Aug 31, 2023 Geovanna Medel
Today’s dominant narratives of American advancement present urbanization as progress and rural America as a wasteland. The misconception of rural decay helps rationalize rampant labor and resource exploitation and slows the nation’s ability to respond to national challenges including climate change, housing inequality, and finite natural resources.
In Rural America as a Commons, Ann Eisenberg advocates reconceptualizing rural America as a common resource (“the commons”), belonging to everyone in America, including the urban majority. She adeptly centers key questions at the heart of this contentious relationship: Does rural distress warrant urban intervention and why should urbanites care?
Eisenberg defines the commons broadly as a collectively important resource that is both consumed in some fashion as well as challenged by competing users. This characterization implies that competing users must account for different levels of proximity to, embeddedness in, entitlement to, cost-bearing for, and stewardship of the commons. Thus, collective reliance on rural America’s rich resources and labor force necessitates shared responsibility.
Eisenberg highlights the role of centuries of legal policies in perpetuating the continued misuse and neglect of rural America. She offers property law, agricultural policy, and environmental regulations as examples of “culprit[s]” that facilitate the private sector’s hoarding, abuse, and waste of the commons.
For example, agriculture and agricultural land can be considered a rural amenity with collective import. Agricultural policies directly influence public health and have contributed to obesity, “toxic food culture,” and food insecurity across the entire country. Similarly, the agricultural system yields far-reaching consequences for climate change, the economy, pollution, and water waste. Despite the immeasurable scope of influence, the legal system has permitted private interests to co-opt the agricultural system to pursue private benefit as opposed to the public good.
Rethinking rural America as a commons can promote better governance practices by offering guidance to help redistribute the social and financial burdens of caring for the commons. The commons frame upends the often adversarial characterization of the rural/urban divide, situating these two sides instead as neighbors in the shared project of survival, not as competitors.
Eisenberg interrogates how rural America and its resources affirm both rural significance and urban entitlement. She situates the urban relationship to rural resources as firmly interdependent and simultaneously suffering from collective abuses enabled by law and legal policies.
In doing so, she reassigns the significance of caring for the commons to all who benefit from it. She posits that rural America has collective amenities that transcend regional uses. These amenities, including agriculture, energy, and infrastructure, reveal the symbiotic, yet paradoxically invisible, reliance of the urban on the rural.
Eisenberg illustrates the connectedness between urban and rural America with two other major rural resources: energy production and infrastructure. These resources take on all the more significance in light of the impending climate catastrophe arising from the depletion and disregard of rural amenities. Rural America bears the environmental brunt of extractive industries with minimal local, state, or federal legislative support.
The failure of state or federal actors to protect rural amenities has cosigned their quickly coming devastation, a reality that implicates urban regions just as significantly as rural regions. Unless urbanites mobilize to assist, the commons faces continued destruction.
Eisenberg cautions against the urban majority seeking to govern the rural commons without centering rural needs and their proximity to the amenities being stewarded. She affirms that governance is not a matter of lordship over resources for either side. Rather, she advocates reconciling these competing relationships and interests by affirming urban entitlement to the rural commons. But in the context of this entitlement, importantly, the urban bears responsibility for the rural.
Ultimately, Eisenberg’s work is forward-thinking and necessary. A time is coming when climate change may make middle America a more desirable place to live than coastal cities, which are expected to experience more extreme weather patterns and the consequences of sea level rise. Rural America is situated to be central to renewable energy efforts, which necessitate sound governance. Without robust and competent governing frameworks, private interests will prioritize their financial interests.
Eisenberg’s work reflects a truth too many resist, especially in this era of heightened geographic polarization: urban and rural are more connected than we perceive. While the essay dives into some detail on the legal regulation of rural resources, ultimately, Eisenberg’s message is simple. We must learn to care about each other. We must learn to care for each other. Our collective survival depends on it.
Jul 24, 2023 Nicole Stelle Garnett
Patrick E. Reidy, C.S.C.,
Sacred Easements, __
Va. L. Rev. __ (forthcoming), available at
SSRN (June 26, 2023).
Patrick Reidy’s forthcoming article, Sacred Easements, explores whether private law—and in particular the law of property, rather than public law, might provide a more effective means of protecting indigenous sacred sites. In particular, he explores whether tribes employ the law of servitudes—specifically easements—and common law rules respecting custom to secure access to (and protection) of their sacred sites.
Native Americans’ efforts to employ the traditional public law tools of religious liberty protection—for example, the First Amendment’s Free Exercise Clause, the Religious Freedom Restoration Act, and the Religious Land Use and Institutionalized Persons Act—to shield their sacred sites from desecration usually fall short.
In a sense this is understandable. Usually, the property where the sacred sites are located does not belong to the tribes or tribal members seeking the protection. Indeed, often these sites are on government land. And, as the Supreme Court observed in Lyng v. Northwest Indian Cemetery Protective Association, “The Constitution does not, and courts cannot, offer to reconcile the various competing demands on government, many of them rooted in sincere religious belief.”
In another sense, however, this reality is deeply unjust: After all, the reasons that the tribes do not have an ownership interest in (even right to access) this land is that they, and their ancestors, were forcibly dispossessed of their property, including their sacred sites.
Reidy’s article offers an outside-the-box, partial solution to this problem.
As students of property law know, easements are nonpossessory interests that allow the holder to use (but not possess) property. Easements can be created expressly, and usually are. But they also can arise by force of law: Prescriptive easements, for example, arise from uninterrupted, non-permissive use of property.
And implied easements arise, under certain circumstances, when a single parcel of property is severed. For example, if an owner has historically used one part of their property to access another, say via an established path or road, then the law assumes that the prior use was a “quasi-easement” that transforms into an easement by implication if the property is divided. If the division of the property “landlocks” an owner, preventing her from accessing her property altogether, then an easement by necessity may arise by force of law.
In certain circumstances, courts have also recognized that uninterrupted customary use can create an easement-like right of access as well. As Reidy observes, “Before the federal government severed their ancestral lands—by force, sale, or broken treaty—tribes used certain, inherently sacred parts of their territory, regularly and necessarily, to benefit other parts of that territory. Insofar as these historic land uses may be conceived as quasi-easements, property law affirms the possibility of use rights in sacred sites, a kind of ‘sacred easement’ over government land.”
This is not entirely without precedent. As he observes, many treaties divesting tribes of their possessory interests in property reserved their rights to access certain natural resources even after their right to possession ended.
Reidy’s insight is that the dispossession of Native American lands—including especially lands upon which sacred sites are located—might have created circumstances under which an easement arises by force of law. In this case, the claim that the access-rights that tribes would be asserting would not be the right to use someone else’s land but instead the right to exercise their ownership interest in that land.
If he’s right, then tribes asserting access rights would be asserting their own access rights, rather than asking a court to balance their interest in access against an encroachment or infringement on another owner’s right to exclude. If a tribe has an easement, the owner of the property burdened by the easement does not have the right to exclude them.
Reidy further argues that, even when resort to the private law of easements is impossible, Congress can, and should, create a statutory property right for tribes to claim an explicit ownership interest in their sacred sites, corresponding to their sacred land use. Modeled on conservation easements, these interests would preserve sacred sites for Native American religious practice, giving the tribes granted “sacred easements” the ability to monitor, and constrain, if necessary, both present and future uses of government-owned lands, ensuring compliance with the needs of their religious practice without barring public access to sacred sites.
Of course, as Reidy acknowledges, the common law of easements is limited in a variety of ways. For example, prescriptive easements over government land are typically impermissible; easements have a “scope” that is limited, perhaps too limited to provide in many cases sufficient protection of indigenous religious practices; and, importantly, easements can be abandoned by disuse – and many tribes were dispossessed well over a century ago. And, while, as he argues, Congress could step in to fill the gaps, there is no reason to expect that it will, given political realities.
That said, Reidy’s suggestion that the traditional tools of property law can and should be employed to advance the religious liberty rights of indigenous peoples is both thought provoking and, in my view, groundbreaking.
Private law and public law schools far too often talk past one another, or do not talk at all. While Reidy’s solution to the dispossession of indigenous sacred sites is only a partial one, his effort to bridge the two worlds to address what we can all acknowledge was a deep injustice and a shameful remnant of our nation’s history ought to be welcomed and embraced by private and public law scholars alike.
Jun 16, 2023 P. T. Babie
Timothy M. Mulvaney and Joseph William Singer,
Essential Property, 107
Minn. L Rev. 101 (2022).
Society is impossible without inequality.
–Napoleon Bonaparte, Emperor of the French
Is it personal choice or the society in which we live that creates unequal distributions of wealth? In Essential Property, Timothy M. Mulvaney and Joseph William Singer agree with the Emperor of the French: the source of inequality lies in the state, or, more precisely, its laws, including private property.
This observation confirms an intuitive sense that in its very essence, private property is both inequality and, that fact notwithstanding, it is not soon to disappear. Too much depends on it. And, frankly, not only is it deeply ingrained in our liberal world, but also very possibly in our DNA. While eliminating private property’s inequality might be impossible, Mulvaney and Singer argue that we can look for ways to reconfigure it so as to reduce its unequal distributions.
Mulvaney and Singer suggest that inequality results from four key facts: (i) human vulnerability resides in our basic needs; (ii) fulfilling basic needs requires resources sufficient to meet the necessities of human life—including housing, food, medical care, childcare, and educational training; (iii) these necessities are provided by others; and (iv) for many of us, our wealth is either insufficient, or entirely absent, making it difficult or impossible to acquire from others these necessities.
The result? A “mismatch between property resources—which consist of both incomes and wealth-creating opportunities—and the expense of securing what is essential to living a dignified and comfortable life.” (P. 607.)
Those of us who come out on the short end of the mismatch are told: get a job and work hard. In other words, inequality is entirely due to personal choice. Mulvaney and Singer name and shame this tired trope for the fantasy it is, albeit deeply ingrained “because [people] have been repeatedly told it is so. Those who are the purveyors of this myth have gone to a lot of effort to make us believe that ‘the system works’ and that opportunity is there for the taking.” (P. 654.)
The real culprit, of course, resides in the structure of private property itself, which allows those with capital the freedom to generate more, which includes deciding how much property to give to employees as wages. By restricting such freedom, “the owner has no guarantee of being able to manufacture any profit, let alone to maximize profits.” (P. 624.) Mulvaney and Singer thus confirm that what Marx wrote in the first volume of Capital almost 200 years ago is still true today.
Law facilitates the capitalist’s wealth maximization in two ways. First, by attempting to reduce regulation that constrains profit maximization. Second, by reliance on freedom of contract—that “the state…should not limit the subjects on which private parties can voluntarily contract, regulate the terms of any contracts, or establish conditions for the development of contractual relations in the marketplace.” (P. 626.) Both rely upon the pseudo-moral rationale that “through a combination of talent and hard work—or the lack of one or both—people on all sides of the inequality divide deserve their fate.” (P. 627.)
In a legal-realist inspired response, Mulvaney and Singer argue that it is not the market, but the system of property that allocates land and capital, and that those allocations allow the capitalist to exercise power over employees by undervaluing and expropriating their labour. Correction requires “structural reconfigurations that shape the economic and social relations that connect and constitute us…emphasiz[ing] solidarity and mutual obligation.” (P. 637.)
It is not beyond a liberal democratic system to do this. Writing about the United States, Mulvaney and Singer conclude that “we have engaged in this type of reform by reallocating and redefining property rights to outlaw relationships characterized by the likes of feudalism, oligarchism, aristocratism, enslavement, and apartheid.” (P. 638.) Their reconfigurations can do the same to relationships characterized by economic oppression and exploitation.
Four principles of justice must underpin the reconfiguration of property. First, circumstance sensitivity asks us to pay attention to how things are rather than how we imagine them to be. Second, an antidiscrimination norm that treats people with equal dignity will focus our attention on whether real conditions are acceptable as a matter of social justice. Third, we must create a realistic opportunity to “ensure that it is readily possible for [people] to earn a dignified living.” (P. 647.)
And, finally, because living together means our lives are intertwined, the traditional law of property and contract cannot, on their own, match incomes and wealth to a dignified life’s expenses. Doctrinal components of law—“property-adjacent laws and institutional structures”—cannot be seen in isolation; rather, matching income and necessities requires looking at the full range of laws and their interaction.
All property theory, of course, faces the difficulty of justification. Whatever property might do by way of good, in the end, it must always result in an unequal outcome. Some will have more, and some less. If that were not so, we would have no need of property. Everyone would agree with the allocation of goods and resources, whatever it was, without the need to resort to a concept and system of property that would explain—read “justify”—that outcome.
So, if one were to take issue with Mulvaney and Singer at all, it would be to ask how a system that allows for the continued peddling of the “you make your own way, so get a job and work hard” fantasy to the great detriment of so many people can be justified at all, even if it is reconfigured using the suggested justice principles. While Essential Property makes a deeply significant contribution to the scholarship on property theory, Mulvaney and Singer never tackle justification head on.
Nonetheless, because private property is, as I said at the outset, here to stay, we must agree with Mulvaney and Singer that “it becomes incumbent upon us to adopt norms to guide reshaping [private property’s] rules to ensure that every person has access to essential property.” (P. 653.) This piece contains essential reading, for it reveals what private property makes us—unequal—and how we can change.
May 17, 2023 Gregory M. Stein
Professor Gerald Korngold has written a useful, thorough, and persuasive argument for the expanded use of land value capture, or LVC. His report is published by the Lincoln Institute of Land Policy, an organization that has long supported the economic work of Henry George.
George argued that real estate investors should profit from the fruits of their own labors but not those of the community. This means that these investors may benefit from the increased value of their improvements and additions to the land but not from land appreciation brought about by external factors. Increases in land value caused by the community should be recaptured by the community.
In the opening section of the report, Professor Korngold defines his terms, noting that “LVC enables communities to recover and reinvest land value increases resulting from public investment and other government actions.” (P. 6.)
For example, if a municipality constructs a subway station that causes neighboring property values to rise, owners should share some of that unearned gain with the public, thereby allowing the community to make further infrastructure investments. More controversially, a community might take a similar approach to regulatory changes that enhance property values, such as upzonings that permit greater density.
Subsequent chapters of the report systematically examine a range of LVC tools. Those arising from infrastructure investments include exactions, impact fees, linkage fees, special assessments, and mandates for inclusionary housing. Landowners who benefit from a municipal project might be required to transfer some of the unearned gain back to the community that paid for these boosts in value.
When regulatory changes benefit an owner, by contrast, the municipality might demand contributions of infrastructure or cash in exchange. For example, an urban owner that receives permission to build above otherwise applicable height limits might be required to fund improvements to a nearby subway station that will be burdened by the increased traffic the enlarged building will attract or might be required to build those improvements itself.
In either case, the community provides a tangible benefit to the landowner that increases the value of the owner’s land, and the owner must reciprocate at least partially. Outcomes such as these are both efficient and fair, as they expand overall land value while internalizing economic externalities. They also provide another funding option for stressed municipalities that desperately need infrastructure enhancements.
There are, of course, impediments and counterarguments. LVC must be permitted by applicable enabling legislation, and some states flat-out prohibit one or more of these devices. LVC can cause cash-flow problems for owners whose increased land value leads to imposition of a tax or other mandatory payment, as they may not have the cash on hand to pay for the augmented value of their land. There are line-drawing problems: How close to the subway station must a lot be for it to be included within the class of beneficiaries? There are also valuation problems, such as how to appraise a required donation of open space for use by the public.
Some landowners view LVC as contrary to their property rights. Several LVC devices raise regulatory takings issues, not all of which have been addressed by the Supreme Court.
Moreover, once LVC contributions arrive, how should they be spent? These payments might be used to benefit the neighborhood immediately surrounding the project, the residents of which may be enduring in-kind costs such as increased density or traffic. Alternatively, the funds might be spent more broadly to enhance equity throughout the community.
Perhaps most important is the question of who should make these decisions. Many land use bodies are subject to capture by real estate interests. Historically under-represented groups may not have a seat at the table when these difficult choices are being debated.
Professor Korngold makes a compelling case for the expanded use of LVC. There are ever-increasing needs for infrastructure. The more the country urbanizes, the greater the demand and need for amenities. As incomes grow, residents expect higher levels of service from their communities. In addition, the expansion of regulations such as environmental laws leads to the need for upgrades.
He notes that ad valorem property taxes indirectly import some aspects of LVC. As a new public project increases land values nearby, assessed valuations increase in tandem, and the owner’s taxes rise as well. But property tax increases are capped in many jurisdictions, in some instances as a direct response to past tax increases that resulted from infrastructure upgrades. “Some would argue that LVC charges for benefited properties should be distinct from the property tax and instead become analogous to a fund for initial capital investments. The property tax could then be used for ongoing operational municipal expenses.” (P. 10.)
One question the work does not directly address is the extent to which it might be wise to mitigate LVC concepts in some circumstances to enhance housing affordability (though it does discuss the use of funds raised in this way to build lower-cost housing elsewhere). The internalization of externalities causes homebuyers to bear the full cost of their homes. This may seem fair – you should pay for what you use – but it elevates housing costs. When might a community forego this type of internalization to reduce home prices?
Whatever the benefits of LVC, perhaps it needs to be balanced against other considerations in cases like these. Professor Korngold makes a compelling case for the wider use of LVC; perhaps a longer work might also examine which settings are best suited to these wider uses.
While this scholarly work is billed as a “Policy Focus Report,” it reads like a law review article. It is thoroughly researched, informative, well-documented, persuasive, and enjoyable to read.
It does differ from a traditional journal article in one regard, though, namely the manner in which it is presented. This report is published in full color, with photographs, drawings, graphs, and tables deployed throughout to illustrate key points. It is laid out in two columns, is broken into small sections, and makes ample use of sidebar comments. All of these features make it far easier to read than the typical journal article and, in many ways, more useful. (Law review editors and online database services, take note!) It thus pairs the academic features of a journal article with the readability of lighter material.
Professor Korngold’s Policy Focus Report is a valuable and thought-provoking addition to the literature. It addresses an old and useful device that might be used more frequently to solve several related municipal problems. To the extent that local leaders are already using this device, Professor Korngold’s report encourages them to expand that use. To the extent that they are not, it inspires them to consider it and to urge state legislatures to allow them to use it more frequently.
Apr 21, 2023 Shelley Ross Saxer
Professor Richard C. Schragger’s article, The Perils of Land Use Deregulation, provides a cautionary tale as to whether land use reform by state legislative preemption will backfire in the attempt to provide more affordable housing. Efforts to address the housing crisis have focused on state preemptive legislation to combat NIMBYism (“Not in My Backyard”) and local land use controls by using market reforms to speak to the perceived housing shortage.
The affordable housing crisis has generated calls for land use reform in response to claims that exclusionary zoning (for example, single-family housing codes and discriminatory practices by localities) exists at the base of this crisis. With the vigorous ongoing debate about the supply-side solution to housing demand, it is not clear whether upzoning, which may reduce market rate housing prices marginally, will produce affordable housing.
State regulation adopting a market-based solution could potentially reduce localities’ power to address economic inequality. Schragger challenges the conventional wisdom, supported by the YIMBY (“Yes in My Backyard”) movement that the state or possibly the federal government should preempt local regulations that interfere with market-rate housing construction.
Recently, some states and localities have targeted single-family zoning as responsible for racial segregation, exclusion of the poor, and lack of affordable housing. For example, California enacted Senate Bill 9, which allows homeowners in single-family zones to add a second unit onto their property or to divide their residential lot into two lots and build up to two housing units on each lot.
With some exceptions, the California law preempts municipal review in order to simplify and expedite the building permit process. And, Minneapolis, Minnesota, eliminated single-family-only zoning in January 2020 to allow building duplexes and triplexes to provide affordable housing. It may be too early to see the impact of these reforms on housing supply and affordability.
It is easy to jump on the “let’s toss zoning” bandwagon because of zoning’s sordid history of explicit racial discrimination and its role in segregating neighborhoods through Euclidean exclusion of apartments from single-family residential zones. Professor Schragger agrees with the criticisms of exclusionary zoning but argues that cities should maintain local power over land use. Cities can address economic inequality by leveraging land use development to obtain higher wage and labor standards, and they can negotiate community benefits agreements (CBAs) with developers.
Many have argued for deconstructing local zoning and municipal power. Professor Schragger’s article contributes mightily to this debate by making sure we consider both sides and proceed with restraint. Professor Christopher Serkin likewise cautioned, in his article, A Case for Zoning, that zoning is an important tool in “controlling the pace of community change.”
Schragger reminds us that, historically, populations have shifted from the city core to the suburbs and then back to the city as residents who are mobile chase wealth and opportunity and desert the poor and working class. This leaves some areas with plentiful housing (i.e., Detroit) and others with scarcity (i.e., New York City). Instead, he argues that the city should use its power to pursue economic reform without state law preemption and respond to citizens’ economic and social welfare needs in place.
Urban and suburban land markets may see dynamic change as remote work and increased online learning empty office buildings and classrooms. The demand for particular locations may experience rapid transformation, and statewide legislation will inappropriately deal with housing needs as cities become “newly popular and suburbs stagnate” or vice-versa.
Increasingly, local governments are asked to address challenges that could not be confronted at the state or federal level. Efforts to adapt to climate change have required local land use reforms, given the importance of local decisions permitting building in flood zones, hillsides, coastlines, and the wildlife urban interface (WUI).
In this debate over the proper role of government in providing shelter for our citizens, we need the cautionary voices of Professor Schragger and others to call attention to the city’s importance as the site for participatory and democratic governance and its “power as a potential counterweight to private-side economic domination.” (P. 203.)
Apr 6, 2023 Donald Kochan
Law sets the possibilities and reciprocal constraints within which human action can be incentivized, the benefits of exchange can be calculated, and conflicts can be resolved by a neutral arbiter in a predictable way. In these ways, law is operative on behavior. Law is not just a thing to be defined but instead can be defined by what it does.
In What Property Does, Professor Christopher Serkin reveals this insight by studying the services property law provides us for managing our relationships with others and with things. His article shifts the traditional baseline question. As he states, “Instead of asking what property is”—the question fielded in so much of property scholarship—his article “asks what property does.” (P. 893.)
Through dissection of several individual property doctrines, Serkin exposes a common, “underappreciated” purpose in the background of each—“protecting reliance on resources by favoring slow changes over fast ones in the evolution of property rights.” (P. 893.)
Consequently, Serkin’s article aims to explain why “Property, in this view, is a stabilizing but not ossifying force.” (P. 893.) A stable legal system needs the capacity to make durable commitments to those acting within it, but concomitantly should have enough play in its joints to grow slowly to adapt to changing conditions and evolving preferences of the consumers of the law.
Trespass, for example, protects expectations of ownership while adverse possession promotes dynamism. (P. 895.) Accretion and erosion can cause permanent changes in previously recognized property boundaries, but avulsion events like hurricanes, which involve dramatic and rapid shifts in the paths of rivers or shorelines, do not result in recognized changes to legal property lines.
The voluntary exchanges resulting in servitudes generally get protected by property law, but property law also recognizes the changes to property rights that occur by prescriptive easements, waiver, or changed conditions. These changes are justified, Serkin contends, by long time horizons that allow rights to shift only after reliance on the prior agreements becomes arguably unreasonable or not worthy of property law’s protection. Put differently, Serkin seems to conclude that property law does not effectively serve its broader governing purposes when, at best, it only protects anachronistic past reliance.
Among other examples, Serkin also uses his lens to help explain several areas of takings law. For example, while Penn Coal in 1922 held that coal miners were entitled to compensation for regulatory actions that negated clearly-delineated deed rights to mine all their coal, the Keystone Bituminous case sixty-five years later, finding no regulatory taking under a similar set of deeds and a similar regulatory limitation on mining, can be explained if viewed through Serkin’s “evolutionary reliance” lens. Serkin claims that the “[c]oal companies’…reliance had become tempered over time by increasingly restrictive regulations governing” mining. (P. 949.) Serkin calls these changes “accretive shifts” that are not just changes in law but necessarily precipitated by changes in reliance interests.
Serkin examines seemingly distinct doctrines and explains why they are intentionally or spontaneously and evolutionarily ordered to have related but sometimes concealed DNA strands that operate cross-doctrinally. This is an extremely valuable way to find coherence within a legal subject that might otherwise seem like only a collection of disjointed doctrinal parts. By doing so, we can see how doctrines relate, while generating metrics usable across doctrines to evaluate whether any particular doctrine has become aberrant to systemic themes.
That is precisely what Serkin is attempting to do for property law. He contends that his examination shows that property law “has its own internal logic based on protecting people’s reliance on resources in the world,” but that property is best seen as the “locus of competing reliance interests.” (P. 955.)
Further, “reliance…can arise or subside through use or disuse,” and consequently, property law recognizes dynamism in property rights as a consequence of “evolutionary reliance.” (P. 955.) But the property law system does so only in such a way that does not result in dramatic shifts in legal treatment that would themselves undermine the utility of reliance for setting reasonable expectations or allowing property law to aid individuals ordering their lives and investments.
Indeed, the doctrinal developments in property law create rules that “constrain how quickly reliance can change,” without prohibiting or unduly impeding doctrinal changes that help the system adapt to the changing human environment in which the rules operate. (P. 955.) By limiting change to gradual shifts, Serkin contends that property law preserves optimal levels of reliance ensuring that “people are given time to adapt” to changes in law. (P. 897.)
In private ordering protected by neutral arbiters and within a liberal and democratic system, law is supplied in a manner that reflects the demands its consumers place on it. Thus, law reflects the preferences of its consumers. Property law operates no differently.
But Serkin’s work explains that law may evolve as preferences evolve and in ways to accommodate competing demands or preferences too. However, because property law at its heart recognizes the importance of reliance interests, property serves a unique role in regulating the pace of that evolution and in mediating between competing reliance interests.
Notably, Serkin is defending changes that result in recognized alterations to previously-transacted or legally-expected property rights’ assignments. At the same time, Serkin recognizes the critical need for stability in property rights and argues against displacement of property rights by dramatic shifts (at least uncompensated ones) in favor of allowing property law and property rights claims to act as checks on such non-gradual changes.
Thus, he recognizes that “some may worry that focusing on reliance is too protective, and others that it is not protective enough.” (P. 899.) While Serkin then concludes that “adherents of both camps will find much to dislike” in his article, we should instead focus on why all property scholars of any camp should engage with Serkin’s account to refine their own work by thinking more about whether what property is can best be defined by what property does.
Indeed, the first question I ask my students on the first day of my property course each semester has always been “What is property?” Inspired by Professor Serkin, I think I will lead off next semester by asking the students “What does property law do?”
Mar 7, 2023 Sara Bronin
In recent years, communities across the United States have accelerated decisions to remove Confederate monuments. Many removals have been successfully completed with the cooperation of the property owner and public authorities. But others, especially in Southern states, have been more challenging. In nine states, “statue statutes” can prevent or inhibit any changes to Confederate monuments, even where the property owner (often, a local government) seeks removal.
Deborah R. Gerhardt’s Law in the Shadows of Confederate Monuments presents an enriching account of the tensions created by state statue statutes, and it offers a new idea to resolve them.
At the outset, Gerhardt characterizes these laws as “‘preservation’ laws,” rightly using quotation marks to signal that they sit outside of what preservation law is normally thought to encompass. Their drafters have tried to coopt preservation terminology, giving statue statutes titles like “memorial preservation,” “cultural heritage,” and “memorial protection.”
But in fact, established preservation laws reject the notion that a specific history or time period be given special treatment – or even that the statues are protectable to begin with. Normally, only those places deemed to satisfy broad, public criteria evaluating their significance and their material integrity will be protected. In virtually all cases, designation criteria exclude commemorative works that merely memorialize some prior event or historical figure. The rationale for this exclusion is that commemorative works are not themselves historic, but rather interpret history. Statue statutes’ protection for a narrow category of commemorative works thus runs contrary to established preservation law.
That said, the argument for protecting these statutes has some basis in international cultural heritage norms. Gerhardt notes a global inclination disfavoring destruction, reminding readers of the international outcry that met the looting of the Baghdad Museum and the destruction of temples in Syria, among other events.
But, as she explains, American Confederate monuments differ from these other cultural artifacts. She argues that Confederate monuments “amplify a message of legal inequality…[and] impose constant reminders of the nation’s refusal to confront systemic racism.” (P. 16.) She cites to research explaining how the exaltation of Lost Cause ideology has negative health consequences, primarily psychological harm.
Given that context, Gerhardt argues, Confederate monuments deserve greater scrutiny. And yet, in nine states, these monuments have earned greater protection.
The article deftly leads the reader through the legal issues raised by statue statutes, logging the variety of ways in which communities have tried to smooth the removal process. It gives full treatment to the highly-publicized debate in Richmond, Virginia, which resulted in the city’s removal of several prominent statues on Monuments Avenue after modifications to the Virginia statue statute. In Tennessee, the City of Memphis sold the land on which one of its Confederate monuments stood to a private party, circumventing the state law that, at the time, only prohibited monument removal on public land.
Additionally, a county in North Carolina reviewed historical property records to successfully argue that a Confederate statue sitting on public property stood subject to a revocable license. The City of New Orleans received a court order declaring several public statues to be public nuisances, given the psychological harm they imposed on the city’s majority-Black residents. Other towns have invoked the public nuisance theory, too, though not always successfully, as Emily Behzadi’s recent article chronicles.
Both anti-statue local governments and pro-statue groups have also, largely unsuccessfully, raised First Amendment challenges. For example, courts rejected arguments from Lakeland, Florida, and Birmingham, Alabama, that statue statutes infringed on local-government speech. They have also rejected Confederate sympathizers’ First Amendment claims because their allegiance to the Lost Cause cannot be considered speech.
Of the various examples included in the article highlighting the fraught legal landscape, the one that stuck with me most was Gerhardt’s fascinating account of the tug-of-war over the “Silent Sam” statue on the campus of her institution, the University of North Carolina. The war ultimately ended in the statue’s removal, but not without several lawsuits, student arrests, and the resignation of the chancellor. That account underscores the need for guidance outside of the current state-local framework for making decisions about monuments.
Gerhardt focuses her search for such guidance on federal laws that could be interpreted to preempt state statue statutes. The article considers, then rejects established federal historic preservation laws, including the National Historic Preservation Act, as possible frameworks for mediating disputes. These laws impose obligations on federal agencies to consider historic resources in making decisions and do not address non-historic commemorative works nor offer guidance for resolving non-federal issues. The article also evaluates, then dismisses the power of federal copyright law to support monument retention, given that many monuments were factory-made and that any artists’ rights to protect their artistic works from demolition have long expired.
Instead, the article proposes that the federal Civil Rights Act of 1964 be considered a vehicle for challenging existing monuments. Among other things, the Act prohibits race-based and color-based exclusion from participation in programs receiving federal assistance, and it prohibits race-based and color-based discrimination. The Act enables private parties to claim a racially hostile environment, and caselaw interpreting the Act confirms that visual imagery can contribute to a racially hostile environment.
The article succinctly explains how a legal theory based on the Act might be treated by a court. Like the recent public nuisance suits, a Civil Rights Act suit would focus on the impact of the monuments. Additional research on such impacts may be needed to better support the claim, but I give Gerhardt credit for advancing a novel idea.
I will close by noting that this area of scholarship has been active. Over the last few years, legal scholars have published over a dozen articles (and students a half-dozen more) about Confederate monuments. Please give them a look. And for a reader interested in an expanded, non-law-review treatment of these issues, I highly recommend Erin L. Thompson’s book, Smashing Statues: The Rise and Fall of America’s Public Monuments.
Note: This Jot was written and submitted before Professor Bronin’s public service leave from Cornell University, and it does not represent an official statement by or constitute an official publication of the U.S. Advisory Council on Historic Preservation.
Feb 21, 2023 Shelby D. Green
As Professor M. Carol Rose so famously wrote years ago, the law of property is about “crystals and mud.” In Professor Lee Anne Fennell’s view, there is perhaps no muddier area than the law of takings, and made even more so by Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021).
In this 2021 case, the U.S. Supreme Court ruled that a state regulation that gave union organizers access to agricultural worksites for up to three hours per day for 120 days per year, effected a per se taking by physical invasion. Just as we thought we had understood the broad types of takings, according to Professor Fennell, the Court devised “a new per se takings contraption…throwing physical impositions on owners into it wholesale, along with bewildering means of possible extrication.” (P. 3.)
Prof. Fennell states that “implicit takings,” those that are not the result of eminent domain proceedings, “has now effectively become an escape room—a gratuitously convoluted analytic environment, filled with many traps and puzzles.” (Pp. 3-4) This scheme, in her view, is a device for mischief—disfavored impositions on owners, wealth-disturbing impacts, can be checked, while wealth-enhancing measures, such as zoning may be allowed. But it does this only by making categories that are murky.
Prof. Fennell’s recounting of the road leading to Cedar Point reveals a twisted path, since that case doesn’t seem to fit neatly into the deprivation of all value framework of Lucas, the permanent physical occupation of Loretto, or the Penn Central balancing scheme.
Using the analogy of a board game, she describes the escape room as consisting of two doors: one involving claims regarding physical access, the other involving use limitations. Thanks to the mud tracked in by Cedar Point, even as we enter one room, we still do not know for sure what rules will apply—whether there is a per se taking or something else. This complication arises because of the great variety of claimants who might be in that room—from labor organizers to seeing eye dogs, who, although not property owners, may present worthy claims to access.
Prof. Fennell notes that the Court has expressly articulated exceptions to takings theory, but they are not always clear cut. First, there is the open door, i.e., where the landowner has invited the public in, but for what purpose? To shop or to distribute leaflets? Are there tenants with rights and guests? Is there a need to offer medical treatment to occupiers? Fennell wonders whether required open doors (for safety on construction sites and against discrimination) might also be covered by analogy.
Then there are the isolated physical intrusions that do not rise to the level of a taking. Finally, there are the background principles, but do these include labor laws? Anti-discrimination laws? Health and safety regulations? Do they vary by state? If trying to discern whether a government act triggers per se jurisprudence or the Penn Central balancing was not hard enough, once we move to exactions, the law becomes even more muddled.
Before Cedar Point, governments did not need to bargain for every entry necessary to carry out a regulatory program. Cedar Point suggests that inspections can easily pass Nollan and Dolan, then asserts in the same breath that the union access requirement could never pass muster because it does not involve a government benefit that can be “h[e]ld hostage.” If governments must now resort to bargains with landowners in order to govern, the societal costs of living with laws rises significantly.
The Cedar Point Court seemed to assign absolute priority to the right to exclude and imply that the only opening for Penn Central is in the initial characterization of the government action as a physical invasion or use limit, which in itself is not a simple proposition. On this score, it is hard to distinguish Pruneyard from Cedar Point.
Prof. Fennell sees physical intrusion as less relevant, since all regulations have physical manifestations to some degree, even if entry happens only to determine whether the law is being followed. In Prof. Fennell’s view, Cedar Point was the next step in the progression of giving heightened scrutiny to regulations impacting property rights—but not all such regulations, only selective ones. But what is the purpose of this new device?
Fennell believes the purpose of this new scrutiny is toward the preservation of the wealth structure in society. This means that certain uses and requirements that are necessary for larger society ends may need to fall in favor of preserving a landowner’s domain.
She develops a new taxonomy to help guide students (not just law students but students of the subject). In this ordering, some acts are entitled to no takings scrutiny (government acts that are not legitimate or that merely instantiates background principles); some should be subject to low scrutiny (for use restrictions that do not fall into Cedar Point’s per se mold); exactions should be given a heightened level of scrutiny, thereby removing some land use restrictions from bargain-making altogether if the uses in question are too “basic and familiar” to require anything in exchange—they will just be takings. Alleged per se takings should be subject to “infinitely high scrutiny.”
The last part of the paper focuses on the nagging question of what compensation is owed—the value of the space occupied by the government or the value of the whole property if we find a per se taking.
Professor Fennell admits that even her very inventive taxonomy may not be capable of separating crystals in the mud. While property gives autonomy and security and encourages investment, we should keep in our minds the resonating words of Morris Cohen, in Property and Sovereignty, that “dominion over things is also imperium over our fellow human beings.” The Cedar Point Court apparently did not see the agricultural workers laboring in the background.
Feb 3, 2023 Andrea Boyack
Elizabeth Elia,
Servitudes Done “Proper”ly: Propriety, Not Contract Law, __
J. Land Use & Envtl. L. __ (forthcoming), available at
SSRN.
One of my favorite souvenirs from studying and working in Russia is a many-layered matryoshka, or “Russian Doll.” The unpretentious red, yellow, and blue painted wooden doll opens to reveal a smaller, nearly identical doll, which in turn opens to reveal another and another. This particular matryoshka has eleven dolls nested within one another – the smallest barely larger than a grain of rice.
How delightful it was to read Elizabeth Elia’s article, Servitudes Done “Proper”ly: Propriety, Not Contract Law, which frames community servitudes as one of the many nested governing layers within our legal system. Elia’s “Russian Doll” metaphor is compelling, and her broader point – that a governance (“propriety”) frame is the appropriate one for property law – provides gratifying and unexpected analytical clarity to the law of servitudes.
Courts and scholars struggle to make sense of today’s new uses of servitudes that diverge both in form and function from traditional servitudes. For example, the continuing relevance of certain common law requirements, including horizontal privity, has been called into question by the controversial Restatement of Property (Third): Servitudes.
Although many courts still claim that covenants will only run with the land if they “touch and concern” it, the concept of touch and concern is so elastic as to seem based on the eye of the beholder. Common interest communities (CICs) are today created through recorded declarations that conveniently skirt the common law mandate of separate ownership for burdened and benefitted parcels as well as, perhaps, its prohibition of covenants in gross.
In spite of their uneasy fit within traditional servitude rules, CIC covenants – along with conservation easements, affordability covenants, and other quasi-zoning types of modern servitudes – are almost universally enforced by courts.
Enforcement has involved awkwardly stretching (or simply ignoring) traditional servitude law, although modernly, enforcement is more easily facilitated by a plethora of enabling statutes – for CICs and conservation easements in particular. Where specific enabling legislation is lacking, courts simply analyze these restrictions under the auspices of government authority (for example, affordability covenants) or contract law (for example, agreements between developers and local zoning authorities). But still, all such constructs are, at bottom, servitudes on land.
Without a unifying analytical framework, the apparent haphazard judicial treatment of such restrictions has made modern servitude law frustrating to navigate.
For decades, scholars have tried to make sense of this confusion. Richard Epstein, for example, argues that freedom of contract principles, rather than ancient servitude law, should guide legal analysis of easements and covenants today. On the other hand, Carol Rose points out that different justifications for property law may drive different judicial approaches to servitudes. Rose distinguishes a preference satisfaction justification (grounded in liberal economic theory) from the more ancient justification for property, grounded in the need to promote order and well-being for the people (a concept she calls propriety). Elia synthesizes servitude law using the lens of propriety but argues that governance in liberal democracies incorporate preference satisfaction as a tool for voluntary compliance with the law.
According to Elia, property is properly viewed as nested systems of governance – police power of the state (sometimes devolved to localities) and police power of the individual (sometimes alienated to a manager). The propriety frame casts private property as existing in order to allocate governing power.
Elia explains that the Blackstonian “dominion” of private property is all about governance and governors – usually existing in nested frameworks of overlapping authority and responsibility. “Traditional servitudes” among two parties/parcels impair governance and are disfavored by traditional common law; but “community servitudes” facilitate governance and are therefore favored by courts and legislatures. Such “community servitudes” coordinate uses of land for the mutual benefit of the people, land, and things in the community. Because community servitudes function as neighborhood governance, they are more properly constrained by due process concerns rather than by traditional servitude formation formalities.
Elia’s Servitudes Done “Proper”ly article adds much value to property scholarship. Here are my five favorite things about the article:
- Elia’s propriety frame pushes back on the purely contractual approach to property law – an approach which is problematic because (a) property is distinct from contracts in terms of its scope, application, and remedies, and (b) treating servitudes as contracts risks having consumer contract law’s voluntariness problem spread to restrictions on land.
- Elia’s analytical frame not only brings a desperately needed clarity to servitude law but may also provide a comprehensible approach to other muddied areas of modern property jurisprudence – like regulatory takings law.
- Elia shatters the public-private binary that hobbles the law of land use and ignores the quasi-public nature of private land use restrictions, paving the way for productive consideration of checks on private governance (for example, a homeowners’ bill of rights for CICs or intergenerational justice constraints for conservation easements).
- Elia’s recognition that governance of land and people is a multi-layered “Russian Doll” enriches the federalism debate animating many areas of the law today and highlights that not only is the “who decides?” question paramount, but also that it may be answered in a non-exclusive and lawfully constrained way.
- The property-as-police power lens that incorporates a preference satisfaction justification reanimates questions of property responsibilities that arise from the trust-like role of a governing authority, providing a more solid foundation upon which principles of progressive property can build.
Viewed through Elia’s propriety lens, the law of servitudes becomes more cohesive, comprehensible, and consistent; the relationship between property and stewardship becomes more apparent; and the justification for governance limits – to ensure both personal freedom and public welfare – is more compelling. Nesting individual preferences within the concept of the community and the state, all painted with the patina of property rights and obligations, crafts an elegant American solution to the “Russian Doll” governance complexity our legal system is grappling with today.
Jan 9, 2023 Yael Lifshitz
Sharing the Climate by Professor Rashmi Dyal-Chand shines a light on a surprisingly understudied, yet immensely important, aspect of the climate crisis: to a large extent, the climate crisis is all about resources. Whether fertile and livable land, healthy trees, drinkable water or breathable air, the depletion starts with resource management (or, failures thereof).
Property is the conceptual category that allows us to distribute and govern resources. So property law and concepts should be at the forefront of responding to a resource-based crisis, right? As Rashmi Dyal-Chand points out, unfortunately, at the moment, that is not the case.
The key contribution of the article is underscoring the ways in which property law could contribute to the climate discourse. Dyal-Chand calls on scholars and policymakers to examine the role property law currently plays, and the role it can play, in mitigating and adapting to the climate crisis.
This call is two-fold: first, it calls on the broader climate community to examine how property law can be part of the set of solutions offered. Given the crisis is one of resource management, if we are to mitigate the vexing climate issues and imagine a future that preserves the long-term viability of our resources, property must be part of the solution. Property law also addresses an aspect that is generally not covered by other types of climate responses – the relationship between neighbors within the community. It is significant as a response to the crisis for that reason as well.
Second, the article calls on property law scholars to examine how property law can adapt to the reality of a changing climate. “It is imperative for property law,” she underscores, “to develop durable, systemic response to the climate crisis.” This is key to maintaining a viable and vibrant environment, but also is crucial for the utility and durability of property law itself.
On that front, Dyal-Chand suggests an expansion of the law of neighbors, and the establishment of more access-focused regimes. Building on the ability of close-knit communities to work cooperatively, this is essentially an exercise in reimagining rights of access, such that certain activities, which are necessary for climate adaptation and mitigation, could be facilitated rather than prohibited.
This is both normatively and pragmatically significant. The everyday life of landownership, as Dyal-Chand reminds us, is largely premised on separatism, in different forms. Normatively, this is true whether one takes a utilitarian-based stance, or an autonomy-based one. Either way, the core commitment seems to be rooted in the exclusionary, every-person-to-their-own kind of intuition. While this kind of dynamic is suited for some contexts and certain eras, it is ill adapted to a world that is rapidly changing and where resources, generally, cut across more than one plot of land and their impact extends beyond the scope of one particular plot.
Property’s response should be, according to Dyal-Chand, creating a sharing-oriented management regime, specifically between neighbors (broadly understood, also encompassing a wider set of community members). “Sharing”, in this context, doesn’t mean that landowners will lose all control over their land nor the ability to enjoy it. It just means that we could allow simultaneous uses of some bits and particular aspects of resources.
Examples could include allowing a neighbor access to sunlight, wind, or a roof space for the purpose of energy production or for facilitating microgrids; or sharing parking spaces in an effort to reduce paved areas and make more room for green parks. It could also include creating linear drainage canals along the edges of multiple parcels, which could help deal with increasing floodwaters; or creating fire-safety corridors through multiple plots that could help mitigate wildfires or act as escape routes for residents.
This kind of regime would have two important advantages. First, by effectively “pooling” bits of resources that are currently split among landowners, the proposed regime better addresses widespread externalities that impact all neighbors (or the neighborhood). Think, for example, how creating a linear drainage canal, on private lands, can benefit all the residents in times of increased floods.
Second, the proposed regime could mitigate the separatism that currently tends to dominate our landownership dynamics, and instead encourage – or rather demand – a more collaborative and deliberative dynamic. This, in turn, has the potential not only to solve the immediate management problem but to entrench a dynamic that will mitigate separatism moving forward.
Whether framed in terms of easements, zoning provisions or otherwise, the idea is that these kinds of pooled and simultaneous uses would not only facilitate more efficient and more climate-friendly use, but importantly, also bolster the social structures which in themselves are important for successfully responding to the climate crisis.
Basically, it turns out that being kind to thy neighbor is a good idea on many fronts; and who knows, beyond mending our shared fences, it might also help us better adapt to the climate crisis.
