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.
Nov 23, 2022 Sarah Schindler
Michael Pollack,
Sidewalk Government (Aug. 23, 2022), available in draft at
SSRN.
In his forthcoming article, Sidewalk Government, Michael Pollack explores the nature and governance of sidewalks in the U.S. through both a property law and local government lens. While most of us have likely used a sidewalk to get from one place to another, we often don’t think about the many complex ways that localities govern these critical spaces.
When I moved to Maine over a decade ago, I was surprised to learn that I was personally responsible for shoveling snow off the sidewalk in front of my house. A few years later, the city expanded the boundaries of the downtown Business Improvement District (“BID”) to cover the other side of my street, after which my across-the-street neighbors no longer had to shovel; the BID did it for them.
More recently, when I moved to Denver, I learned that I would be responsible not only for snow shoveling, but also for replacing the big, expensive, red flagstone slabs that made up the sidewalks in my historic neighborhood if they were to become cracked. Yet in Maine, the city was responsible for fixing tripping hazards on the brick sidewalk in front of my house.
Pollack’s work explores sidewalks as contested spaces. They are sites of conflict regarding ownership, management, and use. The pandemic has made this fact even more evident. In the face of restrictions on indoor dining, many cities moved to expand outdoor seating to allow restaurants and bars to stay in business, and to allow people to congregate more safely.
Although al fresco dining has long been the norm in some cities (and throughout much of the world), cities began to liberalize their permitting and fee requirements, and loosened restrictions on the construction of shelters to protect diners from rain and cold. And while patrons of those establishments often relished the changes, neighbors complained of noise and trash, and others struggled to walk or pass by these tables with enough space to socially distance or fit a wheelchair.
Pollack begins by describing various competing sidewalk users and uses, and he describes the ways that they are often in conflict with each other. He notes that the law surrounding sidewalks is often designed to prioritize moving people from place to place—what Nick Blomley has called “pedestrianism” in his great book about sidewalks.
But, of course, pedestrians are only a small set of sidewalk users. Pollack also discusses: residents of the neighborhood (both housed and unhoused) who use the sidewalk as an extension of their living space; property owners and lessees who use the sidewalk for commercial purposes or to otherwise benefit their ownership; non-owner commercial interests like vendors, buskers, and rental bikes and scooters; communities gathering together for events, protests, or activism; and governments and utilities that use sidewalks for infrastructure. He notes that the law has not evolved to address the varied conflicts that arise between these competing users.
Pollack then discusses different ways that cities could ameliorate the conflicts that occur on sidewalks, which he likens to common pool resources. He sets aside regulation through norms, given that the uses and users of sidewalks are so disparate and often not close-knit.
He then turns to the role of property law and public regulation and suggests that both have failed thus far. This is in part because of the way that municipal laws tend to place responsibility for sidewalks on abutting property owners, although the sidewalks themselves are publicly owned (or at least subject to an easement for public use).
Abutters are often the ones who must shovel snow or repair broken sidewalks, and in some instances, they are even held liable for injuries that occur on these ostensibly public sidewalks. Although this outsourcing arrangement might be convenient for cities, it’s not necessarily an efficient way to run a city. Further, it often results in the unequal provision of quality, usable sidewalks.
Thus, the laws governing sidewalks have muddled the rights and obligations of both the public and the private. Because of the lack of clear boundaries, sidewalks are akin to liminal spaces where conflict is more likely to arise.
Although local government regulation can often remedy conflicts in cities when default property rules fail, it too has failed in the context of sidewalks.
The specific problem that Pollack identifies is that the governance of sidewalks in most localities is highly fragmented. While the local department of transportation might be responsible for some uses and users, the planning department, parks department, or consumer affairs department might be responsible for other aspects of sidewalk management, permitting, and control. This uncoordinated governance creates inefficiencies and makes it hard for users to navigate and obtain needed permits or approvals, or to submit complaints.
The solution to the problem of the sidewalks, Pollack suggests, lies in the fact that no one owns them. Thus, we should consider either privatizing these commons, or governing them.
He examines but rejects the idea of actually giving the full bundle of sticks to sidewalk abutters and restauranteurs (although he is open to some level of BID participation). Rather, he settles on the need to “enhance[], streamline[], coordinate[], and consolidate[]” our municipal regulatory architecture. His suggestion to achieve this end involves moving sidewalk maintenance obligations from individual abutters to the municipality itself, and the creation of a unified Department of Sidewalks.
Many cities are making their pandemic-era sidewalk dining expansions permanent. Delivery robots are beginning to make their way down sidewalks alongside people using wheelchairs and others pushing strollers. And with the effects of climate change worsening, cities will be looking to municipal property, including sidewalks, to build bioswales.
The competition for space on sidewalks is only increasing. As we enter this new era, Pollack’s suggestions should lead to less chaotic spaces that work for the whole panoply of sidewalk users.
Oct 21, 2022 Serena Williams
Sarah Schindler & Kellen Zale,
The Anti-Tenancy Doctrine, 171
U. Pa. L. Rev. __ (forthcoming 2023), available at
SSRN.
In their forthcoming article, The Anti-Tenancy Doctrine, Sarah Schindler and Kellen Zale proclaim, “The law has failed tenants.” The authors then provide solid evidence of that failure and identify a concept they call the Anti-Tenancy Doctrine.
On Sundays, I treat myself to newspapers, to actual printed newspapers. I make a cup of tea, sit at the table, take a sip, and read the printed word. If I have a copy of The New York Times, I usually read the real estate section first, if only to drool over photos of homes that I cannot afford.
On a recent Sunday, however, the paper published a special issue on renting in the real estate section. The graphic for the first page of the section caught my attention—it pictured a person dressed in yellow and black who appears to be falling into a series of rotating black boxes outlined in a red “For Rent” sign at the bottom.
As a property professor, I wondered what this graphic represented about renting and about our beliefs about renters. Was renting a fall into a deep dark hole? What caused the tenant to fall into that hole, into that abyss? Didn’t the law offer protection from falling into that hole?
Professor Schindler and Zale provide some answers to the questions raised by that illustration. Their article surveys various areas of the law that differentiate between a renter and a homeowner when determining a party’s legal rights. Those differences are often made without any consideration of whether a distinction should exist, leading to anti-tenancy bias.
Professor Schindler and Professor Zale look at this anti-tenant bias in areas of constitutional law, housing law, public safety law, consumer protection and contract law, and tax law. They cover a wide array of topics, from Fourth Amendment searches to Fifth Amendment eminent domain compensation, from disaster relief to credit reporting systems, and from voting rights in common interest communities to voter registration outreach.
Some of the specific examples are familiar such as the mortgage interest deduction. Other examples have received less consideration as being anti-tenant, such as notice requirements in zoning ordinances. Homeowners are usually required to receive notice of proposed zoning changes and an invitation to attend public hearings; tenants, however, are seldom required to be notified even when they may be similarly impacted by the zoning change.
When these seemingly unrelated practices and policies are threaded together, it is hard not to agree with their conclusion that an anti-tenancy bias exists in the law and with their recognition of an Anti-Tenancy Doctrine.
Professor Schindler and Professor Zale then begin to answer the question of why renters and owners are treated differently. They identify five distinct causes: 1) classism; 2) racism; 3) consumerism; 4) NIMBYism; and 5) the influence of classical liberalism.
They begin with a discussion that should be familiar to all first-year property law students–the freeholder/non-freeholder distinction that dates back to feudal England. The authors ask us “to interrogate the common law’s assumption that a leasehold interest is ‘lesser than’ a freehold interest.” They briefly consider the other causes, reminding us how tenancy is often used as a proxy for race and how homeownership is considered a civic virtue, but rentership is not.
The article ends with an invitation to dialogue about how to respond to anti-tenancy and with suggestions for future scholarship on the Anti-Tenancy Doctrine. The authors distinguish between developing solutions that elevate the status of tenants and those that help tenants become homeowners. For many, homeownership is not an option. Thus, we will need to shift our thinking about rentership and homeownership to ensure that housing status is not the determinant of legal rights.
As I read the article, I realized that this dialogue on the inequities caused by Anti-Tenancy Doctrine and possible solutions could easily begin in the first-year property course. Property professors can thread the discussion of why renters and homeowners are treated differently (and whether they should be) not only when covering the topic of landlord/tenant law, but also when teaching topics such as estates and future interests, zoning, and restrictive covenants. Such discussions could provide a unifying framework for topics that students often struggle to relate to one another.
That dialogue could also lead to a different graphic the next time The New York Times decides to publish a special edition on renting. Maybe instead of a figure falling into a series of black boxes, the artist could illustrate the concept of renting with a simple graphic of a renter enjoying a home and shelter protected by law.
Sep 22, 2022 Ezra Rosser
Professors Marc L. Roark and Lorna Fox O’Mahony’s article, Comparative Property Law and the Pandemic succeeds in bringing property theory and vulnerability theory into conversation and does so in a way that is likely to make vulnerability theory more palatable for property scholars.
Early on, Roark and Fox O’Mahony introduce readers to vulnerability theory. The basic idea of vulnerability theory is that vulnerability is an inherent part of the human condition and that the state should be active in providing people the tools they need to be resilient.
The theory is the brainchild of Professor Martha Fineman. Emory University School of Law’s vulnerability theory project, led by Fineman, regularly hosts or helps organize vulnerability-themed conferences around the world. Although Roark and Fox O’Mahony do not focus on this, by insisting on the universality of vulnerability and trying to break from of labels such as victim and oppressor, vulnerability theory is somewhat at odds with or at least awkwardly positioned next to race or identity-centered theories of the law and of history.
Comparative Property Law and the Pandemic deals with this by focusing less on vulnerability and more on its corollary, resilience. It is a smart move, allowing the authors to not get bogged down in defending vulnerability theory’s claim of universality and instead focus on the details of state responses to property challenges associated with the COVID crisis.
Throughout the article, Roark and Fox O’Mahony introduce and build what they call the Resilient Property Theory, which focuses on both the state’s responsibility towards people and the state’s own vulnerability and corresponding need to be resilient.
Vulnerability theory has captured the hearts and minds of quite a few academics and the growing vulnerability theory literature attests to its power, especially among those whose work focuses on subordination and inequality. But until this article, there had not been a full-throated celebration and elaboration of the theory within the property law space.
Roark and Fox O’Mahony’s article is worth reading, if for no other reason than because it begins, in Part II, a vulnerability theory – property theory conversation.
That said, the more granular case study of state responses to housing vulnerability connected to the COVID epidemic found in Part III, is also worthy of attention. The authors focus on how states, in response to COVID, provided emergency financial relief, employed housing first strategies, and protected (temporarily) tenants from eviction. They argue that the epidemic shifted the range of the politically possible—what they call the Overton window, the range of politically legitimate options at any given time—so that even neoliberal states acted to shelter and protect those “sleeping rough” as well as those who otherwise would be evicted.
Part III’s strength can be found in the way it pulls examples from across jurisdictions; while the focus is primarily on what happened within the United States, the examples of how other nations dealt with housing precarity in COVID’s wake are woven into the larger story beautifully. Readers are shown some of the differences in approaches across countries. But what comes across more are the commonalities. Governments felt that something had to be done and that people within their territories recognized the imperative to help those in need and expected governments to act. A state that failed to act would itself be vulnerable. Put differently, part of the state’s resiliency depended upon a willingness to be both proactive and flexible in a time of crisis.
Roark and Fox O’Mahony are not the first to observe that moments of crisis are also moments of opportunity; the Article draws upon prior work by Professors Nestor Davidson and Rashmi Dyal-Chand when discussing such opportunities.
As Comparative Property Law and the Pandemic highlights, many of the protections extended by the state—whether in terms of financial assistance or eviction bans—were, by design, temporary. The same arguably is true of the political space to help those in need: things going back to normal could cause a retreat to the neoliberal default of blaming the poor and protecting property owners. Such a retreat itself would arguably fit within Resilient Property Theory’s framework if the state felt it had to move in such a direction to shore up its own strength.
The article does not answer the question of whether Resilient Property Theory tends towards social inclusion or exclusion, but it is clear from the authors’ presentation that state resilience is highly contextual and more flexible than would be predicted by high theory absolutist claims.
Though this review is a celebration of their article, it is worth noting that the article gives a taste of the larger and more in-depth coverage of many of the same issues that are found in their recently published book—Lorna Fox O’Mahony & Marc L. Roark, Squatting and the State: Resilient Property in an Age of Crisis (2022).
For people interested in comparative property law and a fuller elaboration of Resilient Property Theory, the book is well worth checking out. But for those intimidated by the book’s four hundred plus pages and its detailed property histories of multiple nations, the article does a good job promoting a vulnerability theory approach to property.
Indeed, by moving from an emphasis on vulnerability to speaking primarily in terms of resilience, I would argue, Roark and Fox O’Mahony improve upon the theory and make it more likely that it finds a theoretical home within the diverse landscape that is property theory.
Aug 9, 2022 Gregory M. Stein
Zoning is under attack from all parts of the political spectrum. Those on the right have long decried zoning, arguing that land use matters are better left to private actors who can regulate without government intervention by using covenants and servitudes. Those on the left have more recently come to recognize that zoning has been used to segregate populations along racial and economic lines. What does this widespread criticism mean for the future of zoning?
Professor Michael Alan Wolf argues in his recent article, Zoning Reformed, that zoning is too entrenched to be abolished but that it needs to be reconstituted for its second century. In particular, zoning laws need to be reformed to address three contemporary challenges: climate change, pandemic resiliency, and social justice.
Professor Wolf does not suggest that localities should abolish zoning; rather, he is worried about inertia and inaction. He writes that “to do nothing to adapt zoning and other forms of land use regulation to the stark current and anticipated realities would be an abdication of responsibility, much like waiting for COVID-19 suddenly to disappear.” (P. 177.)
In short, these important problems are not going to go away on their own, so it is imperative that we make use of zoning to address them immediately.
He starts by tracing the history of zoning, which began at roughly the same time as the last global pandemic. Early zoning codes had two goals. First, they sought to reduce the types of urban congestion that were leading to the spread of disease. Second, they aimed to protect affluent city residents from the “huddled masses” they deemed less desirable, given that the Supreme Court had already struck down overtly racial zoning schemes. This historical background section serves to remind us that, from the outset, “zoning has been inextricably linked to distinctions based on caste, race, ethnicity, and social status.” (P. 184.)
In addition to separating people, zoning also separates land uses, of course. The current pandemic brings into question the desirability of segregating residential areas from shopping and office zones.
Millions of people spent the last two years working from their homes and many of them will likely continue to do so at least part of the time. Yet current zoning codes often prohibit this mixing of uses. Describing doctors who treat patients from home via telehealth, possibly in violation of local zoning ordinances, Professor Wolf inquires, “As long as those patients are not affecting traffic and parking in the neighborhood, why is it the concern of the zoning officials and nosey neighbors?” (P. 188.)
With families forced to live in “pods,” he wonders, why should single-family zones persist? Wouldn’t it make more sense to permit the types of group living that became more common as families sought protection from Covid?
Why should people have to commute long distances, perhaps using public transit, to reach stores that might otherwise be located within walking distance? Why shouldn’t families be allowed to construct accessory dwelling units for aging parents as an alternative to moving them to senior facilities in which illnesses may spread more easily?
Why, Professor Wolf asks, should a business lose its right to operate as a nonconforming prior use merely because it was forced to shut down temporarily at the peak of the pandemic, or because it elected to modify its business by constructing a safer drive-through window?
Modest zoning amendments may be appropriate reforms to codes that were drafted without anticipating these types of questions. More generally, Professor Wolf recommends that cities revisit cumulative zoning as a means of encouraging pedestrian-oriented development.
Later in his article, Professor Wolf provides a list of possible zoning amendments, each followed by a brief explanation and justification.
For example, it would not demand a huge change to a typical zoning ordinance to allow factories and warehouses to switch to the production and storage of medical supplies and equipment. Nor would it be difficult to amend a zoning code so that shopping malls and big-box stores that have gone dark—a trend that predates the pandemic—could be transformed into food banks, testing centers, and vaccination sites.
These uses may violate current ordinances, but recent events suggest that those ordinances have become outdated for reasons most of us did not anticipate. Now that we recognize these problems, we need to update our zoning ordinances accordingly.
In his conclusion, Professor Wolf offers a six-page checklist of the types of modifications that local governments should consider. While these modifications may have made sense for years, “there should be a new sense of urgency to strengthen the weakest links in the zoning and land use regulatory chain, now that we are witnessing the serious health-related, social, and financial effects of inattention and apathy.” (P. 236.)
Zoning ordinances tend to remain on the books unmodified for long periods of time. Knowledgeable and interested individuals who need minor changes may seek variances, while the rest of the population remains unfocused on land use issues that do not affect them directly and immediately. As a result, many localities are operating under codes that have not seen major review for decades.
Professor Wolf’s article is a much-needed reminder that we need to re-examine the presumptions underlying our zoning ordinances. It is always wise to review old laws to see if they continue to serve their intended purposes. Given the many curveballs that have been thrown at all of us during the past two years, it is even more important than usual that we ask whether our land use laws are continuing to accomplish the goals for which they were adopted, particularly when some of those goals are evolving rapidly.
Professor Wolf’s article is timely, thoughtful, and creative. Even if you do not agree with some of the modifications that he proposes, there are many other necessary and useful ones to choose from. Zoning Reformed is an important and worthwhile contribution that arrives at just the right time.
Jul 11, 2022 Carol Necole Brown
Noah M. Kazis,
Fair Housing, Unfair Housing, __
Wash. U. L. R. Online (forthcoming), available at
SSRN.
Walking across the parking lot from my law school to the annex building where my office is temporarily relocated, I spotted a trusted and dear colleague. She and I hugged and soon started talking about a sore topic for me, how my 1L property course was coming along. This is the second year I have been relegated to teaching my once four credit course as a two credit course. Just another one of the tragic consequences of Covid, I guess.
Only having two credits has meant that the discussion of many property topics, including housing law, has been truncated. In frustration, I uttered the words, “I’m just going to KISS it.” Her eyes widened as she inquired, “KISS it, what is that?” I replied, “I’m Going to Keep It Simple Stupid.” We looked at one another knowingly, we both laughed, and continued on our separate ways to our offices.
Soon thereafter, I came across Noah Kazis’ article, Fair Housing, Unfair Housing, in which he makes an insightful contribution to the seemingly intractable problem of unfair housing practices. Kazis’ thesis confirmed my weeks earlier conversation with my colleague; sometimes the best solution is found in keeping it simple.
Kazis offers his reader a plausible approach to impeding practices destined to result in unfair housing practices. Instead of focusing on defining and promoting fair housing, Kazis asks his reader to focus on how to eliminate practices that are certain to promote unfair housing outcomes.
The 1968 Fair Housing Act (FHA) mandates that the federal government and its grantees affirmatively further fair housing. In the more than 50 years since the FHA’s enactment, the country has made only modest progress towards significantly curtailing discrimination in housing.
As Kazis explains, the definition of fair housing is “multi-faceted, contested, and open-ended” as are the political, economic, social, and land-use regimes across the 50 states and their suburban, urban, and rural localities. (P. 7.) As a consequence of the indeterminacy of the definition and the complexity of the national housing landscape, we end up as a country where we are now. Without a consensus on what is “fair housing,” states and localities are virtually unencumbered in articulating their visions of fair housing, often to the detriment of making sustained progress in reducing discrimination in housing.
Kazis asks his reader to disrupt this way of thinking and to pivot away from trying to prescribe what constitutes fair housing. He suggests an alternative path.
Instead of articulating what fair housing looks like across the nation’s localities, Kazis encourages us to keep it simple and instead focus on the exclusionary practices that most scholars, planners, and housing experts agree tend to promote or increase exclusionary housing. Such practices include large lot zoning, bans on multi-family housing, and public housing residency preferences in predominantly white communities. (Pp. 15-16, 18.) The fix is found in dealing with the obvious first; those practices that are either already illegal or that should be suspect.
Kazis’ strategy can be imagined in two parts. First, HUD should focus on housing policies that a broad consensus of experts, advocates, providers, and consumers of housing agree are impediments to fair housing. HUD would promulgate and maintain a list of specific policies and practices, both public and private, historic and quantitative, that are suspect because of their correlation with unfair housing practices.
Second, public and private actors that maintain any of the identified suspect practices could continue these public or private practices provided they could justify, in detail and with specificity, why the suspect policy did not make housing less fair. Actors would be required to quantify the precise impacts of their suspect policies in order to address or justify them. If a public or private actor failed to meet its burden, it would be required to fully mitigate the impacts of its choices that result in unfair housing. (P. 16.)
In our complex, federal system, it is much harder to articulate a national solution to unfair housing than it is to identify laws, policies, and practices that almost facially make unfair housing more likely to occur and to persist. Kazis shifts the burden onto state and local governments to justify policies that HUD has identified as warranting special scrutiny.
His proposal seeks to clearly identify and focus on the “worst practices” that make unfair housing so pernicious. In so doing, Kazis argues there is a greater likelihood of connecting antidiscrimination enforcement processes with existing fair housing planning. (P. 18.)
Kazis is articulating one vision of how to create “clear metrics or policy prescriptions” to achieve fair housing. (P. 13.) He seeks to build upon consensus, those practices we can all agree tend to impede fair housing. Let us identify the worst practices, that destine us for unfair housing outcomes, and then incentivize states and localities to abandon these worst practices by subjecting them to consistently and persistently high levels of scrutiny. “It is time to refocus on unfair housing”–indeed.
Jun 7, 2022 Sara Bronin
Transportation policy is often overlooked in the legal academy. As far as I can tell, there are no traditional casebooks on the subject, no academic law blogs focusing on it, and no courses at the major law schools whose course catalogs I just happened to search.
Yet our transportation choices are hugely important. They shape our access to jobs, housing, schools, and economic opportunity. They impact our quality of life and our independence. From whether the mayor is fixing the potholes or whether the President will pass the infrastructure bill, transportation is the subject of constant debate at all levels of government.
A recent Iowa Law Review symposium, The Future of Law and Transportation, shone new light on the array of legal issues embedded in transportation decisions. It resulted in thirteen essays covering everything from the auto loan crisis to structural subsidies of sprawl. Among these, I think Reclaiming the Streets, by Vanessa Casado Pérez is especially worth a read because it deals with something most of us encounter every day but rarely consider—sidewalks.
When it comes to sidewalks, people tend to fall into two camps. The Jane Jacobs camp romanticizes them as hosting “an intricate ballet in which the individual dancers and ensembles all have distinctive parts which miraculously reinforce each other and compose an orderly whole.”
The Shel Silverstein camp holds the grim view expressed in the poetic childhood mainstay “Where the Sidewalk Ends”—“this place where the smoke blows black / And the dark street winds and bends. / Past the pits where the asphalt flowers grow.”
Writing this piece at a desk overlooking a busy park, I fall into the Jacobs camp: every day, I see how sidewalk life adds charm and vitality to our shared public realm. Pérez does, too. She spends the first part of her essay selling the benefits of sidewalks. She claims that sidewalks can “make us just as happy as when we fall in love.” She also points out that sidewalks encourage people to walk, making them healthier. They positively impact real estate prices. And they save pedestrians’ lives, too.
In making these arguments, Pérez relies on planning literature too often excluded from law reviews. She swiftly dispenses of criticisms of sidewalks. She shows that fears that sidewalks bring crime are unfounded, relying on behavioral research proving Jane Jacobs’ observation that eyes on the street make it safe. Further, she addresses the critique that sidewalk pavement could have negative environmental benefits, arguing that getting people out of their cars reduces pollution, and smart sidewalk design can mitigate storm water runoff and urban heat island effects.
Pérez then observes that the COVID-19 pandemic has allowed more people to experience the value of sidewalks, which have become our shared, safe, outdoor living room. During the pandemic, cities have expanded sidewalks into street parking, often allowing outdoor dining or adding other amenities like benches or performance space. She argues that this expansion is legally consistent with the public right of way easements in the cross-section of the street.
At the same time, Pérez points out the difficulty in making these pandemic-era choices permanent. For one thing, many sidewalks are owned or controlled by private owners. For another, transportation funding structurally favors roads, leaving fiscal breadcrumbs for sidewalks.
As an additional approach, Pérez suggests zoning and other land use regulations change to support sidewalk life. Enabling denser development and mixed-use development can complement and inspire public investments in sidewalks. She examines and supports implementation of design guidelines favoring walking infrastructure, like the Urban Street Design Guide offered by the National Association of City Transportation Officials. (I reinforce her calls for these changes in my piece in the same Iowa Law Review volume.)
Pérez hints at the issue of equity in sidewalk provision, mentioning that minority and low-income neighborhoods see more pedestrian crashes than neighborhoods without those characteristics. Roads without sidewalks, or with poorly provisioned sidewalks, see more pedestrian injuries. For readers hoping to further connect the dots between infrastructure funding and equity, I recommend Transportation Policy and the Underdevelopment of Black Communities, also in the Iowa Law Review volume, by NYU professor Deborah Archer. (In another Jotwell post, Sarah Schindler wrote about Archer’s 2020 article, “White Men’s Roads Through Black Men’s Homes.”)
In sum, Pérez’s tidy essay illuminates key policy issues associated with this seemingly mundane urban feature. Scholars and practitioners must think more carefully about the kinds of reforms that can ensure that we have the kinds of sidewalks worth our arabesques, pliés, and pas de deux.
May 9, 2022 Shelley Ross Saxer
In his recently published book, Regulatory Takings After Knick, Total Takings, the Nuisance Exception, and Background Principles Exceptions: Public Trust Doctrine, Custom, and Statutes, David Callies supplies an instructive overview of the Supreme Court’s framework for analyzing regulatory takings challenges. In so doing, he turns his attention to one of the most significant land use decisions in decades, Knick v. Township of Scott, Pennsylvania.
Nearly 100 years after its Pennsylvania Coal v. Mahon decision, the Court in Knick overruled a portion of the ripeness test for takings claims it established in Williamson Co. v. Hamilton Bank in 1985. The Knick decision eliminated the ripeness hurdle, pursuant to which, a landowner had to litigate an inverse condemnation claim in state court and have the court deny just compensation before suing in federal court. Knick left in place the finality requirement from Williamson Co., which requires a litigant to obtain a final decision from the relevant government entity before bringing a takings claim.
Landowners and property rights advocates hailed Knick as eliminating the “Catch-22” that litigants experienced under the Williamson Co. test, which required property owners to sue in state court first and then face claim preclusion or res judicata when they attempted to bring a subsequent federal challenge under the Fifth Amendment.
In Chapter 1 of his book, Professor Callies provides a detailed view into the problems encountered under the Williamson Co. ripeness test. He illustrates how Knick both eliminated the state action requirement and lowered the jurisdictional barrier to federal court by establishing the discretionary nature of the remaining ripeness doctrine. The result of the Knick decision is that ripeness no longer acts as a jurisdictional barrier to federal court.
Professor Callies also explores the 2017 Hawai`i Supreme Court decision, Leone v. County of Maui, to illustrate the importance of providing federal court access for regulatory takings claims. He explains that in Leone, the state high court “ignore[d] federal case law on regulatory takings.” In so doing, he reveals the impact and power of the Knick decision. After Knick, litigants similar to those in Leone can first bring their regulatory takings claims to federal court, thus avoiding the barriers to federal court that litigants encounter after first suing in state court.
In the remaining Chapters, Professor Callies steps through the various exceptions that could preclude a total takings claim under the 1992 decision in Lucas v. South Carolina Coastal Council. Lucas created a categorical rule for regulatory takings and established that just compensation is due whenever a government action denies a property owner “all economically beneficial use” of land.
The Court also provided an exception to the Lucas rule, writing that if the government action prevents a nuisance or is grounded in the state’s background principles of property law, the government action is not a taking. The Court explained that because property owners do not have a right to use their property for such purposes, they have no property interest to be taken.
The background principles of law exception has included the public trust doctrine, custom and customary rights, and in some cases, statutes and constitutions. In Chapters 2 – 5, Professor Callies offers a detailed discussion of the background principles and nuisance exceptions, illustrating how courts across the country have applied these concepts.
This small but mighty book offers a concise history and understanding of takings jurisprudence as it stood before and after the Knick decision. It brings clarity to a convoluted chronicle of takings litigation and presents specific situations where litigants have asserted a total taking claim and the defense has relied on the various exceptions to Lucas.
This rich and comprehensive information should aid lawyers, courts, scholars, and law students in anticipating and analyzing future factual situations that raise takings challenges. By reducing the “Catch-22” ripeness requirements, the Knick Court has given landowners greater opportunities to bring federal court challenges to government actions interfering with property rights. By carefully parsing the cases asserting the exception defenses to a Lucas categorical taking, Professor Callies has helped prepare us to address such takings claims, now coming first to federal courts.
Cite as: Shelley Ross Saxer,
The Impact of Knick on Regulatory Takings and Those Pesky Lucas Exceptions, JOTWELL
(May 9, 2022) (reviewing David Callies,
Regulatory Takings After Knick, Total Takings, the Nuisance Exception, and Background Principles Exceptions: Public Trust Doctrine, Custom, and Statutes (2020)),
https://property.jotwell.com/the-impact-of-knick-on-regulatory-takings-and-those-pesky-lucas-exceptions/.
Apr 5, 2022 Shelby D. Green
Despite their solid, lifeless guise, monuments speak. But whose stories do they relate? Recently, there has been much debate about the role and purpose of monuments; which monuments or memorials deserve protection and which ones should be removed.
In We Are All Growing Old Together: Making Sense Of America’s Monument-Protection Laws, Professor Zachary Bray, aims to help us see that the views on these issues do not align nicely between North and South, conservative or progressive. Instead, the issue is much more multi-dimensional.
Professor Bray offers an analysis of the issue largely in the context of Confederate statue protection statutes and federal preservation laws.
While these monuments have stood boldly in the public spaces for many decades, recent events have caused us as a nation to look and ask what we are celebrating by their construction. Particularly, the Charlottesville protests of 2018 operated to thrust monuments, long in the open, into light.
Since Charlottesville, there have been many battles over all types of monuments and memorials, including namings (bridges, forts, highways and schools) and not just those celebrating the Confederacy, but also to events, persons and attitudes about industry and national fortitude and those celebrating natural areas (Bears Ears National Monument in Utah and the Owyhee Canyonlands in Oregon).
The country is now pondering the value of these in many ways—some people are violently toppling and defacing monuments; others are suing in court for their removal. In his article, Professor Bray explores what these monuments and these new contests signal about larger issues of liberty and law in the country.
He sees part of the problem as legal and the other part has to the do with stories associated with the monuments—some truthful, some contrived, and others imagined. He points out wide-ranging love and antipathy for monuments, depending on a host of factors—whether one lives in the area of a national monument (those residents feeling put upon by outside power) or in former Confederate states (those still clinging to the Lost Cause narrative).
As both natural and manmade monuments are imbued with a degree of permanence (by their protection against development and by their mass), so too do their messages take on such a character. Interestingly, preservation of some monuments with objectionable or unpopular messages are sometimes independently claimed to be worth saving on account of architectural merit. But, can we really separate those features?
Noting this conflict exists in other countries as well as here in America, Professor Bray maintains that there is yet something unique about America that makes the issue particularly intractable.
Given our colonial history, the early idea that erecting statues to war heroes (George Washington, being the first considered) was worryingly reminiscent of the monarchy just overthrown. In the words of John Quincy Adams, “Democracy has no monuments.” Congress rejected the idea of a mausoleum to Washington and the suspicion of built memorials endured.
But, there was a gradual shift in attitudes leading to the creation of rural cemeteries in the nineteenth century that commemorated events of the lives of the most significant events in the early history of the country. This shift in turn led to the filling up of public spaces with statues of war dead.
Over time, the messaging became more overt and oppressive to some, the Lost Cause Mythology in particular. The early attitudes against manmade memorials seemed to carry over against natural monuments—nature being viewed as “hostile, even demonic.” Not until the mid-nineteenth century did we begin to revere natural landscapes and begin to see a similar transformation towards Native American history and the appreciation for archeological resources.
Yet, America remains of two minds about memorials. To understand the differing views, it is necessary to consider the complex regimes at work to see what they aim to protect—from the Antiquities Act of 1906 to the National Historic Preservation Act of 1966 (NHPA) to the state statue protection statutes. While the federal laws purport to be content neutral, this is clearly not the case with the state statue protection statutes, which exist in eight southern states, and are most clearly aimed at protecting monuments to the Confederacy. By their terms, these state statutes constrain local governments and communities from any decision-making on the values of retaining certain statues in their public squares.
While most of the monuments currently in controversy were erected during the height of the post-Jim Crow era, some of the statue protection statutes were enacted or proposed in just the past couple years—for example, in North Carolina in response to the removal of the Confederate flag and in the South Carolina state capitol after the Charleston church massacre. Monuments outside the South have also been the subject of public condemnation, including the statue to Columbus in Columbus Circle in New York City.
After comparing the preservation of historic properties under the federal regime, Professor Bray asserts that state statue protection statutes should be repealed, principally because they are constitutionally suspect—their messages are discriminatory and operate to exclude.
These state statue protection statutes are anti-communitarian and tend to divide more than unite. The NHPA and related federal statutes do a much better job at preserving those things worthy of protecting. By design, these federal statutes use the nomination process and criteria for listing on the national register as means to at least purportedly embrace the wide views of communities.
To be sure, there have been howls against Presidents’ exercise of powers under the Antiquities Act, but one significant difference between this Act and state statue protection statutes is that the Antiquities Act protects national treasures that cannot be repaired or replaced. Nonetheless, Professor Bray seems open to some proposed revisions to the Antiquities Act that would allow deeper consideration of local concerns. One could also say the National Register has a lot to make up for to include the narratives of diverse people.
In the end, Professor Bray prompts us to see that the celebration of events and figures of history is a worthy endeavor, but the decision-making process on what and how long to protect may need deeper thought.
Feb 24, 2022 Andrea Boyack
In the most powerful and important article I have read in years, The History Wars and Property Law: Conquest and Slavery as Foundational to the Field, Professor K-Sue Park blows the cover off American property law to show the central role played by historic expropriation and commodification of Native lands and Black persons.
Conquest of land and enslavement of people make up a small or nonexistent part of most first-year property law courses. But without these two organizing principles, the property course in U.S. law schools seems disjointed and oddly Anglicized. Professor Park explains this lack of cohesion as resulting from persistent erasure of two of U.S. property law’s most foundational aspects: conquest and slavery.
Park’s work has helped to publicize the stubborn impacts of past and present racial injustices in America. Over the past year, this increasing awareness of systemic racial bias has sparked an angry backlash. As Park puts it, “[w]e are in the midst of an ongoing fight over competing versions of U.S. history.”
Park discusses four characteristics of American property law that arose to facilitate the commodification of land and people and still pervade the jurisprudence today: (i) our rectangular survey system that slices land into marketable pieces, (ii) title certainty promotion using public land records, (iii) tying ownership rewards to entrepreneurial uses, and (iv) the hyper-commodification that underlies mortgage financing. In addition, Park points out that both conquest and slavery were marked by the privatization of violent racial oppression and segregation, which appears to be another pervasive property theme rooted in this history.
Park’s exhaustive study of nearly every published property casebook over the past 130 years is especially informative. Only recently have casebooks started to include any readings on the expropriation of Native lands, typically containing exactly one case, Johnson v. M’Intosh, which, in most casebooks, is inadequately connected to the rest of the course material.
Since the 1940s, property casebooks have barely mentioned slavery, although for 60 years prior, cases pertaining to property rights in enslaved persons were routinely used to illustrate quotidian property law principles such as inheritance, conversion, and conveyancing. This tactic “presented white ownership of Black people as part of the natural social order,” (P. 16) even though slavery had been abolished.
Today’s property casebooks and scholarship “amply illustrate conspicuous avoidance of the history and legacy of American chattel slavery alongside awkward, marginal mentions of the word.” (P. 21.) It is as if we hope that if no one mentions Black slavery and the near genocide of Native peoples, these horrific histories will just go away.
But when these concepts are ignored or marginalized in law schools, students never adequately consider the impact that conquest and slavery have had and continue to have on our property law system.
Expropriation of Native lands and Black chattel slavery in America are not simply historic facts to be learned. They made our law the way it is today. For example, laws creating rectangular surveys facilitated land partition, recorded land titles promoted marketability, and creditor rights to real estate encouraged expansion and monetization of land which, in turn, encouraged white settlers to expand and assist in expropriating Native lands.
A contorted conception of labor and forceful and absolute private property protections evolved in large part to protect the institution of race-based chattel slavery. The values and concerns motivating such property law developments are the fabric out of which our modern property law was woven.
Echoes of slavery and conquest still run through and influence virtually every part of property law. The traditional Anglo-centric framing of property law obscures all these impacts.
Erasure of conquest and slavery from the property law curriculum sets up a dissonance between property theory and property reality. Property theory is dominated by first-in-time, labor theory, and possession. None of these theories, however, can justify conquest or slavery.
Marshall’s opinion in Johnson recognized limited occupancy claims of Native Americans, but the case denigrated first-in-time rights held by indigenous peoples and thus abrogated the maxim.
Locke’s labor theory fares no better when held up against the facts of land expropriation. Although Locke spoke of tilling and planting land as sufficient to justify private ownership, American real property law only rewarded labor that changed a piece of land into a marketable commodity through mapping and establishing record title certainty. Furthermore, Locke’s labor theory starts with the presumption that every person is inherently, naturally entitled to their own labor, but explicitly excludes “the wild Indian” and African peoples from having that natural right.
Property law claims to adopt a possession-based approach to allocation determinations, but acts of dispossession were required to transform places and people into things subject to ownership in America. As Park explains, “lands acquired monetary value upon Native removal from them, actual or projected; human beings acquired monetary value upon their subjugation.” (P. 35.)
Because American colonists acquired property rights by forcibly wresting control away from others, U.S. property law “flipped the ancient priority of maintaining the status quo on its head” (P. 45) and created a property system founded on expropriation rather than security.
The genius of Park’s framing is that once the system is viewed as an expression of the desire to subjugate lands and enslave persons, many other distinctive facets of U.S. property law take on new meanings as well. Framing our property law as essentially a mechanism to encourage commodification and monetization of resources at all costs—including through violence and dehumanization—causes doctrines of accession, free alienability, privatization of public functions, self-help, and title certainty to take on a significantly different, racialized, hue.
Park’s work can—and should—be the catalyst for systemic reconsideration of U.S. law school property curricula. Our property law classes teach a fiction of first-in-time rules and Lockean labor justifications. It is time for scholars and students to face facts: American rules regarding property were designed to generate money through state-sanctioned and coordinated violence and theft. The rules of property law may currently support a peaceful, predictable system of private ownership, but the system originated as the honor among thieves.
