus comes with responsibilities to neighbors. The same law that creates and protects property rights also can limit their power.
This is not to suggest that property rights and powers are in complete equilibrium, as Babie notes. There is always more individual choice than government regulation. Those who make use of their rights sometimes harm other people, and the law often allows that harm to continue.
Over time, as the authors of the two books Babie reviews note, people came to recognize that individual effort leads to control over land, then to control over personal property, and then to more widespread commerce. As land and later other forms of wealth became more and more privatized, this view of ownership had extensive effects on economic life.
This evolution coincided with the growth of international trade and consumer culture and with increasing urbanization. That trend continues presently, “[a]nd so today we continue to face the consequences of the suffusion and the spread of the power of private property to control all that we do in every part of the world.” (P. 142.)
Where does that leave us now? Modern property owners recognize the degree of control that their ownership gives them over others. This leads them to defend their property rights vigorously, since those rights confer power and autonomy. “People the world over understand that property is power, the power to make the rules, to set the agendas, to make the decisions about how things are used.” (P. 144.)
Babie uses climate change as a contemporary illustration of this type of externality. In this setting, individual choice and control can lead to collectively extreme effects on many others. Thus, property is both a force for extreme good and a force for extreme evil.
Property ownership guards personal freedom and is often protected by democratic institutions. At the same time, property ownership leads to extreme displacement and destruction. “It is paradoxical because it fulfilled a dream, while simultaneously portending a nightmare: that which seemed to produce equality, really did so only for some, while for many others it destroyed their understanding of relationship to land and to things.” (P. 145.)
Toward the end of his review, Babie makes a weak call for reducing these inequalities. He recognizes that those who benefit from property ownership could lessen these inequities while still enjoying net benefits from the property rules that have afforded them such advantages. Those who profit would continue to profit, if somewhat less, while still exerting control over others.
While Babie’s article is stronger on description than on recommendations, that is not his goal – he is, after all, reviewing the work of two other scholars. But in offering his review, Babie also provides a thorough and concise overview of the growth and development of modern property rights. He merges history with legal and economic thought, and he suggests that those who benefit should remember that they are thriving under a system that may be protecting them to the detriment of others.
Babie closes as he opened, quoting from Shakespeare’s Henry IV, Part II: “Uneasy lies the head that wears a crown.” Like Henry, property owners enjoy a form of power over others. “And so we have come to know the weight of that crown, and just how uneasily lies the head that wears it.” (P. 146.)
Ann M. Eisenberg, Rural Blight
, 13 Harv. L. & Pol’y Rev.
Blight—empty and decaying buildings that harm their communities—receives significant attention from politicians and wonks alike. President Trump’s inauguration speech referenced “rusted-out factories scattered like tombstones.” Think tanks like Pew discuss blight’s harmful effects today much as groups like RAND did decades ago. Yet when blight is discussed, it is almost inevitably preceded by the same adjective: urban. And more insidiously, the term historically implied a particular target for removal: communities of color. The literature rarely acknowledges blight in rural areas and even less frequently prescribes solutions tailored to rural spaces.
Ann Eisenberg’s aptly-named Rural Blight is a welcome effort to fill this gap and builds on the author’s earlier work. Eisenberg’s approach is systematic. She first defines the problem. Then, she diagnoses its primary causes. Lastly, she prescribes solutions. This last step is the piece’s chief virtue. As my title suggests, Eisenberg’s analysis is deeply practical, identifying real challenges that rural governments face while pinpointing solutions learned in other communities. Policymakers at the local, state, and regional levels have much to learn from Eisenberg’s piece.
Eisenberg sorts causes of rural blight into three buckets: judicial doctrines that overly protect rural property rights, macroeconomic changes that steadily undermined rural economic livelihoods, and proximate causes that sap local governments’ power to address blighted properties. The first two are relatively simple. Courts tend to protect rural land from public control and only reluctantly conclude that rural properties are nuisances. And the effects of globalization and agricultural consolidation are a tragic but all-too-familiar story.
The theme of the last cause is complexity. Tax foreclosure, for example, is a common cause of blight, rural and urban alike. But many states’ foreclosure proceedings are drawn-out and confusing. Further complications come from the problem of absentee landowners who sometimes live out of state. Though the law provides mechanisms to hold these owners accountable, the procedures are often tedious and span years. Local rural governments often lack the fiscal resources to pursue solutions in earnest because of declining revenues, a situation made even more difficult by a pure human capital shortfall due to a chronic shortage of rural attorneys, meaning there are not enough legal resources to support solutions.
Eisenberg centers these limits on local rural governments in her solutions. Many common approaches by urban governments—like aggressive eminent domain usage—are simply too “drastic” for their rural counterparts. Instead, Eisenberg identifies a series of realistic local, state, and regional approaches. I highlight only a small sample here.
For starters, local governments could expand their available resources by drawing upon neighboring jurisdictions. This could, on one extreme, occur by merger. Understandably, though, local residents tend to resist mergers that erase historical boundaries. If state law allows it, a more politically palatable approach is for local governments to share resources, like law enforcement, through intergovernmental agreements.
Local governments could also empower local residents to go after blighted property through conservatorship laws. This proposal resembles the enforcement of U.S. consumer protection laws, which provide individuals the means and financial motive to sue when government resources are lacking. Just as consumers can act as “private attorneys general,” rural residents could act as private code officers.
But working within their means does not mean that local rural governments have to be timid. For the ambitious, Eisenberg outlines measures to extradite out-of-state owners that fail to maintain their rural properties. They could also, as towns in West Virginia have, impose liens on fire insurance proceeds to force absent owners to pay.
Yet Eisenberg also stresses that state governments must empower rural municipalities and counties. States could, for example, provide even small towns with expansive “home rule” authorities. An example outside Eisenberg’s piece is illustrative. Michigan is a strong home rule state. The Michigan Supreme Court has interpreted this provision to grant municipalities broad authority to create and enforce public nuisance regimes. The City of Detroit, an urban government that famously suffers resource limitations, just this month used that authority to go after hundreds of delinquent properties in three large lawsuits. Rural governments could pursue similar actions, though with more modest scopes.
Lastly, states could go after the third cause of rural blight—limited capacity to use complex procedures—by making their property regimes a lot simpler. Tax foreclosure, for example, can be streamlined by shortening notice periods and consolidating enforcement proceedings. Transfer of property through inheritance, too, could be simplified through statutory default rules or uniform partition laws to address properties with multiple owners.
Appropriately, Eisenberg concludes by acknowledging blight policy’s unjust past. If rural governments aren’t mindful, they could repeat the same abuses that destroyed communities in the name of urban renewal. Yet the scale of the rural problem demands action. Rural governments should prioritize unoccupied buildings over occupied ones. When occupied buildings are addressed, governments should hold themselves to addressing measurable harms—think health and safety concerns—rather than squishy concepts like morals or aesthetics used in the past. Evicting residents should be the last possible option. Finally, more rural attorneys could prevent procedural abuses and bring those that do occur to light.
In fact, the basic need for more rural attorneys lurks behind much of the piece. Attorneys will be needed by local governments to draft and enforce new laws, by residents seeking to sue owners of local blight, and by property owners themselves to clarify contested property rights. State governments should, as states like South Dakota have, incentivize lawyers to put down roots in rural communities. If rural policymakers pursue Eisenberg’s litany of solutions—and really, they should—even more legal expertise will be needed to ensure their success.
Across America, cities and localities are in the midst of a housing crisis – housing costs are increasing, wages are not keeping up with housing costs for the most vulnerable, and affordable housing production is not keeping up with demand. Partly in response to this trifecta, more than 800 communities have implemented inclusionary zoning policies in the hopes of creating more high-quality, affordable housing. More specifically, Minneapolis, Minnesota; Oregon; and California have enacted statutes that prohibit single-family only zoning.
Minneapolis was the first city to ban single-family zoning in 2018. Single-family lots were up-zoned to allow duplexes and triplexes and higher density developments were permitted near transit stops. In 2019, Oregon became the first state to ban single-family zoning. In cities whose population exceeds 10,000, duplexes are now permitted on lots previously zoned single-family. And, in cities whose population exceeds 25,000, triplexes and fourplexes are now permitted on lots once zoned single-family. California’s first stop towards eliminating single-family zoning has taken the form of permitting single-family lot owners to build accessory dwelling units.
Against the backdrop of a national discussion surrounding access to affordable housing, Sara Bronin, in her article Zoning for Families, challenges her reader to eschew the traditional definition of “family” found in many zoning codes in favor of “functional families.” Whereas zoning codes typically define the family as people who are related to one another, the definition of functional families expands beyond the boundary of related people “to count as families groups who are not legally related to each other, but who demonstrate behaviors and characteristics of a ‘traditional’ family.” (P. 6.)
Bronin surveys relevant case law from various jurisdictions and distinguishes the cases based upon how the relevant zoning codes attempt to achieve the values of density, privacy, and character—values that exist in tension—according to Bronin. Zoning is inherently local, which Bronin acknowledges as she discusses the inherent and unavoidable conflicts that arise when communities, through their public laws, move past regulating structures where people live—their set-backs, height, area, number of exits, etc.—and begin to regulate the internal, human composition of those structures.
Bronin engages her reader in a discussion of how best to control household composition to achieve the dual purposes of pursuing legitimate police power objectives (health, safety, general welfare) while simultaneously respecting important constitutional protections in the realm of privacy and due process. While the task she proposes is a difficult one, it is a critically important discussion to have at this moment in time in our country.
The choice to adopt a stricter or broader definition of family has the potential to impact the country’s housing dilemma. One way to house more people is to produce more housing which hopefully results in the creation of more affordable housing. The other way, of course, is to make our current stock of existing housing available to more people. The functional family model has the potential of allowing family living arrangements to burgeon past the nuclear family in areas zoned exclusively for single-family use to include more diverse and expansive family living groups and therefore, more people.
Although Bronin argues that excluding functional families is irrational and therefore unconstitutional, she acknowledges that even under a functional family framework, government has a regulatory interest to pursue. She imagines three goals one might pursue in regulating the functional family—“controlling density, protecting privacy, and ensuring compatibility with community character” and concludes that it is impossible to regulate for household composition and equally achieve all three goals. (P. 33.) But, communities have important choices to make in this area of the law, and Bronin makes the case that the most rational and certain way to avoid constitutional scrutiny is the functional family model.
While the nation’s attention is on the housing dilemma, all options and discussions should be “on the table.” Bronin’s contribution to the discussion is important and challenges us to contemplate how our changing demographic landscape is driving the need for a more modern approach to zoning for single-family use.
Timothy M. Mulvaney, The State of Exactions, 61 Wm. & Mary L. Rev. 169 (2019).
Land-use regulation allows the government to condition approval of a land-use permit on the landowner’s surrender of a property interest (exaction) so long as there is an “essential nexus” and “rough proportionality” between the condition demanded and the anticipated impact of the proposed land use. Professor Timothy Mulvaney has written extensively about the many legal and policy issues surrounding exactions and he continues to enlighten us in his new article, The State of Exactions.
Mulvaney reviewed the almost 130 cases in a five-year period that cited the Supreme Court’s 2013 decision in Koontz v. St. Johns River Water Management District to illustrate the various ways in which lower courts have applied the Koontz holdings.
In Koontz, the Court extended to two new circumstances the rather stringent scrutiny set out for physical exactions in the Court’s previous decisions in Nollan v. California Coastal Commission (“essential nexus”) and Dolan v. City of Tigard (“rough proportionality”).
First, both the majority and dissent in Koontz agreed that when the government denies a permit application because the applicant refuses to accept the suggested exaction, the proposed exaction will be subject to Nollan and Dolan scrutiny so long as the exaction was a concrete and specific demand. Prior to Koontz, courts had only applied Nollan and Dolan scrutiny to conditions attached to a permit that was issued to the applicant.
Second, the 5-4 majority required that permits conditioned on the payment of monetary, also called “in-lieu,” exactions were subject to Nollan and Dolan judicial scrutiny.
Some takings observers predicted that Koontz would provide momentum for a further expansion of takings protections across a range of specific regulatory issues moving forward. Mulvaney concludes that, five years on, these doctrinal predictions have not come to pass, a conclusion that he ultimately supports on normative grounds.
In my view, one of these specific regulatory issues on which Mulvaney concentrates is of special importance: whether exactions imposed via legislation are subject to the stringent scrutiny of the “nexus” and “proportionality” tests to which exactions imposed administratively are subject. The dissent in Koontz was particularly concerned that the majority decision would restrict local governments from charging reasonable permitting fees by applying higher judicial scrutiny to these legislatively-imposed requirements.
Mulvaney explains that 90 of the nearly 130 lower court decisions citing Koontz did so based on general principles, such as a summary of takings law and the unconstitutional conditions doctrine. However, the remaining cases addressed issues such as whether courts would apply Nollan and Dolan scrutiny to permit conditions imposed by broad legislative action.
Elsewhere, I have argued that, throughout land use law doctrines, increased judicial scrutiny has been imposed on government decisions that are individualized in nature rather than more generally applied to all landowners.This increased scrutiny has generally been justified by concerns about government overreach in individualized situations. However, the limited empirical evidence available has shown that the government in the land use permitting context has not engaged in the extortionate behavior feared by some scholars, as well as the Koontz majority.
This distinction in judicial scrutiny for individualized decision-making has been captured by differentiating between adjudicative/administrative decision-making and legislative action. Mulvaney notes that eight of the ten courts addressing this issue since Koontz have not extended Nollan and Dolan scrutiny to permit conditions imposed through legislative action.
Only two post-Koontz decisions, both penned by Federal District Court Judge Charles Breyer, rejected the legislative-administrative distinction. These decisions were later limited in application by a subsequent Supreme Court decision and San Francisco’s repeal of the challenged ordinance.
Thus, contrary to concerns voiced by the Koontz dissent that Nollan and Dolan scrutiny would be expanded to apply heightened constitutional scrutiny to a “vast array of land-use regulations,” lower courts have not subjected legislative actions to increased scrutiny.
Nevertheless, following the Koontz decision, some scholars continue to argue that legislatively-imposed monetary fees should be subject to Nollan and Dolan scrutiny. Justice Clarence Thomas similarly maintains that the administrative/legislative distinction should not govern the level of scrutiny to be applied such that cities would be able to “legislatively impose exactions that would not pass muster if done administratively.”
Professor Mulvaney touches on several other issues that space constraints preclude me from exploring. However, I will note that I concur with his opinion that the relationship between takings law and the unconstitutional conditions doctrine is particularly attenuated.
Mulvaney’s ’s review of post-Koontz decisions regarding exactions is very informative and his observations and conclusions are comforting to those of us who support the legislative-administrative distinction that supplies the underpinning of judicial review and legislative deference in land use decision-making.
Bart J. Wilson, The Meaning of Property in Things
in The Property Species: Mine, Yours, and the Human Mind
(forthcoming 2020), available at SSRN
What is the meaning of “property”? If you think there cannot be a fresh and intriguing perspective yet to offer on that question, you’ll be pleased and surprised to read the new work by Professor Bart Wilson.
In the opening chapter for his forthcoming book, The Property Species: Mine, Yours, and the Human Mind, Dr. Wilson challenges scholars of all disciplines to reconsider their prior assumptions about the origins of property and its meaning. In doing so, he announces in the chapter’s opening line the claim he sets out to defend in the book: “Property is a universal and uniquely human custom.” (P. 1.)
To narrow the discussion a bit further, Dr. Wilson refines the claim he seeks to establish as: “All humans have property in things, and Homo sapiens is the only animal to have property in things.” (P. 2.) In ways far too detailed to summarize here, he anticipates and effectively defends this basic claim against obvious and immediate adverse responses you might expect from cultural relativists, biologists, legal centrists, philosophers, lawyers and others.
A few highlights of Dr. Wilson’s supporting analysis will give a sense of his claim. For example, haven’t we all heard about other animals besides humans staking claim to territory or defending what might be called their possessions in food or mates? Dr. Wilson points out that such examples might easily but too quickly be analogized to the human conception of property.
When you consider the usual examples offered about non-human behaviors of this type, they can almost always be better explained as only acts to retain possession, defensive acts to threats of loss of possession and the concomitant risk to exclusive use, or other reactions to a fear of dispossession. But, as Dr. Wilson reminds us, “[p]ossession . . . is only nine points of the law.” (P. 5.) The “last tenth,” he explains, “is the origins of property in humans, and not simply its like and unlike effects.” Only once focused on that aspect of human property, can we “begin to trace what property is and how it works.” (P. 6.)
So, how do we locate that last tenth, the origins of property as a human concept? Dr. Wilson walks us through several steps. One is that humans, unlike any other animal, have “symbolic thought” which is “what makes many uniquely human capabilities possible: language, creativity and innovation, art, and trade.” (P. 6.)
Dr. Wilson’s inquiry is initially focused on “things” – tools, utensils, ornaments, and so forth—because he makes the bold claim that “[n]ot every human community has property in land, but all human groups have property” in things of this sort. (P. 8.)
Symbolic thought makes property a uniquely human custom because we transform our relationship with, and use of, “things” beyond that of other animals by “socially transmitting” these things with “moral force and shared expectations” that are developed based on (sometimes distinct across communities) “meaning-laden customs.” (P. 13.)
Humans do not simply follow impulse regarding things. We do not unidirectionally seek only to acquire or to use which is “[t]he common feature to all nonhuman practices regarding food and mates.” (P. 7.) In contrast, “[h]uman beings . . . appear to be the only species to teach their progeny how not to acquire things.” (P. 7.)
According to Dr. Wilson, herein lies the universality of property as well. For this, Dr. Wilson integrates lessons from cognitive linguistics, including his reporting that “linguists have identified . . . a semantic element” common in every human language: the concept “MINE,” which appears to develop naturally in children.
When tied to the teaching regarding not acquiring things mentioned above, three other universal linguistic concepts come into play to define property as a human custom. These are “NOT,” “GOOD, and “BAD.” So, according to Dr. Wilson, humans are taught and develop customs regarding “Not Mine” (or, “yours”) and the “good and bad ways to acquire things in their community.” (P. 7.) Dr. Wilson also then concludes that, because these concepts must be “socially taught and socially learned,” property “is a custom because it is a moral practice.” (P. 8.)
Dr. Wilson explains that identifying property as a “custom” and recognizing its origins as such is consequential. For one thing, doing so “avoid[s] reifying property as a right” which inevitably devolves into a battle of which rights trump other rights. Customs, on the other hand, are designed to “fit” within a larger set of community interactions and coordinate with other customs much more freely than the strictures of rights-based values. Once we see property as “about what humans do” and “about how we orderly conduct ourselves with regard to things” (P. 11.) then property can be used to facilitate the “moral scheduling pattern” of communities. (Pp. 13, 14.)
If Dr. Wilson’s claims are correct, the focus by lawyers, economists, and others on “property rights” and how to define them may be not just missing the point but perhaps distorting the point of property as well. According to Dr. Wilson, “Property rights are the expectations defined by property, not the content of property.” (P. 14.) He uses these conclusions to challenge the oft-invoked bundle-of-sticks metaphor and to rebut legal realist claims that property has no prior normative content absent its definition by the state.
Many of us law professors teaching the first class of property for the semester this coming month will start by asking our students the traditional “What is Property?” question. Dr. Wilson’s work offers a rich new set of considerations for the answer to that question; and, we would be wise to keep his proof of customary origins in mind before too quickly getting sucked into the rights-based conveyor belt generated by the language of judicial resolution of property disputes that will dominate the course.
Dr. Wilson’s hopes to appeal not to a particular group of scholars fixed on their own path but instead to overcome the far too enduring obstacle present in scholarly inquiry when “different disciplines talk past each other in their own languages with different assumptions and different questions.” (P. 3.)
Indeed, legal scholarship (including property scholarship) and legal scholars are often guilty of academic stove-piping. Thus, Dr. Wilson’s work independently makes a valuable contribution by his invitation to greater interdisciplinarity in property research.
Furthermore, the substance of the work itself reminds us that so many questions about property are of interest to myriad fields of inquiry. Opening the communication lines across multiple fields has very valuable cross-pollination effects.
As Dr. Wilson notes, “[d]epending on which department you visit at your favorite university, you will hear some rather different perspectives on property.” (P. 2.) What those departments don’t do often enough is talk in order to discover their differences and understand the diversity of perspectives in order to seek synthesis. This work is an example of the exploration that is possible when we look beyond our department’s walls.
That the Constitution ensures that private property will not be taken by the government except for a public use and then only with just compensation is one of those principles learned in high school civics class. But, what is this “property” covered by the Fifth Amendment? It is not defined in the Constitution; rather the Supreme Court has stated that the term finds its contours and limits in state law, not under the federal constitution, and then only that which has been recognized and affirmed over the ages by custom, state statutes and judicial pronouncements.
Legal theorists often say that property is about the power of exclusion, by an “owner,” that is, one who holds “title,” as acquired through various established ways—voluntary transfer, inheritance, adverse possession. There are, to be sure, respected alternative theories recognizing property “rights” which are not necessarily founded on “ownership”—such as personhood and expectations and reliance on government benefits. In a recent article, Professor Yxta Maya Murray, describes a novel theory of property held by residents of Boyle Heights, a Los Angeles neighborhood, which she calls the “Boyle Heights property jurisprudence” that appears grounded in their collective experiences in the community.
The residents believe that property rights arise from the labor and cultural capital invested in the community by the residents. From this vantage, a taking of property, no different than if the government itself physically invaded their homes, occurs when there is loss of possession and leaseholds as a consequence of gentrification that is encouraged and facilitated by governmental development initiatives. Professor Murray calls their legal thought a form of “community constitutionalism.” The residents maintain that housing insecurity “takes” “property” because its poor residents should have the right to continued possession, unmolested by the government or investors or by immigrating “hipsters.”
The main issue addressed in the article is whether we can or should indulge this “jurisprudence” as a way of halting what seems to the residents of Boyle Heights to be the wrongful loss of community, or at least to provide compensation to those residents harmed through displacements and higher costs for access to spaces for living and doing business. Professor Murray offers insight into this question through a series of interviews of residents in Boyle Heights, a neighborhood long-burdened by huge shortages of affordable housing and now exposed to high decrees of gentrification, largely resulting from the loosening of rent control laws.
Landlords are now able to evict tenants who had been paying modest rents to convert their property into new spaces with new, higher rents that are out of reach for most of the current community residents. Professor Murray asks whether a “Boyle Heights takings jurisprudence” is so “off the wall,” as not to be entitled to serious consideration as we evaluate legal intervention on behalf of the residents. She does not think so.
In the interviews conducted by Professor Murray, the residents who were uncoached and unschooled in the lingo of property philosophy nonetheless expressed their worries in the many long-voiced notions of property. They spoke about how they had viewed the long-held protections against rent escalations as a form of property, not unlike Charles Reich’s “New Property.” The residents also spoke about how the new gentry were outsiders who brought values and interests out of sync with those long-held in the community, resonating Eduardo Penalver’s observations on property as facilitating the formation and maintenance of strong communities whose values differ dramatically from the mainstream.
The residents spoke of the demoralization from the loss of home and business because rents were too high, evoking Gregory Alexander’s human flourishing thesis. They also talked about being “surrounded” by gentrifiers, implicating Loretto v. Teleprompter Manhattan CATV Corp, where the Supreme Court found that a minor but permanent occupation in the guise of a cable television apparatus, effected a per se taking. In the resident’s view, there is a de facto psychological occupation of land by the gentrifiers that proves so disturbing of the enjoyment of the community so as to be an invasion. The residents stated that “property” was everything, echoing Laura Underkuffler, that property should be understood as a part of the foundational human conflict between I and thee (or we); Joseph William Singer’s work identifying property as being about our way of life; and Matthew Desmond’s contention that “without stable shelter, everything else falls apart.”
On its face, the Boyle Heights property jurisprudence does not align with recognized Fifth Amendment case law and the residents’ assessments of housing as a “pillar” of human rights is not supported by takings jurisprudence. The Supreme Court long ago rejected the idea of housing (and education) as fundamental rights, at least on the federal level.
Takings jurisprudence as we know it now is not so much concerned with the interests that should be preserved, instead it is focused on which public interests would be furthered by a taking, at least as it involves the exercise of eminent domain. And, the line between a valid regulation and compensable taking is a fuzzy one, as the Supreme Court has insisted over time – see, for example, Penn Central Transp. Co. v. New York City and Pennsylvania Coal v. Mahon, which together instruct that only those regulations that go too far amount to a taking.
Could the same community values recognized as a basis for the government’s offensive use of police powers – for example, to clean up blighted areas in Berman v. Parker – also be used defensively to prevent community disruption?
The stories of worries and losses from gentrification and the government’s myopic pursuit of development seem no less relevant in setting the boundaries of property than the rights of tenants in avoiding uninhabitable conditions or violent evictions. Rent control itself was already an incursion into traditional property. The cause was based on the belief that homelessness was a social problem that could not be remedied through bilateral relationships, but also that having a home was fundamental to dignity—one of the interests that property has historically served.
Property and its protections are not static or fixed. Having regard for the “Boyle Heights takings jurisprudence” might well remind us about what property is about. Property exists to serve human values and is limited to that end.
I was thrilled when I discovered Property’s Edges, a recent article by David Dana and Nadav Shoked, who are both at Northwestern University School of Law. Their article sets up an extremely helpful framework to think about boundaries, borders, and the liminal spaces in between purely public and purely private. Specifically, Dana and Shoked suggest that property law distinguishes the borders of an asset from its center. Thus, we have (or should have) weaker rights of ownership in the edges of an asset, which are close to its boundary with private property, than we do at its core.
They use this framework—viewing ownership on a continuum from public to private—to dismantle the prevailing belief, espoused by many lawmakers and some scholars, that private property protections are unitary across a given asset, with the boundary line serving as a hard division between private and public space.
Shoked and Dana begin by examining existing property narratives, which the authors view as including this unitary idea of private property, or what we might think of as a formal boundary approach to property.
According to this view, property theory presumes entitlements are just as strong at the center of the property as at its edges. Thus, if the border is crossed, some sort of wrong has been committed and harm ensues. However, the authors assert that the law in fact does not uphold this unitary vision of property ownership.
Rather, they suggest that “the law treats property not as a binary private/public choice, but as a spectrum proceeding from a core of intensely-protected private property into much less protected edges of private property that blend into the public space.” In making this argument, Shoked and Dana look at three examples: trespass, aerial navigation, and police searches.
With respect to their example of trespass, the authors admit that a tort claim for trespass might exist regardless of where on a person’s property the offender enters. However, there will typically only be meaningful harm, and thus a substantial award of damages, if the trespass occurs on the “core” of the property (e.g., “the residence, the place of business, the cultivated area,” rather than the area near its boundary).
Similarly, while police need a warrant to search a person’s house or its “curtilage,” they do not need one to search the “open fields” surrounding it. Thus, these examples support the claim that the law already acknowledges the idea of property “edges,” despite what some lawmakers might believe.
The article then focuses on the reasons that the law tends to protect certain parts of private property more than others. The authors present normative, empirical, and administrative points, suggesting that both efficient development of land and privacy are advanced more by protecting the core of property than its edges.
They also suggest that there are public interests at stake: “At some physical point, as the space draws closer to the public realm or to the property of others, the public becomes a better arbiter of the space’s best uses.”
The idea here is that the public use of this space should be more efficient than a private owner’s use or decision about its use would be. Further, a conception of ownership that offers greater protection for the home than a parcel’s boundaries comports with public expectations about privacy and property, a point that has been corroborated by experiments and surveys.
Finally, the authors argue that, if we actually protected all parts of property equally, too much would wind up being litigated, including small and harmless intrusions.
The article then relies on three disparate ideas—lead poisoning caused by lead pipes; drones flying over private property; and shoreline rights in the face of climate change—to illustrate the problems that arise when legislators rely on a unitary vision of property, especially as technological advances stretch the workability of existing legal frameworks. One of the article’s strengths is the way that it relies on these varied examples to show how the law already views core and edges differently, and the problems that arise when relying on strict boundary demarcations between public and private land.
The authors begin this part of the paper by examining the need to replace lead pipes in residential areas. Here, they point to the problems that arise in deciding which pipes are the responsibility of the private homeowner, which are the responsibility of the government, and where to draw those lines.
In another example, the authors recognize that the unitary vision of property has inspired our current shoreline property ownership regime, which often sets a demarcation between public beach and private upland sand.
Further, the law establishes clear rules and different outcomes for gradual versus sudden changes in land, and additions versus subtractions to land. The problem with this approach, according to the article, is that shorelines are not constant; they are malleable and will continue to move over time. Specifically, oceans are rising because of climate change. This means current shoreline changes generally take the form of a decrease in dry sand, which results in beachfront property owners losing property.
Shoked and Dana suggest that if courts used an edges approach to considering public and private beach rights, they would not need to try to characterize shorefront land as solely public or solely private. The authors suggest that courts already do this in part through an application of the public trust doctrine, which recognizes that there are both public and private entitlements to beaches.
The article concludes by extending the idea of property edges from real property to intellectual property. Here, the authors focus on music sampling and the idea that copyright law distinguishes the core, or signature essence, of a work of art from its edges.
In sum, the article’s success lies in its introduction of a new term for a familiar concept: the “edges” of property. By defining this space—where both private and public interests exist—Shoked and Dana allow us to understand court decisions and statutes that stray from the formal boundary approach to property law, and to recognize the problems that can arise from “boundary fetishism.”
Maureen E. Brady, Property and Projection
, 133 Harv. L. Rev. __
(forthcoming 2020), available at SSRN
Suppose an unfriendly neighbor, professional rival, disgruntled employee, or random malcontent decides to send a message—from you. Said enemy projects words or images onto your real estate—the facade of your home or office building, say—turning your private property into an “unwitting billboard” showcasing an unwanted message. The affront is palpable, but a viable cause of action has proved as hard to nail down as the light beams themselves. Claims based on these fact patterns have so far foundered: courts find these projected intrusions too incorporeal to count as trespass, yet too fleeting and harmless to count as nuisance.
In Property and Projection, Maureen Brady surveys this interesting terrain and convincingly argues that such targeted acts of “communicative appropriation” should be actionable. This result seems so well supported that it initially seems surprising that courts have yet to reach it. In fact, projected speech of the sort Brady examines turns out to be an intriguing entry point into the nature and evolution of property entitlements, as well as a fascinating legal puzzle in its own right. There’s a great deal to unpack and enjoy in the piece, including the detailed history of old-fashioned light-related cases that Brady provides. I will focus in this short jot on what I found most compelling about Brady’s argument: the idea that these projections conscript property into the role of an unwilling speaker whose messages may be attributed in error to the owner.
Brady identifies the nub of the wrong caused by projected messages as a form of commandeering—one that is unusually destructive of the owner’s dignity, autonomy, and control. Because onlookers are likely to associate the property with its owner, the speech will seem to come from that owner rather than from the third party speaker. Property, in short, is turned into a puppet. As Brady notes, similar risks of misattribution animate other legal protections, including the right of publicity. Commandeering a person’s property for expressive ends, just like appropriating her identity, causes her to lose control over her self-presentation.
The First Amendment adds a wrinkle here, as it does for the right of publicity, but Brady rightly resists the notion that it immunizes projective commandeering. Although there are some settings in which free speech rights require private property interests to yield, including public fora, these contexts are rather limited; none involves an appropriation of property that generates the misimpression that the owner herself is speaking. And, as Brady emphasizes, being forced to speak is as much an imposition on free speech as is forced silence. To be sure, a private party and not the government is ventriloquizing the owner’s real estate. But normative concerns surrounding forced speech undermine any claim that the law must enable that compulsion.
Notice, for instance, that A’s right to free speech does not include the right to hold a gun to B’s head and force B to recite A’s preferred philosophical positions, nor the right to plaster bumper stickers touting A’s favorite political candidates all over B’s car. These are prime examples of the way in which many liberties that we take for granted, such as not being forced by another private actor to say things we do not believe, are not expressly delineated but rather broadly “shielded” by nonspecific rights to bodily integrity and security in property. This lack of specification is central to the appeal of property’s exclusion-based architecture. You need not possess a specific right to keep an interloper from scrawling limericks on your dining room wall, for instance, because you can keep uninvited people off your property altogether, whatever their aims may be. But exclusion is only a proxy for harm prevention, and one that engages poorly with projection.
In considering how to formulate protection against projection, Brady wisely recognizes the need to distinguish between purposeful projections of light displays and incidental projections of light, such as a dog owner accidentally casting light on her neighbor’s home as she searches for her pet (a scenario that I can attest is far from hypothetical). Trespass law would be unable to distinguish the cases, Brady explains, because it employs a “strict binary”—either the light beam is an intruder or it is not.
Brady suggests instead that tweaks to nuisance law could offer a better path to liability, one that could distinguish the incidental from the purposeful, and the harmful from the harmless—especially once the indignity of misattribution and commandeering is recognized. One way of threading the needle would be to ask whether the owner’s beamed-upon property is instrumentalto the objectives of the light-beamer, rather than merely incidentally impacted as the beamer pursues unrelated goals. Scholars have suggested asking analogous questions in takings and tort contexts. The intuition in these analyses is that making affirmative use of someone else’s property to achieve one’s own ends is qualitatively different from harming someone’s property as a byproduct of one’s other pursuits. In place of a conflict between two legitimate goals—where weighing, balancing, and the availability of self-help all seem relevant—there is just the question of whether one party should be able to turn something belonging to someone else into a tool for achieving her own ends.
There are many other questions and considerations that the projection cases implicate, and Brady’s piece does a splendid job of addressing them. It is notable, for example, that most of the cases litigated so far involve labor disputes. In that context and others, distributive questions interact with realities of property distribution and with questions about how best to ensure that the relevant stakeholders have effective opportunities to speak. The issues are difficult and intricate, but for anyone wishing to navigate them, Brady’s analysis lights the way.