Reconfiguring Property in Three Dimensions
This Article greatly benefited from comments and criticisms by Ben Depoorter, Lee Anne Fennell, Mark Fenster, Sonia Katyal, Jim Krier, Tom Merrill, Adam Mossoff, Dan Richman, Ed Rock, Carol Rose, Chris Serkin, Peter Siegelman, Henry Smith, Phil Weiser, and participants in the 2007 Property Works in Progress Conference at the University of Colorado Law School.
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Every property problem spans three distinct dimensions: number of owners, scope of each owner’s dominion, and asset design. These three basic dimensions can be traced back to Blackstone’s famous encapsulation of property law as the “sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” Blackstone described the optimal dominion as absolute (“sole and despotic dominion”), the ideal number of owners as one (“a single man”), and the subject matter of property rights to be very broad (“over the external things of the world”). Blackstone’s description has proved a durable—albeit inaccurate—reference point for property theorists, who have directed their attention to each of the three dimensions identified by Blackstone— dominion, ownership, and asset—in descending order of importance.
In this Article, we argue that the idealized Blackstonian characterization led many subsequent scholars astray.
This Essay was written, in part, while Schottenfeld was a lawyer for the NAACP, but it does not necessarily reflect the views of the NAACP. Both of us have worked with or represented members of the Sandridge community and other communities mentioned in this Essay; the views expressed in this Essay are ours alone, but we are deeply grateful for the inspiration and insight we have drawn from these communities and their members. We thank Richard Buery, Devon Carbado, David Chen, Daniel Harawa, and Erika Wilson for their very helpful comments on earlier drafts. We are grateful to Chloe Bartholomew, Suchait Kahlon, Nina McKay, and Briana Thomas for their research assistance; to Kathleen Agno for her ongoing research support; and to Helen Zhao and the editors of The University of Chicago Law Review for greatly improving this Essay. We also appreciate the insights received from participants of the Lutie Lytle Black Women Scholarship Workshop. Finally, we gratefully acknowledge support from the Filomen D’Agostino and Max E. Greenberg Research Fund, New York University School of Law.
This Essay was written, in part, while Schottenfeld was a lawyer for the NAACP, but it does not necessarily reflect the views of the NAACP. Both of us have worked with or represented members of the Sandridge community and other communities mentioned in this Essay; the views expressed in this Essay are ours alone, but we are deeply grateful for the inspiration and insight we have drawn from these communities and their members. We thank Richard Buery, Devon Carbado, David Chen, Daniel Harawa, and Erika Wilson for their very helpful comments on earlier drafts. We are grateful to Chloe Bartholomew, Suchait Kahlon, Nina McKay, and Briana Thomas for their research assistance; to Kathleen Agno for her ongoing research support; and to Helen Zhao and the editors of The University of Chicago Law Review for greatly improving this Essay. We also appreciate the insights received from participants of the Lutie Lytle Black Women Scholarship Workshop. Finally, we gratefully acknowledge support from the Filomen D’Agostino and Max E. Greenberg Research Fund, New York University School of Law.
Historic discrimination in the process of siting and constructing physical infrastructure has sacrificed the Black communities that bear the costs associated with new roads, power lines, and sewage plants while receiving few of the benefits. This Essay advances a "community equity" framework to recognize and protect the sources of value that people hold in their communities. This approach looks beyond the traditional domains of civil rights and land use law. Instead, it embraces analogies in public nuisance and common law torts doctrines as mechanisms for recognizing community harms above and beyond the aggregate of individual claims.
I would like to thank Professors Saul Levmore and Lior Strahilevitz for their thoughtful advice and insight and the editors and staff of The University of Chicago Law Review for their valuable feedback and edits.
In Stop the Beach Renourishment v. Florida Department of Environmental Protection, a plurality of the Supreme Court held that the Takings Clause applies to the judiciary as it does to any government actor. In the more than fifteen years since, none of the sixty courts to consider judicial takings claims have found a judicial taking. In this Comment, Coby Goldberg provides the only comprehensive analysis of the judicial takings caselaw since Stop the Beach, in order to determine why no court has found a judicial taking. Based on this analysis of the caselaw, this Comment suggests that finding a judicial taking is all but impossible. That conclusion does not mean that judicial takings doctrine has had no influence on property jurisprudence in the years since Stop the Beach, however. This Comment identifies three cases in which state courts have used the possibility of judicial takings as reasons not to make decisions that undercut property rights. In those cases, judicial takings doctrine is functioning as something akin to a canon of constitutional avoidance. If decided the other way, none of those three decisions would have avoided actions that would have amounted to judicial takings. This Comment thus concludes that judicial takings doctrine leads to worse outcomes in property law, and so, out of a concern for constitutional problems that never arise, courts reject decisions they would otherwise adopt.
The Fair Housing Act (FHA) makes it unlawful to deny people with disabilities “reasonable accommodations.” But courts have long split over how to interpret this provision. At the center of the divide is the statutory requirement that an accommodation be “necessary to afford . . . equal opportunity to use and enjoy a dwelling.” Some courts interpret this language to impose a strict-necessity standard, requiring that an accommodation be truly indispensable. Other circuits instead read the statute as imposing a lenient-necessity standard, requiring only that the requested accommodation ameliorate the plaintiff’s disability. Rather than pick one interpretation, this Comment suggests that courts should tailor the necessity standard they employ to the type of case that is brought. Analyzing the text of the statute, Ben Griswold argues that the term “use and enjoy” invokes common law property ideas that should inform the interpretation of the reasonable accommodation provision. This textual analysis indicates that courts should apply a lenient-necessity requirement to cases brought by housing occupants requesting a specific accommodation, but should apply a strict-necessity requirement in cases brought by developers seeking zoning variances. Further, this interpretation addresses important information asymmetries, enabling courts to more optimally select for societally beneficial accommodations.