Nov 27, 2025 Ezra Rosser
Professor Sara Bronin’s book, Key to the City, pulls back the curtain on how urban zoning works. And through in-depth city case studies, it shows how communities can be improved through zoning changes.
For those who write and teach in the property law space, the most interesting part of the book is probably how Professor Bronin pushes for major deregulatory changes without falling into the trap of arguing for the scrapping of all rules. And all readers who care about urban spaces will appreciate the breadth and depth of the community profiles used to both illustrate and inform Professor Bronin’s arguments.
This is a book that should be read by those who teach Property and by everyone who cares about the future of cities.
As the title suggests, Key to the City is an urbanist’s take on zoning. Professor Bronin does not shy away from the first person but neither does she let personal stories overwhelm the text. It is not a “look at me” book but instead an invitation by Professor Bronin to consider cities through her eyes.
Those who are less enamored of cities—including this reviewer who still longs for the off-the-grid cabin where he was born and struggles with the fact that even in bedroom communities you can usually see your neighbors—may not agree with the book’s attacks on suburbs or neglect of rural spaces. But if readers set aside their own anti-urban biases, Professor Bronin offers up a vision for improving urban spaces by reinvigorating communities and freeing up the creative potential of cities.
Key to the City came out of Professor Bronin’s work as head of the Planning & Zoning Commission of Hartford and as founding leader of the National Zoning Atlas, so it is not surprising that the book has examples from across the nation while still being grounded on the zoning reform efforts that happened in Hartford.
The book takes readers from the recording studios of Nashville, Tennessee (made possible by permissive zoning) to the streets of Burlington Vermont. Drawing on rich portraits of zoning issues in Austin, Baltimore, Buffalo, Burlington, Chicago, Delray Beach (FL), Galveston, Las Vegas, Nashville, Phoenix, San Diego, and, of course, Hartford, the book’s refrain is that bad zoning decisions have choked off valuable forms of urban dynamism and cities need to free themselves from overly restrictive rules.
While the housing affordability crisis, or perhaps the housing supply crisis, has led numerous scholars to highlight the need to reform zoning to allow greater density and to check on the power of NIMBY property owners, Professor Bronin takes a broader perspective on the problem of excessive regulations. Readers are likely to leave convinced of at least two things: (1) zoning should be defined broadly, and (2) thriving urban environments are often built on mixed, multi-layered uses.
Key to the City repeatedly calls out the ways car-centric transportation harms urban spaces by making development too expensive as a result of parking space requirements and by prioritizing traffic speed over walkability. Similarly, the book highlights how allowances for light industrial uses such as craft brewing, for entertainment venues such as nightclubs, and even for small corner stores in residential areas can help cities meet resident needs and support a vibrant urban community.
The final substantive chapter of the book argues for a curated approach to urban development, suggesting that planners should ensure continuity of lines and forms. Professor Bronin argues that even with such limits designed to ensure cohesiveness there is still lots of space for individual preferences.
Coming at the tail end of a largely deregulatory book, the celebration of curated neighborhoods is not fully convincing. Nor, for that matter, is the ode to the Georgetown neighborhood of Washington, D.C. as the country’s best neighborhood (curation is great if it is built on an exclusionary pile of money and privilege, but it is very hard to reproduce elsewhere). But such points actually add to the book rather detract; ultimately, Key to the City is itself a celebration of well-planned urban development, something still exemplified in these curated neighborhoods.
Professor Bronin’s work challenges readers to think big when it comes to zoning reform. And it illuminates the beauty that is possible in urban spaces and the ways in which poorly conceived regulations can thwart our collective hopes for cities. Residents in the communities with such poorly conceived regulations deserve better, and Key to the City stands as a powerful call for (thoughtful) action.
Oct 29, 2025 W. Keith Robinson
In 2020, the Supreme Court’s decision in NCAA v. Alston rocked college athletics by dismantling the NCAA’s amateurism model. In the wake of Alston, the ability of student-athletes to profit from their name, image, and likeness (NIL) has transformed college sports. Athletes are now recruited for their athletic ability and also viewed as economic actors. While the NCAA has revised its policies to allow for athlete compensation tied to NIL, the broader legal and regulatory terrain remains unstable. It is against this backdrop that Professor Mitchell Crusto’s thought-provoking article, What is Property?: A Libertarian Perspective of Name, Image, and Likeness, offers an important intervention.
A longtime leader in exploring how property law intersects with issues of race, class, and power, Professor Crusto turns his attention to the NIL revolution with great depth. His central claim is that NIL should be understood not as a right of publicity but as a form of property. That conceptual shift, he argues, would more effectively enable student-athletes to realize the economic value of their NIL while offering them stronger protection against exploitation.
Professor Crusto’s article could not be timelier. College athletics is undergoing a sea change. From the expansion of the College Football Playoff to ongoing efforts to enlarge the NCAA men’s and women’s basketball tournaments, college sports is being reshaped. Yet amid the chaos, Congress has failed to enact a national NIL framework. Instead, states have filled the vacuum with a patchwork of legislation which is often designed less to protect athletes than to give their states’ colleges and universities a competitive edge in recruiting.
Professor Crusto’s article is valuable on multiple levels. It provides a comprehensive and accessible introduction to NIL law. More importantly, it advances a compelling argument for grounding NIL rights in property rather than tort, explaining how such a move would better promote autonomy, dignity, and economic justice for student-athletes. The article also includes a proposed legislative model that would recognize and protect NIL as property. Ultimately, what makes his article so powerful is its focus on athletes because they are the ones that generate the value at the heart of college sports.
The article grounds its argument in a critique of the current legal framework surrounding NIL. Current NIL doctrine is rooted in tort law, specifically the common law right of publicity. As Professor Crusto explains, the right of publicity emerged from the broader right to privacy, a doctrine with varying definitions. That history raises concerns about whether the right of publicity can bear the full weight of the modern NIL economy.
One of the article’s key criticisms is that few states have codified the right of publicity, leaving it vulnerable to inconsistency. Even where it exists, the right tends to lack transferability which is one of the most critical features of property law. This makes it poorly suited for the commercial realities of NIL licensing. Without the ability to transfer or assign rights, NIL becomes a less useful asset. The article notes that under a right of publicity framework, NIL protections are also largely reactive. That is, they arise only when someone misappropriates an athlete’s likeness without permission. In contrast, property rights are proactive. They give the owner affirmative control over use, transfer, and exclusion.
Professor Crusto argues that grounding NIL in property law better serves the legal and economic interests of athletes. A property-based framework would allow student-athletes to license their NIL rights to third parties, who in turn could enforce those rights against infringers. It would also make clear that NIL can be transferred, inherited, or securitized. These are key to enabling athletes to participate in the same market that already governs the institutions profiting from their labor and identity. Tellingly, Professor Crusto reports that only one state, Texas, has enacted legislation addressing the descendability of general NIL rights. That statutory silence underscores the need for a more comprehensive legal theory that views NIL as a form of property.
In turn, Professor Crusto articulates three core justifications for treating NIL as property, grounding his claims in constitutional theory, economic fairness, and public policy. First, Professor Crusto roots his argument in foundational constitutional principles. He contends that NIL is a modern extension of private property embraced by the Framers and includes not only physical assets but also the right in one’s person or persona. He draws an analogy to intellectual property, noting that just as federal law protects creations of the mind, so too should it protect the attributes of identity through which individuals generate value. Under this view, the right to one’s NIL flows directly from a deeper constitutional commitment to autonomy and ownership.
Second, Professor Crusto contends that treating NIL as property is a more effective mechanism for maximizing economic value and guarding against exploitation. Property law offers tools that tort law does not: the ability to license, transfer, and inherit rights; to use NIL as collateral; and to incorporate NIL into estate planning and intergenerational wealth strategies to name a few. These are concrete advantages that could materially improve the financial futures of college athletes.
Third, Professor Crusto argues that treating NIL as property would advance several public policy goals. Most notably, it would provide stronger safeguards for athletes, many of whom are students of color or from economically marginalized communities. In addition, this framework could help address broader structural inequities. For example, empowering younger individuals to treat NIL as a transferable, inheritable asset may contribute, however modestly, to narrowing the generational wealth gap.
In sum, Professor Crusto has offered a thoughtful and timely intervention into a complex and rapidly evolving legal landscape. His article clearly lays out the current state of college athletics, explains what NIL is and how it operates under existing legal frameworks, and carefully diagnoses the limitations of grounding NIL rights in the tort of right of publicity. Further, it advances a compelling case for reimagining NIL through the lens of property law and explains the practical and policy benefits that would follow.
This is a work that will resonate across multiple audiences. It could be assigned just as easily in a first-year Property course as in a Sports Law seminar. It offers value to scholars interested in doctrinal development, to policymakers looking for implementable reforms, and to athletes and advocates working on the front lines of NIL equity. Professor Crusto has contributed to an important ongoing conversation by clarifying the rights at stake and offering a solution for how to protect them. Anyone interested in the future of college athletics and the rights of college athletes would do well to read this article.
Cite as: W. Keith Robinson,
The Case for NIL as Property, JOTWELL
(October 29, 2025) (reviewing Mitchell F. Crusto,
What is Property?: A Libertarian Perspective of Name, Image, and Likeness, 16
Harv. J. of Sports & Ent. L. 1 (2025)),
https://property.jotwell.com/the-case-for-nil-as-property/.
Sep 29, 2025 Serena Williams
When teaching property law, professors often reference the historical distinction between the freehold estate and the nonfreehold estate. The nobles held the freehold estates; the peasants held the nonfreehold estates.
Thus, “from the beginning, the nonfreehold estate was seen as less important and less prestigious than the freehold estate.” Because the landlord/tenant relationship evolved from the nonfreehold estate, one might deduce that tenants are “less important and less prestigious” than property owners and thus, are less deserving of legal protections than owners of a fee simple.
Professors Clara Potter and Lauren Godshall, in their article Renting at the Edge of the World: Climate Change Protections Failing Renters, test whether that deduction is accurate and enduring. They argue that one critical area where tenants continue to receive less protection than homeowners is in the realm of climate change. They explain that current policies and programs designed to address the adverse effects of climate change are often structured around property ownership, thereby neglecting renters. This oversight exacerbates housing inequities, particularly since people of color disproportionately represent the renter population.
A central theme of their article is that laws, policies, and practices have developed such that those renting a home receive fewer protections than those owning a home. One historical example the authors briefly explore is how common law traditionally placed the risk of habitability on tenants, requiring them to bear the consequences if leased premises became uninhabitable.
Although the doctrine of the implied warranty of habitability has since emerged in some jurisdictions to protect tenants from unsafe rental conditions, questions remain about its adequacy in the face of climate-related disasters.
For instance, when a rental unit is destroyed or becomes uninhabitable due to a hurricane or flood, the tenant should be relieved of rent obligations under the implied warranty. Yet that tenant is now displaced and must compete for housing in a market simultaneously disrupted by the same event. Moreover, as the authors point out, in some jurisdictions—such as Louisiana—the lack of habitability may not excuse nonpayment of rent, leaving tenants financially vulnerable and possibly unhoused after the disaster.
While climate change threatens both renters and homeowners, the legal and policy response has overwhelmingly focused on those who own property. Renters are at risk for damage to or destruction of their rental property and government condemnation of their communities. Renters are at risk that their landlords may fail to repair and maintain the premises. Additionally, renter households may not have the financial resources to evacuate should a disaster occur. Yet, as the authors emphasize, few programs have been tailored specifically for renters affected by climate change.
Potter and Godshall review federal programs administered by FEMA, HUD and the National Flood Insurance Program that could assist renters with post-disaster benefits. Although the programs are available to renters, they have limitations. For example, financial assistance with repairs and longer-term hazard mitigation are usually only available to owner-occupied homes.
The authors also review state programs, asserting that “how a state treats renters when not in crisis is often amplified during times of crisis.” Assistance to tenants during weather-related disasters often reflects the state’s habitability and eviction protections.
Comparing how New Jersey managed relief and mitigation after Hurricane Ida with how Texas managed relief and mitigation after Hurricane Harvey, the professors conclude that certain parts of the country will be inhospitable to renters as climate change worsens. However, even in a state like New Jersey that has created some benefits for renters, programs continue to prioritize homeowners over renters.
Two local pilot programs are reviewed as well. One program in Philadelphia is designed to assist landlords, particularly small landlords renting to low-income residents, with making repairs, many related to concerns regarding climate-change habitability (e.g., heating and cooling systems and energy efficiency upgrades).
In proposing and analyzing possible solutions, the authors challenge policymakers to reimagine legal concepts to better protect renters from the detrimental effects of climate change. They recommend several reforms to ensure that tenants receive equitable treatment, including mandating landlord disclosure of prior flooding in rental units and incorporating renter needs into managed retreat policies from vulnerable areas. Most importantly, they argue for the construction of affordable, climate-resilient housing as a transformative step forward.
Rising seas, sweltering summers, hurricanes, flooding, and droughts; renters and homeowners will both suffer from the impacts of climate change. Professors Potter and Godshall emphasize how current laws and policies treat renters differently than homeowners when seeking to mitigate those impacts, leaving renters with fewer protections from the harms of climate change. Their work challenges lawmakers and legal educators alike to reconsider the legacy of the freehold/nonfreehold distinction—and, with it, the assumptions about whose interests the law is designed to protect.
Aug 29, 2025 Carol Necole Brown
Danielle Stokes,
Renewable Energy Federalism 2.0, available at
SSRN (Dec. 2, 2024).
In a time of deepening political polarization and growing judicial skepticism toward administrative power, Professor Danielle Stokes’ essay, Renewable Energy Federalism 2.0, offers a timely, thoughtful, and forward-looking response to the challenges of environmental governance in the United States. By developing the concept of “sustainable collaborative governance,” Professor Stokes updates her earlier work on collaborative federalism and provides a comprehensive framework for navigating the complex legal and political realities surrounding the renewable energy transition.
At the heart of her essay is an important conceptual evolution. Professor Stokes distinguishes between collaborative federalism, which primarily emphasizes formal cooperation between federal, state, and local governments, and collaborative governance, which encompasses a broader spectrum of actors, including private industry and civil society.
Her expanded framework recognizes that governance, particularly in the energy transition context, does not occur solely within governmental hierarchies but involves overlapping, often informal, networks of power and influence. This reorientation reflects her awareness of recent judicial and political shifts that have constrained traditional regulatory approaches.
Recent Supreme Court decisions—West Virginia v. EPA, Sackett v. EPA, and Loper Bright Enterprises v. Raimondo—serve as a backdrop for Professor Stokes’ essay. Rather than focusing on the erosion of agency authority, Professor Stokes takes these rulings as a challenge to reimagine regulatory pathways that remain constitutionally sound yet sufficiently flexible to advance decarbonization goals.
She identifies a viable path forward grounded in cooperative, multi-actor processes that can thrive even in an era of judicial retrenchment. This adaptability is one of her essay’s great strengths, reflecting a resilient scholarly approach that engages with, rather than retreats from, political and legal reality.
A defining feature of Professor Stokes’ new framework is the integration of sustainability principles at its core. She advances a tripartite structure—environment, equity, and economy—that reframes how governance decisions should be evaluated. In doing so, she challenges the long-standing dominance of economic efficiency as the central organizing principle of administrative law and environmental policy.
By elevating environmental stewardship and social equity to equal footing with economic considerations, Professor Stokes proposes a more balanced and normative foundation for energy governance. This model encourages decision-makers to weigh distributive and procedural justice alongside financial costs and benefits.
Professor Stokes’ treatment of equity is particularly impactful. She does not merely include social justice as a rhetorical flourish; rather, she embeds it in the procedural dimensions of her model. Recognizing that just outcomes require just processes, Professor Stokes calls for meaningful participation from all stakeholders in decision-making—especially those who have historically been marginalized in energy planning.
She emphasizes the value of both formal expertise and lived experience, making space for community knowledge to inform policy outcomes. In doing so, she echoes and advances the literature on energy justice, which has increasingly highlighted the inadequacy of top-down approaches that ignore local needs and informal power dynamics.
One of Professor Stokes’ most practical contributions is her clear, implementable roadmap for applying sustainable collaborative governance to renewable energy siting. She identifies five critical steps: stakeholder identification, clear articulation of roles and responsibilities, joint decision-making, plan execution, and outcome evaluation.
This procedural clarity sets her work apart from more abstract scholarly models and enhances its utility for policymakers, community organizers, and industry leaders. By providing specific guidance on process design, Professor Stokes ensures that her framework can be operationalized in diverse regulatory contexts—an essential quality for any governance model seeking to influence real-world outcomes.
Professor Stokes situates her analysis within both the existing legal environment and potential future developments, including the pending case, Seven County Infrastructure Coalition v. Eagle County. Her attention to current and anticipated jurisprudence reflects her forward-thinking perspective. Importantly, she does not treat law as a static constraint but as a dynamic field that can be shaped through principled innovation and adaptive governance strategies.
Professor Stokes acknowledges the risks posed by shifting federal administrations and the uncertainties that come with changing policy priorities. Yet, rather than offering a pessimistic diagnosis, she maintains a constructive tone and identifies governance pathways that remain open even when federal leadership is ambivalent or oppositional. This balance of realism and optimism is refreshing—and necessary—in a moment when despair can easily dominate discussions about environmental law and policy.
Finally, Professor Stokes makes an important contribution to the discourse on informal power in governance. She argues that legal structures alone cannot ensure justice if they fail to account for the influence of non-state actors and imbalances in political and economic capital.
Her analysis underscores the need to look beyond statutes and regulations to the broader ecosystem of influence that shapes energy decision-making. In doing so, she brings a critical lens to bear on governance processes and challenges assumptions that technical compliance equates to democratic legitimacy.
In sum, Renewable Energy Federalism 2.0 represents a major contribution to environmental law, energy justice, and governance theory. Professor Stokes has crafted a framework that is both visionary and grounded—responsive to doctrinal constraints yet not limited by them. Her model of sustainable collaborative governance offers a compelling roadmap for navigating the energy transition in a manner that is legally viable, socially inclusive, and environmentally responsible.
As the nation confronts the dual crises of climate change and democratic erosion, Professor Stokes’ work provides both a compass and a toolkit for building a more just and sustainable future. It stands as a model of how legal scholarship can bridge the divide between theory and practice, critique and construction, and analysis and action.
Jul 16, 2025 Donald Kochan
A new work by Professors Daniel Klerman and Stefan Bechtold, Personal Property Servitudes Revisited, is an excellent case study in when and how property rules should and can evolve. Professors Klerman and Bechtold inquire whether those buying and selling personal property (chattels) can write contracts that legally bind purchasers just as those buying and selling real property can use real covenants and equitable servitudes to bind future purchasers.
Equally as important, the authors ask whether buyers and sellers of personal property should be able to write such contracts. The traditional answer has been “no.” For a long time, concerns about notice, tracing, and administrability have limited the recognition and enforcement of servitudes attached to personal property in its transfer.
Professors Klerman and Bechtold persuasively make the case that the objections to personal property servitudes are mostly outdated—especially as technological aids help to overcome traditional obstacles to managing a personal property system that includes servitudes. The authors contend that these changes call for a “more nuanced debate about which servitudes should be enforced and which should not.” (P. 4.)
Their article provides an excellent survey of legal scholarship for and against personal property servitudes. It then explains the benefits of personal property servitudes and seeks to dispel some of the concerns with heightened recognition of them. The last third of the article examines myriad potential objections or obstacles to effective enforceability and avoidance of manipulative uses of personal property servitudes.
The traditional property-based objections to personal property servitudes have included that subsequent purchasers would have a hard time identifying the existence and scope of servitudes in personal property. Before having the confidence to engage in or set the price in a transaction, purchasers would be required to spend time, money, and other resources researching whether servitudes exist or verifying sellers’ claims regarding the existence or nonexistence of servitudes.
The ability to reliably predict what you own and limits on the ownership bundle is key. When rights are not clear or the risk of hidden threats to full ownership lingers, prices could be discounted for the risk of undiscovered information that might make a buyer’s ownership questioned or limited at some future date due to a claimed servitude. Simply the litigation costs to fight the application of a servitude might be an impediment to optimal investment in purchasing personal property. And such information costs could stymie beneficial transactions altogether or inefficiently increase transaction costs for the transfer of personal property.
To address these concerns, the authors devote the middle sections of the article to discussing the mechanics of overcoming or minimizing these notice and information cost hurdles, including exploring existing registry models (such as ship and motor vehicle registries, intellectual property registries, and real property recording systems) for guidance.
Professors Klerman and Bechtold then explore new electronic registries and technologies—and their potential to inform the growth of personal property servitude registries. They explain that existing registries and new technology (including blockchain, QR codes, RFID chips, NFC tags, and the like) could be used to create information repositories and verification devices that reduce these information costs. Quite simply, we have tremendous technological capability to “tag” personal property and track sales and attributes we may wish to attach through servitudes.
Similarly, Professors Klerman and Bechtold propose a management system for low-value, obsolete, and “orphan” servitudes. They explain that an easily accessible and searchable registration system could be a prerequisite for beneficiaries to be able to enforce their servitudes.
Moreover, registration fees could be charged to minimize creation of non-valuable servitudes and renewal fees could ensure and test the continuing value of enforcing a servitude over time.
Finally, requiring beneficiaries to post up-to-date contact information could ensure coordination between burdened owners and beneficiaries (including, of course, the ability to negotiate for the removal of the servitude should a current owner value the release more than the beneficiary values the retention of the servitude).
If Professor Klerman and Bechtold are correct about the administrability of personal property servitudes, their enforcement could greatly enhance our capacity to achieve certain objectives of the property system and enhance freedom of contract.
Personal property servitudes preserve the autonomy of owners who get to choose the terms and conditions associated with the transfer of their property. The greater power to choose not to sell or even to destroy includes the lesser power to transfer but with conditions.
Personal property servitudes allow goods to move in commerce that might otherwise be hidden away or held by parties because they fear what would happen if they transfer them. (These kinds of concerns are well known reasons for giving finders priority rights to encourage them to introduce the items into commerce rather than hiding them away in a drawer.)
A servitude may very well decrease the value of property because it limits what can be done with it and limits the pool of potential buyers. But, so long as the information cost hurdles are overcome by the plethora of new technologies available to trace ownership and servitude terms, the price can be adjusted to account for that.
Rational sellers will be reluctant to place servitudes on their personal property unless the value is greater than the foregone profit from being able to offer the same property in the market at a higher price without the servitude. That seems to be a pretty good check against silly servitudes.
Similarly, Klerman and Bechtold’s suggestion that registration and renewal fees must be paid to make a personal property servitude enforceable will ensure that un-valued servitudes will disappear over time rather than lingering as zombie servitudes burdening commerce by encumbering chattel in a way that unduly slows its movement to higher and better uses and users.
Sometimes a servitude might add value, especially if it helps preserve some characteristic of the personal property that will itself be a marketable component of the property that the acquirer can offer to future buyers who are willing to pay a higher price because of the servitude.
For example, imagine a painting with a servitude that it shall never be removed from its original frame which the artist herself carefully selected to enhance the visualization of the artwork. The owner of the artwork, who is subject to the personal property servitude, can offer the artwork for sale and make a credible claim that it has never been removed from the original frame.
The credibility comes from the existence of the servitude and a background expectation of past enforcement by the original seller or their assigns should the servitude have been violated. The new buyer accepts the terms of the servitude and pays more for the item than the buyer would have paid had no servitude existed because the buyer now owns an asset imbued with this extra guarantee of authenticity that makes the artwork even more valuable when this new buyer becomes the next seller.
Professors Klerman and Bechtold have proposed a path that could revolutionize what it means to truly own personal property. Their article is very likely to uniquely influence the future evolution of property law in a changing world.
Jun 18, 2025 P. T. Babie
Bram Akkermans & Lorna Fox O’Mahony,
Resilient Property, Climate Change and the Decision in Verein KlimaSeniorinnen Schweiz v Switzerland, 2024
Conveyancer & Prop. Law. 369, available at
Essex Research Repository (embargoed until Dec.1, 2025).
Climate change is a property problem. Exploitation of the world’s resources made possible by the concept of private property causes climate change.
Yet, property forms part of an iterative cycle. Just as it causes climate change, the consequences of global warming change property. So property is also a climate change problem. And because it is, the solutions to the problems it creates lie within the concept of property. In Resilient Property, Climate Change and the Decision in Verein KlimaSeniorinnen Schweiz v Switzerland Bram Akkermans and Lorna Fox O’Mahony show us how that might be.
In Verein KlimaSeniorinnen Schweiz v Switzerland, the Grand Chamber of the European Court of Human Rights’ (ECtHR) found that critical gaps in the Swiss Federation’s framework for mitigating climate change constituted a violation of the European Convention on Human Rights (ECHR) art. 8, which includes a right to effective protection by the State authorities from the serious adverse effects of climate change on lives, health, well-being, and quality of life. Akkermans and Fox O’Mahony examine the Grand Chamber’s treatment of art.8 ECHR, “apply[ing] the analytical toolkit of Resilient Property Theory (RPT) to consider the implications of…KlimaSeniorinnen for property law.” (P. 380.)
The importance of RPT, a concept first developed by Lorna Fox O’Mahony and Marc Roark (in Squatting and the State: Resilient Property in an Age of Crisis (2022)), and applied by Akkermans and Fox O’Mahony in this article, lies in its attempt to go beyond the merely transactional dimension of property to tackle “wicked” property problems (such as climate change) and, in doing so, to consider the implications of property law and policy for a range of individual (owners, tenants, mortgagors, trespassers, citizens), aggregated (neighbourhoods, associations, communities), and institutional (public/state, private/market, governmental and legal institutions) stakeholders. (P. 380.)
The “needs and interests of these stakeholders interact across three distinct registers of scale: the rhetorical or narrative scale on which the nature of property and property values are debated and on which political statements about the nature of property rights are made; the jurisdictional scale of property rights and entitlements, which is embedded in the wider democratic legal order; and the material scale of property—and specifically land—as a physical, material resource. These registers interact with “property” and “time”, defining and shaping how we interact with land resources.” (Pp. 380-81, footnotes omitted.)
Applying RPT to land law reveals not one lens alone, but three distinct lenses through which we must view property: contextual, methodological, and legal. Each is widened when viewed from the perspective of climate change. (Pp. 381-92.)
As any first year law student knows, because they are told as much, property is not a thing but an abstract sets of rights. Akkermans and Fox O’Mahony argue that climate change reveals an incongruity between the abstractions we are taught, and the reality of the material scale—the object of property, in this case land—to which property applies; and RPT widens this contextual lens so that property can encompass both scales.
Abstract property rights attempt to avoid the physical materiality of the object of property and, as such, allows the law to avoid the very real and detrimental impact of decisions made using those abstract rights—climate change—for the sustainability of the land resource. (Pp. 381-85.) Law, then, “masks the complex, dynamic and networked nature of peopled landscapes, allowing landholders to disown the adverse consequences of their proprietorship.” (P. 384, citing Nicole Graham.)
The methodological lens focusses on the subjects of property, those who are affected by the outcomes for the land of dematerialisation. Property, through its abstractions, discounts the lives of those who might live in or be affected by resource exploitation, and the lives of those yet to be born. (P. 385.)
Social, political, economic, and environmental change wrought by property means that there are an entire range of individual and networked stakeholders that the abstract conception of property cannot “see.” Such a narrow focus, concerned only with those who are parties to traditional transactional concerns of property law, at best misses, at worst wilfully ignores the reality of so many who are affected by the implications of climate change, both here and yet to come. (Pp. 387-88.)
Finally, the view of property allowed by the widened contextual and methodological lenses requires a final widening of the legal lens. Akkermans and Fox O’Mahony argue that “the acceleration of climate harms requires adaptation and a transition from narrow perspectives focused on “property rights” to property governance within a sustainable legal system, and a sustainable material world.” (P. 388.) This deploys the ‘resilience’ in RPT: “resilient systems have the adaptive capacity to remain in a functional state; to avoid “tipping” into an altered state, by maintaining equilibrium in the face of challenges or crises.” (P. 388, footnotes omitted) “A stable land law system”, in other words, “is not one that does not change, but one that can adapt to change.” (P. 389.)
For Akkermans and Fox O’Mahony, the legal change required of a resilient system of property means “prioritising: (1) adaptive goals that aim for multiple forms of resilience; (2) an adaptive system structure that is polycentric, multimodal and multi-scalar; (3) methods of adaptation and context-regarding flexibility; and (4) iterative processes with feedback loops and accountability mechanisms.” (P. 390.)
Akkermans and O’Mahony reveal the potential of property, both as law and as scholarship. As a matter of law, using RPT, we see property through the widened lenses of context—to see that property is not mere abstraction, but material and physical reality—methodology—having implications not only for the parties to property transactions, but also for those affected, physically and temporally, by transactions—and law—change and adaptation built through resilience. As a matter of scholarship, the three lenses, used in conjunction to view the implications of climate change for property law, show that far from being fragile, property is resilient, capable of being not only the source of, but also the innovative solution to wicked problems.
Cite as: P. T. Babie,
What Climate Change Reveals About Property’s Potential, JOTWELL
(June 18, 2025) (reviewing Bram Akkermans & Lorna Fox O’Mahony,
Resilient Property, Climate Change and the Decision in Verein KlimaSeniorinnen Schweiz v Switzerland, 2024
Conveyancer & Prop. Law. 369, available at Essex Research Repository (embargoed until Dec.1, 2025)),
https://property.jotwell.com/what-climate-change-reveals-about-propertys-potential/.
May 13, 2025 Gregory M. Stein
Community Land Trusts (CLTs) form a small but important part of the affordable housing mosaic. Preserving Affordable Homeownership: Municipal Partnerships with Community Land Trusts, a Policy Focus Report of the Lincoln Institute for Land Policy, describes the many ways in which state and local governments can assist CLTs and help maintain the affordability of housing units indefinitely. Co-authored by John Emmeus Davis, an experienced city planner, and Kristin King-Reis, a lawyer whose clients include CLTs and other non-profits, the Report offers a comprehensive and readable guide to how CLTs operate and how state and local governments can increase the likelihood they will succeed.
The Report begins with a history of CLTs and ends by offering a series of policy recommendations. These sections bracket a set of chapters examining various facets of the relationship between CLTs and government bodies.
While there is considerable variety among CLTs, a typical structure involves land that is owned by a non-profit CLT, on which it builds homes. Individual units are then ground leased to moderate-income buyers, who own the structures but lease the land.
“Later, if homeowners decide to move, they must resell their subsidized homes for a formula-driven price that other income-qualified homebuyers can afford. By maintaining ownership of the land and capping the resale price of a home across multiple resales, a CLT can usually keep homes affordable for many years without the need for additional infusions of public capital.” (P. 16.)
Thus, what distinguishes CLTs from most other affordable-housing programs is that the unit remains reasonably priced to successive owners over a prolonged period of time. This structure does not provide a subsidy solely to the initial owner, who would then retain the value of any appreciation upon resale at the market price. The CLT oversees the project over time, ensuring that the homes remain affordable and that the units are well maintained, and assisting those owners who suffer financial reverses.
The middle chapters focus on a range of issues that can arise between CLTs and government bodies. Chapter 2, for example, emphasizes the ways in which municipalities increasingly offer support to CLTs and provides a “menu of municipal largesse.” (P. 26.) Governments might, for instance, offer funding for staffing or provide this staffing themselves, at least for the first several years. Alternatively, governments might purchase the land and then donate it to the CLT.
Chapter 4 describes the different methods by which affordable homes that last can be subsidized. Some CLT homes, for instance, are low- or zero-equity co-ops. Here, not only does the CLT own the land, but the building itself is owned by a cooperative corporation that has the ability to secure mortgage financing on the entire project.
Under this cooperative structure, the subsidy can apply to part of the building and not just the land, homeowners can buy in with a smaller downpayment, and lower-income families can have access to homeownership. “As a result, homeownership can be made accessible to households whose income is much lower than that of people who have the wherewithal to purchase a house or condominium.” (P. 42.)
Chapter 4 is of particular interest to readers who are lawyers because it also discusses other types of regulatory support that government bodies can provide. These include regulatory concessions and bonuses, such as density bonuses, reduced impact fees, parking waivers, and expedited permitting. Here, the government is providing a subsidy in-kind rather than, or in addition to, direct financial support.
Chapter 6 turns the focus to local tax issues. In particular, it argues that CLTs should benefit from the fact that local real estate taxes should be set on the basis of an appraised value reflecting the fact that homeowners do not have fee title to the land underlying their houses.
Even without providing extra benefits to owners in CLT projects, then, local government can impose taxes that reflect the true—lower—value of these homes. Actual results, though, turn out to be uneven, in part due to resistance from property assessors in some locations.
Chapter 7 emphasizes the types of CLT-specific legislation that states can adopt to support the development and viability of CLT projects.
The Report’s final chapter, appropriately, lists and describes recommendations for preserving partnerships between CLTs and municipalities. Most significantly, this concluding section argues that states should invest in ongoing stewardship of these long-lasting projects and not just initial development.
In addition, this prescriptive conclusion argues in favor of grant funding rather than loans. And it recommends that these projects should be sustainable ones that recognize how climate change is affecting all types of real estate development, even if this is more costly in the short run.
One topic the authors might have devoted more attention to is the fact that CLTs limit the ability of their residents to build wealth via increasing home equity. For many Americans, their most valuable asset is their home, which appreciates over time even as the owner gradually pays off the home mortgage loan. By capping profits, the CLT accomplishes one goal, that of maintaining the unit’s affordability over time, while undercutting another, that of helping homeowners accrue wealth in the form of home equity.
This places CLT owners at a disadvantage in expanding their net worth as compared to other residents. In short, whatever subsidies are provided by governments or donors are shared by consecutive owners rather than retained by the initial owner. There is no correct answer to this question of course, but merely a choice that must be made between two important but inconsistent policy goals.
This Report serves as a useful introduction to CLTs for those who may not be familiar with what they do and how they operate. It traces the history of these projects and notes the ways in which they have evolved over the past few decades. It stresses the importance of partnerships with state and local governments and the different types of support these governments can provide.
The Report is also presented in an extremely user-friendly format, with sidebars, illustrations, graphs, and tables, as well as photographs illustrating how some of the text’s examples actually look. It is a beneficial contribution to the literature, a good introduction for newcomers to the subject, and a strong advocacy piece for increased public-private partnerships that can support the construction and ongoing maintenance of one type of affordable housing.
Apr 21, 2025 Sara Bronin
As extreme weather and natural hazards increase, policymakers must do a better job of ensuring that people live out of harm’s way, and build in a manner compatible with our changing planet. Land use laws, which in the United States are primarily the province of local governments, could help achieve more rational outcomes. Local zoning laws, in particular, have the potential to ensure that future development avoids risk-prone areas, because zoning dictates much of what gets built in this country. Yet as Professor Jonathan Rosenbloom points out in his latest article, Sacrifice Zones, few local governments have harnessed zoning’s powers to protect people and their places.
Rosenbloom contends that local governments have neglected zoning instead of changing and updating their codes as conditions change. I would probably go a little farther than Rosenbloom. When they have amended zoning rules, local governments often made the problem worse by permitting more development in areas prone to floods, wildfires, or extreme temperatures. Overall, poor land use planning, epitomized and reinforced by ill-conceived zoning rules, has accelerated disaster impacts and myriad losses of life, livelihoods, homes, neighborhoods, cultural resources, and communities.
What can be done to curb these losses? Rosenbloom points to the potential benefits of zoning laws that designate high-risk areas to be “sacrifice zones,” and then regulate those areas to eliminate or thwart new development, to facilitate relocation to safer areas, or to enable nature to regenerate.
To explain how this might be possible, Rosenbloom begins his article with a primer on several key flexibility devices already available to local officials exercising zoning authority. He first cites the ways in which an individual property owner can petition for a variance offering relief from strict compliance with the zoning code, or for a conditional use permit providing special permission to build after the satisfaction of certain conditions.
Rosenbloom explains that these property-specific flexibility devices cannot address climate issues at scale. Instead, he argues for more systemic solutions that modify zoning districts or that reclassify larger tracts of land. As one example, he points out that localities can create “overlay” zones tailored to geographic conditions or certain development goals. Overlays that require managing stormwater, planting trees, or establishing open-space areas could help address some of the policy goals Rosenbloom identifies in the article.
He also proposes that local governments set up systems to allow owners of property in sacrifice zones to transfer (i.e., sell) development rights to owners of property in safer areas. This strategy has been used in New York City to soften the blow of historic preservation regulations (and was sanctioned by the Supreme Court in the 1978 Penn Central case we all read in 1L Property Law).
Rosenbloom distills his suggested approach to sacrifice zones into a fairly simple set of rules based on whether people already live there. If an area is uninhabited, he suggests a moratorium, or at least limitations on new development. If an area is inhabited, then he suggests not only development limitations but also strategies to facilitate relocation.
He contends that even some of the more controversial proposals could avoid Takings Clause claims. And he urges localities executing such strategies work for justice for marginalized groups. On this last point, Rosenbloom explains that the term “sacrifice zones” originated in the 1970s, but more recently the term was adapted by environmental justice scholar Robert Bullard to refer to polluted areas inhabited by minority and poor people, who have been sacrificed along with the land. Rosenbloom is careful to explain he’s using the term differently in this piece.
As he suggests different approaches, Rosenbloom evaluates them too. I couldn’t help but think that in writing this article, he must have drawn from his experience building the Sustainable Development Code, a digital assemblage of the best strategies local governments are deploying to enhance their resilience and equity. (Full disclosure, I served on the advisory board of that project from 2018-2022.) The Sustainable Development Code grades the assembled strategies as “good,” “better,” and “best.”
Sacrifice Zones features what Rosenbloom considers to be the “best” strategies, but he would acknowledge that we still have a long way to go to fully understand the scope of the climate crisis and the scale of necessary solutions.
I would be remiss if I did not point out a project that is trying to fill some of those knowledge gaps: the National Zoning Atlas, which has made publicly available the regulatory characteristics of zoning on land where over 130 million Americans live. (Much of our progress happened since Sacrifice Zones was published.) The Atlas’s findings reinforce Rosenbloom’s observations that zoning in far too many places jeopardizes people and the places they call home.
Plenty of people will object to the ideas Rosenbloom presents. Few communities will raise their hands and ask to be zoned out of existence. Elected officials will balk at the prospect of telling people they must “sacrifice” anything. And planners will be wary of pushing sacrifice zones lest they suffer professional and emotional consequences from their community’s ire.
But Sacrifice Zones reminds us that change is inevitable, and that abstract discussions about policy must be grounded in, and taken more seriously after, each weather-related catastrophe. The article should be required reading for anyone working to understand some of the legal options we’ll have to choose from, sooner or later.
Mar 20, 2025 Shelley Ross Saxer
Jessica L. Asbridge,
Fines, Forfeitures, and Federalism, 111
Va. L. Rev. __ (forthcoming, 2025), available at
SSRN (Feb. 29, 2024).
Government has abused its authority with respect to discretionary fines and forfeitures that serve as a significant source of revenue for federal, state, and local governments and have a disproportionate impact on poor and disadvantaged communities. Similarly, local government abuses have occurred in land use regulation when the government seeks to obtain private property in exchange for granting a permit by requiring either a physical or monetary exaction. Professor Jessica Asbridge’s new article, Fines, Forfeitures, and Federalism, brings together these two seemingly unrelated areas of potential government abuse—exactions and discretionary fines and forfeitures.
The exactions doctrine allows the government to condition its approval of a permit it could otherwise deny so long as there is “nexus” and “rough proportionality” between the property the government demands in exchange for the permit and the adverse effects caused by the applicant’s project proposal. This higher level of scrutiny applied to exactions protects property developers against abusive government officials acting to extort as much revenue as possible to devote to community infrastructure. Professor Asbridge’s work suggests that heightened scrutiny is appropriate for both exactions requiring payments to the government in land use regulation in exchange for permission to develop and discretionary fines and forfeitures for state and local code violations.
The U.S. Supreme Court expanded the applicability of the Eighth Amendment to the states when it held in Timbs v. Indiana that the Excessive Fines Clause is incorporated into the Due Process Clause of the Fourteenth Amendment. This constitutional provision is now available to allow the impoverished and disadvantaged to challenge fines and forfeitures imposed by state or local governments that are “grossly disproportional” to the offense. And, the Court has supported heightened scrutiny of exactions due to concerns about the government’s misuse of power through extortionate demands for property and coercion in the land permitting processing. It has rejected federalism arguments that a deferential standard is more appropriate.
Professor Asbridge points out that discretionary fines and forfeitures present similar concerns of government overreach as exactions because they often generate millions of dollars in revenue that directly funds state and local governments. She argues that courts thus should apply heightened scrutiny to these fines and forfeitures as well, despite any federalism principles indicated.
Asbridge employs an illustrative, but alarming, decision involving $28,500 in fines and interest for uncut grass to explain two of the key questions that remain after Timbs. First, does the Excessive Fines Clause apply to civil fines that are not part of a criminal proceeding? Second, what level of scrutiny should a court apply when a fine is below the statutory maximum?
In Ficken v. City of Dunedin, James Ficken violated a city ordinance by allowing his grass to exceed ten inches—he failed to mow his lawn. Granted, these violations continued intermittently between 2015 and 2018 when the city board ultimately imposed a $500-per-day fine for the period from July to August 20, 2018, with a grand total of $28,500 in fines plus interest.
When Ficken was unable to pay the fine, the board began foreclosure proceedings against his home to satisfy the debt. He challenged the fine in federal district court as violating the Excessive Fines Clause, which the court rejected and the Eleventh Circuit affirmed. When writing this Jot, I became concerned about poor Mr. Ficken and wondered whether he actually ended up losing his house for failing to mow his lawn. If you are interested, here is a link to an article from April 19, 2024 that tells us he settled with the city and is still in his home. I guess you can fight city hall after all.
Professor Jessica Asbridge’s excellent article encourages us to fight for the impoverished and vulnerable against local government abuse in code enforcement, just as we currently fight against local government abuse of land developers in land-use permitting. We should be willing to protect property based upon the neutral application of constitutional principles at all levels of economic status using heightened scrutiny whenever there is a greater potential for government abuse because of discretionary decisionmaking. Here’s to the Takings Clause for discretionary exactions and impact fees and the Excessive Fines Clause for discretionary fines and forfeitures!
Cite as: Shelley Ross Saxer,
Penalties, Payments, and Power, JOTWELL
(March 20, 2025) (reviewing Jessica L. Asbridge,
Fines, Forfeitures, and Federalism, 111
Va. L. Rev. __ (forthcoming, 2025), available at SSRN (Feb. 29, 2024)),
https://property.jotwell.com/penalties-payments-and-power/.
Feb 18, 2025 Andrea Boyack
Ezra Rosser,
Progress and the Taking of Indigenous Land, 85
Ohio St. L.J. __ (forthcoming, 2024), available at
BePress (Jan. 1, 2024).
Property is both “freedom” and “theft.” Takings jurisprudence in the United States evokes both these paradigms, sometimes justifying and sometimes condemning the exercise of eminent domain. For example, in the now-infamous 2005 case of Kelo v. City of New London, a divided Supreme Court barely upheld a government taking of a home to promote economic development. Twenty years prior, a unanimous Supreme Court easily upheld a government taking of Hawai’ian land for economic purposes in Hawaii Housing Authority v. Midkiff. Interestingly, although widespread public outrage in response to the taking of Suzette Kelo’s “little pink house” has raged since 2005, the taking upheld in Midkiff continues to be shrugged off as economically justified. Why the difference?
Professor Ezra Rosser’s forthcoming article, Progress and the Taking of Indigenous Land, reframes the United States Supreme Court 1984 holding in Midkiff to better explore the property tensions in takings law by placing the case in its broader context. Although the Courts opinion speaks in terms of market competition, the taking at issue pertained to land (‘āina) held by and for the benefit of native Hawai’ians. Rosser’s reconsideration of Midkiff importantly re-situates the case—and takings law in general—within the long and troubling history of indigenous property dispossession in the United States.
Rosser cuts through Midkiff’s rhetoric and exposes its reality. The Midkiff opinion, authored by Justice O’Connor (who, ironically, later authored the strongly worded dissent in Kelo), characterized the contested Hawai’ian eminent domain plan as an attempt to rectify market inefficiencies caused by a housing “oligopoly.” The Hawai’ian Land Reform Act compelled landowners to convey title to their tenants, and Justice O’Connor framed this law as a justifiable way to increase homeownership in the state.
The Midkiff opinion avoided focusing on or even discussing the identity of the plaintiff and the context in which it held title. The case was brought by the Bishop Trust—the largest and most important non-governmental landowner in Hawai’i that was disproportionately impacted by the takings scheme at issue.
The Bishop Trust, a non-profit foundation that had been entrusted with title to royal lands for the benefit of native Hawai’ians, had been created and given property in order to preserve native ownership of Hawai’ian ‘āina. And the Bishop Trust used revenues from renting the land to fund a school for native Hawai’ian children. The Midkiff taking, therefore, did more than break up large land holdings, it sanctioned native homeland deprivation in Hawai’i.
Rosser’s thesis is that the history and fate of the Bishop Trust provide a twentieth century example of how indigenous people’s property rights continue to be “routinely sacrificed to accomplish progressive property goals” (P. 7). The treatment of Trust lands mirrors other instances in which native lands have been “taken and transformed into the raw material necessary for creation of public space and democratization of land holdings” (P. 7). The truth behind Midkiff is thus a recent version of a familiar story.
In the 1823 United States Supreme Court decision, Johnson v. M’Intosh, Justice Marshall held that “Indians” had no legal right to own land because they were “fierce savages.” Marshall explained that allowing indigenous people to remain on their homelands would impede progress and development of the country. Marshall’s refusal to recognize “Indian occupancy” as ownership lay the groundwork for multiple subsequent instances of legally blessed government seizure of native lands and resources without compensation or consent.
Rosser points out that taking property from indigenous peoples is so normalized that the “Court is comfortable saying the quiet part out loud: the nation’s progress and development depend on limiting Indian rights.” (P. 50). Versions of this same willingness to dispossess indigenous populations of property rights continue today—for example, in disputes regarding water rights to the Colorado River, use of native lands for solar energy projects, and the construction of oil pipelines.
Our legal system continues to generally ignore and diminish indigenous claims to land. Rosser observes that insufficient contextualization of the Midkiff decision obscures its part in this continuing pattern of colonialization. As in other cases of indigenous dispossession, the forced indigenous ownership transfers in Midkiff tended to primarily benefit wealthy entrepreneurial interests.
Rosser explains that the eminent domain program upheld in Midkiff “worked as it was designed to work, disproportionately taking residential leasehold property from the Bishop Estate—and from the Native Hawaiian children who were the beneficiaries of the trust—and turning it over to the relatively wealthy tenants living on leased land.” (P. 30).
For the past four decades, the Supreme Court’s contemporaneous “framing of the case as an anti-oligarchy case has largely claimed the day,” says Rosser (P. 57). But it is essential to finally pull back the curtain and recognize the substance behind the Midkiff spin.
The injury to indigenous peoples caused by loss of their homeland goes beyond economic loss. Most native cultures and identities deeply connect with their natural environment.
For Hawai’ians, ‘āina is an emotional and sacred concept, essential to well-being and identity. Even the western legal tradition recognizes that real property is unique and should generally be protected by “property remedies” (e.g., specific performance and injunctions).
If there can be no liberty without property, the United States cannot claim to be the land of the free while continuing to ignore native people’s rights to their land.
