Jul 2, 2024 P. T. Babie
In a previous JOT, I wrote that private property is deeply ingrained not only in our liberal world, but also in our DNA. In Innate Property: The Danger of Incongruency Between Law and the Biological and Behavioral Roots of Property and Possessiveness, Aaron Schwabach provides important evidence of the latter fact, arguing that one finds those biological-behavioral origins in the “innate urge to exclude.” (P. 190.)
While the right to exclude is always found in law, this must be distinguished from our “proprietary instinct: The[]…innate urge to say ‘this thing is mine, and no one can use it unless I let them.’” (P. 191.) Schwabach calls this, simply, “innate property.” (P. 190.)
Schwabach deploys innate property to make sense of disagreements over property, especially those concerning limitations placed upon the exercise of the power conferred by property which “are almost always poorly received by…property owners.” (P. 191.) Schwabach argues that such disputes arise as a product of greater or lesser congruence between innate property and the formal system of property. At one end of a “continuum of congruence” exists greater correspondence between innate urge and law. The disagreement that arises when there is relatively more congruence involves the actual allocation of goods and resources. In contrast, when there is less congruence, the disagreement that arises tends to concern the underlying legal regime that produces unequal allocations.
Real and personal property exhibit the greatest congruence. With real property, the meaning of exclusion is obvious to both the person and to the law. For example, one can erect a fence around land, either notionally or with an actual fence, and create a barrier to those wishing to enter the land. Similarly, with personal property, the boundaries are almost as clear—one requires permission to use the things of another.
Yet, notwithstanding substantial congruence, our innate urge “exists independently from, and even in the absence of, any rights arising from the law” or, at the very least “the behavior patterns formed and socially reinforced over thousands of years have either supplemented or supplanted that instinct.” (Pp. 192, 195.) In the case of real property, a succinct statement summarises our attitude: that which “I occupy and use is mine, and my family’s.” (P. 194.) Similarly, with personal property, consider items in a shopping cart prior to purchase. Legally, they are still the property of the supermarket; however, those who place items in the shopping cart with the intent to purchase view the items as their own. We find, then, in the case of both chattels and of land, that disagreements arise over the allocation of those resources rather than the legal regime producing that distribution.
Intellectual property—principally encompassing control of the right to make copies of a work or mark, or to manufacture or make use of one’s invention—displays a clear, and uniquely human, behavioral source: “the expression of an idea belongs, in some way, to the person expressing it.” (P. 196.) That would be unproblematic until “most people live in a world of owned content”, as we do. (P. 196.)
Those who own content in such a world tend to establish their own use rules which bear only minimal correspondence to existing copyright law. Inequity in protection that arises as a consequence of limited correspondence is “exacerbated by the fact that the tellers of stories based on proprietary characters are disproportionately likely to be women, nonbinary, trans, genderqueer, or otherwise disempowered by traditional structures of intellectual property ownership.” (P. 197.)
Unlike the case of chattels and land, where differences are economic, “the inequalities in the distribution of intellectual property…are fundamentally legal: that is, they result from law’s recognition of certain forms of intellectual property to the exclusion of others.” (P. 198.)
Limited recognition of property in person and reputation amplifies inequity; liberal law accords less ownership in our own bodies than it does to chattels, land, or ideas. There may, of course, be good reasons for prohibiting ownership in our own body: “It prevents the poor from being transformed into reservoirs of spare parts for the rich by the inequities of an untrammeled market-based economy in conditions of high economic inequality.”
More often, though, “the general reluctance to recognize the body as property leads to absurd and tragic results in some cases, when patients whose genomes have made them valuable to medical researchers are unable to profit from the results of that research.” (P. 200.) Further examples include: when, as in Dobbs v. Jackson Women’s Health Organization, the law “den[ies] basic bodily autonomy to [women]”; or when the refusal to provide proprietary protection to reputation means that “[o]nly the famous…are protected.” (P. 202.)
What Schwabach reveals in this penetrating piece we might also call the behavioral trap: try as we might, the formal law of property can never fully escape the innate urge to exclude. And this analysis carries deep significance for law reform. If we seek the modification of private property—either: (1) to reinforce its justification and so public acceptance, or (2) to implement a more egalitarian allocation of power over goods and resources, if not of goods and resources themselves, we need to know how people will react to such changes.
If people push back against the formal content and structure of property, reform will be difficult, if not impossible, to sustain. We need to know why people might push back before we can embark on a project of reform.
Schwabach shows us that people push back against reform because they act from within a behavioral trap set by innate property. People push back, simply, because lawmakers fail to understand and account for the continuum of congruence.
As Schwabach writes “behavior…shapes property law” and, as such, “[w]hile economic injustice and maldistribution of…wealth…are severe problems causing widespread suffering, they come about not from a failure of law to incorporate its behavioral roots, but from the hierarchical nature of human societies and the natural human tendency to abuse power for self-enrichment.” This can result, especially where there is limited congruence, in law “representing [only] the interest[s] that those at the top of the pyramid have in controlling the bodies and selves of those less powerful.” (P. 203.)
Cite as: P. T. Babie,
Innate Property—A Behavioral Trap, JOTWELL
(July 2, 2024) (reviewing Aaron Schwabach,
Innate Property: The Danger of Incongruency Between Law and the Biological and Behavioral Roots of Property and Possessiveness, 2022
Cardozo L. Rev. De-Novo 190),
https://property.jotwell.com/innate-property-a-behavioral-trap/.
Jun 4, 2024 Shelley Ross Saxer
In her important new article, Soil Governance and Private Property, Professor Sarah Fox’s creative writing style captures the importance of soil by referencing the romantic aspects of trees and their connection to people, other trees, and a multitude of living beings including animals, birds, insects, worms, bacteria, and other microorganisms. Professor Fox suggests that local governments approach land-use planning with a goal of balancing soil health and private property ownership in a way that reflects the myriad of interconnections involved in managing and promoting soil health as a common resource.
Her selection of the story of trees to explain the connections between private property uses and environmental impacts on soil is brilliant, compelling, and makes a significant contribution to property, land use, and environmental law. Soil is an important natural resource that has received very little attention in legal scholarship. Legal frameworks have failed to address soil health at all levels of government, perhaps because “we take it for granted” or because it is not as exciting as other natural resources. In her article, Professor Fox identifies avenues of inquiry worthy of intellectual exploration with the goal of shifting the law to recognize soil as a common resource and protect soil health in the face of impacts such as erosion, biodiversity loss, and declining agricultural productivity.
Professor Fox proposes an alternative to viewing soil as private land. She asks that we view soil as a common resource that intersects and impacts individual private parcels. Should the law treat soil as both a resource and property in order to account for the interconnections that can protect soil health? Professor Fox challenges legal scholars, political actors, and lawyers to: [1] wrestle with the impacts of private actions on soil health and, [2] explore the use of government incentives and controls to preserve soil by managing coordination across property lines to avoid a “Tragedy of the Commons.”
The existing status of soil management and the diverse legal frameworks contribute to the soil health crisis in the United States. The fragmented legal governance system from the federal laws of CERCLA, RCRA, CWA, SMCRA, NEPA, and EIS, to state and local government regulations, mainly focuses on controlling the soil health of individual parcels of land. While we have agricultural statutes and agencies protecting soil resources at the federal level, these statutes and regulations do not mandate specific private actions to protect soil and instead offer only information-gathering programs. State and local governments heavily regulate soil management on individual land parcels, but do not take into consideration the interconnections among and between the parcels.
Zoning law, however, does seek to regulate the relationship between individual parcels and the community as a whole through comprehensive planning. This system of local regulation may prove to be effective in zoning for soil health at the local level. In addition, the Standard State Soil Conservation Districts Law (SWCD) authorizes states to create local soil conservation districts to address soil erosion. While these local and state regulatory frameworks acknowledge the relationship between private land use and soil health, they are underutilized. Local land use authorities are perhaps the best poised to take the lead in advancing soil governance to protect and manage soil as a common resource. State and local governments could experiment with different frameworks to tailor soil governance to local conditions. However, state and federal governments must also be actively involved in funding, information sharing, and guidance to help local governments attain their governance potential.
Soil is valuable to human existence through the many benefits it provides such as biomass, water filtering, biological habitats, vegetation growth, and capturing carbon. Its connection with real property ownership, and specifically with private ownership, complicates soil governance, as “[t]here is no dividing line between soil as a resource and soil as property.” (P. 34). Similar to air and water resources, soil impacts extend beyond private ownership boundaries and need to be managed, especially because agricultural uses and the cumulative impacts from smaller individual uses affect the broader ecosystem. Professor Fox’s article engages a fascinating topic and one that has mostly escaped notice over the years.
May 6, 2024 Gregory M. Stein
Many of America’s large coastal cities are prospering. Large, industrial rust-belt cities have struggled in recent decades, but some have begun to recover, making up for lost factories and shrinking populations with high-tech jobs that attract younger workers. But what about small to midsize industrial cities – places like Youngstown, Dayton, Trenton, and Harrisburg?
In their new report, Greening America’s Smaller Legacy Cities, Joseph Schilling, Catherine Tumber, and Gabi Velasco make the case that an equitable and sustainable low-carbon future is essential for smaller and midsize legacy cities to thrive. The path to this type of “green regeneration,” they suggest, requires a focus on three areas: (1) climate resilience; (2) environmental justice and equity; and (3) green economic development.
Cities are big polluters. Small (30,000-75,000 people) and midsize (up to 300,000 people) legacy cities lack the resources to address the pollution challenge and often have more pressing priorities to worry about. These cities tend to be older, and, while they are often more walkable and less dependent on automobiles, they frequently contain contaminated industrial property and typically lack the staff to focus on environmental issues.
Fortunately, government and philanthropic funding is available for smaller legacy cities that wish to tackle their environmental problems. These locales also have legal mechanisms at their disposal, particularly the ability to use land use policy productively.
When the authors turn their focus to legal levers, they observe, “Comprehensive land use planning, development processes, and zoning codes provide the policy foundation for smaller legacy cities to address the intersections of climate resilience, environmental justice and equity, and green economic development.” (P. 23.)
More specifically, the legal tools that cities can employ include climate action plans, climate equity plans, local resilience plans, green development codes, and equity zoning, each of which the authors explain and examine. These legacy cities can also increase their emphasis on transit-oriented development.
Many of these older cities retain the basic infrastructure that successful green cities need. Some have well-established transit systems. Many have older buildings that are still structurally sound, though often in need of significant rehabilitation. Small parks are also prevalent in these older cities. However, they need to fend off other urban problems that older cities face, such as the presence of heat islands in neighborhoods that formerly were redlined.
One concern that the increasing use of these methods may raise is that cities will gentrify, forcing out incumbent residents who can no longer afford to remain in their old neighborhoods. Given how challenged some of these smaller legacy cities are, however, the authors view this as only a modest concern, citing Buffalo’s success as an example.
Midway through their report, the authors address the question of how to begin the process of greening a smaller legacy city. In order to obtain access to outside funding, these jurisdictions will need to hire grant writers and sustainability coordinators to help increase their access. Unlike larger legacy cities, these smaller counterparts may not possess the necessary skills within their existing staffs.
In addition, these communities will need to determine what their baseline is so they can harness their existing strengths. These smaller cities need to engage the community in ways that ensure equity. They must encourage the development of new small businesses. And they can look to sister cities that have progressed further along with the greening process.
Moreover, given that these smaller cities lack the resources of larger communities, “[l]ocal governments cannot always directly access policy levers at the right scale for mitigating and adapting to climate change, so smaller legacy cities must take advantage of strategic collaborations and practical opportunities to prepare for historic transitions.” (P. 54.) They must customize their approach, working with local partners on initiatives that meet local needs. In short, they are too small and under-resourced to “go it alone” and must collaborate with funders and other partners.
Allies, such as the federal government and state governments, can help. The authors use two brief case studies from New York and Massachusetts as illustrations of successful collaborations of this type.
In sum, “Smaller legacy cities can be innovators in green regeneration, drawing on their regional land and water assets, surplus infrastructure, culture, and history.” (P. 64.) But for smaller cities to accomplish these goals, they must pursue “a new generation of policies and resources that respond to their socioeconomic and capacity constraints and that center equity and justice alongside economic development and sustainability.” (P. 64.)
Unlike traditional law review articles, the report is laid out in a visually appealing fashion, complete with color photos, maps, charts, graphs, tables, and sidebars. The report also makes frequent use of examples from smaller legacy cities that have succeeded in accomplishing some of these goals.
This report provides a useful analysis of a problem that has not received as much attention as it merits, given the more frequent focus by academics and the media on larger cities. But these less populous cities can have an enormous impact on the greening of America, as demonstrated by the growing success some of them have achieved.
While these smaller legacy cities can take some lessons from larger communities, other experiences are not as readily transferrable. Smaller cities can become leaders in the greening movement, attracting industry, aiding their residents, improving the local quality of life, and enhancing equity among their citizens.
Apr 2, 2024 Shelby D. Green
Chief Justice John Marshall’s opinion in Johnson v. M’Intosh is often taken as the source of some foundational principles in property law. Indeed, it is often the first case, alternating with the fox and hunter, appearing in many textbooks.
The essential points of the case are that discovery is a basis for acquiring property and that Indian tribes held only the right of occupancy of their lands, which could be extinguished at any time at the leisure of the federal government, but in no case did they hold the power to alienate any interest. Professor Sheila Simon, in Johnson v. M’Intosh: 200 Years of Racism that Runs with the Land, offers some compelling reasons why we should not celebrate either the case or Marshall.
The ruling purported to validate, on principled grounds, the wholesale taking of native lands by Europeans who landed on what was described as uninhabited lands, terra nullius (at least not inhabited or dominated in the European sense). Some teachers find value in Marshall’s rationales (political rules overrule natural law, security of title is paramount), while others castigate the ruling as dishonest and driven fundamentally by racism toward Native Americans—described by Marshall as “savage,” heathen, and in need of the supervision and benevolence of Christian Europeans.
Prof. Simon convincingly calls into question the precedential value of the case. After physically locating the parcels at issue in the case, a place which happened to be near her law school, she shows that even as there was some geographical overlap in the parcels claimed between Johnson (the earlier grantee from the native tribes) and M’Intosh (the later grantee from the federal government), there was in truth no case or controversy as would give the court jurisdiction.
In fact, the whole case was contrived. Johnson failed in achieving confirmation of title from state legislatures. With the intervention of the Trade & Non-Intercourse Act in 1790, which prohibited the purchase of native lands by private parties, Johnson sought a ruling from the courts—theoretically based on the recognition of the Natives as owners and on the first in time, first in right principle. Johnson selected the venue for the case, and the defendant, and even tried to select the trial judge.
The property dispute in the concocted ejectment action was entirely fictional—the original parties to the suit being denominated as “Thomas Troublesome” and “Simon Peaceable.” The case was submitted on agreed facts and the trial court rendered judgment without any reasoning. Alas, the decision was stunning because of Marshall’s crafting of the rules and creative selection of facts to void Johnson’s title and affirm the political hegemony of the federal government over the Natives.
Prof. Simon challenges Marshall’s reliance on international law, since he did not cite any rules or principles, but referenced only the practice of English conquerors to assimilate the conquered at the time.
Then, she explains how Marshall’s discussion of why the Natives could not be regarded as inhabitants in possession of the land, rested on incomplete facts about what they did on the land. He saw them only as nomadic hunters and gatherers, that the land remained in a state of nature, open to discovery by enlightened Europeans. But there was much evidence at the time that revealed the Natives were much like the Europeans in using the land—for living and for farming.
Even as the opinion was a broad ruling, affecting parties other than those in the litigation, Prof. Simon points out that no one spoke for the Natives. However, her treatment of this issue may reveal a degree of naivete. She seems to believe that if the Natives had somehow intervened or there had been amicus briefs supporting their interests, giving the Court the opportunity to hear the truth about them, the outcome would have been different. Given the evident biases toward them and the willingness to adopt the narratives from a one-sided record, it is highly doubtful that Marshall would have ruled differently and declared the Natives to be owners of their land. It was just too late and too much was at stake for the government.
Prof. Simon gets it right when she says the value of the land was weighed differently for Europeans than for Natives; the Court being animated by different cultural attitudes about dealing in and with land. The Natives had lost their first rights to the land because they had not used it up. The imbalance served to justify centuries of further deprivations of land and culture, the most infamous being the Trail of Tears—the forced removal of the Cherokee from their native eastern lands to culturally foreign environs in the west.
So, what does Prof. Simon want us to see from this contrived and counterfeit litigation that has proven so woeful for an independent people? She thinks our senses should be heightened, our antenna raised to false propositions. This seems the most we can imagine.
Even as she states that former President Obama joined the International Convention of Rights of Indigenous Peoples in 2010, there is little hope of any measures to rethink the propositions from Johnson v. M’Intosh. But, as law teachers, we may have a duty to expose the case for what it was and to reveal the consequences of flawed and disingenuous litigation.
Mar 6, 2024 Andrea Boyack
John Infranca’s recent article, Singling Out Single-Family Zoning, recounts and critiques the foundational legal arguments underlying the advent and dominance of single-family zoning. His insightful framing of this historical perspective is especially valuable in the context of today’s debates about the impacts and future of single-family zoning.
A century ago, localities, land use professionals, and lawyers innovated zoning systems that created protected enclaves for single-family detached homes, isolating these residences from multifamily residential, commercial, and industrial uses. In the 1920s, courts considered and ultimately upheld such land use schemes in opinions that include the seminal 1926 Supreme Court decision of Village of Euclid v. Ambler Realty. Once U.S. courts generally accepted that single-family zoning was a valid exercise of a municipality’s police power, this type of zoning proliferated throughout the country, becoming the unique and defining feature of American land use. But the ubiquity of single-family zoning in the United States obscures its legally questionable foundation.
In the early 20th century, the amorphous, yet compelling, ethos of the “American Dream” was harnessed to expand municipal police power and limit private property rights. Political consensus on the value of promoting homeownership led to laws and programs spurring suburban development. Government policies–from federal mortgage insurance to local land use planning–worked together to create what were purportedly ideal “family” communities, but they resulted in neighborhoods of detached homes populated mostly by upper/middle-class, white families.
Long-justified as a way to promote “public health, safety, and morals,” single-family districting exacerbates residential segregation by race and class, contributes to sprawl and environmental harms, cements American car-dependency, and drives up housing prices. How the government’s police power evolved from a legislative tool to ensure public health, safety, and welfare into the legislative power to create these exclusive neighborhoods is a compelling, cautionary tale.
Using the police power to exclude non-conforming structures (and people) from a neighborhood was a dramatic departure from prior land use applications focused on public health and safety. Infranca traces the innovation of exclusionary zoning generally and of single-family residential zoning specifically, subtly moving from a foundational power to proscribe nuisances to the virtually limitless power to prescribe aesthetics and exclusion.
For example, limiting the size and location of buildings on lots may have originally been grounded in concerns regarding fire because smaller, separated structures reduced the risk of destructive conflagration. These early land use regulations effectively limited multifamily homes, however, and within just a few years, zoning’s implicit hostility to multifamily housing became explicit. Legislatures and courts cast apartment houses as the villain in residential community development. Apartment buildings were “parasites” consuming suburban green space, cutting off light and air, and depressing property values. Excluding “incompatible uses” meant keeping commercial, multifamily, and even two- or three-family homes away from single-family neighborhoods. One early zoning advocate proclaimed that this novel, broad use of police power was “more drastic than any other form of regulation” this country had ever known (P. 686).
Even if creating single-family-only neighborhoods benefitted their residents (which is debatable–see, e.g., Gregory Shill, Should Law Subsidize Driving), these benefits did not accrue to citizens living outside these neighborhoods. Infranca explains that early defenders of single-family zoning attempted to argue to the contrary, that there were broad public benefits from single-family zoning.
By framing homeownership in a single-family neighborhood as an aspirational ideal and by asserting that all citizens benefit from “spacious lawns and plenty of shrubs and trees” (P. 691), advocates claimed that privately owned single-family neighborhoods benefit the public.
The disparate treatment of residents in certain neighborhoods was also explained away by characterizing single-family districting as an economical reflection of existing development patterns. Finally, clustering multifamily homes (for poorer households) in more commercial areas, away from richer households’ detached homes, was framed as an efficient way to provide public services (transportation and other amenities).
Infranca rips the public benefit veneer off of these hollow justifications, concluding that they “have not stood the test of time” and that “[s]ingle-family districts continue to confer whatever benefits they provide only upon a small subset of the population” (P. 722). Although homeowners and their local municipalities may wish to exclude multi-family housing from neighborhoods as a way to prop up their property values, single family districts create more public harms than public good. They “exacerbate racial and economic segregation and perpetuate wealth disparities” (P. 661) and are among the ways that the law penalizes renting relative to homeownership. In short, single-family zoning does not promote the public welfare and is therefore an unjustified use of the police power.
Historically, however, courts refused to look too closely at the asserted public benefits from single-family zoning when it was included as part of a “comprehensive” land use plan. Infranca explains that courts have generally deferred to land use planning decisions based on the presumption that a comprehensive land use plan carefully and fairly balances various public needs and interests.
The judicial presumption of and deference to zoning comprehensiveness likely “played the most important role in efforts to establish the validity of single-family districts” (P. 696). Judicial deference was based on the idea that since “a comprehensive system of districting is essential to the health and general welfare,” then it must be true that “every specific regulation that is an essential part of such comprehensive system is justified under the police power” (P. 696).
Infranca unravels this house-of-cards reasoning. He queries whether a comprehensive approach truly is essential to health and welfare and whether the benefit of a comprehensive approach generally is sufficient to justify every component thereof. Founded on this logical fallacy, a court using comprehensiveness to justify single-family districting “assumes quite a bit” (P. 697).
Ironically, the appeal to comprehensiveness to justify zoning decisions not only masks complete deference to legislators, but also has been used to justify upholding zoning schemes that were not, in fact, even based on comprehensive planning. Presuming that zoning is always the product of a scientific process and is therefore immune from judicial oversight ignores not only the lack of data-driven decision-making in many instances, but also the fact that in many ways, zoning is more of an art (driven by vision) than a science (driven by data).
Infranca builds on his exploration of single-family zoning’s historical foundations to suggest three strategies to de-legitimize single-family zoning. First, because zoning’s presumptive validity is rooted in its comprehensiveness, its lack of dynamism and poor balance of various community needs could undercut its legitimacy. Second, single-family neighborhoods’ lack of accessibility–both in terms of infrastructure and affordability–can demonstrate the absence of a public benefit from this mode of zoning. Finally, Euclidian zoning implicitly presumes regional coordination as prerequisite for its police power legitimacy, suggesting that local zoning power is constrained.
The hundred years of solitude that has walled off single-family neighborhoods in the United States is starting to crack. An increased emphasis on adverse impacts of single-family zoning (and exclusive zoning in general) has already led several states and municipalities to jettison this “American obsession” (P. 666).
But our common law precedent-based legal system looks backwards to move forwards. Exploring and critiquing yesterday’s assumptions that established single-family zoning as a legitimate use of police power can provide the key to reconsidering its validity for tomorrow.
Feb 1, 2024 Yael Lifshitz
In When Nature’s Rights Go Wrong, Professors Mauricio Guim and Michael Livermore offer much needed analytical clarity to a significant, yet still understudied, field: rights of nature. After centuries of adopting a predominantly human-centric perspective, a more biocentric outlook is now coming to the fore.
Much like property rights, nature’s rights award control over clusters of natural resources. However, unlike traditional property rights, in the case of nature’s rights—as the name suggests—the right holders are non-human. What’s more, they tend to attach to a broader and more general natural entity, such as an ecosystem or a class of species, rather than a more crisply defined right-holder.
This carries profound implications for nature’s rights function and ability to achieve their environmental or climate-related goals. Analyzing nature’s rights is therefore especially important at present, as mounting evidence suggests our current legal mechanisms are insufficient to tackle the climate crisis.
The significance for property scholars is two-fold: first, Guim and Livermore underscore important conceptual difficulties that arise with regards to nature’s rights. The same challenges may arise with regards to property rights. After all, both utilize a similar mechanism – awarding right holders with control over chunks of natural resources. Property scholars should therefore pay close attention to the rights of nature discourse.
Second, this analysis also enhances the property-climate connection and builds further on the growing understanding that the two fields can and must work together to benefit from mutual synergies.
Guim and Livermore make three key arguments, which are conceptual, empirical and normative. First, the conceptual analysis shines a light on the challenges associated with defining the holders of nature’s rights. These holders of rights of nature will often be complex aggregates, like ecosystems, landscapes or species.
Defining these aggregates (in a way that is sufficiently clear to work with as a legal right holder), in short, is difficult. Nature is, by its nature, continuous and interconnected. Any attempt to slice it into bright-lined packages, is bound to run into analytical difficulties. In essence this is a problem for any attempt to draw a bright-line distinction through a continuous variable or resource.
The same is true for property rights. In fact, property rights have been doing just that for centuries: think of a property right one could have in a meadow, a river, or a wooded area. All of these likewise impose crisp lines on what is otherwise a continuous and interconnected resource. What is novel with regards to rights of nature is that the right holder is non-human. What’s more, the right holder could (and often is) also the subject of the right as well.
Put differently, there is a fundamental definitional challenge: how to draw crisp lines around messy clusters. Property rights constantly face this challenge when it comes to defining the “thing” at the heart of property, the subject matter of the right.
Nature’s rights, however, face a double definitional challenge – both with regards to defining the subject matter of the right and with regards to defining the right holder. This double definitional standard complicates things significantly. Adding to the complexity, beyond the physical and biological interconnectedness, there are also moral, social, political and economic considerations intertwined.
There is a further conceptual challenge: how can we offer an analytically coherent framework for evaluating the tradeoffs involved in defining and enforcing rights of nature? The basic problem, as Guim and Livermore underscore, is that making comparisons across entities adds another layer of complexity to the (already complex) analysis of rights.
Why? Because one of the dominant ways of analyzing the policy tradeoffs in the US (whether it be protecting rights or enacting legislation) involves comparing social welfare functions. That kind of analysis, which is inherently human-based, doesn’t work when trying to evaluate the welfare of non-human entities such as species, ecosystems and landscapes. Without a coherent and consistent framework for evaluating the tradeoffs involved, argue Guim and Livermore, decision-makers don’t have solid criteria through which they can resolve disputes that arise with regards to the rights.
The second contribution of the article is empirical. Using the experience gained with nature’s rights in Ecuador as a case study, Guim and Livermore show that in the few cases where rights of nature have been applied, the results have been analytically inconsistent.
The third and final contribution of the article is normative. To achieve the potential of nature’s rights, Guim and Livermore propose to tweak the way nature’s rights are framed: rather than defining the right-holder as an amorphous, fuzzy entity such an ecosystem, to instead award rights to people and organizations who seek to advance a healthy relationship with the environment. First, because doing so will mitigate the conceptual complexities that currently exist in the definition of nature’s rights. Second, because a comparative constitutional analysis suggests that awarding rights to people who seek to promote broader policy goals is more likely to achieve the desired results. This suggestion will likely be of interest to trust law scholars, who may find echoes of the relationship between a trustee and a beneficiary in this context.
Rights in nature, and all its glorious resources and species, have a significant role to play in the protection of the environment and in achieving our climate goals. Guim and Livermoe’s thoughtful piece invites both scholars and policymakers to rethink the ways in which rights in and of nature can be crafted and utilized, to better achieve these crucial goals.
Jan 4, 2024 Carol Necole Brown
Danielle Stokes,
From Redlining to Greenlining, 71
UCLA L. Rev. __ (forthcoming, 2024) available at
SSRN (June 8, 2023).
I like circles, don’t ask me why. Maybe I like them because they make me think about how a few inches, feet, or yards can make a world of difference. If you enclose me in a circle, you may destine me for a lifetime (even generations) of disinvestment, lost opportunity, and lost hope. These are the vestiges of redlining, a historic process in which the federal government participated in racially segregated housing beginning in the 1930s by refusing to insure home mortgages in and near Black neighborhoods.
As I prepared to teach a housing law course this summer in Cambridge, England, I thought a lot about circles and in my research, I discovered Danielle Stokes’s recent article, From Redlining to Greenlining. The title of her article harkens to the old lending maps of the 1930s — the few inches on a map between green and red, blocks or miles on the ground, and untold lost opportunities or thwarted dreams for those enclosed in the thin red circle.
A red circle drawn around a neighborhood on a lender’s map signaled high lending risk and therefore an undesirable neighborhood. Place me on the outside of this thin red circle and my economic prospects (and my family’s prospects potentially for generations) are much improved. In fact, on these same color-coded maps, areas in green signified the lowest level of lending risk and were highly recommended for lending. They were also White, racially homogenous neighborhoods.
Stokes’ thesis is that discriminatory land use policies helped to marginalize minority communities and these same land use planning mechanisms can be used to help remediate the effects of historic discrimination. She introduces the concept of “greenlining” for the first time into the land use and environmental context as a descriptor for “a comprehensive planning mechanism that integrates sustainability principles into land use decisions, using development standards and other incentives to ameliorate longstanding injustices.”
Stokes does not seek to reinvent the wheel; nor does she suggest that any one solution can redress the effects of housing discrimination and inequity. What she offers is one strategy that uses existing land use planning mechanisms, not to exclude, but instead to comprehensively integrate sustainability principles into development standards and land use decision-making. And of course, her goal is to ameliorate some of the existing housing injustices that are the results of historic discriminatory land use, environmental, and residential lending policies.
Land use law is housing law and environmental law as well. Although land use planning and control is very local in its workings, its impacts reverberate beyond the local level to the regional, state, and national levels. Stokes has these broad impacts in mind as she articulates a proposal for a holistic approach to redressing environmental and land use injustices, from climate change to economic disinvestment.
Greenlining is malleable and provides a vehicle for coordinating land use regulation and environmental law while simultaneously using equitable principles to prioritize resource allocation and infrastructure investments in communities experiencing the greatest marginalization and harm. In this way, greenlining has the potential to bridge independent policy and regulatory areas and help them function in a more coherent way (e.g. land use planning as locally regulated, environmental law regulated largely by state and federal governments).
Stokes is careful not to overpromise (an increasingly rare attribute). She suggests that greenlining has the potential to provide a sound “structural framework for governing bodies to identify the geographic areas that are eligible for funding and incorporate green initiatives when approving new development.” She describes how greenlining can also be helpful in developing standards and processes that can be leveraged in the comprehensive planning process to address climate change and sustainable land use.
Simultaneously, Stokes cautions that greenlining is not a panacea and is not an appropriate redress for every negative climate impact. Her judiciousness is refreshing, and it is an acknowledgment of the complexity and sophistication of the problems she is tackling.
For the careful reader, Stokes offers greenlining as a conceptual framework for converging land use and environmental law to not only address historic policies and their lingering negative effects but to also move forward with new development in a transformative way. New development is inevitable and even welcomed.
Stokes offers greenlining as a way of achieving development that is more inclusive of all stakeholders and that employs development standards that prioritize sustainability principles and practices. Equity, sustainability, and an opportunity to offer meaningful remedies for historic land use and environmental injustices are the focus of Stokes’ work. She offers greenlining as a foil for the fall-out from redlining.
Moving from red to green is not easy. Stokes seeks to clear a pathway for those seeking a more equitable future.
Nov 23, 2023 Sarah Schindler
In her important new essay, White Cities, White Schools, Professor Erika Wilson discusses the intersection of property law and education as part of an excellent symposium uniting the two topics, organized by Professors LaToya Baldwin Clark and Tim Mulvaney in the Columbia Law Review.
Wilson’s piece builds on recent law and geography scholarship by focusing on race, exclusion, and school district boundaries—topics that are familiar to those of us who teach land use and local government law but underdiscussed in the literature.
Much of her analysis centers on what she calls “white island districts,” which she defines as “predominantly white and affluent school districts that are situated in the middle of racially and economically diverse metropolitan areas.” (P. 1240.) Wilson’s essay seeks to challenge the dominant narrative, which sees these school districts as a product of individual decisions about where to live, rather than as a product of intentional racial discrimination.
In the essay, Wilson asserts that, just as formerly whites-only municipalities are “places” imbued with racial violence, history, and meaning, so too are the school district boundary lines that mirror those municipal boundaries. She explains that these boundary lines both serve to exclude those who live outside, and recruit those who are attracted to the schools that are created by these boundaries. These functions combine to “entrench the district . . . enabling it to capitalize on its racially exclusionary origins.”
And yet law and policy treat school district boundaries as mere race-neutral geographic spaces, failing to account for this history in determining whether it should be constitutional or normatively acceptable to maintain district boundaries that match the boundaries of formerly all-white cities.
The essay begins by considering how law and norms helped to create white-only suburbs. She notes that these whites-only cities were associated with higher status, and that in addition to zoning, and federal mortgage policies that encouraged and even required the use of racially restrictive covenants, the whiteness of these areas was often enforced with violence, which was justified as a way to protect property values.
And, as Wilson notes, having a reputation as a whites-only city that was enforced by violence “continues to make Black residents wary of locating to these municipalities long after the use of legal and extralegal means to exclude them has ended.” (P. 1234.) Thus, this historic racial violence is tied to the geographic space, as well as to its present conditions. These spaces are thus understood as racialized places, where this history continues to exclude and alienate Black people, while granting access to and making white people feel welcomed or safe.
The essay then considers the case study of Grosse Point, Michigan, which was a “sundown town” in which nonwhite people could not live or remain after dark. Wilson discusses the points-based systems that realtors used to exclude people from purchasing homes in the area, as well as threats and acts of violence.
She also points out that the state and local government failed to act to stop these behaviors. Even today, wealthy Grosse Point is still predominantly white, due both to this history of racial violence, and due to financial barriers and the racial wealth gap.
Here, Wilson turns to the modern-day Grosse Point Public School District, a “white island district” the boundaries of which encompass local governments that excluded nonwhite people (and which are still over 80% white). Indeed, this school district includes suburbs at issue in Milliken v. Bradley, an important case that many of us teach in our State and Local Government classes.
In that case, the Court held that while the city of Detroit had purposefully segregated within its school system, the surrounding suburbs had not engaged in the same type of de jure segregation; thus, the Court would not allow an interdistrict remedy that crossed district lines and affected the suburbs to alleviate the segregation. But, as Wilson points out, 13 of the 53 suburbs involved in that case “had roots as formerly whites-only, sundown municipalities.”
Wilson goes on to explain how even today, the Grosse Point Public School District polices its borders to keep non-residents out of the Grosse Point schools, and how in contrast, the adjacent Detroit public school district is predominantly Black and “suffers from a lack of funding, lack of high-quality and fully certified teachers, and dilapidated facilities.”
Finally, Wilson looks more broadly at the boundaries around school districts, and the reasons and ways that they can be reconfigured. The problem, Wilson points out, is that despite the fact that law and policy cement school district boundary lines, and those boundary lines contain and separate places with racial advantage from those without, our Equal Protection jurisprudence is generally insufficient to address these problems.
Local government literature explains that local control over school district boundaries—and especially parental control—is offered protection under the law. Thus, the laws and policies that protect and reify these school district boundaries effectively protect racial segregation; Equal Protection jurisprudence today views issues of geography and boundaries as results of individual decision-making, rather than state-facilitated race-based exclusion.
Thus, the essay concludes by offering suggestions to change the status quo, including rethinking our Equal Protection jurisprudence, and encouraging states to reconsider their policies pertaining to school district boundary line changes. Wilson’s essay does a great job of bringing together disparate discussions that are happening in property, local government, law and geography, and education law, and is a must-read for anyone interested in these fields as they pertain to racial discrimination.
Oct 20, 2023 Ezra Rosser
It is easy to forget that until recently, states paid bounties on the killing of a whole range of animals. In Property in Wolves, Professor Jack H.L. Whiteley explores the history of such bounties and of the ways such bounties subsidized particular forms of property ownership. His work is both eye-opening and provocative.
Anyone who has lived in rural parts of the mountainous west has witnessed the phenomena of a line of cars pulled onto the shoulder of the road, with excited occupants craning their necks or pulling out cameras to capture the sight of a wild animal walking nearby. Usually such sightings are limited to moose, elk, or bighorn sheep, but occasionally one can see a coyote, bobcat, or even a wolf. Such animals, joined by mountain lions, foxes, lynxes, and jaguars, among others, today are celebrated, painted onto the tail fin of Frontier Airlines’ planes, and often legally protected.
The central insight animating Property in Wolves is that state bounty practices incentivized property owners to engage in particular uses of property. To some, the title may suggest that the article is another contribution into the large literature on animal capture and the “poor reynard” of Pierson v. Post fame. To the contrary, Professor Whiteley’s focus is broader than individual capture.
The article’s lens is trained on state-supported efforts to eradicate wild animals. As Professor Whiteley explains, “[b]eginning in colonial America and ending in the middle of the twentieth century, state legislatures set bounties on wolves and other animals they deemed ‘noxious,’ a category which included most large predatory mammals.” (P. 618.) The rise in environmental awareness changed things starting in the 1970s, as the country moved from hunting to protecting many of these now endangered wild animals.
Focusing on wolves in particular, Professor Whiteley lays out some of the explanations given for the change in attitude towards such animals. (Pp. 630-32.) But even as late as 1970, “twenty states still had laws offering bounties on wolves.” (P. 630.) As Property in Wolves shows, over several centuries, the country engaged in a sustained, state-subsidized, effort to deal with the threat, primarily to domesticated animals, posed by wolves and other wild animals.
State bounty statutes were grounded on the need to protect livestock—sheep and cattle—and, later, wild game, from wolf predation. Readers interested in the details of these programs will appreciate Professor Whiteley’s rich discussion of the ways states responded to the possibility of fraudulent claims by, among other things, cutting off the ears of pelts and requiring disposal of the bodies of animals submitted by hunters for payment. (Pp. 644-49.)
As the article observes, “[b]y creating incentives to extirpate particular wild animals in order to spur livestock raising, [bounty statutes] subsidized livestock over other uses.” (P. 652.) Ranchers not only got the direct advantage of payment of such bounties coming out of the public purse, rather than being a cost borne by affected ranchers, but they also made other, more profitable, uses of the land from which such wild animals were removed. (Pp. 653-57.)
To a considerable extent, the bounty statutes accomplished their goals. In Montana alone, 80,000 bounty payments for wolf carcasses were paid over four decades, and the eastern cougar was entirely killed off. (P. 658.) Agriculture and livestock, aided by these bounties as well as technological improvements such as barbed wire and railroad transportation, spread across the continent, eating away at former forestland. Professor Whiteley tells the story of these bounties in a way that draws the reader in and that shows the heavy roll of the state in “taming” the wilderness.
For property professors, the article’s final section, in which Professor Whiteley ties his presentation of bounty history to Professor Robert Ellickson’s theory of how property rights regimes emerge, is probably the most provocative part. After presenting Professor Ellickson’s account, which emphasizes the importance of group cohesion and the privatization of ownership as risks of ownership diminish, Property in Wolves makes a fairly big claim. “The theory suggests that bounty statutes on predatory animals encouraged not just specific uses of land, but the development of private property in land itself.” (P. 663.)
Even for readers not fully convinced by either the theory or its application to bounty statutes (couldn’t diminished numbers of predators be used to explain the continued prevalence of federal lands in the West rather than providing an explanation for privatization), there is still a lot of value in having to think through how bounty statutes altered land use patterns as the nation expanded. Professor Whiteley does a good job responding to alternative theories regarding the impact of these statutes on property development. More importantly though, the article highlights the difficulty of conceptualizing this history absent such state subsidies for agriculture.
Overall, Property in Wolves tells a fascinating story that forces readers to recognize the myriad ways—including through wilderness bounties—that state policies shape property norms and property formation.
Sep 26, 2023 Serena Williams
Brandon M. Weiss,
Corporate Consolidation of Rental Housing & The Case for National Rent Stabilization, 101
Wash. U. L.R. __ (forthcoming, 2023), available at
SSRN (May 27, 2023).
Professor Brandon Weiss in his article, Corporate Consolidation of Rental Housing & The Case for National Rent Stabilization, posits that the increasing ownership of rental units by corporate landlords will only worsen an uncertain rental market, with more tenants threatened with eviction or living in poor quality units. As one policy option, he argues for federal incentives to promote the passage of rent stabilization laws.
When signing a lease, a tenant may initially believe that a landlord is a landlord – that it does not matter whether the rental unit is owned by an individual or by a corporate entity. The rent must be paid regardless of who is receiving it. However, that perception may not be accurate. Corporate landlords may more often seek to defer maintenance, raise the rent, or evict tenants.
Corporate ownership of rental housing is nothing new, particularly the ownership of large properties. According to Weiss, what is changing is the increasing ownership of single-family home rentals by institutional investors and hedge funds.
While the tenant may believe a landlord is a landlord, Weiss presents evidence that the corporate owner of rental homes is “a different kind of landlord.” The corporate owner has economic incentives and priorities, such as returns to investors, which often lead to cost-saving measures, ultimately resulting in tactics such as deferred maintenance and rent increases.
Weiss highlights another issue – how modern ownership forms are altering the landlord/tenant relationship. For example, the use of LLCs as a form of property ownership can make it difficult for tenants to identify their landlords. Landlords may be able to maintain some degree of anonymity and avoid accountability for their actions that affect tenants individually and the housing market more broadly.
Real estate investment trusts also can make it difficult to hold landlords accountable. With REITs, the rental unit could be owned by numerous investors who will never manage the property themselves.
According to Weiss, the increasing ownership of rental units by corporate landlords, many with rental projects in multiple states and evidence of their adverse actions towards tenants are reasons for federal government intervention. The particular intervention that he argues for is federal incentives for state and local governments to enact rent stabilization laws.
He notes that the federal government has played a role in housing markets through federal laws such as the Fair Housing Act and the Community Reinvestment Act as well as through the statutes and regulations governing subsidized housing. Thus, federal action on rent regulation would not be unprecedented.
Weiss briefly reviews some of the critiques of rent stabilization. Landlords may argue that the state has no right to limit their property rights. States may incur costs when implementing the laws, such as setting up rent assessment boards.
He responds to the critiques and to the discussion of increasing corporate ownership of rental units. Weiss contends that “if reasonable limits on rent increases or evictions deter some prospective new landlords, those measures can serve as a filter to limit entry into a market in which an investor is also a steward of the home of another.” Id. At 21.
The phrase “a steward of the home of another” encapsulates the fundamental concern that Weiss raises in this essay. The individual landlord, the corporate landlord, the investor landlord: all are stewards of the home of another. However, if the increasing number of corporate and investor landlords is leading to greater housing insecurity for tenants, then federal, state, and local governments must respond to this “different kind of landlord,” that is by nature a different kind of steward.
Weiss has presented one policy response by arguing for rent stabilization laws and for federal incentives to state and local governments to enact such laws. However, the first step may be to convince federal, state, and local governments of the challenges to the rental housing market that arise from landowners using modern ownership forms to become landlords.
Cite as: Serena Williams,
A Different Kind of Landlord, JOTWELL
(September 26, 2023) (reviewing Brandon M. Weiss,
Corporate Consolidation of Rental Housing & The Case for National Rent Stabilization, 101
Wash. U. L.R. __ (forthcoming, 2023), available at SSRN (May 27, 2023)),
https://property.jotwell.com/a-different-kind-of-landlord/.
