Feminist Judgments: Rewritten Property Opinions [1 ed.] 9781108835534, 9781108890922, 9781108812870

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feminist judgments: rewritten property opinions How would a feminist lens transform the development of property law? Using feminist legal theories and methods, the authors in this volume present rewritten opinions of fifteen foundational and other property law cases. By reimagining these cases with a feminist lens, while staying within the precedent of the time the cases were decided, the authors demonstrate that the use of feminist perspectives and methodologies could have made a significant difference in the development of property law. Eloisa C. Rodriguez-Dod is Associate Dean for Academic Affairs and Professor of Law, Florida International University College of Law. Elena Maria Marty-Nelson is Associate Dean for Diversity, Inclusion, and Public Impact and Professor of Law, Nova Southeastern University Shepard Broad College of Law.

Feminist Judgments Series Editors Bridget J. Crawford

Elisabeth Haub School of Law at Pace University Kathryn M. Stanchi

University of Nevada, Las Vegas, William S. Boyd School of Law Linda L. Berger

University of Nevada, Las Vegas, William S. Boyd School of Law

Advisory Panel for Feminist Judgments Series

Kathryn Abrams, Herma Hill Kay Distinguished Professor of Law, University of California, Berkeley, School of Law Katharine T. Bartlett, A. Kenneth Pye Professor Emerita of Law, Duke University School of Law Mary Anne Case, Arnold I. Shure Professor of Law, The University of Chicago Law School Margaret E. Johnson, Professor of Law, University of Baltimore School of Law Sonia Katyal, Chancellor’s Professor of Law, University of California, Berkeley, School of Law Nancy Leong, Professor of Law, University of Denver Sturm College of Law Rachel Moran, Michael J. Connell Distinguished Professor of Law and Dean Emerita, UCLA School of Law Angela Onwuachi-Willig, Dean and Professor of Law, Boston University School of Law Nancy D. Polikoff, Professor of Law, American University Washington College of Law Daniel B. Rodriguez, Dean and Harold Washington Professor, Northwestern University School of Law Susan Deller Ross, Professor of Law, Georgetown University Law Center Verna L. Williams, Dean and Nippert Professor of Law, University of Cincinnati College of Law

Feminist Judgments: Rewritten Property Opinions Edited by

ELOISA C. RODRIGUEZ-DOD Florida International University College of Law

ELENA MARIA MARTY-NELSON Nova Southeastern University Shepard Broad College of Law

University Printing House, Cambridge cb2 8bs, United Kingdom One Liberty Plaza, 20th Floor, New York, ny 10006, USA 477 Williamstown Road, Port Melbourne, vic 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 103 Penang Road, #05–06/07, Visioncrest Commercial, Singapore 238467 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108835534 doi: 10.1017/9781108890922 © Cambridge University Press 2022 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2022 A catalogue record for this publication is available from the British Library. isbn 978-1-108-83553-4 Hardback isbn 978-1-108-81287-0 Paperback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

To my mother and sister, whom I miss dearly, to all the strong and independent women in my family who have always given me so much love and support, to my beautiful sister-friends (you know who you are), and to my husband, Jose, for being my guiding light. —ERD To my husband, David, and our sons, Scott and Matt, for their unflagging support and fabulous sense of humor, to Dr. Aileen Marty, my feminist star, and to my lifelong coauthor. —EMN

Contents

Advisory Panel for Feminist Judgments: Rewritten Property Opinions

page xiii

Notes on Contributors

xv

Preface

xix

Acknowledgments

xxi xxiii

About the Cover Art part i introduction 1

1

Introduction to Feminist Judgments: Rewritten Property Opinions

3

Eloisa C. Rodriguez-Dod and Elena Maria Marty-Nelson

2

Property Law Revolution, Devolution, and Feminist Legal Theory

10

Lolita Buckner Inniss

3

Incorporating Feminist Perspectives throughout Law School Curriculum

19

Hannah Brenner Johnson

part ii allocation of rights 4

33

Johnson v. M’Intosh, 21 U.S. 543 (1823)

35

Commentary: Stacy L. Leeds Judgment: Alexandra Flynn

5

Botiller v. Dominguez, 130 U.S. 238 (1889) Commentary: Marc-Tizoc González Judgment: Guadalupe T. Luna ix

61

x

6

Contents

Pierson v. Post, 3 Cai. R. 175 (N.Y. Sup. Ct. 1805)

90

Commentary: Jill M. Fraley Judgment: Angela Fernandez

part iii patents, publicity rights, and trademarks 7

Association for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576 (2013)

119

121

Commentary: Dan L. Burk Judgment: Kali Murray and Erika George

8

White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992)

149

Commentary: Brian L. Frye Judgment: Jon M. Garon

part iv condemnation and adverse possession 9

Kelo v. City of New London, Connecticut, 545 U.S. 469 (2005)

177 179

Commentary: Julia D. Mahoney Judgment: Olympia Duhart

10

Tate v. Water Works & Sewer Board of City of Oxford, 217 So. 3d 906 (Ala. Civ. App. 2016)

198

Commentary: Hannah Haksgaard Judgment: Meghan Hottel-Cox

part v gifts and future interests 11

Gruen v. Gruen, 496 N.E.2d 869 (N.Y. 1986)

225 227

Commentary: Richard Chused Judgment: Stephanie M. Stern

part vi tenancy in common, joint tenancy, and tenancy by the entirety

251

Sawada v. Endo, 561 P.2d 1291 (Haw. 1977)

253

12

Commentary: Susan Etta Keller Judgment: Donna Litman

13

Taylor v. Canterbury, 92 P.3d 961 (Colo. 2004) Commentary: Diane Klein Judgment: Carrie Anne Hagan

283

Contents

14

Coggan v. Coggan, 239 So. 2d 17 (Fla. 1970)

xi

293

Commentary: Phyliss Craig-Taylor Judgment: Natasha N. Varyani and Stevie Leahy

part vii exclusionary zoning 15

Moore v. City of East Cleveland, 431 U.S. 494 (1977)

309 311

Commentary: Berta Esperanza Hernández-Truyol Judgment: Danaya C. Wright

part viii evictions 16

Phillips Neighborhood Housing Trust v. Brown, 564 N.W.2d 573 (Minn. Ct. App. 1997)

343

345

Commentary: Lua Kamál Yuille Judgment: Pamela A. Wilkins

17

Blake v. Stradford, 725 N.Y.S.2d 189 (Dist. Ct. 2001)

371

Commentary: Andrea B. Carroll Judgment: Meredith Render

part ix landlord–tenant premises liability 18

Bartley v. Sweetser, 890 S.W.2d 250 (Ark. 1994)

397 399

Commentary: Lindsey P. Gustafson Judgment: Taja-Nia Y. Henderson

Index

415

Advisory Panel for Feminist Judgments: Rewritten Property Opinions

Kristen Barnes, Professor of Law, Syracuse University College of Law Rashmi Dyal-Chand, Professor of Law and Associate Dean for Research and Interdisciplinary Education, Northeastern University School of Law Lee Fennell, Max Pam Professor of Law, University of Chicago School of Law Angela Gilmore, Associate Dean of Academic Affairs and Professor of Law, North Carolina Central University School of Law Stacy L. Leeds, Foundation Professor of Law and Leadership, Sandra Day O’Connor College of Law, Arizona State University Amy J. Nelson, Esq., PhD Eduardo Peñalver, Allan R. Tessler Dean and Professor of Law, Cornell Law School Kalyani Robbins, Morris I. Leibman Professor of Law, Loyola University School of Law Ezra Rosser, Professor of Law and Associate Dean of the Part-Time and Evening Division, American University Washington College of Law Rebecca Tushnet, Frank Stanton Professor of the First Amendment, Harvard Law School Darryl C. Wilson, Associate Dean for Faculty and Strategic Initiatives, Attorneys’ Title Insurance Fund Professor of Law and Co-Director of the Institute for Caribbean Law and Policy, Stetson University College of Law

xiii

Notes on Contributors

Dan L. Burk, Chancellor’s Professor of Law and Faculty Director for the AI Global Public Policy Institute, University of California, Irvine School of Law Andrea B. Carroll, C. E. Laborde, Jr. Professor of Law, Donna W. Lee Professor of Law, Rosemary Slattery Davis & Jackson B. Davis Professorship, and Associate Dean for Student and Academic Affairs, Louisiana State University Paul M. Hebert Law Center Richard Chused, Professor of Law, New York Law School Phyliss Craig-Taylor, Professor of Law, North Carolina Central University Olympia Duhart, Associate Dean for Faculty Development and Professor of Law, Nova Southeastern University Shepard Broad College of Law Angela Fernandez, Professor, University of Toronto Faculty of Law and Department of History Alexandra Flynn, Assistant Professor, Peter A. Allard School of Law, University of British Columbia Jill M. Fraley, Professor of Law, Washington and Lee University School of Law Brian L. Frye, Spears-Gilbert Professor of Law, University of Kentucky College of Law Jon M. Garon, Director of Intellectual Property, Cybersecurity and Technology Law Program and Professor of Law, Nova Southeastern University Shepard Broad College of Law Erika George, Samuel D. Thurman Professor of Law, University of Utah College of Law xv

xvi

Notes on Contributors

Marc-Tizoc González, Professor of Law, The University of New Mexico School of Law Lindsey P. Gustafson, Associate Dean for Academic Affairs and Arkansas Bar Foundation Professor of Law, University of Arkansas Little Rock William H. Bowen School of Law Carrie Anne Hagan, Director, Civil Practice Clinic and Clinical Associate Professor of Law, Indiana University Robert H. McKinney School of Law Hannah Haksgaard, Associate Professor, University of South Dakota Knudson School of Law Taja-Nia Y. Henderson, Professor of Law and Dean of Rutgers Graduate School Newark, Rutgers Law School Berta Esperanza Hernández-Truyol, Stephen C. O’Connell Chair, University of Florida Research Foundation Professor, University Term Professor, and Professor of Law, University of Florida Levin College of Law Meghan Hottel-Cox, Professorial Lecturer in Law, George Washington University Law School Lolita Buckner Inniss, Dean and Provost’s Professor, University of Colorado Law School Hannah Brenner Johnson, Vice Dean for Academic and Student Affairs and Professor of Law, California Western School of Law Susan Etta Keller, Professor of Law, Western State College of Law Diane Klein, Lecturer, Dale E. Fowler School of Law, Chapman University Stevie Leahy, Assistant Teaching Professor, Northeastern University School of Law Stacy L. Leeds, Foundation Professor of Law and Leadership, Sandra Day O’Connor College of Law, Arizona State University Donna Litman, Professor of Law, Nova Southeastern University Shepard Broad College of Law Guadalupe T. Luna, Professor Emerita, Northern Illinois University College of Law Julia D. Mahoney, John S. Battle Professor of Law, University of Virginia School of Law

Notes on Contributors

xvii

Elena Maria Marty-Nelson, Associate Dean for Diversity, Inclusion, and Public Impact and Professor of Law, Nova Southeastern University Shepard Broad College of Law Kali Murray, Professor of Law, Marquette University Law School Meredith Render, Professor of Law, University of Alabama School of Law Eloisa C. Rodriguez-Dod, Associate Dean for Academic Affairs and Professor of Law, Florida International University College of Law Stephanie M. Stern, Professor of Law, Chicago Kent College of Law Natasha N. Varyani, Associate Professor of Law, New England Law Pamela A. Wilkins, Associate Dean for Academic Affairs and Associate Professor of Law, Mercer University School of Law Danaya C. Wright, Clarence J. TeSelle Endowed Professor of Law, University Term Professor, and Professor of Law, University of Florida Fredric G. Levin College of Law Lua Kamál Yuille, Professor of Law, University of Kansas School of Law

Preface

Could feminist perspectives and methods change the shape of property law? To answer this question, we brought together a group of scholars and practitioners to rewrite significant property law cases from a feminist perspective. This volume, like all of the books in Cambridge University Press’s Feminist Judgments Series, demonstrates that judges with feminist viewpoints could have changed the law and the reasoning underlying the law, even though based only on the precedent and law in effect at the time of the original decision. It also demonstrates how rewritten opinions from a feminist perspective could have made property law more just and equitable for women and marginalized groups. This book shows how property law is not neutral but rather shaped by the society that produces it and the judges who apply it. At the same time, this book offers the hope that property law can be transformed to be an instrument of greater justice and equality for all people.

xix

Acknowledgments

This book would not have been possible without the support of Cambridge University Press, which so enthusiastically endorsed a series of books following the publication of Feminist Judgments: Rewritten Opinions of the United States Supreme Court (2016). We are grateful to the original editors of the Feminist Judgments project, Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, for their leadership and guidance. We are also indebted to Deborah S. Gordon for her invaluable insights and support throughout this property project. We wish to thank the members of the Advisory Panel who helped us select the cases and embraced this project with zeal. We are also so grateful to our editor, Matt Gallaway, for his patience, kindness, and insights. For research assistance, we thank Noah Leopold, Paula Melo, and Carolina Sanchez. We also wholeheartedly thank all our wonderful contributors for their dedication and enthusiasm.

xxi

About the Cover Art

On the cover, Assembly © Jose Rodriguez-Dod Jose Rodriguez-Dod is a Cuban artist, poet, and attorney. He prefers watercolor as a medium because a painter can directly manipulate the pigment’s unpredictability to configure an object. The process of painting, thus, acts as a natural force in the stream of life where chance and intention interact to create humanscapes. Commentary on Assembly Assembly is both a window and mirror to property law. The inspiration for Assembly comes from the method of combining lots for development. The multicolored panels offer a window to the varied perspectives on the development of property law and also reflect on both those who benefit from property rights and those who have not had the same access. – Jose Rodriguez-Dod 2021

xxiii

part i

Introduction

1 Introduction to Feminist Judgments: Rewritten Property Opinions eloisa c. rodriguez-dod and elena maria marty-nelson

This book started with an inquiry – whether judicial opinions written from feminist perspectives could have affected the development of the foundational legal subject of property law. We were inspired by how the original volume of the Feminist Judgments Series, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, demonstrated that feminist reasoning could have changed the development of key areas of the law, including constitutional law doctrines, such as equal protection and due process, and the interpretation of certain federal statutory laws, such as Title VII and Title IX.1 We recognized the need to demonstrate how feminist analysis could similarly have affected the path of property law. Why is a feminist perspective critical for property law? Feminist analysis highlights the impact and influence of perspective, background, and preconceptions on the reading and interpretation of property law. Despite some theories, particularly those focused on law and economics that approach property law as a neutral system for recognizing, allocating, and protecting competing claims to resources, property law is far from neutral. Sexism and other biases have shaped the development of property law in ways that perpetuate economic imbalances and maintain power inequities. For example, we are painfully aware of landlord–tenant laws that prevent victims of domestic violence, predominantly women, from terminating leases early even when necessary to protect their lives.2 In Chapter 16, commentator Lua Kamál Yuille and rewritten opinion author Pamela A. Wilkins describe how, 1

2

Kathryn M. Stanchi, Linda L. Berger, & Bridget J. Crawford, Introduction to the U.S. Feminist Judgments Project, in Feminist Judgments: Rewritten Opinions of the United States Supreme Court 12 (Kathryn M. Stanchi, Linda L. Berger, & Bridget J. Crawford eds., 2016). See Elena Marty-Nelson, We Gotta Get Out of This Place: When Residential Tenants Leave Due to Exigent Circumstances, 35 U. Ark. Little Rock L. Rev. 871 (2013). We had hoped to include cases addressing these and similar landlord–tenant issues in the book; however, these

3

4

Eloisa C. Rodriguez-Dod and Elena Maria Marty-Nelson

in Phillips Neighborhood Housing Trust, an entire family was evicted, pushing them into homelessness, for the actions of one tenant.3 In analyzing Botiller v. Dominguez, a United States Supreme Court case deciding competing claims to land, commentator Marc-Tizoc González and rewritten opinion author Guadalupe T. Luna describe how power dynamics played a role in the denial of land titles held by Mexican-American women.4 There is a robust body of theoretical scholarship analyzing how property law policies have exacerbated inequality and have served to deny property rights for women and other marginalized groups.5 This volume in the Feminist Judgments Series uses applied feminism scholarship to critique the development of the law of property and to demonstrate how feminist perspectives could shape its ongoing trajectory.

the feminist judgments property project This feminist judgments property project is part of the Feminist Judgments Series, which in turn is part of a global project. The US feminist judgments project was itself inspired by a similar venture in England called Feminist Judgments: From Theory to Practice.6 The English project, which in turn was inspired by a similar project in Canada – the “Women’s Court of Canada” – also spawned similar projects in Australia,7 New Zealand/Aotearoa,8

3

4 5

6

7

8

types of landlord–tenant cases involving vulnerable women rarely reach any level of the court system, let alone the appellate level. Phillips Neighborhood Hous. Tr. v. Brown, 564 N.W.2d 573 (Minn. Ct. App. 1997) (see Chapter 16). Botiller v. Dominguez, 130 U.S. 238 (1889) (see Chapter 5). “When it comes to property, the questions of the day revolve around inequality, and this is reflected in the broad nature of the questions scholars are asking of property law. But, while the questions are broad, the answers are too narrow.” Ezra Rosser, Destabilizing Property, 48 Conn. L. Rev. 397, 399 (2015). Feminist Judgments: From Theory to Practice (Rosemary Hunter et al. eds., 2010). The English volume includes twenty-three rewritten decisions, two of which have property law implications: one deals with whether husbands exerted undue influence on their wives to obtain consent for mortgage loans benefitting only the husbands’ businesses and the other dealt with whether a woman engaging in a sit-in at a utility company was improperly treated as a trespasser. See Australian Feminist Judgments: Righting and Rewriting Law (Heather Douglas et al. eds., 2015). The Australian volume includes a bankruptcy case that tangentially involved property law issues and cases in the more specialized field of environmental law. See Feminist Judgments of Aotearoa New Zealand: Te Rino – A Two-Stranded Rope (Elisabeth McDonald et al. eds., 2017). The New Zealand volume includes one property law case regarding a Maori couple seeking to change the status of their land to effectuate a sale. It also includes cases in environmental law.

Introduction to Feminist Judgments

5

Ireland,9 and Scotland,10 as well as a project devoted to the field of international law.11 Other feminist judgment projects are underway in India, Africa, and Mexico. The editors of the English project noted the absence of intellectual property cases in their book and expressed hope that future feminist judgment projects could fill that gap and demonstrate the possibilities of a feminist approach in various areas of property law.12 This volume of the US Feminist Judgments Series responds to the challenge to fill the gap regarding intellectual property, and goes beyond that to include other fundamental property law cases not addressed in the English book, or that represent developments in the law that are unique to the United States. As with all the volumes in the Feminist Judgments Series, in keeping with the focus on applying feminist theory to existing cases, the rewritten opinions in this volume are framed within the same laws and precedents that bound the original court at the time of the original opinion. In addition, the rewritten opinion writers were bound by the existing facts of the cases and could not change or create facts. The authors could, however, expand on the factual narrative of the original opinion as long as they limited themselves to facts in the record or facts that were appropriate for judicial notice. Even within those confines, the authors in this volume demonstrate how the rewritten opinions could have changed the development of property law. The authors bring to the decision-making and opinion-writing feminist perspectives on the facts and the law. One of the underlying claims of this volume is that even seemingly objective questions – such as when a co-tenant has been ousted or when the government may exercise its power of eminent domain to take private property – are affected by judicial experiences, perspectives, and reasoning processes. The rewritten opinions reveal that incorporating feminist theories and methods into property law cases is consistent with judicial duties and accepted methods of interpretation and has the effect of enriching and deepening the process by which judicial decisions are made.

9

10

11 12

See Northern/Irish Feminist Judgments: Judges’ Troubles and the Gendered Politics of Identity (Máiréad Enright et al. eds., 2017). The Irish volume includes a property law case discussing extending time to a defaulting mortgagor for payment of a loan. See Scottish Feminist Judgments: (Re)Creating Law from the Outside In (Sharon Cowan et al. eds., 2019). The Scottish project includes two cases related to property law – one regarding physical alterations to common areas and the other regarding the effect of legislation on the rights of agricultural tenants. See Feminist Judgments in International Law (Loveday Hodson & Troy Lavers eds., 2019). Rosemary Hunter, Clare McGlynn, & Erika Rackley, Feminist Judgments: An Introduction, in Feminist Judgments: From Theory to Practice 3, 12 (Rosemary Hunter et al. eds., 2010).

6

Eloisa C. Rodriguez-Dod and Elena Maria Marty-Nelson

Our process for choosing property law cases for feminist rewriting was deliberate. We began by putting together a list of cases culled from our own teaching, knowledge, and scholarship. We were interested in cases that explicitly implicated gender on their face – such as an intellectual property case involving patent claims for the isolation of two human genes linked to an increased risk for breast and ovarian cancers and a case involving landlord premises liability when a tenant was sexually assaulted – as well as in cases that required an understanding of the way the law creates or allocates interests in real and personal property, such as cases involving Indigenous rights, adverse possession rights, and publicity rights. Although we selected several United States Supreme Court property law cases, we also included cases from various federal and state courts. We were mindful to select cases that are generally taught in most first-year property law courses as fundamental to the development of various property law doctrines. We put together a diverse and distinguished group of leading property scholars as our Advisory Board to help evaluate the cases on our list as especially deserving (or not) of feminist rewriting and to help suggest other cases. This Advisory Board consists of Kristen Barnes, Rashmi Dyal-Chand, Lee Fennell, Angela Gilmore, Stacy L. Leeds, Amy J. Nelson, Eduardo Peñalver, Kalyani Robbins, Ezra Rosser, Rebecca Tushnet, and Darryl C. Wilson. The Advisory Board members gave us valuable feedback on the cases we had selected and offered suggestions for what became a somewhat expanded list of cases. We then disseminated a public call for authors, allowing prospective authors to specify their top three choices of cases and indicate whether they preferred serving as the author of a rewritten opinion or a commentary. Prospective authors were further invited to suggest cases that were not on the list. With the goal of choosing the most impactful cases and diverse range of authors for the book, and taking into account the input of our Advisory Board, we selected the fifteen cases for this volume and the authors for the rewritten opinions and commentaries. The cases in this book address many topics covered in property law courses, including acquisition of property by capture; Indigenous property rights; gifts; intellectual property, including patents, trademarks, and publicity rights; eminent domain; adverse possession; future interests; concurrent ownership, including tenancy in common, joint tenancy, and tenancy by the entirety; zoning; rights of licensees; and landlord–tenant rights and obligations, including possessory rights and premises liability. Most of the authors of the rewritten opinions and the commentators specialize in property law, but a few have recognized expertise in a substantive specialty that underlies the focus of the chosen case.

Introduction to Feminist Judgments

7

In addition to the authors for the cases, we invited two preeminent scholars to participate in the project by writing complementary introductory chapters to further situate this feminist project within the broader development of property law. In her chapter immediately following this Introduction, Lolita Buckner Inniss explains that, although several cases over the course of US property law jurisprudence have reached groundbreaking outcomes that reshape the common law and many others have represented major restructuring and reallocations of property rights, courts have rarely explicitly taken account of feminist legal theory. We also include a chapter written by Hannah Brenner Johnson highlighting the importance of including feminist viewpoints in first-year property courses and throughout the law school curriculum, and discussing how to interweave the rewritten property feminist judgments not only in the first-year property course, but also in advanced property courses such as intellectual property, landlord–tenant, and land use.

organizing the cases for the feminist rewrite Having chosen the cases and the authors, we turned to the organizational framework of the feminist judgments for the book. We debated organizing them by chronological order, by feminist theories or methods employed by the authors, or by property law subject matter. We recognized that there are benefits and burdens to any of these three organizational methods. Presenting in chronological order benefits from avoiding signaling our own personal preferences on theories or subject matter. On the other hand, using chronological order does not easily serve readers who wish to delve quickly into a particular feminist theory or property law topic. Organizing by feminist theories (e.g., formal equality, anti-subordination/ dominance, anti-stereotyping, intersectionality, autonomy and agency, cultural) or by feminist methods (e.g., feminist practical reasoning, narrative/ storytelling, widening the lens) would demonstrate the rich and varied field that is feminist legal theory and would provide readers with guideposts for teaching particular feminist theories or methods in connection with property law. Although tempting, we ultimately chose not to use this organizational framework because, as evident in the rewritten opinions and commentaries, many of our authors used multiple and overlapping theories and innovative methods in their rewritten opinions and commentaries making groupings somewhat artificial. What is not evident but is just as impressive is that, in developing their feminist rewritten opinions, the authors were innovative not only in the theories they used, but also in how they found ways to apply a feminist lens. Several of our authors took to heart the instructions that they

8

Eloisa C. Rodriguez-Dod and Elena Maria Marty-Nelson

could use additional facts as long as such facts were in the record. In order to create a richer more thoughtful narrative, the authors did significant detective work to uncover critical facts that were not included in the appellate decisions, such as interviewing lawyers or parties of the original cases to elucidate facts in the record. Other authors used literature and history and went beyond standard legal authority to infuse their rewritten opinions with feminist takes from the era. In addition to using different feminist theories, a few of our authors took their rewritten opinions in unexpected directions – in fact, in directions diametrically different from where we had envisioned they would take their rewritten opinions. This served as a reminder that there are multiple strands of feminist thought, many diverse feminist views, and no one definition of what is feminist.13 Although several of the cases involved multiple property topics that could be viewed as overlapping, we ultimately decided to use the subject matter framework. Grouping by subject matter benefits from a structure similar to first-year casebooks and provides for easier use of portions of this book as a companion to a first-year property course or to a specialized upper-level course, such as intellectual property and land use/zoning. Of the doctrinal groupings found in Parts II through IX, we deliberately started with the allocation of rights cases14 – Johnson v. M’Intosh,15 Botiller v. Dominguez,16 and Pierson v. Post17 – for several reasons. Allocation of rights is often the first topic covered in first-year property courses. Moreover, two of these cases deal with dispossession of land – a central tenet of property law. All three cases in Part II deal with devaluing interests of Indigenous persons and other underrepresented groups. Of the cases in this trilogy, both Johnson and Pierson typically appear in first-year property casebooks. The exclusion of Botiller from standard property casebooks is disappointing, but not surprising.18 Although some scholars have focused on property rights of Mexican, Indigenous, and Spanish women, those women remain primarily missing 13

14

15 16 17 18

For additional discussion of various feminist theories and methods, see Introduction to the U.S. Feminist Judgments Project, supra note 1, at 13–22, and Martha Chamallas, Introduction to Feminist Legal Theory (3rd ed., 2013). See also, Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics, 1989 U. Chi. Legal F. 139. Ironically, had we chosen a chronological framework, these three cases would also have been placed at the beginning of the book. Johnson v. M’Intosh, 21 U.S. 543 (1823) (see Chapter 4). Botiller v. Dominguez, 130 U.S. 238 (1889) (see Chapter 5). Pierson v. Post, 3 Cai. 175 (N.Y. Sup. Ct. 1805) (see Chapter 6). See Juan F. Perea, Los Olvidados: On the Making of Invisible People, 70 N.Y.U. L. Rev. 965, 966 (1995) (describing how Latinas and Latinos are treated as “Los Olvidados”).

Introduction to Feminist Judgments

9

from feminist and legal scholarship. Including Botiller in this property volume gives these women a voice and places them in the current pantheon of feminist-directed scholarship encompassing property rights. The remaining cases are structured in the following loose subject matter groupings: Part III patents, publicity rights, and trademarks; Part IV condemnation and adverse possession; Part V gifts and future interests; Part VI tenancy in common, joint tenancy, and tenancy by the entirety; Part VII exclusionary zoning; Part VIII evictions; and Part IX landlord–tenant premises liability.

conclusion The law of property, a broad yet fundamental area of the law, can serve to subordinate or empower, impoverish or enrich. This volume demonstrates that use of feminist perspectives and methodologies, if adopted by the courts, could make a vital difference on the development of property law and its effect on women and marginalized groups. The transformational force of rewritten feminist judgments, attuned to power dynamics and social relations, is particularly evident in the land title cases, such as Johnson. As recently as 2017, in discussing the Dakota Access Pipeline, scholars noted, It is ironic that a global controversy over indigenous rights takes place in the United States, litigated in a court system that still adheres to case law based on the Doctrine of Discovery, a fifteenth-century concept used to invalidate indigenous land possession and expropriate lands to the colonial forces of western Europe.19

All of the feminist judgments and commentaries in this property volume demonstrate how property law could have been reimagined. We were honored to work with our thoughtful and creative authors. Some of the changes that could have derived from the rewritten opinions would have been transformative, some would have been more subtle, but all would have led to a more just and equitable property law system.

19

Carla F. Fredericks, Rebecca Adamson, Nick Pelosi, & Jesse Heibel, Indigenous Rights of Standing Rock: Federal Courts and Beyond, ABA Hum. Rts., Sept. 1, 2017, https://www .americanbar.org/groups/crsj/publications/human_rights_magazine_home/vol–43/vol–43–no– 1/indigenous-rights-of-standing-rock–federal-courts-and-beyond/.

2 Property Law Revolution, Devolution, and Feminist Legal Theory lolita buckner inniss

introduction In the rewritten judgments that follow in this volume, authors envision alternatives to existing property cases. In their work, the authors query interpretations in both iconic, well-known property cases and some lesser known cases – for all the cases, in large and small ways, have shaped legal doctrine, processes, and practices. The authors premise their work on the notion that in many instances, judges, despite widely asserted notions of judicial constraint, have choices to make when deciding cases. The adoption of a feminist legal theory (and they are plural), that is, an explicitly feminist consciousness, is one of those choices, and it is a vitally important and necessary choice. Though feminist legal theories frequently promote change to existing legal norms, they do so not only for the sake of change but also to mediate legal, political, social, and economic barriers that limit women’s advancement.1 Moreover, feminist legal theories often confront the political and moral issues that all too often remain unaddressed, all while, within this silence, these issues work to narrow women’s possibilities. Participant authors in this project engage in exercises that are at once pointed and practical critiques of the law as it is, and also theoretical expositions of what the law could be. The judgments in this volume reflect a diversity of the theoretical underpinnings of feminist thought, from the classic distinction between liberal, differentialist, and radical currents to more recent debates on the place to be given to the discursive dimension. It is frequently said that the master’s tools cannot be used to disassemble the master’s house.2 But that is only true if one 1

2

Lolita Buckner Inniss, (Un)common Law and the Female Body, 61 B.C.L. Rev. E.Supp. I.-95 (2020). Lolita Buckner Inniss, Toward a Sui Generis View of Black Rights in Canada, 9 Berkeley J. Afr.-Am. L. & Pol’y 32, 51 (2007) (describing the “Audre Lord question” in the context of

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concedes ownership of the tools. These same tools, in different hands, may accomplish the dismantling and restructuring. This proposed restructuring via feminist legal theorizing is sorely needed even where there are claims that the house – here, traditional norms of property law – has been remodeled via revolution or devolution. Feminist legal theory is the ultimate tool that is often missing from many accounts of change. Rewriting with a feminist lens does not, however, mean taking flights of fancy, nor does it signal being entirely untethered from extant legal rules. Instead, such work occurs within limits that would have bound judges at the time of the original judgment, including adherence to existing legal principles, and consciousness of the impact of decisions on the parties and the broader community.3 Part of that consciousness means explicitly rearticulating norms that property law theorists have called part of the “revolution” in property. Another part of rewriting judgments in a feminist vein, however, includes implicitly evoking what is, and has been, devolution in property law. Both revolution and devolution have heralded momentous change, and both are necessary to the productions of new legal meanings. Both mechanisms of change have, however, frequently failed to take account of women and their particular concerns.

revolution and devolution in property law The last several decades of US property law jurisprudence have seen groundbreaking outcomes that have substantially reshaped common law property norms. This is particularly true in the domain of real property, that area of law that covers interests in land and the things attached to or significantly related to land. Two areas where there has been this sort of substantial change have been in landlord–tenant law and in zoning and other administrative property law norms. Both of these areas are frequently said to have undergone or engendered property law revolutions, a word often used to signal a vast, often sudden alteration in norms. Because assertions of revolution often describe unforeseen, greatly oppositional, and violent (though the violence here is mostly discursive) change that yields immediate transformation in the status quo, this type of description primes the listener for a non-longitudinal, improvised, or chaotic process of change. But occurring along with revolution, there

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assessing Black rights as “whether using common law norms can deliver justice to people who are outsiders to the system”). See, e.g., id.; Rosemary C. Hunter, The Power of Feminist Judgments?, 20 Feminist Legal Studies 135, 135–148 (2012); Bridget J. Crawford & Anthony C. Infanti, Introduction to the Feminist Judgments: Rewritten Tax Opinions Project, in Feminist Judgments: Rewritten Tax Opinions (Bridget J. Crawford & Anthony C. Infanti eds., 2017).

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has also been, at the heart of the reshaping of many norms of property law, devolution; that is, widespread, less immediately perceptible change wherein power and authority have been decentralized and transferred, sometimes to multiple parties or entities. Devolutionary change has increasingly been premised on reallocations of rights. If revolutions in property law are flash floods that immediately inundate traditional norms, then devolutions are slower-moving deluges that may or may not eventually inundate, but are more likely to erode and reshape the legal landscape, sometimes without immediate, or any, notice at all. It is this possibility of unseen mechanisms of change, along with the redistribution of power and authority, that make devolution, often working in tandem with revolution, an important process for the application of feminist legal theory. Leasehold law is a key example where both revolution and devolution have taken place. There is no doubt that many substantial doctrinal changes in modern residential leasehold law can be described as revolutionary. For instance, in common law, leaseholds were viewed as limited-term conveyances of real property. This meant, among other things, that landlords retained only reversionary interests. In a world where agricultural use was the basis for most leases, fixtures on the land, whether for residential or commercial use, were often considered ancillary to a tenant’s primary purpose for the lease. Correspondingly, once transferred, leaseholds created relatively few landlord obligations. Prior to conveyance of the leasehold, tenants could presumably readily inspect the land to learn about its condition; hence, tenants were held to the doctrine of caveat emptor – let the buyer beware. Many modern property law norms dispense with, or make ineffectual, caveat emptor, substituting instead protections for lessees. Added to these broad new protections were rights aimed explicitly at residential lessees, such as the implied warranty of habitability. Related to this notion of the lease as a conveyance of land rights was the fact that, traditionally, many promises made by the landlord to the tenant were independent of the tenant’s obligation to pay rent. In major contrast, much contemporary law views residential leases as a collection of mutually dependent covenants. All of these changes shaped a world of modern leaseholds where tenants were newly empowered. Compared to what occurred for most of the history of Anglo-American leasehold law, this is revolutionary. It is also devolutionary, for power flowed from the landlord to the tenant, making the tenant’s rights, if not equal to those of the landlord, more closely commensurate with the landlord’s rights. This new world of leaseholds was said to render this area of property law more akin to contract – a realm where there was, ostensibly, more mutuality and fewer power imbalances. But what is often conveniently ignored in this

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sanguine tale about the shift in leasehold norms is that the world of contract is no juridical paradise. The greater deployment of contractual legal regimes does not necessarily offer an abstract community where minds meet, where rights and duties are reciprocal and equally weighted, and where property allocations are perfected. Similarly, issues of both revolution and devolution are evident within the domain of zoning and other aspects of administrative property law. Traditional zoning schemes are land use regulatory tools that typically prescribe designated land uses within a community with an ultimate goal of restraining density and separating primary uses. Zoning is one of several administrative property law mechanisms for advancing a city’s objectives, standards, and strategies for the growth and development of the community.4 Notwithstanding its omnipresence as a tool of civic planners, zoning is, within the context of both Anglo-American law and urban planning theory, relatively novel, having been first articulated near the end of the nineteenth century.5 Zoning, while often working together with the common law land use norms that came before it, is also highly distinct from those common law norms. Zoning burst onto the scene of urban and suburban life and altered not only property rights allocations but also social and economic relationships across a broad spectrum of contexts. This easily makes zoning a revolutionary aspect of property law. But just as is true in the domain of leasehold law, much of zoning involves significant devolutionary change. The transfer of ultimate control over land use from individual property owners to government is, one might argue, almost a reverse devolution, where certain aspects of power and authority over land, instead of being decentralized and diffuse, are concentrated in the hands of a single entity – the government. But this view fails to account for the fact that government holds zoning rights, and even the power to zone, not on its own account but on account of all of its subjects. Hence, when municipalities decide to permit or forbid a particular use, they act for those within their political jurisdiction. Zoning laws, just as in the case of contemporary leasehold norms, are often wrapped in utopian ideologies that envision new norms of fairness, utility, welfare, efficiency, and beauty in land use.6 What occurs instead in some cases where zoning norms are at play is decidedly realistic, even dystopian, such as in situations where zoning imposes

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Lolita Buckner Inniss, Back to the Future: Is Form-Based Code an Efficacious Tool for Shaping Modern Civic Life?, 11 U. Pa. J.L. & Soc. Change 75, 80 (2007). Id. Carol Willis, Zoning and “Zeitgeist”: The Skyscraper City in the 1920s, 45(1) Journal of the Society of Architectural Historians, 47–59 (1986).

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artificial barriers on use and, whether implicitly or explicitly, discriminates based on gender, race, or class. Property law in general, and in the examples seen in leasehold law and zoning, are potent sites for power imbalances that are ongoing and frequently unseen. These disparities in power are, moreover, exacerbated by social identity factors. Much vaunted claims of property law revolution, and the less often discussed but equally as important devolution in property law norms, often distort and obscure persistent inequities. However one looks at it, there is a gap between broad accounts of the property law revolution and the detailed functioning of devolutionary processes in property law regimes. Any idea of property law, and of change within its regulatory regime, is incomplete without an incorporation of social identity–based legal theories, and especially of feminist legal theory.7

social identity, revolution, devolution, and the role of feminist legal theory Though social identity–based legal theories have at times acknowledged women and some of their concerns, they have not consistently or rigorously done so. This lack of address to women’s issues is especially noteworthy in revolutionary and devolutionary processes of property law change. Had courts engaged in such practices, it would have clarified established doctrines and potentially given them more impact. These rewritten judgments do this work, showing how the concerns of women can be centered in narratives of revolution and devolution. Some of the judgments in this volume directly assail the patriarchal dimensions of law. For example, in her rewriting of Phillips Neighborhood Housing Trust v. Brown,8 author Pamela Wilkins addresses a case whose outcome appears to be a workaday example of the contemporary relationship between landlords and tenants wherein contract, and not property norms, prevail. In Phillips, Mary Brown, the appellant, rented an apartment in a municipal government–run apartment complex for herself and her co-occupant children, two minor daughters and a young adult son. The landlord required one of those children, a 20-year-old son named Anthony Brown, to join as a co-signer on the lease, apparently because he was past the age of 18. As Wilkins notes, the landlord was under no legal obligation to require Anthony Brown to join on the lease, but did so nonetheless. When Anthony 7 8

Margaret Davies, Property: Meanings, Histories, Theories (2007). Phillips Neighborhood Hous. Trust v. Brown, 564 N.W.2d 573, 574 (Minn. App. 1997).

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Brown was found to have illegal drugs (crack cocaine) on the premises in violation of the lease, the landlord brought an unlawful detainer action to recover possession of the apartment. After an administrative proceeding found for the landlord, Mary Brown sought judicial review of the decision. The district court, however, affirmed, finding that the lease clearly gave the landlord the right to cancel the lease and bring an unlawful detainer action against a tenant who engages in illegal activity on the premises. Wilkins, dissenting to the original judgment, argued that the original judgment erred in its uncritical reliance on formal legal norms. The original outcome in Phillips relies upon what is claimed as part of the revolution in property law – the proliferation of contract law norms and presumed greater rights for both parties – and in the process, undermines the tenant’s rights. Wilkins notes that the lease left Mary Brown with a trio of difficult choices: (i) refuse to sign the lease in view of her objections, thereby ensuring her family’s continued homelessness; (ii) enter the lease as the sole signatory, thereby abandoning Anthony to the streets; or (iii) enter the lease with Anthony as a co-lessee, thereby ensuring housing for her entire family but virtually eliminating any control she had over Anthony Brown. In her commentary on Wilkins’s rewriting of Phillips, author Lua Kamál Yuille notes that the original decision elides not only the economic but also the racial and gendered dynamics of the situation. Mary Brown faced homelessness, both before and after her eviction, a situation exacerbated by her role as a mother. Moreover, the original judgment gives no attention to the fact that Mary Brown is likely a Black woman. Nothing in the case clearly identifies her race. But as Yuille observes, Anthony Brown possessed crack cocaine, and “crack is black.”9 And the facts of Mary Brown’s single motherhood, poverty, and use of publicly funded housing make Mary Brown discursively, if not actually, Black. In the United States, the traditional family is not only a gendered system of social organization; it is also often explicitly connected to racial ideas and practices.10 Persons with Mary Brown’s attributes are frequently “coded” Black even where they may not be.11 As Wilkins notes, Anthony Brown’s violation of rules regarding possession of drugs came to light when, less than a week after the Browns moved in, police were called to the apartment because Anthony Brown was threatening 9 10

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Lua Kamál Yuille, Commentary, Chapter 16. Patricia Hill Collins, It’s All in the Family: Intersections of Gender, Race and Nation, 13(3) Hyptia 62, 62 (1998). Lolita Buckner Inniss, “Sisters Underneath Their Skins”: Theorizing Maternal Performativity in Legal Discourses of White Women’s Race-involved Child Custody Disputes in the United States, 1941–2004 (2011) (unpublished PhD dissertation, York University) (on file with author).

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violence. There was no dispute that the drugs police found were the property of Anthony Brown and that neither Mary Brown nor her daughters were aware of its presence. Nonetheless, Mary Brown was held responsible, and there were no contractual norms that protected her and her interests, even in the face of Mary Brown’s suffering as a victim of domestic violence. There were, as Wilkins noted, legislative norms on domestic violence that could have been deployed to protect Mary Brown from eviction. But the original court somehow refused to invoke that protection, deciding instead to stick to the four corners of the lease contract. Other rewritten judgments draw more nuanced observations, premised on the notion that though law is often used to reinforce male domination, it can also be mobilized in an emancipatory sense for women. This is seen in the case of Moore v. City of East Cleveland,12 rewritten by author Danaya Wright. In the original Moore judgment, the United States Supreme Court found that an East Cleveland, Ohio, zoning ordinance that prohibited Inez Moore, a widowed Black woman, from living with one of her grandchildren, was unconstitutional. The Court ruled that the East Cleveland zoning ordinance violated substantive due process because it intruded too far upon the “sanctity of the family.”13 As author Wright points out, the case should have been a clear-cut example not only of jurisprudence in support of family values and the importance of the family unit but also of ingrained social norms. The town of East Cleveland, presumably understanding these norms, should never have enacted such laws, much less defended them up to the highest court. Instead, the city insisted upon a labyrinthine definition of “family” that excluded from city housing many common family groupings, such as adult different-sex siblings, married women who rejoined their parents while their spouses were deployed in the military, and others. Mrs. Moore lived in her East Cleveland home with her adult son, Dale Moore, Sr., his son Dale Moore, Jr., and her grandson John Moore, Jr. Then six-year-old John Jr., the son of Mrs. Moore’s other, absent son, John Moore, Sr., was the family member whose presence offended the zoning ordinance. While the original judgment finds for Mrs. Moore, author Wright’s rewritten judgment goes further and discusses what is likely at the heart of East Cleveland’s ordinance: gender, race, class, and the interaction of the three aspects of social identity. There is, as Wright points out, a much greater tendency for Black families than White families to offer homes to children outside their nuclear families. And as commentary author Berta Esperanza 12 13

Moore v. City of East Cleveland, 431 U.S. 494 (1977). Id. at 503.

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Hernández-Truyol points out, the original Moore case, while hinting at racial injustice, does not go far enough in discussing the likely impetus behind the ordinance: the growing number of poor Black families in what earlier in the twentieth century had been a wealthy White enclave. East Cleveland’s use of zoning was, in perverse respects, revolutionary, in that it was a means of hiding behind norms of neutrality, thus avoiding de jure racial discrimination that had characterized much twentieth-century property law. It was, moreover, also archly devolutionary, since zoning actions undertaken by the city were not, on their faces, at the behest of any one citizen, but still allowed those wishing to discriminate to disavow all involvement and yet benefit from implementation of discriminatory actions.

conclusion Rewriting legal judgments in the property context, or in any other, is an exercise in actively critiquing an “official” evaluative legal judgment by going back to the original statement of facts, re-answering the legal questions (or reframing the questions posed), and rendering an alternate judgment.14 Such analyses proceed from a feminist perspective, and in the process they often question “known” truths. There is, however, an overarching concern: How does one invoke an assiduously feminist analysis of law, thereby denouncing the patriarchal nature of law, all while deploying law as a tool for social change? The denunciation of the role of law in the maintenance of patriarchal domination is perhaps one of the most commonly held aspects of feminist legal theorizing. The authors in this volume have multiple and varied views on what feminism is and/or with what tenets of critical feminist legal theory they specifically agree. This diversity of perspective is indicative of the intersectional feminist lens specifically imported into the work.15 Crucially, these rewritten judgment writers face, as did the original judges, the reality “that judges cannot always reach the results they consider most

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Evaluative judgments are those that look to all possible options from a regulatory perspective to reach a conclusion, even while sometimes acknowledging that there are other ways to go, and ultimately recognizing the “truth” of an outcome. Christian Barth, Judgement in Leibniz’s Conception of the Mind: Predication, Affirmation, and Denial, 39 Topoi 689, 693 (2020). One significant aspect of the feminism seen within the rewritten judgment movement is its concern with “justice and equality, that . . . brings into focus issues such as gender, race, ethnicity, socioeconomic class, disability, sexual orientation, national origin, and immigration status.” Crawford & Infanti, supra note 3, at 7.

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desirable by means of statutory interpretation or the incremental development of the common law.”16 Each feminist judgment here takes a different route than the original court in explicating the relative positions of the parties in terms of identity and respective places within society.17 Nonetheless, the effects of both revolution and devolution are present. The jurists in this volume promote an implementationist property jurisprudence, one that starts from the point of view of women, and of the reality of their oppression. All of the rewritten judgments expose the possibilities for law to both destabilize and rebuild the gendered system in place. These judgments give attention to the traditional foundations of property law, and explore fissures within narratives of change, thus allowing property law to be reimagined.

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See Feminist Judgments: From Theory to Practice 15 (Rosemary Hunter et al. eds., 2010). See, e.g., Lolita Buckner Inniss et. al., Cecilia Kell v. Canada, in Feminist Judgments in International Law 343–347 (Loveday Hodson & Troy Lavers eds., 2019); see also Grant Christensen, United States v. Rickert, in Feminist Judgments: Rewritten Tax Opinions 64–65, 73–76 (Bridget J. Crawford & Anthony C. Infanti eds., 2017); see also David A. Brennen, Bob Jones University v. United States, in Feminist Judgments: Rewritten Tax Opinions 150–156 (Bridget J. Crawford & Anthony C. Infanti eds., 2017).

3 Incorporating Feminist Perspectives throughout Law School Curriculum hannah brenner johnson

In law schools across the United States, feminist perspectives are glaringly absent from the curriculum – from the first year’s core subjects through the upper-division specialty, experiential, and elective courses. The formal study of feminist jurisprudence, if it occurs at all, is typically relegated to the occasional specialized gender-focused seminar offered at some institutions.1 Today, traditional first-year doctrinal courses are almost uniformly taught using the well-established case method.2 The content of the casebooks (including the cases and supplementary notes) for these courses may vary somewhat from author to author. However, most rely on a fairly well-defined and similar group of legal opinions that were written almost exclusively by a homogenous group of judges whose perspectives were not informed by feminist jurisprudence, as evidenced by the selection of property cases for this volume titled Feminist Judgments: Rewritten Property Opinions of the Feminist Judgments Series. Perhaps more than other subjects, the law of property has evolved without the benefit of diverse judicial perspectives, making it a ripe topic for revision. “Property is oft considered the province of the antediluvian, far situated from modern concerns, particularly issues of race and diversity. Even more so than other areas of legal academia, Property remains the province of dead white

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There is debate surrounding the precise place and time of introduction of special upper-level courses that addressed women and law, but the general consensus is that these courses emerged in the 1970s. Many law schools today offer a course with a focus on women, gender, and/or sexuality, but this depends largely on the availability, interest, and expertise of faculty. For a comprehensive discussion of the history of legal education and the evolution of law teaching, see Martha Minow, Marking 200 Years of Legal Education: Traditions of Change, Reasoned Debate, and Finding Differences and Commonalities, 130 Harv. L. Rev. 2279 (2017).

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men.”3 As a result of this dynamic, very few students encounter written materials, cases, or textbooks reflecting feminist perspectives during their years of studying property and other legal subjects, with almost no exception. The net effect of this reality is that once students become lawyers (and later judges), they lack even a basic understanding and appreciation of feminist viewpoints and ideas. The mostly monolithic – or masculine – perspective forms their perceptions of law, which limits their worldview and results in a narrow frame through which they advocate for their clients or shape precedent and evolve the law. They also enter the legal profession unaware of the gendered dynamics that exist among lawyers themselves, and subsequently engage in law practice and judicial decision-making without knowledge of fundamental feminist concerns like inequality, bias, stereotypes, sexual violence, domestic abuse, sexism, and discrimination. The entire Feminist Judgments Series strives to upend this reality by offering scholars the opportunity to rewrite judicial opinions through a feminist lens. Despite the importance of this undertaking, it is not sufficient to simply convene a cohort of legal academics to rewrite the opinions and compile them into a text that will be read largely by other feminist scholars, although this is not an unimportant outcome. Indeed, the more significant and lasting impact of this work that is the focus of Feminist Judgments: Rewritten Property Opinions depends largely on how law professors throughout the legal academy engage with the book and share its contents – the rewritten property law opinions and their respective commentaries – with their students. Law school, after all, is the site where future lawyers are trained, offering a natural place to educate and inform students about a myriad of ideas that will eventually shape the future of the profession. This chapter will highlight the importance of interweaving feminist perspectives into the law school curriculum generally, from first-year Property courses and beyond. But before delving into the reasons that underscore the importance of this undertaking and offering a few strategies for infusing some of these rewritten property opinions into the curriculum, the chapter will first focus on the demographics of the legal profession, an exercise that reveals a pervasive and problematic lack of diversity among lawyers and, relatedly (and relevant to this book’s purpose), of perspective.

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Bela August Walker, Making Room in the Property Canon Integrating Spaces: Property Law and Race. By Alfred Brophy, Alberto Lopez & Kali Murray. New York, New York: Aspen Publishers, 2011. 368 Pages. $40.00, 90 Tex. L. Rev. 423 (2011).

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diversity in the legal profession The historic origins of the legal field were such that women and minorities were routinely excluded from participation in law school4 and denied admission to the bar,5 resulting in a profession that was very homogenous and predominately led by White men. Although the demographics of the legal profession today are more reflective of the diversity in our communities than they once were, there is still a great deal of progress that must be accomplished to ensure that lawyers reflect the diversity of the population and of clients they serve. For the past several decades, women have been entering and graduating from law schools in fairly equal numbers with men and are hired by employers throughout the profession, suggesting that the historic gender gap has likely closed. While there has indeed been some progress for women, the same is not necessarily true for students from diverse ethnic and racial backgrounds, or those who identify as LGBTQIA. Indeed, in 2018, 8.11 percent of students enrolled in an ABA-accredited law school were African American, 6.17 percent were Asian American, and 12.8 percent were Hispanic, while 60.7 percent were White.6 Similarly, of the students who graduated with a J.D. degree in the 2017–2018 period, 61.4 percent were White, 8.5 percent were African American, 6.8 percent were Asian American, and 11.9 percent were Hispanic.7 Although some of the progress made in law school admissions is reflected in the relative gender parity that now exists among the student body, the legal profession itself has stubbornly remained a sphere dominated by a lack of diversity, especially in the highest echelons of leadership and power. As but one point of illustration, the American Bar Association’s National Lawyer Population Survey revealed that the percentage of active attorneys in the USA who identified as Black/African and American Hispanic/Latino was only 5 percent for each group.8 According to current statistics, 22 percent of 4

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A Brief History, W&L, https://my.wlu.edu/about-wandl/history-and-traditions/a-brief-history (last visited Feb. 18, 2020). Myra Bradwell was denied admission to the Illinois bar because she was a woman. The decision of the Illinois Supreme Court was upheld by the Supreme Court. Bradwell v. Illinois, 83 U.S. 130, 141 (1872). Law School Enrollment by Race & Ethnicity (2018), Enjuris, https://www.enjuris.com/ students/law-school-race-2018.html (last visited Feb. 19, 2020). Diversity in the US Population & the Pipeline to Legal Careers, LSAC, https://www.lsac.org/ data-research/data/diversity-us-population-pipeline-legal-careers (last visited Feb. 19, 2020). ABA National Lawyer Population Survey, ABA (2019), https://www.americanbar.org/content/ dam/aba/administrative/market_research/national-lawyer-population-demographics-2009–2019 .pdf.

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partners among law firms are women.9 Data from NALP reveals that in 2018, only one in five equity partners (or about 20 percent) were women and only 6.6 percent were racially or ethnically diverse.10 This reality improves slightly in the corporate world, where 30 percent of general counsels in the Fortune 500 are women,11 but women only make up 6.6 percent of CEOs on the list, and women of color constitute an even smaller percentage.12 In fact, in late 2018, only two women of color held CEO positions in the Fortune 500.13 The legal academy has seen a more significant increase of women in leadership roles as they currently comprise 35 percent of law school deans.14 But, the picture is not entirely bright. For example, when L. Song Richardson was appointed dean of the University of California at Irvine School of Law on January 1, 2018, she was the only woman of color serving as dean of a top-thirty law school in the United States.15 This lack of diversity has significant consequences that extend beyond a mere lack of representation (though this too has significant negative effects on younger generations who might aspire to careers in law, or on clients who seek legal services from those who look like or can relate to them). In a recent random sample of the nation’s top ten law reviews, women comprised only 33 percent of authors.16 This presents a real problem that mirrors the lack of women’s perspectives in the legal opinions that our students read in law school. The top law reviews feature impactful scholarship that informs the

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Destiny Peery, Report of the 2018 NAWL Survey on Retention and Promotion of Women in Law Firms 1 (2018). Representation of Women and Minority Equity Partners among Partners Little Changed in Recent Years, NALP (Apr. 2019), https://www.nalp.org/0419research. Am. Bar Ass’n Comm’n on Women in the Profession, A Current Glance at Women in the Law (Apr. 2019), https://www.americanbar.org/content/dam/aba/administrative/women/ current_glance_2019.pdf. Courtney Connley, The Number of Women Running Fortune 500 Companies Is at a Record High, CNBC (May 16, 2019), https://www.cnbc.com/2019/05/16/the-number-of-womenrunning-fortune-500-companies-is-at-a-record-high.html. Judith Warner, Nora Ellmann, & Diana Boesch, The Women’s Leadership Gap, Ctr. for Am. Progress (Nov. 20, 2018), https://www.americanprogress.org/issues/women/reports/2018/11/20/ 461273/womens-leadership-gap-2/. Id. Debra Cassens Weiss, UC Irvine’s Richardson Is the Only Woman of Color Serving as Dean at a Top 30 Law School, ABA Journal (Jan. 12, 2018), http://www.abajournal.com/news/article/ new_law_dean_at_uc_irvine_is_the_only_woman_of_color_to_serve_as_dean_at_a. For a comprehensive analysis of women of color law deans, see Laura Padilla, Women Law Deans, Gender Sidelining, and Presumptions of Incompetence, 35 Berkeley J. of Gender, L. & Justice 1 (2021). Law Reviews and the Self-Fulfilling Prophecy, Above the Law (Feb. 12, 2019), https:// abovethelaw.com/2019/02/law-reviews-and-the-self-fulfilling-prophecy/.

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creation of law and policy, as well as judicial decision-making.17 Publication in the top law reviews also signals to other law professors the relative significance of a scholarly article.18 Appointments committees routinely rely on publication status as a determinative factor in hiring decisions. And for many law professors, merit-based raises are correlated to the prominence of article placement, either as a threshold requirement or as a means to provide additional compensation. The absence of diverse voices from this coveted scholarly space is deeply troubling and reflective of the same reality that the Feminist Judgments Series project generally, and this Feminist Judgments: Rewritten Property Opinions book specifically, seeks to address. As evidenced by this lack of diversity in the nation’s most prestigious law reviews, the problems that stem from this pervasive inequality in the legal profession go well beyond simply a problem of numbers. This pervasive homogeneity also creates a number of negative outcomes and consequences. Most relevant to the current inquiry is the dearth of different viewpoints, especially feminist viewpoints, in legal opinions. The lack of diversity among lawyers in all areas of practice has long been a problem, as demonstrated by the statistics above. But what about in the judiciary, the place where critical legal precedent is created and law is effectively made? Since the nation’s founding, the federal judiciary has been overwhelmingly White and male. From the eighteenth century until the 1960s, White male judges comprised at least 99 percent of the federal judiciary. Among all federal Article III judges, about 33 percent are women; this includes women who serve as U.S. Court of Appeals judges, U.S. District Court judges, U.S. Magistrate judges, and U.S. Bankruptcy Court judges.19 The percentage shrinks dramatically when looking more narrowly at only federal circuit and district court judges: 28 percent of sitting judges are women and only 6 percent are women of color.20 This percentage is not constant across all circuits, however: several circuits have only a small minority of

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Gender disparities exist among those scholars whose work is selected for publication. Minna J. Kotkin, Of Authorship and Audacity: An Empirical Study of Gender Disparity and Privilege, 31 Women’s Rts. L. Rep. 385 (2010); Jonathan Gingerich, A Call for Blind Review: Student Edited Law Reviews and Bias, 59 J. Legal Ed. 269, 271 (2009). Gender disparities also exist in law review citation rates. See Christopher A. Cotropia, Gender Disparity in Law Review Citation Rates, 59 Wm. & Mary L. Rev. 771 (2018). Women’s History Month, U.S. Courts, https://www.uscourts.gov/about-federal-courts/ educational-resources/annual-observances/womens-history-month (last visited Feb. 19, 2020). Examining the Demographic Compositions of U.S. Circuit and District Courts, https://www .americanprogress.org/issues/courts/reports/2020/02/13/480112/examining-demographiccompositions-u-s-circuit-district-courts/ (last visited Dec. 15, 2020).

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female judges.21 Women of color are even less represented within the judiciary, where they comprise only 7 percent of federal judgeships.22 Women’s entrance into the judiciary dates back over eighty years, when Florence Allen was the first woman appointed to serve on an Article III appellate court.23 In 1934, President Franklin D. Roosevelt named her to the U.S. Court of Appeals for the Sixth Circuit.24 This historic first appointment did not, however, spawn a deluge of women entering the judiciary. Progress occurred incrementally, and for women of color, the progress was even slower. Today, there are fifty-four women of color serving as active federal judges across the country.25 Among state court judges, the picture is quite similar: only about 34 percent of judges are female.26 In 2020, there were a number of states supreme courts that still had not had a woman or minority serve as chief justice. While previous presidential administrations have made great strides to diversify the federal bench, the presidential administration from 2016 to 2020 did not share this priority and appointed the least racially and ethnically diverse group of federal judges in the past three decades. The reasons for diversifying the legal profession vary and range from increasing symbolic representation to diversifying substantive legal opinions. To this latter point, “Adding a diversity of voices – whether due to background differences in race, gender, childhood class status, sexuality, religion, or work – will only enrich the decision-making process. The fact is that background – or to put it differently, diversity – matters on judicial bodies.”27 The late Justice Ruth Bader Ginsburg spoke publicly in numerous contexts throughout the later years of her career about the difference that having women on the United States Supreme Court has made. In an interview following the oral arguments of Safford Savana Unified School District 21 22

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Id. Michele L. Jawando & Allie Anderson, Racial and Gender Diversity Sorely Lacking in America’s Courts, Ctr. for Am. Progress (Sept. 15, 2016), https://www.americanprogress.org/ issues/courts/news/2016/09/15/144287/racial-and-gender-diversity-sorely-lacking-in-americascourts/. Ruth Bader Ginsburg & Laura W. Brill, Women in the Federal Judiciary: Three Way Pavers and the Exhilarating Change President Carter Wrought, 64 Fordham L. Rev. 281 (1995). In 1909, Allen was the only woman in a class of some 100 students at the University of Chicago Law School. However, Presidents Hoover, Roosevelt, and Truman later shortlisted her for the United States Supreme Court. Renee Knake Jefferson & Hannah Brenner Johnson, Shortlisted: Women in the Shadows of the Supreme Court (2020). Supra, note 20. Id. Angela Onwuachi-Willig, Representative Government, Representative Court? The Supreme Court as a Representative Body, 90 Minn. L. Rev. 1252 (May 2006).

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v. Redding, Justice Ginsburg stated emphatically that none of the male judges sitting on the Court could empathize with what it was like to be a 13-year-old girl.28 Safford considered a young female student who was strip-searched during the school day after being accused of hiding ibuprofen to ease her menstrual cramps. After Justice Ginsburg’s eight male colleagues on the Court indicated during oral argument that they were not concerned by the search, she observed that as men, they could never have found themselves in such a situation. In a newspaper interview Justice Ginsburg later explained, “It’s a very sensitive age for a girl . . . I didn’t think that my colleagues, some of them, quite understood.”29 With this statement she made a compelling argument about the feminist impact her presence on the bench made on the men who are involved in rendering judicial opinions. Safford was decided 8–1 in favor of the teenage girl. Although the Court sided with the female student in this case, the decision might have come out differently without the perspective shared by a female justice. Indeed, it may well have become an opinion deserving of rewriting. How would a bench made up entirely of male justices have gleaned the perspective offered by Justice Ginsburg about the experience of young women at the time of puberty being subject to such humiliation and shame during a search like the one in this case? In an earlier article in 2003, Justice Ginsburg again expressed a similar sentiment: “A system of justice is the richer for the diversity of background and experience of its participants. It is the poorer, in terms of evaluating what is at stake and the impact of its judgments, if its members – its lawyers, jurors, and judges – are all cast from the same mold.”30 Just months before her death, Justice Ginsburg addressed a standing-room-only crowd of law professors, their partners, and their children in Washington, D.C. at the AALS 2020 annual conference where she reflected on the changes she observed in the perspective of her colleagues – like Chief Justice William Rehnquist – over the years as a result of interactions with his female colleagues. Diversity adds immense value to the judiciary from a symbolic standpoint as well. For parties to a case and the public at large, the court’s legitimacy is

28 29

30

Safford Unified School District v. Redding, 557 U.S. 364 (2009). Joan Biskupic, Ginsburg: Court Needs Another Woman, USA Today (May 5, 2009), https:// abcnews.go.com/Politics/ginsburg-court-woman/story?id=7513795; see also Berta Esperanza Hernández-Truyol, Talking Back: From Feminist History and Theory to Feminist Legal Methods and Judgments, in Feminist Judgments: Rewritten Opinions of the United States Supreme Court 37 (Kathryn M. Stanchi, Linda L. Berger, & Bridget J. Crawford eds., 2016). Ruth Bader Ginsburg, The Supreme Court: A Place for Women, 32 Sw. U. L. Rev. 189, 190 (2003).

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strengthened when the decision-makers look like or share similar characteristics to them. As described by Justice Elena Kagan, “People look at an institution and they see people who are like them, who share their experiences, who they imagine share their set of values, and that’s a sort of natural thing and they feel more comfortable if that occurs.”31 This lack of diversity among judges contributes to the shortage of feminist perspectives that are shared with students through the case law taught in their doctrinal courses. It does not follow, however, that all female judges are feminists. But the more diverse the profession and the judiciary becomes, the more likely there will be more space for a range of perspectives, including feminist ones. Because students form their opinions about the law based on the material they grapple with throughout law school, failing to expose them at the very least to the existence of feminist viewpoints and ideas is a major shortcoming. There does seem to be incremental progress in terms of broadening diversity on the bench, but those who predict the pace of change suggest it will take a long time. For now, while we wait for the composition of the bench to reflect greater diversity of identity and perspective, books like this one in the Feminist Judgments Series are especially critical.

infusing feminist perspectives into law school curriculum One of the effects of the lack of diversity among lawyers is that feminist perspectives have largely been absent from judicial opinions. These opinions not only impact the lives of real people and create important precedent, but they also populate legal casebooks, which form the basis for educating law students about doctrinal areas of the law, like property. Students in turn learn the law through the traditional, stereotypical male lens that by design omits the perspective of women and feminist ideas. This results in students being unprepared to practice in this diverse world. Despite the legal profession’s struggle with diversity, the United States is made up of individuals who represent broad racial, ethnic, cultural, socio-economic, and educational backgrounds – many of whom may need access to legal services and lawyers. Regardless of their identities, beliefs, attitudes, or mindsets, when our students graduate, they will be practicing law in a world that is diverse.

31

Adam Liptak, Sonia Sotomayor and Elena Kagan Muse Over a Cookie-Cutter Supreme Court, N.Y. Times (Sept. 5, 2016), https://www.nytimes.com/2016/09/06/us/politics/sotomayor-kagansupreme-court.html.

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In addition to giving all students practice in thinking about legal issues from a variety of cultural perspectives, this approach offers students from various backgrounds the opportunity to see their communities reflected in the discussion. This helps to create a more inclusive classroom environment.32

Infusing the law school curriculum – core curricula, upper-level, elective, and experiential courses and clinical programs – with feminist perspectives may lead to a more ethical profession that is better situated to address the legal problems of those most vulnerable. The notion of using the law school curriculum as a place to infuse critical ideas related to the practice of law is not without precedent. As a point of relevant illustration, consider an initiative, Educating to End Domestic Violence, launched in the early 2000s by the American Bar Association, designed to address the pervasive problem of domestic violence. At that time, the ABA relied on data that indicated “[2] to 4 million American women are battered every year, and . . . between 3.3 and 10 million children witness violence in their homes.”33 The ABA was further compelled by the widespread impact of the problem: “Battering affects families across America in all socioeconomic, racial and ethnic groups.”34 The central premise of this project focused on incorporating domestic violence education throughout the law school curriculum in order to reach law students who would soon be lawyers and provide them with access to information they would likely require during their careers. The ABA program was grounded in the idea that “[l]egal professionals who are uninformed about domestic violence issues may endanger the safety of victims or contribute to a society which has historically condoned the abuse of intimate partners.”35 Therefore, the program sought to address the lack of information shared with law students, finding that “many legal professionals have not been trained adequately on appropriate legal interventions for domestic violence. By integrating domestic violence issues into law school curricula, law schools can provide lawyers with the tools to assist victims effectively and to improve the legal system’s response to family violence.”36

32

33

34 35 36

Bonny L. Tavares, Changing the Construct: Promoting Cross-Cultural Conversations in the Law School Classroom, 67 J. Legal Educ. 211, 214 (2017). Deborah Goelman & Roberta Valenta, When Will They Ever Learn? Educating to End Domestic Violence: A Law School Report I-5 (1997), http://lobby.la.psu.edu/064_ Legal_Services/Agency_Activities/DoJ/DOJ_Educating_dom_violence.pdf. Id. Id. Id. at I-6. Early in my legal career I was invited to join a team of faculty attending the Educating to End Domestic Violence conference. I found the premise very compelling, such

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Though narrowly focused on the topic of domestic violence, the ABA report and surrounding conferences organized around the same issue are relevant here as a point of illustration about the import of exposing students to rewritten opinions through a feminist lens. Different aspects of property law – trusts and estates, real property ownership, landlord–tenant issues – can be seriously affected when one of the parties is a perpetrator or victim of domestic violence. Feminist perspectives can help inform and more appropriately shape the delivery of legal services in a way that reflects an understanding of domestic violence issues, leading to safer and more equitable outcomes. This is but one example of how the infusion of feminist perspectives in classrooms throughout the continuum of legal education is so very critical. “The legal profession has a unique role to play in developing and implementing coordinated community responses to domestic violence. To realize this goal, however, law school programs must ensure that law students – who may become prosecutors, defense attorneys, family law attorneys, general practitioners, business leaders, legislators, lobbyists, policy analysts, or judges – attain an adequate understanding of domestic violence issues.”37 Although domestic violence could be considered a niche area of law, the theoretical underpinnings of the ABA Educating to End Domestic Violence initiative resonate with our goals in the current Feminist Judgments Series project. Law school curriculum today is consistent across most law schools in the country, regardless of their size, location, or ranking. First-year courses required of all law students cover, with limited exception, the same cohort of substantive doctrinal topics like Contracts, Criminal Law, Torts, Civil Procedure, and of course most relevant to the inquiry in this book, Property. The cases in this book cover a broad representation of property law topics from both historic and contemporary cases. Some of the topics include the acquisition of property by capture, Native American property rights, intellectual property (patents, trademarks, and publicity rights), eminent domain, adverse possession, concurrent ownership (tenancy in common, joint tenancy, and tenancy by the entirety), zoning, rights of licensees, and landlord–tenant issues. Casebooks, which provide the foundational materials for learning all of these subjects, may differ slightly in their content depending on the authors, but most contain the same (or very similar) cases written from a rather monolithic (non-feminist) perspective. This homogeneity exists largely

37

that twenty years later as a law professor I still actively create opportunities in my teaching to address the pervasiveness and impact of domestic violence both in first-year classes and in upper-division seminars. Id. at I-1.

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because those judges who have traditionally written the opinions do not reflect the same diversity of our larger communities, as illustrated earlier in this chapter. Given this wide range of subjects covered in the rewritten judgments and commentaries, there are many places where the rewritten feminist legal opinions can logically be incorporated throughout the spectrum of the law school curriculum and beyond. Professors who have contributed to other books in the Feminist Judgments Series have found innovative ways to teach these opinions in courses from the first year to the upper-division of law school and throughout courses in both undergraduate and graduate programs.38 Although perhaps the most obvious site for inclusion is in specialized gender-focused courses, it would be shortsighted to relegate them only to this realm. In law schools, the 1L Property courses are a natural place to incorporate the feminist judgments. Professors might ask students to read a rewritten opinion and commentary to accompany the original case appearing in the textbook. Teaching opportunities abound and include opportunity to explore different accounting of facts in the case, as well as how legal reasoning informed by feminist ideas can lead to divergent outcomes (or sometimes the same outcome but reached through different means). To this latter point about legal reasoning, take for example the classic property case, Pierson v. Post,39 which involves ownership of a fox. A dissenting feminist opinion was written by Angela Fernandez. This case may not jump out immediately as one worthy of feminist revision; after all, one might ask what is feminist about a fox. However, as Fernandez’s rewritten dissenting opinion so compellingly illuminates, the case as originally decided encourages an acceptance of legal principles at face value and misses an important opportunity to deeply explore some of the reasons underlying such principles. Described by Jill Fraley in her commentary accompanying the rewritten opinion, “Pierson v. Post stands as more than a perennial favorite of law professors and students.”40 Its popularity and place as one of the first cases read by first-year law students means that it shapes developing legal minds. The feminist critique of the case as originally written rests on its failure to question why possession matters in the first place. Instead, as Fraley 38

39 40

For a fascinating collection of perspectives from thirteen faculty who have taught with feminist judgments in both undergraduate and graduate contexts, and across continents, see Bridget J. Crawford et. al., Teaching with Feminist Judgments: A Global Conversation, 38 Law & Ineq. 1, 2 (2020). Pierson v. Post, 3 Cai. R. 175 (N.Y. Sup. Ct. 1805). Jill M. Fraley, Chapter 6, Commentary.

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emphasizes, “[t]he majority opinion is an invitation to accept, rather than to question, fundamental principles underlying our system.”41 As another example of a “missed opportunity” in a traditional property case, consider the rewritten opinion in Moore v. City of East Cleveland.42 The case is largely considered a legal victory because it recognizes and protects the right to have families (even those beyond the nuclear family) live together. But, as the commentary on the rewritten feminist opinion drafted by Berta Esperanza Hernández-Truyol makes clear, the opinion stopped short of extending this right to other non-traditional families. “[T]he Court missed the incalculably significant opportunity to bring race, sex, age, and economic considerations to the forefront in the analysis of the case with the purpose of achieving the deployment of justice for Mrs. Moore.”43 The absence of these issues in the original opinion constrains their discussion in the law school classroom and underscores the importance of the inclusion of the chapter Moore as required additional reading. Sometimes the “missed opportunity” comes in the form of an opinion that is routinely excluded from property casebooks, as is the case with Botiller v. Dominguez.44 Botiller appears as a rewritten feminist opinion by Guadalupe T. Luna and presents an excellent teaching opportunity about the Mexican– American War of 1846 and contrasting women’s right to freely own property in Mexico as opposed to the United States at the time. In his commentary on this opinion, Marc-Tizoc González writes about the potential impact a feminist justice would have had on the outcome of this case in 1889 and speculates that “[t]he demographics and political economy of California, and other states in the Southwest, would likely be substantially different today.”45 This notion is reflective of the importance of diversity as discussed earlier in this chapter. Inclusion of select feminist opinions in first-year Property courses is one strategy, but alternatively, a first-year Property professor might make the entire Feminist Judgments: Rewritten Property Opinions book optional reading for the class and hold outside book group meetings to discuss some of the cases. Or, a professor might even assign the book as required reading before the start of the course. In the upper division, an entire class could be developed around one or more of the books in the Feminist Judgments Series or, like in the firstyear courses, select cases could be used strategically in lawyering courses and

41 42 43 44 45

Id. Moore v. City of East Cleveland, 431 U.S. 494 (1977). Berta Esperanza Hernández-Truyol, Chapter 15, Commentary. Botiller v. Dominguez, 130 U.S. 238 (1889). Marc-Tizoc González, Chapter 5, Commentary.

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seminars like Intellectual Property Law, Law and Gender, Land Use, Landlord–Tenant Law, Land Use and Zoning, Real Estate Law, and Remedies. There is also the potential to use the feminist judgments in experiential courses and legal clinics; participation in these kinds of courses is now required at many law schools and/or by state bars. It is not unusual for schools to support clinics that address issues like landlord–tenant, housing, and intellectual property, all of which are ripe for inclusion of these rewritten opinions. The rewritten judgments appearing throughout this book offer new perspectives that can be incredibly beneficial and informative to students on their journey to become lawyers and as they join the legal profession. The wide range of cases presented in the pages that follow provide numerous opportunities for utilization in a variety of contexts. The goal of incorporating different perspectives into law school courses for the benefit of student learning is not unique. “One way to promote cross-cultural awareness is for professors to strategically include opportunities for students to analyze and discuss legal issues from diverse perspectives.”46 This strategy will go unrealized absent projects like Feminist Judgments: Rewritten Property Opinions. By making available fresh opinions that are still situated in a similar historical context as the original cases but written from different perspectives entirely, students are exposed to new ways of analyzing problems and conceptualizing outcomes. Sharing the rewritten opinions in this book with law students represents one way that feminist perspectives can ultimately be infused into the legal profession.

46

Supra, note 32, at 212.

part ii

Allocation of Rights

4 Commentary on Johnson v. M’Intosh stacy l. leeds

background Johnson v. M’Intosh1 is the first case in Chief Justice John Marshall’s trilogy of Indian law opinions.2 Two centuries later, these decisions remain the foundation of the legal, political, and sovereign status of Indian tribes within the United States. While concluding that both the property rights and sovereign powers of Indigenous nations are inferior to the property rights and sovereign powers of Christian European nations, Johnson specifically held that “Indians”3 lack the right to fully alienate their lands to anyone other than the United States government.4 The facts leading up to the case were several hundred years in the making, starting with the arrival of Europeans in what would eventually become the continental United States. When Europeans arrived, they did not find an unoccupied land available for the taking. Instead, Europeans “discovered” Indigenous persons in actual possession of land and Indigenous nations exercising dominion over territories. Although European governments and individuals differed in their approach to interacting with Indigenous peoples, the colonizing countries assented to a set of norms to regulate their own behavior and to regulate relationships among each other, known as the “Law of Nations,” or the international law

1 2 3

4

Johnson v. M’Intosh, 21 U.S. 543 (1823). Id.; Cherokee Nation v. Georgia, 30 U.S. 1 (1831); Worcester v. Georgia, 31 U.S. 515 (1832). The Court used the term “Indians” generically to include both Indigenous nations and Indigenous individuals, including Illinois and Piankeshaw nations at issue. The Johnson holding was then applicable to all tribes, including those to which the United States had yet to contact by 1823 when Johnson was decided. Johnson, 21 U.S. at 574–576.

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of Western Europe.5 Once a European power gained control of a geographic area, or otherwise exercised a sphere of influence recognized by European peers, the colonizing country would be acknowledged as the “discovering” nation. This system helped avoid the additional financial and human capital expenses associated with protracted and repetitive wars between European nations over the same geographical areas. This “Law of Nations” also included a shared understanding that the land rights of Indigenous populations could not simply be disregarded and ignored. European countries did not automatically acquire absolute title or full ownership of all lands within the claimed boundaries. In most instances, Indigenous rights to continue occupying lands were recognized. To be sure, bad actors certainly murdered many Indigenous people for their lands, but this was not part of protocols that “civilized” European governments legally prescribed. Great Britain approached Indian affairs with centralized powers reserved to the Crown, leaving no room for local colonies or private British subjects to engage in military endeavors or enter into land transactions with Indigenous parties, absent British agency. If land were to be acquired directly from tribes, it needed the active participation or the permission of British authorities. In fact, the colonies’ desire for increased local control and autonomy to negotiate and directly acquire lands from Indians was one of the many tensions that led to the American Revolution. In 1763, the British Proclamation was issued as a clear message to the colonies that the Crown intended to maintain control over all Indian land transactions.6 The law prohibited British subjects from acquiring lands directly from Indigenous grantors. Purely private land transactions, like the transactions at issue in Johnson, would have violated British law, expressly so, from 1763 forward. As a practical reality, Indigenous nations and individuals were frequently approached by individual colonists, land companies, local colonial officials, and by official British agents, with offers to purchase Indigenous lands. Sometimes these transactions were memorialized in deeds, like any other private land transaction. At other times, and as early as the 1690s,7 these land

5

6

7

Most notably, writings of Franciscus de Victoria (1532). See Franciscus de Victoria, De Indis et de Iure Belli Relefctiones (Simon’s ed. 1696), reprinted in The Classics of International Law (The Carnegie Institution of Washington (1917)). The British Proclamation of 1763 asserted control in the Crown as the sole source of a right to acquire land cessions from tribes. This served to clarify that individual colonies, and individual British subjects, were not to be acquiring land from tribes or tribal individuals. For example, the 1713 Treaty of Portsmouth ending battles between the Abenakis, Massachusetts Bay Colony, renewing a prior treaty entered into in 1693 and New Hampshire,

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transactions were memorialized in treaties between various Indigenous nations and either Great Britain or colonial governments. Whether by deed, treaty, or some other fashion, neither Great Britain nor the colonies believed that Great Britain already had clear legal title to Indigenous lands, without the consent and participation of original owners, Indigenous peoples. In these transactions, Indigenous parties were recognized as grantors, conveying property to European parties as grantees, in exchange for something of value. Thousands of conveyances took place before and after the American Revolution.8 After the American Revolution, the United States became the successor in interest to any British property and sovereignty rights and responsibilities. If the British had acquired property rights or territories directly from Indigenous parties, those rights would purportedly pass on to the new United States. Conversely, if the British had failed to acquire land ownership or exercise dominion over certain lands, the new United States could not be a successor in interest to rights never vested.9 Like Great Britain before it, the new United States wanted to consolidate and assert centralized power over Indian affairs, to the exclusion of states, subordinate local governments, and individual US citizens. One of the first legislative enactments of Congress under the new Constitution was the Trade and Intercourse Act, prohibiting states and private US citizens from engaging in land transactions with tribes.10 The US Constitution places the sole authority for engaging in commerce with the Indian tribes in Congress.11 Although future private land deals with tribes would violate federal law, Congress lacked the authority to retroactively invalidate prior private conveyances. A steady stream of land speculators approached Congress seeking legislative validation of prior land purchases from Indians. When Congress

8

9

10 11

was the Great Treaty of 1722 between the Five Nations, the Mahicans and the Colonies of New York, Virginia, and Pennsylvania. Deed in Trust from Three of the Five Nations of Indians to the King, 1726. At the conclusion of the American Revolution, the 1783 Treaty of Paris with Great Britain left Indigenous peoples out of the equation, even though some tribes had been significant actors during the war. The young United States, however, could not treat all Indians as conquered nations, given the military and financial fragility of the new republic. Rather than disregarding Indian property rights altogether, in the years that followed the American Revolution, the United States entered into multiple treaties with Indian tribes. A common feature of these treaties provided that the United States secured from the tribes various land cessions while re-recognizing the tribes’ reservation of property rights to certain homelands. Trade and Intercourse Act of July 22, 1790, 1 Cong. ch. 32, 1 Stat. 137. U.S. Const. art. I, § 8, cl. 3.

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would neither endorse nor invalidate prior land deals, remedies were sought in federal court, culminating in Johnson. When Johnson was decided in 1823, countless private and governmental land transactions relied on chains of title originating from Indigenous grantors. At the same time, westward expansion by settlers intensified the desire to free up more Indian land. Johnson not only presented an opportunity to resolve any competing title claims for the same tract of land, whether real or imagined, but also the timing of the case was ripe for the creation of a roadmap for how future Indian lands could be appropriated to clear the way for westward expansion.

the johnson v. m’intosh dispute Johnson purportedly involved a title dispute involving thousands of acres of land in present-day Illinois and Indiana.12 The issue before the Court was whether the “Courts of the United States” can recognize a transfer of legal title from an Indigenous nation to a private non-Indian purchaser.13 The Indigenous nations at issue, “the Illinois and the Piankeshaw nations,”14 were not parties to the lawsuit, did not participate in the development of a factual record, and were not consulted for choice of law considerations. The record stipulates that the chiefs who executed the deeds acted in their official capacity as authorized by the tribes “so far as it could be given by their own people”15 and that the tribes were “in rightful possession of the land they sold.”16 All litigants in Johnson were White citizens of the United States, and most had been British subjects. Plaintiffs were heirs of Thomas Johnson, who purchased the land directly from the tribes in a series of transactions in 1773 and 1775.17 All land conveyances from the tribes to Johnson took place after the British Proclamation of 1763 and prior to the Declaration of Independence.18 12

13 14 15 16 17 18

Eric Kades, History and Interpretation of the Great Case of Johnson v. M’Intosh, 19 Law & Hist. Rev. 67, 100–102 (2001)(mapping the precise parcels of land at issue and finding no conflict of title); see generally Lindsay G. Robertson, Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands (2005). Johnson, 21 U.S. at 572. Id. Id. Id. Id. at 571. Declaration of Independence, 1 Stat. 1, para. 9 (July 4, 1776) (listing “the Conditions of new Appropriations of Lands” as one of the motives for the Independence).

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Twenty years after the last purchase by Johnson from the tribes, the Piankeshaw nation ceded its property interests to the United States federal government, who later granted the parcels at issue to Defendant William M’Intosh. The competing chains of title follow, in sequential order: Piankeshaw nation ➔ Johnson (1775 Deed) ➔ Johnson Heirs/Plaintiffs (1819) Piankeshaw nation ➔ United States (1795 Treaty) ➔ M’Intosh/Defendant (1818) Plaintiffs’ case would rest on general English property law principles such as (1) the “first in time, first in right” rule, (2) notice, and (3) delivery. Plaintiffs’ title and ownership in land ran directly from the tribes, who were the rightful owners and in actual possession of the lands at the time of the conveyance of land. Plaintiffs’ title was therefore superior, relative to Defendant’s title. For Defendant to prevail, the Court would need to find a deficiency in the tribes’ conveyance to Johnson. One possible argument to produce a narrow holding in the case was that the British Proclamation of 1763 was valid law at the time of the conveyance, thereby prohibiting Johnson, as a British subject, from accepting a grant of title from the Piankeshaw. The Johnson Court, however, was primed for a broader holding that would define the nature of Indigenous land rights as a matter of United States law.

the decision Writing for a unanimous Court in Johnson, Chief Justice Marshall’s opinion held that all Indigenous titles are “impaired”19 because the federal government is the only party that can acquire “exclusive” title from any Indigenous nation or persons. Further, the rights of Indigenous nations to “complete sovereignty, as independent nations, were necessarily diminished” because “discovery” afforded a superior stature to European sovereign discoverers.20 At the outset, Johnson adopts as controlling authority the Law of Nations as “universally” accepted custom of what a Christian European discovering nation “gets” by virtue of being the discoverer.21 Chief Justice Marshall notes that under the Law of Nations, Indigenous land rights were “in no instance,

19 20 21

Johnson, 21 U.S. at 574. Id. Id. at 576.

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entirely disregarded”22 by the discoverer, but that the individual European nations would determine how and to what extent Indigenous land rights would be enforced internally, as a matter of domestic law. In Chief Justice Marshall’s analysis, the United States, as a newly independent country, became the successor in interest to Great Britain and thereby acquired whatever property rights and sovereign dominion rights previously afforded to a “discovering” nation. The discoverer’s rights included the right, exclusive to other European sovereigns, for the United States to acquire lands from the Indians. The United States would also have the power to make laws to determine what role, if any, United States citizens might play in Indian affairs. As previously described, Great Britain regulated the conduct of British subjects by issuing the Proclamation of 1763. As soon as possible after the American Revolution, Congress followed the same path in the Trade and Intercourse Acts, also prohibiting United States citizens from making direct land purchases from Indians. If either law were applicable as binding law in the case, Defendant prevails. Rather than answering that question, Chief Justice Marshall chose a different path, spending the rest of the opinion answering the question “whether the American State rejected or adopted” the European version of the doctrine of discovery. Here, Chief Justice Marshall cites no legal authority for the bold assertion that the United States “had a clear title to all the lands” within its recognized boundaries that “has never been doubted.”23 Chief Justice Marshall further states that the underlying title that the United States holds to Indian lands is “subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right, was vested”24 in the federal government. The Court defines “Indian title” as a limited estate of Indigenous right of occupancy. The tribes retain this limited property right, until such right is purchased by the United States, or until acquired by conquest. “The title by conquest is acquired and maintained by force.”25 The Court describes the contours of “Indian title” as a diminished estate in land more akin to a leasehold or temporary possessory interest than a defeasible fee. “Indian title” is a natural outgrowth of the prior doctrine of discovery, reflecting the “actual state of things.” The Court concludes that Indian title is inferior to United States title and it is “not for the Courts of this country to question the validity of this title.”26

22 23 24 25 26

Id. at 574. Id. at 585. Id. Id. at 589. Id.

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A contributing justification for this result was the perceived “character and habits” of the Indigenous people themselves, as well as the anticipated Indigenous capacity for future efficient land use. “But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness.”27 Writing Johnson for a unanimous Court, Chief Justice Marshall knew full well that it was an “extravagant pretension” to convert “the discovery of an inhabited country into conquest,”28 and yet he concluded that “[c]onquest gives a title [to the United States] which the Courts of the conqueror cannot deny.”29

the legacy of johnson Johnson paved the way for United States’ appropriation of remaining Indian lands. The Johnson legacy is of daily consequence to modern Indigenous nations. Prior to Johnson, Indigenous nations had a range of willing buyers should they decide to sell their lands. Those buyers thought they were purchasing much more than a right of occupancy that could be extinguished at the will of the United States. As the facts of the case suggests, there were willing buyers that would take their chances on getting their land titles validated as a matter of domestic law, be it theoretically in violation of British or United States law at the time of purchase. After Johnson, there were two options for Indigenous nations: (1) sell their land to the United States, in a single-buyer market with the discounted value afforded a now inferior title, or (2) refuse to sell and suffer the consequences of “conquest” when the military winds shifted in that direction. Either way, the United States already vested in themselves the underlying legal title to Indigenous lands. Seven years after Johnson, the Indian Removal Act30 was passed, not as a self-executing property transaction, but as a policy statement that the federal

27 28

29 30

Id. at 590. Id. at 591 (Chief Justice Marshall noting that, however extravagant the pretension, “if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of . . . the community originates in it, it becomes the law of the land, and cannot be questioned.” Id. at 588. Indian Removal Act of May 28, 1830, 21 Cong. ch. 148, 4 Stat. 411.

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government would seek to acquire the remaining Indian title from all tribes east of the Mississippi River. The Indigenous nations of the Southeastern United States were, one by one, removed from their homelands by “consenting” to cede their remaining “Indian title” to the United States in removal treaties. This was the roadmap that followed Johnson. To this day, it is standard for the United States to hold the underlying legal title to the lands of Indigenous nations “in trust” for the beneficiary interest of the Indigenous nation. On one hand, Chief Justice Marshall’s opinion absolutely relegates Indigenous land rights to the bottom of a hierarchy rooted in racial and religious superiority. But it is possible that he simultaneously protected Indigenous property rights from an outright assault from additional appropriation by ensuring that Indian title served as a barrier from settler land grants and states that would wholly disregard Indigenous property and sovereignty rights. With this Indian title, states and local governments could not acquire Indian lands by eminent domain or other forms of alienation. The federal government, albeit with mixed results and very dark days for Indigenous nations, imposed a protective trust over Indian lands, which led the Marshall Court to protect Cherokee lands and sovereignty from state incursions.31

the rewritten opinion of chief justice alexandra flynn In the Johnson feminist judgment, a reimagined unanimous opinion, Professor Alexandra Flynn, writing as Chief Justice Flynn, upholds as valid the original conveyance made from the tribe to Johnson by centering on the existence of multiple legal systems, including the sources of law that originate with Indigenous Nations, such as the Piankeshaw Indian tribes, who were the grantors of the 1773 and 1775 land conveyances from which Plaintiffs’ chain of title originates. In contrast to the original Johnson decision, which presents only a European perspective, Flynn’s feminist rewritten opinion rejects Chief Justice Marshall’s paternalistic and Eurocentric view of the Indigenous peoples and, using a feminist lens, focuses on, and equalizes, the Indigenous perspective. Chief Justice Marshall’s conclusion in the original opinion required the invisibility of Indigenous worldviews, the invisibility of Indigenous legal 31

Id.

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systems, and a generic and imagined warlike “Indian” who knew nothing of agriculture, science, business, or trade. The feminist judgment presses us to consider Indigenous diversity, Indigenous thought, Indigenous legal systems, and notes that these systems might differ significantly from western European thought, particularly in relation to who might be an “appropriate” owner of property. In 1823, in the non-Indigenous world, property owners had to be White, male, and Christian, or else they were not “real” property owners. That was a single worldview, but not the only worldview. During the 1700s, when a group of Cherokee leaders met with European officials for treaty negotiations, Cherokee Chief Attakullakulla inquired, “where are the women?” – noting with great curiosity and confusion the absence of European women at the table. How, he might have inquired, could a society purport to make binding decisions, including the transfer or acquisition of rights, in the absence of leadership and participation of both men and women? Just as Europeans might have looked unfavorably on Indigenous practices and beliefs, so too were European practices and beliefs baffling to an Indigenous observer. Indigenous nations are, and always have been, diverse in language, culture, and lifeways, but many were matrilineal and formally recognized women as joint or exclusive property owners.32 When Indigenous rights and Indigenous property law systems were ignored or overruled, so were the protections afforded women’s rights as a matter of tribal law. The feminist judgment, which rejects a singular paternalistic worldview, forges a new original path where political, religious, and racial superiority gives way to a recognition of Indigenous property rights, as defined by Indigenous law. Recognizing the existence of Piankeshaw property laws and sovereignty, and noting that different sovereigns are free to differ in the derivation and application of their respective laws, the rewritten opinion reaches the opposite conclusion from Chief Justice Marshall’s opinion – the Defendant not necessarily having superior title simply because the Defendant’s property interest derives from the United States. Indigenous nations’ ownership includes both territorial dominion and the underlying property rights to the soil, enforceable regardless of any allegiance, or absence thereof, to any European state. The Indigenous Nations remain

32

See Allison M. Dussias, Squaw Drudges, Farm Wives, and Dann Sisters’ Last Stand: American Indian Woman’s Resistance to Domestication and the Denial of their Property Rights, 77 N.C. L. Rev. 637, 640 (1999).

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the sole and absolute owner of lands until the conveyances made by them, by sale, with their full consent. The rewritten opinion notes that Plaintiffs acquired land from duly authorized tribal representatives, unless the tribe said otherwise. The parties made a contract and executed deeds on behalf of the whole tribe, including men and women. While the Law of Nations remained controlling law as to the European nations, no binding authority barred the sale of lands between the Piankeshaw and a party other than the United States at the time of the transaction. Flynn also finds that the Royal Proclamation did not apply to the Piankeshaw or any Indians with governing power in respect of their lands who did not enter in treaty with the British, as they did not adopt the document as binding on their territory. Most importantly, the feminist judgment rejects the notion that the United States acquired “clear title to all the lands within the boundary lines” described in the treaty with Great Britain or that the United States could create in itself the exclusive power to extinguish Indigenous rights absent Indigenous consent.33 In the rewritten opinion, Flynn rejects colonial patriarchal structures and, more importantly, refuses the unilateral imposition of colonial common law and norms on Indigenous nations. When colonial law prevails, it necessarily serves to override and erase the laws of Indigenous nations, including nations that had well-developed matrilineal power structures that included vested property rights and recognized ownership exclusively in women as heads of households. While many Indigenous nations adopted matriarchal property regimes, other Indigenous nations recognized communal title and collective use rights that included both men and women as equals. If the rewritten opinion had been the law, the United States would have obtained title to the lands the Indigenous nations knowingly and willingly ceded to the United States by virtue of the treaty conveyance. At the same time, prior conveyances from the Indigenous nations to grantees of their choice would have been upheld in the same manner as prior conveyances by other nations. The opinion would have reaffirmed inherent tribal rights while simultaneously acknowledging that the United States could lawfully acquire title from Indigenous nations in a way that is both consistent with the laws of the Indigenous nations and the United States.

33

Matthew L.M. Fletcher, The Iron Cold of the Marshall Trilogy, 82 N.D. L. Rev. 627, 662 (2006).

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JOHNSON V. M’INTOSH, 21 U.S. 543 (1823)

chief justice alexandra flynn delivered the opinion of the court A title to lands, under grants to private individuals, made by Indian tribes or Nations northwest of the river Ohio, in 1773 and 1775. The decision of the United States District Court is deemed to be in error.

ERROR to the District Court of Illinois. This was an action of ejectment for lands in the State and District of Illinois, claimed by the plaintiffs under a purchase and conveyance from the Piankeshaw Indians, and by the defendant, under a grant from the United States. The case stated set out the following facts: That on the 23rd of May, 1609, James I, King of England, by his letters patent of that date, under the great seal of England, did erect, form, and establish Robert, Earl of Salisbury, and others, his associates, in the letters patent named, and their successors, into a body corporate and politic, by the name and style of “The Treasurer and Company of Adventurers and Planters of the City of London, for the first Colony in Virginia,” with perpetual succession and power to make, have, and use a common seal; and did give, grant, and confirm unto this company, and their successors, under certain reservations and limitations in the letters patent expressed, “All the lands, countries, and territories, situate, lying, and being in that part of North America called Virginia, from the point of land called Cape or Point Comfort, all along the seacoast to the northward two hundred miles; and from the said Cape or Point Comfort, all along the seacoast to the southward, two hundred miles; and all that space and circuit of land lying from the seacoast of the precinct aforesaid, up into the land throughout from the sea, west and northwest; and also all the islands lying within one hundred miles, along the coast of both seas of the precinct aforesaid; with all the soil, grounds, rights, privileges, and appurtenances to these territories belonging, and in the letters patent particularly enumerated”; and did grant to this corporation, and their successors various powers of government, in the letters patent particularly expressed. 2nd. That at the time of granting these letters patent, and of the discovery of the continent of North America by the Europeans, and during the

1st.

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whole intermediate time, the whole of the territory, in the letters patent described, was held, occupied and possessed in full sovereignty, by various independent tribes or Nations of Indians, who were the sovereigns of their respective portions of the territory, and the absolute owners and proprietors of the soil and who neither acknowledged nor owed any allegiance or obedience to any European sovereign or state whatever; and that in making settlements within this territory, and in all the other parts of North America, where settlements were made, under the authority of the English government, or by its subjects, the right of soil was previously obtained by purchase or otherwise having a rightful possession to the subject territory, from the particular Indian tribe or Nation by which the soil was claimed and held; or the consent of such tribe or Nation was secured. 3rd. That in the year 1624, this corporation was dissolved in due course of law, and all its powers, together with its rights of soil and jurisdiction under the letters patent in question, were vested in the crown of England; where upon the colony became known by England as a royal government, with the same territorial limits and extent which had been established by the letters patent, and so continued until it became a free and independent State; except so far as its limits and extent were altered and curtailed by the treaty of February 10th, 1763, between Great Britain and France, and by the letters patent granted by the King of England, for establishing the colonies of Carolina, Maryland, and Pennsylvania. 4th. That the government of Virginia, at and before the commencement of this war, and at all times after it became a royal government, claimed and exercised jurisdiction, with the knowledge and assent of the government of Great Britain, in and over the country northwest of the river Ohio, and east of the Mississippi, as being included within the bounds and limits described and established for that colony, by the letters patent of May 23rd 1609; and that in the year 1749, a grant of six hundred thousand acres of land, within the country northwest of the Ohio, and as part of Virginia, was made by the government of Great Britain to some of its subjects, by the name and style of the Ohio Company. 5th. That at and before the commencement of the War in 1756, and during its whole continuance, and at the time of the treaty of February 10th, 1763, the Indian tribes or Nations, inhabiting the country north and northwest of the Ohio, and east of the

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Mississippi, as far east as the river falling into the Ohio called the Great Miami, were called and known by the name of the Western Confederacy of Indians, and were the allies of France in the war, but not her subjects, never having been in any manner conquered by her, and held the country in absolute sovereignty, as independent Nations, both as to the right of jurisdiction and sovereignty, and the right of soil, except a few military posts, and a small territory around each, which they had ceded to France, and she held them, and among which were the aforesaid posts of Kaskaskias and Vincennes; and that these Indians, after the treaty, became the allies of Great Britain, and were free and independent, owing no allegiance to any foreign power whatever, and holding their lands in absolute property; the territories of the respective tribes being separated from each other, and distinguished by certain natural marks and boundaries to the Indians well known; and each tribe claiming and exercising separate and absolute ownership, in and over its own territory, both as to the right of sovereignty and jurisdiction, and the right of soil. 6th. That among the tribes of Indians, thus holding and inhabiting the territory north and northwest of the Ohio, east of the Mississippi, and west of the Great Miami, within the limits of Virginia, were certain independent tribes or Nations, called the Illinois or Kaskaskias, and the Piankeshaw or Wabash Indians; the first of which consisted of three several tribes united into one, and called the Kaskaskias, the Pewarias, and the Cahoquias; that the Illinois owned, held, and inhabited, as their absolute and separate property, a large tract of country within the last mentioned limits, and situated on the Mississippi, Illinois, and Kaskaskias rivers, and on the Ohio below the mouth of the Wabash; and the Piankeshaws, another large tract of country within the same limits, and as their absolute and separate property, on the Wabash and Ohio rivers; and that these Indians remained in the sole and absolute ownership and possession of the country in question, until the sales made by them, in the manner herein after set forth. 7th. That on the 7th of October, 1763, the King of Great Britain made and published a Proclamation, for the better regulation of the countries ceded to Great Britain by that Treaty, which Proclamation is referred to in this judgment, and made part of the case. 8th. That from time immemorial, and always up to the present time, all the Indian tribes, or Nations of North America, and especially the Illinois and Piankeshaws, and other tribes holding, possessing, and

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inhabiting the said countries north and northeast of the Ohio, east of the Mississippi, and west of the Great Miami, held their respective lands and territories each in common, the individuals of each tribe or Nation holding the lands and territories of such tribe in common with each other, and there being among them no separate property in the soil under their own laws; and that their sole method of selling, granting, and conveying their lands, whether to governments or individuals, always has been, from time immemorial, and now is, for certain chiefs of the tribe selling, to represent the whole tribe in every part of the transaction, but with their assent; to make the contract, and execute the deed, on behalf of the whole tribe, including its women; to receive for it the consideration, whether in money or commodities, or both; and, finally, to divide such consideration among the individuals of the tribe; and that the authority of the chiefs, so acting for the whole tribe, is attested by the presence and assent of the individuals composing the tribe, and by the receipt by the individuals composing the tribe, of their respective shares of the price, and in no other manner. 9th. That on the 5th of July, 1773, certain chiefs of the Illinois Indians, then jointly representing, acting for, and being duly authorized by that tribe, in the manner explained above, did, by their deed poll, duly executed and delivered, and bearing date on that day, at the post of Kaskaskias, then being a British military post, and at a public council there held by them, for and on behalf of the said Illinois Nation of Indians, with William Murray, of the Illinois country, merchant, acting for himself and for several men; and for a good and valuable consideration in the said deed stated, grant, bargain, sell, alien, lease, enfeoff, and confirm, to those listed on the deed, their heirs and assigns forever, in severalty, or to George the Third, then King of Great Britain and Ireland, his heirs and successors, for the use, benefit, and behoof of the grantees, their heirs and assigns, in severalty, by whichever of those tenures they might most legally hold, all those two several tracts or parcels of land, situated, lying, and being within the limits of Virginia, on the east of the Mississippi, northwest of the Ohio, and west of the Great Miami, and thus butted and bounded, to have the two tracts in land in perpetuity, so authorized by deed in advance of a notary public, and for consideration of 24,000 dollars, and so made in public. 10th. The Piankeshaw Indians, who are not a party to this action, were friendly with the United States in the revolution, and were not a

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11th.

12th.

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party in the Northwest Indian War, and have lived alongside the French and English before such events. That on the 18th of October, 1775, Tabac, and certain other Indians, all being chiefs of the Piankeshaws, and jointly representing, acting for, and duly authorized by that Nation, in the manner stated above, did, by their deed poll, duly executed, and bearing date on the day last mentioned, at the post of Vincennes, otherwise called post St. Vincent, then being a British military post, and at a public council there held by them, for and on behalf of the Piankeshaw Indians, with many honorable men, and for good and valuable considerations, in the deed poll mentioned and enumerated, grant, bargain, sell, alien, enfeoff, release, ratify, and confirm to the said Louis Viviat, acting for himself and for Thomas Johnson, Jr., and the other persons so represented by him, their heirs and assigns, equally to be divided, or to George III then King of Great Britain and Ireland, his heirs and successors, for the use, benefit, and behoof of all the above mentioned grantees, their heirs and assigns, in severalty, by which ever of those tenures they might most legally hold, all those two several tracts of land; with all the rights, liberties, privileges, hereditaments, and appurtenances, to the said tract belonging, duly executed under the hands and seals of the grantors, and duly recorded at Kaskaskias, on the 5th of December, 1775, in the office of a notary public, duly appointed and authorized, and for consideration of 31,000 dollars, paid and delivered at the time of the execution of the deed to the Piankeshaw Indians, who freely accepted it, and divided it among all members of the tribe, and so made in public. And that neither William Murray, nor any other of the grantees under the deed of 1773, nor Louis Viviat, nor any other of the grantees under the deed of 1775, nor any person for them, or any of them, ever obtained, or had the actual possession, under and by virtue of those deeds, or either of them, of any part of the lands in them, or either of them, described and purporting to be granted; but were prevented by the war of the American Revolution, which soon after commenced, and by the disputes and troubles which preceded it, from obtaining such possession; and that since the termination of the war, and before it, they have repeatedly, and at various times, from the year 1781, till the year 1816, petitioned the Congress of the United States to acknowledge and confirm their title to those lands, under the purchases and deeds in question, but without success.

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As the arguments are so fully stated in the opinion of the Court, it is deemed unnecessary to give anything more than the following summary. The plaintiffs in this cause claim the land, in their declaration mentioned, under two grants, purporting to be made, the first in 1773, and the last in 1775, by the chiefs of certain Indian tribes, constituting the Illinois and the Piankeshaw Nations; and the question is, whether this title can be recognized in the Courts of the United States? Judgment being given for the defendant on the case stated in the District of Illinois, the plaintiffs brought this writ of error to the Supreme Court. Chief Justice Alexandra Flynn delivered the unanimous opinion of the Court. The facts, as stated in the case agreed, show the authority of the chiefs who executed this conveyance, so far as it could be given by their own people; and likewise show that the particular tribes for whom these chiefs acted were in rightful possession of the land they sold. As the right of society, to prescribe those rules by which property may be acquired and preserved, is not and cannot be drawn into question; as the title to lands, especially, is and must be admitted to depend entirely on the law of the Nation in which they lie; it will be necessary, in pursuing this inquiry, to examine, not singly those principles of abstract justice, which the Creator of all things has impressed on the mind of his creature man, and which are admitted to regulate, in a great degree, the rights of civilized Nations, whose perfect independence is acknowledged; but those principles also which our own government has adopted in the particular case, and given us as the rule for our decision. The case is to a great extent very simple: no particular laws to which this Court is bound were in place barring a sale of lands between either the Illinois and the Piankeshaw and a party other than the United States at the time of the transactions in 1773 and 1775, respectively. A colonial Virginia statute enacted in 1662 banned such purchases but this law had lapsed or been repealed, and in any case was not in force at the time of the transactions. Its reenactment in 1779, after the purchases in question, could not divest the purchasers of previously vested rights. A denial of valid title would be inconsistent with Fletcher v. Peck, 10 U.S. 87 (1810), a decision of this noble Court. We decided that where a grant is a contract executed, the obligation of which still continues, a law annulling conveyances between individuals, and declaring that the grantors should stand seised of their former estates, notwithstanding those grants, is repugnant to the constitution of this great land. It seems to me that, here, too, a contract was executed in the first order and such contract had no treaties, laws, or

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consistent customs denying its validity. It is contrary in this present case to remove the purchaser’s estate and substitute an annulment that would subsequently bar its validity. As such, a formal application of law and facts leads to a clear conclusion of ownership by Mister Johnson and his heirs. But such a case invites reflection of the place of Indians within this sacred country on the cusp of its creation, a rare opportunity for this esteemed Court, and one which previous judgments have not engaged with full contemplation. On the discovery of this immense continent, the great Nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. As they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other governments, which title might be consummated by possession. It was a right with which no other Nation could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented. As argued by the defendants, while the different Nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. In this interpretation of the rights of the discoverers, any grants have been understood by all to convey a title to the grantees, subject only to the Indian right of title and occupancy. The history of America, from its discovery to the present day, proves, we think, a recognition of this interpretation. There does not seem to have been much agreement among the European Nations, at the time, over what was necessary to acquire territorial sovereignty. Discovery grants an inchoate title to the discovering Sovereign; it means that European sovereigns could not interfere with their own Laws once a country has already laid claim to Lands. It prevents conflict between two sovereigns.

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Such relations were not always peaceful amongst the European Nations. The States of Holland also made acquisitions in America and sustained their right on the common principle adopted by all Europe. They allege, as we are told by Smith, in his History of New York,34 that Henry Hudson, who sailed, as they say, under the orders of their East India Company, discovered the country from the Delaware to the Hudson, up which he sailed to the 43rd degree of north latitude; and this country they claimed under the title acquired by this voyage. Their first object was commercial, as appears by a grant made to a company of merchants in 1614; but in 1621, the States General made, as we are told by Mr. Smith, a grant of the country to the West India Company, by the name of New Netherlands. But the claim of the Dutch was always contested by the English; not because they questioned the title given by discovery but because they insisted on being themselves the rightful claimants under that title. Their pretensions were finally decided by the sword. In cases where the discoverer discovered new lands, where such lands were vacant and not possessed by another, the discoverer claimed possession. Those relations which were to exist between the discoverer and the natives were to be regulated by themselves; once again, European powers reacted differently to the possession of the new lands by Indians. Spain did not rest her title solely on the grant of the Pope. Her discussions respecting boundary, with France, with Great Britain, and with the United States, all show that she placed it on the rights given by discovery. Portugal sustained her claim to the Brazils by the same title. France, also, founded her title to the vast territories she claimed in America on discovery, conciliatory to the natives. The letters patent granted to the Sieur Demonts, in 1603, constitute him Lieutenant General, and the representative of the King in Acadie, which is described as stretching from the 40th to the 46th degree of north latitude; with authority to extend the power of the French over that country, and its inhabitants, to give laws to the people, to treat with the natives, and enforce the observance of treaties. For the French, treaties were a fundamental part of the new world’s relationship with the Natives, who at contact were far more powerful in number, arms, and wit. The English used various charters to claim interest in the Lands. The documents upon this subject are ample. So early as the year 1496, her monarch granted a commission to the Cabots, to discover countries then unknown to Christian people, and to take possession of them in the name of the King of England. Two years afterwards, Cabot proceeded on this

34

William Smith, History of New York 18 (1814).

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voyage, and discovered the continent of North America, along which he sailed as far south as Virginia. To this discovery, the English trace their title. A long line of charters continued, some annulled, such as the 1609 grant issued after not very successful attempts at settlement had been made, including one in which the King granted to the “Treasurer and Company of Adventurers of the city of London for the first colony in Virginia,” in absolute property, the lands extending along the seacoast 400 miles, and into the land throughout from sea to sea. Other lands went through several hands, such as the Carolinas, which were originally proprietary governments. In 1721, a revolution was effected by the people, who shook off their obedience to the proprietors and declared their dependence immediately on the crown. The King, however, purchased the title of those who were disposed to sell. One of them, Lord Carteret, surrendered his interest in the government but retained his title to the soil. That title was respected till the revolution, when it was forfeited by the laws of war. The sum total of these passages of laws and title reveal that these European grants applied a chaotic set of land and title claims without possession, or often even knowledge, of the actual lands in question. The earliest European claims to the Northern Plains may have been made by Spaniards who came north from Mexico and New Mexico, apparently without ever penetrating the region. Britain also asserted vague claims to the Northern Plains through royal charters such as the Virginia Charter of 1609, which purported to grant to the London Company all the territory within 200 miles north and south of Cape Comfort on the Atlantic Coast inland from Sea to Sea, West and Northwest, and the Hudson’s Bay Company Charter of 1670, which purported to give the Company the whole of the Hudson watershed, a vast area including most of the territory, and reaching down into what we now call and name the Dakotas. However, given that the Northern Plains were entirely unknown to Europeans at the time these charters were issued, these claims can hardly be taken seriously. Louisiana was ceded by France to Spain by a secret treaty in 1762 and transferred back to France by treaty in 1800. Significantly, neither of these treaties contained a description of the boundaries of the territory. While it is apparent from the terms of the latter treaty that the extent of the territory in 1800 was the same as it had been in 1762, the matter of the boundaries remained unclear. The history of the wars, negotiations, and treaties, which the different Nations, claiming territory in America, have carried on and held with each other, are evidence of a long, complex chain of land holdings, which include numerous transactions with the Indians themselves, not simply European

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powers. Whichever title prevailed, it was still a title to lands occupied by the Indians, whose right of occupancy neither controverted, and neither had then extinguished. In other words, Indian title remained constant and unequivocal throughout these European claims, which were rarely if ever consummated with possession, a core ingredient in land title. There is little doubt that Europeans and, later, Americans did not possess the area in question here. They tried to protect their otherwise weak territorial claims by papal grants, symbolic acts of possession, such as placing crosses or plaques and royal charters that purported to assert wide geographical jurisdiction. As William Johnson, British Colonial official, wrote to the King, “The Six Nations, Western Indians [Anishnabe, etc.] & c. having never been conquered, Either by the English or French, nor subject to the Laws, consider themselves as free people.”35 It is unclear how the sovereignty of the Indian Nations could be diminished if the European colonial power had not yet completed its title to the territory by taking actual possession. In the present case, there was neither a war nor any treaty at the time of the purchase. Even if one accepts the principle of discovery, as the defendants advance, under the terms of this principle itself, the agreements between the United States and other sovereign powers can only transfer the territory that these other powers actually possessed and controlled. If the land was occupied and controlled by Indian Nations, for the United States and Britain to have sovereignty they would have had to actually acquire territory from those Nations. These treaties would only have transferred what the transferring power actually had, that is, territorial sovereignty over the area it actually possessed and controlled, and a right as against the other European powers to acquire more territory within the limits of the discovery. Many Nations of Europe, who have acquired territory on this continent, have asserted in themselves, and have recognized in others, the exclusive right of the discoverer to appropriate the lands occupied by the Indians. Have the American States rejected or adopted this principle? By the treaty which concluded the war of our revolution, Great Britain relinquished all claim, not only to the government, but to the “propriety and territorial rights of the United States,” whose boundaries were fixed in the second article. By this treaty, the powers of government, and the right to soil, which had previously been in Great Britain, passed definitively to these States. We had before taken possession of them, by declaring independence; but neither the Declaration of

35

Letter from William Johnson, British Superintendent of Indian Affairs, to the Lords of Trade, October 8, 1764.

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Independence, nor the treaty confirming it, could give us more than that which we before possessed or to which Great Britain was before entitled. European charters and grants, particularly those of the British, cannot supersede, or discard, the Crown’s solemn agreements to the Indians, which should meet no lawful impediment, as any other treaty so entered with other Nations, and have the force of law for our great Nations, as we decided in Ware v. Hylton, 3 U.S. 199 (1796). Therefore, the Royal Proclamation, and any other documents that claim interest in American soil, must carry with them the agreements and customs made and understood by the Indians. The Royal Proclamation of 1763 prohibited sale of lands by Indians to private parties.36 If one looks exclusively at this Royal Proclamation, it could be argued that this colonial prescription superseded all similar colonial statutes and provided a uniform and universal ban on land purchases from the Indians until the Revolutionary War in 1785. However, the Proclamation refers to the Indians as “Nations,” and the principles of the Proclamation found their genesis in the relationships between Indians and colonial powers in the decades leading up to the 1760s. The interaction of Indians and non-Indian people during this period resulted in the formulation of constitutional principles to regulate the allocation of land, resources, and jurisdiction between them. These principles were developed through practiced experience, war, and negotiation and, as such, were the product of both society’s precepts. There remained important agreements and gatherings between the British and other colonial powers and the Natives, which include a thirty-day conference that followed the Royal Proclamation: the Treaty of Niagara. The Royal Proclamation became a treaty at Niagara because it was presented by the colonialists for affirmation and was accepted by certain Indians. When presenting the Proclamation, both parties made representations and promises through treaty secured by belts of wampum, establishing the principles of non-interference and mutual respect. Many Indians, including the tribes connected with the Piankeshaw, did not attend the Niagara meetings or exchange treaties by wampum or otherwise with the British, and, thus, did not accept the Royal Proclamation. Thus, the Royal Proclamation must be read together with this transaction, in understanding its meaning. The Royal Proclamation did not apply to the Piankeshaw or any Indians with governing power in respect of their lands

36

The Proclamation dictates that “no private Person do presume to make any Purchase from the said Indians of any Lands reserved to the said Indians . . . if at any Time any of the said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our name.”

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who did not enter into treaty with the British, as they did not adopt the document as binding on their territory. In addition, it is clear that the United States, while infant in its independence, has chosen a different route, in statute, case law, and custom than the British in respect of its relations with the Indians. It was not clearly established that the United States, or the several States, had a clear title to all the lands within the boundary lines described in the treaty or that the exclusive power to extinguish that right was vested in that government which might constitutionally exercise it. I have already referenced the lack of binding legislation in Virginia at the time of the earliest transaction. No other laws were in place that prohibited purchases directly from Indians. Indeed, Article III of the Northwest Ordinance very clearly states the preferred relationship with the Indians: Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and, in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity, shall from time to time be made for preventing wrongs being done to them, and for preserving peace and friendship with them.

So, too, the Constitution of 1789 gave the national Congress exclusive power to conduct Indian affairs. Beginning in 1790, under a series of “Trade and Intercourse” acts, Congress banned private land purchases from the Indians; later versions explicitly made private purchases a misdemeanor, punishable by jail terms of up to a year and fines of up to $1000. However, this supreme law was not in place at the time that Johnson purchased the Land, and, thus, the Constitution cannot reasonably be used as the basis for our decision. Several customs suggest that prohibiting sales by Indians was far from a universal position and that the Proclamation appears not to be the final word on sales by Indians. First, the purchase of land directly from Indians became, very early on, the official colonist policy. In fact, the Massachusetts Bay Company instructed its colonists in 1629 that, “[i]f any of the Savages pretend Right of Inheritance to all or any Part of the land in our Patent . . . purchase their claim in order to avoid the least Scruple of Intrusion.”37 This principle

37

Letter from Governor of the New England Company, to Governor Endicott (1629).

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was reiterated by the Crown in the 1660s when establishing directives to its colonies. “No colony hath any right to dispose of any lands conquered from the natives, unless both the cause of the conquest be just and the land lye within the bound which the king by his charter hath given it . . . the country is [the natives’] till they give it or sell it, though it not be improved.”38 Colonists that had occupied land in Massachusetts towns without first purchasing the land responded by making retroactive payments to the local tribes. Legal decisions affirm such purchases. In Jackson ex dem. Klock v. Hudson, 3 Johns. Rptr. 375 (1808), both American claimants rooted their title in a grant from the colony of New York in 1731. The defendant, however, established that Mohawk Indians occupied the disputed tract at the time of a deed in the plaintiff’s chain of title, from 1761, and hence, “under the doctrine of the common law rendering void the sale of lands, while they are in adverse possession,” the plaintiff’s chain of title had a gap. The title of the Mohawk Indians was extinguished as their title had never been claimed and the Indians had become extinct; but the purchase from Indians was not in contest. Second, a peculiar legal opinion letter originally written by British Attorney General Charles Pratt (who later became Lord Camden) and Solicitor General Charles Yorke affirmed the right of individuals to buy land from rajahs in British India. The letter stated in part, As to the latter part of the prayer of the petition relative to the holding or retaining Fortresses or Districts already acquired or to be acquired by Treaty, Grant, or Conquest, We beg leave to point out some distinctions upon it. In respect to such Places as have been or shall be acquired by treaty or Grant from the Mogul or any of the Indian Princes or Governments Your Majestys Letters Patent are not necessary, the property of the soil vesting in the Company by Indian Grants subject only to your Majestys right of Sovereignty over the Settlements as English Subjects who carry with them your Majestys Laws wherever they form Colonies and receive your Majestys protection by virtue of your Royal Charters. In respect to such places as have lately been acquired or shall hereafter be acquired by Conquest the property as well as the Dominion vests in your Majesty by virtue of your known Prerogative & consequently the Company can only derive a right to them through your Majestys Grants.

The opinion, written in 1757, was intended to guide the Privy Council in responding to a petition for guidance filed by the East India Company. A version of the opinion was in circulation in North America by 1773, without

38

Collections of the Rhode Island Historical Society 262 (1835).

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language making clear its concern with subcontinental India. Evidence was tendered at trial that the 1773 purchase was motivated by the opinion and the common law generally permitted purchases of foreign lands; that a purchase from the Indians was considered as full and ample a title as could be obtained. This is further evidence that either the law and custom were unsettled or that individuals could purchase land from Indians, as the king’s subjects carry with them the common law wherever they may form settlements. Third, the sovereign could, and did, approve previous land purchases after the fact, a common practice in colonial Massachusetts.39 Congress also passed a preemption act giving occupiers and improvers the right to purchase their claims at the statutory minimum price of two dollars an acre. Congress sometimes may have limited individual claims to a particular section; but other times did not. Moreover, in Illinois, the land office was devoted almost exclusively to sorting out the tangle of preexisting French, British, and early American claims over southern Illinois lands. Indeed, in 1818, Piankeshaw Chief Chekommia signed a treaty selling rights to their land to the United States. These arguments affirm that law and custom in regard to individual purchases of Indian land are far from clear and decided, contrary to the eloquent arguments of the defendant. This, in combination with the absence of any statutes to the contrary, leads to the certain conclusion that the transfer to Johnson and his heirs was valid. The question, next, is what, then, is the nature of this title? The concept of Indian title that emerges from this case is a right over land that is separate and distinct from the laws of the United States and can include communal title, matriarchal lineage, and so on, depending on how Indians create and understand the law. Indian laws and customs that provide for the creation and enjoyment of land rights are determined by the Indian Nation. But the practices of each Indian Nation and the Laws of the Indians are not for this Court to decide; as it would not decide the laws in the Nation of France or elsewhere. A grant could not separate the Indian from his Nation, nor give a title which our Courts could distinguish from the title of his tribe, as it might still be conquered from or ceded by his tribe. We can perceive no legal principle which will authorize a Court to say that different consequences are attached to this purchase because it was made by a stranger. This interpretation of Indian title appears so too in other parts of the Law of the United States. For example, the commerce clause of the US Constitution,

39

The Seneca Lands, Opinion of the United States Attorney General (1819).

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which came into force in 1789, and after the date of the transfer to Judge Johnson, also considers Indian tribes as other sovereigns.40 The Northwest Ordinance of 1787 spoke of honoring the lands of Indians.41 The Territorial Papers of the United States include a declaration by President Jefferson that Indians retained “full, undivided and independent sovereignty as long as they choose to keep it, and that this might be forever.”42 President Jefferson so extended this rule in circumstances where a tribe becomes extinct. Treaty practices affirm tribal sovereignty. For example, in the negotiation of many treaties with Indian tribes, US officials negotiated slowly, over more than a month, in order to make sure that all tribes with claims agreed to terms. In the present case, the Piankeshaw endorsed that the sale to the purchaser was valid under their law after the transaction, when they were approached by the British to sell the land anew. About eighteen months after the purchase, the British commander at Kaskaskia told the Piankeshaw that they could still consider themselves holders of the land.43 In the United Companies 1796 Memorial, the commander told him that the tribal leaders rejected this seemingly magnanimous offer. After some deliberation, the Chiefs replied, “That they thought; what the great Captain said was not right; that they had sold the lands.”44 Accordingly, and with the only information we have to decide, assess, and know, it appears the sale of the subject land between Mister Johnson was valid under the laws of the Piankeshaw. The deed in question was drafted in such a manner so as to transform the Indian title to valid fee simple title under the laws of the colonial power, as evidenced by the transfer to the plaintiffs or, in the alternative, to the King. Such language was deliberate, to transform the land from Indian land to valid land in the United States. This means that the laws or usages of such parcels were no longer part of their territory, nor held under them, by a title dependent on their laws. The Indians may also, under their laws and ours, sell their lands to this great Nation, as they have and did, and in such case, as in the present, such grants would become fee simple title under the laws of this great Nation.

40

41 42 43 44

Constitution of the United States, Article 1, Section 8, Clause 3 sets out that Congress shall have the Power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Northwest Ordinance (July 13, 1787). Letter from Thomas Jefferson, Second Question (Feb. 26, 1793). Letter from Captain Lord to General Haldimand (July 3, 1773) (on file with British Museum). The United Illinois and Wabash Land Companies, An Account of Proceedings of the Illinois and Ouabache [Wabash] Land Companies (Philadelphia: Young, 1796).

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In respect of the validity of the title passed from the Piankeshaw, the Courts of the United States cannot interpose for the protection. However, the person who purchases lands from the Indians in the manner so done in this case no longer holds their title under their protection of the Indians and subject to their laws. Indian law may also create interests in land within their own territories, while retaining other forms of title, such as their communal title, or title to persons that could not so possess according to the laws of the United States, to the whole of their territories. If the laws of an Indian Nation can permit the creation of interests in favor of citizens of the Nation, as must be the case, there appears to be no valid reason why they cannot also permit the creation of interests in favor of non-citizens. If it were a lesser title, and not a transformation as in the present case, the non-member’s interest would be held under the Nation’s title and subject to their laws, and the Nation would retain control over the land. The land would still be part of their territory and so could be resumed by them through the exercise of their continuing authority to change and apply their own laws. After bestowing on this subject a degree of attention which was more required by the magnitude of the interest in litigation, and the able and elaborate arguments of the bar, than by its intrinsic difficulty, the Court is decidedly of the opinion that the defendants do not exhibit a title that can be sustained in the courts of the United States; and that there was error in the judgment that was rendered against the plaintiffs in the District Court of Illinois. It is so decided that the plaintiffs have title to the lands in question. Judgment of District Court of Illinois is in error, with costs.

5 Commentary on Botiller v. Dominguez marc-tizoc gonza´ lez

background Decided forty-one years after the United States ratified the Treaty of Guadalupe Hidalgo (the “Treaty”),1 Botiller v. Dominguez was instrumental in legitimizing the dispossession of landowners whose title derived from the Kingdom of Spain or Republic of Mexico.2 Property casebooks rarely include Botiller,3 which is unfortunate if unsurprising, for the casebooks commonly elide the acquisition – through conquest – and incorporation of the massive territory now known as the American Southwest.4 Indeed, legal education in the United States typically omits the Mexican–American War of 1846 to 1848 and, when included, such knowledge is usually relegated to specialty courses like Race and American Law, Critical Race Theory, or Latinos and the Law.5

1

2

3

4

5

Treaty of Peace, Friendship, Limits, and Settlement, Mex.–U.S., Feb. 2, 1848, 9 Stat. 922 [hereinafter Treaty of Guadalupe Hidalgo]. See generally Richard Griswold del Castillo, The Treaty of Guadalupe Hidalgo: A Legacy of Conflict (1st ed. 1990). Botiller v. Dominguez, 130 U.S. 238 (1889). For an influential analysis of the case, see, e.g., Christine A. Klein, Treaties of Conquest: Property Rights, Indian Treaties, and the Treaty of Guadalupe Hidalgo, 26 N.M. L. Rev. 201, 220–223 (1996). E.g., Jesse Dukeminier, James E. Krier, Gregory S. Alexander, Michael S. Schill, & Lior Jacob Strahilevitz, Property (9th ed. 2017); Joseph William Singer, Bethany R. Berger, Nestor M. Davidson, & Eduardo Moise´s Pen˜alver, Property Law: Rules, Policies, and Practices (7th ed. 2017). Arizona, California, Colorado, Nevada, New Mexico, and Utah were once part of Mexico. Richard Delgado, Jean Stefancic & Juan F. Perea, Latinos and the Law: Cases and Materials 15 (2008). See, e.g., Delgado, supra note 4, at 23–34; Juan F. Perea, Richard Delgado, Angela P. Harris, Jean Stefancic, & Stephanie M. Wildman, Race and Races: Cases and Resources for a Diverse America 304–313 (2d ed. 2007).

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Nevertheless, Botiller and related cases6 merit coverage in property law classes, for they contextualize – and put into question – numerous property law doctrines, including, inter alia: discovery and conquest, public trust, ejectment, adverse possession (with and without color of title), the statute of limitations, homestead, patents, defeasible fees, concurrent ownership, community property, dower, inheritance, the Statute of Frauds, the federal land survey, the hierarchy of land descriptions, chain of title, recording acts, easements, profits à prendre, and takings. Botiller derived from an action in ejectment, which Dominga Domínguez brought against Brigido Botiller and others who had trespassed upon, occupied, and cultivated parts of Rancho Las Virgenes, an 1834 land grant from the Republic of Mexico to Señora Domínguez’s antecedents in the chain of title, Nemecio Domínguez and Domingo Carrillo.7 Señora Domínguez prevailed in her ejectment claim before the Los Angeles county superior court,8 so Botiller appealed to the California Supreme Court, arguing that Señora Domínguez had failed to comply with the Land Claim Act of March 3, 1851 (the “Land Act”),9 but the California Supreme Court affirmed the lower court’s decision.10 The court agreed with Señora Domínguez that the Land Act “was not intended to apply to claims which were supported by a complete and perfect title from the Mexican government, but, on the contrary, only to such as were imperfect, inchoate, and equitable in their character, without being of strict legal title.”11 The court’s decision was consistent with its prior opinions, which had interpreted the Treaty as self-executing as to property owned under perfect title and construed the Act as applying only to imperfect or inchoate claims.12 Botiller then appealed to the US Supreme Court. What might have been a routine case of ejectment versus adverse possession became a controversy over 6

7 8

9

10

11 12

E.g., Fremont v. United States, 58 U.S. (17 How.) 542 (1854); De Arguello v. United States, 59 U.S. (18 How.) 539 (1855); United States v. Peralta, 60 U.S. (19 How.) 343 (1856); United States v. Vallejo, 63 U.S. (22 How.) 416 (1859); United States v. Sandoval, 167 U.S. 278 (1897). Botiller, 130 U.S. 238. Botiller v. Dominguez, 13 P. 685 (Cal. 1887) (en banc) (per curiam) (citing Phelan v. Poyoreno, 13 P. 681 (Cal. 1887) (en banc)). Land Claim Act of March 3, 1851, 31 Cong. ch. 41, 9 Stat. 631 (“An Act to Ascertain and Settle the Private Land Claims in the State of California”) (the “Land Act”). Botiller v. Dominguez, 13 P. 685 (Cal. 1887) (en banc) (per curiam) (citing Phelan v. Poyoreno, 13 P. 681 (Cal. 1887) (en banc)); accord Botiller v. Dominguez, 16 P. 241 (Cal. 1887) (en banc) (per curiam) (affirming the prior opinion after a rehearing). Botiller, 130 U.S. at 246–247. E.g., Minturn v. Brower, 24 Cal. 644 (Cal. 1864); Phelan v. Poyoreno, 13 P. 681 (Cal. 1887). Minturn and Phelan were later overruled in part by F.A. Hihn Co. v. City of Santa Cruz, 150 P. 62 (Cal. 1915).

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the validity and scope of the Land Act, by which Congress established a board of commissioners to adjudicate private claims to land ownership in the newly incorporated State of California,13 versus the authority of the Treaty. Despite the US Senate’s elision of Article X of the Treaty – at President James K. Polk’s urging – prior to ratification,14 in the ratified Treaty, the United States nevertheless promised, in Article VIII, to “inviolably” respect and protect Mexicans’ ownership of property in the newly conquered territory.15 In contrast, the omitted Article X would have expressly bound the United States to protect Mexican land grants “to the same extent that the same grants would be valid, if the said territories had remained within the limits of Mexico.”16

original opinion In the US Supreme Court, Señora Domínguez argued “that the [Land Act] itself is invalid, as being in conflict with the provisions of the treaty with Mexico,”17 or, if valid, that it should be interpreted narrowly such that it would not apply to her title, which had been perfected under the laws of Mexico. She also argued that the Land Act conflicted “with the rights of property under the Constitution and laws of the United States, so far as it may affect titles perfected under Mexico,”18 including due process rights protected by the Takings Clause. The Court effectively ignored the second of Señora Domínguez’s arguments for why it should rule the Land Act invalid.19 It did not address her constitutional argument in the slightest and ultimately legitimized a truly massive taking of private property (i.e., any and all claims to property that were not timely submitted to the Land Act’s board of commissioners and confirmed by it or a federal court).20 Rather, in Botiller, the Court established two holdings.21 The first dealt with the effect of the Land Act in light of the preexisting Treaty, with the Court 13

14

15 16

17 18 19 20 21

31 Cong. ch. 50, Sept. 9, 1850, 9 Stat. 452 (“An Act for the Admission of the State of California into the Union”). Delgado, supra note 4, at 16–19; Guadalupe T. Luna, Chicana/Chicano Land Tenure in the Agrarian Domain: On the Edge of a Naked Knife, 4 Mich. J. Race & L. 39, 72–73 (1998). Treaty of Guadalupe Hidalgo, art. VIII. Griswold del Castillo, supra note 1, at 180–181; Delgado, supra note 4, at 16–17; Luna, supra note 14, at 70–71. Botiller, 130 U.S. at 246. Id. Id. at 246 (reciting the arguments). Cf. id. at 255–256. Associate Justice Samuel Freeman Miller delivered the opinion of the Court. Botiller, 130 U.S. at 242.

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holding that the Land Act had priority since Congress enacted it at a later date.22 The Court explained that to the extent an act of Congress conflicts with a treaty, it is “bound to follow the [later] statutory enactments of its own government,” and if the terms of a subsequent act violate a treaty, it becomes “a matter of international concern, which the two States must determine by treaty, or by such other means as enables one State to enforce upon another the obligations of a treaty.”23 In other words, the Court deferred to Congress, where it had chosen to disregard the Treaty.24 The second holding dealt with the scope of the Land Act, with the Court reading it expansively to require owners with perfect title, as well inchoate claims, under the laws of Mexico, to submit their claims timely to the Land Act’s board of commissioners or else forfeit them.25 The Court held that “no title to land in California, dependent upon Spanish or Mexican grants can be of any validity which has not been submitted to and confirmed by the board provided for that purpose in the [Land Act].”26 In separating the question of the Land Act’s priority over the Treaty from the question of the Land Act’s scope, however, the Court sidestepped the guidance it had issued a year earlier in Whitney v. Robertson as to how to interpret a statute in apparent conflict with a treaty.27 In Whitney, the Court stated that, under the Constitution, “a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other.”28 The Court noted that if a treaty and a statute are read as “inconsistent, the one last in date will control the other: provided, always, the stipulation of the treaty on the subject is self-executing.”29 The Whitney Court added, however, that when a treaty and a statute “relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either.”30 Thus, in Botiller, the Court could have construed the Land Act in a way consistent with the Treaty – all it had to do was interpret the Land Act 22 23

24 25 26 27 28 29 30

Id. at 247. Id. (citing opinions that had developed this relatively new doctrine – Taylor v. Morton, 23 F. Cas. 784 (C.C.D. Mass. 1855) (No. 13,799); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616 (1870); Head Money Cases, 112 U.S. 580 (1884); Whitney v. Robertson, 124 U.S. 190 (1888)). Botiller, 130 U.S. at 247. Id. at 247–249, 253–256. Id. at 255–256. Whitney v. Robertson, 124 U.S. 190 (1888). Id. at 194. Id. Id.

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narrowly to apply only to imperfect and inchoate claims, as the California Supreme Court had ruled in numerous cases for decades.31 Had the Court followed its opinion in Whitney, it would have harmonized the Land Act and Treaty and thereby protected real property owners with perfect title, such as Señora Domínguez. Instead of following the California Supreme Court’s long-standing interpretation of the scope of the Land Act, however, the Court decided in Botiller that the Land Act should be interpreted expansively. In reviewing the Land Act’s reach, the Court did not consider its constitutionality, but instead asked only if the statute expressly or impliedly excluded “perfected claims from the jurisdiction of the commission.”32 Reviewing several of the Land Act’s sections, the Court answered this question in the negative.33 Focusing on Section 8 of the Land Act, which mandated “That each and every person claiming lands in California by virtue of any right or title derived from the Spanish or Mexican government shall present the same to the said commissioners when sitting as a board,”34 the Court also recited – but did not seriously consider the meaning of – Section 11, which mandated That the commissioners herein provided for, and the District and Supreme Courts, in deciding on the validity of any claim brought . . . under the provisions of this act, shall be governed by the treaty of Guadalupe Hidalgo, the law of nations, the laws, usages and customs of the government from which the claim is derived, the principles of equity, and the decisions of the Supreme Court of the United States, so far as they are applicable.35

By refusing to consider seriously the authorities provided by Congress in Section 11 of the Land Act to govern the decisions of the commission and its appellate courts, the Court ultimately failed to adjudicate the constitutionality of the Land Act, which in Section 13 mandated “That . . . all lands the claims to which shall not have been presented to the said commissioners within two years after the date of this act, shall be deemed, held and considered as part of the public domain of the United States.”36 Thus, despite the Takings Clause,

31

32 33 34 35 36

See supra notes 10–12 and accompanying text (discussing and citing California Supreme Court cases that interpreted the Land Act not to apply to people who owned property with perfect title under the laws of Mexico). Botiller, 130 U.S. at 247. Id. at 245–246. Id. at 245 (italics in original). Botiller, 130 U.S. at 246. Id. (italics in original).

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the Court colored with law not only a massive taking of private property but one with a shockingly short – two year – statute of limitations.

feminist judgment In contrast to the Court’s original opinion, Professor Emerita Guadalupe T. Luna, writing as Justice Luna of the Supreme Court of the United States, follows the Court’s precedent in United States v. Percheman, 32 U.S. 51 (1833), consonant opinions, and underlying principles to affirm the California Supreme Court’s ruling that Señora Domínguez, the owner of real property, which title had been perfected under the laws of the Republic of Mexico prior to California’s conquest and acquisition by the United States, did not forfeit her property by not presenting a claim for confirmation to the Land Act board of commissioners. In Luna’s words, “We cannot impugn established constitutional law, and for the reasons set forth below, we agree with Dominga Domínguez that no presentation was required by the Land Act.” As she emphasizes, “the denial of titleholders’ rights to their property would be difficult to reconcile with the entrenched legal principles that protect private property in the United States.” Luna justifies her opinion for the Court in four chief ways. First, she recognizes women’s independent rights to own property freely under Mexican law. Second, based on the Treaty’s terms and legislative history, she determines that the Treaty requires no legislation to implement its protection of private rights to property. Third, she explains why the Constitution disallows Congress from dispossessing a person owning perfect title to property. Finally, she explains a fatal flaw to Botiller’s claim to homestead – reliance on internally inconsistent precedent authored by Chief Justice Taney, which failed to follow the well-reasoned precedent of the Marshall Court. First, in her discussion of women’s rights to own property in Mexico, Luna explains that to reconcile Botiller’s homestead claim with Domínguez’s claim that he and others are trespassing on her property obligates addressing “the distinction between women’s legal status and rights to property under the civil law system in the former Mexican territories and women’s legal status and rights to property under the common law system of the United States.” She continues, “[W]omen were permitted to own land in fee simple independent of any male relationship” under the Mexican colonization law and antecedent laws of Spain. Moreover, she notes that California’s first constitution recognized not only the rights of the husband but also the wife, which concepts were adopted from the antecedent community property laws of the former

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Mexican province. Thus, she explains the Court’s holding that perfect title does not obligate a landholder to present a claim before the board of commissioners under the Land Act and describes how this position is fully supported and settled in the Supreme Court of California. Beyond California law, Luna’s opinion refers to several earlier opinions of the Supreme Court of the United States, which recognized that women were owners of property under Mexican law and also managed “rural enterprises of varying sizes throughout the ceded territories.” She contrasts these judicial findings with the common law in the United States wherein “women . . . confronted a legal disability that blocked equal property ownership standing with their male counterparts.” Second, Luna considers the peace agreement that terminated the war between the two republics, particularly the treaty covenants that sought to protect the real property of Señora Domínguez and other grantees holding perfect title under Mexican law. As she notes, the Treaty not only terminated the war between the United States and Mexico, it also solemnly promised to protect those choosing to remain in the conquered territories. As she explains, “Betrayal of these solemn promises would, in due course, create a separate class of citizens that would be unable to rely on the principles that guide treaty law and otherwise breach the protection of constitutional law principles and legal precepts.” Here, Luna “adheres to Chief Justice Marshall’s earlier ruling in Percheman that private property remains private subsequent to a conquest and that treaties are to be read in their entirety.” Following Marshall’s opinion for the Court in Percheman, she explains that this precedent “mandates perusal of the history of the Treaty of Guadalupe Hidalgo.” In reviewing the Treaty’s pre-ratification debate, she highlights several statements by Secretary of State James Buchanan, wherein he extolled that the Constitution and laws of the United States and the “very character and nature of our institutions” secure to “the Mexican inhabitants” of the recently conquered US territory “the free enjoyment of their liberty, property, and the religion which they profess,” even “if no stipulation whatever were contained in the Treaty.” Thus, Luna follows Percheman and finds that the Treaty operates of itself and does “not require additional legislation to expedite the legal rights of property ownership.” As she explains, “even in cases of conquest the conqueror does no more than displace the sovereign and assume dominion over the country.”37

37

Strother v. Lucas, 37 U.S. (12 Pet.) 410, 411 (1838).

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Third, Luna explains that the Constitution protects Señora Domínguez and similarly situated real property owners, whose title had been perfected under the laws of Mexico prior to California’s conquest and acquisition by the United States. She admonishes that Congress could not disenfranchise property owners of their rights without violating international norms. She reasons that “Congress cannot constitutionally, by an enactment, dispossess a citizen of her lawful estate, and despoil the Treaty of Guadalupe Hidalgo with a subsequent act of Congress without betraying the Treaty’s intent.” Thus, she holds that the subsequent Land Act requiring proof of validity of ownership for grantees with perfect title must yield to the extensive legal and legislative history and intent of the Treaty. Fourth and finally, Luna explains a fatal flaw to Botiller’s claim to homestead – reliance on Chief Justice Taney’s 1854 opinion for the Court in Fremont v. United States.38 As she explains, the relevant California history, “the discovery of gold [in 1848] along with other precious metals . . . incurred a relentless army of immigrants to the area.” When California achieved statehood two years later, “its wide expansive regions presented conflicts for innumerable grantees.” Four years later, Fremont was the first California land grant case to be heard before the US Supreme Court. Luna underscores that, in Fremont, Chief Justice Taney departed from Chief Justice Marshall’s “reasoning in Percheman and its emphasis on international law, disregarded the Constitution, and left the Treaty of Guadalupe Hidalgo at risk to subsequent misinterpretations.” The Percheman ruling expressly rejected the arguments made by then US Attorney General Taney, which assertions Taney resurfaced twenty-one years later in his Fremont opinion. In so doing, “Taney ignored the Treaty’s Supremacy Clause-linked protections and, in the process, allowed an individual who had not comported with the Mexican colonization land laws to have ownership of vast acreage with tremendous minerals and gold in California.” But, as Luna explains, “[t]his disregard and omission of constitutional law and theory further stymies [the] Court when contemplated against the original intent constitutional interpretation . . . Taney demanded in the wrongfully decided [1857] Scott v. Sanford case,” where Taney “held fidelity to the Constitution paramount,” and refused to yield to the popular opinion of the day. Yet, in Fremont, “Chief Justice Taney, in fact, did react and yield to the popular opinion or passion of the day when he granted Captain John Fremont property of inestimable worth.”

38

Fremont, 58 U.S. 542.

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Luna thus rejects the precedential value of Fremont, along with Taney’s “socalled obligation to ‘not falter in the path of duty’ in allegedly comporting with his original intent interpretation of the Constitution” because “Taney directly rewarded Fremont for aiding in the conquest of the former Mexican provinces.” She notes that the Scott and Fremont rulings are inconsistent in their interpretation of constitutional intent and purpose and also reveal contradictory precepts on how property is viewed in the common law. As Luna explains, Taney, in Fremont, held that the Mexican laws and property laws of the United States that were to govern the land grant process were meaningless, yet in Scott, Taney held that property rights were paramount. In Luna’s opinion, the Court cannot follow either Fremont or Scott, for, in both, Taney demonstrates animus “against anyone other than citizens of European descent.” She also observes that the Land Act created a haphazard board of commissioners that lacks status under the U.S. Const. art. III and thus, merely constitutes a board of inquiry. Moreover, she emphasizes that “the Land Act shifts the burden of proof onto grantees in contradiction of Treaty promises . . . during the Treaty’s ratification,” and the “Court can see no justification for the expense placed on landholders to prove what the United States promised to protect.” Further, Luna “rejects Botiller’s emphasis on the Land Act and declares with great force that the property at issue is not public domain land, but comprises private property and thus is protected by the laws of the nation.” She concludes that based on well-recognized principles of constitutional law, Señora Domínguez is correct that as holder of real property held in fee simple, she was not required to present her claim of ownership before the Land Act’s board.

feminist legal theory Luna’s feminist judgment in Botiller v. Dominguez implicates feminist legal theory in at least three ways. First, she writes Mexican-American women into critical ethnic legal history.39 By focusing on the citizenship, legal personhood, and property rights of Señora Domínguez, and other MexicanAmerican women whose title to California land derived from Spanish or Mexican colonization law, Luna represents the agency and industry of Mexican-American women who owned, improved, cultivated, and protected their own property in the nineteenth century. Disrupting long-standing and invidious stereotypes of Mexican-American women as passive sex objects, she 39

Cf. Marc-Tizoc González, Critical Ethnic Legal Histories: Unearthing the Interracial Justice of Filipino American Agricultural Labor Organizing, 3 U.C. Irvine L. Rev. 991 (2013).

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shows that their very existence repudiated the common law doctrine and institution of feme covert. Second, Luna elucidates the critical race feminist embrace of intersectional analysis.40 By relating Señora Domínguez’s role in the historic struggle of nineteenth-century Mexican-American land grantees, Luna illuminates the Court’s failure to protect Mexican-American landowners, including independent women with perfect title to property, whom Congress targeted for dispossession three years after the US Senate had ratified the Treaty. While the Land Act did not facially discriminate against landowning Mexican-American women, Botiller v. Dominguez subordinated Señora Domínguez and other land-owning Mexican-American women by sanctioning the federal government’s spoliation of their property under the color of law. In blinding contrast, as Luna explains, in Fremont,41 Chief Justice Taney lent the law’s protection to racially White male John Charles Fremont, a US colonel whose inability to prove perfect title derived in part from his participation in the “Bear Flag Revolt” and the consequent destruction of deeds possessed by the Mexican alcalde (mayor) at Sonoma, which interfered with some grantees’ ability to prove the validity of their claims.42 In other words, Luna shows how US law dispossessed Señora Domínguez in peculiar contrast to its treatment of White male Colonel Fremont, who entered California at the head of an American force, in 1846.43 Third, Luna’s feminist judgment validates, once again, the theory of legal indeterminacy,44 and its application by feminist legal scholars,45 including several founders of critical race feminism.46 In an influential application of

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E.g., Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139. Fremont, 58 U.S. (17 How.) at 542. See, e.g., United States v. Bale, 24 F. Cas. 968 (N.D. Cal. 1855) (No. 14,504). See Fremont, 58 U.S. at 562. Fremont later served as one of California’s first US senators and governor of the territory of Arizona. John C. Frémont, Encyclopædia Britannica (Jul. 9, 2019), https://www.britannica.com/biography/John-C-Fremont. For an early and influential discussion of the indeterminacy of legal discourse (e.g., rights), see Mark Tushnet, An Essay on Rights, 62 Tex. L. Rev. 1363, 1371–1382 (1984). E.g., Katharine T. Bartlett, Feminist Legal Methods, 103 Harv. L. Rev. 829, 845, 878 (1990); Clare Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 Yale L.J. 997, 1000, 1008–1010 (1985). E.g., Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1341, 1348 (1988); Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 Harv. C.R.-C.L. L. Rev. 323, 328, 332 (1987).

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this theory to “the context of Mexican-American civil rights litigation,”47 George A. Martinez explained “that judicial decisions are often not logically compelled and are instead the result of conscious or unconscious policy choices.”48 Comprehensively analyzing published judicial opinions “concerning Mexican-American efforts to litigate certain civil rights issues for the years 1930 to 1980,”49 Martinez persuasively demonstrated that courts’ decisions for and against Mexican-Americans were neither inevitable nor compelled.50 Focusing on the nineteenth century, Luna masterfully reveals how the Court’s original opinion in Botiller v. Dominguez followed from the racist legacy of Chief Justice Taney, whose opinions in Fremont and Dred Scott were strikingly inconsistent in terms of constitutional protections for property owners unless one views them through a “LatCritical” feminist lens, at which point they resolve into the picture of White (cisgendered) male supremacy over land and people – both cognized as property. But for that distortion in the rule of law over authority,51 the Botiller Court might have protected Señora Domínguez, and myriad Mexican-American landowners, by following Chief Justice Marshall’s earlier opinion in Percheman and holding unconstitutional the Congressional attempt to dispossess Mexican-American landowners, and others, who had perfected their title under Mexican law. Instead, the Court sanctioned Botiller and others whom Señora Domínguez accused of trespassing, but whom the Court found to be acting in accord with the policies of the Homestead Act of 1862.52

speculation on the feminist judgment’s impact on law and society Had Luna sat on the Court and persuaded her brethren, and sistern, to join her feminist judgment in 1889, the demographics and political economy of 47

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49 50 51

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George A. Martinez, Legal Indeterminacy, Judicial Discretion and the Mexican-American Litigation Experience: 1930–1980, 27 U.C. Davis L. Rev. 555, 557 (1994). Id. at 558 (citations omitted); accord Christopher David Ruiz Cameron, One Hundred Fifty Years of Solitude: Reflections on the End of the History Academy’s Dominance of Scholarship on the Treaty of Guadalupe Hidalgo, 5 Sw. J.L. & Trade Am. 83 (1998). Martinez, supra note 47, at 559. See id. On the significance of the oft-missing phrase “over authority” in the familiar maxim, “rule of law,” see Peter Linebaugh, The Magna Carta Manifesto: Liberties and Commons for All 212–213 (2008) (explaining how Magna Carta placed the English king below the rule of law). 37 Cong. ch. 75, May 20, 1862, 12 Stat. 392 (“An Act to Secure Homesteads to Actual Settlers on the Public Domain”).

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California, and other states in the Southwest, would likely be substantially different today. Imagine if US courts had not dispossessed Señora Domínguez and other inheritors of Spanish and Mexican land grants but rather had protected their property rights: instead of being disproportionately impoverished and with lower income,53 and less wealthy and less educated than “White, non-Hispanics” (as the US Census terms the group), the successors of nineteenth-century Mexican-American landowners might have flourished economically and socially. While successful intergenerational transfers of wealth, which land ownership enables and facilitates, are never guaranteed, protecting women like Señora Domínguez in their ownership of land grant property might have substantially altered state and local governance, including not only political participation, but also access to education and the professions. Although anti-Mexican animus would have likely persisted as a pernicious strategy of nativist and racist “moral entrepreneurs,”54 ownership of substantial acreage of real property might have enabled Mexican-American families, like that of Señora Domínguez, to weather the anti-immigrant crusades of the early twentieth century. In turn, with the legal and political protection enabled by their substantial property ownership, such families might have avoided the unconstitutional and illegal mass deportation campaigns of the 1930s and 1950s.55 While the number of families that succeeded to the nineteenth-century Mexican land grants would have been relatively small, Mexican-American landowners might have accumulated enough political power to dissuade federal, state, and local officials from enacting such mass deportation campaigns in the first place. If even a few of these speculations had been realized, California, and other Southwestern states that the United States carved out of the former northern territory of the Republic of Mexico, might have charted a “majority minority” course much earlier in history.56 How that might have shaped other aspects of the region, and the nation as a whole, is beyond the scope of this

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Jessica Semega, Melissa Kollar, John Creamer, & Abinash Mohanty, U.S. Census Bureau, Income and Poverty in the United States: 2018 P60-266 4–5, 13, 15 (Sept., 2019). On moral entrepreneurs and moral panics, see the classic sociological texts, Howard S. Becker, Outsiders: Studies in the Sociology of Deviance (1963) and Stanley Cohen, Folk Devils and Moral Panics: The Creation of the Mods and Rockers (3rd ed. 1972). See, e.g., Francisco E. Balderrama & Raymond Rodrı´guez, Decade of Betrayal: Mexican Repatriation in the 1930s (1995); Juan Ramon Garcı´a, Operation Wetback: The Mass Deportation of Mexican Undocumented Workers in 1954 (1980). For an extended speculation on how US and Mexican society might have pursued a different course had the United States not prevailed in the Mexican–American War, see Steven W. Bender, How the West Was Juan: Reimagining the U.S./Mexico Border (2017).

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Commentary, but it is undeniable that people with wealth substantially influence US law, politics, and society across the centuries.57 Con safos.

BOTILLER V. DOMINGUEZ, 130 U.S. 238 (1889)

justice guadalupe t. luna delivered the opinion of the court Dominga Dominguez brought this action in ejectment against Brigido Botiller and others to recover possession of a tract of land situated in Los Angeles county, “Rancho Las Virgenes.” The court below rendered judgment in favor of Dominguez. Botiller and the others (“Botiller”), who are citizens of the United States and who had taken possession of the tract at issue, appealed. Dominguez v. Botiller, 74 Cal. 457 (Cal. 1887). Botiller asserts title pursuant to the Homestead Act of July 2 1862, 37 Cong. Ch. 130, 12 Stat. 503 (“Homestead Act”). At issue is whether Dominguez was required to submit proof of her rights to the tract in question to the Board of Land Commissioners for confirmation pursuant to the Land Claim Act of March 3, 1851, 31 Cong. Ch. 41, 9 Stat. 631 (“Land Act”). The Land Act’s purpose is “to ascertain and settle the private land claims in California.” Id. The lower court instructed the jury as follows: First. It is made my duty to construe the written instruments received in evidence in this case, and to declare their legal effect. I therefore instruct you that the documents, plaintiff’s Exhibits A and B, and the acts evidenced thereby under the Mexican law in force at the time they were made, constituted a perfect grant, and operated to vest in the grantees therein named all the right, title, and interest of the Mexican government. They vested as much title under the laws of Mexico in the grantee as does a patent from the United States to the patentee under our system of government. Second. The title to the land by grant from Mexico being perfect at the time of the acquisition of California by the United States, the grantee was not compelled to submit the same for confirmation to the board of commissioners, established by the act of congress of March 3, 1851, nor did the grantee,

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See, e.g., Jane Mayer, Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right (2016); C. Wright Mills, The Power Elite (Oxford Univ. Press ed. 2000); Nomi Prins, All the President’s Bankers: The Hidden Alliances that Drive American Power (2014).

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Botiller v. Dominguez Nemecio Dominguez, forfeit the land described in the grant by a failure to present his claim for confirmation before said board of commissioners, and the title so acquired by the grantee may be asserted by him or his successor in interest in the courts of this country.

Botiller objected to these instructions. Judgment was rendered for Dominga Dominguez, which the California Supreme Court affirmed. Dominguez, 74 Cal. at 459. Botiller appealed to this Court and specifically argues, “The court erred in holding that under the said act of congress of March 3, 1851, it was not necessary for each and every person claiming lands in California by virtue of any right or title derived from the Spanish or Mexican governments to present such claim to the board of land commissioners appointed under said act.” Dominguez counters that the tract in question was not available for public distribution because it is her private property, with its origins demonstrated and proven under the colonization laws of Mexico. Accordingly, presenting proof of title to the Board of Land Commissioners was not required. We agree. The trial court, citing Phelan v. Poyoreno, 74 Cal. 448 (1887), a California Supreme Court case, correctly held that Dominga Dominguez’s predecessors in interest had acquired a perfect title under the Mexican law before the acquisition of California and other northern Mexican territories by the United States and that the failure to present the grant for confirmation to the Board of Land Commissioners did not invalidate or otherwise affect her title. In Phelan, the court correctly ruled that grantees holding perfect title were “not compelled to submit them for confirmation . . . nor did they forfeit their lands by a failure to present them.” Id. The courts below have considered this case with much attention, and for the reasons set forth by those courts and for the reasons set forth below, this Court agrees with Dominguez that no submission to the Board of Land Commissioners was required and thus, we, affirm. This Court appreciates that numerous rights to land in California will be impacted by this Court’s ruling and that the principles and precepts set forth herein are critically important not only to Dominguez, but also to the broader public. We also recognize that this decision in favor of Dominguez’s rights supports the “honor and good faith of the government of the United States” in its treaties. See United States v. Percheman, 32 U.S. 51, 62 (1833). Moreover, an extensive legal history obligates affirming Dominguez’s ownership rights in the tract of land at issue. We cannot impugn established constitutional law, and, for the reasons set forth below, we agree with Dominga Domínguez that no presentation was required by the Land Act. To rule otherwise would breach fidelity to the Constitution which declares treaties the law of the land and which binds “Judges in every

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State.” See U.S. Const. art. VI, cl. 2; Soulard v. United States, 29 U.S. 511, 513 (1830). This Court’s primary rationale for affirming Dominguez’s rights to the property is based on the solemn promises made in the Treaty of Guadalupe Hidalgo to protect the property interests of Mexican grantees as if the same belonged to all other citizens of the United States. Treaty of Guadalupe Hidalgo, Feb. 2, 1848, 9 Stat. 922. Ruling otherwise would render treaty law at risk to misinterpretations of state courts that could overturn ownership property rights absent definitive proof “validating” the ownership rights of the former Mexican grantees. Such court misinterpretations would place titleholders in a double bind in that, although holding perfect title to their property, squatter actions would subject them to the vagaries of disparate court rulings against trespassers in the conquered territories. Beard v. Federy, 70 U.S. 478, 491–492 (1865). Furthermore, the denial of titleholders’ rights to their property would be difficult to reconcile with the entrenched legal principles that protect private property in the United States and a property owner’s right to exclude. Therefore, this Court agrees that landholders with perfect title are not required to submit proof of their rights to the Board of Land Commissioners under the Land Act. This proposition is fully consistent with, and supported by, cases decided by the Supreme Court of California. Minturn v. Brower, 24 Cal. 644, 668 (1864); Banks v. Moreno, 39 Cal. 233, 237 (1870); Stevenson v. Bennett, 35 Cal. 424, 431 (1868); Steinback v. Moore, 30 Cal. 498, 507 (1866); Seale v. Ford, 29 Cal. 104, 107 (1865).

i In determining Dominguez’s property rights, this Court takes into account the distinction between women’s legal status and rights to property under the civil law system in the former Mexican territories and women’s legal status and rights to property under the common law system of the United States. Dominguez, a former Mexican citizen residing in newly acquired California, had, at the time the Mexican territories were acquired by the United States, a perfect title to a tract of land within those territories now part of the State of California. Dominguez had inherited Rancho Las Virgenes from her father, Apolonio Dominguez. Her father was a mesne titleholder, having acquired title to the property from Nemecio Dominguez and Domingo Carrillo, to whom the government of Mexico had granted title on October 1, 1834. This Court takes judicial notice of the laws of Mexico and its grants of land in its northernmost territories. See United States v. Perot, 98 U.S. 428, 430 (1878); Fremont v. United States, 58 U.S. 542, 543 (1854); United States v. Turner, 52 U.S. 663, 665 (1850).

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The civil law legal systems of Spain and Mexico recognize the legal identity of women. Under both the antecedent laws of Spain and the Mexican colonization law, women were permitted to own land in fee simple independent of any male relationship. California gained statehood in 1850. California’s first constitution borrowed the antecedent law of community property from the former Mexican provinces. It recognizes not only a husband’s rights but also a wife’s rights to property. See Cal. Const. art. XI, § 14. Under these recognized legal rights, women could not only petition for property, but also could inherit and control property independent of any male relationships. See Peralta v. United States, 70 U.S. 434, 435 (1865). This Court is further cognizant that numerous women not only were recognized owners of property under Mexican law, but also were managers of those interests and of rural enterprises of varying sizes throughout the ceded territories. See, e.g., United States v. Rodriguez, 27 F. Cas. 883 (N.D. Cal. 1855) (No. 16,184) (María Concepción Valencia de Rodriguez and her Rancho San Francisquito); United States v. Briones, 24 F. Cas. 1238 (N.D. Cal. 1855) (No. 14,649) (Juana Briones and Rancho La Purisima Concepcíon); United States v. Ortega, 27 F.Cas. 358 (N.D. Cal. 1856) (No. 15,970) (María Clara and María Isabel Ortega and their Rancho San Ysidro). In marked contrast to Mexican law, under the common law system, women lacked a legal identity and thereby confronted a legal disability that blocked equal property ownership standing with their male counterparts. This legal disability under the common law precluded women from maintaining an action in law without a male serving as next of friend in actions defending their property or liberty. See, e.g., Choteau v. Marguerite, A Woman of Colour, 37 U.S. 507, 509 (1838). We are aware of this Court unfortunately characterizing those from the former Mexican territories as “simple” and “ignorant” for failing to defend their property interests. United States v. Galbraith, 63 U.S. 89, 92 (1859). Today, we reject such labels. As several cases illustrate, women grantees from the former Mexican territories have not hesitated to defend their property interests despite the difficulty in presenting their claims before the Board of Land Commissioners. See, e.g., Peralta, 70 U.S. at 434–435. The actions of women grantees in United States courts demonstrate they were neither “simple” nor “ignorant” (id.). Indeed, cases where women defended their property interests furnish positive and indisputable proof of the women’s capacity to litigate their landholder claims. See, e.g., United States v. Widow and Heirs of Berreyesa, 64 U.S. 499 (1859); Rodriguez, 27 F. Cas. at 883; United States v. Castro, 25 F. Cas. 329 (N.D. Cal. 1855) (No. 14,752) (Rufina Castro); United States v. Bernal, 24 F. Cas. 1123 (N.D. Cal. 1855) (No. 14,581) (Carmen

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Bernal); Briones, 24 F. Cas. at 1238 (Juana Briones). Because of the complexities from disparate court rulings where ownership claims by non-Mexicans succeeded, the women in the cases cited above opted to present their claims of ownership status through the process described in the Land Act.

ii Dominguez is confronting countless alleged homesteaders who claim title to tracts situated within the boundaries of her Rancho Las Virgenes. Dominguez, 74 Cal. 457. This is not an uncommon occurrence in California, as witnessed in this case and throughout the former Mexican territories in which other landholders have confronted trespassers on their property. Stemming from conflicting federal statutes that encourage homesteaders with claims of industry, state courts would deny grantees’ claims of ownership for not submitting their evidence and deeds before the Board of Land Commissioners. Homesteaders accordingly settled on the trespassed lands without restraint or regard to the feeholders in interest. When California achieved statehood, its wide expansive regions presented conflicts for innumerable grantees. Subsequent to the United States army taking possession of California, the discovery of gold along with other precious metals compounded matters when California incurred a relentless army of newcomers to the area. See Peralta, 70 U.S. at 439. Indeed, the first land grant case to be heard before this Court was Fremont v. United States, where the tract at issue “coincidentally” contained minerals and gold encompassing inestimable wealth. 58 U.S. at 565. Ranchers and settlers from outside of the area further joined the immeasurable miners that rushed into the region targeting the property interests and holdings of the Mexican landholders. In this case, Botiller had settled upon parcels or tracts of land situated within the territorial limits of Rancho Las Virgenes. Asserting that the tracts were in the public domain of the United States, Botiller argues they were not only in possession but had improved and cultivated the tracts as preemption or homestead settlers. Public domain land includes lands that are subject to sale and disposition under the general land laws of the United States. Newhall v. Sanger, 92 U.S. 761 (1875). The United States has, in fact, through legislation and case law emphasized and promoted the purported conscientiousness of homesteaders achieving the nation’s goals of bringing industry to the newly annexed territories. See Homestead Act. Yet, this Court is also aware that such legislation further advanced the mischaracterization of so-called settlers when challenging land grantees without restraint, see Peralta, 70 U.S. at 439, the assertions

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of such settlers of need for protection, and the aggressive lobbying of such settlers for the nation to protect their interests against those of the rights of the grantees who such settlers argued had to prove the validity of their grants. Federal courts have acknowledged a dubious record in deciding disputes between landowners and possessors in interest under Mexican law and settlers from other regions in the United States. Settlers, miners, and veterans who aided in the conquest of the Mexican northern territories induced land fever in their demands for land. United States v. San Jacinto Tin Company addressed the subject: Those familiar with the notorious public history of land titles in this state need not be told that our people coming from the states east of the Rocky mountains very generally denied the validity of Spanish grants, and their proper limits or location, and, determining the rights of the holders for themselves, selected tracts of land wherever it suited their purpose, without regard to the claims and actual occupation of holders under Mexican grants, . . .

23 F. 279, 295 (C.C.D. Cal. 1885). Moreover, homesteaders, along with others seeking access to land, did not recognize the property rights or interests of the grantees. The decision in San Jacinto Tin Company further proceeds to explain the actions of those seeking land at the expense of the Mexican landholders: Many of the older, best-authenticated, and most-desirable grants in the state were thus, more or less, covered by trespassing settlers. When the claims of Mexican grantees came to be presented for confirmation, these settlers aided the United States; the most formidable opposition usually coming from them, first, to the confirmation of the grants, on every imaginable ground, . . .

Id. Botiller’s claim shows they are trying to create a diversion where they first claim they are “settlers” seeking the protection of this Court. Botiller further cites the Treaty of Guadalupe Hidalgo in seeking protection from “savage Indians” as to why it is necessary for them to allegedly establish as small farmers in California. This shocks the conscience of this Court, as it blatantly conflicts with the Mexican land acts in which Dominguez and other petitioners complied in their petition for land from Mexico. First, Spain and Mexico encouraged settlements in the provinces to not only accrue revenue, but also to protect against lamentably characterized “savage Indians.” Botiller is correct that the Treaty of Guadalupe Hidalgo does include such language. Treaty of Guadalupe Hidalgo, art. XI. Yet, the terminology in that covenant encouraging settlements refers to unsettled domains and not the provinces in which Dominguez held established rural

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property. The predicate to land ownership in the provinces, moreover, shows Mexican land acts included a provision that no harm was to befall Indians in land petitions. Second, we further underscore the well-known fact that many homesteaders were not small farmers, but professional land jumpers chasing many of the established properties of grantees for wealthier ranchers seeking access to more land for their cattle. The above is further compounded by the claims of those who had previously emigrated to the Mexican territories and then aided in the conquest of the ceded territories. See, e.g., United States v. Reading, 59 U.S. 1, 5 (1855) (reporting on the role of John Augustus Sutter in the conquest, notwithstanding his promises to Mexico when he petitioned for land in California). We are unable to ignore these antecedents and the land fever afflicting the state and landholders that Dominga Dominguez confronts in this case. This Court, nonetheless, is further obligated to address the congressional enactment of the Land Act, which imposed on grantees the burden of proving the validity of their claims of ownership, subsequent to the Treaty of Guadalupe Hidalgo’s ratification. As this Court acknowledges, at the onset, the Land Act shifted the burden of proof of ownership that the Treaty of Guadalupe Hidalgo sought to protect. This Court further recognizes that, once California achieved statehood, it became necessary to establish the public domain separate and apart from the acreage of private landholders. On March 3, 1851, Congress passed the Land Act to ascertain and settle the private land claims in the state of California. In his attempt to elevate the Land Act over the Treaty of Guadalupe Hidalgo, Botiller summarily argues that the court below erred in its jury instructions. We thereby enumerate the relevant sections of the Land Act Botiller argues in his claim against Dominguez, where he asserts she was obligated to submit her claim of ownership over the real property at issue. Section 1 of the Land Act provides That, for the purpose of ascertaining and settling private land claims in the state of California, a commission shall be, and is hereby, constituted, which shall consist of three commissioners, . . .

Section 8 of the Land Act provides That each and every person claiming lands in California by virtue of any right of title derived from the Spanish or Mexican government shall present the same to the said commissioners, when sitting as a board, together with such documentary evidence and testimony of witnesses as the said claimant relies upon in support of such claims; and it shall be the duty of the commissioners, when the case is ready for hearing, to proceed promptly to examine the same

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upon evidence, and upon the evidence produced in behalf of the United States, and to decide upon the validity of the said claim, . . .

Section 11 provides further guidance: That the commissioners herein provided for, and the district and supreme courts, in deciding on the validity of any claim brought before them under the provisions of this act, shall be governed by the treaty of Guadalupe Hidalgo, the law of nations, the laws, usages, and customs of the government from which the claim is derived, the principle of equity, and the decisions of the Supreme Court of the United States as far as they are applicable.

Section 13 declares That all lands, the claims to which have been finally rejected by the commissioners in manner herein provided, or which shall be finally decided to be invalid by the district or supreme court; and all lands, the claims to which shall not have been presented to the said commissioners within two years after the date of this act, shall be deemed, held, and considered as part of the public domain of the United States; and for all claims finally confirmed by the said commissioners, or by the said District or Supreme Court, a patent shall issue to the claimant upon his presenting to the general land office an authentic certificate of such confirmation, and a plat or survey of the said land, duly certified and approved by the surveyor general of California, whose duty it shall be to cause all private claims which shall be finally confirmed to be accurately surveyed, and to furnish plats of the same . . .

Section 15 provides That the final decrees rendered by the said commissioners, or by the District or Supreme Court of the United States, or any patent to be issued under this act, shall be conclusive between the United States and the said claimants only, and shall not affect the interests of third persons.

This Court rejects Botiller’s emphasis on the Land Act and declares with great force that the property at issue is not public domain land, but comprises private property and thus is protected by the laws of the nation. Soulard enlightens on this point by its ruling that declared, “Even if the treaty by which Louisiana was acquired had not contained stipulation by the United States that the inhabitants of the ceded territory should be protected in the free enjoyment of their property, the United States as a just nation would have held that principle equally sacred.” 29 U.S. at 511. Dominguez’s property thus cannot be subject to distribution.

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Botiller is furthermore misguided in relying on the Land Act. Extensive case law illustrates numerous difficulties and the inherent conflicts that continue to plague the Land Act, its purported application, and, ultimately, the grantees as in this instant case. Shielding Dominguez from the above claims of homesteading requires consideration of the parallel statute that applied to the earlier Florida and Louisiana land grant periods. See Percheman, 32 U.S. at 67. The California land grant procedures were modeled after the Florida land grant procedures at issue in Percheman. That earlier land grant legislation contained some favorable covenants that protected landholders that were omitted from the subsequently enacted California Land Act. This Court has observed that such omissions have accelerated litigation challenging the land grantees in California as in the instant case. We thereby agree with Chief Justice Marshall’s Percheman ruling where he rejected the arguments of then United States Attorney General Roger B. Taney, and which bears relevancy in this case. Taney, who thereafter became the Chief Justice of this Court, was able to resurface in his Fremont decision the objections he had made as attorney general against the grantee in Percheman. As a Justice of this Court, Taney authored the first Supreme Court ruling on California land grants and set a framework of conflicting jurisprudential “norms.” See Fremont, 58 U.S. at 543. In Fremont, Chief Justice Taney specifically veered away from this Court’s reasoning in Percheman and its emphasis on international law, disregarded the Constitution, and left the Treaty of Guadalupe Hidalgo at risk of subsequent misinterpretations of federal and state-directed litigation. In the Fremont ruling, Chief Justice Taney ignored the Treaty’s Supremacy Clause-linked protections and, in the process, allowed an individual who had not comported with the Mexican colonization land laws to have ownership of vast acreage with tremendous minerals and gold in California. Id. at 558. This disregard and omission of constitutional law and theory further stymies this Court when contemplated against the original intent constitutional interpretation Chief Justice Taney demanded in the wrongfully decided Dred Scott case. See Scott v. Sandford, 60 U.S. (19 How.) 393, 403–404 (1857). Specifically, in Scott, Chief Justice Taney held fidelity to the Constitution paramount. Id. at 424. In unjustly denying citizenship status to the Plaintiff Dred Scott, Chief Justice Taney stressed with great force that the Constitution did not apply to Scott’s claims. Id. Chief Justice Taney, moreover, emphasized that he would not impart a “more liberal construction in [plaintiff’s] favor” and further asserted that “[i]f any of its provisions are deemed unjust there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at

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the time of its adoption.” Id. at 426. Chief Justice Taney further expounded that to change the Constitution’s intent and meaning would “abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day.” Id. He then summed up his rationale by declaring that “[t]his court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty.” Id. We reject this analysis. Moreover, Chief Justice Taney, in fact, did react and yield to the popular opinion or passion of the day when he granted Captain John Fremont property of inestimable worth. Fremont, 58 U.S. at 565. Fremont’s claim of a tract in the former Mexican provinces was one of the first cases decided by the district court on appeal from the Board of Land Commissioners and announced the “principles by which this class of cases was to be decided.” United States v. Cambuston, 25 F. Cas. 266, 273 (D. Cal. 1859) (No. 14,713) (citing Fremont, 58 U.S. at 552). Fremont, however, had not followed the land grant laws of Mexico. Fremont, 58 U.S. at 552. Accordingly, in Fremont, Chief Justice Taney ignored the so-called obligation to “not falter in the path of duty” in allegedly comporting with his original intent interpretation of the Constitution, but ultimately, he directly rewarded Fremont for aiding in the conquest of the former Mexican provinces. Chief Justice Taney’s rationale in Fremont is difficult to reconcile with the rigidity of the Scott purported constitutionally directed reasoning and ruling. Scott, 60 U.S. at 426. These rulings are inconsistent in the interpretation of the Constitution’s intent and purpose and also reveal contradictory precepts on how property laws are viewed under the common law. In Fremont, Chief Justice Taney held meaningless the property laws of both Mexico and the United States that were to govern the land grant process. Ultimately, Chief Justice Taney demonstrates potential bias against anyone other than citizens of European descent. This bias is particularly noticeable in claims by non-European women. In Peralta, for example, the Court acknowledged proof of Señora Peralta’s petition and the process for land ownership under the land laws of Mexico. 70 U.S. at 435. The Peralta opinion also informs that “Señora Peralta, mother of the petitioner, belonged, it was said, to a well known and good family, and was a native of the region, with a perfectly fair character.” Id. at 434–435. Notwithstanding documentary and witness testimony of evidence of ownership dating from Teodora Peralta’s 1846 petition to the Mexican government, María de Valencia and Teodora’s other daughters, however, lost their ongoing claim for recognition as titleholders. Id. Peralta’s claim of ownership is irreconcilable with the Fremont decision favoring Captain Fremont’s claims of title to lands, absent definitive proof of

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legal descriptions in deeds or other recording documents required under Mexican land laws. Fremont, moreover, “lost” many of the grantee deeds that thereafter disallowed many non-European grantees to prove the validity of their claims. See Cambuston, 25 F. Cas. at 267. The Fremont decision proved highly detrimental to the grantees and set into force a trajectory of claims of so-called homesteaders flooding the lands of Mexican grantees through challenges expedited by the Land Act. It further advanced Botiller’s claims of settling in the so-called public domain because of the perceived failure of Dominguez to present her claim before the Board of Land Commissioners. We are, nonetheless, dissuaded from ignoring the Land Act and its application to Dominguez. In analyzing the Land Act, this Court is cognizant, first, of the haphazard nature of the Board of Land Commissioners and its determinations. The Board of Land Commissioners lacks status under article III of the Constitution, and thus constitutes merely a board of inquiry. This deficiency, which grantees directly confronted, precludes the stability and framework of judicial enactments and rulings directed by constitutional status jurists. Second, the composition of the Board of Land Commissioners promotes unending inconsistencies by its ever-revolving members at any given time. This is further compounded by the role of the United States Attorney Generals who also change by the political process. Third, we are moreover critically aware that the Land Act shifts the burden of proof onto grantees in contradiction of the Treaty’s promises and the declarations of the various senators and Secretary of State James Buchanan during the Treaty’s ratification. Fourth, this Court recognizes that the evidentiary standards were in conflict with the laws of Mexico and that language barriers prevent fairness and due process. Fifth, and even more critically, the Board of Land Commissioners lacks the requisite skills to interpret deed-granting documents written in Spanish. Long ago, Chief Justice Marshall wisely ruled that both the Spanish and English versions of treaties should be read together in light of mistranslations of the Spanish into English. Percheman, 32 U.S. at 52. This Court has yet to see this transpire in the case at hand and other cases challenging ownership status. This Court takes notice of what the Land Act has accomplished. Specifically, the Fremont decision and disregard of Percheman have introduced a realm of claims exposed to jurisprudential instability and the political influences of the day. Long ago, Percheman noted “[t]hat people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other, and their rights to property, remain undisturbed.” Id. at 87. Yet, even under the common law, the grantees did not benefit from res judicata in such in rem proceedings as section 15 of the Land Act authorizes. This Court can see no

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justification for the expense placed on landholders to prove what the United States promised to protect. As Secretary of State Buchanan stated during the Treaty’s ratification long ago, all the “blessings of American law” were declared to protect landholders. S. Exec. Doc. No. 7, 30 Cong., 1 Sess. (1847–1848). Accordingly, Dominguez was not obligated to present her title to her property to the Board of Land Commissioners and ultimately did not yield her property to the public domain for her purported failure to do so. Nonetheless, addressing the issue of whether Dominguez was obligated to follow the dictates of the Land Act requires consideration of the peace agreement that terminated the war between the two republics, the United States and Mexico, as discussed below. We particularly focus on the treaty covenants that promised to protect the real property interests of landowners, such as Dominguez and other similarly situated grantees.

iii Prior to the Treaty of Guadalupe Hidalgo, the United States army had taken possession of the California region during the war in 1846. In Fremont, this Court observed that “civil war broke out . . . which ended by the expulsion of the Mexican troops . . . and [California] continued to be so held until it was finally ceded to the United States under the Treaty of Guadalupe Hidalgo.” 58 U.S. at 562. When the Treaty was signed, “the authority and jurisdiction of Mexican officials [in California] are considered as having terminated.” See Hornsby v. United States, 77 U.S. 224, 239 (1869). The Treaty of Guadalupe Hidalgo not only terminated the war between the United States and Mexico, but also extended protections to those choosing to remain in the conquered territories. Treaty of Guadalupe Hidalgo, art. VIII. Under the Treaty of Guadalupe Hidalgo, the United States and Mexico agreed not only to peace, but also to the cession of a large and significant territory to the United States. Throughout the newly acquired regions, numerous Indian, Spanish, and Mexican landholders possessed, occupied, and operated successful agricultural enterprises. Dominguez correctly argues that the Treaty of Guadalupe Hidalgo covenanted to preserve and protect the rights of property held by the former Mexican citizens in the ceded territories. See Treaty of Guadalupe Hidalgo, art. VIII. The major defining purpose of the Treaty of Guadalupe Hidalgo concretely informs this Court that the United States promised to protect the property and liberty interests of Mexican grantees. We agree with Dominguez that the Treaty of Guadalupe Hidalgo preserved the interests in, and rights to, property then held by Mexican citizens in the ceded territory.

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Specifically, the Treaty of Guadalupe Hidalgo not only served to “end the calamities of the war,” but its covenants further acknowledged the presence of those choosing to remain on their property, and additionally provided that they would be “retaining the property which they possess in the said territories, or disposing thereof, and removing the proceeds wherever they please, without their being subjected, on this account, to any contribution, tax, or charge whatever.” Id. Furthermore, the Treaty of Guadalupe Hidalgo covenants to protect on equal grounding the grantees as all other citizens of the United States and expressly declares, [i]n the said territories, property of every kind, now belonging to Mexicans . . . shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it guarantees equally ample as if the same belonged to citizens of the United States.

Id. To rule that Dominguez was not protected by the Treaty of Guadalupe Hidalgo would render an injustice against her demonstrated right to ownership. It would further deny the Treaty of Guadalupe Hidalgo’s guarantees of protecting rights “as if the same belonged to [all] citizens of the United States.” Id. Betrayal of these solemn promises would, in due course, create a separate class of citizens that would be unable to rely on the principles that guide treaty law and otherwise breach the protection of constitutional law principles and legal precepts. We cannot, and are not, at liberty to reject established and followed legal antecedents and principles that are aligned with that which the Treaty of Guadalupe Hidalgo seeks to protect. To reverse the decision below of the Supreme Court of California recognizing Dominguez’s perfected property interest would deny Dominguez not only her property, but also the intended protections of the Treaty. Dominguez ultimately asserts that the law of nations, the Constitution, and case law protect her rights to her property, which she held in fee simple ownership. Accordingly, her property was not forfeited to the public domain even though she did not submit proof of her perfected title before the Board of Land Commissioners. See Phelan, 74 Cal. at 448. Some members of this Court, in their dissenting opinion, nonetheless state: We are unable to see any injustice, any want of constitutional power, or any violation of the treaty, in the means by which the United States undertook to separate the lands in which it held the proprietary interest from those which belonged, either equitably or by a strict legal title, to private persons.

We do not agree with our dissenting Justices.

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Fidelity to constitutional law obligates that treaties are supreme law of the land and directs courts to give them effect: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.

U.S. Const. art VI, cl. 2. In our interpretation of the Constitution and the Treaty of Guadalupe Hidalgo, this Court adheres to Chief Justice Marshall’s earlier ruling in Percheman that private property remains private subsequent to a conquest and that treaties are to be read in their entirety. 32 U.S. at 51–52. The Percheman ruling anchors treaties and this Court to the Constitution. Id. See also Whitney v. Robertson, 124 U.S. 190, 194 (1888). In the Percheman opinion, Chief Justice Marshall further asserted that the history of the negotiation of the applicable treaty was critical in reviewing the case at issue. 32 U.S. at 78. Applying this analysis mandates perusal of the history of the negotiation of the Treaty of Guadalupe Hidalgo in the instant case. This Court is cognizant of the pre-ratification debate of the Treaty of Guadalupe Hidalgo and the assertions of Secretary of State Buchanan who declared, “The present Treaty provides amply and specifically . . . for the security of property of every kind belonging to Mexicans.” S. Exec. Doc. No. 7, 30 Cong., 1 Sess. (1847–1848). Secretary of State Buchanan additionally declared, And here it may be worthy of observation that if no stipulation whatever were contained in the Treaty to secure to the Mexican inhabitants and all others protection in the free enjoyment of their liberty, property and the religion which they profess, these would be amply guaranteed by the Constitution and laws of the United States. These invaluable blessings, under our form of Government, do not result from Treaty stipulations, but from the very nature and character of our institutions.

Id. See also United States v. Yorba, 68 U.S. 412, 414 (1863). The above history and case law recognize that the intent of the Treaty of Guadalupe Hidalgo is to situate Dominguez on the “same footing as [all] citizens of the United States.” Congress cannot constitutionally, by an enactment, dispossess a citizen of her lawful estate, and despoil the Treaty of Guadalupe Hidalgo with a subsequent act of Congress without betraying the Treaty’s intent. This constitutional doctrine on treaties, moreover, has been applied in earlier land grant cases and should apply in the case at hand. Chief Justice Marshall, in his ruling in Foster v. Neilson, declared that a treaty may operate

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of “itself without the aid of any legislative provision.” 27 U.S. 253, 254 (1829) (overruled in part). In the instant case, the Treaty of Guadalupe Hidalgo is self-executing and does not require additional legislation to expedite the legal rights of property ownership. As such, construing the Land Act to require Dominguez to prove title before the Board of Land Commissioners as Botiller so vehemently argues would contravene the self-executing effect of and the protections intended by the Treaty of Guadalupe Hidalgo for grantees who have perfect title, such as Dominguez. The Treaty moreover declares that in the enjoyment of their property interests grantees “would not be subjected on this account, to any contribution, tax, or charge whatever.” Treaty of Guadalupe Hidalgo, art. VIII. We disagree with Botiller’s argument. The enactment of the Land Act on March 3, 1851, “could not effect a change of proprietorship in and to perfect legal titles to lands vested in private individuals, under the laws of the former sovereign, nor was it so intended.” Minturn, 24 Cal. at 646. We hold that Dominguez is protected by the law of nations, treaty stipulations, and constitutional guarantees. This Court has long recognized that “[e]ven in cases of conquest, the conqueror does no more than displace the sovereign, and assume dominion over the country.” Strother v. Lucas, 37 U.S. 410, 411 (1838). In Percheman, Chief Justice Marshall noted that “if private property should be generally confiscated, and private rights annulled,” a “sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged.” Id. at 87. In this case, Dominguez’s title was perfect and needed no confirmation through an act of Congress or judicial decree. As Chief Justice Marshall aptly noted in Percheman, “[a] cession of territory is never understood to be a cession of the property belonging to its inhabitants. The king cedes that only which belonged to him; lands he had previously granted, were not his to cede.” Id. This comports with our principles of property law that a grantor cannot convey more than a grantor holds. By the Treaty of Guadalupe Hidalgo, the United States acquired no lands in California to which any person had lawfully obtained such a right by perfect title. Thus, Dominguez retained her perfect title to Rancho las Virgenes. Moreover, the Land Act could not effect a change to Dominguez’s title. Just last year, in Whitney, this Court provided guidance on how to reconcile treaties and congressional legislation given that both are supreme law of the land. 124 U.S. at 194. This Court noted that, pursuant to the Constitution, “a treaty is placed on the same footing, and made of like obligation, with an act of legislation” and “no superior efficacy is given to either over the other.” Id. In order to respect the supremacy of both, this Court admonished in Whitney that when a self-executing treaty and a statute “relate to the same subject, the

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courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either.” Id. (emphasis added). In the instant case, it is clear that this Court can give effect to both the Treaty of Guadalupe Hidalgo and the Land Act “without violating the language of either.” In fact, the California Supreme Court has given us a roadmap for such a harmonious reading. In Minturn, the California Supreme Court was faced with the very issue of determining whether a landowner with perfect title was required to present a claim to the Board of Land Commissioners to retain title. 24 Cal. at 659. In an extensively detailed analysis of the terms of the Treaty of Guadalupe Hidalgo and of language in the Land Act, the Minturn court determined that the soundest reading of both would be to view the Land Act requirements as applying to inchoate or imperfect titles, but not to perfect titles. Id. at 671–672. This harmonious interpretation of the Treaty of Guadalupe Hidalgo and the Land Act was recently reaffirmed by the California Supreme Court in Phelan. 74 Cal. at 452. The Phelan court relied on the “able and exhaustive opinion” in Minturn and noted that it held in substance the following: 1. That Mexicans who, previous to the acquisition of California by the United States, had acquired from the governments of either Spain or Mexico a perfect title to lands in California, and who chose to remain in the acquired territory, were by the treaty of Guadalupe Hidalgo protected in the ownership and enjoyment of their lands the same as though no change of sovereignty had occurred. 2. That persons whose titles to lands were perfect at the time of the acquisition of California by the United States were not compelled to submit them for confirmation to the board of commissioners appointed under the act of Congress of March 3, 1851, nor did they forfeit their lands by a failure to present them to such board for confirmation, and that the titles thus vested may be asserted and maintained like other perfect titles in the courts of the country. 3. That holders of titles to lands in the ceded territory which were perfect at the date of the treaty could, if they so elected, present them to the commission for confirmation, but were not bound to do so. Id. (citing Minturn, 24 Cal. at 644). To conform with this Court’s precedent in Whitney admonishing us to read treaties and statutes harmoniously, we are compelled to follow the guidance so aptly described in Minturn and Phelan. As such, Dominguez, who held perfect title, was not compelled to submit proof of her title for confirmation to the Board of Land Commissioners appointed under the Land Act, nor were her property interests forfeited by a

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perceived failure to present them to the Board for confirmation. Even more so, and not unlike other grantees holding perfect property titles, she could thereby assert actions in law. This is what Dominguez is seeking when she charges the Botiller “homesteaders” as trespassers on her long-held property. By following the legal antecedents, law, and process, this Court does not repudiate the Treaty of Guadalupe Hidalgo and redefine new rules that would disallow the former Mexican grantees the protections the Constitution covenants to all in the ceded territories. This Court has long held that legal remedies as expressed in constitutional, legislative, and court rulings protect against injuries to the interests of a feeholder as applicable to this case. Accordingly, the Treaty of Guadalupe Hidalgo’s legislative history does not support Botiller’s arguments and assertions. The subsequent Land Act demanding proof of validity of ownership must yield to this extensive legal and legislative history for grantees with perfect title.

iv The legal precedents of this case highlight Dominguez’s assertions as emphasized in the lower court’s decision. More specifically, she is correct that as a perfect titleholder of real property in fee simple she was not required to present her claim of ownership before the Board of Land Commissioners. See Phelan, 74 Cal. at 452. Further, Minturn, on which the Phelan court relies, reveals this interpretation for perfect titleholders was very carefully, thoroughly, and elaborately analyzed by the court. Minturn, 24 Cal. at 669. The doctrine there laid down that it was not the intent of the Land Act for the settlement of private land claims in California to require persons holding perfect titles to lands in California to present them to the Board of Land Commissioners provided for by the Land Act for confirmation. Minturn, and as followed by the court in Phelan, holds that property holders with perfect title were not required to present their titles for confirmation, under the penalty of forfeiture of their titles for failure to present them, and would be sustainable upon well-recognized principles of constitutional law. Minturn reminds this Court that those principles are not isolated from other cases involving foreign governments. Ultimately, this Court is not at liberty to deny Dominguez and similarly situated women, who have demonstrated the industry and economic success of their agricultural landholdings, the protections of the solemn promises of the peace agreement between the United States and Mexico. This legal course thereby obligates this Court to affirm the ruling below. It is accordingly so ordered.

6 Commentary on Pierson v. Post jill m. fraley

Pierson v. Post addressed the ownership of a fox where one party began the process of capturing the fox, but encountered another party who interrupted the pursuit and killed the fox.1 The chase occurred on the beach, which the court labeled as a wasteland, meaning that the fox was not considered a part of anyone’s private land claim. The original opinion centers on the process by which a person may acquire a first right of ownership. The parties agreed that ownership of a wild animal results only from establishing occupancy – otherwise known as first possession. The question before the court, then, became what acts properly establish occupancy or possession.

original opinion of pierson v. post and the property curriculum Pierson v. Post stands as more than a perennial favorite of law professors and students. The case holds a unique position – an iconic one – in the history of teaching and studying property law in the United States.2 Additionally, because the case addresses the moment of acquisition, which is fundamental to the validity of property rights, law students often encounter this case at the very beginning of their law school studies.3 In this beginning examination of property law, Pierson provides an extremely high-stakes encounter with the legal system: the rightful acquisition of title to property establishes the root of 1

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Pierson v. Post, 3 Cai. R. 175 (N.Y. Sup. Ct. 1805). The New York Supreme Court of Judicature was the highest court in New York at the time the case was decided. Stuart Banner, 21st Century Fox: Pierson v. Post, Then and Now, 27 Law. & Hist. Rev. 185, 185– 188 (2009) (addressing the importance of the case and describing the case as an “icon of legal education”). See, e.g., Josh Blackman, Outfoxed: Pierson v. Post and the Natural Law, 51 Am. J. Legal Hist. 417, 417 (2011) (noting the case is one of the first law students generally read).

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the entire system. Pierson, however, entirely ignores the central question of why possession or occupation should create good title.4 As a result, Pierson is one of the first moments when a student either begins to accept as established wisdom the words of long-dead judges or, alternatively, begins to study the system of law with an attitude of skeptical inquiry.

introducing the feminist dissent As the case was written – ignoring the fundamental question of why possession should matter – the majority opinion of the New York Supreme Court of Judicature does not provide the law student with assistance in questioning the rationale for title. As it was written, the majority opinion is an invitation to accept, rather than to question, fundamental principles underlying our system. For this reason, a revised opinion to Pierson provides a unique opportunity to engage students in the truly critical questions. In her feminist rewritten opinion, Professor Angela Fernandez, writing as Justice Fernandez, dissents. Fernandez’s dissent takes issue with the majority, skipping any justification of first possession as creating acquisition rights. She questions the categorization of the beach as a wasteland and explains the value the land provides. She also notes that the majority never considered the possibility of the fox owning him or herself. Fernandez rejects the abstract discussion of the fox without any concern for its own voice, rights, or welfare. For the fox, she speaks of citizenship, belonging, voice, self-ownership, and freedom from institutionalized violence. When referring to the fox, Fernandez centers the fox’s identity by using the proper noun “Fox.” Her perspective here reveals her vision of what is important for law to recognize for the vindication of rights for historically disenfranchised groups, including women and all nonhuman animals.

first possession and the feminist perspective In many ways, it is not at all surprising that the majority opinion in Pierson would neglect any justification of first-possession rules. Common law decisions regularly accept possession as the “origin of property,” rather than

4

Cf. Richard A. Epstein, Possession as the Root of Title, 13 Ga. L. Rev. 1221, 1225 (1979) (“The large question [in Pierson] – why is first possession sufficient to support a claim for ownership – received no consideration at all.”).

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questioning it.5 Much of the first-possession reasoning emerged within the colonial context. In a complex scheme of international relations and little international law, the British argument for possession won out among other competing justifications such as ceremony, discovery, and conquest.6 As settlement continued in North America, the American legal tradition continued the British focus on possession, and first possession remains the primary legal narrative in terms of the rightful acquisition of property.7 Much of modern American property theory continues to accept the first possession approach – albeit with occasional critiques.8 Economic approaches continue to explicitly favor the first possession approach due to its efficiency in terms of both rewarding labor expenditures and actively promoting the maximum use of resources.9 From the feminist perspective, the colonial first possession rule of acquisition brings with it three critical flaws. First, presupposing emptiness declares vacant lands that are, in fact, already occupied by Indigenous peoples. In the same way, the first possession narrative treats the fox as unowned rather than belonging to him or herself. In both contexts, first possession is a convenient legal fiction and one that suppresses and – literally – displaces the less powerful. Fernandez’s dissent makes this displacement clear, both for the land and for the fox. Fernandez takes issue with the majority’s classification of the beach as a wasteland. Countering this narrative, Fernandez explains the many types of work (probably some quite marginal) that take place on the beach; such work will be displaced by the privatization of the beach. The beach is not a wasteland, that is, not vacant, but instead shared space that gives a legal (non-trespassory) space to people who may not be able to afford private land for their workspaces. Fernandez notes that the majority sees the beach as a terra nullis – an empty land that is legally subject to taking by occupation. Yet, the beach is providing a living to many people, and has been the homeland of two Indigenous groups, who have been able to effectively use this land to live 5

6

7

8 9

Carol M. Rose, Property & Persuasion: Essays on the History, Theory, and Rhetoric of Ownership 12 (1994). See Patricia Seed, Ceremonies of Possession in Europe’s Conquest of the New World 1492–1640, 26–28 (1995) (describing the process of justifying colonization, including how different cultures including the French, British, and Spanish recognized different arguments for claiming land, consistent with their own individual cultures). See generally Epstein, supra note 4; Carol M. Rose, Possession as the Origin of Property, 52 U. Chi. L. Rev. 73 (1985). See generally Epstein, supra note 4; Rose, supra note 7. Richard Posner, Economic Analysis of Law, in Perspectives on Property Law 54, 59 (4th ed. 2014).

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sustainably for generations. Fernandez contrasts the majority’s characterization of the land as empty or worthless with her own evaluation of the land as a place that “gives so much.” Similarly, Fernandez argues that the fox is not an empty vessel for someone’s ownership expectations. Instead, the fox is an agent, in and of him- or herself, and one not only quite powerless, but also one that has been historically maligned by stereotypes. The fox, she explains, has been anthropomorphized with traits such as wily and murderous. The fox is classified as vermin, which is a legal invitation to violence. She questions whether this approach to wild animals effectively treats wild animals as living slaves. She critiques this approach by making a comparison to effectively capturing humans from different societies, thus treating the fox not as a non-citizen or unowned/ unassociated party, but instead as a “member of a different polity.” Second, the first possession narrative necessarily implies a particular perspective on land and land development. That perspective is one that creates a hierarchy of uses and development of land. In Carol Rose’s words, first possession focuses on “cultivation, manufacture and development.”10 This is precisely the type of narrative that helped to justify the Enclosure Movement in the United Kingdom, which largely ended commons and wastelands, replacing them with private ownership and in doing so pushing further into poverty already marginally economically effective households.11 This prodevelopment perspective is already embedded in American property law in a variety of problematic ways. John Sprankling has argued that American property law developed a systemic pro-development bias.12 But Sprankling skipped over a robust history of English law with precisely the same kind of bias – likely one derived from the colonial-possession-development perspective and passed on to America during that enterprise.13 On this subject, Fernandez argues that the use of unrestrained agricultural animals, such as cattle, disrupted not only the effective subsistence agriculture system of the Indigenous people of North America, but also displaced the Indigenous property system by forcing privatized, fenced lands that were incompatible with the Indigenous system. The rise of large-scale, fenced, privatized agriculture was a central force behind

10 11

12

13

Rose, supra note 5, at 88. See Laura Brace, Husbanding the Earth and Hedging out the Poor, in Land and Freedom: Law, Property Rights, and the British Diaspora 5 (A.R. Buck et al. eds., 2001). See John G. Sprankling, The Antiwilderness Bias in American Property Law, 63 U. Chi. L. Rev. 519, 533 (1996). See Jill M. Fraley, The Anti-Wilderness Bias in English Law and Its Life and Times in America, in 9 Modern Studies in Property Law 277, 277–294 (Heather Conway & Robin Hickey eds., 2017).

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both the displacement of Indigenous peoples and the drastic change of the ecosystems of North America. Notably, Fernandez’s argument is particularly poignant at this moment when we recognize that most of the destruction of healthy ecosystems via deforestation around the world (and particularly in Central and South America) is for the purposes of privately owned, agricultural expansion. Third, the traditional emphasis on first possession ignores the relationship that such rules may have with violence. Carol Rose has raised the question of whether first possession rules encourage violence. She reasons, “[t]he problem is that a first-occupancy principle invites everyone to grab at everything, and everyone winds up fighting with everyone else.”14 Rose further explains, “Blackstone’s massive doctrinal sections disclosed very little to remind readers of the reasons of the self-seeking, possibly violent and certainly problematic initial grabs of initial occupancy.”15 Given the co-evolution of the first possession colonial narrative and the violent process of dispossession in North America, a close link between first possession rules and violence is hardly surprising. Fernandez’s dissent critiques the majority’s simple avoidance of questioning or justifying the first possession rule. A strategy of avoidance allowed the majority to escape not only logical quandaries, but also multiple moral questions that are truly central to the first possession rule. Fernandez’s dissent pulls back the veil and outlines many of the moral consequences of endorsing the first possession rule, including how a presumption of vacancy opens the door to attitudes of uncontrolled acquisition and use. By viewing both the fox and the wasteland as unowned, both become subject to private claims with few limitations. This invites violence – the fox can be killed with impunity and wild animals are effectively living slaves. The wasteland is subject to development, which means the loss of the existing ecosystem. It is an invitation to deforestation and overuse. Moreover, Fernandez notes that the first possession rule implies a hierarchy of land uses. This hierarchy ranks developed land above undeveloped land and institutes a constant push to further expansion of agriculture and further deforestation and depletion. Finally, the first possession rule is a rule of capture, which is, effectively, a rule of small-scale warfare – an invitation to take and to clash with another who would take first. Thus, aside from the links to violence previously noted, the first possession rule

14 15

Carol M. Rose, Canons of Property Talk, or, Blackstone’s Anxiety, 108 Yale L.J. 601, 609 (1998). Id. at 611.

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adopts an aggressive posture of property that invites conflict and competition rather than cooperation and sustainability. There is a reason it is called a rule of hot pursuit – first possession is ultimately always about the pursuit.

the rule of hot pursuit Having critiqued the rule of first possession, Fernandez turns to analyzing the dispute between the hunter and the interloper, the two parties before the court. Fernandez argues for the rule of hot pursuit, rather than a rule of capture. Fernandez’s reasoning focuses on the social aspects of the chase, particularly the communication of one’s intention to make a claim to others who may be similarly interested in the property. First, Fernandez’s dissent falls solidly within modern property theory, which has refocused on the social aspects of a property relationship. In other words, modern property theory imagines property not as a relationship between a person and a thing, but rather a scheme of social relationships that arrange rights to property.16 Second, and more specifically, Fernandez’s dissent adopts not just a social approach to property, but also a communication-focused approach. This fits with the approach adopted by Carol Rose.17 Rose has argued for communication as a method for maximizing economic efficiency. She connects the security of property rights with other key economic measures such as wealth and investment optimization.18 Rose rejects the simple Lockean labor justification of first possession rules. Instead, she argues that society rewarded not labor in general, but a very specific type of labor – the labor of “speaking clearly and distinctly about one’s claims to property.”19 Rose notes that “[t]he clear-act principle suggests that the common law defines acts of possession as some kind of statement.”20 She reasons that communication served as the real justification of first possession rules: “Possession as the basis of property ownership, then, seems to amount to something like yelling loudly enough to all who may be interested.”21

16

17 18 19 20 21

See, e.g., Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 Yale L.J. 710, 721 (1917). Rose, supra note 14, at 601. Id. at 607. Rose, supra note 5, at 16. Id. at 13. Id. at 16.

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feminist voices, consequences, and access to justice Fernandez describes the authors of the original opinion as making the fox “a mere plaything in a debate about an intellectual question that interests them.” Fernandez connects the loss of the fox’s voice to her perspective as a woman at a time when women are not invited to intellectual discussions, despite their ability to overcome the many social obstacles and make significant historical and literary contributions. Fernandez identifies the position of women in society as similar to that of the fox, who she sees as having no voice despite being directly impacted by the outcome of the decision. Fernandez implies that women justices would never treat a sentient creature as a “plaything in a debate,” precisely because women have too long experienced the disrespect of being excluded from legal decision-making while living within the social systems created by legal rules. To bring a feminist perspective then is to engage legal decision-making as a system of social engineering, so to speak, and therefore to engage questions not as abstract intellectual inquiries, but instead as moments for consideration of the extensive practical impacts of judicial opinions. More importantly, Fernandez illustrates why having women’s voices heard is not simply a matter of bringing a different perspective to the table. The fox is not heard because a label – animal – has excluded the fox’s voice from the judicial process. When a person, an area of land, or an animal has been designated by a defining label (woman, pirate, terrorist, illegal alien, noncitizen, inanimate, non-sentient), then they effectively have no method of protest because the label itself has served to remove their voice from the process. In legal terms, that means the animal has no standing before the court, no opportunity to bring a claim and seek redress. In other words, the label itself created an access to justice issue. Women, having long been denied access to justice, are uniquely positioned to challenge the legal process of creating and bestowing these powerful labels and examining their practical social and legal consequences.

impacts of a feminist dissent If we accept that both English and American property law at the time of the Pierson decision contained a strong and long-standing presumption for first possession rules, we might then conclude that a single New York case about a quite minor item of property, a fox, would be unlikely to have significant impacts even if it contained a quite revolutionary dissent, such as Fernandez’s

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feminist opinion. On the other hand, there are many famous dissents in American constitutional law that have been far more influential in the long term than their accompanying majority decisions. With Pierson, an “iconic” 1805 property law case, a feminist dissent might have had lasting consequences. Whether or not the majority wanted to face it, the case raised the most important theoretical question for property law – and one critical to the long-term stability of property rights – the question of initial acquisition of property. Theorists today continue to argue and speculate on this point because, without this grounding, any system of property rights is vulnerable. And if investigating a system of acquisition reveals – as it does here – a series of unacceptable moral assumptions, then the reasons to reevaluate the rule may outweigh the reasons to persist with the rule. Finally, even if we were to assume the worst-case scenario for the impact of a feminist dissent in 1805 – that both the public and judges largely would have ignored the effort – in the unique circumstance of Pierson, this feminist perspective would still affect the development of property law, albeit through a different audience – law students. For example, for generations, environmental debates were framed in terms of the “tragedy of the commons,” an idea that centered on the use of land as competitive and exploitive. While the concept of the tragedy of the commons was meant to justify environmental protection, the narrative itself is problematic, both in terms of how it portrays human character and how it portrays land. In this view of the world, humans are the central characters, who are overwhelmingly motivated by self-interest and unwilling to recognize the consequences of their actions to land. Simultaneously, land is the largely inanimate, limited resource that is the recipient of human greed. Land, in this model, is never an actor, and only acted upon by humans. This approach also supports the humans–nature dichotomy that allows us to separate ourselves from ecosystems and to think of nature as separate from people, rather than thinking of humans a part of the natural world. Had Fernandez’s dissent been included in the original opinion, law students persuaded by her dissent would have challenged this approach, perhaps moving more quickly to the modern idea of ecosystem services, which recognizes the inherent value in ecosystems, not only for human well-being, but also for the well-being of animal and plant life. Recognizing that inherent value would also promote a more unified picture with humans as a part of the ecosystem, rather than outside (or above) it. Ecosystem services are a step in the direction of recognizing the land as owning itself, in the same way that Fernandez suggests self-ownership for the fox. Similarly, law students persuaded by Fernandez would also question the tragedy of the commons portrait

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of human character, which focuses on greed and the self, and leaves law only the role of standing between the individual and the consequences that the worst of his character traits would bestow on the community. Rather than adopting such a fatalistic portrait of humans, students would follow Fernandez in recognizing the extraordinary power and possibility of humans, even when – as women have been – excluded and disrespected. Such a perspective would serve law students well, particularly in the context of working toward environmental goals that may seem overwhelming and unreachable within the social context. The importance of Pierson v. Post lies not in its jurisprudential progeny within the system. Instead, the importance of the case rests in its simultaneous centrality to both active teaching of the law and to understanding the nature of property and the consequences of our ideas of first possession.

PIERSON V. POST, 3 CAI. R. 175 (N.Y. SUP. CT. 1805)

justice angela fernandez, dissenting I concur in the dissent of Justice Livingston. I agree with him as to the disposition of the case, namely, that the lower court justice’s decision ought to be affirmed and that the majority’s capture rule for wild animals ought to be rejected. I must set out my reasons for doing so separately, as Justice Livingston appears to have been carried away in a fit of solemn foolery when he wrote his decision, and I for one cannot quite tell what he means us to take seriously and what parts are flippant. I view the consequences of adopting a capture rule for wild animals as a serious matter, which ought to be addressed in a serious way. Also, I disagree with the way that the case has been framed and I must register that disagreement in a concurring dissent. As between a capture rule (Tompkins, J.) and a hot pursuit rule (Livingston, J.), if forced to choose between the two, I would side with the hot pursuit rule. However, I disagree fundamentally with the premise that the lawyers and both of my colleagues share that the Fox is a form of qualified property, waiting to be perfected by human capture and an occupation that brings death to the creature. I think that, as a wild animal, the Fox owns herself, and her selfpossession or self-ownership precludes a property arising through occupation and first possession in either of these young gentlemen, an argument that is difficult to make given the way in which the case has been framed. However, I must first set out how counsel, while admittedly arguing with much ability, omitted to include some key authorities. I do this even though I believe in our

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new nation we ought not be guided exclusively, or even predominantly, by authorities from another distant time and place. We ought to be adopting a rule that is best for us. In that, I believe Justice Livingston and I agree. It does seem to me, though, that it is important to have a serious understanding of those authorities, as they relate to such an important set of issues, namely occupation as that applies to first possession of animals and land, as well as other forms of colonization.

i Further Key Authorities Counsel for Pierson, Nathan Sanford, has contended that “the Roman lawgiver” Justinian decreed that possession or capture must be complete given the possibility that in any chase the hunted animal might well escape. He quoted to us (in Latin) the following passages from Justinian’s Institutes, b.2. c.1. First, paragraph 12 states that “[w]ild beasts, birds, fish, and all the animals which are bred either in the sea, the air, or upon the earth, do, as soon as they are taken, become instantly by the law of nations, the property of the captor.” Even a taking may not be sufficient, the Institutes continued to explain in this section, because “tho’ wild beasts, or fowl, when taken, are esteemed to be the property of the captor, whilst they continue in his custody, yet, when they have once escaped and recovered their natural liberty, the right of the captor ceases, and they become the property of the first, who seizes them.” It is also added in this section that this natural liberty may be regained, even if in sight of the pursuer, “they can not without difficulty be pursued and retaken.” Second, in paragraph 13 of the Institutes it is laid down that even wounding will not give a right of property in an animal that is unreclaimed. For, notwithstanding the wound, “many accidents frequently happen; which prevent the capture” and “property in a wild beast cannot otherwise be obtained, than by actually taking it.” Counsel for Post, Cadwallader David Colden, points out that Barbeyrac in his notes on Puffendorf’s Of the Law of Nature and Nations has written that an actual taking is not required in order for there to be possession of a wild animal sufficient to amount to an occupation. Puffendorf writes in b.4. c.6. s.2 that the “first occupant” is “him, who before others, took bodily possession.” However, Barbeyrac pointed out in his note on the text that “manucaption,” as Colden put it, is only one of many means, to declare the intention of exclusively appropriating that, which was before in a State of Nature. Any continued act which does this, is equivalent to occupancy. Pursuit, therefore, by a person who

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starts a wild animal, gives an exclusive right whilst it is followed. It is all the possession the nature of the subject admits; it declares the intention of acquiring dominion, and is as much to be respected as manucaption itself.

Barbeyrac writes in B.4. c.6 s.2 n.2 that in “taking possession actually (Occupatio) [it] is not always absolutely necessary to acquire a thing that belongs to nobody. Tis only a means to let all others know, that we have an intention to appropriate such a thing. Indeed, that which properly makes the Right of the first Occupyer, is that he makes known to others his design to seize upon a thing.” I would add to the passages Colden quoted from in his argument that when responding to Puffendorf’s assertion in section 8 that “the occupancy of a Movable must be made with the Hands,” Barbeyrac repeated the following view: that which properly constitutes the Right for the first Occupant, is that he declared, before some others, some way or another, his intention to make a thing his own, in as much, as soon as he hath so done, all others who have yielded him the first place, ought not to pass over his bounds, because it would be dishonest and unjust, as if one over-runs another’s Land.

While counsel for Pierson is very gifted, I must disagree with his characterization of Barbeyrac in his reply to Colden as a mere “annotator” given the great respect and esteem that are attached to those notes, often considered to be superior to the text they comment on. And to the point that there are no other authorities that have been urged, there are many which, while not referred to, do indeed support Barbeyrac in his view that a hunt whilst pursued is capable of creating a property in the animal pursued. Locke wrote that “the Hare that anyone is Hunting, is thought his who pursues her during the Chase . . . whoever employ’d so much labor about any of that kind, as to find and pursue her, has thereby removed her from the State of Nature, wherein she was common, and hath begun a Property.” John Locke, Two Treatises of Government B.2 c.5 s.30 (1690). Justinian himself, in his longer work the Pandects or the Digest, b.41 c.1, s.5 (1), noted that Trebatius thought a wounded animal became the property of the pursuer as long as he kept up his pursuit. It is also worth pointing out that In the longer work written under Justinian’s reign, Institutes about situations in which an animal was captured and lost or pursuit was difficult (para. 12) or where the claim was based on wounding alone (para. 13), neither of which are applicable to the situation before us. The great French treatise-writer Robert-Joseph Pothier, whose work was so relied upon in the recent monumental creation of the French Civil Code (1804) and who worked over an edition of Justinian’s Pandects or Digest, discussed the property rights arising from the hunt in his treatise on property

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and agreed with Barbeyrac. See Traite´ s de proprie´ te´ b.1 c.2 s.1 art. 2 paras. 23–26. Pothier’s view was that an actual taking was not required as long as the animal was in the power or control of the pursuer such that the animal could not escape (para. 25). Noting that Barbeyrac thought that even a chase with no wounding made the pursuer a first occupant such that it was not permitted for another to interfere and take the animal during that time, Pothier said that this more civilized sentiment was what was followed in practice and it conformed to the ancient law of the Saliens (para. 26). I cannot agree with my colleague Justice Tompkins that an insufficiency in law renders the verdict for Post in error. We cannot conclude that a reversal is warranted based on what we have before us. There is ample law supporting Post’s position and the facts simply do not allow us to say whether he was near or far away from the Fox when the interruption occurred. That Colden, his lawyer, avers this was not a case of mere pursuit (he admitted in argument that “pursuit alone does not give a right”) strongly suggests that Post was indeed near or, at the very least, engaged in a continuous pursuit even if the animal was not yet in his power or control, as per Pothier. At the very least, we know he had not abandoned pursuit. If Post was near and about to take the animal, there is ample law to support his property claim (e.g., Barbeyrac and Pothier). Even if Post was far away but nonetheless engaged in continuous pursuit, there is sufficient law to say that he is entitled to enough of a right to sustain his action (e.g., Locke). We cannot, therefore, say that an error of law was made in finding for Post, let alone a “great and manifest error,” as alleged in the sixth exception, thereby violating “the law of the land” (Judgment Roll, p. 14). Or, as per the third exception, that it was “vicious, erroneous, and void in law and therefore in that there is great and manifest error” (Judgment Roll, p. 12). If the pursuit was continuous and certainly if an actual taking was imminent or at least reasonably likely to succeed, then a possessory right arose creating an obligation with which others ought not interfere. “Mere pursuit,” in my mind, means chasing for some time and then abandoning pursuit. This could not create a property, as the hunter can produce no animal (dead or alive) sufficiently individuated from their environment whom he now claims to own. However, as against another hunter attempting to pursue the same animal at the same time, that is a different question. As Locke appreciated, as long as the chase is on, the hunter arguably hath begun a property. Others should not interfere with that for the reasons that Barbeyrac stated, namely, that the manifestation of will or intention to take and a clear declaration to that effect is key. We have that clear communication in this case, as the declaration states that Pierson knew that Post was in pursuit of the Fox, and, indeed, Post alleges it was done with malice

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(see Judgment Roll, p. 5). Overriding this clearly expressed intention is the same as, as Barbeyrac put it, “over-run[ning] another’s Land.” Justinian was certainly correct that many things can still happen. If the animal gets away, then they return to their natural state where they remain free or may be taken by another. However, many have thought that the first hunter has an entitlement that carries with it a right of non-interference so long as the hunt is not abandoned and certainly if the creature has been wounded. A continuous pursuit that is not abandoned evinces enough of the power or control Pothier described to create what is known as a qualified property. The standard for a property that can lawfully exclude others is not seizure with impossible escape. That standard would normally be death for a wild nonhuman animal, who can always escape even after being seized as long as they are alive. However, a dead animal is absolutely owned, rather than owned in a qualified way (see 2 William Blackstone, Commentaries *403). If the category of qualified property is to exist at all, it must be acknowledged that it is held in this tentative way, a holding that need not involve hands or manucaption as Colden states. With a living animal, there is always the possibility of escape. As between the authorities, I think adding Locke and Pothier to Barbeyrac tips the scales in favor of the rule of hot pursuit, which Justice Livingston says he would also choose, when he declares after what appears to be a whimsical discussion of the size and kind of dogs Post used (about which I would point out we know nothing) that he would embrace Barbeyrac. I believe he and I agree, however, that we should not be slavishly following authorities from another distant time and place, as counsel seem to presuppose. The foregoing sufficiently establishes that a rule of hot pursuit is well represented in the philosophical, civil, and natural law authorities. Yet that would not necessarily make it the best rule for us to adopt, living here when and where we do.

ii Independence from Authorities Every year of our Independence, we drift further away from our parent legal cultures and histories, certainly ancient Rome, which is very far away indeed, but also seventeenth- and eighteenth-century England, Germany, and France. We ought to be, as my colleague Justice Livingston puts it, devoting our efforts to developing a law of our own, one informed by antecedents from other countries and legal cultures and traditions but that is no slave to them. We ought not to be adopting a rule because Pothier or Barbeyrac (or Justinian) said so but because we see it as fair and as just, and as making the most sense

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for us. The truth is we could go on almost endlessly examining the old authorities. We can never be confident we are completely understanding them, as they were written for a different set of circumstances. It seems that there is always another gloss by a learned scholar or another rediscovered work or text now made available by translation or through new methods of publication, importation, and transportation. The authorities are multiple, at variance with each other (as is almost always the case) and (as with Pothier’s property text) are not always available in the English language (and even Latin is not a language in which most of us are very proficient). Natural Law disputation is also especially prone to sophistry, as it is often possible to be selective not only in the choice of the authorities but also what among the (many) things each said, the meanings of which are also open to eternal debate and continual study. A forensic opponent might or might not have access to the book or be able to read the language it is written in. I personally find parsing the authorities and their intricate and nuanced reasonings a very satisfying activity. However, for the reasons set out below, I do not think that this is the way that this case should be decided, and I disagree with how the case has been framed, specifically with the admission by counsel that animals ferae naturae belong to no one and come to be owned through occupancy. The disagreement as they see it is over how firm or secure the grip on the creature must be and who, as between the two, has a better claim to title. However, if the Fox possesses selfownership, then neither of the two young men have acquired a title, which the law should vindicate. I begin with explaining how four facts that were omitted by both the lawyers and the other judges tend to distort the way in which this case has been understood.

iii Four Overlooked Facts There are a number of facts in the record of the case, which neither the lawyers nor my colleagues discuss and were not included in the report of the case that significantly alter how one sees the dispute. First, my colleagues do not mention the amounts of money that have been awarded here, specifically that the jury in the court below gave Post a mere 75¢ (see Judgment Roll, p. 8). They may have judged that was the property value of the Fox. I note that in 1791, the town offered a bounty of 4 shillings or 48 pence for the extermination of foxes as pests (see 3 Town Records p. 332). Or they might have been measuring the interference in Post’s hunt at that nominal level, nominal given the fact that they were free to award anything up to $25 under the Twenty-Five

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Dollar Act (1801), the statute under which this case was tried (see Judgment Roll, p. 3). Either way, it is significant that the award was for such a low amount. Under the majority’s decision, Post will have to pay Pierson at least $126.37 ($121.37 ordered here, see Judgment Roll, p. 19, plus the jury trial costs of $5, see Judgment Roll, p. 8). This is a terribly high sum for such a small amount at issue. Post had no choice but to defend the action once Pierson decided to appeal. If the majority stands and the lower court decision is overruled, then this (expensive) appeal will now be Post’s bill to pay. Second, the Reporter, Mr. George Caines, does not state in the facts he prepared for the majority and original dissent any of the dates that enable one to see how long this case has been going on. The altercation took place on the 10th of December, 1802 (Judgment Roll, p. 4). The parties appeared “in their proper person,” that is, without counsel, before one of the justices of Suffolk County on the 30th of December, 1802 (Judgment Roll, pp. 3–4). The Justice of the Peace who tried the case, John N. Fordham, returned his sworn account of those proceedings (dated April 26th, 1803, Judgment Roll, p. 8) in response to a January 29th, 1803, command, witnessed by our former Chief Justice Morgan Lewis, for a return of the writ of certiorari with the sworn record by Fordham for the May Term 1803 (Judgment Roll, pp. 1–2). It is now September 1805. The case, therefore, has taken over two-and-a-half years to be decided. We have seen a number of cases just this year, which, like the present appeal, involve small amounts of money that have taken a very long time to be adjudicated. Once overturned, these cases have resulted in cost awards against the original plaintiff many times in excess of the amount of money at issue and much greater than the maximum amount that could have been awarded under the statute, namely, $25. See, e.g., Seaman v. Patten, 2 Cai. R. 314 (N. Y. Sup. Ct. 1805), Law Judgment #1805 P-40, Div. of Old Records, N.Y. County Clerk’s Office (which took two years and reversed an award with $72.86 in costs for the plaintiff to pay); Hendenbergh v. Thompson, Law Judgment #1805 T-44 (an unreported case for a 50¢ debt that returned a verdict of 48¢ and $5 in costs for the plaintiff, which took ten months to decide and cost the plaintiff $36.78 once it was reversed); Brown v. Smith, 3 Cai. R. 81 (N.Y. Sup. Ct. 1805), Law Judgment #1805 S-82 (a case in which the plaintiff was awarded just 1/10th of a cent, and Nathan Sanford, who was also counsel in that case, argued successfully for the defendant that a verdict could not attach to an amount less than a cent; however, this advance in the law cost the original plaintiff who brought a 50¢ claim for damages $86 in costs). I find it to be a disturbing trend, this kind of gross disproportion between the maximum amount of money that can be awarded under the statute ($25) and

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the high amount of costs awarded when so small an amount is at issue. I hope that the legislature will see some way to set right this unfortunate state of affairs. They might correct it by capping the amount of costs to $25, the maximum amount available under the statute. Or they might abandon the British rule of costs in the statute, which make the original plaintiff liable for not only his own expenses but the other side’s also (see s. 19 Twenty-Five Dollar Act (1801)). Or they might require an award to be at a minimum amount in order to be appealable, say $1 or $5. Splitting the jury costs between both parties might also help remove a losing defendant’s incentive to appeal (with a high chance of reversal) in order to recoup those costs. Countless adjudications in cases of small concern are tried every year in this state under the Twenty-Five Dollar Act (1801) (and have been for decades under its predecessor, the Ten Pound Act (1787) and, before that, the Five Pound Act (1758), which itself expanded lay jurisdiction from £2 to £5). It is true that the justices who preside over lay courts do often make small errors. They are not learned legal professionals. However, the statute clearly states that “the supreme court shall proceed and give judgment according as the very right of the case shall appear, without regarding any imperfection, omission or defect in the proceedings, before the court below, in mere matters of form” (s. 19 Twenty-Five Dollar Act (1801)). These popular courts were designed for the advancement of “speedy” justice and saving of costs and trouble. I think it goes against that legislative policy to encourage lawyers who would like to make a new business in certiorari appeals from justice’s courts from raising many small technical objections or trumping up elaborate arguments, all of which create delay and increase costs. As far as I am aware, the original policy for small claims cases continues to exist under the 1801 version of the statute. I, for one, would require clear evidence of the contrary to overrule such long-held legislative policy. Given these animating principles, overruling in this case, absent a clear error in law, is a mistake. Such rulings will certainly have an impact on how people will see the wisdom of coming as a plaintiff before their local magistrate in matters of small concern. And high rates of reversal make it very tempting for losing defendants to appeal rather than let the issue go, as it might often times be best for them to do when the awards are for amounts like 75¢ or 50¢. If costs are capped, then lawyers will have much less of an incentive to angle for this business. And if there are minimum appealable amounts, we would get less of this disturbingly gross disproportion. Neither the lawyers nor my colleagues mention the malice point, a third omission, which seems to indicate how determined they were to treat this dispute as a property case and to decide which of the two contenders had title in or best possession of the Fox rather than a case about the malicious

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interference in a hunt, which is likely how Post saw the dispute. The action, after all, was brought in trespass-on-the-case. Post did not want property in the Fox; he wanted an amount of money for interference with his hunt. Fourth, neither of my colleagues discuss the fact that the award in the justice’s court was made by a jury. The jury proceedings happened quickly after the incident, just twenty days. The jury trial was a full-on affair, the seriousness of which is demonstrated by the fact that it involved the testimony of seven witnesses (see Judgment Roll, p. 10). I find this to be significant, as it indicates that the resolution of the dispute included a high level of community involvement. Indeed, the jury trial is probably the closest thing to what Justice Livingston said (humorously or seriously, it is difficult to say) would be the best way to decide this dispute, namely, to submit it to “the arbitration of sportsmen.” These jury members were probably not well versed in the intricacies of English-style fox hunting, which I am told has a minimal to nonexistent presence on the South Fork of Eastern Long Island. (I note that the area of Sagaponack, where the dispute took place, and the town of Southampton, where the case was tried, are both in Suffolk County, not Queen’s County as the facts prepared by Mr. George Caines state.) The absence of English-style foxhunting in Suffolk County might be due to lingering and understandable anti-British sentiment given the late British occupation of Long Island, as well as the challenge posed by dogs following the scent of a fox in a location where there is such an abundance of sand and water. Those six gentlemen, even if not English fox hunters, would likely be familiar with hunting animals such as pheasant and deer (taken for food or for their skin), where similar disputes between hunters must arise. However, the problem with treating this as a hunting dispute is that Pierson was not truly a hunter if he happened upon Post chasing the Fox with dogs and hounds and set out to spoil his fun, as Post alleged. This might have been pure malice. Or Pierson, whose family I understand have extensive holdings near the beach in Sagaponack where the Fox was found, chased, and killed, might have had a serious message to deliver. He might have intended to communicate that English-style foxhunting was not welcome in the neighborhood given the trampled fields and broken fences that result from following a fox wherever it runs during a hunt, especially if the sport develops beyond dogs and hounds to include horses, expert at inflicting such damage when riding cross country. Also, for this style of fox hunting, hunters often seek to maintain populations of foxes in the area in order to maximize their chances of a reliable chase on hunting days, perhaps even going so far as to breed them, as is done in fox-hunting areas in England. Such practices would pose a direct threat to the farmers’ chickens

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as Justice Livingston mentions and worries about, which are actually safer under a ruling for Pierson than Post. Killing a fox when you see it is better for the chickens than a hunt in which the fox might escape and live to eat more chickens. In sum, then, what we have in the lower court justice’s decision and the jury award is essentially a seriously undertaken neighborhood determination of what ought to be done in the face of this scuffle between the sons of two prominent men in the area, one of whom, Pierson, comes from a farming family (to whom foxes are vermin and ought to be killed wherever found) and another, Post, whose father’s wealth was more mercantile (and who saw the Fox as a valuable object of recreational pursuit). Their neighbors probably saw Pierson, whom Justice Livingston memorably calls “a saucy intruder,” as being in the wrong. However, they were not willing to give Post very much for that wrong. After all, Post was putting on airs, imitating an English gentleman in a community where that was not welcome. They certainly did not identify with his feeling that this was a gross affront that ought to be punished with a significant award. It is true that there is no action at common law for malicious interference in a hunt. However, the jury did not try to create that common law action; they simply gave an award for an amount that, for whatever reason, they thought was appropriate. We heard no argument on the tortious interference point, so I hesitate to say more here. Regardless, I see no reason why, absent a clear error of law, this court should interfere with the jury’s neighborhood determination. And, as I explained above, I do not think we should be encouraging appeals of this kind where such small amounts are in dispute.

iv Two Further Distortions Two further distortions in the framing of the case have been introduced, which I must address, both of which I feel the Fox herself (or a lawyer acting on her behalf) would point out if she were permitted to speak. First, there is the agreement between the lawyers as admitted fact that foxes are animals fera naturae. Yet foxes are not good examples of wild animals generally, as they are classified at common law as vermin (5 Bacon’s Abridgement, p. 180). There can be no property in vermin and so neither party can establish a property claim in a wild fox. Now the Fox, herself, would no doubt object to the verminous classification. The Fox would also certainly take issue with Justice Livingston’s use of the characterization hostis humani generis, the

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pirate or enemy of all humankind whom anyone can kill with impunity (see also Puffendorf, Of the Law of Nature and Nations, b.4. c.6 s.6, noting that prey animals may be killed by anyone without distinction). Such views arise from centuries of objectionable stereotypes about foxes as wily, dishonest, and even murderous. For example, in a 1486 book Le Livre du Roy Modus et de la Reyne Racio (The Book of King Mode and Queen Reason), foxes were categorized as “stenchy,” as opposed to “sweet” beasts, noted for their “evil physiognomy” and a nature that is “deceitful and tricky above all other beasts and exceedingly malicious.” Justice Livingston calls the Fox a “wily quadruped” and even Post has conceded in the declaration’s description of the Fox as “one of those noxious beasts.” Yet, how fair are these stereotypes? The Fox is no worse than many other nonhuman animals and probably no worse than man himself, who after all also takes his prey. As Gasciogne wrote in The Noble Arte of Venerie (1575), “I sign (yet smyle) to see, that man (yea master man) [c]an play his part in pollicie, as well as Reynard can . . . But shall I say my minde? I neuer yet saw day, [b]ut every town had two or three, which Rainards parts could play.” Those who speak up for nonhuman animals are often accused of anthropomorphizing them in a sentimental way; but where is the justification for vilifying them in a similarly human-oriented way? Legally, the bodies of dead foxes are not even capable of being the object of larceny given their inedibility (4 William Blackstone, Commentaries *236). None of this is very flattering to the Fox, but she would be heartened to learn that in her there can be no property. Assuming foxes could stand in for all animals ferae naturae, what, more generally, permits us to put wild animals in the category of qualified property? I understand that if they are to be property once dead (e.g., a food animal), then the claim over them when alive must be qualified, as they might escape and regain their former freedom. But what gives us the authority to enslave wild animals in the first place? It is true that Blackstone wrote, at the point referred to by Sanford, 2 William Blackstone, Commentaries *403, that with regard to animals ferae naturae, all mankind had by the original grant of the creator a right to pursue and take any fowl or insect of the air, any fish or inhabitant of the waters, and any beast or reptile of the field: and this natural right still continues in every individual, unless where it is restrained by the civils of the country. And when a man has so seized them, they become while living his qualified property, or, if dead, are absolutely his own.

Yet Blackstone’s text was written in England for the eighteenth century, not the new United States and our early nineteenth-century conditions. We are

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just now deciding what “the civil laws of the country” will be, and we need not start by treating Blackstone’s text, as useful as it might generally be, as if it is biblical. It is not. There are ideas it contains that suit our conditions and society and those that do not. We are free to think for ourselves on the issue of whether the concept of qualified property should attach to wild animals in this country or if wild animals should be viewed as having self-possession or selfownership. There are many slave owners and enslaved people in the state of New York and the area of Long Island where this dispute took place. Slavery takes a free human being and subjects him or her to private property ownership. Under Roman law, prisoners captured in a war could be legitimately enslaved by the conquering society and the legal status of those slaves became a mixture of the rights and duties of persons and rightless property. For example, slaves by capture did not completely lose their personhood or personality, as they might regain their freedom and become citizens at a later date. In our times, slaves also move out of being property and become legal persons at (at least) two distinct moments: when they are transported on ships as cargo (they may not be claimed as lost cargo under an insurance policy if thrown overboard or jettisoned out of purported necessity) and when they are accused of committing a crime on land or sea. Now like an enemy combatant in Roman times, a wild animal can come to be owned by the kind of capture or occupation described by Locke, Justinian, Fleta, Bracton, Puffendorf, Barbeyrac, Blackstone, and Pothier. However, we would not say that the possibility of a Greek citizen becoming a Roman slave through the act of war makes that citizen an imperfect form of property belonging to what Pothier called “the negative community” of property common to all and not yet appropriated (c.2, s.1, art. 1, para. 21). We would consider the Greek citizen to be a free and equal citizen of another Nation. So too, the wild animal is not property-waiting-tohappen, for some set of things amounting to occupation to be done to him or her; he or she is a member of a different polity. Counsel and my colleague argue as if turning a living being into property, especially a being that is free, is just a matter of establishing what the minimum moves are to establish an occupancy, not whether the Fox, given her freedom, should be seen as liable to becoming property in the first place. It is not obvious that even the domesticated animals we have bred and brought into our communities are necessarily private property. Scholars usually distinguish domestic from wild animals, arguing that domestic animals can be owned in an absolute way like other ordinary non-living forms of property. Yet they are clearly not like non-animate property. Many domesticated animals such as cows, pigs, and sheep are left to roam at large, especially

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in areas of new settlement where European settlers have craftily enlisted them in projects of dispossession against Indigenous communities. These animals become feral or wild again, putting the onus on Indigenous communities to build and upkeep fences in order to keep out these new varieties of crop rooting, trampling, and eating beasts. This pressure has pushed many Indigenous communities, for whom farming is crucial to seasonal subsistence living, further and further away from their original places of habitation. I must add that the cows, pigs, and sheep are unwittingly, rather than intentionally, acting in the role of dispossessors in such situations. Many such “domesticated” animals have offspring that are never properly owned, that is restrained. They are arguably no more private property than you, dear reader, and me. Indeed, all nonhuman animals arguably own themselves in the same way. Where is the authority that says we cannot declare them to be as free as the air or the sea? A second distortion in the way that the case has been framed is the declaration’s description of the beach where the Fox was chased and killed as “waste land,” which immediately invokes Locke and his arguments about vacant land (terra nullius) and taking them by occupation through cultivation of the soil. Locke wrote, “Land that is left wholly to Nature, that hath no improvement of Pasturage, Tillage or Planting, is called, as indeed it is, waste; and we shall find the benefit of it amount to little more than nothing” (Two Treatises of Government, b.2 c.5 s. 42 (1690)). This is not an accurate way to describe the beach in Sagaponack, which gives so much but admittedly cannot support crops. However ardent one’s husbandry, one cannot grow crops in sand. The beach does, however, give access to manifold products of the sea such as oysters, clams, seaweed, fish, and whales hunted from the shore. People go to the beach to engage in economically useful activities such as the planting of oyster beds and gathering beach grass from the salt meadows, which is used to make bedding and fodder for farm animals and to create garden mulch and top haystacks in farming. They also go there to commune with Nature by walking on the beach and enjoying the sea. Many people use the beach, the people of the Town of Southampton who are descended from the settlers who crossed over Long Island Sound from Connecticut in the seventeenth century and those that have since arrived from elsewhere and their descendants, as well as members of the Shinnecock and Montaukett Tribes, who have lived on Eastern Long Island for a very long time. None of them views the beach as land that amounts to “little more than nothing.” The Lockean way of seeing the beach is a mistake. It is true that the land is “unpossessed,” as the declaration puts it, in the sense that it is not individually appropriated nor privately owned. Yet, however “wild and uninhabited” it

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might seem to be, in the sense that on any given day one might walk for miles and encounter no one (at least not any one human) and there is not anyone (at least no humans) actually living on it, it was and continues to be a place of value to multiple communities: European settlers and their descendants, Indigenous peoples, and also to the species of wildlife it sustains. Foxes, I am told, live very comfortably in the sand dunes on the beach in Sagaponack where they feed on oysters, clams, and such like from the sea, as well as small rodents living in the beach grasses. Like the Fox herself, the beach does not then stand in very well for the State of Nature debate. The beach is not actually in such a wild and unoccupied state. It is far from being waste in the sense of being not valuable. This area of the country is so beautiful, it is bound to become very valuable real estate. We can now easily see why it is problematic to settle the question of whether the justice’s decision ought to be reversed on the learned law authorities. Those authorities all assume, rather than argue for, the proposition that occupation will establish possession of a wild animal on “waste land.” The lawyers and other judges accept that this case is purely a question of how close or secure the hold needs to be in order to count as occupation as between the two claimants and that occupation can establish possessory claims in this way. Yet what about the argument that neither of the pursuers has a claim to take by occupation given the preexisting state of the entity, whether it is a nonhuman animal (like the Fox) or the earth (in the case of land in the Americas)? The learned authors all imagine that what preexisted was in a vacant state, terra nullius (in the case of the continent) or re nullius (in the case of the Fox). Yet, neither of them are accurately described as vacant. The idea that the land has already been occupied by Indigenous peoples or that the Fox already owns him- or herself is ruled out of hand by the very parameters of the debate. All the aforementioned omissions and distortions show how much effort has gone into framing the case as a State of Nature debate that is not actually supported by the facts in the case. I have taken pains to explain this, as I think it is generally unappreciated just how much of this kind of manipulation goes on in our law reports. Also, we are never told how much an action costs for instance, when surely it would be instructive to know what the establishment of a legal principle took in dollars and cents and who paid. The day may come when the lawyers’ arguments (and their controversial admissions and concessions) are also removed from view and much of the massaging for the forensic performance or debate becomes next-to-impossible to appreciate. Legal fictions are often operating on a very large quantity of fiction indeed. We take all that fiction for fact and call it “Legal Process.”

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v The Capture Rule and the Environment I think it is especially important in this case to object to reversing the justice’s decision in favor of Pierson because the capture rule adopted in Justice Tompkin’s opinion would be a bad idea for the environment generally. Specifically, if the majority’s capture rule is adopted, it might be extended to other kinds of fugitive resources that move freely, such as water and other valuable minerals in the ground, fish in the seas, and perhaps even the planets and stars in the sky and the floor of the sea once it is possible to bring them within our reach. The capture rule encourages massive environmental waste because parties are incentivized to gear up and capture as much of a resource as they can, more than they need, and can actually seize and successfully hold. Their reach often exceeds their grasp and much spills away or spoils, which bothers them less than seeing the resource go to a competitor who they fear will drive down a price. This is anti-social behavior in the sense that less of the resource is then available collectively for either property in common or individual ownership. Locke also discussed this other (less famous) form of waste, writing that it “offended against the common Law of Nature” (Two Treatises of Government, b.2 c.5 s. 37 (1690)). Also, and perhaps worse, the capture rule sets men at war with the Nature that sustains us all, foxes and human, free and unfree. That would be to make war with Gaia, mother earth, a serious error for our long-term survival and well-being. The law must resist an instrumental way of thinking in which free entities are transformed into property at every turn, as if the earth’s resources are limitless and the world and everyone and everything in it were created only for this purpose, to satisfy the whims and wants of one greedy species, homo sapiens. Free entities are more than property waiting-to-be. As for the sentient ones especially, I would embrace the principle that none be permitted to be tortured and enslaved who once had a mother, whether she be human or nonhuman. The law should reject the torture or enslavement of any of the weaker or more voiceless members of society and not facilitate that with its concepts, arguments, and institutions, not as a matter of charity but as of right. Diana, the goddess of hunting, to whom Justice Livingston refers, might not be pleased with the principle proposed, as her hunts are certainly a form of torture for the hunted animals. But all the dear, deer [sic] Lavinias, whose very tongues were cut out and hands cut off in order to prevent the naming of their violent persecutors will understand why the principle needs to be put this way. Philomela too, “Ravaged and wronged as [she] was, Forced in the ruthless,

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vast, and gloomy woods.” Titus Andronicus Act 4. Sc. I ss. 54–55. For are not we all, at the end of the day, intruders whose sauciness must be controlled or curtailed in some way, acting so often as a “ravenous tiger” would (Act 5. Sc. 3 s.5 & s.197), who left unchecked will rape and pillage all that the earth has to give. In a contest between Gaia and Diana, Gaia must win and the law must ensure that she does. Locke, whose labor arguments are often used to justify taking land away from those to whom it originally belonged in America, wrote that God did command man “to subdue the earth.” However, by this he meant “to improve it for the benefit of Life” (Two Treatises of Government, b.2 c.5 s. 32). According to Locke, individual appropriations from common property were subject to the condition that “there was enough, and as good left, and more than the yet unprovided for could use” (s. 33). The children of Adam and Eve are entitled to their share of clean earth and sea, rivers and lakes, more even than they can use. And I would contend that those children are not limited to the two-legged kind. All God’s creatures deserve to be free from pain and torture and enslavement. Locke’s “Life” is not limited to forms of living governed by principles of immediate human use and convenience, and especially the whims, of just one species. That would be fundamentally unfair to the rest of life on earth, whose various forms get no say at all over the decisions that may, in perhaps just two or three hundred years, result in the planet becoming an uninhabitable place. An instrumental human-centered approach that turns everything into property will leave us with no life at all after Nature is plundered and destroyed. Human nature and the culture that law, religion, family, education, and all the other important institutions humans have built and continue to care about will first become increasingly unintelligible. Then none of it will cease to matter at all, certainly if there is no one left for any of it to matter to. This will be felt by all creatures big and small, female and male, smart and dumb. The two-legged ones with the loudest voices are supposed to be so intelligent. Yet, what will their learnedness bring upon us all?

vi Professionalism In my many years on the bench, I have not encountered a case that has disturbed me as this fox case has. It is not simply a matter of the omissions and distortions, which change the case into something completely different from anything the parties would recognize. That, I fear, is an all too common aspect

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of the legal process. And even the appeal of a small amount for gross disproportion in costs, while lamentable, is permissible under the current statute. What I have found so unsettling is the attitude that underlies the behavior of the lawyers and my male colleagues, namely, that the Fox, a sentient fellow creature, can be treated as a mere plaything in a debate about an intellectual question that interests them, damn the consequences, including the consequences of the rule they choose to adopt. In the immediate, this attitude does a disservice to the parties for whom the case is unnecessarily delayed and costs thereby increased. In the long term, however, we get a rule that has so much potential to damage the environment. If I do not write a concurring dissent, the only dissent will be Justice Livingston’s, which makes the whole matter appear to be some kind of (confusing) joke. What is extrinsic to the legal process in all this and is, in my view, unacceptable is the profound disrespect all involved expressed towards the hunted animal, as if it is perfectly acceptable for her torture and death to serve as the occasion for an elaborate debate with the exchange of some learned authorities and the occasional witty repartee, all of which presupposes rather than argues for the legitimacy of her status as property, as a slave. In all this, the Fox has no voice and cannot speak for herself and no one represents her interests. All involved presuppose their superiority to the animal, which it goes without saying has no moral or even economic worth, and their right to act in this entitled manner. In writing this concurring dissent as I do, I realize I risk being attacked as a humorless female. My colleagues might roll their eyes and say that is why they never share their jokes with me; that I have no sense of humor. Yet, there is nothing funny about the male clubbiness that has swirled around the decisions to frame, argue, and decide the case as it has been done. I have been party to none of them, and I would like to know when and who decided that the case would be treated with all these distortions and omissions so that the lawyers could have their State of Nature debate. I am unable to obtain a satisfactory answer from my male colleagues, including Mr. Caines. Did it happen in the men’s robing room or washroom? Perhaps it was during a hunting or fishing outing I was not invited to or during a freemasonry meeting I obviously did not attend, as women are not permitted to be members. Our former Chief Justice, now Governor of the State of New York, Morgan Lewis, who granted the writ of certiorari in this case, is a member of Holland Lodge. That is the Lodge in which Mr. Sanford was elected Grand Master in 1803, the year the appeal was made and accepted. Mr. Colden, I understand, does not belong to Holland Lodge, but like my colleague Justice Tompkins, who is presently the Grand Secretary of the Grand Lodge of New York, Colden has an important position at the Grand Lodge, having served as Senior Warden since 1801.

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As a female member of this bench, I often feel excluded from the male fraternity of judges and lawyers who are often unwelcoming (not always unwittingly) and who make many assumptions that I find to be problematic. I am not entirely sure that they do not often make jokes about me, something which they obviously would not share with me. At any rate, I have not felt the exclusion from their fraternity in so pointed a way as I have over this fox case, as I find myself identifying with the Fox, the slave, the dispossessed, rather than my colleagues, the White privileged men, who are supposed to be my professional peers but, yet, who act here in such an unprofessional way. I fear that the exclusions in my case have been exacerbated by being not only a woman but also a racialized female in a country where human beings are routinely and callously enslaved by virtue of their ethnicity and skin color, brought here from other countries where they have been colonized by different forms of occupation or born into the slave system which turns them into property. The Federal Constitution has not protected them, opting instead to protect the slave owners; and women also seem to have been forgotten in a way that turns all their domestic labor into free labor. Slaves who were born free are made property in this country by its laws. Those born in captivity are the property of whoever owns their mother, the same principle used for domesticated animals. All slaves retain their property status unless or until manumitted. Even those who escape can be reclaimed under the Fugitive Slave Clause of the Constitution. Wild animals at least can escape back into the wild and reclaim their freedom. The Constitution did not go out of its way to foreclose that possibility, probably because wild animals are not nearly as valuable as slaves are to the nation’s economy. Yet, is the almighty dollar everything? When Lord Mansfield outlawed slavery in England he proclaimed, “let justice be done though the heavens may fall” (Somerset v. Stewart, 98 Eng. Rep. 499 (KB 1772)). Abigail Adams wrote to John Adams in that momentous year, 1776, to urge him to remember the ladies and to refrain from putting unlimited power in the hands of husbands because “all Men would be tyrants if they could.” He laughed at her and berated her for her sauciness. Mary Wollstonecraft declared in her powerful work, A Vindication of the Rights of Woman (1792), that “[w]oman is born free and remains equal to man in rights.” Yet, the law continues to make invidious distinctions and discriminations on the basis of sex, especially for married women. And almost a hundred years earlier, working with similar themes and arguments, Mary Astell asked in her Some Reflections Upon Marriage (1700), “[i]f all men are born Free, why are all Women born slaves?” Her friend, the great traveler and letter writer, Lady Mary Wortley Montague, said to be the author

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of Woman Not Inferior to Men (1739) published under the pseudonym “Sophia, a Person of Quality,” noted in one of her Turkish bath house letters how English women are slaves to their husbands. These last two Marys were also adept at satire and wit. Here in the United States, Judith Sargent Murray claimed the same equality for American women as Wollstonecraft did, writing in a Massachusetts periodical as “Constantia,” On the Equality of Sexes (1790). As early as the seventeenth century, female fiction writers have been earning their living as playwrights in England, and in the case of Aphra Behn, also as a novelist. A wave of Grubb Street successors followed her in the eighteenth century, including Mary Hays, Hannah Moore, Fanny Burney, Mary Manley, Mary Pix, Eliza Haywood, Catherine Trotter, Arabella Plantin, Penelope Aubin, Jane Barker, and Elizabeth Rowe. Yet, how many readers have ever heard of any of them (excepting Adams, who was after all married to an American President, and Wollstonecraft, more discussed of late for her sex life than her own writing given the scandalous biography her husband has published)? Between 1763 and 1783, the first British female historian Catharine Macaulay wrote a multivolume seventeenth-century political history of England. This is not a well-known work, despite her long friendship with our first President, George Washington, who held her in the highest esteem. The work of all these women show how wrong it is to assume that women are not the equals of men in matters of knowledge, words, reason, and wit. Women regularly and repeatedly show that they can write and think just as well as the most learned men. The fate of many of these writers and thinkers, however, illustrates how futile (and tiring) a task it can feel like to so demonstrate (and the need to demonstrate never seems to end). Women of ideas who are professionals are especially frustrated that such demonstrations and evidence do not alter their inferior status and second-class place. Yet, women at least have had (and will continue to have) opportunities to show what they can do (even if their efforts are often buried or discredited) and they may take to their pens to make “me too” demands for liberty and equality (even if, as in Abigail’s case, their own husbands, who purport to love them, impatiently deny their request for equal liberty; or William Godwin, whose biography of Wollstonecraft, which he claims to have written out of love, is in the process of destroying her reputation). I can write a whole book about this case and have done so. Nonhuman animals, whether wild or domesticated, are given no such chance to have their voices heard. If they are categorized as vermin, there is no way to protest. If nonhuman animals have good arguments as to why they are no one’s property except insofar as they own themselves, how are those arguments to be made and heard? How

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(and to whom) do they say, “we are not objects, we are subjects”? How to object that they are not “pirates” or “terrorists”? How to resist the “tyrannical” humans (and not just men), who everywhere enslave them for food, for fashion, and for entertainment? (The fashion world with its fur, and feathers, paint for ladies’ faces, and whale bone for corsets and hoop skirts is one of the worst. Women’s millinery alone results in the wholesale slaughter of untold scores of song birds.) And in practical terms, how do they hire a lawyer? “Sophia, A Person of Quality” noted that “possession” empowered men “to make violence take the place of justice.” Mary Astell challenged the fact that men “having possession of the pen, thought they also had the best right to it.” First possession should not create those violent exclusions and proprietary rights. Property, after all, is also about propriety, namely, what is proper and fit; it is not confined to the designation of a valuable commodity. A demand for just laws for women should not be rated “saucy” as John Adams replied to Abigail. It is proper and fit and due in as strong a sense as a bill of exchange or promissory note. Wollstonecraft wrote, “It is justice, not charity that is wanting in the world.” Justice must operate independently of preconceptions about who is superior and who is inferior, which entities have souls and which do not, in order to be justice at all. This is not a matter of intelligence or erudition. It is not even about having the necessary empathy towards the plight of others. It is about right reasoning, what is proper and fit, what is owed, what is due. Property law ought to include in its scope this sense of propriety. It was not proper for the judges and lawyers in this case to have made a Court of Dover out of the facts of this case, massaging them to fit the State of Nature debate that was of interest to them but for which others are left to pay. First, their capture rule is obtained at the expense of the party, Post, who ought to be left with his neighborhood determination when it involved no clear error of law. Second, their fun happens at the expense of the animal, who has lost her life and is hardly honored by the litigation and is mocked instead. And, third, if a capture rule is adopted, we must all live with the consequences. In the myth of “Diana and Actaeon” in Ovid’s Metamorphoses, Diana, the goddess of hunting, turned that saucy intruder Actaeon into a stag for coming upon her bathing in the woods. What will Gaia do once she is disturbed and enraged? A stag can still run wild and free, even if as in Actaeon’s case, his own hounds hunted him down and killed him. Push Gaia too far, though, and there will be nowhere to run and no chance of escape. I shudder to think about what will happen if we keep on with the attitudes so evident in this appeal, those expressed toward nonhuman animals and the environment, those celebrating the use of occupation to turn seemingly everything and

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everyone (except privileged White men) into private property, and the air of entitlement and superiority all of this expresses. I personally cannot let that pass for legal professionalism.

vii Conclusion We have seen that there is ample law to support a finding for Post. Given the absence of any clear error of law, as well as the wisdom of leaving the jury’s determination intact, I see no reason for ordering a reversal in this case. The hot pursuit rule is supported by much eminent authority and insofar as it provides the chased creature an opportunity to escape, it is arguably better than the capture rule that incentivizes Pierson’s opportunistic and unsportsmanlike behavior. However, I would not like to say anything in support of sports hunting given the prolonged distress this activity in its various guises visits upon so many millions of innocent creatures every year. The hot pursuit rule presupposes a qualified property in hunted animals, which I have argued here is inappropriate and not an inevitable legal outcome. Hence, the finding for Post is not based on it. The conclusion is rather a gesture of deference to the jury in the first instance, whatever their reasons were for making the initial 75¢ award. They did not necessarily see the Fox as Post’s because he started a property an expended labor in pursuit of it; they might well have thought he deserved something (though not much) for Pierson’s malicious interference. Animal lovers can take solace in the fact that 75¢ is not much of an endorsement for the hunt. The justice’s judgment ought to be affirmed and the 75¢ award restored. The costs here and below should be Pierson’s to pay.

part iii

Patents, Publicity Rights, and Trademarks

7 Commentary on Association for Molecular Pathology v. Myriad Genetics, Inc. dan l. burk

introduction The decision of the U.S. Supreme Court in Association for Molecular Pathology v. Myriad Genetics, Inc.1 was a landmark case addressing the subject matter provisions in Section 101 of the United States’ Patent Act.2 Represented by public-interest litigators from the American Civil Liberties Union (ACLU) and the Public Patent Foundation, a coalition of scientists, cancer patients, and genetic counselors successfully challenged and invalidated patents covering genetic DNA sequences. The Supreme Court decision drastically revised the understanding of patent-eligible subject matter, with sweeping implications for women’s health, for medical research, and for commercial biotechnology.

the patent system Patents constitute federally granted exclusive rights, an exercise of Congress’ constitutionally conferred enumerated power in Art. I, sec. 8, clause 8 to “promote the progress of science and useful arts” by securing to inventors the rights to their “discoveries.” The patent holder is awarded a twenty-year period of exclusivity, during which the patent holder can license or sell the claimed invention at monopoly prices, providing a reward or incentive for investing in the development of new technologies. The exclusive rights granted to the patent holder commence only after an extensive review of the inventor’s application by a federal agency, the United States Patent Office, in order to ensure that the invention meets stated statutory standards. The term of 1 2

569 U.S. 576 (2013). 35 U.S.C. §101 (2012).

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the patent then runs from issue by the Patent Office to end twenty years from date the application was filed. As a form of limited monopoly, patents are understood to impose a restraint on trade and to impede free use of the patented technology during the term of the patent,3 resulting in elevated prices and restricted output allowed under the patent. As a consequence, the availability of patents is statutorily restricted to novel and useful technologies that would not have been obvious at the time the patent was filed. The technology must also be fully disclosed in the patent document, which is published to disseminate the information on how to make and use the claimed invention once the patent expires. Federal law and policy allow and encourage the invalidation of patents that fail these standards. Patents may be declared invalid by a federal court if it concludes that the Patent Office improperly applied the statutory criteria. Original jurisdiction for claims of patent infringement or patent invalidity lie in federal district courts; exclusive appellate jurisdiction to review such decisions lies with the United States Court of Appeals for the Federal Circuit in Washington, D.C.

challenging genetic sequence patents The historic Myriad decision was the third in an early twenty-first-century quartet of United States Supreme Court opinions addressing the limitations of patent subject matter. Section 101 of the Patent Act sets forth four categories of subject matter that may be eligible for a patent – processes, machines, compositions of matter, and articles of manufacture – and is otherwise silent on what might not qualify for patent eligibility.4 But judicial glosses on the statute, including a set of mid-twentieth-century Supreme Court opinions interpreting Section 101, had established a common law exclusion of certain categories of human discoveries, such as abstract ideas, mental processes, laws of nature, and products of nature. Justice Thomas’s Myriad opinion was the first Supreme Court opinion to squarely address the “product of nature” exclusion. The patents at issue in Myriad were drawn to the nucleotide sequences for human genes designated BRCA1 and BRCA.5 Certain mutations in these genes are strongly correlated with the incidence of breast and ovarian cancers, especially in women of Southern European or Ashkenazi Jewish ethnicity. The patent holder, Myriad Genetics, had developed genetic testing procedures to identify patients at risk 3

4 5

Dan L. Burk, The Law and Economics of Intellectual Property: In Search of First Principles, 8 Ann. Rev. L & Soc. Sci. 397, 402 (2012). 35 U.S.C. §101. BRCA1 and BRCA2.

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of these cancers and, by virtue of its exclusive patent rights in the nucleotide sequences, was the only provider of such tests. The claims included two related types of DNA sequences that might be designated as “genes.” The first of these, genomic DNA or “gDNA,” constituted nucleotide sequences as they might be found in human chromosomes, and included non-coding regions of DNA that were inactive in gene expression. A second type of nucleotide sequence, complementary DNA or “cDNA,” was fashioned in the laboratory, but contained only the coding regions of the gene. The Myriad patents were by no means unusual. By the time of the Supreme Court’s historic Myriad decision, the United States Patent and Trademark Office had been routinely approving patents on newly isolated nucleotide sequences for more than thirty years. The doctrinal position of the Patent Office was that nucleotides are molecules, albeit large molecules, but should be treated in the same way that the Patent Office had treated other chemical substances. The Patent Office had a long history of granting patents on small molecule compounds when extracted from natural sources. The process of identification, characterization, isolation, and purification of compounds, whether nucleotide sequences or small molecules, was viewed as constituting sufficient human intervention to constitute patentable subject matter rather than a naturally occurring substance. In short, the Patent Office asserted that isolated and purified organic compounds do not exist in nature – they are unquestionably the product of human manipulation. The Obama administration somewhat surprisingly disregarded the practice and the advice of the executive agency charged with issuing and administering patents, the United States Patent Office, and instead followed the lead of its research arm in the National Institutes of Health, adopting the stance that gene patents impede biological research. Consequently, the Solicitor General filed, on behalf of the administration, a brief advocating the doctrinal outcome that the Supreme Court in fact adopted – forbidding patents on nucleotide sequences as found in the human genome, but allowing patents on nucleotide sequences generated in the laboratory via reverse transcription. This somewhat contradictory compromise appears to have been intended to give something to both the research community and the biotechnology industry – free access to genomic sequences for the former, and exclusivity over complementary DNA sequences for the latter. The result was an intellectually fractured opinion, in which Justice Thomas first declared genomic DNA sequences to be products of nature excluded from patent eligibility, but then declared complementary DNA sequences to fall within patentable subject matter. The rationales supporting this outcome are contradictory and diametrically opposed. According to Justice Thomas,

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gDNA sequences lack patent eligibility even though they differ structurally from molecules found in nature, because their informational content is equivalent to the sequences found in human chromosomes. At the same time, the opinion declares cDNA sequences to be patent eligible because they differ structurally from that found in the human chromosome – even though their informational content is equivalent to that found in the wild.

struggling with standing Unlike many areas of law that for decades have been the subject of feminist critique, patent law was long overlooked from any critical perspective.6 By the time of the Myriad litigation, a small but vigorous literature on the gendering of patents had emerged.7 Oncogene patents, such as those held by Myriad, had been identified as a particular women’s health issue, involving a condition that almost exclusively burdens one gender, albeit intertwined with persistent cultural fixations surrounding secondary female sex characteristics.8 ACLU litigators indicated the ways in which they drew on such critiques in structuring their suit, in particular their desire to validate women’s voices and experience in the context of the patent system.9 The feminist rewritten opinion by Professor Kali Murray and Professor Erika George, writing as Justice Murray and Justice George, is styled as a concurrence, accepting the outcome of the historic Thomas opinion, while advancing different rationales for reaching that result. The rewritten opinion begins with an extended discussion of standing, which was also a matter of considerable procedural difficulty in the actual case. Because original jurisdiction for patent adjudication lies in federal district court, the Myriad litigation was required to pass the Article 3 requirement for an actual “case or controversy” as federal courts are forbidden from rendering “advisory opinions,” meaning that plaintiffs must show some actual or imminent harm. In declaratory judgment actions such as the Myriad suit, where plaintiffs are seeking to invalidate patents that may be enforced against them, the Supreme 6

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See generally Kara Swanson, Intellectual Property and Gender: Reflections on Accomplishments and Methodology, 24 Am. U.J. Gender, Soc. Pol’y & L. 175 (2015) (tracing the arc of feminist jurisprudence in intellectual property). See, e.g., Eileen Kane, Molecules and Conflict: Cancer, Patients, and Women’s Health, 15 Am. U.J. Gender, Soc. Pol’y & L. 305 (2007). See, e.g., Dan L. Burk, Do Patents Have Gender?, 19 Am. U.J. Gender, Soc. Pol’y & L. 881 (2011). Sandra S. Park, The Challenge to Gene Patents as Feminist Patent Litigation, 19 Tech. & Innovation 659 (2018).

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Court has said that the “case or controversy” constraint requires a showing that there is a substantial controversy between adverse litigants that can be resolved by a definitive ruling. This standard proved problematic for nearly all of the plaintiffs in Myriad. In contrast to standard patent lawsuits between business competitors, the plaintiffs in Myriad were alleging more inchoate harms – the lack of diagnostic alternatives, the lack of affordable alternatives, or a chilling effect on proposed research due to the exclusivity embodied in the Myriad genetic patents. Only one plaintiff in the case survived dismissal for lack of standing, and then only barely. After considerable hand-wringing on the part of the intermediate Federal Circuit court of appeals, the judges found that one plaintiff who could show he was prepared to offer an infringing genetic test was sufficiently threatened by the Myriad patent that he could maintain a patent invalidity claim. To such difficulties of patent standing, the rewritten concurrence adds the problem of standing for purposes of the First and Thirteenth Amendments, which I address in greater detail below.

defining constitutional invention Murray and George, in their concurrence, initially track closely the majority opinion from Myriad, but rely on constitutional rather than statutory grounds to find that the gene sequences at issue are not “inventions” because they are not the creations of an “inventor.” Here, the rewritten opinion draws on the Supreme Court jurisprudence of patent law’s constitutional neighbor, copyright, to read into the congressional patent power a limitation that patent eligible inventions must be “original,” that is, that they must originate with the inventor. For example, facts cannot be the subject of copyright because they are viewed as immanent and preexistent, not the creations of human actions. This copyright doctrine effectively truncates acts of aesthetic creation from the causal order of the universe, making them the object of idealized ex nihilo generativity.10 Some commentators have argued that historical patent decisions entailed such a hidden originality requirement.11 Such a requirement, however, sits uncomfortably within the doctrine and rationale of patents. Unlike copyright, patent applications are judged against the statutorily defined prior art, that is, against documents and other human-generated references that were publicly 10 11

Dan L. Burk, Method and Madness in Copyright Law, 2007 Utah L. Rev. 587, 605. Oskar Liivak, The Forgotten Originality Requirement: A Constitutional Hurdle for Gene Patents, 87 J. Pat. & Trademark Off. Soc’y 261 (2005).

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available prior to a statutorily designated critical date. The originality criterion of the rewritten opinion seems to hint at embracing a rationale advanced by Justice Stevens in the Supreme Court’s decision Parker v. Flook,12 that “nature” should constitute a type of prior art against which patent eligibility should be judged. But the Court later repudiated the Stevens rationale since, as Justice Rehnquist observed, it carries the potential to gut the patent system, as all human inventions are founded upon natural laws and phenomena.13

patents and the thirteenth amendment As an alternate ground for constitutional invalidity of the patent, the rewritten opinion turns to the prohibitions on slavery and involuntary servitude found in the Thirteenth Amendment. Apprehension regarding patents and property in human bodies is not a new concern. As the rewritten opinion acknowledges, since the landmark Supreme Court decision in Diamond v. Chakrabarty14 holding that genetically modified living organisms were patent eligible, the United States Patent Office had asserted administrative policies prohibiting patents drawn to humans as subject matter. The Patent Office policy prohibiting such patent claims was based on the rationale that patents covering a genetically modified human would constitute a form of property right over a person in violation of the Thirteenth Amendment. Recent statutory amendments formalized the Patent Office prohibition barring patents drawn to “human organisms.” But the statutory change was not based on the Patent Office policy. Rather, it was advanced by congressional representatives concerned about the “right to life” of the unborn and that patents might be granted to altered zygotes or embryos falling outside the ambit of the Patent Office policy. Murray’s and George’s opinion reimagines the Thirteenth Amendment as encompassing a novel “anti-commodification” principle not found in either the text or history of the Amendment. As Michele Goodwin has documented in distressing detail, the Thirteenth Amendment has, since its adoption, been interpreted formalistically to apply only to the label of slavery, while doing essentially nothing to prevent the commodification and exploitation of people under other rubrics, such as debt peonage, convict leasing, and apprentice

12 13 14

437 U.S. 584 (1978). Diamond v. Diehr, 450 U.S. 175, 189 fn. 12 (1981). 447 U.S. 303 (1980).

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indentureship.15 The rewritten opinion would sweep far more broadly than this history, or for that matter than the Patent Office policy, potentially reaching a wide array of biologics, such as cell lines, antibodies, and hormones that are derived from the human body. The rewritten opinion gestures toward distinguishing genetic molecules on the basis that DNA sequences make up the genome that codes for individual phenotypes. But of course, the sequences on which the Patent Office granted patents, including those for BRCA1 and BRCA2, are not individually distinctive, but are rather common to nearly all people, since any given human shares more than 99.99 percent of his or her genetic complement with the rest of the species. Nothing would distinguish any particular genetic sequence derived from a given individual from those from thousands of others. Indeed, the basis for the Myriad genetic test was the correlation between DNA sequences shared by large populations and resulting clinical manifestations. Consequently, the genetic function of DNA does not provide a basis for limiting the sweep of the rewritten opinion to only gene sequences derived from the body. At the same time, the commonality of gene sequences complicates the Thirteenth Amendment standing question. DNA patents did not commodify any particular molecule found in any particular human body. To meet the requirement of human invention prior to Myriad, gDNA claims always specified sequences isolated from the remainder of their biological matrix. This raises additional problems of standing in identifying whose Thirteenth Amendment rights might have been violated by the Myriad patents. Assuming that the Court would be willing to recognize the Thirteenth Amendment as entailing a bodily “anti-commodification” principle, it is unclear who might suffer sufficient cognizable harm to bring a suit, particularly in the posture of a declaratory judgment. The best case for commodification of distinctive or individual materials might arise in the case of human-derived cell lines, which incorporate the entire complement of genes coding for an individual phenotype. This type of scenario formed the factual background for the famous, and perhaps infamous, opinion of the California Supreme Court in Moore v. Regents of the University of California16 – the darling of bioethicists wrestling with the ownership of human body materials. In an unusual fact scenario, John Moore had his spleen surgically removed as treatment for hairy cell leukemia. 15

16

See Michele Goodwin, The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass Incarceration, 104 Cornell L. Rev. 899 (2019). 793 P.2d 479, 490 (Cal. 1990).

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Without consulting, informing, or remunerating Moore, his physician used transformed cancer cells from the splenectomy to develop a commercially available laboratory cell line. When Moore sued for trespass and conversion, the California Supreme Court denied his property claims in part due to the patent covering the cell line. The court opined that the patent indicated that the cell line was the invention of the physician, and so differed from the raw materials extracted from Moore. While the Thirteenth Amendment rationale of the rewritten opinion would not create a common property right in Moore’s spleen cells, it could remove an impediment to such a right as identified by the California court by establishing a constitutional rationale for anticommodification.

patents and speech Murray’s and George’s opinion advances expressive freedom under the First Amendment as an alternative ground for its holding. Unlike its constitutional cousin, copyright law, which has a long history of academic commentary and judicial holdings regarding its relationship to the First Amendment, precedent regarding the intersection of patents and the First Amendment is essentially non-existent. This may stem from the perception that the technical subject matter of patents has little impact on expression, whereas copyright, like the First Amendment, is explicitly directed to expressive works. By the turn of the twenty-first century, however, it had become clear that expansive patent subject matter jurisprudence in the area of software and communications methods had placed numerous patents squarely within the ambit of the First Amendment’s prohibitions on governmental restrictions on speech.17 It was the expressive restrictions on such software patents that initially attracted the attention of the ACLU litigation team to patent law, prompting them to file an amicus brief in the Section 101 subject matter software patenting dispute that culminated in Bilski v. Kappos.18 There, the ACLU team cautioned the court that continued recognition of such patents implicated the First Amendment. These concerns matured into the Myriad subject matter challenge where, at the trial court level, the ACLU team argued that the Myriad patents and similar exclusive rights over genetic material restricted or curtailed freedom of scientific inquiry under the First 17 18

See Dan L. Burk, Patenting Speech, 79 Texas L. Rev. 100 (2000). Brief for Amicus Curiae American Civil Liberties Union for Affirmance in Support of Appellee, In re Bilski, No. 2007-1130 (Fed Cir. Apr. 3, 2008) https://www.aclu.org/legal-document/re-bilskiand-warsaw-aclu-amicus-brief?redirect=cpredirect/34783.

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Amendment.19 This claim did not survive passage through the intermediate stages of litigation to the Supreme Court. Some vestiges of that argument may be seen in Justice Thomas’s characterization of the genomic DNA molecule as an “informational” apparatus, and the informational content of the molecule qualified it as a product of nature. The rewritten opinion focuses not only on communication in scientific investigations, but in great measure on the exchange of information between doctor and patient, which Murray and George assert could be impeded by the exclusivity surrounding genetic patents; the exclusivity of the Myriad patents, for example, limited the options available for breast cancer testing. The rewritten opinion relies upon the exchange of information in a doctor–patient relationship, a consideration that is foundational to the Supreme Court’s jurisprudence in the line of reproductive rights cases under the Fourteenth Amendment. Ironically, more recent Supreme Court decisions have adopted just such a First Amendment prohibition on impediments to the communication of health-related information, leading to consequences that are deeply counterintuitive from the standpoint of either reproductive rights or medical communication. In NIFLA v. Becerra20 the Court held that the State of California could not require pro-life clinics to truthfully disclose to patients whether they offered abortion services, holding that this was an impermissible interference with commercial speech. The Becerra decision is consistent with the arc of the Court’s recent speech cases, using the First Amendment as a mechanism to deregulate business activity.21 Although patent invalidation was likely not the outcome the Court might anticipate from such decisions, given that patents are ultimately a form of market regulation, they might be susceptible to a deregulatory First Amendment.22 However, the First Amendment rationale opens a new dimension of standing not present in the other rationales discussed in the rewritten opinion. Constitutional challenges to state action may facially attack it as being unconstitutional under all circumstances, or the attack may focus on the particular instance experienced by the plaintiff. In the First Amendment context, the Supreme Court has long held that restrictions on speech may be challenged not only “as applied” by those who are directly harmed by the state action, but also as “overbroad” by others who have not been directly harmed. At the same 19

20 21 22

Sandra S. Park, Gene Patents and the Public Interest: Litigating Association for Molecular Pathology v. Myriad Genetics and Lessons Moving Forward, 15 N.C. J.L. & Tech. 519 (2014). NIFLA v. Becerra, 138 S. Ct. 2361 (2018). See Amanda Shanor, The New Lochner, 133 Wisc. L. Rev., 179–180 (2016). Dan L. Burk, Content Discriminatory Patents: A Response to Professor Chiang, 108 Geo. L.J. Online 37 (2019).

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time, due to the difficulty of crafting regulation that never burdens speech, this type of standing under the First Amendment would require a higher showing of substantial overbreadth.23 Meeting the requirement for substantial overbreadth might necessitate challenging the underlying statute itself rather than the particular patent, but doing so could alleviate the difficult problem of showing direct harm from the patent. The intersection of the Myriad patents with the First Amendment generates a number of other doctrinal questions to which the rewritten opinion offers sparse guidance. A critical question for any First Amendment analysis is the reviewing court’s choice between intermediate and strict scrutiny. Strict scrutiny nearly always results in a finding of constitutional violation due to the nearly impossible requirement that the state show a compelling governmental interest furthered by the least restrictive means. Some commentators have suggested that patents may entail the expressive content discrimination to trigger such scrutiny.24 But other commentary argues that patent claims pose only an incidental burden on speech, in which case the constitutionality of the Myriad claims might rest on intermediate scrutiny.25 In that case, a patent would be overturned on First Amendment grounds only if the patent, or the patent system, fails to further a substantial governmental interest. But Congressional promotion of the useful arts via patents, as empowered by the Constitution, must surely be a substantial and perhaps compelling interest.

feminist alternatives The rewritten opinion advances novel constitutional grounds for the result in Myriad. There is of course considerable peril in relying upon the Master’s tools in this fashion. Parsing the divide between human “inventions” and natural “discoveries” accepts the dualism that some molecules are the product of human ingenuity and some are awaiting recognition in the wild. But as Donna Haraway points out, masculinized concepts of science contemplate “nature” as simply the raw materials for human culture.26 Barring the BRCA1 and BRCA2 sequences from patent eligible subject matter precludes defined ownership, and instead defines their status as part of a romanticized

23 24 25 26

Dan L. Burk, Patents and the First Amendment, 96 Wash. U. L. Rev. 197, 254 (2018). Id. at 245–250. Tun-Jen Chiang, Patents and Free Speech, 107 Geo L.J. 309, 326 (2019). Donna Haraway, Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective, 14 Fem. Stud. 575, 592–593 (1988).

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conception of the public domain.27 This implicitly opens the way to their alienation, objectification, appropriation, and (non-patent) commodification.28 As eco-feminist scholarship has observed, unowned natural resources typically become the objects of unconstrained exploitation, often encompassing metaphors of sexual violence directed toward the material world.29 Indeed, since the historic Myriad opinion, genetic appropriation has continued, deploying even less desirable mechanisms such as trade secrecy.30 Similarly, the rationale of patentable “originality” bifurcates new technologies from their communal and situational milieu. Scientific discoveries and technical creations are never the product of a single genius – they always rest upon the efforts and contributions of an extended network of actors, spread across time and space. Feminist scholars have long been adept at detecting and critiquing such “invisible work.”31 The rewritten concurrence gestures toward such communal development by recognizing the unrewarded contributions of Dr. Mary-Claire King in the search for breast cancer oncogenes. But throwing new discoveries into the public domain does little to recognize unrewarded contributions. At the same time, advancing the concept of “original” inventions as patent eligible either eviscerates the patent system – since no invention is ever romantically “original” in this sense – or reduces the relevant legal focus to a single actor or set of actors, valorizing only a highly circumscribed set of actions, objectifying the outcome of those actions, and awarding individualized ownership in order to encourage commodification of the claimed invention. Ultimately, such dilemmas can only be resolved by traversing the dualisms that surround possession, exclusion, and exploitation under the patent system. Feminist perspectives provide a number of avenues to such a result. In neighboring copyright jurisprudence, some commentators have advanced feminist relational theories to reposition authorship away from originality into communality; one can imagine a similar move in patent theory regarding

27

28 29

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Anupam Chander & Madhavi Sunder, The Romance of the Public Domain, 92 Calif. L. Rev. 1331 (2004). Marilyn Strathern, The Patent and the Malanggan, 18 Theory Culture & Society 1 (2001). Dan L. Burk, Feminism and Dualism in Intellectual Property 15 J. Gender, Soc. Pol’y & L. 183, 200–202 (2007). Dan L. Burk, Patents as Data Aggregators in Personalized Medicine, 21 B.U. J. Sci. & Tech. L. 233 (2015). See, e.g., Ruth Schwartz Cowan, More Work for Mother: The Ironies of Household Technology from the Open Hearth to the Microwave (1983); Maxine L. Margolis, Mothers and Such: Views of American Women and Why They Changed (1984).

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inventorship.32 Some patent commentators have alternatively postulated the development of a “protected” public domain, with limited rather than limitless extraction.33 Others have inverted the current conception of patents and attempted to reimagine them as an encompassing right of inclusion rather than exclusion.34 Such feminist resolutions would help escape the binary choice in patent propertization.

ASSOCIATION FOR MOLECULAR PATHOLOGY V. MYRIAD GENETICS, INC., 569 U.S. 576 (2013)

justice kali murray, with whom justice erika george joins, concurring in part and dissenting in part The public has a substantial interest in having a functional and equitable patent system. An invalid patent, like an invalid statute, can have significant effects on a range of social interests. Those interested in a properly functioning patent system are many and varied: scientists, researchers, and engineers creating advances in technology; manufacturers and designers implementing and vending these advances in the marketplace; consumers putting these inventions and discoveries to their own productive use; patients who may need access to healthcare advances generated by patents; and individuals whose genetic information may serve as the basic elements of patentable research. Just as these stakeholders benefit from a properly functioning patent system, they can suffer injury from invalid patents. And injury calls upon the courts to make the injured whole. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). Although concurring with the holding, this separate opinion emphasizes that a patent can cause social “harms” beyond the more commonly recognized harm to competitive injury. This concurring opinion is structured in three parts. First, it asserts that the Declaratory Judgment Act provides for broader standing claims for injured individuals and groups than are currently recognized. Particularly, it stresses that the harms caused by an improvidently issued patent intersect with the broadened standing claims under the First and 32

33

34

See Carys Craig, Copyright, Communication, and Culture: Toward a Relational Theory of Copyright Law (2011). Laura Foster, Patents, Biopolitics, and Feminisms: Locating Patent Law Struggles over Breast Cancer Genes and the Hoodia Plant, 19 Int. J. Cult. Prop. 371 (2012). Geertrui van Overwalle, Inventing Inclusive Patents: From Old to New Open Innovation, in Kritika: Essays on Intellectual Property, Vol. 1 352 (Peter Drahos, Gustavo Ghidini, & Hanns Ulrich eds., 2015).

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Thirteenth Amendments. It also emphasizes that this Court should act to end the injury imposed upon individual and organizational plaintiffs who find that their ability to give and receive information under the First Amendment has been improperly impeded, along with the injury to liberty and dignity of persons protected by the US Constitution. Second, this opinion examines the relationship of Section 101 of the Patent Act to the constitutional requirement of invention. It stresses that Myriad’s patents in human genes and related methods fail the constitutional prerequisite of invention as embodied in Article I, Section 8, Clause 8 of the Constitution. Finally, this opinion asserts that Myriad’s patents should be seen to directly violate the First Amendment of the Constitution in its harms to various downstream speakers and the Thirteenth Amendment injuries emanating therefrom implicate the noncommodification principle embodied in the Thirteenth Amendment and threaten the liberty and dignity of persons protected by the Constitution.

i The Declaratory Judgment Act permits “any interested party” to seek a court’s declaration of “rights and other legal relations” involved ”[i]n a case of actual controversy.” 28 U.S.C. §2201(a) (2006). The Declaratory Judgment Act’s remedial purposes are well understood. See, e.g., MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007); 10B Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure §2751 (3d ed. 2011). The majority notes, in passing at footnote 3, that one set of plaintiffs – medical researchers – likely had standing under the Declaratory Judgment Act. Regrettably, the Court did not consider whether the Declaratory Judgment Act allows a right of a more diverse range of patent stakeholders to raise claims against improvidently granted patents. Obviously, an improvidently granted patent can cause competitive harm within the marketplace. The Court of Appeals for the Federal Circuit’s standing jurisprudence, however, has fixated on competitive injury, rather than the concrete and particularized injuries experienced by diverse stakeholders that may have “broader concerns” raised by invalid patents. Kali N. Murray, Rules for Radicals: A Politics of Patent Law, 14 J. Intell. Prop. L. 63, 77–79 (2006); citing Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 Stan. L. Rev. 1371, 1461 (1988). The Federal Circuit has repeatedly refused to grant standing to diverse stakeholders. In one case, the Federal Circuit denied various plaintiffs’ claims under the Administrative Procedure Act (APA) against the Commissioner of the USPTO, deciding that the associations and individuals suing had not alleged

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injuries within the “zone of interests” contemplated by the Patent Act of 1952 (Patent Act). Animal Legal Def. Fund v. Quigg, 932 F.2d 920, 937–938 (Fed. Cir. 1991). The court also held that post-grant reexamination proceedings were also closed to a third-party requester in Syntex (U.S.A.) Inc. v. USPTO, 882 F.2d 1570, 1571 (Fed. Cir. 1989). Perhaps the reason standing has been denied to a more diverse range of stakeholders stems from different understandings underlying the purposes of the patent system – to reward private innovation or to protect the public interest in competition through the recognition of competitor injury. In any event, the Federal Circuit’s jurisprudential choices have, as a result, tightly bound third parties’ rights to recourse for injuries caused by patents. The Federal Circuit’s position is inconsistent with the historical purposes of the Declaratory Judgment Act, as well as the primary purpose of validity challenges under the Patent Act. Initially, “[i]t is quite possible that in no other branch of the law has the Declaratory Judgment Act assumed such significance and magnitude as in the litigation of patent causes.” Sidney W. Russell, Some Patent Aspects of Declaratory Procedure, 32 J. Pat. Off. Soc’y 504, 504 (1950) (footnote omitted). Indeed, the passage of the Declaratory Judgment Act ameliorated significant procedural deficiencies in patent litigation. The Patent Act and its predecessors granted patentees’ the power of initiative: that is, the power to bring suit for infringement. See 35 U.S.C. §281 (2006). If a patentee declined to bring suit, the threat of a so-called scarecrow patent would linger, chilling innovation and competition alike. See Cardinal Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83, 96 (1993) (“Merely the desire to avoid the threat of a ‘scarecrow’ patent, in Learned Hand’s phrase, may therefore be sufficient to establish jurisdiction under the Declaratory Judgment Act.”) (footnote omitted) (quoting Bresnick v. U.S. Vitamin Corp., 139 F.2d 239, 242 (2d Cir. 1943)). Additionally, this Court has stressed that the question of a patent’s validity – as opposed to the separate question of whether a particular patent has been infringed by a particular party – lends itself to broader inquiry since patent validity questions are imbued with “greater public importance” than infringement charges. Id. at 100 (quoting Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327 (1945)). Our case law indicates that we favor “authoritative testing of patent validity” and the “removal of restrictions on those who would challenge the validity of patents.” Blonder-Tongue Laboratories, Inc. v. Univ. of Ill. Found., 402 U.S. 313, 344–345 (1971). For example, in Altvater v. Freeman, 319 U.S. 359, 363, 365 (1943), this Court held that “a decision of non-infringement . . . does not dispose of the counterclaim which raises the question of validity” in a case

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where a patent licensee acquiesced in paying royalties, though it did so “under protest.” Likewise, in Cardinal Chemical Co. v. Morton International, this Court held that an adjudication of patent noninfringement does not moot questions surrounding the noninfringed patent’s validity. 503 U.S. at 98. The public importance of challenging patent validity is even more vital to achieving the remedial purposes of the Declaratory Judgment Act within patent law. Indeed, we have encouraged the Federal Circuit to adopt a flexible inquiry in declaratory judgment standing contexts as recently as MedImmune v. Genentech, 549 U.S. 118 (2007). In that case, this Court required “all the circumstances” to be considered when determining whether a live controversy existed between the parties, an actual conflict that could be conclusively resolved through declaratory relief, as opposed to a merely advisory opinion. Id. at 12; quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941); cf. Muskrat v. United States, 219 U.S. 346 (1911). In doing so, MedImmune rejected the Federal Circuit’s test requiring a “reasonable apprehension” of a patent infringement suit to establish standing. MedImmune, 549 U.S. at 132– 133 n.11. Despite this Court’s express admonishment and the Federal Circuit’s acknowledgment of MedImmune, for example, Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 653 F.3d 1329, 1343, Fed. Cir. 2011, the Federal Circuit’s current declaratory judgment standing test reintroduced the nowdefunct “reasonable apprehension” test as an important element in its totality assessment and refashioned the meaningful preparation element in a similar manner. Megan M. La Belle, Standing to Sue in the Myriad Genetics Case, 2 Cal. L. Rev. Cir. 68, 83 (2011). In doing so, the Federal Circuit’s decision below violated the letter of the law in MedImmune – by refusing to consider “all the circumstances” attending justiciability – and the spirit of this Court’s tradition of providing greater opportunities to challenge invalid patents. Specifically, a significant factor to be examined as to whether the District Court’s jurisdictional approach should be upheld, amongst the other factors, is the collective Plaintiffs’ claim that Myriad’s enforcement of its patents rights, under Section 101, violates their First Amendment and Thirteenth Amendment rights. Here, the collective Plaintiffs’ claims range from a pre-enforcement challenge to an actual threat of enforcement. While under some circumstances these claims would not be sufficient under this Court’s “totality of circumstances” standard, see Innovative Therapy, Inc., v. Kinetic Concepts, Inc., 599 F.3d 1377, 1380–1383 (Fed. Cir. 2010), the lenient standards typically associated with claims brought under the First Amendment counsel in favor of finding standing under the circumstances alleged by the collective Plaintiffs here.

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It is only appropriate (as may be the case here) that, under the totality of circumstances to consider within the context of Section 101, a “threshold” challenge exists to patent validity to ensure that the governmental grant of a patent does not unduly limit the expressive claims of others or harm the interests of others not to be subordinated by property ownership. Initially, Section 101 of the Patent Act is a primary vehicle for cabining the potential expressive harms associated with a patent. As this Court recognized in Eldred v. Ashcroft, 537 U.S. 186, 217 (2003), the expressive impact of a patent differs in kind from a copyright, as a patent represents a “monopoly of expression” that differs in kind from a copyright. A “copyright gives the holder no monopoly on any knowledge” while the grant of a patent prevents the “full use by others of the inventor’s knowledge.” Id. Thus, the constitutional prerequisite of invention as embodied in Section 101, and the exclusionary principle embodied in the common law exceptions to Section 101, serve to limit the harms that could result from a grant of exclusive rights on an undue “monopoly of expression.” In this, they serve as “built-in First Amendment accommodations.” Golan v. Holder, 565 U.S. 302, 328 (2012). Thus, the common law exceptions to patentable subject matter are analogous to the idea–expression dichotomy, 17 U.S.C. §102(b) (2006), and the fair-use exception, 17 U.S.C. §107, which provide similar protections within copyright law of First Amendment values. Additionally, the common law principles associated with Section 101 could provide a vehicle for considering when ownership of a patent could cause the subordination of others under the Thirteenth Amendment.

ii This separate concurring opinion also argues that the BCRA1 and BRCA2 patents violate the common law exceptions outlined in Section 101 of the Patent Act. Article I, Section 8, Clause 8 of the Constitution grants to Congress the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const. Art. I, §8, Cl. 8. This constitutional grant creates a parallel equivalence – it protects authors in their writings and protects inventors in their discoveries. Eldred v. Ashcroft, 537 U.S. 186, 223 (2003); “[T]he grant of exclusive rights to their writings and discoveries is intended to encourage the creativity of ‘Authors and Inventors.’” (Stevens, J., dissenting). Where “the sine qua non of copyright is originality,” the sine qua non of patent is invention. Feist Pubs. Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345 (1991). As aptly summarized by one commentator, “[i]nvention – both for patent eligibility and for patentability – thus require[s]

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creativity in the application of scientific discoveries; that is, more than merely applying the discoveries to a new use, as reflected in the particular machinery or method steps described and claimed in the patent.” Joshua D. Sarnoff, Patent-Eligible Inventions After Bilski: History and Theory, 63 Hastings L.J. 53, 68–69 (2011) (emphasis in original). The requirement of invention serves the same purpose as its textual equivalent, “originality” in copyright law, that is, ensuring a basic level of independent creation by the inventor. Compare Feist, 499 U.S. at 345 (“Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.”), with William Callyhan Robinson, The Law of Patents for Useful Inventions 103 (1890) (“An invention is the result of an inventive act.”). The requirement of invention in patent law, unlike the requirement of originality in copyright law, requires more than a minimum degree of creativity and has been clarified through statute in §103 of the Patent Act. Specifically, §103 requires an inventor demonstrate that the claimed invention would have been non-obvious over the teachings in the prior art based on a series of objective factors, including the scope and content of the prior art, the level of ordinary skill in the art, and the differences between the prior art and the claimed invention. Section 103 replaces what had often been a difficult inquiry into the inventor’s state of mind at the time of invention. See McClain v. Ortmayer, 141 U.S. 419, 427 (1891) (“[T]he truth is, the word [invention] cannot be defined in such manner as to afford any substantial aid in determining whether a particular device involves an exercise of the inventive faculty.”; Graham v. John Deere Co. of Kan. City, 383 U.S. 1, 12 (1966)). The existence of more specific codification under §103 of what level of creativity is required does not eliminate the other requirement of invention found in §101, namely that an invention originate with the inventor. The constitutional prerequisite of invention, therefore, serves to explain its embodiment in statutory and common law content of patent law. Statutory recognition of this prerequisite has been included in some form since §1 of the Patent Act of 1790 granted invention to those who had “invented or discovered” patentable subject matter. Patent Act of 1790, ch. 7, §1 (1790); see also Patent Act of 1836, ch. 357, 5 Stat. 117 (July 4, 1836); Patent Act of 1870, ch. 230, 16 Stat. 198–217 (July 8, 1870); Patent Act of 1952, Pub. L. No. 82–593, 66 Stat. 792. Likewise, the exclusionary principles embodied by the common law exceptions to Section 101 also embody the constitutional prerequisite of invention by suggesting “laws of nature, physical phenomena, and abstract ideas” are not

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patentable. Bilski v. Kappos, 561 U.S. 593, 601 (2010); quoting Diamond v. Chakrabarty, 447 U.S. 303, 309 (1980) (internal quotation marks omitted). These common law exceptions then both specify “when an eligible ‘invention’ has been created within the statutory classes of things and process enumerated in section 101,” Sarnoff, supra at 93, as well as “reflect the absence of fulfillment of the critical statutory requirement of section 101 that a person ‘invents or discovers’ one of the specified classes of subject matter, and are not exceptions to those classes of subject matter.” Id. (emphasis in original). These common law exclusionary principles suggest that our patent system has dual objectives. Our patent regime seeks not only to incentivize the creative activity of an inventor, but also to protect the underlying basis for creative activity by preserving certain types of information, such as the laws of nature, physical phenomena, and abstract ideas from patent claims that would serve to block access to these basic building blocks of scientific research and information. Patents should not be granted on isolated human genes because such genes do not owe their origin to an act of inventorship. Feist, 499 U.S. at 345. No one truly “invents” natural occurrences or scientific principles (e.g., in re Norris, 179 F.2d 970, 972 (C.C.P.A. 1950); Reynolds v. Emaus, 87 F. Supp. 451, 453 (W.D. Mich. 1949)). “This Court has recognized, however, that too broad an interpretation of this exclusionary principle could eviscerate patent law.” Mayo Collaborative Servs. v. Prometheus Laboratories, Inc., 566 U.S. 66, 72 (2012). “[A]ll inventions at some level embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.” Id. The question, as embodied in the Constitution, Section 101, and the common law, then, is how to distinguish between a natural occurrence, abstract idea, or scientific principle, which should be available to the public, and an invention that can be patented. See id. The answer is a simple one: in order to assess whether an invention should be accorded the relevant patent protection, a basic inquiry must be made whether the invention originates with the inventor. U.S. Const. art. I, §8, cl. 8 (granting “to . . . Inventors the exclusive Right to their . . . Discoveries. ”) (emphasis added). Patentable inventions originate with inventors; invention is the result of their inventive act. The contours of this test are suggested by this Court’s analysis in Feist, 499 U.S. at 347. In Feist, this Court stated that factual information was not original because a fact’s origin does not stem from the acts of any one author. Id. (“The first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence.”). The existence of information that has been discovered does not reside with the discoverer. Id. Rather, the information existed before it was discovered and, for that reason, the

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information is not original. Id. The distinction Justice O’Connor in Feist draws is “one between creation and discovery.” Id. This Court has concluded that facts, including scientific ones, are not original and therefore do not warrant copyright protection. Id. at 347–348, 350. Myriad’s “discovery” of the human BRCA gene was merely discovery of already existing facts; thus, the human gene did not originate with Myriad. See id. at 347. Myriad has failed to demonstrate that its isolated gene resulted from independent creation. Myriad did not identify the chromosomal location of the human gene. Rather, Dr. Mary-Claire King led a team of researchers to initially map the human BRCA gene. See Jeff M. Hall et al., Linkage of EarlyOnset Familial Breast Cancer to Chromosome 17q21, 250 Science 1684 (1990). Myriad did not invent a new sequencing technique to identify the nucleotide sequence of the BRCA gene. Myriad merely applied known sequencing techniques to identify the nucleotide sequence of the BRCA gene. See Ass’n for Molecular Pathology v. U.S. Patent and Trademark Office, 653 F.3d 1329, 1373 (2011) (Moore, J., concurring). Myriad’s assertion of inventiveness rests on its isolation of the human gene; however, this act is not inventive as understood in the relevant law. In re Merz, 97 F.2d 599, 601 (1938) (holding that there was no right to a patent on a purer version of ultramarine, but recognizing that if a claimed article is “of such purity that it differs not only in degree but in kind it may be patentable”); see also in re King, 107 F.2d 618, 620 (C.C.P.A. 1939) (discussing purified vitamin C); in re Marden, 47 F.2d 958, 959 (C.C.P.A. 1931) (discussing purified vanadium); Gen. Elec. Co. v. DeForest Radio Co., 28 F.2d 641, 643 (3d Cir. 1928) (discussing purified tungsten). A demonstration of an inventive act regarding purification of a natural substance is only sustainable if the “purification” results in a product with such distinct characteristics that it becomes “for every practical purpose a new thing commercially and therapeutically.” Parke-Davis & Co. v. H.K. Mulford Co., 189 F. 95, 103 (C.C.S.D. N.Y. 1911); see also Merck & Co. v. Olin Mathieson Chem. Corp., 253 F.2d 156, 161–164 (4th Cir. 1958). No marked change in functionality occurs by isolation of genes. Katherine Booth, Isolated DNA Patents: Incentivizing Medical Research or Selling Human Identity: Association for Molecular Pathology v. U.S. Patent and Trademark Office, 40 J.L. Med. & Ethics 413, 414–415 (2012). Isolated genes are not materially different from their native counterparts. Id. The nucleotide sequence of the BRCA gene remains the same whether the gene is in the human body or isolated although chemical bonds may be altered through the process. Alberts et al., The Molecular Biology of the Cell 552 (5th ed. 2008) (DNA sequencing involves the cutting of chromosomal DNA into fragments

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and the inserting of the DNA fragments into a self-replicating genetic element). The only difference between a naturally occurring gene, like BRCA, and an isolated gene is that the isolated gene has been “cut” from the naturally occurring chromosome where it is located. See id. In that respect, an isolated gene is similar to a “new mineral discovered in the earth,” or a “new plant found in the wild.” See Chakrabarty, 447 U.S. at 309. Indeed, if we further examine a process at stake in Chakrabarty, the distinction becomes even more clear; the protected invention was the production of a “human-made” bacteria, which contained characteristics “possessed by no naturally occurring bacteria.” Id. at 305. Thus, in Chakabarty, the invention involved a marked change in functionality between the product found in nature as the modified bacterium at issue differed substantively from its natural counterpart. The claimed human gene does not qualify as an invention because it does not have a sufficiently distinct function from its origins as a natural product. Consequently, Myriad has failed to demonstrate that the isolated human BRCA gene is the result of Myriad’s inventive act.

iii The BCRA 1 and the BRCA patents pose direct harm under the First Amendment and Thirteenth Amendment of the United States Constitution. A Whether experienced as a direct harm under the First Amendment, or an indirect harm under Section 101 of the Patent Act, patents on human genes and diagnostic methods that utilize those genes place First Amendment values at risk by improperly impeding the exchange of ideas and access to important information. The First Amendment “right to receive information” is central to a “threshold” inquiry under Section 101. This Court has long recognized a right to receive information grounded in the First Amendment of the U.S. Constitution. “The right to know or to hear or receive information, is in theory one of the principal underpinnings of the First Amendment, but it has usually remained in the shadows of legal battles over free speech and press.” Am. Meat Inst. v. Ball, 424 F. Supp. 758, 768 (D.C. Mich. 1976). In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976), this Court clearly articulated that the First Amendment protection enjoyed by advertisers seeking to disseminate information is also enjoyed by and could be asserted by consumers. Id. at 782. As noted in Kleindienst v. Mandel, 408 U.S. 753, 762–765 (1972), “in a variety of contexts this Court has recognized a First

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Amendment right to ‘receive information and ideas’” and “[i]t is now well established that the Constitution protects the right to receive information and ideas.” Id. The “right to receive information” presumes that the freedom of expression protects the exchange of ideas and information. Accordingly, the First Amendment protects communication “to its source and to its recipients both.” Virginia State Board of Pharmacy, 425 U.S. at 757. “[T]his right [to receive] is an inherent corollary of the rights of free speech . . . the right to receive ideas follows ineluctably from the sender’s First Amendment right to send them,” Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867, 102 S. Ct. 2799, 2808, 73 L. Ed. 2d 435 (1982), but this right is “a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom.” Id. The right to receive information, consequently, reflects a theory of speech that prizes, as described by Susan Williams, a claim that “truth is understood as constructed through social relationships.” Susan H. Williams, Democracy, Freedom of Speech and Feminist Theory: A Response to Post and Weinstein, 97 Va. L. Rev. 603, 606–609 (2011); Alison Adam, Exploring the Gender Question in Critical Information Systems, 17 J. Info. Tech. 59, 64 (2002) (a critical information system must be based on a theory of the First Amendment that stresses a relational theory of speech has two key characteristics, attention to the social and cultural context for speech and attention to its emancipatory consequence). Initially, the right of information embodies the concept that preserving the autonomy of discourse between the parties is crucial for protection under the First Amendment. For instance, we have rejected restraints on freedom of expression that would place physicians in an “undesired and uncomfortable straightjacket,” Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 67 (1976), because it remains the responsibility of physicians to ensure that appropriate information is conveyed to their patients based on the condition of the patient. City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 443 (1983). This Court has consistently cleared “obstacles in the path of the doctor” upon whom patients are entitled to rely for advice in connection with healthcare decisions. Id. (citing Whalen v. Roe, 429 U.S. 589, 604 n.33 (1977)). In the physician–patient relationship, patients expect that physicians will not withhold relevant information regarding care options and consequences. Rust v. Sullivan, 500 U.S. 173, 211, 218 n.3 (1990) (Blackmun, J., dissenting) (“In our society, the doctor–patient dialogue embodies a unique relationship of trust . . . each of us attaches profound importance and authority to the words of advice spoken by the physician.”).

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Moreover, the right of information requires that parties engaged in discourse should be able to experience the receipt of such information in an equal manner. For example, in Conant v. Walter, 309 F.3d 629 (9th Cir. 2002), the Court of Appeals for the Ninth Circuit upheld the issuance of an injunction to protect First Amendment rights where the interest in information exchange in the context of the physician–patient relationship was adverse to other legal interests. In Conant, the controversy was, inter alia, over a statutory prohibition on the ability of doctors to offer counsel as to the use of medical marijuana to their patients. Id. at 637. Writing in concurrence, Judge Kozinski noted that “the right to hear – the right to receive information – is no less protected by the First Amendment than the right to speak” as “the right to hear and the right to speak are flip sides of the same coin.” Id. at 644. However, “the harm to patients from being denied the right to receive candid medical advice is far greater than the harm to doctors from being unable to deliver such advice.” Id. at 643. He further noted that, “for patients who suffer from horrible disabilities, . . . [e]nforcement of federal policy [would] cut such patients off from competent medical advice and leave them to decide on their own.” Id. at 644. The cases related to the First Amendment right to information have direct relevance to patent law. There can be no doubt that a direct First Amendment claim exists here since the grant of a patent is a matter between “the public, who are the grantors, and . . . the patentee.” Butterworth v. U.S. ex rel. Hoe, 112 U.S. 50, 59 (1884). By “issuing patents,” the government “take[s] from the public rights of immense value, and bestow[s] them upon the patentee.” United States v. Am. Bell Tel. Co., 128 U.S. 315, 370 (1888). Thus, grants of patents are “public franchises” that the government grants “to the inventors of new and useful improvements,” Seymour v. Osborne, 11 Wall. 516, 533 (1871), and like other public franchises can be subject to a First Amendment inquiry. For example, as we noted in Red Lion Broad. Co. v. F.C.C., 395 U.S. 367, 390 (1969), the grant of a broadcast license is permissible, “[b]ut the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment.” We further noted that “[i]t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.” Additionally, an improvidently issued patent directly implicates the right to information because such patents undermine both the autonomy of discourse and the equality of discourse. First, an improvidently issued patent may impact the autonomy of discourse between members of a particular research community. “In science, the relation between experiment and free thought is familial. Although the pursuit of knowledge is not the summum bonum but

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only one good among many, one hesitates to impede it or to set a precedent that might be used to inhibit other socially controversial precedent.” Stephen Breyer & Richard Zeckhauser, The Regulation of Genetic Engineering, 1 Man & Medicine 1, 12 (1975). An improvidently granted patent undermines the autonomy of discourse by limiting access to the basic research. Human gene patents inhibit scientific innovation in this area because this genetic material constitutes a “staple” public good that needs to be accessible to a range of users as a basic precondition for inquiry and innovation. Graham v. John Deere Co. of Kan. City, 383 U.S. 1, 6 (1966) (prohibiting the issuance of patents that “restrict[s] free access to materials already available”). This Court also cautions against enlarging a patent monopoly “without regard to the innovation, advancement or social benefit gained thereby.” Id. This reflects a judgment that patent protection in certain cases impedes, rather than promotes, scientific progress. See Lab. Corp. of Am. v. Metabolite Labs., Inc., 548 U.S. 124, 127–28 (2006) (Breyer, J., dissenting). Blocking access to this staple good of communication may remove essential information generated by the examination from the marketplace of ideas and “contract the spectrum of available knowledge” inconsistent with “the spirit of the First Amendment.” Griswold v. Connecticut, 381 U.S. 479, 482 (1965). Scientific inquiry necessarily involves shared discourse between researchers within a discipline. Patents granted in these “vocabulary” or “building blocks” of discourse may impede such freedom because researchers might have to pay to license the invention or, worse, face the costs of an infringement suit. See Barry P. McDonald, Government Regulation or Other “Abridgments” of Scientific Research: The Proper Scope of Judicial Review Under the First Amendment, 54 Emory L. Rev. 979, 997 (2005) (advocating a strict standard of review for actions which “significantly curtail a given area of research by impeding the data gathering efforts and thus curtail scientific expression related to that research”); see also Metabolite Labs., Inc., 548 U.S. at 127 (discussing how improperly issued patents can force researchers to engage in “costly and time-consuming searches of existing or pending patents, by requiring complex licensing arrangements, and by raising the costs of using that patented information, sometimes prohibitively so”). Second, while an issued patent may offer basic disclosure to a patent, a patentee might also limit the ability of a member of the relevant discursive community to use the patent. See 35 U.S.C. §271 (patent infringement may arise when one uses any patented invention without authority). Discourse within a scientific community necessarily involves a subsidiary interest in experimentation and an improvidently issued patent may impact the ability of a community to conduct experiments on a broad range of discourses related

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to the patent, see, e.g., Rebecca Eisenberg, Patents and Data-Sharing in Public Science, 15 Indus. Corp. Change 1013, 1015 (2006) (outlining impacts on patent in use practices in research communities), or to tinker with disclosed information, see, e.g., Matthew Rimmer, The Freedom to Tinker: Patent Law and Experimental Use, 15 Expert Opinion on Therapeutic Patents 167–200 (2005) (a comparative examination of “tinker” regimes in patent law). Additionally, the improvidently granted patents undermine the right to equality in discourse. While researchers and physicians might like to offer gene testing to a wider set of individuals, they are constrained by the threat of patent infringement. This has a potential to leave patients to make decisions on their own from a position of uncertainty without the benefit of full information due to barriers to access to genetic testing, which is offered exclusively by Myriad. See Conant, 309 F.3d at 644 (Kozinski, J., concurring) (while cancer patients may seek information from other sources, any such sources would be “poor substitutes for a medical doctor; information obtained from chat rooms and tabloids cannot make up for the loss of individualized advice from a physician with many years of training and experience.”). Likewise, although the majority does not directly address Myriad’s diagnostic methods, it bears mentioning that Myriad’s method patents on diagnostic methods may also disproportionately impact one type of advocate – public health advocates in the dissemination of genetic information to targeted communities. The ability of communities to receive information about health-related risks is crucial for a functional public health system. See Wendy Parmet, Public Health and Constitutional Law: Recognizing the Relationship, 10 J. Health Care L. & Pol’y 13, 22 (2007). Speech is crucial to the dissemination of relevant healthcare information. Wendy Parmet & Jason Smith, Free Speech and Public Health: A Population-Based Approach to the First Amendment, 39 Loy. L.A. L. Rev. 363, 376 (2006) (“[S] peech helps to mold the informational environment, which itself serves as one of the many factors that influence a population’s health.”). Myriad’s diagnostic method patents may cause significant harm within a newly developing field of public health by limiting speech within the context of genetic counseling. Genetic counselors within these organizations would serve as the messengers of crucial health information were their First Amendment rights not curtailed by the existence of an invalid patent to the diagnostic methods. See generally Alexandra Minna Stern, Telling Genes: The Story of Genetic Counseling in America (2012) (assessing the role of genetic counseling in public health communications). While genetic counselors would like to offer

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systematic gene diagnoses, the diagnostic method patents at issue here may offer a significant barrier to such efforts.

B Myriad’s improvidently granted patents may also affect interests that may undermine the dignity of human beings. The Thirteenth Amendment provides that “[n]either slavery nor involuntary servitude . . . shall exist in the United States.” U.S. Const. amend. XIII. As James Pope explains, the Thirteenth Amendment is (1) the only constitutional provision that mandates the official identification and protection of unenumerated rights; (2) the only constitutional provision that calls for the development of rights protections based on the dynamics of a nongovernmental system (the First Amendment “system of freedom of expression” notwithstanding); (3) the only constitutional provision that directly commands the government to undertake a project of social transformation; and (4) the only constitutional rights guarantee that is generally acknowledged to attack relations of subjugation and exploitation.

James Gray Pope, What’s Different about the Thirteenth Amendment, and Why Does It Matter?, 71 Md. L. Rev. 189, 190 (2011). A key way that the Thirteenth Amendment attacks relations of subjugation and exploitation is in its ability to prevent forms of property ownership that undermine the dignity of human beings.35 See Alexander Tsesis, The Thirteenth Amendment and American Freedom 37 (2004); see also Robert Tsai, John Brown’s Constitution, 51 B.C. L. Rev. 151 (2010) (assessing abolitionist ideology about property); Jacobus Ten Broek, The Thirteenth Amendment to the Constitution of the United States: Consummation to Abolition and Key to the Fourteenth Amendment, 39 Cal. L. Rev. 171, 179–180 (1951) (outlining impact of abolitionist ideals on the passage of Thirteenth Amendment). Central to the abolitionist ideal was the claim that the Thirteenth Amendment attempted to reform the “system” of slavery. As Rebecca E. Zietlow explains, “the Amendment not only prohibits slavery and involuntary servitude, but it also establishes freedom and serves as a source of fundamental rights to which a free person is entitled.” Rebecca E. Zietlow, The Ideological Origins of the Thirteenth Amendment, 49 Hous. L. Rev. 393, 449 (2012). 35

We do not discuss the fraught discussion of personhood and its relationship to Thirteenth Amendment, noting instead that the non-commodification principle as considered is directed toward questions of subjugation in property relationships.

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The Thirteenth Amendment should be understood to obliterate slavery as a system of relationships, one of which included systems of property that subjugated individuals. The Thirteenth Amendment challenged property relationships in two distinct, interrelated ways. First, the Thirteenth Amendment and its related legislation, the Civil Rights Act of 1966, sought to remove the “badges and incidents of slavery” which harmed both slaves and free Blacks from purchasing real property. Jones v. Alfred H. Mayer Co., 392 U. S. 409, 440–441 (1968): “Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation. Nor can we say that the determination Congress has made is an irrational one. For this Court recognized long ago that, whatever else they may have encompassed, the badges and incidents of slavery – its ‘burdens and disabilities’ – included restraints upon ‘those fundamental rights which are the essence of civil freedom, namely, the same right . . . to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens.’”; citing Civil Rights Cases, 109 U.S. 3, 22 (1883). Second, the Thirteenth Amendment abolished an entire system of social relationships built by White citizens to enslave, through the means of property, Black individuals (both free and unfree). The Thirteenth Amendment should be read to abolish a caste status that applied to African-Americans specifically, and broadly, to prohibit ownership of and control over another human being for pecuniary gain. George Rutherglen, State Action, Private Action, and the Thirteenth Amendment, 94 Va. L. Rev. 1367, 1382 (2008) (observing that Congressional passage of the Thirteenth Amendment “concerned rights directly opposed to one another: what the slaveowners lost in property rights, the slaves gained in freedom”); see also Plessy v. Ferguson, 163 U.S. 537, 542 (1896) (defining slavery as “the absence of a legal right to the disposal of his own person, property, and services”). As Joseph Singer has observed, the Thirteenth Amendment reflects a key lesson in the relationship between democracy and property ownership – “a necessary consequence of our commitment to a democratic way of life is that some kinds of property arrangements and some contractual terms must be outlawed and placed out of bounds.” Joseph William Singer, Property Law as the Infrastructure of Democracy, Harvard Law School, Public Law & Legal Theory Working Paper Series, No. 11-16 5 (2011). The Thirteenth Amendment’s prohibition of a property claim in a person based on a relationship of subordination suggests a constitutional recognition that eliminating a category of property interests can achieve other goals. This principle may aptly be termed a non-commodification principle. See Moore v.

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Cal. Regents, 793 P.2d 479, 497 (Cal. 1990) (Arabian, J., concurring) (expressing concern that commercialization of human cells could endanger the basic concept of human dignity violating the Thirteenth Amendment). Under the non-commodification principle, the Thirteenth Amendment captures a vision of property relationships that are broader than individualized property transactions between one person and another person; it includes a systematic recognition of power and how the presence of one category of ownership can warp all transactions within a given democratic system. Understanding the Thirteenth Amendment from a systemic perspective answers critics who have seen the Thirteenth Amendment as simply prohibiting “the badges and incidents” of slavery as directed towards formerly enslaved AfricanAmericans. Contra Dan Burk, Patenting Transgenic Human Embryos – A Non-Use Cost Perspective, 30 Hous. L. Rev. 1597, 1648–1650 (1993) (the Thirteenth Amendment does not apply to patenting of transgenic human embryos because the patent holder did not have the power to sell embodied patent invention, nor was the transgenic patent a badge or incident of slavery). The non-commodification principle contained within the Thirteenth Amendment has been recognized within the domestic and international patent regime itself. The United States Patent and Trademark Office in 1987 recognized that “[a] claim directed to or including within its scope a human being will not be considered to be ‘patentable subject matter’ [because] the grant of a . . . property right in a human being is prohibited by the Constitution.” U.S. Patent and Trademark Office, PTO Policy on Patenting of Animals (April 7, 1987), reprinted in U.S. Congress, Office on Technology Assessment, New Developments in Biotechnology: Patenting Life 93 (1990). The non-commodification principle has also been recognized in the international patent regime. For example, the European Council Convention of Human Rights and Biomedicine provides that “the human body and its parts shall not . . . give rise to financial gain.” Convention on Human Rights and Biomedicine art. 21, opened for signature Apr. 4, 1997, E.T. S. No. 164, http://conventions.coe.int/Treaty/en/Treaties/Html/164.htm; see also Deryck Beyleveld & Roger Brownsword, Human Dignity, Human Rights, and Human Genetics, 61 Mod. L. Rev. 661, 671 (1998) (Commercializing human genes must be conducted on the “basis of free choice” in order to protect parties in those circumstances when there are “significant asymmetries of information and bargaining strength between the parties.”). Patents on isolated human genes do not claim the whole person; however, genetic material is a constituent element of any person and is essential to and embodied within every human life form. While the European Patent Office

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has recognized that the potential isolation of genetic material may be patentable, it has done so only after ensuring that those who have donated the basic material have done so in a consensual, non-coercive manner. See in re Relaxin, EPO 6/1995, 398–399 (“With regard to the isolation of mRNA from tissue taken from pregnant women, the proprietor stated that the women who donated tissue consented to do so within the framework of necessary gynecological operations.”). In contrast, the patent examination process in the United States lacks these essential ethical safeguards as to the isolation of genetic material. See Beyleveld, 61 Mod. L. Rev. at 676 (“[W]e might seek ways of strengthening [consent] procedures or we might advocate a general prohibition on gene commerce (as the lesser of two evils, and for the sake of protecting the interests of vulnerable agents”). To this extent, Section 101, a flexible constitutional inquiry, may provide the best way to accommodate the complex relationship between accommodating the ownership interests of the patent owners with the potential for subordination which accompanies claims associated with such property ownership. For these reasons, this opinion concurs in part and dissents in part.

8 Commentary on White v. Samsung brian l. frye

Since time immemorial, men have objectified women. While Helen of Troy is immortalized as “the face that launched a thousand ships,” no one ever asks whether she even wanted to be rescued.1 Likewise, Vanna White is the face that created a television empire, but no one gives her any credit. Instead, she is ridiculed as a living Barbie doll, a caricature of femininity. She may be a millionaire, but she “can’t win for losing.” In White v. Samsung, the U.S. Court of Appeals for the Ninth Circuit held, in an opinion littered with condescension, that White could not pursue her statutory right of publicity claim but could pursue both her common law right of publicity and her trademark infringement claims against Samsung for an ad that poked fun at her.2 In his feminist revision, Professor Jon M. Garon, writing as Justice Garon, excises the sexist condescension of the original opinion and holds that White can pursue not only her common law right of publicity and her trademark infringement claims, but also her statutory right of publicity claim. While I appreciate Garon’s intervention, I am not convinced that his expansion of the scope of property rights serves feminist values.

background Wheel of Fortune is one of the longest-running syndicated American television game shows. It was created by Merv Griffin in 1975 and is based on the popular guessing game Hangman.3 In Wheel of Fortune, the contestants must 1 2 3

Christopher Marlowe, Doctor Faustus (1604). White v. Samsung Elecs. Am., Inc., 971 F.2d 1395 (9th Cir. 1992). The origins of Hangman are unknown. An 1894 book describes a similar game called “Birds, Beasts and Fishes,” in which one player writes down the first and last letters of a word, and the other player tries to guess the letters in between. Alice B. Gomme, Traditional Games (1894). See also Tony Augarde, The Oxford Guide to Word Games (1984).

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guess a common phrase. On their turn, contestants spin a carnival wheel labeled with various quantities of money, as well as other consequences.4 If the wheel stops on a quantity of money, the contestant chooses a consonant. If the consonant occurs in the phrase, it is revealed on the puzzle board, and the contestant is rewarded with a notational credit of the amount shown on the wheel. If the wheel does not land on a monetary amount, the contestant’s turn is over. The first contestant to guess the phrase wins the round, and the contestant who earns the most money wins the game. Vanna White is the hostess of Wheel of Fortune. She joined the show in 1982, after winning a nationwide search against more than 200 contestants. While her nominal job is to reveal the letters chosen by the contestants, she soon became the true star of the show. Fans were obsessed by her poise and style, in part because she wore a different outfit for every episode. She became a fashion icon, and Wheel of Fortune owes its remarkable success primarily to “Vannamania” and its aftermath.5 For a few years, White was among the most popular American celebrities, and thirty years later, she remains instantly recognizable, at least among certain demographics.

the original opinion In 1988, Samsung Electronics America hired David Deutsch Associates to create a print advertising campaign. Deutsch’s campaign suggested that Samsung’s products would be useful for a long time and ran in several national magazines. Each ad depicted an imaginary event in the early twenty-first century and claimed that Samsung’s products would still be in use. One ad depicted “shock jock” Morton Downey, Jr. as a 2008 presidential candidate, and stated that the “TV you’ll watch his speeches on” will be a Samsung. Another depicted a golden robot styled to resemble White, with a blond wig, blue eyes, magenta gown, and diamond jewelry, revealing a letter on a puzzle board. It was captioned, “Longest-running game show. 2012 A.D.,” and stated that the “VCR you’ll tape it on” will be a Samsung.6 4

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Other outcomes include “Bankrupt,” “Lose a Turn,” and “Express,” which speeds up gameplay. See, e.g., Peter H. Brown & Jim Pinkston, Vanna-Mania . . . You Ain’t Seen Nothin’ Yet!, L.A. Times, Dec. 7, 1986; Ray Richmond, Vannamania Is Over, but White Still Turns, and Gets, Letters, Chi. Trib., March 21, 1992. See Matt Novak, Robot Vanna, Trashy Presidents and Steak as Health Food: Samsung Sells Tomorrow, Smithsonian.com (Feb. 20, 2013), https://www.smithsonianmag.com/history/robotvanna-trashy-presidents-and-steak-as-health-food-samsung-sells-tomorrow-22348926/ #MgWy3Cb3MGBfvwqo.99.

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White sued Samsung and Deutsch in the United States District Court for the Southern District of California, alleging statutory and common law right of publicity claims and a trademark infringement claim. Essentially, she argued that Samsung improperly used her likeness without her permission in a way that suggested her endorsement. The district court granted Samsung’s motion for summary judgment on all of White’s claims. White appealed. The Ninth Circuit affirmed the grant of summary judgment on White’s statutory right of publicity claim because the ad did not actually use her likeness. But it reversed on the other two claims, holding that White alleged facts sufficient to support a common law right of publicity claim, because the ad “evoked” White’s persona, and a trademark infringement claim under the Lanham Act, because consumers might think she endorsed the ad.7 Judge Alarcon dissented, observing that Samsung did not use White’s likeness and arguing that there was no likelihood of confusion about whether she endorsed Samsung.8 Samsung filed a motion for rehearing, which the panel denied. The Ninth Circuit also declined to rehear the case en banc.9 Judge Kozinski wrote a dissent from denial, which Judges O’Scannlain and Kleinfeld joined.10 Kozinski argued that the court had gone too far: “Overprotecting intellectual property is as harmful as underprotecting it.”11 He observed that the court had effectively given White “an exclusive right to anything that reminds the viewer of her,” without any exceptions and limitations like fair use to protect First Amendment values.12 Kozinski’s dissent became an iconic expression of opposition to the expansion of the right of publicity and intellectual property rights more generally. Unfortunately, many of his admirers ignored his rather condescending dismissal of White’s talents, a failing shared by Alarcon’s dissent. Was it really necessary for Alarcon to say, “There is nothing unique about Vanna White or the attributes which she claims identify her,”13 or for Kozinski to say that “once you include the game board, anybody standing beside it – a brunette woman, a man wearing women’s clothes, a monkey in a wig and gown – would evoke White’s image, precisely the way the robot did”?14 One can object to

7 8 9 10 11 12 13 14

White, 971 F.2d 1395. Id. at 1402 (Alarcon, J., dissenting). White v. Samsung Elecs. Am., Inc., 989 F.2d 1512 (9th Cir. 1993). Id. at 1512 (Kozinski, J., dissenting). Id. at 1513. Id. at 1515. White, 971 F.2d at 1404 (Alarcon, J., dissenting). White, 989 F.2d at 1515 (Kozinski, J., dissenting).

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expanding the scope of intellectual property protection on principle without demeaning the person making the claim. Ironically, albeit unsurprisingly, Kozinski resigned in 2017 after he was accused of sexual harassment. Perhaps his dismissive comments about White reflect his general attitude toward women. His opinion certainly suggests that he saw White as just an object, less meaningful than the puzzle board she operated.

the feminist judgment The feminist judgment written by Garon is even more of a blowout victory for White than the original, reversing and remanding on all three claims. It holds that White alleged facts sufficient to prove both a statutory and a common law right of publicity claim, because any consumer would identify the robot as a caricature of White and Samsung intended the robot to be a caricature of White. Garon’s opinion also holds that White alleged facts sufficient to prove a Lanham Act claim because consumers could believe that White was endorsing Samsung’s products. And it rejects Samsung’s First Amendment defenses, holding that the First Amendment does not protect commercial speech, and the “parody defense” does not protect ads. While there are as many different kinds of feminist legal theory as there are feminist legal theorists, most scholars recognize four loose categories: equality, difference, dominance (also known as anti-subordination), and intersectional.15 Equality feminism criticizes laws that treat women differently from men and facially neutral laws that effectively discriminate against women. Difference feminism valorizes women’s differences from men and suggests multiple ways that the law should take into account women’s unique attributes, including ways of reasoning and interests in relationships. Dominance feminism criticizes the entire legal system as a tool for subordinating women. And intersectional feminism criticizes the reduction of the feminist project to gender essentialism, rather than considering the intersection of gender with other social identities. Garon applies equality feminism in his analysis. The primary difference between the original opinion and his feminist opinion is that he focuses on White’s inequitable treatment in relation to male celebrities. Garon notes that male celebrities like Lothar Motschenbacher and Johnny Carson won right of 15

See Ann Bartow, Legal Theory Lexicon 061: Feminist Legal Theory, Legal Theory Lexicon Blog (Nov. 19, 2006), https://lsolum.typepad.com/legal_theory_lexicon/2006/11/legal_theory_ le.html.

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publicity claims, even though the defendants in their respective cases did not actually use their name or likeness. Garon also draws attention to how Samsung paid Downey to appear in the same ad campaign that featured the “Vanna White” robot. If men get paid, so should women. After all, what’s sauce for the gander also ought to be sauce for the goose. Garon’s rewritten opinion also holds that the First Amendment does not protect Samsung’s ads because they are merely commercial speech, only intended to sell products. He argues that the First Amendment does not protect ads against right of publicity claims. And he argues that fair use does not protect ads either. Essentially, Garon holds that Samsung is liable because, without White’s consent or compensation, Samsung was poking fun at White in order to sell its products.

reflections on the feminist judgment Garon is right to criticize the original opinion’s patronizing tone. While White won in the original decision on two of her three claims, it was only at the expense of comparisons to “real” male celebrities and disparaging comments in the original opinion such as, “The law protects the celebrity’s sole right to exploit this value whether the celebrity has achieved her fame out of rare ability, dumb luck, or a combination thereof.”16 Sadly, it is all too common for courts to demean the aesthetic contributions of women and minorities, even while handing them a victory. For example, the Supreme Court held that 2 Live Crew’s parody of Roy Orbison’s song “Pretty Woman” was a non-infringing fair use in Campbell v. Acuff-Rose, but could not resist a dig: “While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew’s song reasonably could be perceived as commenting on the original or criticizing it, to some degree.”17 As Andrew Gilden has observed, “Amidst ‘anonymous’ women’s bodies and ‘generic’ black men, it is important to note just how racially and gender-imbalanced the outcomes are” in copyright infringement actions.18 While a backhanded victory is better than a loss, the condescension still stings and is a reminder of the prejudice that made victory harder to secure. But I am not convinced that Garon’s opinion advances the broader goals of feminism. He seems to assume that an opinion is feminist if the woman wins, especially if it is at the expense of a faceless and greedy corporation. That is a 16 17 18

White, 971 F.2d at 1399. See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 583 (1994). Andrew Gilden, Raw Materials and the Creative Process, 104 Geo. L.J. 355, 380 (2016).

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start, but it is not enough. Surely, feminism means something more than “property rights.”19 After all, the right of publicity is just another kind of property. And like any other kind of property, it can be bought and sold. Indeed, the right of publicity was created in order to enable companies to buy and sell the identities of celebrities.20 For one thing, property rights tend to flow uphill. In theory, they benefit the people who initially receive them. But in practice, they usually benefit the people who ultimately accumulate them. While women may claim some of the value created by the right of publicity, companies will inevitably claim the bulk of it. In exchange, women will sacrifice some of their autonomy. While Garon’s opinion conflates the right of publicity and the right of privacy, they are actually antinomies. The right of publicity is the right to monetize and alienate privacy. To put a finer point on it, the right of publicity is not a right to stop people from poking fun at you. It is a right to make them pay for the privilege. For another, the right of publicity conflicts with archetypal feminist values like collaboration and sharing. Ann Bartow uses quilting to illustrate this tension.21 Quilts receive limited copyright protection because the law assumes they are generic and fails to perceive their uniqueness. Initially, it seems copyright should provide more protection because it discriminates against quilters, who are primarily women. And yet, quilters value borrowing ideas and designs and consider sharing a fundamental aspect of the quilting community. Perhaps limited copyright protection is a good thing! As Bartow observes, identifying the feminist policy is hard and depends on your priorities. Moreover, as feminist critics of the right of publicity like Rosemary Coombe have observed, celebrity can only be created in dialogue with the public.22 Celebrities author their image, but only in collaboration with their audience. The right of publicity is an “exercise in question begging,” assigning exclusive rights in celebrity to celebrities simply because celebrity is commercially valuable, without asking why celebrities are entitled to claim that value in the first place. After all, White’s celebrity depended on the cultural heritage

19

20

21 22

Of course, equality in the possession and use of property could be consistent with the goals of equality feminism, but a focus on property rights is at least in tension with other kinds of feminist legal theory. See Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953); see also Brian L. Frye, The Athlete’s Two Bodies: Reflections on the Ontology of Celebrity, INCITE #7/8: Sports (2016–2017). Bartow, supra note 15. See, e.g., Rosemary J. Coombe, The Celebrity Image and Cultural Identity: Publicity Rights and the Subaltern Politics of Gender, 14 Discourse 59 (1992).

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she and her audience used to create it, just like any other celebrity. Why should anyone have an exclusive claim on the value of something collectively created? Finally, I believe that free speech is a feminist value, especially because women and minorities are always silenced first. Of course, celebrities and their handlers think the right of publicity is justified and should extend as broadly as possible. Everyone believes in the legitimacy of the property they happen to own. But I fear that Garon’s expansive right of publicity and dismissal of First Amendment concerns would have unfortunate consequences for the people he wants to protect. Or rather, I observe that White v. Samsung is widely reviled among legal scholars, for good reason, because its expansive definition of the right of publicity and the commercial speech doctrine enabled celebrities to suppress expressive speech. That cannot be right. The commercial speech doctrine is withering for a reason: it inevitably suppresses noncommercial speech.23 As Lisa Ramsey and others have observed, the First Amendment protects expressive speech, even if it has a commercial element.24 Samsung’s ads were commercial speech because they were intended to sell products. But they were also expressive speech because they reflected on popular culture and its meaning. For better or worse, Samsung’s ad poked fun at Vanna White. While it was sexist and distasteful, it was also protected speech. And that is a good thing. After all, feminists also lampoon men. Sadly, history says that the burden of regulation will always fall on women and minorities first and heaviest. Under Garon’s version of the right of publicity, White can demand compensation from Samsung. But she is also entitled to stop Samsung from speaking about her at all. I think that is dangerous, and inconsistent with any legitimate purpose of the right of publicity. No reasonable consumer would assume that White was endorsing Samsung’s products, and there was no way for Samsung to make its expressive point without referring to White. That is precisely the kind of expressive speech that should be protected from the right of publicity, even when it is part of an advertisement.

23

24

The commercial speech doctrine was developed in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), which provided that in order for the government to regulate commercial speech, there must be a “reasonable fit” between the government’s ends and the means for achieving those ends. Lisa P. Ramsey, Free Speech Challenges to Trademark Law After Matal v. Tam, 56 Hous. L. Rev. 401 (2018).

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conclusion While I deplore the dismissive sexism of the dissents to White v. Samsung, they reached the right outcome on the merits.25 White should have lost. The court should have criticized the dismissal of White’s contribution, but rejected her claims. White v. Samsung was a Pyrrhic victory. Sometimes it is better to lose the battle in order to win the war. Feminism means more than “the woman won.” It means transforming the sexist ideologies of modernity. That has to include property rights. A feminism in favor of property rights is no feminism at all.

WHITE V. SAMSUNG ELECTRONICS AMERICA, INC., 971 F.2D 1395 (9TH CIR. 1992)

judge jon m. garon delivers the opinion of the court This case explores the meaning of the scope of identity in California, an existential question which drives much of California’s film, television, and advertising industries. It is a question at the heart of our current controversy. Defendants Samsung Electronics America, Inc. (Samsung) and David Deutsch Associates, Inc. (Deutsch) created an advertisement that alluded to the fame of and affection for plaintiff Vanna White without White’s permission. White sued to protect her statutory publicity rights, her common law publicity rights, and the trademark rights in her name. The district court disagreed with White, finding that there were no rights to protect, and granted summary judgment in favor of Samsung and Deutsch. Both statutory and common law recognize every person’s right to control the commercial exploitation of his or her name and likeness. Society’s ubiquitous media creates a mechanism by which a very few individuals can transform this right into a prized, marketable commodity, known as celebrity. Considerable energy and ingenuity are expended by those who have achieved celebrity to exploit it for profit. The law protects the celebrity’s sole right to exploit this value whether the celebrity utilized special skills to acquire the public’s adoration or just to maintain it.

25

See White v. Samsung Elecs. Am., Inc., 971 F.2d 1395, 1402 (9th Cir. 1992) (Alarcon, J., dissenting); see also White v. Samsung Elecs. Am., Inc., 989 F.2d 1512 (9th Cir. 1993) (Kozinski, J., dissenting).

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Because White has alleged facts showing that Samsung and Deutsch appropriated her identity, the district court erred by rejecting, on summary judgment, White’s statutory privacy claim and common law right of publicity claim. Similarly, with regard to her federal Lanham Act trademark claim, White has raised a genuine issue of material fact concerning a likelihood of confusion as to her endorsement of Samsung’s product promoted in the advertisement. We reverse and remand. Plaintiff Vanna White is a highly recognizable personality on television. She has been described as co-host or hostess of one of the most popular game shows in television history, “Wheel of Fortune.” An estimated forty million people watch the program daily. Capitalizing on the fame which she has nurtured from her appearances on television and in the public eye, White markets her identity to various advertisers. The dispute in this case arose out of a series of advertisements prepared for Samsung by Deutsch. The series ran in at least half a dozen publications with widespread, and in some cases national, circulation. Each of the advertisements in the series followed the same theme. Each depicted a current item from popular culture and a Samsung electronic product. Each was set in the twenty-first century and conveyed the message that the Samsung product would still be in use by that time. By hypothesizing outrageous future outcomes for the cultural items, the ads created humorous effects. For example, one lampooned current popular notions of an unhealthy diet by depicting a raw steak with the caption: “Revealed to be health food. 2010 A.D.” Another depicted irreverent “news” show host Morton Downey, Jr. in front of an American flag with the caption “Presidential candidate. 2008 A.D.” The advertisement which prompted the current dispute was for Samsung videocassette recorders (VCRs). The ad depicted a robot, dressed in a wig, gown, and jewelry, which Deutsch consciously selected to resemble White’s hair and dress. The robot was posed next to a game board, which is instantly recognizable as the Wheel of Fortune game show set, in a stance for which White is famous. The caption of the ad read, “Longest-running game show. 2012 A.D.” Samsung and Deutsch referred to the ad as the “Vanna White” ad. Unlike the male celebrities used in the campaign, however, White neither consented to the ads nor was she paid. All the male celebrities appeared with their consent and with compensation. Following the circulation of the robot ad, White sued Samsung and Deutsch in federal district court under: (1) California Civil Code §3344; (2) the California common law right of publicity; and (3) §43(a) of the Lanham Act, 15 U.S.C. §1125(a). The district court granted summary judgment against White on each of her claims. White now appeals.

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i Section 3344 of the California Civil Code White first argues that the district court erred in rejecting her claim under section 3344. Section 3344 provides the following statutory language: (a) Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, . . . shall be liable for any damages sustained by the person or persons injured as a result thereof . . . Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney’s fees and costs . . . . (d) For purposes of this section, a use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required under subdivision (a). Cal. Civ. Code §3344 (West 1992). White argues that the Samsung advertisement used her “likeness” in contravention of section 3344. In Midler v. Ford Motor Co., this Court noted that the term “likeness” refers to a visual image. 849 F.2d 460 (9th Cir. 1988). Billboards and television advertisements meet the definition of visual because they are pictorial representations. Therefore, at the outset, we must determine whether the robotic doppelganger for White constitutes her likeness, meaning that the pictorial image was of or concerning her. In Blatty v. New York Times Co., the California Supreme Court recognized the constitutional foundation of the requirement that a defamatory publication be “of and concerning” a plaintiff. 728 P.2d 1177, 1182 (Cal. 1986), cert. denied, 485 U.S. 934 (1988). Since this is a constitutional requirement, it is equally applicable to the tort of invasion of publicity rights as it is to the tort of defamation. The “name or likeness” formulation was first explored in the case involving Bela Lugosi and his heir’s right to exploit the name “Dracula” in association with his name or likeness. The California Supreme Court explained “Lugosi in his lifetime had a right to create in his name and/or likeness ‘. . . a right of value,’ which could have been transmuted into things of value or Lugosi could, if he elected not to exercise such right, protect it from invasion by others by a suit for injunction and/or damages.” Lugosi v. Universal Pictures, 603 P.2d 425, 428 (1979). It was expanded upon in Eastwood v. Superior Court,

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198 Cal. Rptr. 342, 346 (Ct. App. 1983). The formulation commonly used comes to us from William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 401–407 (1960), who then served as reporter for the Restatement (Second) of Torts and incorporated his explanation of the four privacy torts into the Restatement. In analyzing the cases based on commercial appropriation of one’s identity, Prosser recognized that right of publicity cases involved one of two basic factual scenarios: name appropriation, and picture or other likeness appropriation. Id. at 401–402 nn.156–157. Prosser took a narrow view to privacy rights in general and to rights of publicity in particular. Nonetheless he acknowledged the long history of rights of publicity cases, and he noted that “[i]t is not impossible that there might be appropriation of the plaintiff’s identity, as by impersonation, without the use of either his name or his likeness, and that this would be an invasion of his right of privacy.” Id. at 401 n.155. But given his approach to privacy, he was sure to add that “[n]o such case appears to have arisen.” Id. Prosser never rejected the use of extrinsic information to inform the public of the meaning of an image and, even if he had, that is no reason to suggest that his interpretation binds the legislature. “The ‘of and concerning’ or specific reference requirement limits the right of action for injurious falsehood, granting it to those who are the direct object of criticism and denying it to those who merely complain of nonspecific statements that they believe cause them some hurt.” Blatty, 728 P.2d at 1183. Furthermore, “[t]o allow a plaintiff who is not identified, either expressly or by clear implication, to institute such an action poses an unjustifiable threat to society.” Id. At the same time, however, the need to be consistent in the application of attribution should also enable the plaintiff to establish the use of one’s likeness through extrinsic evidence just as it is allowed in defamation. See Mullins v. Brando, 91 Cal. Rptr. 796, 803 (Ct. App. 1970) (allegation of libel can be established by reference to extrinsic facts). Alfred Hitchcock’s famous silhouette is immediately recognizable despite it being an abstractly rendered image. Indeed, without resorting to extrinsic evidence, the right would fail to protect those plaintiffs most in need of its protection. A lesser-known celebrity might very well require extrinsic evidence to establish that the name or likeness being used related to that particular person rather than someone else. In contrast, the identities of the most popular celebrities are not only the most attractive for advertisers, but also the easiest to evoke without resorting to obvious means such as name, likeness, or voice. This brings us to the case at hand. At one level of abstraction, a robot could hardly be mistaken for a human woman. The skin is metallic, the outline square, and the imagery far from the audience’s perception of its mothers,

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daughters, or lovers. Or is it? Since 1927, audiences have been titillated by Fritz Lang’s beautiful heroine in Metropolis, an idealized female automaton, and they have known Rosie, the housemaid of the Jetsons, since 1962. The Supreme Court has explained in the context of copyright, “[t]he protection of literary form must proscribe more than merely word-for-word appropriation of substantial portions of an author’s work. Otherwise a plagiarist could avoid infringement by immaterial variations.” Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 n.5 (1985); citing Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930). It would be ironic indeed that the law would recognize legal protections for a literary character, but not a person of flesh and blood. Admittedly, it is a challenge to identify the scope of the identity. As Judge Learned Hand cogently summarized: Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his “ideas,” to which, apart from their expression, his property is never extended. Nobody has ever been able to fix that boundary, and nobody ever can.

Nichols, 45 F.2d at 121. To interpret Cal. Civ. Code §3344, we are asked to give life to the scope of one’s “name, voice, signature, photograph, or likeness, in any manner.” The phrase “in any manner” signals the legislature’s intent to understand the meaning expansively, bound by the constitutional protections that the likeness be concerning the complainant. The model for a cubist painting remains its model despite the rendering in a non-linear manner. Moreover, since beauty is in the eye of the beholder, it seems reasonable that these factual determinations are best left to a jury, which can evaluate the credibility of the evidence, assess its own reactions, and weigh the extrinsic evidence. If the identity is in doubt, it should not be left to judicial fiat and summary judgment. One need only view the contrasting images of Maria, a sexualized, golden robot in Fritz Lang’s Metropolis, to see graphical evidence that filmmakers – and therefore advertisers – can capture character, identity, and personality through the character traits provided to their automatons. Like Maria’s popular kin, C3PO and R2D2 – and the letter-turning doppelganger for Ms. White used in the Samsung ad, the public can readily understand the humanity

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embodied in artfully crafted robots. At a minimum, the identity of a robot is a question of fact that cannot be decided on summary judgment. A reasonable jury has many attributes of identity with which to work. The robot was humanoid, dressed in a blond wig of a style consistent with the actress. She wore a gown of the same style featured by White on the game show along with complementary jewelry. To make sure the audience would not miss the reference, the game show board was featured next to our female robotic host, leaving little or no doubt who the person was in the advertisement. The caption said “longest running game show” rather than “most popular game show,” but even the least attentive viewer could make the connection. A jury certainly could come to this conclusion. Of course, Samsung and Deutsch used a robot with mechanical features rather than a manikin molded to White’s precise features. The identity was not exact. But again, relying on Judge Hand, “no plagiarist can excuse the wrong by showing how much of his work he did not pirate.” Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d Cir. 1936), cert. denied, 298 U.S. 669 (1936). The Supreme Court has reiterated this sentiment. See Harper, 471 U.S. at 565. Certainly, copyright is not at issue in the current matter, but commentators have proposed importing copyright protections and fair use defenses, which has the advantage of employing an established doctrine developed from a related area of the law. See Randall T.E. Coyne, Toward a Modified Fair Use Defense in Right of Publicity Cases, 29 Wm. & Mary L. Rev. 781, 812– 820 (1988). Others disagree, pointing to the murkiness of the fair use doctrine and arguing that the idea–expression dichotomy, rather than fair use, is the principal means of reconciling copyright protection and First Amendment rights. We need not import copyright to utilize the commonsense lesson provided by Judge Hand. An earlier panel of this court reached a similar conclusion when dealing with a race car driver. In Motschenbacher v. R.J. Reynolds Tobacco Co., a panel of this court acknowledged that race car driver Lothar Motschenbacher was depicted – not with his face or even his actual racing car number (an 11), but by a look-alike car, featuring distinctive narrow white pinstripes, solid red trim on the leading edge of his car, and an oval for the racing number. 498 F.2d 821, 827 (9th Cir. 1974). Motschenbacher himself was never depicted and the advertisement substituted a 71 for the 11, but this likeliness was more than enough. In 1984, ten years after our decision in Motschenbacher, the California legislature further expanded the statutory language to embrace the expansive

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nature of the decision by including the use of someone’s voice, signature, or likeness. Cal. Civ. Code §2233(a) (Deering 1991 Supp.). Although Judge Alarcon, dissenting in part, argues that the legislative expansion of the statute should be read to limit it in other areas, a plain reading of the language is quite consistent with Motschenbacher that the state has embraced an expansive understanding of identity. Based on this comparison, the number of elements of individuality are sufficient to raise a material question of fact and avoid summary judgment. Neither the face of White nor Motschenbacher were used in the advertisements. Motschenbacher’s car was an external feature of identity just as the letterboard used in Wheel of Fortune served as a shorthand identification for White or as a purported endorsement by White. Perhaps there is more than the weight of extrinsic evidence between the two outcomes. The right of publicity was first articulated in an article just over a century ago by Louis Brandeis and Samuel Warren. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). In the article, they complained that the press, armed with the then recent invention of “instantaneous photographs” and under the influence of new “business methods,” was “overstepping in every direction the obvious bounds of propriety and of decency.” Id. at 195–196. At the time, of course, the First Amendment had yet to be applied to the States, making the potential to expand the rights of privacy much easier. See Gitlow v. New York, 268 U.S. 652 (1925). Brandeis was motivated, at least in part, by facts not dissimilar to those represented here. The actress Marion Manola had objected to certain commercial photographs being used to promote her operetta. She may have objected to the photographs being taken surreptitiously as Brandeis suggests, or because of the audacious nature of the unauthorized publicity stunt as is suggested in more recent scholarship, but whichever her motive, the Supreme Court of New York was willing to grant a temporary injunction in 1890. Warren & Brandeis, supra, at 195 n.7. As Warren and Brandeis explained, “[r]ecent inventions and business methods call attention to the next step which must be taken for the protection of the person.” Warren & Brandeis, supra, at 195. They suggest that the “right to be let alone” specifically would include protection from the “right of circulating portraits” in advertisements. In her article discussing Ms. Manola, Dorothy Glancy explains that one apparent reason Warren and Brandeis wrote the article was to “emphasize that famous people, even notorious people, and certainly

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women, should be entitled to legal protection for their privacy rights.” Dorothy Glancy, Privacy and the Other Miss M, 10 N. Ill. U. L. Rev. 401, 405 (1990). New York’s history with a woman’s right to commercial publicity rights was not a straight line. The New York Court of Appeals did not follow the lower court approach to the right. Instead, in Roberson v. Rochester Folding Box Co., 64 N.E. 442 (N.Y. 1902), the New York Court of Appeals rejected the argument that a non-libelous but unauthorized likeness of a young woman used to sell flour constituted a cause of action. The court determined that the young woman was not libeled by the exploitation of her image on the package and could not, therefore, remedy the alleged harm under the common law. In response, New York enacted legislation on April 6, 1903. It provided that “[a] person, firm or corporation that uses for advertising purposes, or for purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or, if a minor, of his or her parent or guardian, is guilty of a misdemeanor.” Rhodes v. Sperry & Hutchinson Co., 85 N.E. 1097 (N.Y. 1908), affirmed, 220 U.S. 502 (1911). The law included both criminal liability and equitable relief. A few years later, Georgia also extended the right to a woman who had her likeness commercially exploited. See Pavesich v. New Eng. Life Ins. Co., 50 S.E. 68 (Ga. 1905). The pattern that emerges in these early cases and many of the cases before us today is of advertisers who feel unconstrained to exploit the images of marketable, attractive, or famous women for their own purpose and without either providing an opportunity to consent or compensation for their services. The law, of course, focuses on consent rather than compensation. The right to be let alone may give way to constitutional protections for free speech, but it is not to be lightly balanced away for the convenience of the advertiser or corporate entity. Merely because a celebrity is famous and has national recognition, she is not “asking for it” and need not apologize for withholding her consent whenever she so chooses. If earlier interpretations of the facts and rules involved with identity and publicity rights were designed to fit within male-dominated narratives, commonly described as androcentric viewpoints, then perhaps this case is more correctly addressed through a lens that is somewhat “androidcentric.” California has treated these torts of publicity expansively. In Kerby v. Hal Roach Studios, 127 P.2d 577 (1942), for example, Hal Roach Studios, in a stunt for a motion picture advertisement, sent out a letter to 1,000 potential male patrons using the name Marion Kerby, a Los Angeles-based actress, singer, and monologist. The motion picture used Marion Kerby as the name of a

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character in its film. To market the film, Hal Roach Studios sent out 1,000 letters with the following innuendo-filled text: Dearest: Don’t breathe it to a soul, but I’m back in Los Angeles and more curious than ever to see you. Remember how I cut up about a year ago? Well, I’m raring to go again, and believe me I’m in the mood for fun. Let’s renew our acquaintanceship and I promise you an evening you won’t forget. Meet me in front of Warners Downtown Theatre at 7th and Hill on Thursday. Just look for a girl with a gleam in her eye, a smile on her lips and mischief on her mind! Fondly, Your ectoplasmic playmate, Marion Kerby

Id. at 579. Ms. Kerby succeeded in protecting her rights of privacy to stop her name from being used for commercial advantage without resorting to proof of libel. Although there was no allegation that Hal Roach Studios targeted her, the letter campaign was reasonably understood to be “of or concerning” her and the campaign used her name without consent. The salacious and objectifying tone of the letter was noted by the court, which considered the inevitable “misunderstanding between husbands and wives,” the unwanted aroused interest by “lonesome males,” and the adverse consequences for Ms. Kerby’s reputation. Id. Both Ms. Kerby and Ms. White have the right to protect their name and likeness as a matter of legal protection. They do not need to prove their virtue or worthiness as a condition of protecting their rights of publicity. Nonetheless, the dissent is quick to point out, “Vanna White is a one-role celebrity. She is famous for appearing as the hostess on the ‘Wheel of Fortune’ television show.” Our learned colleague then comments on her attractiveness, noting that “her face and figure are no more distinctive than that of other equally comely women.” In objecting to the decision of this panel, the dissent is objectifying White and substituting his value judgment of her for her right to seek relief under California law. This was the very conduct found actionable in Kerby v. Hal Roach Studios, and it is certainly not the basis for narrowing California law in the present case. Similarly, it is not uncommon that critics of the right of publicity object to the additional rights the law affords to athletes and celebrities. The criticism infers a certain disdain for the greed of the athletes and celebrities who seek to enforce their rights. This too is a specious argument because it assumes that all uses are equal and the payment from one source is as good as another. The choice of the partner at the dance is far more important than the tune. Protecting

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compensation for privacy rights are of trivial importance as compared to recognizing the fundamental right to control one’s identity from commercial exploitation. There are potentially dozens, if not hundreds, of small decisions that a celebrity might negotiate to control in a licensed advertising campaign, which means that each of those choices of color, location, wording, sizing, composition, and tone matter. To diminish the rights of White and her fellow performers, athletes, and other people because the court thinks fame is vainglorious is to diminish our understanding of human autonomy and self-determination. The dissent and those critical of publicity rights tend to assume that celebrity is bestowed by the public rather than earned; that it stands in contrast to the effort that must be put forth by authors and inventors. The argument is that these athletes and actresses did not earn the value of their marketability so much as have it bestowed on them by the men who comprise their audience. Since they did not create the value of their celebrity, the critique goes, the law should not be used to grant mere actors, actresses, or athletes the exclusive control over these economic rewards. It also echoes copyright’s “sweat of the brow” doctrine that values industriousness over inventiveness. But the sweat of the brow doctrine has been rejected by Congress and the Supreme Court. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 357 (1991). As such, White has raised a genuine issue of material fact as to her section 3344 claim and the district court’s grant of summary judgment on that claim in favor of Samsung and Deutsch is reversed.

ii Right of Publicity White next argues that the district court erred in granting summary judgment to defendants on White’s common law right of publicity claim. The district court relied strongly on Eastwood, 198 Cal. Rptr. at 342, where the California Court of Appeal stated that the common law right of publicity cause of action “may be pleaded by alleging (1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.” Id. at 347; citing Prosser, Law of Torts §117, 804–807 (4th ed. 1971). The district court dismissed White’s claim for failure to satisfy Eastwood’s second prong, reasoning that defendants had not appropriated White’s “name or likeness” with their robot ad. Since we find that the meaning of likeness embodies more than a literal name or photographic likeness, we reverse the district court on this aspect as well. As discussed above in detail, California law does not require that the right of publicity cause of action be pleaded only by alleging an appropriation of name

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or likeness. Throughout its history, the common law right of publicity in California has been understood to approach an inclusive view of identity, the view that the recent amendments to the statutory rights has sought to reflect. In fact, the common law publicity right has been more generous than the statutory privacy right. In Midler, this court held that, even though the defendants had not used Midler’s name or likeness, Midler had stated a claim for violation of her California common law right of publicity because “the defendants . . . for their own profit in selling their product did appropriate part of her identity” by using a Midler sound-alike. Midler, 849 F.2d at 463–464. Similarly, common law rights extend to slogans and more oblique forms of identity. In Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983), the defendant had marketed portable toilets under the brand name “Here’s Johnny” – Johnny Carson’s signature Tonight Show introduction – without Carson’s permission. The Sixth Circuit recognized that the right was implicated because the defendant had appropriated Carson’s identity through the use of a slogan closely identified with him. Id. at 835–837. Although the defendants in these cases avoided the most obvious means of appropriating the plaintiffs’ identities, each of their actions directly implicated the commercial interests which the right of publicity is designed to protect. As the Carson court explained, [t]he right of publicity has developed to protect the commercial interest of celebrities in their identities. The theory of the right is that a celebrity’s identity can be valuable in the promotion of products, and the celebrity has an interest that may be protected from the unauthorized commercial exploitation of that identity . . . If the celebrity’s identity is commercially exploited, there has been an invasion of his right whether or not his “name or likeness” is used.

Id. at 835. It is not important how the defendant has appropriated the plaintiff’s identity, but whether the defendant has done so. Motschenbacher, Midler, and Carson teach the impossibility of treating the right of publicity as guarding only against a laundry list of specific means of appropriating identity. A rule which says that the right of publicity can be infringed only through the use of nine different methods of appropriating identity merely challenges the clever advertising strategist to come up with the tenth. Consider a hypothetical advertisement which depicts an android woman Justice, with a light-colored wig, black judicial robe, a gavel in her hand, standing on the steps of the Supreme Court of the United States. Under the image a slogan says, “by order of the Supreme Court, you need to buy Acme Insurance.” Since no other woman has yet been confirmed to that Court other

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than Justice Sandra Day O’Connor, the public could well believe that she was depicted. Individually, the robot’s physical attributes, its dress, and its stance tell us little. Taken together, they lead to the conclusion that this is depicting a member of the United States Supreme Court. While the public may not know all nine Justices, they are certainly likely to recognize its sole female member. The facts of the present case are similar to the hypothetical. The femaleshaped robot is wearing a long gown, blond wig, and large jewelry. The robot is in the process of turning a block letter on a gameboard. The robot is standing on what looks to be the Wheel of Fortune game show set. White dresses in long gowns and turns letters on the Wheel of Fortune game show. She is the only one who fits this description. Indeed, Samsung and Deutsch themselves referred to their ad as the “Vanna White” ad. Given the foregoing, we find that White has alleged facts showing that Samsung and Deutsch had appropriated her identity and, therefore, the district court erred in granting summary judgment in favor of Samsung and Deutsch on White’s common law claim of publicity.

iii The Lanham Act White’s final argument is that the district court erred in denying her claim under §43(a) of the Lanham Act, 15 U.S.C. §1125(a). The version of section 43 (a) applicable to this case provides, in pertinent part, that “[a]ny person who shall . . . use, in connection with any goods or services . . . any false description or representation . . . shall be liable to a civil action . . . by any person who believes that he is or is likely to be damaged by the use of any such false description or designation.” 15 U.S.C. §1125(a). We find the answer to the question whether White’s Lanham Act claim should succeed is a matter for the jury. To prevail on her Lanham Act claim, White is required to show that in running the robot ad, Samsung and Deutsch created a likelihood of confusion. See Acad. of Motion Picture Arts & Sci. v. Creative House, 944 F.2d 1446, 1454 (9th Cir. 1991); Toho Co. v. Sears Roebuck & Co., 645 F.2d 788, 790 (9th Cir. 1981); New W. Corp. v. NYM Co. of Cal., 595 F.2d 1194, 1201 (9th Cir. 1979), over whether White was endorsing Samsung’s VCRs; HMH Publ’g Co. v. Brincat, 504 F.2d 713 (9th Cir.1974); Allen v. Nat’l Video, Inc., 610 F. Supp. 612 (S.D.N.Y. 1985). This circuit recognizes several different multifactor tests for determining whether a likelihood of confusion exists. None of these tests is correct to the

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exclusion of the others. Eclipse Assocs. Ltd. v. Data Gen. Corp., 894 F.2d 1114, 1118 (9th Cir. 1990). Because this case involves an appeal from summary judgment and we review de novo the district court’s determination, we will look for guidance to the eight-factor test enunciated in AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979). According to Sleekcraft, factors relevant to a likelihood of confusion include: (1) (2) (3) (4) (5) (6) (7) (8)

strength of the plaintiff’s mark; relatedness of the goods; similarity of the marks; evidence of actual confusion; marketing channels used; likely degree of purchaser care; defendant’s intent in selecting the mark; likelihood of expansion of the product lines.

Id. at 348–349 We turn now to consider White’s claim in light of each factor. In cases involving confusion over endorsement by a celebrity plaintiff, “mark” means the celebrity’s persona. See Allen, 610 F. Supp. at 627. The “strength” of the mark refers to the level of recognition the celebrity enjoys among members of society. See Academy, 944 F.2d at 1455. The strength of the mark for a celebrity equates with the public recognition that celebrity commands. If White were unknown, then there would be little likelihood the intended audience for Samsung’s robot ad was likely to be confused as to White’s role in endorsing Samsung VCRs. For the purposes of the Sleekcraft test, White’s “mark,” or celebrity identity, is strong. In cases concerning confusion over celebrity endorsement, the relatedness of the goods generally refers to the relationship between the nature of the plaintiff’s fame and the nature of the good. The closer the link, the more likely the public will be confused as to the plaintiff’s endorsement of the product or service. Because White’s fame is based on her televised performances, her “goods” are closely related to Samsung’s VCRs. Samsung and Deutsch made the link much stronger by referring to a “game show” in the ad text. The ad was intended to create the strongest possible link by informing its readers that they would be taping the “longest-running game show” on Samsung’s VCRs well into the future. The third factor, “similarity of the marks,” creates the factual question that is best decided by a jury. On the one hand, all of the aspects of the robot ad identify White; on the other, the figure is quite clearly a robot, not a human. Still, White has appeared in the same stance as the robot from the ad in

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numerous magazines, including the covers of some. If a jury would accept an expressionistic version of White, then the factor will likely support a likelihood of confusion. If not, then the factor will suggest that there will be no likelihood of confusion. The fourth factor does not favor White’s claim. She has presented no evidence of actual confusion. The fifth factor focuses on the marketing channels used. Magazines were used as the marketing channels for the robot ad. White has appeared in other ads in numerous magazines, in poses and formats very similar to that selected by Samsung and Deutsch. This factor strongly favors a likelihood of confusion. The sixth factor focuses on the likely degree of purchaser care. Consumers are not likely to be particularly careful in determining who endorses VCRs, making confusion as to their endorsement more likely. The seventh factor addresses intent. There is no doubt that Samsung and Deutsch intended to evoke White in its ad campaign. Instead, the district court found that, in running the robot ad, Samsung and Deutsch had intended a spoof of “Wheel of Fortune.” Spoofing is not a defense to intentional appropriation. The relevant question is whether the defendants “intended to profit by confusing consumers” concerning the endorsement of Samsung VCRs. Toho, 645 F.2d at 788. The robot ad was one of a series of ads run by Samsung and Deutsch that followed the same theme. Another ad in the series depicted Morton Downey, Jr. as a presidential candidate in the year 2008. Downey was paid for his endorsement as were the other celebrities spoofed in the ads. Doubtless, Samsung and Deutsch intended to spoof presidential elections and Mr. Downey through this ad. Consumers, however, would likely believe, and would be correct in so believing, that Mr. Downey was paid for this privilege. Looking at the series of advertisements as a whole, a jury could reasonably conclude that beneath the surface humor of the series lay an intent to persuade consumers that celebrity White, like celebrity Downey, was endorsing Samsung products. Since Samsung and Deutsch have acknowledged their intent to evoke White in the ad, it is for the jury to evaluate the intent. Once the jury has the facts regarding the payment to the other, male, celebrities but not to White, it can make its factual determine what this factor represents. Finally, the eighth factor, “likelihood of expansion of the product lines,” does not appear apposite to a celebrity endorsement case such as this. Application of the Sleekcraft factors to this case indicates that the district court erred in rejecting White’s Lanham Act claim at the summary judgment stage. In so concluding, we emphasize two facts. First, construing the facts in

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the summary judgment motion in White’s favor, as we must, we hold that White has raised a genuine issue of material fact concerning a likelihood of confusion as to her endorsement. Cohen v. Paramount Pictures Corp., 845 F.2d 851, 852–853 (9th Cir. 1988).

iv The First Amendment Defense Samsung and Deutsch raise concerns that a victory for White will harm their First Amendment rights. We start the analysis by distinguishing between commercial goods and services and the advertisements for those goods and services, which are collectively commercial, from those works, such as newspapers, books, magazines, and broadcasts, which are expressive works. Nearly all expressive works are still sold for a profit. This does not diminish the First Amendment rights of the authors and publishers. Most commercial goods and advertising have some content in the form of marketing, labels, and instruction manuals, but the operational content does not transform the sale of a toaster into the performance of a Shakespearean play. Courts have the power to look behind the curtain to ascertain the nature of the speech involved to help assess the protective framework involved. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the respondent’s complaint alleged that he had been libeled by statements in a full-page advertisement that was carried in The New York Times on March 29, 1960, paid for by the “Committee to Defend Martin Luther King and the Struggle for Freedom in the South.” The advertisement was not under the editorial control of The New York Times, though as publisher it had an obligation not to publish libelous content. The Supreme Court did not characterize this publication as a form of unprotected commercial speech (since at that time, commercial speech was outside the protection of the First Amendment), but instead the Court developed the seminal actual malice standard for defamation. At the same time, however, the Supreme Court recognized that communicative works – even in the form of advertisements – were of a different nature than advertisements for commercial products. Just three years later, the Supreme Court noted that “the appropriation and use in advertising or to promote the sale of goods, of another’s name, portrait or picture without his consent . . . would present different questions of violation of the constitutional protections for speech and press” than a play characterizing the plaintiff in a false light. Time, Inc. v. Hill, 385 U.S. 374, 381 (1967). The Supreme Court recognized that the rights of publicity protected under state statute, federal

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trademark statute, and common law can all distinguish the commercial use of the right’s holder from the communicative rights for newspapers and tabloids, biographers, filmmakers, and communicative publishers. A decade after Time, Inc. v. Hill, the Supreme Court further clarified its position in Zacchini v. Scripps–Howard Broad. Co., 433 U.S. 562 (1977). In Zacchini, the plaintiff sought damages for a television station that broadcast his entire act without permission. The Court noted that “the State’s interest in permitting a ‘right of publicity’ is in protecting the proprietary interest of the individual in his act in part to encourage such entertainment.” Id. at 573. The Supreme Court separated the right of publicity from the torts of defamation and false light by pointing out the strong interest in reporting of public events – a public value simply not present for rights of publicity claims. Instead, the Court likened rights of publicity to that of copyright, stating, “[t]he Constitution no more prevents a State from requiring respondent to compensate petitioner for broadcasting his act on television than it would privilege respondent to film and broadcast a copyrighted dramatic work without liability to the copyright owner.” Id. at 575. Samsung and Deutsch point to Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U.S. 557 (1980), involving commercial speech. The dissent points out that “[c]ommercial speech may be less protected by the First Amendment than noncommercial speech, but less protected means protected nonetheless.” The dissent explains, quite accurately, that “[c]ommercial speech has a profound effect on our culture and our attitudes. Neutral-seeming ads influence people’s social and political attitudes, and themselves arouse political controversy.” Both the argument of Samsung and Deutsch and the argument of the dissent are significant to our analysis, but they do not carry the weight suggested. The involvement of the First Amendment in commercial speech “is based on the informational function of advertising.” Central Hudson, 447 U.S. at 563. Central Hudson has never been applied in the context of trademark or copyright cases, and we expect that it is inapplicable to most rights of publicity cases as well. In the last term, for example, the Supreme Court applied section 43 of the Lanham Act and explained that “the protection of trademarks and trade dress under §43(a) serves the same statutory purpose of preventing deception and unfair competition.” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 773 (1992). In Central Hudson, this Court set forth a four-part test in commercial speech cases: In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First

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Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

Central Hudson, 447 U.S. at 566 Since Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976), the Court expanded First Amendment protection to advertising because “the free flow of commercial information is indispensable.” Id. at 770. Therefore, commercial information that tends to provide the consumer accurate knowledge is particularly helpful. In contrast, if the information is misleading or the advertisements involve unlawful activity, there is little or no First Amendment value. The Central Hudson test therefore dovetails quite elegantly with the analysis under section 43 of the Lanham Act. To the extent a product or advertisement would be marketed using a person’s publicity rights without consent, it could lead to the question of whether there is a likelihood of confusion as to the source or sponsorship of the goods or services because of the marks used thereon. See, e.g., Paula Payne Prods. Co. v. Johnson’s Publ’g Co., 473 F.2d 901, 902 (C.C.P.A. 1973), which would take it outside the scope of protection under Central Hudson. The need to license publicity rights is also reflected in the Central Hudson test. Advertisements on television and radio are already regulated by the FCC while print and billboards are subject to FTC enforcement actions, with both agencies requiring that parties endorsing goods or services do so in a truthful manner. The more likely an industry is to rely on paid endorsements, then the more likely the absence of consent for endorsements is materially misleading to the public. These regulations remain consistent with Central Hudson because materially misleading commercial speech remains outside the First Amendment. The failure to secure an endorsement while implying that the celebrity is involved with a product of service would fail under both Central Hudson and potentially under the various regulations of the agencies regulating advertising. Moving to the final two Central Hudson prongs, the government has two interests, both of which are substantial for rights of publicity cases. These rights protect the individual holding the rights of publicity from exploitation and they protect the public from false and deceptive advertising and products.

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Millions of people have come to admire White, which may be precisely why Samsung chose to run the advertisement associating her with their VCR. While the public may have far less respect for Morton Downey, Jr., Samsung was still willing to pay him for his association with their advertising. One or both of the substantial interests remains the same. On these facts, the final prong of Central Hudson is also easily met. Publicity rights in both the common law form and the statutory form of privacy are restricted to commercial activities. As with copyright, in most situations, there are a multitude of ways to express the information needed for a commercial transaction so that there is no need to exploit the publicity rights of a person who does not wish to give consent. When this is not the case, then a court will provide a balancing test to weigh the free speech rights of the commercial conduct with the right to control the consent of one’s identity with the sale of a product or the advertisement for the product. Both Zacchini and Time Inc. v. Hill illustrate that courts are capable of drawing these distinctions. Publicity rights used to sell products or promote the sale of goods are a far cry from the free expression interest in portraying a person in a biography in a book or film. In a recent case, the Second Circuit, applying the law of Oregon, notes that “three courts, citing their concern for free expression, have refused to extend the right of publicity to bar the use of a celebrity’s name in the title and text of a fictional or semi-fictional book or movie.” Rogers v. Grimaldi, 875 F.2d 994, 1004 (2d Cir. 1989). Examples involving communicative works like books, television productions, movies, and other media are likely in need of greater accommodation under Central Hudson and the priority of First Amendment concerns. Those concerns are not present when dealing with a billboard advertising commercial goods. Central Hudson and its progeny provide ample accommodation for the right of publicity to remain a robust privacy right.

v The Parody Defense The parody defense is actually a subset of the more general reference to Samsung’s and Deutsch’s free speech rights. Samsung and Deutsch cite two relevant cases in which advertisements were treated as communicative works rather than commercial speech. See Hustler Mag., Inc. v. Falwell, 485 U.S. 46 (1988); L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26 (1st Cir. 1987). Those cases involved parodies of advertisements run for the purpose of poking

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fun at Jerry Falwell and L.L. Bean, respectively. Neither ad parody was used to sell an actual product or service. These were not advertisements; they were satirical sendups using the advertising format to make their point. This does not mean that there will never be opportunities for parodies to appear in advertisements for commercial products. Although the Supreme Court has yet to address parody in the context of copyright fair use, see Benny v. Loew’s Inc., 239 F.2d 532 (9th Cir. 1956), aff’d sub nom. Columbia Broadcasting System, Inc. v. Loew’s Inc., 356 U.S. 43 (1958) (affirmed without opinion by an equally divided court), this court and other circuits have found parody a form of comment or criticism within fair use under 17 U.S.C. §107. See, e.g., Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986); Elsmere Music, Inc. v. Nat’l Broad. Co., 482 F. Supp. 741 (S.D.N.Y. 1980), aff’d, 623 F.2d 252 (2d Cir. 1980); see also H.R. Rep. No. 94–1476 (“[U]se in a parody of some of the content of the work parodied” may be fair use). But copyright fair use is a multifactored test that includes the effect on the marketplace, and the commercial exploitation of publicity rights to directly sell a product or service militates against a finding of fair use. As such, the jury weighing the factors must weigh the whole fair use analysis rather than give a green light to any advertising hoping to make a joke to sell a product. Comparative advertising is another common exception to the rules of the Lanham Act. To the extent the use of a celebrity’s likeness was necessary to allow that otherwise accurate comparative advertisement to run, then the celebrity’s likeness could be used appropriately. These exceptions are narrow and do not swallow the power of consent that is at the heart of the right of publicity. The obligation to permit accurate comparative advertising is a precondition in the marketplace. Any decision to object to the use of comparative advertising will be made by the seller of the goods, not the person making the endorsement. For White and the women and men like her, the only decisional power is whether to participate in the advertisement at the outset. This loss of control over a published advertisement further reinforces the need to respect the rights of publicity at the outset. A celebrity cannot choose to endorse a product but refuse to have their endorsement used in a lawful comparative ad. This serves as a reminder how important it is to respect the publicity rights and the right to choose whether or not to be in any advertisement or to be in any particular advertisement. It is wholly within the power of the individual to avail oneself of the economic benefits of commercialization of the rights of publicity. This case involves a true advertisement run for the purpose of selling Samsung VCRs. The ad’s spoof of White and Wheel of Fortune is only

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tangentially related to the ad’s primary message: “buy Samsung VCRs.” Samsung’s and Deutsch’s parody arguments are better addressed to noncommercial parodies. Only in limited cases would a parody defense be successful when dealing with ads for ordinary products or services. For example, we may accept a parody defense in commercial advertisement for ordinary products or services if the ad also involves political speech, but that does not apply in this case. The difference between a “parody” and a “knockoff” is the difference between fun and profit.

vi Conclusion In remanding this case, we hold that White has pleaded claims which can go to the jury for its decision. Reversed and remanded.

part iv

Condemnation and Adverse Possession

9 Commentary on Kelo v. City of New London julia d. mahoney

background In Kelo v. City of New London, a narrowly divided United States Supreme Court sustained as constitutional the condemnation of fifteen homes to further an economic development scheme.1 One of the most unpopular decisions in Supreme Court history, Kelo provoked public outrage across the political spectrum.2 The breadth and magnitude of this furor caught many by surprise, including Justice John Paul Stevens, who wrote the majority opinion.3 The economic development program at issue in Kelo grew out of efforts to revive New London, Connecticut, a small coastal city that in the nineteenth century was one of the nation’s leading whaling ports. Spearheaded by the New London Development Corporation (NLDC), a nonprofit firm that worked closely with state and local officials, the plan called for transforming a 90-acre portion of the waterfront Fort Trumbull neighborhood from a working-class area to a more affluent, upscale one. Also critical to the redevelopment scheme was a commitment by the Pfizer Corporation, a major pharmaceutical company, to construct a research facility on land abutting the Fort Trumbull neighborhood. Pfizer’s involvement in the New London revitalization project was a matter of great controversy, generating accusations

1 2

3

Kelo v. City of New London, 545 U.S. 469 (2005). Julia D. Mahoney, Kelo’s Legacy: Eminent Domain and the Future of Property Rights, 2005 Sup. Ct. Rev. 103, 104–105 (2006). John Paul Stevens, The Making of a Justice: Reflections on My First 94 Years 431– 433 (2019).

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– which turned out to be well-founded – of government favoritism toward powerful corporate interests.4 While most property owners in the area slated for “improvement” agreed to sell, nine refused. These holdouts, who owned a total of fifteen residential properties, included Susette Kelo, a health care worker who had invested significant amounts of money, physical labor, and time in her “little pink house” with a view of the water.5 Another Fort Trumbull community member determined not to part with her property was octogenarian Wilhelmina Dery, a lifelong resident of the neighborhood.6 When the NLDC responded to these holdouts’ unwillingness to sell by invoking a state law authorizing the use of eminent domain to promote the needs of business and industry and condemning their homes, Susette Kelo and the others sued in state court. They argued that the taking of their properties was not for “public use” and, thus, contravened the Takings Clause of the Fifth Amendment of the United States Constitution.7 Although the homeowners prevailed in part at the trial court level, they lost before the Supreme Court of Connecticut.8 They appealed, and the United States Supreme Court agreed to hear their case. To many legal experts, the plaintiffs’ chance of success before the Court appeared remote. Conventional wisdom, after all, held that the term “public use” meant, for all practical purposes, any plausible benefit to the public.9 Yet, victory for Susette Kelo and her neighbors was not wholly implausible. Since the 1980s, the Court had shown an increased willingness to rule in favor of plaintiffs in cases alleging government infringements of property rights.10 In addition, public opinion had soured toward the use of eminent domain for large-scale economic redevelopment projects of the sort undertaken in New London.11

4

5

6 7

8 9 10 11

See Ilya Somin, The Grasping Hand: Kelo v. City of New London & the Limits of Eminent Domain 16 (2015) (detailing “additional documentation uncovered by an investigative reporter” subsequent to the Court’s decision in Kelo indicating that the NLDC’s property condemnations were “undertaken in large part as a result of extensive Pfizer lobbying”). Jeff Benedict, Little Pink House: A True Story of Defiance and Courage (2009); Little Pink House (Film Mode Entertainment 2018). See Somin, supra note 4, at 14. U.S. Const. amend. V (“[N]or shall private property be taken for public use, without just compensation.”). Kelo v. New London, 843 A.2d 500 (Conn. 2004). See, e.g., Thomas W. Merrill, The Economics of Public Use, 72 Cornell L. Rev. 61 (1986). Mahoney, supra note 2, at 114. Id. at 113–114.

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original opinion Justice Stevens’s opinion for the five-member majority is something of a muddle, as Stevens himself came to admit.12 On the one hand, the majority insists that “over a century of our case law interpreting” the meaning of “public use” for Fifth Amendment purposes “dictates an affirmative answer” to the question of whether New London’s proposed condemnations would in fact be for “public use.”13 In explaining why the Court is, at least in his account, so bound, Justice Stevens simply points to the long-standing practice of tremendous judicial deference to the political branches when it comes to decisions about whether the public interest justifies the use of eminent domain powers. At the same time, the majority opinion goes into such exhaustive detail about the specific facts of the case as to raise the possibility that the takings in Kelo barely passed constitutional muster, which, in turn, suggests that extreme deference to government condemnation decisions just might be a thing of the past. Justice Stevens stresses that selections of which properties to condemn were the product of a comprehensive plan designed to revitalize a distressed municipality, and that the plan was crafted by local and state government officials with input from the public.14 Absent from the majority’s discussion of these and other factors, however, is any clear indication of whether any of them made any difference to the outcome of the case. Adding another layer of complexity to the analysis of Kelo is Justice Anthony Kennedy’s concurring opinion. In explaining his decision to join the majority opinion and, thus, provide the decisive fifth vote, Justice Kennedy pays close attention to issues of corruption, broadly defined. Kennedy takes pains to state that courts should engage in “meaningful” rational basis review. In Justice Kennedy’s mind, that means taking very seriously “plausible” allegations of “impermissible favoritism” when deciding whether a taking of property is for “public use,” while going on to express his satisfaction that in the Kelo litigation the courts did their jobs.15 Justice Kennedy also leaves open the possibility that a subset of condemnations for economic development purposes might, under some circumstances, merit a “more stringent standard of

12 13 14 15

Stevens, supra note 3, at 431–436. Kelo, 545 U.S. at 490 (emphasis added). Id. at 483–485. Id. at 490–493 (Kennedy, J., concurring).

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review” than simple rational basis scrutiny, but fails to set out a framework for delineating that subset.16 There are two dissents in Kelo. Justice Sandra Day O’Connor, joined by Justices Rehnquist, Scalia, and Thomas, hones in on what she sees as grave threats to the security of the property of ordinary people if courts do not meaningfully constrain economic development takings. The majority’s refusal to articulate the boundaries of permissible government conduct, O’Connor maintains, means the “specter of condemnation” will haunt property owners as governments are free to replace “any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”17 As with any system in which property rights are in large measure a function of political influence, suggests Justice O’Connor, those with the fewest resources will tend to suffer most. Justice Clarence Thomas’s separate dissent picks up on Justice O’Connor’s apprehensions about the potentially pernicious consequences of untrammeled government power to reconfigure private property rights. Observing that ill-conceived economic redevelopment schemes devastated a number of minority communities in the 1950s and 1960s, Justice Thomas argues that there is no good reason for courts to show substantial deference to legislative and administrative determinations of public use. Justice Thomas urges the Court to reconsider its eminent domain precedents and interpret the “public use” clause according to what he regards as its “most natural reading” and allow “the government to take property only if the government owns, or the public has a right to use, the property.”18

feminist judgment Even though both the named plaintiff (Susette Kelo) and second-highest profile plaintiff (Wilhelmina Dery) in the Kelo litigation are women, considerations of gender are absent from all four Kelo opinions. In her far-reaching dissenting opinion, Professor Olympia Duhart, writing as Justice Duhart, fills that gap. Taking account of women’s experiences both as unique individuals and community members, Duhart explains how property rights can help women flourish and construct meaningful lives. As Duhart observes, secure property rights have special importance for

16 17 18

Id. Id. at 503 (O’Connor, J., dissenting). Id. at 508 (Thomas, J., dissenting).

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women, who historically have been subject to greater constraints than men when it comes to acquiring and enjoying property. Duhart’s dissent begins with the facts of Susette Kelo’s life. A single woman who dreamed of a home to call her own, Susette Kelo set to work making her dreams a reality. She bought and restored a house in a solid, working-class area of a city that had a lot going for it, including housing affordability and access to the Long Island Sound, even though it had seen better days. Painted a distinctive “Odessa Rose” color, Susette Kelo’s renovated house reflected her personality and values. In moving to Fort Trumbull, Susette Kelo did more than express her individuality. She joined a community. This point bears emphasis, for the American dream of home ownership is not simply one of individual autonomy and agency. Like most homeowners, Susette Kelo sought to put down roots and forge ties with her neighbors. Kelo succeeded in these aims, becoming part of a thriving neighborhood where new arrivals and longtime residents worked together to build good lives for all. As Duhart notes, there was never any claim – not even by those who drew up the plan calling for the removal of Susette Kelo and her neighbors – that the area of Fort Trumbull slated for demolition posed any sort of threat to others or constituted a nuisance. But none of that mattered to the Kelo majority, which declined to intervene to prevent the Fort Trumbull homeowners from being forced from their homes for no other reason than that the government had decided that its redevelopment plan would improve New London. One standard justification for courts not to engage in serious, sustained oversight of property condemnations of the sort challenged in Kelo is that legislators and administrators generally have better information than do judges about which reconfigurations of ownership rights will benefit the public.19 However ill-advised an economic development plan may look – and the New London redevelopment plan appeared to many to be highly unlikely to achieve its putative aims – the involvement of courts is unlikely to lead to better decisions about land use, or so the argument goes. Duhart explains why this common justification is unpersuasive. Even if it is true that the judiciary has less competence than the political branches in calculating the social costs and benefits of eminent domain, there is nonetheless value in having courts serve as, in Duhart’s phrase, “a safety check on overreach.” A role for courts ensures that property rights will be secure unless more than one component of

19

See Merrill, supra note 9.

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the government agrees that property rights should be overhauled, thereby creating “multiple veto points.”20 As Duhart argues, this point is key – in other areas of constitutional law, it is well accepted that courts will exercise robust scrutiny over government actions that threaten individual rights. In the area of eminent domain, such heightened scrutiny is especially important, argues Duhart, because of the dangers of structural inequalities that render women and other groups with limited political power vulnerable. A world in which property rights are up for quick reconfiguration through the political process – as occurred in New London – is one of reduced security for those least able to defend their interests in the political arena. The economic and other consequences for women and other vulnerable groups are potentially serious. As Duhart notes, while owners who lose their property through eminent domain are entitled to financial compensation from the government, the amount owed is limited to “fair market value.” That measure, by definition, leaves out non-market values and, thus, undercompensates property owners. Duhart’s feminist recasting of Kelo illuminates what is at stake in disputes about the use of the eminent domain power. While eminent domain is an essential government power, like all state powers it can be misused. The continuing unpopularity of the Court’s decision in Kelo, together with highprofile current controversies over property condemnations for energy pipelines and other major infrastructure projects that arguably benefit private corporate interests more than the public interest, raise the possibility that the Court may opt to revisit its interpretation of “public use” sometime in the near future. Should the Court do so, Duhart’s dissent could prove influential, for it points the way to a more sophisticated and humane law of eminent domain.

KELO V. CITY OF NEW LONDON, 545 U.S. 469 (2005)

justice olympia duhart, dissenting The color she picked was Odessa Rose. Petitioner Susette Kelo, a divorced nurse who wanted a house of her own, found a fixer-upper in New London, Connecticut. The house was modest and needed lots of work, but it had a view of the river and would be all hers. Kelo 20

Mahoney, supra note 2, at 129–131. See also Douglass C. North & Barry R. Weingast, Constitutions and Commitments: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England, 49 J. Econ. Hist. 803–829 (1989).

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bought the house in Connecticut’s Fort Trumbull neighborhood in 1997. She put in the work herself to complete the extensive improvements. Slowly but surely, she was transforming this little house into her dream home. Before too long, however, Kelo’s dream would be interrupted by a harsh reality. Pfizer, the behemoth pharmaceutical company, announced plans to build an expansive research facility near Fort Trumbull. Supporters say the multimillion-dollar site will create jobs, increase tax revenue, and revitalize the area. Planners believe the Pfizer facility will spark a wave of redevelopment in the area, featuring hotels, restaurants, new residences, offices, retail space, and parking. But there will be no room for Kelo’s little pink house. There has been no claim that Kelo’s home – which is well-maintained – is the source of any social harm for the neighborhood. It is not blighted or in poor condition. Nevertheless, it has been targeted in a condemnation proceeding. Why is Kelo’s home set to be razed? It happens to be in the 90-acre area slated for development. The hope is that the economic development will “complement” Pfizer’s planned facility. Kelo v. City of New London, 843 A.2d 500, 509 (Conn. 2004). Considered together, these facts paint an unmistakable picture of a large, for-profit drug company seeking to replace Kelo’s two-bedroom home and fourteen other properties. According to the New London Development Corporation (“NLDC”), the private, nonprofit organization “deputized” by the City to lead the revitalization efforts, the public would benefit because of the ensuing economic development that would likely be spurred by Pfizer’s $300 million facility. The City of New London agreed. In an effort to keep their homes, Kelo and other petitioners brought this action in December 2000 seeking declaratory, injunctive, and other relief. The homeowners alleged that defendants’ exercise of eminent domain violated the Connecticut and United States Constitutions, C.G.S. Chapter 132, and the New London City Charter. The issue in this case is whether NLDC’s use of eminent domain to advance an economic development plan comports with the “public use”‘ requirement within the Takings Clause of the Fifth Amendment of the Constitution of the United States. In affirming the Supreme Court of Connecticut’s decision, this Court incorrectly holds that NLDC’s economic development plan constitutes a “public use.” It approves the taking of the private land under eminent domain because of the public benefits that may run from the private enterprise. This decision undercuts the rights of private property owners and increases the likelihood that working-class people will be exploited.

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Further, this Court wrongly grants too much deference to the legislature in applying rational basis review to eminent domain uses justified by economic development. Applying the lower standard does not guard against the potential of abuse of eminent domain in stripping property from vulnerable populations. Finally, this Court’s opinion codifies the structural inequities that operate to subordinate women and other people with limited political power. The Constitution requires that we increase the protection afforded to groups of disempowered people, not diminish it.

i The Fifth Amendment In its plainest terms, the City Council of New London wants to take private property from A to give it to B. The Fifth Amendment does not permit such a trade. Yet, this is precisely the type of trade that the City has authorized in pursuit of its ambitious economic redevelopment plan for Fort Trumbull. In 2000, the City of New London approved a development plan intended to boost jobs, increase tax revenue, and revitalize an area that was crippled in 1996 when the federal government shuttered its Naval Undersea Warfare Center, which had previously employed more than 1,500 people in the area. The City reactivated the NLDC, a private nonprofit entity staffed by privately appointed employees, to implement its revitalization efforts. Once the NLDC was designated as the City’s agent in charge of implementation, it was also authorized to purchase property or exercise eminent domain in the City’s name to displace unwilling owners. Conn. Gen. Stat. § 8-193 (2005). Though most of the real estate in the targeted development area was purchased through negotiation, talks with Kelo and other owners failed. Consequently, the NLDC initiated condemnation proceedings against those owners with whom it failed to reach an agreement. Those proceedings led to this case. Kelo and the other owners brought this action in the Superior Court, Judicial District of New London. They claimed the taking of their property violated the “public use” restriction in the Fifth Amendment. They were not holding out for more money; they merely wanted to keep their own houses. A seven-day bench trial resulted in a mixed result for the parties. The Superior Court denied relief for some properties but granted a permanent restraining order on other properties. Following the Superior Court ruling, Kelo and the

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other owners who were denied injunctive relief appealed to the Supreme Court of Connecticut; NLDC cross-appealed the injunction granted to the other owners. The Supreme Court of Connecticut held, over a dissent, that all of the City’s targeted takings were valid. The Supreme Court of Connecticut relied on the State’s municipal development statute, which stated that taking of land as part of an economic development plan was “public use” and in the “public interest.” See Conn. Gen. Stat. § 8-186 (2005). It also relied heavily on two key cases decided by this Court, Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), and Berman v. Parker, 348 U.S. 26 (1954), and found that economic development constituted a valid public use under both the Federal and Connecticut Constitutions. Kelo, 843 A.2d at 527. Finally, the Supreme Court of Connecticut also evaluated the takings under a deferential rational basis review of the legislative determination that the takings were “reasonably necessary” to meet “reasonably foreseeable” needs. Id. at 558–559. Our charge here is to determine whether a city’s decision to take property for economic development satisfies the “public use” requirement articulated in the Fifth Amendment. The Fifth Amendment of the United States Constitution provides that No person shall be held to answer for a capital, or otherwise infamous crime, unless a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation.

U.S. Const. amend. V. (emphasis added). The guarantees afforded in the Takings Clause of the Fifth Amendment are made applicable to the States by the Fourteenth Amendment. See Chicago, B. & Q.R. Co. v. Chicago, 166 U. S. 226 (1897). The value of the owners’ homes cannot be adequately captured by “just compensation.” For Kelo and the other owners, the value of their properties in Fort Trumbull is greater than fair market value. Kelo, for instance, has personally made painstaking improvements to her house. She pulled up the carpet, stripped the hardwood floors with sandpaper, and removed layers of old paint to expose the original stair treads. She picked out her favorite color – pink – to paint the property. Similarly, Wilhelmina Dery was born in her

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home in 1918; she has lived there her entire life. Her house has been in Dery’s family for more than 100 years. With regards to their homes, the owners stress, [They] have poured their labor and love into their homes. They are places where they have lived for years, have raised their families, and have grown old. [They] do not want money or damages. They merely seek to stop the use of eminent domain to take away their most sacred and important possessions: their homes.

Petition for Writ of Certiorari, Kelo v. City of New London, 545 U.S. 469 (2005), cert. granted, 2004 WL 1659558, *2 (July 19, 2004) (No. 04-108). This Court should recognize the dangers of “valuation” measures for vulnerable populations. As the experiences of Kelo and Dery illustrate, the taking of a home is more invasive than taking other property. Therefore, the compensation for displacement cannot properly account for factors beyond mere fair market value, such as the subjective and protective value of the home and community. Where the benefit for the transfer of property is squarely for a private benefit, the government should not allow a developer to abuse the power of eminent domain to acquire property from unwilling owners, even for “just compensation.” To be sure, the “just compensation” claim is also flawed because it is limited to fair market value, and not the owner’s price. See Richard Epstein, A Clear View of The Cathedral: The Dominance of Property Rules, 106 Yale L.J. 2091, 2093 (1997) (discussing the risk of undercompensation in eminent domain proceedings). It is “against all reason and justice” for people to entrust a legislature with the power to take property from A and give it to B. See Calder v. Bull, 3 U.S. 386, 388 (1798). This well-settled principle has been recognized by this Court for quite some time. Even Midkiff, 467 U.S. at 229, cited as precedent for today’s flawed decision, warns explicitly against the dangers of a purely private taking. “A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void.” Id. at 245. This Court concedes that the Constitution forbids the government from taking private land to confer a private benefit to a particular private party. Moreover, this Court also acknowledges that the Constitution also bars the government from taking private property under the mere “pretext” of public purpose. But the lofty language belies the facts here. Pfizer’s plan for an expansive research facility is meant to serve as a catalyst for other economic revitalization in the area. NLDC argues that the “public use” requirement will therefore be satisfied once the economic boons “trickle

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down” to the community. Unlike a public highway that has traditionally triggered analysis under the Takings Clause, the Pfizer facility and most of the surrounding development will be private. NLDC asserts that the Pfizer facility will “build momentum for the revitalization of downtown New London.” Joint App., Kelo v. City of New London, 545 U.S. 469 (2005), 2004 WL 2921787 *270 (2004). It is true that the City of New London is struggling with economic hardship marked by decades of economic decline. The area – located near the junction of the Thames River and the Long Island Sound – has struggled for some time with its economy. But that fact alone cannot justify a land grab under the guise of the Takings Clause. This Court eviscerates the line between “public” and “private” use. And in doing so, it removes one of the critical safeguards in place to protect private citizens against exploitation and loss of private property. Indeed, it ignores the Court’s duty to honor constitutional safeguards erected by the Framers to protect private property. That the taking at issue here is being executed pursuant to a “carefully considered” development plan, Kelo, 843 A.2d at 536, does not cure the primary defect that the research facility only serves a private use. The Court should read the public use requirement narrowly. The power of eminent domain takings should be limited to transfers to the government, or a private entity that must legally allow the public to use the property at issue. A broad reading of the public use requirement risks the total erosion of this important limitation found in the Takings Clause. The government has long recognized its critical role in ensuring stable property ownership through protections that guard against unfair use of eminent domain power. The “security of Property” was recognized at the Constitutional Convention by Alexander Hamilton as one of the “great obj[ects] of Gov[ernment].” 1 Records of the Federal Convention of 1787, at 302 (M. Farrand ed., 1911). William Blackstone’s influential work, Commentaries on the Laws of England, also stressed the importance of protecting private property. He wrote that the law does not permit the government to diminish the right of private property “even for the general good of the whole community.” William Blackstone, Commentaries on the Laws of England 135 (1979) (1765). James Madison, the primary drafter of the Takings Clause, stated the “Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses.” James Madison, On Property (1792), reprinted in The Founders’ Constitution 598 (Philip B. Kurland & Ralph Lerner, eds., 1987).

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By reading the public use requirement narrowly, the Court would correctly limit the government’s eminent domain power. A narrow reading would be consistent with the Framer’s intent and advance the fairness at the heart of the Takings Clause. “The concepts of ‘fairness and justice’ . . . underlie the Takings Clause.” Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 336 (2002). Some of my colleagues on the bench have entirely missed the mark in today’s majority opinion. Specifically, this Court’s reliance on both Midkiff and Berman are misplaced. First, the Court in both Midkiff and Berman conflated the Takings Clause with the state’s police power. See Midkiff, 467 U.S. at 240 (“The ‘public use’ requirement is thus coterminous with the scope of a sovereign’s police power.”); see also Berman, 348 U.S. at 32 (“We deal, in other words, with what traditionally has been known as the police power.”); see generally Joseph L. Sax, Takings and The Police Power, 74 Yale L.J. 36 (1964) (discussing the difficulties courts have in distinguishing takings from police power regulations). Second, the key cases cited by this Court to justify today’s decision are readily distinguishable from the particular facts and circumstances presented by Kelo and the other owners. The instant facts are not at all consistent with Berman or Midkiff. The majority’s opinion does not properly reflect the precedent in this area. Rather, it expands the eminent domain power significantly. Both Berman and Midkiff dealt with very different facts than those at play here. In Berman and Midkiff, the public benefit of the taking in light of the social harms was both immediate and definite. In Berman, the public was relieved of a distressed, blighted community. In that case, the District’s Director of Health had determined the targeted area required redevelopment in the interest of “public health.” Berman, 348 U.S. at 30. In Midkiff, the public was relieved from the harm of an oligopolistic property scheme. Midkiff, 467 U.S. at 242. Both takings led to immediate and definite relief from social harms. Here, the condemnation of the fifteen properties in Fort Trumbull does not create a public benefit of immediate or definite relief. There is no social harm presented by Kelo’s property or any of the other properties here. The purported benefit – increased tax revenue, the creation of jobs, and new, upscale development – is neither immediate nor definite. The so-called public benefit is contingent on the execution of development agreements and the realization of several speculative projects beyond the government’s control. Moreover, the City does not intend to open much of the condemned land to the public. The goal here is simply to upgrade. But even if these ambitious designs come to pass, they are in no way immediate or definite such as those in

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Berman and Midkiff. And they certainly do not constitute a “public use” within the meaning of the Fifth Amendment. But most importantly, even if one is not willing to parse the immediate versus speculative distinction presented by the precedent and the instant case, this Court should act today to push back on the growing threat of economic development-fueled takings. The increase in these takings signals a predatory trend and warrants judicial oversight. Minorities are displaced at alarming rates. As Justice Thomas notes in his dissent, Berman resulted in wide-scale removal of Black people from their homes – more than 97 percent of the people forced out of the project were Black (348 U.S. at 30). We can slow the encroachment upon minority-owned private property at the hands of big business. We must enforce the limitations already found in the Constitution. During oral arguments, the attorneys for NLDC admitted that the economic justification for a “public use” clause could stretch the elasticity of the phrase to its outer limits. When prompted by Justice O’Connor to respond to the possibility of replacing a Motel 6 with a Ritz Carlton because the Ritz would pay higher taxes, the lawyer for NLDC said that trade “would be okay.” Tr. of Oral Arg. at 30, Kelo v. City of New London (No. 04-108). He even conceded that taking property from A to give to B if B pays more taxes would be permissible if the tax revenue increase is “a significant amount.” Id. Surely, the security of property advanced by Hamilton, Madison, and this Court does not turn on who writes the bigger property tax check to the government. Such a reading of the Takings Clause would undermine the fairness that is essential to the Taking Clause’s public use restriction. Even worse, it would leave property owners with very little security in their own homes. Following today’s decision, the “public use” limitation in the Takings Clause is effectively eviscerated. In cementing the move from the “public use” requirement to the “public benefit” language, and expanding the reach to include incidental, speculative economic development, this Court has failed to honor its duty to advance the fairness objectives served by protecting private property from unnecessary takings. Instead, this Court has paved the way for private for-profit businesses to wield the power of eminent domain to its own ends.

ii Deference to the Legislature Despite this Court’s general deference to the legislature in reviewing government regulations impacting economic rights, this Court should be slow to give

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up its role in reviewing legislative decisions in this new, potentially explosive realm of economic development-based takings. Rather than merely rubber-stamp a legislative choice that would further marginalize the individual women and men fighting corporate giants, this Court should maintain its role as a safety check on overreach. Expropriation of private property in the service of economic development is too speculative and potentially exploitative for mere rational basis review. Any conceivable purpose should never be enough to justify taking private property to transfer to another private owner for a more productive use. There are real dangers in taking a deferential approach to the legislative pronouncements of what constitutes a “public use” when economic development is the measuring stick. Both rational basis and intermediate standards for eminent domain cases justified by economic development are simply too weak. I agree with Kelo and the other owners that a more searching inquiry should attach when the “public use” clause is read to include economic development. The more demanding review is warranted because the threat of exercising eminent domain to benefit a more powerful private actor is too great. A lower judicial inquiry standard would be far too deferential and will result in a green-light for most economic-development-fueled takings. Even under the principles of federalism, this Court should not abdicate its duty to protect private property. Ultimately, this is squarely a judicial inquiry. See Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the province and the duty of the judicial department to say what the law is”). The argument that this Court should defer to the local government on matters of local concern also fails. In other arenas, this Court has had little problem reviewing the decisions of local government to enforce Constitutional guarantees in favor of individual rights. See, e.g., Romer v. Evans, 517 U.S. 620 (1996) (where this Court struck as violative of the Equal Protection Clause a Colorado constitutional amendment that limited all legislative, executive, and judicial action to protect gays and lesbians from discrimination); see also Lawrence v. Texas, 539 U.S. 558 (2003) (where this Court used the Due Process Clause to strike a Texas statute that criminalized same-sex intimate contact). These significant cases recognize that this Court’s nature is non-majoritarian, and that it operates at times to erect constitutional safeguards to protect vulnerable communities where they are failed by local lawmakers. As Justice O’Connor points out in her dissent, this role is even more pronounced in the Takings Clause arena, where we are examining a provision meant to curtail state action.

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As Justice Thomas notes in his dissent, there is no need to afford “almost insurmountable deference” to legislative conclusions about a “public use.” He correctly notes that this is a “quintessentially legal question.” More importantly, Justice Thomas states that the delegation of the awesome responsibility of judicial review is not warranted by history or precedent. In examining other constitutional norms, this Court has not been shy to carefully evaluate local and state action in other contexts. Reasonable searches and property interests protected by the Due Process Clause, for example, were not given such high deference. See Payton v. New York, 445 US 573, 589–590 (1980). Nor is deference to the legislature warranted in eminent domain proceedings, another constitutional guarantee. In his concurring opinion, Justice Kennedy properly contemplates a “more stringent standard of review” in some takings cases. Importantly, he acknowledges the possibility of private transfers that run “the risk of undetected impermissible favoritism of private parties.” Unfortunately, Justice Kennedy fails to see what is plain to so many others here – the same risk looming over Kelo and the other owners. Additionally, the reliance on state-motivated corrections to limit economic development takings is insufficient. Hoping that states respond to protect property owners is not an adequate solution when the Court fails to enforce the guarantees already provided in the Fifth Amendment. The Court cannot simply pass along its duties to local and state government where federal constitutional guarantees are in the balance. Even if state and local governments act to further restrict the Takings Clause, it is merely a temporary solution to an ongoing threat. Just as a legislature may enact statutory limitations that prohibit taking private property for economic development, it could just as easily take away those statutory protections. To better balance the power disparities here, this Court should impose a heightened standard of judicial review when examining takings motivated by economic development. The dissenting justices in the Supreme Court of Connecticut were correct to demand more compelling evidence in the case of a taking justified by economic development. See Kelo, 843 A.2d at 587, 588 (Zarella, J., concurring in part and dissenting in part). In fact, the City never produced “clear and convincing” evidence that NLDC could deliver everything it promised – even when the cost to Kelo and the other owners was so great. See id. at 589.

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In an effort to limit the scope of condemnations prompted by economic development, a heightened standard of review would act to limit the reach of such efforts. Already, the use of eminent domain for private development projects has skyrocketed in recent years. In the four-year period between 1998 and 2002, there were 10,000 attempts to transfer property between private individuals through condemnations. Dana Berliner, Public Power, Private Gain: A Five-Year, State-by-State Report Examining the Abuse of Eminent Domain (April 2003), http://castlecoalition.org/ pdf/report/ED_report.pdf. The rational basis review standard undercuts the protections afforded against unconstitutional encroachments. Applying strict scrutiny, however, gives courts the means to better “discern obfuscated private uses from those legitimately public.” Stephen J. Jones, Trumping Eminent Domain Law: An Argument for Strict Scrutiny Analysis, 50 Syr. L. Rev. 285, 306 (2000). Strict scrutiny in economic development takings for private property would increase protections for vulnerable populations such as women, the elderly, and minorities – who are disproportionally impacted by such schemes. This shift would be consistent with this Court’s long-held commitment to addressing vulnerable populations. See United States v. Carolene Products Co. 304 U.S. 144, 152–153 n.4 (1938) (noting that bias against “discrete and insular minorities” may call for a “more searching judicial inquiry”). Indeed, using eminent domain to transfer property in pursuit of economic development frequently impacts “discrete and insular” groups unable to access the “political processes.” A more exacting judicial scrutiny should attach, whether the legislation emanates from the Fourteenth Amendment or the Fifth Amendment. When held to this particular problem – eminent domain in private transfers justified by economic development – strict scrutiny need not apply to all economic-based legislation. The general application of rational basis review reserved for economic regulation after Carolene Products would still be intact; the special private transfers for economic development, however, would be elevated to strict scrutiny since they are inherently suspect. This change would arm the courts with a meaningful check on abusive eminent domain transfers. Eminent domain legislation that attempts to transfer private property to another private owner to boost economic development would only apply if the government met its burden of showing that the transfer was necessarily related to a compelling interest. See Adarand Constructors v. Pena, 515 U.S. 200, 224 (1995) (addressing the stringent inquiry demanded by strict scrutiny). Applying this heightened standard to this case, I would rule that the NLDC plan and ensuing condemnations fail strict scrutiny.

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iii The Role of the Constitution in Correcting Structural Inequality While this Court recognizes that its affirmation of the takings here does not “minimize the hardships that condemnations may entail,” the majority fails to address the difficulty one would face when ousted from her home, especially when the ousting is prompted by a private company in search of land to complement the construction of a private facility. This Court is ignoring centuries of marginalization if it asserts that today’s ruling does not further exacerbate the divide between the more privileged property owners such as large corporations and the more vulnerable members of the community. There are already too many structural inequalities in place to restrict property rights for women such as Kelo. Kelo and the owners correctly warn that the condemnations in this case “are an act of raw preference for one type of people, one type of housing, and higher tax dollars over current residents.” Reply Brief for Petitioner, Kelo v. City of New London (2005) (No. 04-108), 2005 WL 353691, at *20. To pretend that the eminent domain law and its impact are neutral ignores what Professor Catharine A. MacKinnon identifies as the favoritism that always runs to men in the law. MacKinnon notes that men walk into the courthouse with a distinct advantage because “society advantages them before they get into court.” Catharine A. MacKinnon, Difference and Dominance: On Sex Discrimination, in Feminism Unmodified: Discourses on Life and Law 32, 35 (1987). This advantage is evinced through the dearth of women in corporate governance and the vulnerability of women such as Kelo trying to beat back condemnation proceedings on their own homes. With today’s decision, this Court suggests that society still favors men – through male-dominated corporations – once they arrive in court as well. Today’s ruling greases the tracks for a very slippery slope of eminent domain power. In pursuit of economic development, today’s transfer is justified by the creation of a drug company’s global research facility. Tomorrow, it could be a car dealership or even a larger, more expensive home. Blurring the lines between public purpose and private benefit will further exacerbate the harms on vulnerable populations, who are more exposed to economic exploitation. Kelo, the other owners, and the amici here sound an alarm regarding the dangers of using the Constitution to create an avenue for private takings. We should heed their warning. When working-class private homeowners are positioned against an international pharmaceutical company such as Pfizer – which has had

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extraordinary success since it developed the popular drug Viagra – it is hard to imagine a more compelling example of the perennial “David versus Goliath” conflict. In the field of eminent domain litigation, pitting a global drug company against any private property owner is hardly a fair fight. When juxtaposed against a single woman fighting to preserve her individual property rights, the disparity is even more pronounced. Corporate reach – enabled by a complicit government scheme – is especially pernicious when turned toward historically disempowered property owners such as women, the elderly, and minority communities. It is no wonder that this case drew support in amici from a wide range of advocacy organizations. The NAACP, AARP, the Hispanic Alliance of Atlantic County, and the Southern Christian Leadership Conference are among the groups who have weighed in in support of Kelo. These organizations recognize the inherent threat of powerful special interest groups determined to raze residential neighborhoods to support private development. Historically vulnerable populations are even less equipped to combat the reach of cronyism that infects corporate and government alliances. Women have long struggled with property rights, and this narrative – a single woman working to save her little pink house – highlights the work that still needs to be done. Even today, the modern trend showing significant gains in homeownership among women is threatened by this Court’s ruling. It is true that ownership rates continue to rise among all populations, including women. See Frank Hobbs & Nicole Stoops, Demographic Trends in the 20th Century, Census 2000 Special Report 1 (Nov. 2002), https://www .census.gov/prod/2002pubs/censr-4.pdf. However, the risk of developmentfueled displacement threatens to derail the strides being made by women and other minority groups. The independence women can achieve through homeownership will quickly devolve into insecurity if the government continues to permit private takings without exacting scrutiny. Homeownership has long been a marker of economic benefits for both the individual homeowner and the community. See Daniel Aaronson, A Note on the Benefit of Homeownership, 47 J. of Urban Econ. 356 (May 2000). Homeownership correlates with residential stability and higher school attainment. Id. For women, who have historically been restricted in property rights and acquisition, the benefits are even more potent. Homeownership signals an important benchmark for agency for women. Therefore, we should see Kelo’s and the other owners’ displacement as emblematic of the patriarchal constraints that often restrict women’s agency. It also presents another economic

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harm. For so many issues – domestic violence, sexual assault, workplace harassment – gender inequality comes at a real price. See United States v. Morrison, 529 U.S. 598, 615 (2000) (addressing the congressional findings on the economic cost of domestic violence against women when considering national productivity and increased medical costs, among other things). In the realm of eminent domain abuse, the short line between structural oppression rooted in gender bias and economic harm is even more apparent. Worse, there is no guarantee that the new, bigger property development will be good for the public and deliver on the promised jobs and economic boost. The benefits – if realized – would be impressive. Pfizer has high hopes for the facility. It claims that the project will create more than 1,000 jobs, boost revenue, and totally transform the City’s downtown and waterfront area into an entertainment hub. Kelo, 843 A.2d at 500. But such announcements are speculative at best. The truth is that there is no guarantee that the project will be a success, or much less completed. Only time will tell. In the meantime, this Court has stripped Kelo and her neighbors of the Constitutional shield that the Fifth Amendment provides to protect their homes. They deserve better. For the foregoing reasons, I respectfully dissent. The judgment of the Supreme Court of Connecticut should be reversed.

10 Commentary on Tate v. Water Works & Sewer Board of City of Oxford hannah haksgaard

introduction Robert Lanier Tate, Jr. (“Bob”) was born March 16, 1923, in Anniston, Alabama, where he resided until 1942 when he began serving in the United States Army.1 After four-and-a-half years of Army service, Bob returned to Alabama where he later married Mary Bernice Ginn (“Bernice”) in 1953. Bernice was also born in Alabama – in 1928 – and resided there her entire life.2 Bob and Bernice made their home in Oxford, Alabama, and had three children – Deborah (in 1954), Denise (in 1956), and Robert (in 1958).3 In 1969, Bob was Oxford’s “Citizen of the Year,” and Bernice was once a top-ten finalist for Alabama’s “Mother of the Year.”4 On Christmas Eve of 1972, Bob died of a heart attack at the age of 49.5 At the time of Bob’s death, all three children were teenagers, and the family resided in a single-family home in Oxford.6 That residence was owned by Bob and Bernice as joint tenants with a right of survivorship, and it automatically became Bernice’s sole property at the time of Bob’s death. Bob also owned several acres called the “Stephens Avenue” property. Only Bob’s name appeared on the deeds for the Stephens Avenue property at the time of his death. Bob had purchased the various parcels of the Stephens Avenue property in cash, and, although Bernice was not a co-owner of the property, it was not

1

2

3 4 5 6

Robert Lanier Tate Jr.: Facts, Ancestry, https://www.ancestry.com/family-tree/person/tree/ 163699606/person/202128044102/facts (last visited Sept. 18, 2019). Mary Bernice Ginn: Facts, Ancestry, https://www.ancestry.com/family-tree/person/tree/ 163699606/person/202128045453/facts (last visited Sept. 18, 2019). Obituaries: Tate, The Anniston Star, Oct. 10, 2012, at 4B. Telephone interview with Robert Lanier Tate III (Oct. 28, 2019). Oxford’s Bob Tate Is Dead, The Anniston Star, Dec. 25, 1972, at 1. Tate v. Water Works & Sewer Bd. of City of Oxford, 217 So. 3d 906, 909 (Ala. Civ. App. 2016).

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Bob’s intent to keep the land from Bernice.7 Bob died intestate and his estate was never administered. Under Alabama intestacy law, the three children became co-owners of the Stephens Avenue property at the time of Bob’s death. In a 2019 interview, Bernice and Bob’s son Robert explained that the family never treated the three children as the owners of the property.8 Instead, Bernice and her children treated the Stephens Avenue property as belonging to “the family,” but Bernice – as “the matriarch” and the “head of the family” – made the decisions about the property. In fact, Bernice took care of the Stephens Avenue property and paid taxes on it until she died. By the time Bernice died in 2012, all three children had moved away from Oxford. In 1987, fifteen years after Bob’s death, the Water Works and Sewer Board of the City of Oxford (“the Board”) decided to build a water tower on part of the Stephens Avenue property (the “disputed property”). The Board filed a condemnation proceeding against Bernice, but not against the three children, even though the children were the owners of the disputed property. At the time of the condemnation proceeding, the three children were adults. After a hearing, an appeal, and a settlement agreement, and despite not having an ownership interest, Bernice executed a deed in 1988 purporting to convey the disputed property to the Board. Bernice died in 2012. In 2014, the children filed a lawsuit to quiet title to the disputed property. This lawsuit culminated with the court opinion in Tate v. Water Works & Sewer Bd. of City of Oxford. In the lawsuit, the children asserted they owned the disputed property as the heirs of Bob’s estate and, accordingly, the deed from Bernice to the Board was invalid. The Board responded that it had come to own the property through adverse possession. In order to be successful in its adverse possession claim, the Board needed to show, among other elements, that its possession of the disputed property was hostile for the required time. If, at the time of the purported conveyance by deed, Bernice had a life estate in the disputed property, the hostile element of adverse possession would not be satisfied. This is because the Board’s possession during Bernice’s life would have been permissive and their continued possession after her death – which would have been hostile – would not have met the required time for adverse possession. Accordingly, the three children claimed their mother had obtained a life estate in the disputed property through various property right protections meant specifically to protect widows. If the children were correct that Bernice received a life estate because of her status as Bob’s widow, the

7 8

Interview with Robert Lanier Tate III, supra note 4. Id.

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Board could not have become the owner through adverse possession and the children would have been the owners of the property. In the alternative, the children argued that if the Board had successfully adversely possessed the disputed property, successful transfer of ownership through adverse possession was a governmental taking of private property and the Board was required to pay the children just compensation. Relatedly, the children made an unjust enrichment claim against the Board.

traditional property protections for widows Like many generations of women before her, Bernice was not listed as a coowner on some of her husband’s real property. Bob obtained ownership of the Stephens Avenue property through three different deeds, none of which listed Bernice as a co-owner. Because Alabama is a separate property state, Bernice never had an established property interest in the Stephens Avenue property – even though Bob obtained the land during their marriage. Not only did Bernice not have a property interest during the marriage, she did not receive an automatic property interest at the time of Bob’s death under Alabama’s then-existing intestacy laws. Generally, under the common law, although wives’ rights in their husbands’ real property were limited, wives did have certain so-called benefits9 that provided some economic protection. The most well-known property “benefit” inuring to wives, specifically to widows, was the right of dower. Dower provided a widow with a life estate in one-third of the real property her husband owned during the marriage. A widower had a similar – but more expansive – right called tenancy by the curtesy, which gave him a life estate in all of the wife’s real property.10 Along with dower, a widow had a right to quarantine, which was a temporary right to reside in the principal house of her husband’s estate. Starting over a century before the litigation in this case, most states abolished dower, curtesy, and quarantine and replaced them with gender-neutral inheritance schemes.11 Alabama, where Bob and Bernice lived and owned property, still retained statutorily modified versions of these traditional common law property rights when Bob died in 1972. By the time Bernice died in 2012, those traditional property rights had been removed from Alabama law.

9 10 11

Homer H. Clark, Jr., The Law of Domestic Relations in the United States 220 (1968). Albert S. Bolles, The Ownership of Land 205–207 (1930). Clark, supra note 9, at 225.

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In addition to dower, curtesy, and quarantine, Alabama had a gendered homestead law in 1972. A more modern creation of American law, homestead laws protect a family’s home in three common ways: limiting the ability of a spouse to unilaterally alienate the family home; limiting the ability of creditors to seize the family home for repayment of debt; and – relevant here – guaranteeing that a surviving spouse will be able to remain in the family home after the other spouse’s death. The history of homestead laws can be understood as feminist in nature: the homestead laws provided a form of property right to widows in an era where many women – like Bernice – did not have any formal property right in property owned by their husbands.12 Yet, homestead laws were frequently gender-specific – like Alabama’s which assumed that husbands would hold title to the property and wives would need the property protections once widowed.13 The homestead laws were also limited in their coverage; only family homes were protected under homestead laws. By protecting a widow’s right to the family home but not other real property (including income-producing property), one way to understand the protection of the homestead laws was as cementing the idea that women belonged in the home, not in the public economic sphere.

the original opinion The original case was decided by the Court of Civil Appeals of Alabama on August 12, 2016. After losing in the trial court, the three children filed an appeal to the Alabama Supreme Court, which transferred the case to the Court of Civil Appeals. The court had to address a number of property issues, including the homestead right, dower, quarantine, adverse possession, inverse condemnation, and unjust enrichment. After addressing each issue in turn, the court ruled for the Board, affirming the trial court. Beginning with Bernice’s potential homestead right, the court found Bernice did not have any interest in the Stephens Avenue property. A homestead includes only the house and contiguous land occupied by the decedent prior to death. Bob never lived on the Stephens Avenue property, and the court found it was not contiguous to the family home. Accordingly, Bernice had no homestead right in the Stephens Avenue property. Alabama law, however, does allow for an exemption in lieu of homestead if no homestead can be claimed. The court held Bernice could not have claimed the Stephens 12

13

Hannah Haksgaard, Defining “Home” through Homestead Laws, 33 Berkeley J. Gender, L. & Just. 169, 170 (2018). Ala. Code 1940 (Recomp. 1958), Tit. 7, §661.

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Avenue property for an exemption in lieu of homestead because the home where the family lived was the homestead. In addition, Alabama law required that a widow file a petition in court to receive an exemption in lieu of homestead. Bernice never filed such a petition, and her estate was barred from doing so because the limitations period had run. The court then turned to the potential dower right and held that Bernice did not have a dower right in the Stephens Avenue property. Alabama law allowed Bernice the traditional dower right of a life estate in one-third of her husband’s real property. However, the court focused on the fact that dower did not automatically vest in a widow; rather, the dower right could only be obtained if the widow (or another interested party) petitioned the court. Like the homestead right, Bernice lost her chance at obtaining a property right in the Stephens Avenue property by failing to petition the court. Related to the dower right, the court examined Bernice’s potential quarantine right. Quarantine, unlike dower and the homestead right, did not require a widow to petition a court. However, quarantine only provided a property interest for a widow before dower was assigned and only in the “dwelling house where her husband most usually resided.” By all accounts, Bob resided in the family home before his death and no one resided on the Stephens Avenue property, which did not have a dwelling. Additionally, although the Stephens Avenue property was only blocks from the family home, the court held that a noncontiguous lot could not be considered part of the quarantine right. After holding that Bernice never received any interest in the Stephens Avenue property under the gendered property rules meant to protect widows, the court turned to the other issues raised by the children: inverse condemnation and unjust enrichment. When the government takes property, the Takings Clause – contained in the Fifth Amendment of the United States Constitution – requires that the government pay just compensation to the property owner. Normally, a taking is authorized through a condemnation proceeding, like the proceeding filed against Bernice. Sometimes, however, the government will take property without first instituting a formal condemnation proceeding. In that circumstance, the property owner may file an inverse condemnation claim to recover just compensation for the taking. The children argued that if the Board had successfully adversely possessed the Stephens Avenue property, then a taking had occurred, and the children should be paid just compensation after the fact. Whether adverse possession by a governmental entity qualified as a taking was a question of first impression, but the Court of Civil Appeals declined to decide the issue, instead merely noting the children had failed to cite any

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authority in support of their argument. In addition, the court found the children’s inverse condemnation claim was time-barred. Finally, the court rejected the children’s unjust enrichment claim, holding the Board did not act in bad faith. The court affirmed the trial court’s award of summary judgment to the Board, thereby holding that the Board owned the property in fee simple absolute through adverse possession and owed nothing to the three children.

the feminist judgment Meghan Hottel-Cox, Esq., writing as Judge Hottel-Cox, rewrites the majority opinion of the Court of Civil Appeals of Alabama. Hottel-Cox first addresses the traditional property protections for widows, reaching the same conclusion as the original opinion. Hottel-Cox concludes that Bernice never had a life estate in the Stephens Avenue property and the Board obtained ownership through adverse possession. It is unsurprising that the feminist judgment analyzes this area of law in a similar way to the original opinion: the Alabama statutory scheme on widow’s property rights imposes clear requirements, yet Bernice did not comply with the statutes. It is on the inverse condemnation issue where Hottel-Cox reaches a different outcome. Hottel-Cox holds a taking occurred when the Board acquired the Stephens Avenue property through adverse possession. Accordingly, unlike the original opinion which affirmed the lower court’s opinion in favor of the Board in full, Hottel-Cox reverses on the inverse condemnation issue and remands for a determination of what constitutes just compensation. Because the children would be due just compensation for the taking, Hottel-Cox does not reach the unjust enrichment claim. Although Hottel-Cox reaches the same outcome on the gendered property rights and whether Bernice ever obtained a life estate, there is a substantial difference in how the original opinion and feminist judgment address this issue. Hottel-Cox’s opinion takes a serious and critical look at the historical gender-based property rights, particularly those designed for widows. Not only does Hottel-Cox ask whether the gender-based laws should be overturned, she uses the feminist tool of breaking rhetorical conventions14 when she

14

Kathryn M. Stanchi, Linda L. Berger, & Bridget J. Crawford, Introduction to the U.S. Feminist Judgments Project, in Feminist Judgments: Rewritten Opinions of the United States Supreme Court 16–17 (Kathryn M. Stanchi, Linda L. Berger, & Bridget J. Crawford eds., 2016).

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emphatically describes the relevant laws as “paternalistically protective” and “antiquated, gendered laws.” In her feminist opinion, Hottel-Cox notes in multiple places that the gendered property protections that could have been available to Bernice were difficult to access. Alabama’s laws required that Bernice officially petition the court before being awarded the property rights she could have received as a widow. As Hottel-Cox notes, the property rights available for widows required “knowledge of the right and access to the court” because women had to petition to receive dower rights or an exemption in lieu of homestead; yet, curtesy – the closest analog for widowers – attached immediately to a surviving husband without court intervention.15 Hottel-Cox poignantly notes that if Bernice had received the same rights as a widower she would have received an automatic life estate in the Stephens Avenue property, and the children would have had a valid claim against the Board. But the extra burdens placed on widows meant that Bernice – who never turned to the court to officially claim her rights – never gained any ownership interest in Bob’s property. One way to understand the gender-based differences between curtesy and dower is that the Alabama legislature determined the rights of a husband’s creditor were more important than a wife’s right to own her husband’s property. Dower was notoriously a clog on title.16 One way to lessen that clog was to not automatically vest dower upon a husband’s death, but instead to require – like Alabama did – that a wife petition a court to receive her dower right. Requiring women, however, to petition a court to receive dower in their husband’s property, rather than having dower apply automatically upon their husband’s death, imposed an additional hurdle on women. That hurdle served to benefit creditors of the husband. Although Bob seemingly left behind no creditors, Bernice became caught up in the procedural hurdles meant to allow husbands to freely transfer and mortgage property. Moving beyond what was covered in the original opinion, Hottel-Cox analyzes “whether, in equity, there is an inherent wrong in the way estate and property law overlap to instill title to the Board.” By asking this question, Hottel-Cox uses a feminist approach of widening the lens of inquiry by shifting focus away from simple statutory construction to also include the law of equity.17 Although acknowledging that Bernice would have received a life estate in the property had she been a man, Hottel-Cox concludes that equity

15

16 17

See George L. Haskins, Curtesy in the United States, 100 U. Pa. L. Rev. 196, 197 (1951) (noting six differences between curtesy and dower, including automatic vesting). Hendrik Hartog, Man & Wife in America: A History 145 (2000). Stanchi, Berger, & Crawford, supra note 14, at 17.

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does not require a rewriting of the now-abolished gendered laws in place at the time of Bob’s death. The starting point for this argument is that Alabama has replaced its gendered property scheme with a gender-neutral law of survivorship that provides surviving spouses with fee simple ownership rather than life estates. Hottel-Cox persuasively argues that under Alabama’s current law the outcome would have been the same. Bernice and her children would have inherited the Stephens Avenue property, but Bernice would have held her interest in fee simple, not a life estate. Accordingly, if Bernice had attempted to deed the entire property without her children being involved, the Board still would have obtained ownership through adverse possession. Hottel-Cox declines to rewrite the laws that existed when Bob died because she finds it appropriate to defer to the legislative decision made by Alabama regarding how spouses should inherit under intestacy laws. Alabama adopted a gender-neutral inheritance statute, progressing from paternalistic treatment of women to equal treatment. In other words, Alabama adopted a statutory scheme that embraces the feminist approach of formal equality. Hottel-Cox does not analyze whether, as a factual matter, the new gender-neutral law is more likely to be used by men or women and whether it is beneficial to women on the whole. Instead, Hottel-Cox finds it appropriate for the court to defer to the legislative action in this legislative arena. Although Alabama’s modern-day law adopts formal equality, there may be reason to prefer a system that explicitly protects dependent spouses. Alabama’s inheritance law – allowing an automatic share to pass to either surviving spouse – was born out of the gender-discriminatory laws of dower and curtesy. There are reasons to think that even the gender-neutral spousal inheritance schemes disadvantage women because women are still more likely to be dependent spouses.18 Concerns of fairness to the dependent spouse are not limited just to women, but exist in all relationships where one spouse is dependent, including same-sex marriages which are governed by the same statutory code. For example, a spouse with resources can largely avoid these automatic shares by placing property in offshore asset-protection trusts.19 Of course, even if Hottel-Cox had rejected formal equality as a feminist methodology, she could not have sua sponte replaced Alabama’s spousal inheritance scheme with a better system. This is an area where feminists will reasonably disagree on whether the new system of spousal inheritance is truly genderneutral and actually protects the most vulnerable members of the family. 18

19

J. Thomas Oldham, Should the Surviving Spouse’s Forced Share Be Retained?, 38 Case W. Res. L. Rev. 223, 229 (1987). Terry L. Turnipseed, Community Property v. the Elective Share, 72 La. L. Rev. 161, 162 (2011).

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The major difference between the original opinion and the feminist judgment is the holding on whether adverse possession by the government is a taking under the Fifth Amendment requiring just compensation. Although the prevailing view is that governmental entities – like the Board – can obtain ownership of real property through adverse possession, jurisdictions are split on whether that acquisition is a taking that requires just compensation.20 Hottel-Cox addresses this issue of first impression in Alabama by holding that the government must pay just compensation for land acquired through adverse possession. The Takings Clause is a limitation on the government; allowing the government to acquire land through adverse possession without paying just compensations subverts that limitation. It is likely that landowners who lose property to the government through adverse possession lack legal knowledge and sophistication. Hottel-Cox takes a feminist approach by creating a legal rule with a sensitivity to these vulnerable landowners.21 Hottel-Cox’s analysis and conclusion about inverse condemnation is feminist. Hottel-Cox takes the feminist approach of focusing on the fact-specific issues in this case and the power dynamics of the parties. As Hottel-Cox notes, this case raises a particularly concerning scenario with the relationship between the government and the owners. Following Bob’s death, the family thought Bernice owned the Stephens Avenue property,22 and the Board likely cemented this belief by filing a condemnation proceeding against only Bernice and not the children who were the rightful owners. The government misled the family by treating Bernice as the owner, then later claimed it obtained ownership through adverse possession because the children slept on their rights. Yet the children may have slept on their rights precisely because the government filed the condemnation proceeding against Bernice. Feminists have long fought against the government taking advantage of individuals – particularly vulnerable individuals – and Hottel-Cox’s ruling on just compensation appropriately takes this feminist approach.

20

21

22

Compare Pascoag Reservoir & Dam LLC v. Rhode Island, 217 F. Supp. 2d 206, 226 (D.R.I. 2002) (adverse possession by government constitutes taking under Fifth Amendment), with Weidner v. State, Dep’t of Transp. & Pub. Facilities, 860 P.2d 1205, 1212 (Alaska 1993) (when government acquires land by adverse possession or prescription, compensation is only required if landowner brings claim within statutory period). See, e.g., Claire Moore Dickerson, Feminism and Human Rights, 22 Women’s Rts. L. Rep. 139, 144 (2001) (noting how “protect[ing] the vulnerable” in a particular legal regime “supports the feminist perspective” and that using an analysis with a “particular sensitivity to the vulnerable” is a “feminist approach without an express focus on women”). Interview with Robert Lanier Tate III, supra note 4.

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The feminist judgment also addresses whether the children’s claim for inverse condemnation was timely filed and how just compensation should be calculated in a case where the government previously paid the wrong person for the property. Regarding the time limitations, Hottel-Cox gives landowners additional time to seek just compensation for a taking. This allows increased access to the courts for individuals, especially those who do not fully understand their property rights or what claims they may have against the government. Regarding the calculation of just compensation, Hottel-Cox remands for the trial court to calculate the appropriate dollar amount but provides guidance on whether the earlier payment to Bernice should be deducted from what the children receive. Hottel-Cox again focuses on the specific facts of this case because the children – who are now seeking compensation – are also the heirs of Bernice’s estate, and Bernice earlier received compensation. Once again using the feminist approach of widening the lens of inquiry to include the law of equity, Hottel-Cox crafts a rule that focuses on fairness for the parties by instructing the lower court to determine whether the Board acted in good faith by naming Bernice in the condemnation proceeding. The facts of this case demonstrate why a fact-intensive inquiry is important: one of the children, Robert, feels the Board took advantage of Bernice and that the original condemnation proceeding “was a slap in the face” to Bernice.23 He also believed that local politics likely played a role in the Board originally deciding to condemn the Stephens Avenue property.24 Hottel-Cox’s focus on governmental good faith would have provided necessary protections for the children and future landowners against improper governmental action. Because Hottel-Cox allows the children to pursue the inverse condemnation proceeding on remand, she does not address their unjust enrichment claim. A final – but still important – difference is the linguistic choice in how the original opinion and feminist judgment refer to Bob and Bernice. In the original opinion, the court calls Bob by his legal name throughout the opinion, while calling Bernice “the widow.” In doing so, the court made a linguistic choice that seemingly erases Bernice’s identity as anything except the wife of Bob. In contrast, the feminist judgment takes a more egalitarian approach and refers to them as Bob Tate and Bernice Tate. Although the original opinion in Tate v. Water Works & Sewer Board of the City of Oxford raises a number of fascinating and unique issues for both inheritance law and property law, it is principally in the development of property law where Hottel-Cox’s feminist rewritten opinion could have made 23 24

Id. Id.

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the most impact. With regard to the law of inheritance, both the original opinion and the rewritten opinion interpret gender-based inheritance laws in effect at the time of Bob’s death in 1972 – involving dower, quarantine, and homestead – that were changed or abandoned before the 2016 opinion. Nevertheless, if Hottel-Cox’s rewritten opinion, which adopts feminist theory and language throughout her analysis and so persuasively and powerfully describes the gender-based laws that favored widowers over widows in Alabama, had been the court’s decision, it could have been eye-opening and triggered review of other inequitable gendered laws, particularly if read by feminist jurists, legislators, or scholars. Where Hottel-Cox’s rewritten feminist opinion would have made a substantial difference is in the development of the law of property, particularly in the intersection of adverse possession and takings. Hottel-Cox’s opinion holds that adverse possession by a governmental entity constitutes a taking that requires just compensation. This issue was one of first impression when it came before the Alabama Court of Civil Appeals. Although Hottel-Cox’s judgment would only have precedential value in the State of Alabama, because it would have been one of a handful of opinions to require just compensation for governmental adverse possession, it likely could provide persuasive authority to a number of other jurisdictions when they confront this issue for the first time. In general, the concept of takings of private property for public use supports feminism’s goals of equity and access to services for all. However, in practice, takings have been used against historically marginalized and vulnerable populations. Hottel-Cox manages to balance the need for takings while holding the government accountable to landowners by requiring just compensation for takings effected through adverse possession. If the requirement of just compensation as articulated by Hottel-Cox had been the court’s decision, it would have created a more equitable environment for takings in Alabama and encouraged those concerned about equality to advocate for adopting similar rules in other jurisdictions.

TATE V. WATER WORKS AND SEWER BOARD OF CITY OF OXFORD, 217 SO. 3D 906 (ALA. CIV. APP. 2016)

judge meghan hottel-cox delivered the opinion of the court This case comes to us as an appeal by Deborah Ann Tate Lewis, Mary Denise Tate Spires, and Robert Lanier Tate III (together, the “children”) from a grant of summary judgment by the Calhoun Circuit Court’s (“trial court”) summary

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judgment in favor of the Water Works and Sewer Board of the City of Oxford (the “Board”) regarding claims related to a parcel of real property located in Calhoun County, Alabama. We reverse the trial court’s summary judgment in favor of the Board and remand the case for a decision not inconsistent with this opinion.

i Facts and Procedural History The facts of the case are undisputed. Robert L. Tate, Jr. (“Bob Tate”) and Mary Bernice Ginn Tate (“Bernice Tate”) were married and had three children, Deborah Anne Tate Lewis, Mary Denise Tate Spires, and Robert Lanier Tate III. Bob and Bernice Tate owned their home and the land on which it sat (the “home property”) as joint tenants with right of survivorship. Bob Tate, Bernice Tate, and the children all resided on the home property together. Separately, Bob Tate owned a parcel of property in his name alone that was approximately four acres in size (the “Stephens Avenue property”). The Stephens Avenue property is located on a different street, a few hundred feet from the home property. The two properties are not contiguous. On December 24, 1972, Bob Tate died intestate, survived by Bernice Tate and the children. The children were all teenagers under 18 at the time of his death. Bernice Tate and the children continued to reside on the home property, which Bernice Tate, as the survivor of the joint tenancy, now owned in her sole name. Neither Bernice Tate nor the children ever sought to administer Bob Tate’s estate, which included the Stephens Avenue property. Under Alabama intestacy law in effect at the time, real property of an intestate decedent, descended to the intestate’s children, subject to a widow’s dower rights. Bernice Tate never availed herself of the court to claim or assert dower rights or any other rights to the Stephens Avenue property. In 1987, the Board filed a condemnation proceeding in the Probate Court of Calhoun County against Bernice Tate, seeking to condemn 2.3 acres of the Stephens Avenue property (the “disputed property”) in order to build a water tower to service the City of Oxford. The Board offered Bernice Tate $10,000 for the disputed property, which she did not accept. After a trial, the probate court entered an order of condemnation in favor of the Board and awarded Bernice Tate $19,500. The Board appealed the amount of the award, demanding a de novo trial by jury. Prior to the conclusion of the appeal, Bernice Tate and the Board settled, and Bernice Tate executed a warranty deed on June 23, 1988, purporting to grant fee title to the disputed property to

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the Board. The deed was recorded on June 28, 1988, and since 1988, the Board has been listed with Calhoun County Tax Assessor as the owner of the disputed property for tax purposes. The Board began construction of the water tower on the disputed property shortly thereafter. The water tower was fully complete and operational by the summer of 1989 and the disputed property was fenced off. The Board has maintained continuous possession of the disputed property since June of 1988. Bernice Tate died intestate on October 12, 2012, and the children began administering her estate in January of 2013. Bernice Tate’s estate was finalized in March of 2014. On July 15, 2014, the children filed a complaint against the Board for quiet title to the disputed property and related claims, later amended to include claims of inverse condemnation and unjust enrichment. The Board disputed the children’s claims and asserted that it owned the disputed property by virtue of statutory adverse possession or adverse possession by prescription. On October 2, 2015, the trial court entered summary judgment in favor of the Board, granting the Board quiet title to the disputed property in fee simple. The trial court’s thirty-seven-page judgment concluded that (1) the Board owned fee title to the disputed property by virtue of adverse possession; (2) Bernice Tate had acquired no interest in the disputed property by virtue of dower, quarantine, or homestead; (3) the children’s inverse condemnation claims were inapplicable as no “taking” of property had occurred, or, in the alternative, if a “taking” had occurred, a claim was barred by the statute of limitations; and (4) the Board was not unjustly enriched by obtaining quiet title to the disputed property. The children dispute all of these findings on appeal.

ii Standard of Review When the facts are undisputed, the court reviews an order granting summary judgment de novo: An order granting or denying a summary judgment is reviewed de novo, applying the same standard as the trial court applied. American Gen. Life & Accident Ins. Co. v. Underwood, 886 So. 2d 807, 811 (Ala. 2004). In addition, “[t]his court reviews de novo a trial court’s interpretation of a statute, because only a question of law is presented.” Scott Bridge Co. v. Wright, 883 So. 2d 1221, 1223 (Ala. 2003). Where, as here, the facts of a case are essentially undisputed, this Court must determine whether the trial court misapplied

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the law to the undisputed facts, applying a de novo standard of review. Carter v. City of Haleyville, 669 So. 2d 812, 815 (Ala. 1995). Here, in reviewing the [entry] of a summary judgment when the facts are undisputed, we review de novo the trial court’s interpretation of statutory language and our previous caselaw on a controlling question of law.

Continental Nat’l Indem. Co. v. Fields, 926 So. 2d 1033, 1034–1035 (Ala. 2005).

iii Discussion The children contend that the trial court erred in granting the Board’s motion for summary judgment to quiet title to the disputed property because the Board could not have acquired title by adverse possession due to Bernice Tate’s life estate interest in the disputed property. The children assert this life estate interest was obtained by Bernice Tate by virtue of her homestead, dower, or quarantine rights in the disputed property. Further, the children argue that, even if the necessary elements of adverse possession are met, the Board is prohibited by the United States and Alabama Constitutions from acquiring title to the disputed property by adverse possession without providing just compensation, also known as inverse condemnation. Finally, the children argue that if the court quiets title to the disputed property in favor of the Board, the children can recover for the Board’s unjust enrichment. In reviewing de novo the children’s arguments and their legal basis, this court reverses the trial court’s summary judgment and remands the case. The Board’s acquisition of the disputed property in 1988 was by deed from Bernice Tate, done to settle the condemnation proceeding initiated by the Board. However, because Bernice Tate did not have a legal interest in the land, the Board’s use of the disputed property was hostile to the children, who owned the entire interest in the disputed property following Bob Tate’s death by virtue of the applicable intestacy laws. Because the Board’s use of the disputed property for over twenty years was open, notorious, and hostile, title to the disputed property is vested in the Board by adverse possession. Despite the children’s claims, Bernice Tate never held any interest in the disputed property through homestead, exemption in lieu of homestead, dower, or quarantine theories. However, because acquisition of a property by the government through adverse possession constitutes a taking under both the United States and Alabama Constitutions, just compensation is due. In this case the children filed their claim within the timeline of the rule of repose, and therefore the claim is not time-barred. Therefore, we remand this case for the trial court

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to determine (1) what constitutes just compensation for the disputed property, and (2) whether the Board should be credited the amount paid to Bernice Tate as part of the just compensation based on whether the Board acted in good faith in condemning the disputed property against Bernice Tate even though she was not the lawful owner. Therefore, the trial court’s summary judgment is reversed and this case is remanded for a decision not inconsistent with this opinion. A

quiet title. Under Alabama law at the time of Bob Tate’s death, the real property of a man dying intestate descends first to any children of the intestate in equal parts, subject to the widow’s dower. See Ala. Code 1940 (Recomp. 1958), Tit. 16, §1. Therefore, in the present case, fee title to the disputed property would have been passed directly to the children upon Bob Tate’s death, unless Bernice Tate had a dower interest or other claim in the disputed property. Under a dower, quarantine, or homestead interest, Bernice Tate would have had only a life estate interest, and therefore she never would have had fee title to the disputed property. However, she executed a deed purportedly conveying fee title to the disputed property to the Board. Because she did not own the disputed property, that deed was ineffective at transferring title. Therefore, though both Bernice Tate and the Board believed she had sold the fee title to the disputed property to the Board, the fee remained with the children. adverse possession. The main conclusion of the trial court’s summary judgment was that the Board acquired the disputed property by virtue of adverse possession. In Alabama, there are two forms of adverse possession: (1) adverse possession by prescription and (2) statutory adverse possession pursuant to Ala. Code §6-5-200 (1975). See Sparks v. Byrd, 562 So. 2d 211, 214 (Ala. 1990). Adverse possession by prescription, or common law adverse possession, is established when the party claiming title proves “each of the following elements: 1) The party must actually possess the property, 2) the party’s possession must be exclusive, 3) the party’s possession must be open and notorious, 4) the party’s possession must be hostile and under a claim of right, and 5) the party’s possession must be continuous for a period of 20 years.” Id. Statutory adverse possession requires meeting the same elements, except that where the party claiming title to the property by adverse possession has had “a deed or other color of title” for ten years or paid taxes on the property for ten

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years shall be able to establish title in this shorter time frame. Ala. Code §6-5200 (1975). The trial court found that the Board met all of the elements of either statutory or prescriptive adverse possession. Based on the facts, the Board had actual possession of the disputed property through construction and operation of the water tower. That possession was exclusive because the disputed property was fenced off from the public. The operation of the water tower clearly shows the Board’s use was open and notorious. The Board has occupied the disputed property for more than twenty years and has had a deed to the disputed property for more than ten years. The trial court found that because the children had fee title to the disputed property as of Bob Tate’s death, and therefore, the deed did not pass any interest from Bernice Tate to the Board, the Board’s possession was hostile to the children. The children argue on appeal that Bernice Tate inherited a life estate in the disputed property upon Bob Tate’s death and her conveyance to the Board was that of a life estate. If she, in fact, had a life estate and conveyed it to the Board, then the Board would not have been able to obtain title by adverse possession because the Board would not have met the element of hostility. The children base the argument that Bernice Tate had a life estate on multiple antiquated, gendered laws applied to estates. Under Alabama law in effect at the time of Bob Tate’s death, the real property of a person dying intestate descended first to any children of the intestate in equal parts, subject to the widow’s dower. Ala. Code 1940 (Recomp. 1958), Tit. 16, §1. The children argue that Bernice Tate inherited a life estate through one or more statutes, including Ala. Code 1940 (Recomp. 1958) Tit. 34 §§40 and 41 (dower interest); Ala. Code 1940 (Recomp. 1958) Tit. 34 §50 (quarantine interest); Ala. Code 1940 (Recomp. 1958) Tit. 7 §661 (homestead interest); and Ala. Code 1940 (Recomp. 1958) Tit. 7 §§662 or 663 (exemption in lieu of homestead interest). This life estate interest would mean that Bernice Tate could convey to the Board her limited life estate interest in the disputed property. In that case, the Board’s possession would be permissive up until Bernice Tate’s death in 2012, at which time the life estate that had been conveyed would terminate and the Board’s continuing possession would then be considered hostile. Therefore, under this theory, the children argue the Board has not met the time period for either statutory or prescriptive adverse possession. For the reasons set forth below, we do not find that Bernice Tate had a life estate or any actual legal interest in the disputed property; therefore, the Board’s possession of the disputed property was hostile, and, accordingly, the Board meets the requirements for obtaining title by adverse possession either statutorily or by prescription.

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homestead, dower, and related gendered property rights. The children first contend that Bernice Tate held a life estate in the disputed property through a homestead interest. The applicable law for homestead would have been the one in existence at the time of Bob Tate’s death. See Rodgers v. Bradley, 533 So. 2d 546, 548 (Ala. 1988). The law in effect at the time of Bob Tate’s death provided The homestead of any resident of this state, leaving surviving him at his death a widow and minor child or children, or either, with the improvements and appurtenances not exceeding in value six thousand dollars, and in area 160 acres, shall be exempt from administration and the payment of the debts in favor of such widow and minor children, or either, in any event, during the life of the widow, or the minority of the child or children, whichever may last terminate . . . Except when the homestead is devised by will it shall vest in the widow and the minor children for the life of the widow or the minority of the children whichever may last terminate . . . .

Ala. Code 1940 (Recomp.1958), Tit. 7, §661. While this provision does not define “homestead,” courts have generally defined homestead as “the home or house where a family resides, where the head of the family dwells, and any adjoining or appurtenant land used for the family’s comfort and sustenance.” Sims v. Cox, 611 So. 2d 339, 340 (Ala. 1992); see also Skipworth v. Skipworth, 383 So. 2d 524, 526 (Ala. 1980); Gardner v. Roberts, 565 So. 2d 638, 639 (Ala. Civ. App. 1990). The purpose of homestead law is to “protect and secure a home for one’s family, regardless of financial condition.” Sims, 611 So. 2d at 340. In this case, Bernice Tate did not have a homestead interest in the disputed property because the disputed property was never the homestead of Bob Tate. All parties agree that the Tate family resided on the home property before Bob Tate’s death, and Bernice Tate continued to reside at the home property following Bob Tate’s death. First, because the disputed property and the home property were owned separately, the children would have to show compelling evidence that the disputed property was in some way part of the homestead. Because the disputed property was not treated as needed for the “comfort and sustenance” of the family, there is no justification in the record that the disputed property was considered part of the family home. Therefore, Bernice Tate could not have claimed a homestead interest in the disputed property. The children next contend that Bernice Tate had a lifetime interest in the disputed property through an exemption in lieu of homestead. Section 662 of the Alabama Code in effect at the time of Bob Tate’s death provides that if a decedent has no homestead at the time of death, the widow and minor

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children “shall be . . . entitled to homestead exemption out of any other real estate owned by him.” Ala. Code 1940 (Recomp.1958), Tit. 7, §662. The children, however, misconstrue the intent of the legislature in attempting to apply an exemption in lieu of homestead. The exemption in lieu of homestead is meant to provide protection when there is no homestead for the surviving family. See Skipworth, 383 So. 2d at 527. Here, because Bernice Tate had a homestead, the exemption is not applicable. In order for the exemption in lieu of homestead to apply in this case, this court would have to hold that, because Bob and Bernice Tate owned the home property as joint tenants with the right of survivorship, the home property was not Bob Tate’s homestead upon his death as Bernice Tate, the surviving spouse, solely owned the home property outright through the feature of right of survivorship. Under this construction, because the home property became solely owned by Bernice Tate, only the Stephens Avenue property would have devolved into Bob Tate’s estate. If this construction is correct, an exemption in lieu of homestead could apply to the Stephens Avenue property. See Fretwell v. Fretwell, 218 So. 2d 138, 140 (Ala. 1969) (holding that where a spouse owns some property outright through a right of survivorship, but that property was not the homestead, the homestead can still be set aside as a homestead when it was solely owned by the decedent). Therefore, Bernice Tate could perhaps have asserted a right to the Stephens Avenue property in lieu of a homestead. However, even under a construction treating jointly held property as nonhomestead and therefore allowing an exemption in lieu of homestead on other property, the children’s contention still fails. The exemption in lieu of homestead is a gendered property right that requires knowledge of and access to the courts. Alabama’s law at the time of Bob Tate’s death required a widow to file a petition in the probate court or by bill in equity “before a final distribution of the decedent’s estate” in order to claim an exemption in lieu of homestead. Ala. Code 1940 (Recomp.1958), Tit. 7, §662; see also Drummond Co. v. Gunter, 588 So. 2d 465, 467 (Ala. Civ. App. 1991). Here, Bernice Tate never sought an exemption in lieu of homestead as to the disputed property either by filing a petition in the probate court or through a bill in equity. Therefore, she did not have an exemption in lieu of homestead in the disputed property. The children attempt to argue that it is irrelevant that Bernice Tate never filed a petition to set aside her homestead exemption in the disputed property because there is no prescribed period of time within which a widow must proceed to establish a homestead where there has been no administration on the deceased husband’s estate. Therefore, the children reason that Bernice

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Tate only conveyed her right to petition for an exemption in lieu of homestead to the Board. However, the idea that one could convey a protective right created to provide homestead to the family of a decedent whose estate had never been administered is not supported by the legislative intent of the homestead and exemption statutes. See Skipworth, 383 So. 2d at 527. Therefore, we affirm the trial court’s determination that Bernice Tate did not have a life estate interest in the disputed property by virtue of homestead or an exemption in lieu of homestead. The children next argue that Bernice Tate had a life estate interest in the disputed property through a theory of dower and quarantine rights. In an effort to protect women during a time when they had exceptionally limited property rights, certain common law rights, including dower, were recognized. Terry L. Turnipseed, Why Shouldn’t I be Allowed to Leave my Property to Whomever I Choose at my Death? (Or How I Learned to Stop Worrying and Start Loving the French), 44 Brandeis L.J. 737, 744 (2006). Dower law arose “in the feudal system” and “[o]ne obvious objective of the statute has its roots in romantic paternalism – protection of women because it is assumed that their role as wives and mothers leaves them financially helpless.” Hall v. McBride, 416 So. 2d 986, 989 (Ala. 1982). Under dower law, a widow received a life estate interest in a portion of her husband’s property after his death. Turnipseed, supra at 741. However, dower had an “ideological role . . . in shaping the female-dependent/male-provider model of the family, as well as women’s second-class citizenship right.” Turnipseed, supra at 789. Due to these criticisms, most dower rights have been abolished in the United States. Turnipseed, supra at 746–747. Dower and related quarantine rights were abolished in Alabama in 1982 with the adoption of a more gender-neutral probate code. Ala. Code §43-8-57 (1975); see also Hall, 416 So. 2d at 990 (holding that other Alabama genderbased inheritance law violated the equal protection clause of the Constitution). While the laws of dower and related rights were abolished and are now understood to be contrary to public policies of equity, generally the laws of estate succession, including whether dower or quarantine rights exist, are based on the law in effect at the time of the decedent’s death. Compton v. Cook, 66 So. 2d 176, 178 (Ala. 1953). Even under the paternalistically protective rights of dower and quarantine, Bernice Tate did not acquire a life estate or any other interest in the disputed property. Whether Bernice Tate had a dower interest is governed by Ala. Code 1940 (Recomp. 1958) Tit. 34 §§40 and 41, the law in force at the time of Bob Tate’s death. Compton, 66 So. 2d at 178. In relevant part, the Code provides that “[d]ower is an estate for the life of the widow in a certain portion of . . . all

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lands of which the husband was seized in fee during the marriage.” Ala. Code 1940 (Recomp.1958), Tit. 34, §40. When there are lineal descendants, the quantity of the dower interest is one-third. Id. at §41. The children argue that Bernice Tate conveyed her one-third life estate interest in the disputed property to the Board by deed in 1988 and that the children were remaindermen until October 12, 2012, the date of Bernice Tate’s death. However, claiming dower rights required knowledge of the right and access to the court. While Bernice Tate had the right of dower, she did not receive a property interest in Bob Tate’s property automatically upon his death. See Wilder v. Mixon, 442 So. 2d 922, 924 (Ala. 1983). Rather, under dower law, the widow “becomes vested of a life estate only upon confirmation of the assignment of dower by the court.” Id. The statute of limitation to set aside a widow’s dower interest is ten years after the death of the husband. Ala. Code 1940 (Recomp. 1958), Tit. 34 §63. In the present matter, a petition was never filed by Bernice Tate or anyone else to set aside her dower interest, and the statute of limitations would have ended in 1982, five years before the Board began condemnation proceedings over the disputed property. The children assert that, pursuant to Bernice Tate’s conveyance, the Board was merely assigned Bernice Tate’s dower rights, as it assumed the position of the widow. The children rely on the Alabama Supreme Court’s decision in Aniton v. Robinson, where the Aniton Court held that a conveyance by a widow to a third party was subject to dower rights and therefore allowed the third party to maintain possession during the life estate of the widow. Aniton v. Robinson, 134 So. 2d 764, 771 (Ala. 1961). However, the conveyance in Aniton took place within the ten-year statute of limitations for the assignment of dower rights. Id. In the present case, because the conveyance took place well outside the statute of limitations for the assignment of dower rights, the children’s reliance on Aniton is misplaced. The children attempt to argue that because Bernice Tate had possession of the Stephens Avenue property the statute of limitations did not apply. However, that only applies in quarantine, discussed below, and does not apply to the case at hand. See Clark v. McWaters, 243 So. 2d 670, 671–672 (Ala. 1970). The children argue that even though Bernice Tate’s dower interest was not allotted during her lifetime, she still had a life estate in the disputed property via her right to quarantine. The right of quarantine is incidental to the dower right but exists prior to the court assigning the dower interest. See Ala. Code 1940 (Recomp.1958), Tit. 34, §50. Quarantine provides that a “widow may retain possession of the dwelling house where her husband most usually resided next before his death . . . until her dower is assigned her.” Id. The statute of limitations typically applied to dower does not run during the

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quarantine period. See Clark, 243 So. 2d at 671–672. The children contend that (1) they had no right to possess the land during the life of Bernice Tate pursuant to her right to quarantine, and (2) Bernice Tate only assigned her right to the property as a life estate under the theory of quarantine to the Board, and therefore, the period for adverse possession did not begin to run until her death in 2012. We disagree. Quarantine is strictly limited to “the dwelling house where her husband most usually resided next before his death, with the offices and buildings, appurtenant thereto, and the plantation connected therewith.” Ala. Code 1940 (Recomp. 1958), Tit. 34, §50. It is undisputed that Bob Tate never lived on the disputed property and the disputed property was not connected to the home property, and thus, Bernice Tate did not have a quarantine interest in the disputed property. See Hall v. Mazzone, 486 So. 2d 408 (Ala. 1986) (holding that widow was not entitled to any rights by virtue of right of quarantine incidental to dower as property was not where her husband most usually resided next before his death); see also Hayden v. Robinson, 472 So. 2d 606, 609–610 (Ala. 1985) (“The failure of the evidence to show conclusively that the second parcel is connected to the first within the meaning of §50, Title 34, supra, precludes a determination that [the widow] was entitled to possession of the second parcel under her right to quarantine.”). In short, Bernice Tate did not possess a valid interest in the disputed property pursuant to her rights of homestead, exemption in lieu of homestead, dower, or quarantine. Because Bernice Tate had no fee or life estate interest in the disputed property, her deed to the Board in 1988, which purported to convey fee title to the disputed property, could not have legally conveyed any interest in the disputed property to the Board. Thus, the Board’s holding of the property was hostile to the children. Accordingly, the court below was correct in finding that the Board established all of the elements of both statutory adverse possession and adverse possession by prescription as a matter of law. equity-based property rights. While the court may not, and should not, rewrite estate law or property law that controlled past events, the fact that the arguments the children posit rely inherently on outdated, gender-discriminatory laws that were repealed shortly after Bob Tate’s death gives this court pause. While the children argue that Bernice Tate owned a life estate interest in the disputed property by virtue of these outdated laws, as outlined above, these laws and the way they historically have been applied, even read generously, would not have given Bernice Tate any right to the disputed property. Therefore, these historic, gendered rights do not merit finding a life estate interest in the disputed property.

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However, this court also is compelled to examine whether, in equity, there is an inherent wrong in the way estate and property law overlap to instill title in the Board. The estate law at the time of Bob Tate’s death was inherently inequitable between men and women. If an equitable result would require that Bernice Tate have life estate interest in the disputed property, then this court would have to seriously weigh the balance of powers that play out in the court, legislature, and executive in this state to determine if the court should deem the previous laws invalid as applied retroactively. In this case, this court is spared this balancing. Instead, it is clear that equitable treatment does not require Bernice Tate to have inherited a life state in the disputed property. At the time of Bob Tate’s death, husbands and wives were treated unequally under the law upon the death of a spouse. Compare Ala. Code 1940 (Recomp.1958), Tit. 16, §12 (giving the husband an automatic life estate interest in any of his wife’s property upon her death), with Wilder, 442 So. 2d at 924 (noting the statutory requirement for a wife to petition the court for a life estate interest in any of her husband’s property upon his death). While the law imposed on the widow a requirement to petition the probate court to set aside her dower or homestead interests, which Bernice Tate did not do, a surviving husband was given a life estate in all of his deceased wife’s property immediately upon her death under the codified version of Alabama’s curtesy law. Ala. Code 1940 (Recomp.1958), Tit. 16, §12; Aniton, 134 So. 2d 764, 771 (Ala. 1961). Therefore, if Bernice Tate had received the same rights as a surviving husband in 1972, she would have received a life estate in the disputed property immediately upon Bob Tate’s death, making the children’s claims valid. However, by the 1970s and 1980s, most states had revisited intestate succession laws and made them gender-neutral. Alabama followed suit in 1982. Ala. Code §43-8-41 (1975). The gender-neutral law of spousal survivorship adopted by the legislature in 1982 did not simply treat surviving wives as surviving husbands had previously been treated; instead, it shifted away from the provision of life estates and toward outright inheritance in fee. Application of current law to the facts of this case demonstrates that equity does not require us to disturb the lower court’s judgment. Under Alabama’s law since 1982, regardless of a surviving spouse’s gender, the property of a deceased spouse with children is passed onehalf to the surviving spouse and one-half to the children after distribution of the first $50,000 of the estate to the surviving spouse. Id. Thus, under current law, after distribution of the first $50,000 of Bob Tate’s estate to Bernice Tate, she and the children would have inherited the disputed property as tenants in common. As a tenant in common, if Bernice Tate purported to dispose of the entire disputed property to the Board, and the Board took possession of the

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disputed property for the statutory period, the Board would be the owner of Bernice Tate’s interest in the disputed property by virtue of her conveyance by deed and the owner of the children’s interest by virtue of adverse possession. Application of the modern-day law would, therefore, result in the same conclusion this court reaches today, quieting title in the Board. If this court were deciding this case before 1982 and chose to strike down Alabama’s dower and curtesy laws as a violation of the equal protection laws of the Constitution on the basis of sex, similar to the court in Hall, we would be faced with the choice of whether to invalidate the statute or extend one set of rights to all people. See Hall, 416 So. 2d at 990–991. However, the best answer to a legislative problem is a legislative answer, which prevents the court from weighing into the legislative arena. Because the legislature in this state has decided on a gender-neutral intestate statute and done away with the genderdiscriminatory rights of dower and curtesy, this court will not reestablish those rights under the name of equity. Therefore, because, under the current law as applied equally to men and women, the Board still could have acquired the disputed property by adverse possession, this court agrees with the trial court’s judgment that Bernice Tate did not have a life estate interest in the disputed property. If equity would dictate a different result due to the past laws’ discriminatory effect, this court would have a much more difficult question at hand. However, this court is spared that inquiry in the present case. B

inverse condemnation. The children also contend that even if the Board meets all of the elements of adverse possession, the Board is barred from acquiring title to the disputed property in this manner without providing just compensation. Both the United States and Alabama Constitutions guarantee that a government entity cannot take a private citizen’s property without providing just compensation. See U.S. Const. amend. V; Ala. Const. art. I, §23; Ala. Const. art. XII, §235. Typically, just compensation is paid when a property is condemned for public use; however, when government takes the property prior to providing just compensation, private property owners can institute inverse condemnation proceedings. See Ex parte Ala. Dep’t of Transp., 143 So. 3d 730, 739 (Ala. 2013). Inverse condemnation actions allow private property owners to “recover compensation for the government’s use of his or her property that he or she would have received had the government initiated eminent-domain proceedings as it was supposed to do.” Id. Alabama Constitution Article 1, Section 23 provides that “private property shall not be taken for, or applied to public use,

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unless just compensation be first made therefor.” Ala. Const. art. I, §23. Article 12, Section 235 is similarly broad in that it provides that a private citizen is entitled to just compensation in the event of a “taking, injury, or destruction” (Ala. Const. art. XII, §235). The trial court first found that the children’s inverse condemnation claim fails because there has been no “taking.” When property passes from private owners to a government entity via adverse possession, it is possible there has been no “taking” that requires compensation because the original property owner has slept on their rights. See Texaco Inc. v. Short, 454 U.S. 516, 530 (1982) (holding that an Indiana statute that provided that a mineral interest would be extinguished and reverted to the surface owner if the mineral estate went unused for twenty years did not affect a taking because it was the property owner’s own failure to perform the statutory condition that caused the lapse of the property right). No Alabama court nor the Supreme Court of the United States has thus far decided whether the government acquiring property by adverse possession constitutes a taking under either the Alabama or United States Constitutions. Authority from other jurisdictions are split on this issue. Some suggest that an inverse condemnation remedy must be sought prior to the expiration of the requisite period for adverse possession. See Weidner v. State Dep’t of Transp. & Pub. Facilities, 860 P.2d 1205, 1212 (Alaska 1993) (“the prescriptive period – as with any statute of limitations – requires a private landowner to bring an inverse condemnation action for public use of private property within a specified period of time”); see also Com. Dep’t of Parks v. Stephens, 407 S. W.2d 711, 712 (Ky. 1966) (“after the running of the statute of limitation the original owner is no longer in a position to assert title to the property and it has effectively vested in the adverse possessor. Thus, it may be said that since the original owner has lost his claim of title, the state is no longer taking his property”) (internal citations omitted). However, at least one other court has found that the government acquiring property by adverse possession constitutes a taking that typically would require just compensation. See Pascoag Reservoir & Dam LLC v. Rhode Island, 217 F. Supp. 2d 206, 226 (D.R.I. 2002) (holding that adverse possession by the government constitutes a taking under the Fifth Amendment).25 The federal district court of Rhode Island found it compelling that the Takings Clause, at root, is meant to protect private land owners from excessive government 25

The protections afforded under the Takings Clause of the Fifth Amendment of the United States Constitution apply to the States via the Fourteenth Amendment of the United States Constitution. See Chicago, B. & Q.R. v. Chicago, 166 U.S. 226 (1897).

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intrusion. Id. at 225. Further, the court noted that the government is different from a normal private property owner and therefore may be held to different standards. Id. Therefore, the court in Pascoag concluded that a taking still occurs when the government acquires property by means of adverse possession. Id. at 226. While jurisdictions are split on this issue, this court holds that when the government acquires property by adverse possession, a taking has occurred, and whether just compensation is due depends on whether the claimant for inverse condemnation “slept on their rights” to the property. See Texaco, 454 U.S. at 530. The protections of both the federal and state constitutions against government taking of land without just compensation go beyond the traditional property laws governing two private parties. The government is provided the power of eminent domain, not afforded to private property owners, which allows the government to take property from a private land owner, but with this power comes the responsibility of providing just compensation. While the government can acquire property through adverse possession, as any property owner can, once the government acquires that property, a taking has occurred and just compensation is due. Therefore, in this case, a taking occurred when the Board acquired the disputed property by meeting the elements of adverse possession. The inquiry then turns to whether just compensation is due. As the Supreme Court of the United States made clear in Texaco, a property owner may lose their right to just compensation when they sleep on their rights. See Texaco, 454 U.S. at 530. However, the loss of a constitutional right is a significant event, and therefore requires a strong showing that the former property owner did not take sufficient steps to bring the inverse condemnation proceeding in a timely manner. In Pascoag, the court found that whether just compensation is due is based on whether the prior property owner brought an inverse condemnation claim within the statute of limitations. 217 F. Supp. 2d at 228. The Supreme Court has previously noted that federal rights without statutes of limitations have their statutes of limitations established by the analogous state law. John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008). The statute of limitations would run from when the adverse possession statutory period passed, as that is when the taking officially took place and when an inverse condemnation proceeding would be ripe. Pascoag, 217 F. Supp. 2d at 228. Therefore, the state statute of limitations for inverse condemnation proceedings provides the time limit for all inverse condemnation claims. In Alabama, the statute of limitations for an inverse condemnation claim against a municipality is two years. Ala. Code. §11-47-23 (1975). However,

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because the Board is separate from a municipality, this statute of limitations would not apply. Further, the specific facts of this case favor a longer period of time for the children to bring the inverse condemnation claim. Specifically, the fact that the Board initiated condemnation proceedings against Bernice Tate and that the Probate Court issued an order affirming Bernice Tate’s rights to the disputed property, despite her not having an interest in the disputed property, creates a unique situation where the entity taking the property is also potentially at fault for the children not knowing their own property rights. While facts similar to these would not always require just compensation, the court finds that the most generous statute of limitations should apply to these facts. Therefore, the rule of repose should apply in this case. The Alabama rule of repose “bars actions that have not been commenced within 20 years from the time they could have been commenced.” Tierce v. Ellis, 624 So. 2d 553, 554 (Ala. 1993). Because this is a claim for inverse condemnation, the rule of repose would begin once the Board acquired the disputed property by adverse possession. The earliest this could have occurred was 1998, ten years after the Board began possessing the disputed property in 1988. Twenty years from that time is 2018, and the children filed this claim four years prior to that earliest possible deadline in 2014. Thus, the children did take timely action under the rule of repose. Finally, the inquiry then turns to what constitutes just compensation. The amount of just compensation due is a question for the finder of fact and is therefore remanded to the trial court. However, one question this court will address is whether the Board may be credited with the amount incorrectly paid to Bernice Tate. Typically, where the government has paid the wrong party for a property taken under the Fifth Amendment, the government is entitled to a claim against that third party for the amount paid. See, e.g., Houser v. United States, 12 Cl. Ct. 454, 474 (1987) (holding that the government is entitled to recover the amount mistakenly paid to a third party in a takings case but the government is not entitled to interest on that amount as the government should have known the correct property owner to pay). Under this principle, the Board would therefore be entitled to claim the amount paid to Bernice Tate from her estate. However, in cases where adverse possession is at play, the sheer amount of time that will often have passed from the mistaken payment and the ultimate judgment may make such a claim inequitable. This case also presents the unique fact that the beneficiaries of Bernice Tate’s estate and the rightful owners of the disputed property to whom just compensation is due are one and the same. Therefore, in these unique circumstances, this court holds that the trial court should determine whether the Board acted in

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good faith in condemning the disputed property against Bernice Tate when she did not have an interest in the disputed property and then disclaiming her interest in the instant case. If the Board acted in good faith, the amount paid to Bernice Tate should be credited to the Board and the remainder of the just compensation will be due to the children. If the Board did not act in good faith, the Board will owe the entire amount determined to be just compensation to the children. Therefore, for the foregoing reasons, we reverse the trial court’s judgment that the Board did not owe the children just compensation under a theory of inverse condemnation. C

unjust enrichment. The children’s final argument was that if the Board is deemed to have valid title to the disputed property, the Board is unjustly enriched, requiring compensation to the children. Due to the resolution of the argument regarding the just compensation due to the children, it is unnecessary for the court to rule on this claim. Therefore, because the Board’s acquisition of the disputed property constitutes a taking for which just compensation is due, the trial court’s summary judgment is reversed and the case is remanded for proceedings not inconsistent with this opinion. Reversed and remanded.

part v

Gifts and Future Interests

11 Commentary on Gruen v. Gruen richard chused

Composing a feminist opinion in Gruen v. Gruen1 is a challenging project. Using the feminist move of storytelling is not readily available as a vehicle for reframing the case. Given the sparse descriptions by the courts of the roles of the various players, their characters, and whether their actions stemmed, in part, from male aggression render reliance upon them too speculative an analytical baseline.2 This case involved a purported gift from a father, Victor Gruen, to his son, and the challenge to the validity of the purported gift by Victor’s widow. On the evidence as we have it, the primary actors with regard to the purported gift, the donor and the donee, were both men, a father and a son. Though Victor had a checkered marital past and the widow, Victor’s fourth wife, did not receive the valuable asset that was the subject of the disputed inter vivos gift, she was neither a subject of any particular attention in the litigation nor an object of bounty more obvious than any other family member. If the motives of the donor, Victor, are suspect, that is not clear from the record and the risks associated with assuming patriarchy are quite pronounced. Whether the stance chosen in a revised opinion ends up being a trap or a revelation is a major hurdle to overcome. As the issues unfold in this commentary, it should become clear why I think the positions taken in the rewritten opinion drafted by Professor Stephanie M. Stern, writing as Justice Stern, are beautifully and thoughtfully composed.

the actors in the story As briefly described in the revised opinion, Victor took steps to make a gift of a vested remainder in an important Gustav Klimt painting to his son, Michael, 1 2

Gruen v. Gruen, 496 N.E.2d 869 (N.Y. 1986). Speculation about the sparse court record in the case is taken up later in this commentary.

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while keeping a life estate for himself.3 The painting involved, Schloss Kammer am Attersee II,4 was a vivid countryside scene painted by Klimt in 1909. The effectiveness of the gift was complicated by: Victor’s retraction5 of the first letter of gift, which laid out the remainder and life estate interests fairly clearly; the issuance of a pair of follow-up letters, supposedly on the advice of tax counsel, which did not unambiguously state the apparent intention to split apart the remainder and the life estate; and the display of the painting in Victor’s house for the rest of his life. Michael did not obtain possession of the Klimt until well after his father’s death in 1980. Kemija Gruen, Victor’s fourth wife and Michael’s stepmother at the time of his father’s death, refused to turn over possession of the Klimt to Michael. That transfer of possession did not occur until after she lost legal proceedings in both Austria and New York. The characters in this drama are described briefly in the original and rewritten opinions, but the canvas is largely empty. There is little in the record to provide us with more information about the interactions between the various participants in what was a very complex family history. If the full story of a family law tale is critical to using a feminist lens to reimagine the legal results, the court’s reasoning, or both, the judicial proceedings here do not help very much. From other sources, we know a bit more, though not nearly enough to declare us know-it-all-flies-on-the-wall. Victor was married four times, dying in 1980 at the age of 76. That alone is enough to set tongues wagging a bit. He hastily fled Austria in 1938 after the Germans took over, justifiably fearing for his future in the anti-Semitic environment.6 Then known by his birth name Viktor David Grünbaum, he was accompanied by his first wife Alice “Lizzie” Kardos.7 He ended up in New York, where he changed his name to Gruen and began to design store fronts and interiors with Morris Ketchum, already a well-known designer in the city. That arrangement broke apart after a short time, but he continued working on his own projects. When creating an exhibition about automobiles and 3

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6 7

The story is told in some detail in Susan F. French, Gruen v. Gruen: A Tale of Two Stories, in Property Stories 75–98 (Gerald Korngold & Andrew P. Morriss eds., 2nd ed. 2009). Additional information may be found in Richard Chused, Cases, Materials, and Problems in Property 331–32 (3rd ed. 2010). Schloss Kammer on Attersee II, 1909 by Gustav Klimt, Gustav-Klimt.com, https://www.gustavklimt.com/Schloss-Kammer-on-Attersee-ii.jsp (last visited Dec. 21, 2020). A completed gift cannot be recalled. The donee may give it back, but it seems unlikely that happened here. Therefore, there is doubt about whether the first letter was irrelevant. See French, supra note 3, at 76. This and other details appear in Lukas Pauer, Grünbaum-turn-Gruen Gone Wrong: On the Four Wives and Lives of a Disenchanted Visionary, 3 Very Vary Veri 131 (2017).

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highways of the future for the 1939 New York World’s Fair, he met Elsie Krummeck, a daughter of German immigrants. They established a business relationship, broadening Victor’s store-design business and establishing a Broadway production company with Austrian émigrés. They also began a romantic affair despite Victor’s then extant marriage to Kardos. After divorcing Kardos in 1941, Victor married Krummeck. They had two children, including Michael, the eventual plaintiff in Gruen v. Gruen. The new couple moved to Los Angeles not long after their marriage. And that is where Victor’s architecture practice blossomed. They designed a number of urban stores together and prospered in the process. By the late 1940s, both the business and marital relationships began to dissolve. His first shopping center projects emerged at about the same time. He married for the third time shortly after his 1951 divorce from Krummeck was final. Lazette E. McCormick Van Houten, a fashion editor in New York City for Retailing Daily, had interviewed Victor about his dress shop designs during his visits to the city and became his third spouse. Michael remained in Krummeck’s primary custody after the divorce, though he spent a great deal of time with his father in New York.8 The third marriage was not professional like his first two. But it also ended, this time by the sudden death of Van Houten in 1962. Victor claimed that it was only Michael’s loving care that prevented him from having a nervous breakdown.9 Seven months after Van Houten’s death, he married Kemija Theresa Salifefandiz-Abazz. Kemija was significantly younger than Victor, born in 1936, thirty-three years after him. Victor claimed later that the first indication of a desire for a romantic relationship came from her.10 She had come to work for Victor and Van Houten as a housekeeper at their second home in Vienna. During the mid-1960s, Victor developed plans for shopping centers, hoping to emulate urban environments encouraging strolling and cultural and civic activities in addition to shopping, and discouraging reliance on automobile travel. It did not take long for his more progressive vision of such suburban developments to give way to what became the enclosed suburban mall devoted entirely to stores and the then-burgeoning car culture. Victor’s goal was to make suburban development more urban and modern, but market forces pushed him toward inventing the mall. By 1968, he became disenchanted with the direction of both his architectural practice and mall

8 9

10

French, supra note 3, at 77. Victor Gruen, Shopping Town: Designing the City in Suburban America 166 (Anette Baldauf ed. trans., 2017). Id. at 166–167.

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development and moved with Kemija back to Vienna, his primary home for the remainder of his life.11 It was just after Victor married Kemija that he arranged to make a gift of the remainder in the Klimt painting to Michael. That timing creates many more questions than it answers. His history of serial marriage raises fascinating questions about the nature of his ties to Kemija. Was it somehow a marriage of convenience, rather than one of love? Did he take advantage of her much younger age and status in ways that should be condemned? Was there an inappropriate exercise of a power relationship? Were there doubts in his mind about allowing such a valuable work,12 originally purchased for $8,000 in 1959 while he was married to Van Houten, to fall into Kemija’s hands at his death? Was he rewarding Michael for his loyalty and assistance after the death of Van Houten? How much speculation like this is even appropriate on this judicial record? There is room only to wonder about the nature of Victor’s relationships with women, in general, and the degree to which the transaction in this case was inappropriately motivated by them. The relevance of this sort of speculation to legal proceedings like this one, however, is dubious, especially when the back story of the case is almost totally invisible in the record. That alone makes it impossible to use speculation as the backbone of a revised, feminist opinion. While it is plausible that power dynamics may have played a role in the relationship between Victor and Kemija, it is not possible to determine what effect, if any, such dynamics may have had without enormous speculation that drifts well beyond the confines of the Gruen litigation story of Victor and Kemija’s relationship. In addition, it is not clear where such an unattractive story line, if accurate, leads. Even if Victor took advantage of Kemija in inappropriate ways, it is hard to imagine a legal rule or construct that undoes an intention to benefit a family member other than Kemija by making a gift. As Stern notes in her opinion, the intention to make a gift in this case was not crystal clear. Indeed, Michael lost in the trial court13 and only won on appeal because the judges 11

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See id.; Mark Byrnes, Victor Gruen Wanted to Make Our Suburbs More Urban. Instead, He Invented the Mall, Citylab (July 18, 2013), https://www.citylab.com/design/2013/07/victorgruen-wanted-make-our-suburbs-better-instead-he-invented-mall/6249/; Malcolm Gladwell, The Terrazzo Jungle, The New Yorker 120 (Mar. 7, 2004), at 80, https://www.newyorker.com/ magazine/2004/03/15/the-terrazzo-jungle. After the work came into the possession of Michael Gruen, it was put up for auction by Sotheby’s in 1987 and sold for £3,300,000 or about $5,336,000. Ten years later, it was reauctioned at a price of £14,500,000 or $23,500,000. It ended up in the collection of the Galleria Nazionale d’Arte Moderna in Rome. French, supra note 3, at 96–97. Id. at 92. The tax reasons for redoing the gift were real. Keeping the entire life estate placed the full value of the painting, and the estate taxes, in Victor’s estate at his death – a serious amount

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concluded that the trial court’s finding of no intention lacked solid support. I agree with that conclusion, though there obviously is room for argument. But even if one were to disagree with the appellate court’s reworking of factual findings, the search for donative intent should be based on facts in the case, not on speculation about family animosity. Can lack of trust or dislike of one person alter an intention to make a gift to another? Can that sort of story be used to inform a feminist perspective on the outcome? Do we really wish to construct a doctrine that will lead the courts down the path of evaluating the family history behind gifts made in a domestic setting? I think not. It reminds me of many of the flaws in the old fault divorce system style of family law litigation – blame, animosity, high incentives to lie, and potentially enormous litigation expenses. That is hardly a way to write a gift opinion. In the end, Michael got the Klimt painting. He brought two lawsuits – one in Austria and the other in New York – against Kemija when she refused to turn over the Klimt painting upon her husband’s death in 1980. It is clear she knew of the gift well before 1980.14 She took some verbal steps with Victor to try to alter the arrangements. She justified her refusal to turn the Klimt over to Michael by claiming on various occasions “that Victor had sold the original to buy jewelry for her, that Victor had willed the painting to her, that the original had been stolen, and that she had taken the piece out of its frame, rolled it up, and taken it to Switzerland in a suitcase.”15 The Austrian case was, apparently, tough sledding. While that case was pending, Michael learned that Kemija was coming to New York. He arranged to serve her with process at her hotel.16 That resulted in the case involved in the rewritten opinion.17 Michael argued the case himself before the New York Court of Appeals. He was a graduate of Harvard College and the University of California at Los Angeles Law School, arriving to join the bar in New York in 1966. Much of his practice was in real estate, including historic preservation work. Even after obtaining a judgment in the New York case, it still took some time and a bit of good fortune to gain possession of the Klimt. Michael received a letter, out of the blue, from Kemija with a Swiss bank vault receipt and a brief note indicating he could

14 15 16 17

given the rise in value during the rest of Victor’s life. An outright gift, by contrast, triggered a gift tax at a lower rate payable by the donor, Victor. Id. at 80–81. Id. at 81. A more complete version of this part of the story is in id. at 82–83. Lauren Peters, Michael Gruen, The N.Y. Preservation Archive Project (Oct. 28, 2008), http://www.nypap.org/oral-history/michael-gruen/.

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retrieve the Klimt. He immediately flew to Zurich, picked up the work, and consigned it to Sotheby’s in London for auction.18

the transaction As Stern notes in her revised opinion, the primary issue was whether Victor completed the delivery of a future interest in the Klimt painting that was accepted by Michael. The case became famous because the court relied upon a symbolic delivery notion, allowing a person making a gift of a remainder to provide the donee with a symbol – in this case, letters – of the transfer as a sufficient signal of a completed delivery. The symbolic delivery rule arose because of the impossibility of actually delivering a future interest in a totally physical way when the donor intends to retain a life estate in an item. In this class of cases, the recipient of the remainder must sit tight and wait for the demise of her or his benefactor before reaping the benefit of the intended beneficence. Even if physical control over the object is temporarily or symbolically bestowed upon the grantee, that present sense of glee must immediately give way to the reality of delayed gratification. Given the standard and well-understood legal norms for gift-giving requiring intention, delivery, and acceptance, the use of a symbolic system makes sense in cases of future interests. It is a way of recognizing the need to provide room for human generosity to operate in a legal world filled with an endless array of property structures and allowing parties enormous flexibility in the timing and objective characteristics of a gift. Most importantly, for purposes of commenting on Stern’s work, it eases the way for human generosity to flow. It makes little sense to stifle generosity by barring a gift of any property interest that cannot be fully, physically delivered at the moment the gift is made. In a crucial move, Stern took that significant legal outcome a step further – holding that continuing to use a rule requiring delivery to complete a gift is unnecessary, especially when the property is a future interest. Assuming intention to make a gift and acceptance of that gift are present, she concludes, finding delivery is simply unnecessary. The gift is fully taken care of by completion of the other two elements. This idea carries the notion of enhancing human generosity one significant step further than did even the symbolic delivery rule of Gruen. It is a brilliant feminist move that reworks the structure of donative inter vivos transfers without doing violence to the need to prevent

18

See supra text accompanying note 12.

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fraudulent overreaching by those claiming gifts under arguably suspicious circumstances.19 The traditional rules for testamentary dispositions require the testator to write an instrument – a will – surrounded by a series of formalities designed to prevent fraudulent claims. Requiring the presence of witnesses and detailed public attestation of an intention to confirm a will’s contents makes it extremely difficult for someone to claim, after a death, that the deceased person wanted to give her or him a gift that is not mentioned in the will. A similar concern, of course, may be voiced about inter vivos transfers of future interests. A person may always claim that someone gave her or him a gift of a remainder one foggy night twenty years ago. It is, therefore, wise to structure gift law to reduce the likelihood that such potentially fraudulent claims will be routinely accepted by the courts. The best way to do that is to make sure that the courts require robust proof of intent to make a present gift with possession delayed until a future date. The easiest way to do that is to look for documentary evidence of such a gift while remaining skeptical of oral gifts made in the absence of witnesses. In the Gruen setting, the writings, though somewhat mysterious, served as such documentary evidence. That Victor intended to do something in the present was clear. Put another way, it was not hard to prove intention to make a gift in the present, rather than in a testamentary fashion. Nor was it hard to prove acceptance. Many people knew of the gift.20 Even Kemija knew about it.21 And Michael’s mother, Victor’s second wife, testified that he was quite pleased by his father’s generosity.22 Given the improbability of fraud in this case, imposing any delivery requirement made little sense. It accomplished nothing. Evidence of intention, together with good proof of knowledge and acceptance by the donee, easily could be taken as sufficient proof of a gift. So it is possible to loosen the legal reins on inter vivos gift-giving a bit by altering the old common law rules and, thereby, enhancing the realm in which human generosity might successfully operate. That is the move that Stern makes – a beautiful one at that. It mirrors the willingness of countless other common law courts to enunciate various public policies justifying pushing the law in a somewhat new, if not novel, direction. Stern simultaneously describes the law in effect in 1984 when Gruen was decided, argues that it is possible to 19

20 21 22

That Stern “reworks” some older opinions does not bother me in the slightest. Common law courts routinely play verbal games with older cases when they are in the mood to move their jurisprudence to a new paradigm. French, supra note 3, at 80. Id. at 80–81. Id. at 79.

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alter things a bit, and concludes that such modifications enhance valuable instincts often attributed to women.

viewing the transaction through a feminist lens At the time of the case, feminist theorizing was underdeveloped in comparison with today. Much of the legally relevant debate was about equality versus difference theory – the contest between viewing equality between genders as the primary goal versus recognition of the different roles and sensibilities of women as important in resolving cultural contests. In some ways, the debate was crystallized by two Justice Rehnquist opinions concluding that treating pregnancy differently from other medical issues violated neither the Constitution nor Title VII.23 Those issues were resolved by the Pregnancy Discrimination Act of 1978’s adoption of an equality theory requiring that pregnancy be treated by employers like any other medical issue.24 Stern relies on Carol Gilligan’s insights in In a Different Voice: Psychological Theory and Women’s Development 25 as the springboard for her feminist rewritten opinion. That was a wholly appropriate, though risky path to take. The timing of Gilligan’s book was perfect; it was published in 1982, shortly before the Gruen opinion was released. It also quickly became famous, disliked by various equality theorists and admired by some difference feminists, sharply critiqued by some reviewers and praised by others. The variation is quite evident in a sampling of contemporary and hindsight reviews;26 deep hostility emerged at times.27 Much of the criticism 23

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Gedulig v. Aiello, 417 U.S. 484 (1974); General Electric v. Gilbert, 429 U.S. 125 (1976). The work of the United States Supreme Court during the Gruen era is nicely framed by Ann E. Freedman in Sex Equality, Sex Differences, and the Supreme Court, 92 Yale L.J. 913 (1983). Pregnancy Discrimination Act of 1978, Pub. L. No. 95-555, 92 Stat. 2076. See also the hindsight view of Wendy W. Williams, The Equality Crisis: Some Reflections on Culture, Courts, and Feminism, 14 Women’s Rts. L. Rep. 151 (1992). Williams worked with Congress to draft the Pregnancy Discrimination Act of 1978. Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development (1982). Anne Colby & William Damon, Listening to a Different Voice: A Review of Gilligan’s “In a Different Voice”, 29 Merrill-Palmer Q. 473 (1983); Ruth Graham, Carol Gilligan’s Persistent “Voice,” The Bos. Globe (June 24, 2012, 12:00 a.m.), https://www.bostonglobe.com/ideas/2012/ 06/23/carol-gilligan/toGqkSSmZQC3v4KhFyQ5bK/story.html; Penelope Green, Carefully Smash the Patriarchy, N.Y. Times (Mar. 18, 2019), https://www.nytimes.com/2019/03/18/style/ carol-gilligan.html. The most hostile review, written by Christina Hoff Sommers of the American Enterprise Institute, accused Gilligan of waging a war on boys. Christina Hoff Sommers, The War against Boys, 285 The Atlantic 59 (May 2000), https://www.theatlantic.com/magazine/archive/2000/ 05/the-war-against-boys/304659/.

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in the reviews was about Gilligan’s study methods, which were not true data techniques with statistical significance. Rather, she reported anecdotal information about decision-making by children and women resolving dilemmas about whether to abort pregnancies. Her response was that she was working on a theoretical foundation for studying the psychology of decision-making by women and men, not on a thorough data study. Such work has been undertaken since the book was published, with conflicting reports on whether her conclusions can be statistically verified. The depth of the variation in feelings about Gilligan’s work mirrors the problems of developing a feminist approach to Gruen and using Gilligan as the springboard. Gilligan’s book was an analysis of moral psychology – a volume about making ethical choices. Though an ethic of connectedness and other directedness was said by difference theorists to be a more feminine voice than a male one, Gilligan’s goal was to argue that the discipline of psychology had largely ignored inquiry into the possibility that choice-making might be gendered and to encourage inquiry into the nature of choices; the way people make them, the possibility that boys and girls, men and women work through issues differently; and the impact of socialization, not genetics, on ethical decision-making.28 In addition to arguing that ethics of connectedness, caring, and focus on others may be productively studied, Gilligan also contended that such ethical norms might be encouraged as important for choice-making by all genders. It was this last point that Stern finds particularly relevant in Gruen, a dispute about a gift – a statement of connectedness and generosity – from a father to a son. There are risks in using Gilligan. The most important are the possibilities that generosity and connectedness were and are so stereotypical and vague that their use is not productive and that both may become vehicles for oppressing rather than liberating women. The notion that women were legally obligated to devote their lives to others runs deep in American history. The nowstereotypical notion of domesticity clearly governed middle- and upper-class women’s lives in sharply non-feminist ways for much of our history.29 Indeed, it still may be a vehicle for legal systems of domestic control and discrimination and profound and systematic violence. In a deeply distressing 1992

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Gilligan was very careful to note that gendered variations in ethical choice-making are culturally driven. The differences for her were not hard-wired. Gilligan, supra note 25, at 2. I (and many others) have written at length about the ways the legal system instantiated often restrictive rules about the roles of women in society. For a lengthy survey of a number of problems raising such issues, see Richard Chused & Wendy Williams, Gendered Law in American History (2016).

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article, Women and Property: Gaining and Losing Ground,30 Carol Rose described how assumptions made by men that their female domestic partners are more cooperative and compromising than men may underlay battered women syndrome – a pattern of promises to behave better in return for women ceding some control, followed by a period of calm, and then more rounds of violence, promises, compromise, and loss of authority. Much of the twentiethcentury women’s movement was framed to extract women from such constraints. The fact that connectedness and compromise became a trap for some, however, does not negate the positive values that can be associated with such motivations, especially if that traditional culturally driven notion about women’s personalities can be generalized to enhance the ethical choices made by everyone, especially men. That, of course, is exactly what Stern did in her revised Gruen opinion. And that, along with its appropriate easing of inter vivos gift constraints on transfers of future interests, is its genius.

GRUEN V. GRUEN, 496 N.E.2D 869 (N.Y. 1986)

judge stephanie m. stern delivered the opinion of the court This case presents the issue of whether Victor Gruen made a valid inter vivos gift to his son, Michael Gruen, of a valuable oil painting. Victor sent letters to Michael regarding a gift of the painting in 1963, but retained possessory rights to the painting for the duration of his life and, thus, did not transfer physical possession of the painting to Michael. Kemija Gruen, the appellant in this case and the widow of Victor, claims that the gift is invalid as a testamentary gift because it failed to comply with required formalities for execution of a will and that it is invalid as an inter vivos gift because a donor cannot make a valid gift in chattel property while retaining a life estate and complete rights of possession. The trial court found that there was not a valid gift in substantial part because Victor had reserved a life estate for himself in the painting. The New York Supreme Court, Appellate Division, reversed. Gruen v. Gruen, 104 A.D.2d 171, 177–179 (1984). The appellate court held that Michael had carried his burden of establishing the three common law requirements for a valid gift: donative intent, delivery, and acceptance. The appellate court reasoned that delivery of the letters constituted a transfer of the remainder interest in the

30

Carol M. Rose, Women and Property: Gaining and Losing Ground, 78 Va. L. Rev. 421 (1992).

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painting from the father to the son and established intent and delivery, and that Michael had presented sufficient evidence of his acceptance of the gift. Id. at 177–178. The appellate court remitted for a determination of damages and the trial court awarded $2,500,000 representing the value of the painting plus interest. Kemija subsequently appealed to this court, the Court of Appeals of New York, the highest court in New York State. Kemija argues on appeal that the trial court correctly found that Victor failed to meet the requirements of a valid inter vivos gift of the painting. She primarily claims that Victor’s failure to deliver the painting to Michael demonstrates that Victor did not intend to transfer a present interest to Michael, but rather expressed in his letters an unenforceable future intention to gift the painting to Michael upon his death. In turn, Michael contends that the letters to him from his father regarding the painting constituted a valid gift of the remainder interest in the painting. Michael seeks a declaration from this court that he is the owner of the painting, given his father’s death on February 14, 1980, and the termination of his father’s life estate. We uphold the appellate court’s decision finding a valid inter vivos gift and affirm Michael’s ownership of the painting. We base this decision on the evidence of Victor’s intent to gift his son the painting, while reserving for himself a life estate. We do not address the choice of forum issues in this opinion as that issue has been competently determined by the courts below.

i Facts The painting in dispute is a valuable oil painting by the renowned Austrian painter Gustav Klimt, entitled Schloss Kammer am Attersee II. Victor, an architect of international reputation, purchased the painting for $8,000 in 1959 from a New York art gallery. The painting was initially sent to his New York City apartment. In 1963, Victor moved the painting to Los Angeles and, in February 1963, married Kemija. They resided in Los Angeles until the late 1960s when Victor, now retired from his US architecture practice, moved with Kemija to Vienna. The painting remained in Vienna for the balance of Victor’s life. Victor sent his son three letters regarding the gift of the painting. The first letter, like the subsequent letters, sought to transfer a remainder interest in the painting to Michael, while reserving present possessory rights in Victor. That first letter, sent on April 1, 1963, a few months following his marriage to Kemija, read, “I am sending enclosed a written confirmation of your most

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important birthday present. I hope that it will take a long time before you can enjoy it.” Gruen, 104 A.D.2d at 172. At Victor’s request, Michael returned the April 1 letter and it was destroyed. Subsequently, Victor sent Michael two other letters regarding the gift of the Klimt painting. There is no dispute about the provenance of the letters or Victor’s signature on them. The question for this court is whether these letters were sufficient to create an inter vivos donative transfer from Victor to Michael. On May 22, 1963, Victor sent the second letter to his son Michael that read, Dear Michael: I wrote you at the time of your birthday about the gift of the painting by Klimt. Now my lawyer tells me that because of the existing tax laws, it was wrong to mention in that letter that I want to use the painting as long as I live. Though I still want to use it, this should not appear in the letter. I am enclosing, therefore, a new letter and I ask you to send the old one back to me so that it can be destroyed. I know this is all very silly, but the lawyer and our accountant insist that they must have in their possession copies of a letter which will serve the purpose of making it possible for you, once I die, to get this picture without having to pay inheritance taxes on it. Love s/Victor

In the same mailing was another letter, dated April 1, 1963, that Victor had prepared as a substitute for the first letter: Dear Michael: The 21st birthday, being an important event in life, should be celebrated accordingly. I therefore wish to give you as a present the oil painting by Gustav Klimt of Schloss Kammer which now hangs in the New York living room. You know that Lazette and I bought it some 5 or 6 years ago, and you always told us how much you liked it. Happy birthday again. Love, s/Victor

The painting remained with Victor, except for a brief loan of the painting for exhibition at the Guggenheim and Baltimore museums during 1964–65

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and for restoration work. Victor died on February 14, 1980. Kemija currently has possession of the painting and has refused Michael’s requests for it.

ii Delivery and Intent Tests for Inter Vivos Gifts The oft-repeated standard for determining the validity of an inter vivos gift is that (1) the donor intended to give the gift; (2) the donor or his agent delivered the gift; and (3) the donee accepted the gift. See, e.g., Matter of Szabo, 10 NY.2d 94, 98 (N.Y. 1961); in re Van Alstyne, 207 N.Y. 298, 306 (N.Y. 1913); Beaver v. Beaver, 117 N.Y. 421, 428 (N.Y. 1889). Before turning to intent and acceptance, we consider the claim that Victor’s gift must fail for lack of delivery. A primary issue on appeal is whether a donor, who retains a possessory interest for life in property, may make a valid inter vivos gift of the future interest in that property by delivering a written instrument rather than delivering the property itself. Gruen, 104 A.D.2d at 173–174. Kemija contends that the law requires physical delivery of tangible personal property, and notes that Victor failed to make physical delivery of the painting to Michael. We reject these claims and now hold that delivery is not required to establish a valid inter vivos gift. When the donor’s intent is clear and supported by the evidence, we now find there is no requirement that the donor deliver an inter vivos gift. If intent cannot be discerned via the evidence, then courts may choose to consider delivery as a means to clarify intent, not as an independent requirement for a valid gift. The donee must still accept the gift, but acceptance remains presumed if the gift is of any value. Beaver, 117 NY at 429. Our holding derives from our precedents, the rationales underlying the traditional delivery rule, and the aim of effectuating the generosity intended by donors, often within the context of their intimate or charitable relationships. A. Precedent for an Intent-Based Standard for Inter Vivos Gifts Despite dutiful recitation of the three-part test for inter vivos gifts of intent, delivery, and acceptance, courts usually rely on intent to decide cases in practice. In cases where the evidence establishes intent, courts will frequently relax the standard of delivery so as to uphold a gift. For example, in Speelman v. Pascal, 10 N.Y.2d 313, 316–317 (N.Y. 1961), Gabriel Pascal, a theater producer, gifted his long-time secretary a share of the profits that would derive from

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his license to produce the musical play and motion picture My Fair Lady. Pascal’s intent was established so unequivocally through a written statement gifting the share of the profits to his secretary that the court upheld the gift even though the musical play and film did not exist at the time of the gift, and thus could not be conventionally delivered. Similar treatment of donor intent is found in Matter of Brady, 228 A.D. 56 (N.Y. App. Div. 1930), a case where a father gave his wife and children all of his stock, but they returned the certificates to him for safekeeping, allegedly negating the required delivery. The appellate court reversed the lower court and upheld the gift, emphasizing that the intent of the donor was evident from the donor’s issuing the stock certificates in the name of his wife and, due to his children’s minority, “to James C. Brady for (the name of the minor child)” and giving the certificates to a business associate for safekeeping. In cases where intent is clear but delivery is lacking, courts have effectuated intent by expanding, to near meaninglessness, what constitutes valid delivery. The doctrine of symbolic delivery allows delivery of an item symbolizing the gift or a writing describing the gift to suffice for delivery. Matter of Cohn, 187 A.D. 382, 397–398 (N.Y. App. Div. 1919); Matter of Valentine, 122 Misc. 486, 489 (N.Y. Sur. Ct. 1924). In addition to symbolic delivery, it is well established in the common law that constructive delivery is an acceptable substitute for physical delivery of a chattel gift or financial instrument. For constructive delivery, the donor must deliver to the donee an object or item that enables access to the gift, such as a key to a cabinet containing the gifted chattel. When courts have found gifts invalid, there is typically ambiguity or inadequate evidence as to whether the donor intended the gift to the donee in conjunction with the lack of delivery. See, e.g., Matter of Szabo, 10 N.Y.2d 94; in re Kelly’s Estate, 285 N.Y. 139 (N.Y. 1941); in re Van Alstyne, 207 N.Y. 298. The gap between doctrine, which recites a three-part test, and judicial practice, which hews to intent, is not surprising in light of the fact that two major purposes served by delivery arise in the limited subset of cases where intent is ambiguous. With respect to the first purpose, delivery serves as evidence of the donor’s intent that reduces the risk of fraudulent claims to allegedly gifted property. There is a higher risk from fraudulent claims when the evidence of intent to make a gift is missing, incomplete, or ambiguous. Physical delivery, but also sufficiently clear and crystallized symbolic or constructive delivery, provides evidence that the donor intended to transfer the property to a particular recipient and counters false claims to gifts. See, e.g., Matter of Cohn, 187 A.D. at 397–398; Matter of Valentine, 122 Misc. at 489. However, a common law delivery requirement is not necessary to close the floodgates to fraud when the donor’s intent to make a gift is clear from the

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evidence. Nor should we assume that rejecting the common law requirement that all gifts be delivered will multiply false claims. Careful judicial consideration of the evidence, a robust test for donor intent, and the clear and convincing evidence standard remain strong preventatives against fraud. A second purpose of the delivery requirement in cases of ambiguous intent is to help courts to distinguish mere suggestions or vague, uncrystallized promises of future gifts from actual donative transfers of property. Property law should not enforce every hint, suggestion, or declaration of generosity, in part, because of the high risk that the donor might not have intended to make a gift in these instances. It is easier to talk about a possible gift than to actually part with the item. Effectuating a transfer of property on the basis of mere suggestion or when the donor intended to reserve the right to change his or her mind also interferes with the donor’s autonomy to honor, or not to honor, particular relationships with gifts. The fact that in some cases delivery may aid a court’s determination of whether an inter vivos gift or an unenforceable future promise occurred does not justify making delivery a universal requirement. As discussed below, despite our disavowal of the delivery requirement, courts may opt to consider facts regarding a gift’s delivery in order to determine intent or resolve other disputed issues. Further support for an intent test without requiring delivery comes from the fact that our precedents analyzing delivery often focus not on delivery itself but whether the donor intended to deliver the gift. The standard for delivery is that the donor intended to deliver and did in fact deliver the gift, at least symbolically or constructively. Speelman, 10 N.Y.2d at 319; Vincent v. Putnam, 248 N.Y. 76, 83 (N.Y. 1929) (quoting Jackson v. 23rd St. Ry. Co., 88 N.Y 520, 526 (N.Y. 1882). The use of intent, both within the donative intent test and within the delivery requirement, indicates again that the gravamen of judicial concern is with intent to make a gift. The rule we adopt today is that an inter vivos gift requires that the donor manifests clear intent to make a present transfer of a gift and that the donee accepts it. Delivery is not an independent requirement and courts should not invalidate a gift solely based on lack of delivery. Failure to deliver the gifted property may occur for a variety of reasons, including human error or forgetfulness. It is perhaps more common when the donor reserves a life estate in the property or when the donor wishes to store or safeguard the gift for a time for the donee. In cases where the evidence clearly establishes the donor’s intent to make an inter vivos gift to the donee, a lack of delivery alone would not invalidate the gift. While we reject delivery as an absolute requirement for a valid inter vivos gift, nothing in this opinion precludes a court from considering delivery as

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additional evidence helpful to elucidate intent where intent is ambiguous. For example, in cases where the evidence of donor intent is conflicting, unclear, or otherwise does not reach the threshold standard of proof, evidence that delivery occurred in a manner consistent with a gift may be helpful, but not required, to establish the donor’s intent. In such cases, courts could consider whether the timing, manner, nature, or other facts attending the delivery support the claim that the donor intended to make a gift. Similarly, courts may choose to consider delivery, along with other evidence, to distinguish inter vivos gifts from unenforceable future promises or to counter potential false claims to gifts. One context where the evidence is likely to establish intent regardless of delivery is when there is a writing from the donor gifting property or a property interest to a donee. Never is intent more clear, and delivery of the gifted property less compelling, than when a written instrument memorializing the donor’s intent to gift a present, effective interest in property is given, or intended to be given, to the donee or placed in safekeeping for the benefit of the donee. See Matter of Valentine, 122 Misc. 486. In cases where documentary evidence of a written donative transfer is available, it is unlikely that delivery will play even the supporting role of helping the court discern donor intent. B. Perfecting Generosity in Relationships An intent test for determining the validity of inter vivos gifts also finds support in the personal context of most gift-giving and property law’s goals of supporting, or at least not interfering with, generosity in intimate and charitable relationships. The majority of cases in our jurisdiction, and in others, arise from gift-giving in intimate relationships. The remainder of the cases involve charitable giving, though these are less common, perhaps because charitable institutions are more sophisticated at meeting the legal formalities necessary to put gifts beyond dispute. The rule that we adopt today, which focuses on the intent of the donor to give a gift to the donee, respects the right to create, express, and maintain personal ties and to extend caring and generosity without unnecessary interference from the law. Gift-giving is an important way that humans express, and strengthen, kinship or friendship ties. In the context of intimate relationships, a gift is not merely a transfer of property without recompense, but also a way of constituting and maintaining bonds with others. Gift-giving frequently strengthens intimate relationships by communicating the donor’s regard for the recipient. Gifts may also prompt reciprocity from the donee to the donor

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in the form of affection, service, or even return gifts. When the donor has died, the gift may shape the memories the donee has of the donor and of the relationship. Human behavior and our deepest moral sentiments reflect the importance of generosity and caring for others. Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development 16–23 (1982). We need not precisely delineate the ethic of caring that permeates giftgiving to discern that gift-giving is frequently a personal act that nurtures relationships and recipients. It makes little sense to allow a formalistic delivery requirement, itself meant primarily to elucidate intent, to frustrate the exercise of caring and generosity within intimate relationships. In cases of gift-giving between non-intimates, gifts may still reflect caring through donations that benefit society or by preserving socially valuable property. For example, lack of formal delivery should not jeopardize a donor’s gift to a donee who was chosen for their proclivity toward stewardship of the gift’s historical, cultural, or other public value. See, e.g., Hebrew Univ. Ass’n v. Nye, 223 A.2d 397, 399–400 (Conn. Super. Ct. 1966) (court reasoned that invalidating gift to a library due to lack of manual delivery or of a formal instrument purporting to pass title would frustrate the desire of the widow of a renowned scholar to have his work in one location). The persistence of a delivery requirement in the case law, at least in doctrine if not in practice, favors formalism at the expense of the kind of interactions and caring that permeate intimate or personal relationships. In the traditional delivery rule, the donor or his or her agent unilaterally delivers the gift to the donee, whom the law charges with responsibility for accepting the gift. These behaviors of autonomous delivery, a clear handing off of a gift, and acceptance do not readily map onto personal relationships characterized by interdependence, caring, and informality. Such a delivery may suggest to the donee that the relationship is more formal and less intimate than previously thought or that the donor does not trust the donee to retrieve the gift at a later time. Delivery is particularly unnatural and distance-creating in relationships when the donor must deliver the gift and then promptly take it back from the donee (e.g., when the gift is of a remainder interest in chattel). Because the requirement of delivery, as well as explicit acceptance, deviates from the norms of personal relationships, courts have had to contort and weaken them with doctrines such as symbolic delivery and the presumption that a donee has accepted any gift of value. See, e.g., Matter of Cohn, 187 A.D. at 397–398; Matter of Valentine, 122 Misc. at 489. We also note that the delivery requirement has a troubling past as a ground for judges to override evidence of donor intent based on judgments about the

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worthiness of recipients or perceived propriety of personal relationships between donors and donees. For example, in Newman v. Bost, 29 S.E. 848 (N.C. 1898), a case outside of our jurisdiction, the court declined to find a valid gift of certain household items from the donor, J.F. Van Pelt, to his livein housekeeper, Julia Newman, despite evidence that he pointed to the items on his death bed and stated that they should be given to her. The court’s fidelity to a strict requirement of physical delivery to Julia may have been due to the court’s view of their relationship. In Vincent, 248 N.Y. at 79–83, a case in our jurisdiction, the court found that an attempted gift failed for lack of delivery where, in the eyes of the court, a widow had subverted her husband’s will by gifting stocks and bonds to her grand-niece that would have otherwise passed to her husband’s heirs upon her death. Despite precedent relaxing the delivery requirement in the case of stocks and bonds or when financial instruments are held by the donor or her agent for safekeeping, the court held that the inter vivos gift to her grand-niece was invalid for lack of delivery. Id. at 82–83. A test for inter vivos gifts based on donor intent and donee acceptance does not eliminate judicial discretion or bias. However, narrowing the focus to donor intent and donee acceptance improves the capacity of appellate courts to review whether bias or error infected the lower court’s determination and to correct it. When warring evidence favors one party on intent and the other on delivery, the reasons for a lower court decision are opaque and the operation of bias or error less clear. It is difficult for an appellate court to resolve the conflict between intent and delivery, and this difficulty may incline the reviewing court to uphold the judgement as not clearly in error. Of course, in the absence of a delivery requirement, it is possible that courts who disapprove of a donee will instead invalidate a gift by holding that the purported gift was an unenforceable future promise. Judges, consistent with their obligations to neutrality and the rule of law, must guard against conscripting the doctrine of unenforceability of promises to make a gift in service of personal biases against donees. In many cases, documentary evidence, oral testimony, or other evidence will foreclose this option by establishing that the donor’s intent was a present transfer of a property interest, not a promise of future action. We hold that intent and acceptance, and not the delivery requirement, determine the validity of an inter vivos gift. Our caselaw has made a slow and steady march toward this conclusion; we complete that march today. The importance of generosity in constituting personal relationships and caring for others affords additional reasons to avoid frustrating the gift-giver’s wishes on the basis of delivery. Accordingly, we reject Kemija’s claim that the gift is

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invalid due to lack of delivery. We turn next to the evidence of Victor’s intent to gift Michael the remainder interest in the Klimt painting and Michael’s acceptance.31

iii The Disputed Gift of the Klimt Painting With delivery resolved, the issues facing us in this appeal are narrower. Did Victor intend to give his son Michael an inter vivos gift of a remainder interest in the painting and did Michael accept? In addition, Kemija contends that remainder interests may not be the subject of a valid inter vivos gift as a matter of law in our jurisdiction. We turn to these issues. A. Intent Both the written evidence of Victor’s letters and the oral statements of Victor and Michael show that Victor intended to give Michael a remainder interest in the Klimt painting. In each of the three letters sent to Michael, Victor stated that he was giving Michael a gift of an interest in the Klimt painting for his twenty-first birthday. In the second letter, Victor also stated that he “want[ed] to use the painting as long as [he] live[s].” A written instrument declaring the transfer of a gift, as Victor accomplished in his letters to Michael, provides the strongest evidence of intent one can muster. See, e.g., Matter of Valentine, 122 Misc. 486 (upholding gifted stock certificates that were never delivered because the donor’s intent to give the stock to his wife and daughter was clearly expressed in a written instrument). A written instrument signals a considered and deliberate donative transfer, rather than an idle comment, future promise, or ill-considered gesture. The fact that Victor expended the effort to write and deliver not one, but three, letters transferring the birthday gift of the remainder interest in the Klimt painting to Michael further evidences Victor’s donative intent. The intimate nature of the relationship between parent and child, and the frequent desire of parents to extend caring to their offspring, underscores the importance of honoring Victor’s stated intent to gift the remainder interest to his son.

31

Although we adopt a standard of intent today, we note that Victor’s gift would also pass muster under the traditional delivery requirement for a valid inter vivos gift. The transfer of the letters effectuated symbolic delivery, as was appropriate for gifting Michael with a remainder interest in a painting. See, e.g., Matter of Cohn, 187 A.D. at 397–398; Speelman, 10 N.Y.2d at 319.

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Victor’s intent to transfer a remainder interest in the painting to Michael gains further support from the evidence of statements made by Victor about the gift. Victor told others about the gift of the painting to Michael on multiple occasions. Gruen, 104 A.D.2d at 178. In a letter to his accountant regarding revisions to his will, Victor reiterated that the Klimt painting had already been given to Michael. Id. at 178–179. Intent to make an inter vivos gift requires not only that Victor wanted to give Michael the painting, but that Victor intended a present transfer of a property interest rather than a future or testamentary gift. See, e.g., Matter of Szabo, 10 N.Y.2d at 98–99. In his second letter to Michael, Victor wrote that he was rewriting his first letter, and asked Michael to return the first letter, in order to “serve the purpose of making it possible for you, once I die, to get this picture without having to pay inheritance taxes on it” (emphasis added). This possibly could mean that Victor intended a future testamentary transfer upon his death rather than an inter vivos gift. However, in that same letter, Victor clarified that he wanted to use, not own, the painting for as long as he lived and noted the earlier “gift of the painting by Klimt” to Michael. Viewing the second letter in its totality, and alongside the other two letters stating that Victor was gifting an interest in the painting to Michael and that Victor wanted to use the painting for the duration of his lifetime, it is evident that Victor intended the phrase “to get this picture” to mean that, upon Victor’s death, Michael would gain the possessory rights. Consistent with this interpretation, Victor did not dispose of or reference the Klimt painting in his will. Gruen, 104 A.D.2d at 178; see also in re Van Alstyne, 207 N.Y. at 307 (considering as evidence of intent the fact that the decedent’s will did not mention prior gifts as would be expected in light of the effect of prior gifts on the estate). It is not surprising that the language in an inter vivos gift reserving a life estate and gifting a remainder interest would refer to the transfer of some of the property rights to the painting in the future. The sine qua non of a life estate is that use and possessory rights transfer in the future to the holder of the remainder upon the life estate holder’s death. For us to hold that such a description is a mere promise or a testamentary gift would effectively nullify the life estate and remainder, at least with respect to gifts. Our jurisdiction has long recognized the life estate and remainder as property forms and upheld the transfer of these interests as gifts. See, e.g., in re Brandreth, 169 N.Y. 437, 442 (N.Y. 1902); Matter of Valentine, 122 Misc. at 489. We see no reason to unsettle that today. Kemija also suggests that Michael cannot establish that Victor had the requisite donative intent because Victor sought to minimize his estate taxes by purporting to make an inter vivos gift of the painting to Michael. It is our

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view that Victor’s aim to minimize estate taxes supports his intent to make a present gift of the remainder interest to Michael, one Victor undertook with the tax-planning advice of his accountant and attorney. Efforts to reduce the tax consequences of one’s gifts and other financial activities within the confines of the tax code are lawful and, accordingly, commonplace among affluent donors (in contrast, tax evasion and tax fraud are not lawful). If the intent of a donor of a gift was to commit tax fraud, and the purported gift was merely a vehicle to that end, then the donor would lack the requisite donative intent for a valid inter vivos gift. In this case, however, we find that Victor did not intend solely to minimize taxes but also to gift to Michael a remainder interest in the painting. Kemija also contends that Victor’s failure to file a gift tax return indicates that Victor did not intend to make a present donative transfer of an interest in the painting. Following the gift, Victor did not file a gift tax return for the Klimt, apparently on the advice of his accountant. We find that the failure to file a gift tax return does not outweigh Victor’s multiple written and oral declarations of his intent to gift Michael the remainder interest in the Klimt. The evidence available to this court indicates that Victor’s failure to file a gift tax return was the result of poor advice, not a negation of his intent to gift the painting to Michael. Another fact that raises questions about Victor’s intent to make an inter vivos gift of a remainder interest in the painting to Michael is that, sixteen years after Victor’s letters regarding the painting to Michael, Victor completed export forms listing himself as the owner of the Klimt painting. Our precedents make clear that intent is judged at the time of the gift. McCarthy v. Pieret, 281 N.Y. 407, 409 (N.Y. 1939). However, we might consider the export paperwork as evidence that, when Victor wrote to Michael in 1963, Victor did not believe he was gifting an interest in the painting to Michael and the export form many years later reflects that long-held understanding. Had Victor’s statements in the export forms occurred in the absence of other written or oral evidence of intent, they would have cast doubt upon Victor’s donative intent. However, in this case, the export form statements occurred sixteen years after the written transfer of the remainder interest in the Klimt to Michael, as well as after multiple statements by Victor that he had given the Klimt to Michael. It is possible that the statements on the export paperwork reflected Victor’s desire to follow his accountant’s instructions, his belief that it was prudent to avoid the complexity of disclosing a life estate interest to customs during international travel, or even a lapse of memory. None of these would negate a valid inter vivos gift given to Michael many years prior. Accordingly, we find that the export forms, viewed within the totality of the

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evidence and with the long lapse of time, fail to refute the evidence that Victor intended to make an inter vivos gift of the remainder interest in the painting to Michael in 1963. We find that Michael has met his burden of establishing donative intent by clear and convincing evidence. See, e.g., Kelly, 285 N.Y. at 150; Matter of Abramowitz, 38 A.D.2d 387, 389–390 (N.Y. App. Div. 1972). This standard does not require that every word uttered or deed performed by the donor unambiguously support donative intent. Rather, courts must determine whether or not the weight of the evidence, viewed as a whole, clearly and convincingly establishes the donor’s intention to give a gift. The three letters from Victor to Michael creating a written transfer of a gift, Victor’s oral statements that he had gifted an interest in the painting to Michael, and Victor’s letter to his accountant noting his gift to his son establish that Victor intended an inter vivos gift to Michael of the remainder interest in the Klimt painting. B. Acceptance The common law of gifts presumes acceptance by the donee for gifts of value, such as the multi-million dollar painting that is the subject of this litigation. In this case, there is also direct evidence that Michael accepted the gift. On multiple occasions, Michael told friends and family how pleased he was with his father’s gift of the Klimt to him. Gruen v. Gruen, 104 A.2d at 179. Michael showed his father’s gift letters to others. Id. He also kept the gift letters for over seventeen years, an action that seems unlikely if he had refused the painting. Kemija has submitted evidence showing that approximately ten years after the gift, Michael failed to list his interest in the Klimt as a marital asset during his divorce. Weighing this omission against the presumption of acceptance for gifts of value and the testimony of Michael’s statements of delight about the gift from his father, we find that the divorce filings reflect an oversight or an intent to minimize the marital property to be divided upon divorce, rather than an intent to reject Victor’s gift. C. The Validity of Gifts of Life Estates We turn last to Kemija’s claim that a donor cannot, as a matter of property law, make a gift of chattel while retaining a life estate. Contrary to Kemija’s claims, donors may retain life estates and create other divisions of property rights in chattel so long as there is an effective, present transfer of a property interest. See Matter of Szabo, 10 N.Y.2d at 99; McCarthy, 281 N.Y. at 409; in re

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Brandreth, 169 N.Y. at 442. As the court stated in in re Sussman’s Estate, 125 N. Y.S.2d 584, 591 (Sur. Ct. 1953), “the test . . . is whether at the time of delivery of the property the donor intends irrevocably to transfer a present or a future interest to the donee, or whether he intends to make the transfer of title operative at some future time.” Donors may transfer remainder interests, as Victor did, so long as there is evidence that the gift was a present transfer and not a mere statement of intent to give at some point in the future. Matter of Szabo, 10 N.Y.2d at 98; Vincent v. Putnam, 248 N.Y. at 83; Young v. Young, 80 N.Y. 422, 434–435 (N.Y. 1880). There is no distinction between chattel versus non-chattel evident in our case law on gifts and we decline to adopt such a distinction today. Only two cases in our history have suggested that a gift is invalid based on the reservation of a life estate. In Young, 80 N.Y. at 440, a case decided in 1880, the court invalidated an oral gift of a remainder interest in bonds because the donor did not transfer the gift as required by law. The Young court noted that the gift might have been valid despite its division into a life estate and remainder interest if there had been a clear written transfer, as exists in the present case. The court stated that it was unnecessary to answer the question of whether a donor may gift a remainder interest in chattel while retaining a life estate because there was no present transfer as required for a valid gift. Id. The other case, in re Ramsey’s Estate, 98 N.Y.S.2d 918 (Sur. Ct. 1950), appears to be an anomaly, as the appellate division of the Supreme Court observed. Gruen, 104 A.D.2d at 177. In re Ramsey’s Estate allowed the reservation of a life estate in real property but not in personal property. No case has followed Ramsey and a number of cases have allowed gifts of remainder interests in chattel. See, e.g., in re Brandreth, 169 N.Y. at 442; Matter of Valentine, 122 Misc. at 489. Thus, we agree with the overwhelming majority of courts in our jurisdiction in holding that the reservation by a donor of a life estate or other possessory rights does not in itself invalidate a gift of chattel. In any event, under the intent-based standard we adopt today, which looks to delivery only as evidence of intent and not as an independent requirement, quibbling about life estates and artificial distinctions between chattel and real property drops from judicial analysis. Our holding today has the additional benefit of ridding our case law of vestiges of precedent that emboldened judges to circumvent donor intent in cases of gifts of remainder interests or other interests constituting less than the entirety of the property rights. Affirmed.

part vi

Tenancy in Common, Joint Tenancy, and Tenancy by the Entirety

12 Commentary on Sawada v. Endo susan etta keller

Sawada v. Endo1 has become a foundational case for feminist jurisprudence despite facts that, at first blush, appear to have nothing to do with matters of women’s equality. An automobile-on-pedestrian personal injury case in Hawaii, the dispute veered into the terrain of gender and marital property law only when the tortfeasor and his wife sought to shield their sole asset – the family home co-owned in tenancy by the entirety – from the claims of the tort victims, conveying it to their sons prior to judgment. That purported transfer provides the occasion for considering the modern contours of the estate owned by the couple. This dispute over whether the conveyance was made to defraud the tort victim creditors still does not directly implicate the interests of the actual woman who co-owned the estate in question. She had no role in the accident and then died prior to the resolution of the case. The specific issue as presented on appeal is entirely about the nature of the husband’s interest. However, this dispute, otherwise unremarkable, took place just at a time when all other states had resolved the question of what to make of the tenancy by the entirety in the modern era.2 As the last state to consider the question, the Hawaii Supreme Court was poised to review the tableau of differing responses to modern imperatives for equality, and to offer, through a majority and dissenting opinion, two classic examples of how modern gender equality might be imagined against the backdrop of a decidedly unequal history of marital property.

1 2

Sawada v. Endo, 561 P.2d 1291 (Haw. 1977). Since the Sawada decision, some states have revised their laws. See Patricia A. Cain, Two Sisters vs. A Father and Two Sons: The Story of Sawada v. Endo, in Property Stories 99, 110 n.19 (Gerald Korngold & Andrew P. Morriss 2d ed. 2009).

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background From the time of Blackstone through to the middle of the nineteenth century, the tenancy by the entirety fit comfortably within a regime of deep inequality within marriage. The law of coverture mandated that the husband controlled his wife’s property; upon marriage, she was considered civilly dead, disabled from managing or conveying interests in property or from entering into any contract. The rationale was that the marriage united the couple into a single entity, of which the husband was the sole representative.3 The tenancy by the entirety was a form of asymmetrical co-ownership that fit well within this regime. Against the backdrop of coverture, it was, if anything, somewhat prowoman despite its explicit inequalities, offering a level of protection to the wife from the vulnerability she otherwise faced as a result of her husband’s unlimited power with respect to all other property in which the couple was invested. Whereas the husband could leverage, alienate, or encumber all other property interests owned by either spouse, with the risk that the wife could be left with nothing as a result, the tenancy by the entirety guaranteed that a surviving wife had a right of survivorship that could not be defeated. While the husband under the traditional tenancy by the entirety had the sole power to manage the estate while they both lived, he could encumber only his own rights to the property, including his right to survivorship, but not hers.4 Because the husband could alienate many of his interests in the property, it offered him significant freedom, though not to the same extent as with property owned in other forms. He could leverage his interests and creditors could attach them. Yet, that freedom was tempered by the undefeatable survivorship interest of the wife, which offered her a modicum of protection not otherwise available under coverture. That particular balance of freedom and protection was able to be achieved only in a context in which the interests of the parties were substantially asymmetrical. Efforts to maintain both qualities of the estate – the freedom and the protection – were later stymied when courts operated under a mandate of equality.5 Married Women’s Property Acts were enacted in all states starting in the middle of the nineteenth century. Primarily motivated by an interest in protecting the separate property a wife brought into the marriage from the

3 4 5

Id. at 104–105. Oval A. Phipps, Tenancy by the Entireties, 25 Tem. L.Q. 24, 25–26 (1951). See Susan Etta Keller, The Rhetoric of Marriage, Achievement, and Power: An Analysis of Judicial Opinions Considering the Treatment of Professional Degrees as Marital Property, 21 Vt. L. Rev. 409, 450–451 (1996).

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debts of her husband – a real risk under the rules of coverture – these acts had the effect of introducing formal equality into the law of marital property. With some exceptions, wives like husbands could, after the passage of these acts, contract, convey, encumber, and alienate their property.6 While these acts did little to change the lived power dynamic within marriage at the time they were enacted,7 they have served over the ensuing decades as a basis for adjusting property interests like the tenancy by the entirety in the name of equal rights. In most states, the tenancy by the entirety eventually could not survive the cognitive dissonance created when courts or legislatures tried to reconcile an asymmetrical property interest within a new regime of symmetrical property rights. In those states, it was abolished.8 At the time of the Sawada decision, a few states had left the estate in its original, unequal form, reasoning that the couple had the power to choose an unequal estate if they wished.9 In the remaining states, courts struggled to reconcile its unequal features under the mandate of equality. With the combined features of freedom and protection afforded only by way of an imbalanced arrangement, courts seeking to balance the estate chose one of two primary paths: either they provided mirror-image freedom to both parties, thus reducing the protection the estate had previously offered the wife; or they provided mirror-image protection, providing both spouses the protection the wife previously had enjoyed while disabling for both the freedom the husband had wielded under the old estate. Arising in the context of the automobile accident, the dispute in Sawada gives rise to a modern reconsideration of the tenancy by the entirety because of the attempted conveyance by the tortfeasor and his wife to their adult sons while the claim against the husband was pending. As judgment creditors, the injured plaintiffs sought to set aside the conveyance, alleging that it was a fraudulent attempt to evade the property’s use in satisfaction of the claim.10 If the defendant, the husband, did have an alienable interest – for example, his right of survivorship – then that interest could have been attached. If his right of survivorship were thus attachable, and if the conveyance made by the 6

7

8

9

10

Bernie D. Jones, Revisiting the Married Women’s Property Acts: Recapturing Protection in the Face of Equality, 22 J. Gender, Soc. Pol’y & L. 91, 99 (2013). See Richard H. Chused, Married Women’s Property Law: 1800–1850, 71 Geo. L.J. 1359, 1425 (1983). At the time of the Sawada decision, only twenty-two jurisdictions, including the District of Columbia, still recognized the tenancy by the entirety in some form. See Sawada v. Endo, 561 P. 2d 1291, 1294–1295 (Haw. 1977) (reviewing the approaches of twenty-one other states). See D’Ercole v. D’Ercole, 407 F. Supp. 1377, 1382 (D. Mass. 1976). But see Cain, supra note 2 (explaining that all three of the states so identified in Sawada now recognize a form of the estate that equalizes the roles of the spouses). Sawada, 561 P.2d at 1294.

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couple to their sons were set aside, the plaintiff judgment creditors would have been able to gain satisfaction from that attachment because he in fact was the survivor. However, if the husband had no independent property interest in the estate that could have been attached by creditors, then the conveyance was neither necessary to evade the creditors nor fraudulent. By providing a concise primer on the history of the tenancy by the entirety, and by describing the array of other states’ approaches to the estate, the original majority opinion sets itself up for its modicum of fame. The majority and dissent in the original opinion each took one of the two dominant views for rendering the modern tenancy by the entirety an estate of equal partners. While the dissent favors providing freedom of alienability to both spouses, subject to the right of survivorship of the other spouse,11 the majority opts to extend to both parties the protection previously afforded the wife.12 That holding means that neither spouse had the power to alienate any part of his or her interest while they both lived; the couple could only convey the estate, as they had to their sons, by acting in concert. Both opinions in the original case purport to honor the mandate of equality they locate in Hawaii’s Married Women’s Property Act. Each also insists that its opinion has identified and preserved the key feature of the tenancy by the entirety. The majority identifies as the key feature the protection afforded the wife, and now the husband as well, from the acts of alienability of the other spouse.13 The dissent identifies as a key feature the freedom afforded to the husband to alienate as he wishes his interests in the estate, subject to his spouse’s right of survivorship; the dissent would simply extend this feature to both spouses in the name of equality.14 Of course, because the original estate achieved both features – protection and freedom – only by maintaining a state of inequality between the partners, neither opinion is able to convincingly assert that its view both preserves the tenancy in its original form and also imbues it with equality.

feminist judgment Neither the majority nor the dissenting opinion in Sawada is completely satisfying from the feminist perspective of 1977. The majority opinion uses 11 12 13

14

Id. at 1298 (Kidwell, J., dissenting). Id. at 1295 (majority opinion). See id. at 1296 (describing the indivisibility and the protection it affords as “an indispensable feature”). See id. at 1298 (Kidwell, J., dissenting).

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language of protection and family unity that might go against the grain of formal equality that was ascendant in that era. During this period, cases removing structures that treated men and women differently were thought to pave the way to equality between the sexes.15 Nor from this perspective would it be at all tempting to leave the tenancy preserved in its historic amber of gender inequality, as three of the states cited by the court had chosen to do.16 But during this same period, marriage was also being identified as a locus of women’s disempowerment. Because of the relatively few women participating in the paid labor force, equality of formal structures was increasingly seen as inadequate to provide women with real power within marriage.17 The dissent’s view, chiding the majority and others of similar opinion for bending to stereotypes of women’s inability to handle money, might seem like the feminist perspective, aligning with the approach of feminist litigators seeking to erase disabling stereotypes. However, the dissent fails to recognize the real structures of disempowerment affecting women in marriage, structures both within the marriage and in the larger economy that might prevent women’s effective exercise of this freedom. Professor Donna Litman, writing as Justice Litman, steps into the fray, bringing a perspective that focuses on the lived experience of women of the era. Litman’s opinion, which arrives at the same holding as the original majority opinion, brings a perspective that carefully situates the dispute in the legislative and historical context, informed by the feminist perspectives of the day. In one respect, Litman invokes the themes of formal equality in emphasizing the symmetrical nature of the protections each spouse will enjoy under a holding that prevents either one from alienating any of his or her interests in the estate. Indeed, unlike either original opinion, she invokes the 1972 Hawaii Equal Rights Amendment as a mandate for undoing the inequalities of the original form of the tenancy by the entirety. This important additional reference signals that she, like the 1970s-era feminists pursuing equal treatment, views symmetry as an important component of equality. In a similar vein, she also emphasizes the language of equality, describing the tenancy as a “unity of equals.” In an additional respect, Litman relies carefully both on legislative history and on then-current economic conditions in considering which form of

15

16 17

See, e.g., Frontiero v. Richardson, 411 U.S. 677 (1973); see generally Mary Joe Frug, Sexual Equality and Sexual Difference in American Law, 26 New Eng. L. Rev. 665, 667 (1992). See supra note 9. See Frug, supra note 15, at 669.

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equality to adopt, arriving at an approach most likely to provide real benefits to married women. By carefully analyzing the historical antecedents and contemporary justifications for the 1888 adoption of the Married Women’s Act in Hawaii, Litman demonstrates that an important theme in the development of this area of law was the protection of the woman from her husband’s debts. Her opinion suggests that this emphasis should inform modern understandings of the tenancy by the entirety. By holding that neither spouse can unilaterally alienate an interest in the property, and thus insulating the estate of tenancy by the entirety from the creditors of either spouse, Litman maintains this protective feature into the modern era. Although under the peculiar facts of this case the creditor judgment arose through a tort claim, insulating the tenancy with this holding serves, through precedent, to ensure that wives’ property interests are not encumbered by unwise financial investments or other debts undertaken by the husband. Her choice to ground the decision in a legislative history that emphasizes the importance of protecting women from debts corresponds with more recent efforts by feminist legal theorists to recognize this underappreciated feature of the development of Married Women’s Property Acts.18 The opinion’s holding and its focus on women’s economic vulnerabilities is further grounded in a recognition of the actual relative financial power of most husbands and wives in 1977. Litman cites statistics that reveal the limited participation in the paid labor force of women during the era in which the opinion is situated. By contrast, an approach like the original dissent’s, favoring formal equality, may not in fact produce equal value to both spouses when one is in the paid labor force and the other’s unpaid labor offers no financial protection. By focusing on what a legal decision will actually mean for a woman’s real-life experience, Litman rejects the anti-stereotyping approach of the dissenting opinion in favor of an analysis that presages the insights of anti-subordination feminism, an approach more fully developed in the decade following the Sawada decision, which addresses structural inequality through legal redress. One of the more interesting ways that Litman’s opinion differs from that of the original opinions is in its deployment of the language of choice. Several times, Litman describes the estate and the attendant protections it affords the spouses as one that the spouses have a right to “choose”: “Our decision permits married women and married men the right to choose to own property . . . as an

18

See Jones, supra note 6.

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estate by entirety . . . and to be protected.” Later, she refers to “spouses who choose” the estate, emphasizing it as one option among many. This language of choice, centering the wife as an equal agent in the choice of estate, stands in contrast to both the majority and dissenting opinions in the original decision, neither of which treats either spouse in this agentic fashion. Instead, when speaking of a choice, the majority and the dissent both talk about choices they as judges make,19 not the owners of the estate. By contrast, in her tone, Litman situates not the judge as the primary actor, but instead the co-owning woman for whose benefit the precedent will operate. Language of choice has a meaningful history both in feminist legal theory and in adjudication on tenancy by the entirety. In the decades after the Sawada opinion, courts have often focused on choices women make – with respect to employment, for example – as justifying the status quo. Some feminist legal theorists have sought to unpack this focus on choice and recognize, instead, that women often make choices under conditions of inequality and limited options that are not necessarily empowering.20 Such a critique could be leveled against a series of Massachusetts decisions that upheld the traditional and unequal form of tenancy by the entirety one year before Sawada was decided. In D’Ercole, the court approved the traditional tenancy in part on the basis of the woman’s choice to enter into it as one among many options she had, suggesting that the unequal and disempowering aspects of the estate are justified by the free choice with which they were assumed.21 The use of this language of choice in Litman’s opinion seems different, however. Here, the husband and wife are choosing an estate that offers arguably empowering protective features for the woman and features that also limit the freedom of both parties. While the couple has the freedom to choose this estate, once in the estate, their choices, ironically, are substantially limited in ways that Litman suggests help equalize the relationship. By suggesting that women actively participate in a choice that ultimately enhances their economic position, the language may thus connect with other approaches to

19 20

21

See Sawada v. Endo, 561 P. 2d 1291, 1297 (Haw. 1977); id. at 1298 (Kidwell, J., dissenting). See, e.g., Kathryn Abrams, From Autonomy to Agency: Feminist Perspectives on Self-Direction, 40 Wm. & Mary L. Rev. 805, 819 (1999); Vicki Schultz, Telling Stories about Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument, 103 Harv. L. Rev. 1749 (1990). D’Ercole v. D’Ercole, 407 F. Supp. 1377, 1382 (D. Mass. 1976); see also West v. First Agric. Bank, 419 N.E.2d 262, 269 (Mass. 1981) (also invoking free choice as a justification for maintaining the unequal arrangement of the original tenancy by the entireties estate).

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feminist legal theory, developed decades later, that center women’s agency and choice as a potential source for empowerment.22 Writing in 1977, the authors of the Sawada opinion were unlikely to have anticipated the availability of the rights associated with marital property to same-sex couples. With Hawaii same-sex couples having access to the tenancy by the entirety since 1997,23 it is pertinent to consider what impact the approach chosen by Litman would have on the current interests of such couples, who have had the right to marry in Hawaii since 2013.24 For an estate that had its origins in a system of presumed heterosexuality and deep inequality, the modern version, stripped of its gendered asymmetry, provides an option for all couples seeking the debt-protection features the majority version, as well as Litman’s, offers, without regard to the gender of the parties. In that respect, Litman has chosen a vehicle for the estate that provides equality in a manner that will continue to serve the needs of the present. By focusing on legislative history, equality, economic empowerment, and choice, Litman crafts an opinion that locates in the historical record a valuable source of protection for women. While providing this protection, she recognizes the mandate for equality, deploying language of formal equality, and structuring the estate to provide symmetrical rights and disabilities to both parties. Although the decision, like the Sawada majority, may be criticized for a lost opportunity to empower women with greater financial control of their interests, the debt protection feature it foregrounds addresses real economic vulnerabilities faced by the women who co-own these estates. The emphasis Litman places on choice may not fully square with the economic realities she also identifies or with existing power dynamics within relationships. However, by both elevating the couple’s choice through her use of language and at the same time constraining that choice in a manner that avoids the potential for economic exploitation within the relationship, Litman’s opinion offers a more empowering and feminist approach to the estate than either of the original Sawada opinions.

22

23

24

See, e.g., Kathryn Abrams, Sex Wars Redux: Agency and Coercion in Feminist Legal Theory, 95 Col. L. Rev. 304 (1995) (discussing and critiquing these positions). Anthony Michael Kreis, Stages of Constitutional Grief: Democratic Constitutionalism and the Marriage Revolution, 20 U. Pa. J. Const. L. 873, 910 (2018); see Haw Rev. Stat. §572-1.7(f). S.B. 1, 27th Leg., Spec. Sess (Haw. 2013).

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SAWADA V. ENDO, 561 P.2D 1291 (HAW. 1977)

justice donna litman delivered the opinion of the court In this appeal, we examine the protection that tenancy by entirety25 ownership provides spouses from levy and execution by the creditors of only one spouse. We do so to determine if a conveyance made by both Ume and Kokichi Endo of the home they owned as tenancy by entirety could be set aside on the ground that it was fraudulent as to Masako Sawada and Helen Sawada, judgment creditors of Kokichi Endo but not of Ume Endo. We hold that neither spouse has a separate interest in property owned as a tenancy by the entirety that is subject to levy and execution by a judgment creditor of only one spouse. We do so based on the special nature of entirety ownership and the rights and obligations of married men and women, including Kokichi Endo and Ume Endo. In 1973, the trial court, in the First Circuit, dismissed the Sawadas’ complaint in aid of execution on their judgments, refusing to set aside a conveyance of tenancy by entirety property as fraudulent as to the husband’s separate creditors. The Sawadas appealed. The trial court concluded, as a matter of law, that title to the property was held by Kokichi Endo, the defendant, and his wife “in tenancy by the entireties” and that “[a]ccordingly, the conveyance to the defendant grantees [Ume and Kokichi Endo’s sons] was not fraudulent as against the claims of creditors, including plaintiffs [the Sawadas], on the grounds that such conveyance was made to hinder, delay and defeat the rights of plaintiffs.” We affirm the trial court’s dismissal of the Sawadas’ complaint in aid of execution on their judgments. The essential question in this case is whether either spouse has any separate interest in entirety property that is subject to levy and execution by one spouse’s creditors while both are alive. Although this question is one of first impression in the State of Hawaii, we do not write on a blank slate. To answer this question, we consider the development of Hawaii law regarding spousal ownership by entirety, the separate rights and obligations of married men and women, and the role of common law as authority.

25

The terms “estate by entirety,” “tenancy by the entirety,” and “tenancy by the entireties” occur in different laws, statutes, cases, and documents during times when Hawaii was a monarchy, provisional government, republic, territory, and state, and are used interchangeably.

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i Summary of Facts Kokichi and Ume Endo, husband and wife, acquired their home in Wahiawa, Oahu, Hawaii, as tenants by the entirety on September 15, 1939. After twentynine years of ownership, Kokichi and Ume Endo, as husband and wife, gratuitously transferred their home to their adult sons, Samuel Endo and Toru Endo, as joint tenants with right of survivorship. The transfer was made on July 26, 1969, when Kokichi Endo was age 82 and Ume Endo was age 75, and the Honorable Yasutaka Fukushima of the First Circuit noted that it would be an expected time that “they start disposing of their interests that they have.” Toru Endo recorded the deed in the Bureau of Conveyances on December 17, 1969. Ume Endo died approximately eighteen months later, on January 29, 1971, survived by her husband. On November 30, 1968, Kokichi Endo, while operating an automobile, struck and injured Helen Sawada and Masako Sawada. On October 29, 1969, Kokichi Endo was served with Helen Sawada’s complaint and summons (Civil No. 28234) and Masako Sawada’s complaint and summons (Civil No. 28766). After a consolidated trial, two judgments were entered against Kokichi Endo individually on January 19, 1971. The first awarded Helen Sawada the amount of $8,846.46, and the second awarded Masako Sawada the amount of $16,199.28. On March 17, 1971, execution was issued in due form out of the Circuit Court on both Sawada judgments against the property of Kokichi Endo, directed to the Sheriff of the City and County of Honolulu, State of Hawaii, where Kokichi Endo resided. Execution was subsequently returned unsatisfied. The Sawadas filed a complaint (Civil No. 34936) as an action in aid of execution of a judgment to set aside a conveyance of real property on the ground that such conveyance was made to hinder, delay, and defeat their right to enforce their claim for damages for personal injury. After a hearing on June 15, 1973, the trial court entered its Findings of Fact and Conclusions of Law refusing to set aside and annul the 1969 conveyance and refusing to restrain Samuel and Toru Endo from selling, disposing of, or encumbering the home. The Sawadas seek to set aside the 1969 conveyance, so that Ume and Kokichi Endo would be treated as having owned their home as a tenancy by the entirety on January 19, 1971 when the judgments were entered and also on January 29, 1971, when Ume Endo died. This would result in ownership of the whole of the property remaining in Kokichi Endo after his wife’s death, with the home then being subject to execution on the Sawadas’ 1971 judgments to the extent not exempt.

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Ume and Kokichi Endo transferred all their interest in their home rather than a remainder interest. They did not retain life interests; however, they did continue to reside on the property. The Sawadas have not claimed that Kokichi Endo had a legal or equitable life estate upon which execution of their judgment could be made; and Kokichi Endo has had no occasion to claim an exemption from creditors for any interest in the home. The accident that led to this case occurred at a time when Kokichi Endo did not, and was not required to, carry liability insurance. Further, when the judgments were entered and execution issued, the homestead exemption was only $2,750. The increase in the homestead exemption to $20,000 in 1972 and to $30,000 in 1976 would not have applied to the home if still owned by Kokichi Endo because the Sawadas’ right to execution on their judgments arose prior to the effective dates of these increases. See, e.g., Haw. Rev. Stat. (HRS) §§651–665 (eff. June 3, 1972), ch. 651, Subpart B (eff. May 27, 1976).

ii Equality of Rights The Bill of Rights of the Constitution of Hawaii was amended in 1972 to include a section on equality of rights for women and men. Hawaii also was the first state to ratify the Equal Rights Amendment to the Constitution of the United States in 1972;26 however, it is provident that Hawaii chose not to delay this protection for women and men until ratification by three-fourths of the states (which has not happened as of this date). Section 21 of Article I of the Hawaii Constitution provides, Equality of rights under the law shall not be denied or abridged by the State on account of sex. The legislature shall have the power to enforce, by appropriate legislation, the provisions of this section.

This amendment was proposed by the legislature on March 29, 1972, and approved by the electorate on November 7, 1972, with 86.64 percent voting in favor. The legislative history provides, Your Committee believes all persons are free by nature and are equal in their inherent and inalienable rights . . .. These rights cannot endure unless women along with men recognize and possess their corresponding

26

On March 22, 1972, the U.S. Congress proposed, and Hawaii was the first state to ratify, the Equal Rights Amendment to the U.S. Constitution.

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obligations, responsibilities, and privileges equally. It is the affirmative duty of the people through their elected representative to ensure that no person shall be discriminated for so long as the precept of our government, the equality of all people, outweighs the purpose of distinguishing that person by class.

Standing Comm. Rep. No. 394-72 (Judiciary) on S.B. No. 1408-72. Our decision today ensures that married women and married men who choose to own property as an estate by entirety, by manifesting that intent, are protected against voluntary and involuntary alienation by either of them without the other’s consent. We acknowledge their right to do so and interpret tenancy by the entirety type of ownership based on Hawaiian law, judicial precedent, and usage in a manner that does not result in this State, through this Court, denying or abridging the equality of their rights on account of sex.

iii Common Law in Hawaii In determining the rights of spouses who choose to own an estate by entirety, we consider the Hawaii Constitution and laws as well as Hawaiian judicial precedent and usage to see if the common law of England, and its application in other states, applies. Section 1-1 of the Hawaii Revised Statutes, provides, Common law of the State; exceptions. The common law of England, as ascertained by English and American decisions, is hereby declared to be the common law of the State of Hawaii in all cases, except as otherwise expressly provided by the Constitution or laws of the United States, or by the laws of the State of Hawaii, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage, . . .

This statute was in effect when Ume and Kokichi Endo acquired their home in 1939 and remains in effect today. This Court has construed this section to mean, Prior to 1892, the courts of Hawaii rejected the common law rules in certain aspects, thus establishing Hawaii’s own judicial precedent . . .. It is apparent that when the legislature adopted Act 57 in 1892 (now §1-1, Revised Laws of Hawai`i (RLH) (1955)), it was cognizant of the fact that before such enactment, the courts of Hawaii had not adopted the common law of England in toto and consequently made certain qualifications. Accordingly, it was deemed necessary to provide for exceptions.

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De Freitas v. Coke, 380 P.2d 762, 765–766 (Haw. 1963) (holding that “the rejection of the common law rule was not limited to deeds executed before said statute”). When the common law applies, it consists of fundamental principles and not set rules, and courts in the face of changing conditions are not chained to ancient formulae but may enforce conditions deemed to have been wrought in the common law itself by force of changing conditions, and that in adopting the common law we have adopted its fundamental principles and modes of reasoning and the substance of its rules as illustrated by the reason on which they are based rather than the mere words in which they are expressed . . .. Under these provisions the principles and applications may be ascertained by reference to recent decisions of American as well as English cases and when ascertained, they control.

Vierra v. Campbell, 40 Haw. 86, 88–89 (1953) (holding “the statute of 13th Elizabeth relating to conveyances made in fraud of creditors is part of the common law of this Territory”) (citations omitted). In determining Hawaiian “judicial precedent” and “usage,” we also must consider cases prior to 1892. In 1884, Hawaii law provided, The several courts may cite and adopt the reasonings and principles of the . . . common law of other countries, and also of the Roman or civil law, so far as the same may be founded in justice, and not in conflict with the laws and customs of this Kingdom.

Act of Judiciary Department, Ch. XII, §823 (1884); Civ. Code Haw., §14 (1884). In Awa v. Horner, this Court, before deciding whether to adopt a provision of the English common law, first determined whether “the principle to be adopted is ‘founded in justice, and not in conflict with the laws and customs of this Kingdom’.” 4 Haw. 543, 544 (Haw. Kingdom 1886). In construing a conveyance to two unrelated individuals as a tenancy in common rather than a joint tenancy, as would have resulted under English common law, this Court stated, “In this Kingdom, as in the States, there are no feudal tenures existing, requiring services from the land-holder to the lord paramount. The reason, therefore, for the rule has no existence here.” Id. This Court further stated, “We believe it to be true also that such conveyances have been generally understood and treated in this Kingdom as creating estates of tenancies in common, and we ought to hold for the protection and peace of land titles that such is the law of the country.” Id. The issue of whether any of the English common law vestiges of a husband’s rights over his wife’s property apply to a modern estate by the entirety in Hawaii is relevant to this case. See, e.g., Oval A. Phipps, Tenancy by Entireties,

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25 Temple L.Q. 24, 28 (1951), which considered the issue of “whether the husband’s powers and the wife’s disabilities, now abrogated [by Married Women’s Acts], had been incidents of the cotenancy status or merely attributes of the marital status.” Two of the common law incidents of tenancy by the entireties were the husband’s exclusive “privilege and power to occupy the principal and to consume the entire of the entire asset” and the husband’s “benefit alone of all the assets for use as a basis of credit, his possessory and his contingent survivorship interests being subject to attachment for his debts while not for those of the wife.” Id. at 25.

iv Property and Rights of Married Women and Men To understand the import of entirety ownership, we review the property rights and obligations of men and women, before and after the adoption of “An Act Relating to the Property and Rights of Married Women.” This Act was adopted on June 23, 1888, during Hawaii’s monarchy period, and often is referred to as the “Married Woman’s Act” (the “MWA”). The MWA addressed not only the property and rights of married women, but also the liabilities and related rights of married men and married women. We also consider the effect of a significant number of amendments to the MWA. The MWA not only is of historic note, but also continues to have viability today. A. Pre-Married Woman’s Act (1884) Prior to the MWA, the Compiled Laws of the Hawaiian Islands of 1884 reflected the rights and liabilities of married men and women. These laws affected a wife’s ability to control and use her property and to enter into contracts, transferring some of her powers over her property to, and imposing certain liabilities on, her husband. Under the 1884 law, a wife residing in the Kingdom was “deemed for all civil purposes, to be merged in her husband, and civilly dead,” with very limited exceptions based on consent or contract. Comp. L. Haw. Islands, §1287 (1884). Without her husband’s consent, a wife lacked “the legal power to make contracts, or to alienate or dispose of property,” including the power to gift, lease, mortgage, or sell her real property, unless they had agreed otherwise prior to their marriage. Id. §§1286, 1287. Her husband’s consent, however, “vitalizes her and gives her the power to contract.” Holt v. Kaaukai, 11 Haw. 497, 499 (Haw. Rep. 1898). The husband and wife each had certain control as to the use and disposition of her real property (property “of a fixed and immovable nature”), which is the type of

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property at issue here. Her husband could not “rent or otherwise dispose of” her real property without her “written consent,” and then only for a term that did not exceed his natural life. Id. Moreover, “unless otherwise stipulated by express contract,” her husband personally had “the custody, use and usufruct, rents, issues and profits of all property of a fixed and movable nature, belonging to his wife before marriage, or accruing to her after marriage,” but he could not transfer any of those rights without her written consent. Id. §1286. Upon marriage, a husband and his property became subject to certain obligations. He was “bound in law to maintain, provide for, and support his wife during marriage, in the same style and manner in which he supports and maintains himself.” Comp. L. Haw. Islands, §1286 (1884). He was “accountable in his own property” for any debts contracted by his wife prior to the marriage and any debts his wife contracted thereafter with his consent. Id. He was the “virtual owner” of her personal property (“movable property”) that she brought into the marriage or acquired during it, with “absolute control for the purposes of sale or otherwise,” and her personal property was “equally liable with his own for his private debts.” Id. In enacting the Compiled Laws of the Hawaiian Islands of 1884, Hawaii selectively codified some, but not all, of the provisions of English common law. For example, a wife could contract or alienate her property with her husband’s consent; whereas, if common law applied, the contract or deed would be void. See, e.g., Dowsett v. Jones, 9 Haw. 543, 544 (Haw. Rep. 1894) (Civil Code §1287 curtailed “the rights which the wife enjoyed by ancient Hawaiian custom,” followed “the common law pretty closely,” but did not adopt the common law provision that a wife’s “promise would have been void, because made during coverture” and instead left “her at least the power to contract with her husband’s consent.”); see also Holt v. Kaaukai, supra, at 502 (Frear, J. dissenting) (noting “[s]ection 1287 as a whole is a departure from the pre-existing Hawaiian common law which in the main placed husband and wife on the same, and each on an independent, footing with regard to their property” and “the inference is that the Legislature did not intend to modify the law further than was expressed.”). A husband’s accountability for his wife’s debts prior to the marriage continued after her death under certain circumstances. See, e.g., Kaluahine v. Dole, 3 Haw. 374, 377 (Haw. Kingdom 1872) (“[A]t common law, the husband is liable for his wife’s debts dum sola only during coverture, unless the creditor receive judgment against him in the wife’s life-time. But we regard our statute as creating this liability, and to this extent in conflict with the common law,” noting the “great injustice” that could arise under the common law if a husband received property from the wife when she died yet refused to apply it to pay her debts).

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A married woman’s real property was protected from her husband’s debts and was secondarily liable for her premarital debts. The law provided, “The immovable and fixed property of the wife shall not be liable to be sold for the payment of the husband’s debts, whether contracted in his own behalf solely, or in support of, or for the use of his wife after marriage.” Comp. L. Haw. Islands, §1286 (1884). Her real property could be “legally sold on execution to satisfy the debts contracted by the wife before the marriage, if no property of the husband be found to satisfy the same.” Id. With respect to torts, a separate rule applied for the husband. He was “personally responsible in damages, for all tortuous acts of his wife; for assaults, for slanders, for libels, and for consequential injuries done by her to any person or persons in this Kingdom.” Id. This tort liability was a continuation of Hawaiian common law. Apong v. Marks, 1 Haw. 50, 51 (Haw. Kingdom 1851) (“[H]usband is liable for all torts of the wife committed during coverture.”). The law considered these provisions part of the “legal protection of a wife,” contrasting them with “the rights of legal identity of an unmarried woman,” and provided for the rights of a married woman to be reinstated in the event of separations or divorces. 1845 Haw. Sess. Laws, Act to Organize the Executive Departments, Ch. IV, Art. II, §V. If a husband and wife were legally separated from “bed and board” for certain grounds such as “habitual drunkenness” or “continual refusal of the husband to provide his wife with the necessaries of life,” the law provided that “the separation shall have the effect, in law, to reinstate the wife, whether the wrong-doer or not, in the right to sue or be sued, to alienate and convey property, and to make contracts as if a single woman, during the continuation of such separation.” Id. §§I, V. Further, in the event of a divorce on the husband’s adultery, the law provided that the divorced wife “shall by virtue of such divorce acquire all the rights of legal identity of an unmarried woman – be again capable of suing and being sued in her own name, and of making contracts.” Id. §III. In 1860, all married women were required to “adopt the names of their husbands as a family name.” Comp. L. Haw. Islands, Act §1 (eff. Aug. 24, 1860) (1884). B. Married Woman’s Act (1888) Upon passage of the MWA in 1882, a woman’s rights and control over her obligations that she lost by marriage were restored in most respects. It breathed civil life into her again, so that she was no longer deemed “merged into her husband” or “civilly dead.” The MWA correspondingly reduced her husband’s control and liability for her debts. Generally, after the MWA, when a woman married: (1) she retained “her separate property,” whether real or personal, “free from the management, control, debts and obligations of her

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husband”; (2) she had the right to “receive, receipt for, hold, manage and dispose of property, real and personal, in the same manner as if she were sole”; (3) she had the right to “make contracts, oral and written, sealed and unsealed, in the same manner as if she were sole,” including leases, and (4) she had the right to “sue and be sued.” 1888 Haw. Sess. Laws, Ch. XI, §§1, 2, 5. In construing the MWA, we stated in First National Bank v. Gaines, The statutory capacity of a married woman to take, hold and receive property to her separate use is inconsistent with the common law fiction of the unity of husband and wife as well as with the former statute giving the husband by virtue of marriage his wife’s personal property. The relations between husband and wife unless as affected by the statute of 1892 on the subject of the common law are statutory in the law of Hawaii. “As the laws have destroyed this unity the incidents or consequences of the unity ought not to operate.”

16 Haw. 731 (Haw. Terr. 1905) (quoting Butler v. Ives, 130 Mass. 202). In addition, our sister court, the Supreme Court of Missouri, noted that the “married women’s acts” were “meant to destroy the unity of unequals” – “the power of the husband in the right of the wife (jure uxoris) to dominate her property” and the husband’s right of marriage, “jure marit, to the possession and usufruct of the wife’s real estate during marriage” – and to “restore to its full vigor the unity made of equals, the foundation of the estate by entireties.” Otto F. Stifel’s Union Brewing Co. v. Saxy, 201 S.W. 67, 69, 70 (Mo. 1918). The MWA contained certain significant exceptions that restricted some of a married woman’s rights. First, a married woman needed her husband’s “written consent” to sell or mortgage her real estate and to contract for her personal services. 1888 Haw. Sess. Laws, Ch. XI, §1. Second, she was not authorized to “contract with her husband.” Id. §2. Third, “suits between husband and wife” were not authorized. Id. §5. The MWA also protected and provided for a married woman. She continued to be protected from liability for her husband’s debts and her property was not “liable to be taken on execution or other process against him” with a limited exception if she did business on her separate account. 1888 Haw. Sess. Laws, Ch. XI, §§6, 10. Her husband remained “bound to maintain, provide for and support his wife during marriage, in the same style and manner in which he supports himself,” with liability for “all debts contracted by his wife for necessaries for herself or family during marriage.” Id. §7. He was not “liable to be sued upon a cause of action which originated against his wife prior to their marriage” or “liable to pay any judgment that may be recovered against his wife,” with a limited exception for judgments and debts if she did business on her separate account without the required certificate being filed. Id. §§7, 8.

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Further, the husband’s liability for his wife’s tortious acts was limited to “none other” than those “done by and with his authority or consent.” Id. §§2, 7. Since the enactment of the MWA in 1888, provisions restricting real property conveyances and prohibiting contracts between married persons have been eliminated or relaxed, while the husband’s liability for his wife’s torts has been eliminated. These laws have distanced Hawaii further and further away from the common law of England regarding marital status. Since 1925, a married woman may sell or mortgage her real estate without her husband’s consent. Act 274 (eff. May 5, 1925), amending Revised Laws of Hawai`i (RLH) §2993 (1925). Since 1931, deeds “executed by either husband or wife to or in favor of the other” are “valid to the same extent as between other persons.” Haw. Sess. Laws Act 146 (eff. eff. April 24, 1931), amending RLH §2994 (1925). Since 1939, a married woman’s contracts for personal services do not require her husband’s written consent. Act amending RLH §4645 (1935) (eff. Mar. 28, 1939). Since 1939, an “assignment by husband or wife to or in favor of the other” and certain property settlement agreements in contemplation of divorce or judicial separation are permitted. Id. Each of these reforms was in effect when Ume and Kokichi Endo acquired their home on September 15, 1939. Since Ume and Kokichi Endo acquired their home, the legislature continued to reform the MWA. Since 1945, married men and women have been permitted to enter into partnership agreements for business purposes and to enter into certain agreements providing for periodic payments, such as alimony. L. Haw. 1945, Act 5 (eff. Mar. 27, 1945), amending RLH §§12366, 12366.01 (1945); see also Act 222 (eff. Jul. 14, 1969). Since 1972, the husband no longer is liable for his wife’s tortious acts. Act 191 (eff. June 3, 1972). Since 1976, a wife no longer must use her husband’s name as a family name. Instead, upon marriage, each spouse must declare the surname or hyphenated surnames to use as a married person. Hawai`i Revised Statutes (HRS) §574-1 (eff. Jan. 1, 1976). In Fung v. Chang, we noted that while Massachusetts applies the common law rule that “in a case of tenancy by the entirety the husband is in possession to the exclusion of the wife,” this “is not the modern rule nor the one that obtains under RLH 1955, §325-1.” 384 P.2d 303, 307–308 (Haw. 1963). Instead, Hawaii provides that “a married woman may receive, receipt for, hold, manage and dispose of property, real and personal, in the same manner as if she were sole.” Haw. Rev. L. 573-1 (formerly RLH 1955 §325-1). Thus, both the husband and wife have the right to use and possess entirety property and receive any income therefrom. Therefore, the husband does not have a separate possessory right that could be subject to attachment for his separate

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debts as would occur under the common law incidents of entirety property. See Phipps, 25 Temple L.Q. at 25 (re common law incidents). Under the MWA presently in effect, a married woman and a married man have the same rights over their property and the same liabilities for their individual contracts and torts, with the exception of the husband’s obligation “to maintain, provide for, and support his wife during marriage” and his liability for “all debts contracted by his wife for necessaries for herself or family during marriage.” HRS §§573-1, 573-6, 573-7. Married men and women have the same restrictions and exceptions regarding contracts between themselves and are subject to the same restrictions regarding suits between themselves. HRS §§573-2, 573-5. Of particular import to this case is HRS §573-6, which provides, “A married woman is not liable for the debts of her husband; nor is her property liable to be taken on execution or other process against him” (emphasis added). This protects all of her property, including property acquired while married. Compare with HRS §573-1 (emphasis added) which specifically protects her “property, upon marriage,” that is, the property she brought into the marriage that “remains her separate property, free from the management, control, debts, and obligations of her husband” and which also grants her the power “to receive, receipt for, hold, manage, and dispose of property, real or personal,” which includes property acquired while married. The MWA and its subsequent amendments reflect the continuing legislative intent to respond to the needs of both married women and men. The legislature eliminated legal barriers based solely on a woman’s marital status that restricted her right to own property and to contract and that required her to obtain her husband’s consent to exercise these rights. See HRS §§573-1, 5732. The legislature also expanded the rights of married men and women to enter into contracts between themselves for personal and business reasons and minimized the husband’s liability for his wife’s torts. See HRS §§573-2, 573-7. Thus, it would be inconsistent with Hawaii’s constitution, statutes, and judicial precedent to follow the view of a minority of states that hold that tenancy by entirety property is governed by the common law of England or that a husband’s creditors have different rights than a wife’s creditors in their entireties property. See Phipps, 25 Temple L.Q. at 29–31. Thus, we decline to adopt the Massachusetts rule that a husband has the exclusive right to possession of tenancy by the entirety property and that “the common-law rights of the husband” in a “tenancy by the entirety may be taken on an execution issued against the husband,” with the creditor receiving possession and title, subject to the wife’s right of survivorship. See, e.g., Fung v. Chang, supra; Raptes v. Cheros, 155 N.E. 787 (Mass. 1927).

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v Estate by Entirety Hawaii recognizes three distinct types of joint ownership, each of which may be owned by a husband and wife: an estate in common, an estate in joint tenancy, and an estate by entirety. HRS §509-1. By contrast in 1876, a husband and wife could only own property by the entirety. See Paahana v. Bila, 3 Haw. 725 (Haw. Kingdom 1876). One distinction between these three joint ownerships is that only a husband and wife may acquire an estate by entirety. See Chock v. Chock, 39 Haw. 657, 658 (Haw. Terr. 1953) (“an estate by the entirety is based upon the legal unity of a husband and wife as the only parties capable of being tenants by the entirety and when that unity is severed on dissolution of the bonds of marriage by divorce so is the estate.”). While a joint tenancy is created based on the four unities of interest, title, time, and possession, a tenancy by the entirety has one more – the unity of marriage. See id., Blackstone Commentaries at 180. HRS §509-1 differentiates between an estate in common, an estate in joint tenancy, and an estate by entirety. This distinction is important because a tenant owns an undivided interest in a tenancy in common or in a joint tenancy. By contrast, spouses own the entirety of the property when they own an estate by entirety, and mutual action or divorce is required to divide the property into separate interests. See, e.g., in re Trust of Dean, 394 P.2d 432, 440 (Haw. 1964) (“a tenancy by the entirety cannot be severed by an assignment executed by only one of the spouses”; Chock v. Chock, 39 Haw. 657, 658 (Haw. Terr. 1953) (“the legal effect of an absolute divorce is that it converts a tenancy by the entirety into a tenancy in common, each party being then possessed of a separate moiety in an estate subject to partition”); Madden v. Madden, 355 P.2d 33 (Haw. 1960) (husband and wife owned their home as tenancy by the entirety, and “by reason of the divorce the parties became tenants in common”). Spouses who want to co-own property may choose any of these three types, including an estate in joint tenancy. In Peters v. Alsup, the U.S. District Court stated that “the various legislatures of Hawaii have carefully observed the distinction between tenancy of the entirety and joint tenancy” and “[n]owhere in the Hawaiian statutes or in Hawaiian jurisprudence is there any suggestion that the terms ‘joint tenancy’ and ‘tenancy by the entirety,’ where husband and wife are concerned, are interchangeable.” 95 F. Supp. 684, 691–692 (D. Haw. 1951). A crucial difference for spouses is that for a joint tenancy, either may transfer an interest in the property and a creditor of either spouse may levy upon that spouse’s undivided interest; whereas, for a tenancy by entirety, both

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spouses must act together to transfer the property and a creditor of both spouses may levy upon the spouses’ interest in the property. Additionally, our holding confirms that a creditor of only one spouse may not levy upon property the spouses own by the entirety. In some states, property cannot be held as an estate by entirety either because the husband and wife no longer are treated as a single person after the state adopted a married woman’s act or because such ownership is inconsistent with community property. See Phipps, 25 Temple L.Q. at 28–29 (quoting Walthhall v. Goree, 36 Ala. 728, 735 (1860)). This is not true for Hawaii, which has continued to recognize all three types of ownership after the MWA, including in 1939 when Ume and Kokichi Endo acquired their home. See, e.g., L. 1903, ch. 19; HRS §509-1 (1968). During the time when Hawaii was a community property state, a husband and wife had a fourth choice. They could “hold property as joint tenants, as tenants in common, as tenants by the entirety, or as community property,” with a rebuttable presumption that property acquired after May 22, 1945, was community property “unless a different intention [was] expressed.” 1945 Haw. Sess. Laws Act 273, ch. 301A, §6 (12391.06), repealed by 1949 Haw. Sess. Laws, Act 242 (eff. June 30, 1949). Other statutes also recognize that a husband and wife may own property as an estate in joint tenancy. See, e.g., RLH, §5553 (1945) (inheritance tax statute applied to real or personal property “held in the joint names of a husband and wife, whether as joint tenants or as tenants by the entirety”); RLH §121-24.1(c) (am. L. 1963, ch. 146, §3) (current version HRS §235-81) (stock in a small business corporation may be “held by a husband and wife as joint tenants, tenants by the entirety, or tenants in common”). Since 1941, a spouse who owns property may convey it to both spouses by the entirety without the need for a conveyance through a straw man or woman. See 1941 Haw. Sess. Laws, Ch. 167, §1, current version HRS §509-2.

vi Ownership of the Entirety or Whole Hawaii judicial precedent prior to 1892 establishes the concept and meaning of ownership by the whole. In Paahana v. Bila, property was conveyed to “Kenao and Haliata his wife.” 3 Haw. 725 (Haw. Kingdom 1876). In construing this conveyance and the husband’s will, when he died first, the court quoted Washburn on Real Property: [I]n consequence of the theoretic unity and entirety of the ownership of husband and wife in respect to their interest in lands, they cannot take by

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purchase in moieties, and where land was conveyed to hold in common and not in joint tenancy, they were held to take an entirety of estate without regard to the intent. They are not properly joint tenants of such lands, since, though there is a right of survivorship, neither can convey so as to defeat this right in the other. Each takes an entirety of the estate.

Id. at 726. The Court also cited Blackstone’s Commentaries, noting, “The view that a conveyance of land to husband and wife and their heirs, vests the entirety in each of them and upon the death of one the survivor takes the whole estate is abundantly supported by Q. Blackstone Cow. 182,” as well as the New York cases it cited. Blackstone’s Commentaries at 182 states, if an estate in fee be given to a man and his wife, they are neither properly joint-tenants, nor tenants in common: for husband and wife being considered as one person in law, they cannot take the estate by moieties [halves], but both are seized of the entirety, per tout et non per my [by the whole and not by the half]; the consequence of which is, that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor.

The Paahana Court held, “The death of Kenao [the husband] vested the entire estate in Haliata the [wife and] survivor,” with the devisee “taking nothing under Kenao’s will, for there was nothing for him to devise.” 3 Haw. at 726; see also Wailehua v. Lio, 5 Haw. 519 (Haw. Kingdom 1886) (“This principle, controlling conveyances to husband and wife, was settled by this Court in the case of Paahana vs. Bila [in 1876]. We see no reason for reversing it now.”); Robinson v. Aheong, 13 Haw. 196, 198 (Haw. Terr. 1900) (property devised to Ahiona and Naukana, who were husband and wife, resulted in them taking “by the entirety” & upon the husband’s death, “the whole property remained in Naukana [the wife] by right of survivorship”). The Supreme Court of Missouri noted that Blackstone’s Commentaries reflect that the “foundation of the estate by entireties” is that the unity of husband and wife is a “unity made up of equals.” See Stifel, 201 S.W. at 70. We agree. In Hawaii, each spouse owns the whole of an estate by entirety, neither spouse may dispose of any part of the whole without the other’s consent, and the survivor retains the whole even if the first spouse to die attempts to devise the entirety property. See Paahana v. Bila, 3 Haw. at 726; Blackstone’s Commentaries at 182. An estate by entirety owned by and for the whole may not be judicially partitioned into moieties at the request of a spouse. Only when spouses own undivided interests in real property as tenants in common or as joint tenants

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may one of them seek judicial partition of the property “according to the respective rights of the parties interested therein.” HRS §668-1. In addition, unless both spouses consent, entirety property may not be assigned to secure a debt by one of the spouses, and upon death, the surviving spouse is not liable for the deceased spouse’s debt. In re Trust of Dean, 394 P.2d 432, 440 (Haw. 1964) (“Unlike a joint tenancy, a tenancy by the entirety cannot be severed by an assignment executed by only one of the spouses”); HRS §573-6. A creditor’s rights are “derivative only; he stands in the debtor’s shoes.” Henry Waterhouse Trust Co., Ltd. v. King, 33 Haw. 1, 2 (Haw. Terr. 1934). Thus, it follows that a creditor of a spouse may not use the process of execution on a judgment to force the sale or partition of an estate by entirety. Further this Court may not compel the non-debtor spouse to consent to a sale. See, e.g. Hasslocher v. Ward, 3 Haw. 802, 809 (Haw. Kingdom 1877) (Court could not “compel” husband-debtor to reduce his wife’s bequests [under her father’s will] to possession” or to exercise his pre-MWA “marital rights to [his wife’s bequests] . . . for the purpose of subjecting them to the claims of [the debtor-husband’s] creditors.”). Thus, we hold that the restrictions on voluntary transfers or assignments of an estate by entirety also apply to involuntary transfers or assignments; and a creditor may not force a nondebtor spouse to consent to a transfer. To do so would grant the Sawadas, as creditors, a seat at the marital table when spouses decide whether to transfer entireties property. We find no basis in the law to grant this marital intrusion. Kokichi and Ume Endo acquired their home in 1939 under an instrument that listed “KOKICHI ENDO AND UME ENDO, husband and wife,” as the Grantees and that conveyed their home to them as “TENANTS BY THE ENTIRETY, with full rights of survivorship, and not as Joint Tenants nor as Tenants in Common.” (emphasis in original) (recorded in Bureau of Conveyances, State of Hawaii, in Book 1525, page 105). This instrument is to be construed in accordance with RLH 1935, Ch. 147, §5180, which provided, All grants, conveyances, and devises of land, or any interest therein, hereafter made to two or more persons, shall be construed to create estates in common and not in joint-tenancy or by entirety, unless it shall manifestly appear from the tenor of the instrument that it was intended to create an estate in jointtenancy or by entirety.

This statute is now HRS §509-1 with substantially similar language. The trial court, in its Findings of Facts, stated that “Kokichi Endo was the owner of an interest in a certain parcel of real property as tenants by the entireties with his wife, Ume Endo.” This reflects the trial court’s finding, as a matter of fact, that the intent to create an estate by entirety in Kokichi and

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Ume Endo manifestly appeared from the tenor of the instrument conveying the property to Kokichi and Ume Endo. We also hold, as a matter of law, that the interest that Kokichi and Ume Endo each owned was of the whole or entirety of the property, with neither having a separate or severable interest or an interest of less than the whole. When they conveyed the property to their sons in 1969, “KOKICHI ENDO and UME ENDO, husband and wife” were listed as the Grantors, and they both signed and appeared together before the notary public (recorded in Bureau of Conveyances, State of Hawaii, in Liber 6814, page 317). This conveyance by both is consistent with, and was required by, their ownership of an estate by entirety. We distinguish this case from Fung v. Chang, 384 P.2d 303 (Haw. 1963), which involved the liability of a former husband and wife arising out of property they had owned as tenants by the entirety. The former husband’s liability was based on his negligence in building a retaining wall on their property, while the former wife’s liability was based on breach of her duty as “a landowner to take proper precautions” when grading and filling their land and to see that the “work was designed by a qualified person and put into competent hands.” Id. at 306. In this case, only Kokichi Endo is liable to the Sawadas for his negligence. Ume Endo has no liability to them because she is “not liable for the debts of her husband; nor is her property liable to be taken on execution or other process against him.” HRS §573-6.

vii Modern Unity of Marriage We hold that the husband’s powers and the wife’s disabilities prior to the MWA were attributes of the marital status and not essential incidents of the estate by entirety. See, e.g., Anima v. Kona, 9 Haw. 369, 374 (Haw. Prov. Gov. 1894) (“the rights and privileges, if they may be called such, which a husband may enjoy by reason of his wife’s disability to contract, or to sue or be sued, & c. are not vested rights. They are incidents of the marriage status, . . . which depends upon the law for the time being which may be altered from time to time”). Further, we hold that the MWA and the amendments thereto, modified and equalized the property rights of husband and wife, including their rights in entireties property. This holding is consistent with the purpose and intent of our Equality of Rights Amendment. While the MWA, as amended, changed the respective rights and liabilities of the husband and wife, it did not change marriage as a union of husband and wife or the unity of marriage requirement for an estate by entirety. Thus, a husband and wife united in

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marriage constitute a marital unit – a unity of two individuals – and acting together, as one, they may own an estate by entirety. We reach this conclusion, in part, because of the special nature of an estate by the entirety – that the husband and wife own the entirety or whole of the property. While they both are alive, the entirety may not be judicially partitioned; when the first spouse dies, the whole of the property remains with the survivor. HRS §668-1; Paahana v. Bila, Wailehua v. Lio, & Robinson v. Aheong, supra. Ownership of the whole means both spouses have the right to possession. Fung v. Chang, supra. Ownership of the whole also means that one spouse alone may not transfer any interest in entirety, whether by assignment, gift, lease, mortgage, or sale. Paahana v. Bila, in re Trust of Dean, supra. Creditors of one or both of the spouses have no greater rights than the spouses. See Jordan v. Reynolds, 66 A. 37, 38 (Md. 1907) (“the judgment creditor can acquire no greater rights than those possessed by the judgment debtor”); Henry Waterhouse Trust Co., Ltd. v. King, 33 Haw. 1, 2 (Haw. Terr. 1934) (“A creditor’s rights with respect to satisfaction of his debt out of property are, usually, derivative only; he stands in the debtor’s shoes”). Thus, entirety property is subject to levy and execution only by a creditor of both spouses – a creditor of the whole. See in re Estate of Wall, 440 F.2d 215, 218 (D.C. Cir. 1971) (co-tenancy by the entireties property is “liable for the spouse’ joint debts”). Ownership of an estate by entirety provides economic security for both spouses, each of whom may contribute property or valuable but unpaid services, or both, to the marriage. The 1970 Census showed that women comprised 35 percent of the entire labor force in Hawaii, which included 48 percent of all married women, and thus 52 percent of all married women were not in the paid labor force. The U.S. Department of Labor notes that “Home ownership continues to be a significant part of the American dream and contributes to the economic and psychological well-being of many individuals and to the social stability of the family.” U.S. Dep’t of Labor, Handbook on Women Workers 367 (1975). Owning a home or other property by the entirety commits the property to the marriage and provides potential equity to secure a loan if needed, such as for education or a family emergency. Both may consent to a transfer or assignment of the home, but neither has the power alone to do so. See Paahana v. Bila, In re Trust of Dean, supra. Each has the power to enter into a separate contract and the freedom to act, and either one of them may breach a contractual obligation or a duty of care resulting in personal liability. One of the purposes of the MWA is to insulate a married woman from liability from her husband’s debts and to protect her property from execution against him. HRS §573-6. This includes liabilities arising in contract or tort. To hold that a

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husband’s contingent right of survivorship is an assignable right, even if execution of a judgment against him is suspended during his wife’s life, would encumber her estate in violation of this protection from her husband’s debts. See Jordan v. Reynolds, supra. It would cast a cloud on the title of the property, making it virtually impossible for the spouses to utilize the estate, or its equity, for their joint benefit and use during their joint lives. Thus, we disagree with Justice Kidwell, dissenting, who would hold that a husband’s right of survivorship is a separate, alienable interest. The indivisibility of an estate by entirety, except by the spouses’ joint action, is an indispensable feature of the estate. See in re Estate of Wall, supra (“A unilaterally indestructible right of survivorship, an inability of one spouse to alienate his interest, and . . . a broad immunity from claims of separate creditors remain among [an estate by the entirety’s] vital incidents). A prospective creditor before making a loan to, or contracting with, a married person may require collateral of entirety property or a personal guaranty from the other spouse. A person who suffers unexpected injury when a person commits a tort, such as negligently driving an automobile, does not have this same opportunity; although required insurance now may protect against this loss. See Haw. Motor Vehicle Accident Reparations Law, HRS, Ch. 294 (1973). When balancing the right of an innocent spouse and an injured bystander, the legislature and our judicial precedent protect the separate property of the innocent spouse, whether husband or wife, and the property they own by the entirety. See HRS §573-6 (“nor is her property liable to be taken on execution or other process against him”); HRS §573-7 (repealing husband’s liability for his wife’s tortious actions done with his authority or consent). In holding that the interest of a husband and wife in an estate by entirety is not subject to the claims of any of their individual creditors during their joint lives, we place our stamp of approval upon what apparently is the prevailing view of the lower courts of this jurisdiction. We also join the majority of states and the District of Columbia that recognize the estate by entirety and that hold it is not subject to levy or execution for the individual debts of one spouse. See, e.g., Sheldon v. Waters, 168 F.2d 483, 484–485 (5th Cir. 1948) (Florida entirety property is not subject to “debts of either, for neither is recognized as having any separate right”); Fairclaw v. Forrest, 130 F.2d 829, 833 (D.C. Cir. 1942); Hurd v. Hughes, 109 A. 418, 419 (Del. Ch. 1920); Chandler v. Cheney, 37 Ind. 391, 406 (1871) (“while an estate by entirety exists, it cannot be seized and sold for the debts of the husband”); Clark v. Wooten, 63 Md. 113 (1885) (“The law exempts the husband’s right to this judgment [property of husband and wife by entirety] for the sake of the wife; it protects him, because thereby it can most efficiently protect her.”); Stifel, 201 S.W. at

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71–72 (Supreme Court of Missouri held “that, as a result of the married women’s acts, the husband, during their joint lives, has no interest in land held as tenants by the entirety that can be sold under execution for the [sole] debt of the husband.”); Beihl v. Martin, 84 A.2d 954, 956 (Pa. 1912); Bloomfield v. Brown, 25 A.2d 345 (R.I. 1942) (“estate or interest” of husband while both husband and wife are “living and married could not be separated from [wife’s] estate without her consent, and was, because of the married women’s act, not subject to levy and sale on an execution based on a judgment against him alone”); Vasilion v. Vasilion, 66 S.E.2d 599 (Va. 1951); Corey v. McLean, 135 A. 10 (Vt. 1926) (personal property held as tenants by entirety “was not attachable for the debts of the husband”); Ward Terry & Co. v. Hensen, 297 P.2d 213, 220 (Wyo. 1956) (“the estate, title and fee [in an estate by the entirety], is indivisible between husband and wife and cannot be alienated or in any way disposed of unless they agree to the contrary”). See also Phipps, Tenancy by Entireties, supra. In discussing the special characteristics and protection of entirety property, the Court of Appeals for the District of Columbia stated in Fairclaw v. Forrest, The Married Woman’s Property Statutes have changed the common-law principles of marital unity so that the husband cannot now assert an exclusive right to the rents and profits or divest the wife of her share directly by conveyance or indirectly by execution. Although it is said that no technical changes have been made in the estate by entirety, the results are different. Now each is entitled to the enjoyment and benefits of the whole and neither has a separate estate therein which may be subjected to a conveyance or execution. There are obvious advantages, some of which can be attained by no other form of tenancy. They are frequently the cause or motive of creating the entirety. The reason for this is no longer merely the fictional unity of husband and wife. The interest in family solidarity retains some influence upon the institution. It is available only to the husband and wife. It is a convenient mode of protecting a surviving spouse from inconvenient administration of a decedent’s estate and from the other’s improvident debts. It is in that protection the estate finds its peculiar and justifiable function. Consistently with this, the rights of each spouse are regarded as equal to the other’s and superior to the rights of persons who claim through the other spouse.

130 F.2d at 833. In Hurd v. Hughes, the Delaware Chancery Court discussed the importance of protecting a married woman from liability for her husband’s debts: where the judgment is against the husband . . . the effect of the statutes respecting the estates of married women has a more important bearing.

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These statutes in Delaware, as elsewhere, free her estate of her husband’s possession, control or disposition, and from liability for his debts. Therefore, it would limit the freedom so given her if a judgment against him should in their joint lives be a lien or be enforceable against any interest he was supposed to have in the land, and to that extent would make her property liable to his creditors. Upon these grounds courts elsewhere have held that a judgment against the husband is not a lien on land so held during the joint lives of tenants by the entireties.

109 A. at 419; citations omitted. We grant each spouse the equal right to prevent the other from unilaterally alienating entirety property or subjecting it to his or her separate creditors. Spouses who want equal rights to alienate individual interests during their lifetimes may choose an undivided interest in an estate in common or in joint tenancy. When spouses choose entirety ownership, the possibility that one will be the survivor is not a separate right alienable by that one spouse or subject to execution by that spouse’s individual creditors. See Beihl v. Martin, 84 A.2d at 956 (“It is utterly impossible for either party, without the other joining, to sell or assign his or her interest [in an estate by entireties], even the expectancy of survivorship”); Jordan v. Reynolds, 66 A. 37, 38 (Md. 1907) (“the right of survivorship, which is one of its chief incidents, cannot be destroyed, except by the joint act of the two”). Separate interest status is limited to property owned by a husband or wife in his or her own name and to the undivided interest owned as a tenant in common or a joint tenant.

vii The Entirety Exception to Fraudulent Conveyances A gratuitous transfer of separate property into an estate by entirety may be set aside as a fraudulent conveyance under certain circumstances. The converse is not true when an existing estate by the entirety is transferred by both spouses to the separate name of one spouse or to other family members. A conveyance of entirety property cannot perpetuate a fraud on the creditor of only one spouse because the creditor of only one spouse could not have reached the entirety property while held by the debtor and spouse. The subsequent death of a spouse does not change this result. The first crucial date in this case is September 15, 1939, the date that Kokichi and Ume Endo acquired their home as tenants by the entirety. This acquisition was clearly not made to defraud the Sawadas who were not

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creditors of Kokichi Ume in 1939. The next crucial date is July 26, 1969, the date Kokichi and Ume Endo conveyed their home as husband and wife to their sons, because on that date they still were married and still owned the home as tenants by the entirety. Because this conveyance was of an estate by entirety, we do not consider any other dates or facts to be relevant. In 1969, the Sawadas, as judgment creditors, had no right to prevent Kokichi Endo from joining with his wife in a transfer of the home they owned as an estate by entirety. And in 1971, the Sawadas were not entitled to a second look at the transfer because Kokichi Endo was the surviving spouse. In Oliver v. Givens, the Virginia Supreme Court of Appeals stated that “creditors are not prejudiced by a gift of property which is exempt from their claims.” 129 S.E.2d 661 (Va. 1964). In Vasilion v. Vasilion, another Virginia case, the court refused to set aside a transfer of entirety property by a son and his wife to the wife in consideration of “natural love and affection.” 66 S.E.2d 599 (Va. 1951). The conveyance was made three months after the father lent money to his son and three months before the father obtained a judgment against his son. The court reasoned, [T]he entirety is liable for the joint debts of both spouses and is reachable against them by proper process. But where a tenancy by the entirety in the fee simple is once created the property is completely immune from the claims of creditors against either husband or wife alone. . . . Therefore, if the property can be conveyed by the husband and wife jointly, free from liens or claims of creditors, to a third party, there is no reason why it cannot be so conveyed by the husband and wife to himself or herself. No question of fraud is involved as property so held is insulated against the claims of creditors of the individual spouse.

Id. at 602, 604 (citations omitted). In C.I.T. Corp. v. Flint, the Pennsylvania Supreme Court refused to set aside a transfer of entirety property made by a husband and wife, age 71 and “ill of cancer,” after “apparently realizing that in the event of her death he would succeed to the title and the property would thus become subject to plaintiff’s judgment.” 5 A.2d 126, 127 (Pa. 1939). The court reasoned that “in an estate by entireties each spouse has a contingent ‘expectancy,’ consisting of the right of survivorship, which may be the subject of a potential lien, but such lien fastens upon the property itself only when the expectancy is realized” and that “[i]t is not fraud in contemplation of law to deprive one of that to which he has no right.” Id. at 127–129.

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Having determined that an estate by entirety is not subject to the claims of the creditors of only one of the spouses during their joint lives, we now hold that the conveyance of the marital property by Ume and Kokichi Endo, as spouses, to their sons, Samuel and Toru Endo, was not in fraud of Kokichi Endo’s judgment creditors. Affirmed.

13 Commentary on Taylor v. Canterbury diane klein

background With its 2004 decision in Taylor v. Canterbury,1 Colorado joined several other states, most notably, California,2 in eliminating the “strawman” requirement for an effective severance of a joint tenancy by unilateral conveyance to oneself as a tenant in common. In the years following Taylor, several additional states have also abolished the requirement.3 The unilateral destruction of joint tenancies and their conversion into tenancies in common, specifically including the destruction of both tenants’ rights of survivorship, had long been permitted in Colorado as elsewhere. However, traditionally, conveyance by a joint tenant directly to themselves was not effective; hence, the development of the two-step “strawman” transaction, in which the joint tenant conveyed an interest to a third party, severing the joint tenancy, only to have it reconveyed back to the original joint tenant, as a tenancy in common. In 1980, California became the first state to abandon these formalities and permit one-step unilateral severance with Riddle v. Harmon.4 The same question came before the Colorado Supreme Court in Taylor v. Canterbury.

1 2

3

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Taylor v. Canterbury, 92 P.3d 961 (Colo. 2004). Riddle v. Harmon, 162 Cal. Rptr. 530 (1980); Minonk State Bank v. Grassman, 447 N.E.2d 822 (Ill. 1983); Countrywide v. Palmer, 589 So. 2d 994 (Fla. Dist. Ct. App. 1991); in re Estate of Knickerbocker, 912 P.2d 969 (Utah 1996); Smolen for Smolen v. Smolen, 956 P.2d 128 (Nev. 1998). See, e.g., Reicherter v. McCauley, 283 P.3d 219 (Kan. Ct. App. 2012); Stephens v. Ainsworth, 437 P.3d 51 (Kan. 2019). Riddle v. Harmon, 162 Cal. Rptr. 530.

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original opinion Prior to Taylor, Colorado law (like common law generally) allowed that a joint tenancy could be severed by the unilateral (even secret) act of one joint tenant – but not by conveyance to oneself. Conveyance to a third party, a “strawman,” even with a plan to reconvey back to the original joint tenant, was necessary to destroy “the unities of time and title” required for joint tenancy. Taylor presented a pure question of law or, rather, of law reform. There was no factual or legal dispute about the creation in 1991 of the joint tenancy between Terrell Taylor, a member of a prominent ranching family in Colorado, and Lucy Imogean Canterbury, his colorful partner but never his wife;5 or his intention, six years later, to sever it and convey it back to the two of them as tenants in common. The only question is whether Colorado law would permit him to do what he so clearly intended. Writing for an en banc panel, Justice Rebecca Love Kourlis explained in the original decision by the Colorado Supreme Court that “the common law notions that once drove the jurisprudence of joint tenancy” – the “four unities” and a rule that no one could be both grantor and grantee in the same real estate transaction – “are gone.” Justice Kourlis notes that “[i]n their place are principles that focus on the intent of the property owners.”6 When that intent is clear – as in Taylor – there is no need for a third-party grantee. Unilateral conveyance from one joint tenant to himself as a tenant in common is sufficient to sever the joint tenancy. For Justice Kourlis, the case reflects an evolution of the common law in this area – a gradual abandonment of strict adherence to formalities in the creation of joint tenancies, and the relaxation of prohibitions on being both grantor and grantee in the same transaction. She identified these changes with a more “modern” property law, one in which the intent of the parties is paramount. She thus saw Taylor as a case which offered an opportunity for Colorado to embrace this approach, and to throw off hidebound rules that “prevent . . . a landowner from doing directly what he can do indirectly,”7 namely, effectively sever a joint tenancy by a unilateral conveyance to himself as a tenant in common. Undergirding Justice Kourlis’s analysis is a view of adherence to the “four unities,” and the resulting necessity for the “strawman,” as outdated. One 5

6 7

Telephone interview with Bryan T. Fredrickson, Fredrickson, Johnson & Belveal LLC, counsel for Noah Taylor (May 28, 2019). Taylor v. Canterbury, 92 P.3d at 962. Id.

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woman’s “antiquated convention,” however, is the lone dissenter’s “venerable principle of property law.”8 In his dissent in Taylor, Justice Nathan Coats (now the Chief Justice of the Colorado Supreme Court) pushed back against what he called the “derisive” characterization of a transfer to a third party; he rejected the idea that it is a “meaningless ritual or legal fiction.”9 He even brought a Latin maxim to bear, expressio unius exclusio alterius, to argue against the extension of a statute permitting the creation of a joint tenancy by conveyance to oneself, to a situation involving the severance of a joint tenancy under similar circumstances. While the majority saw the elevation of intent over formalities as the unifying principle, Justice Coats instead defended “well-established formalities” and “a principle of property law accepted for scores, if not hundreds, of years.”10 In fact, Justice Coats may have understated the case. A judge in Virginia described the survivorship aspect of joint tenancy, in 1737, as already “of as great Antiquity as any thing in our Law. It is not the Subject of any written Law now extant but is a Part of the Lex non scripta vulgarly called the Common Law. It was introduced as I presume with the Feudal Law.”11 To be sure, the principles at issue are old. But are they outdated? And if so, what sort of updating is called for?

feminist judgment Professor Carrie Anne Hagan, writing as Justice Hagan, in her rewritten feminist opinion, concurs with the original majority opinion that the prior formalities are to be abandoned. In doing so, she declines to fight the tide of legal reform, in real property law as elsewhere, which has systematically eroded formalities in favor of party intent. But she does so with reservations. Hagan encourages us to ask two questions posed by the law reform reflected in Taylor: of the concurrent estates, why should only tenancy by the entirety include a one-sided indestructible right of survivorship; but also, why should any form of joint ownership include such a feature? How we answer these questions reveals a great deal about which variety of legal feminism we find most congenial. At a glance, a gender-neutral reform like this, focused on the intent of the parties rather than antiquated formalities, might seem to advance an 8 9 10 11

Id. at 968. Id. Id. at 970. Robinson v. Armistead, 2 Va. Colonial Dec. B223, 1737 WL 4, *2 (April, 1737).

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autonomy-centered and anti-paternalistic liberal legal feminism. In Riddle v. Harmon,12 Taylor’s predecessor and the first case to permit unilateral selfconveyance to effectively destroy a joint tenancy, a married woman conveyed her joint tenancy interest to her daughter in derogation of her surviving widower’s rights.13 Legal feminists who focused on formal equality surely cheered for the post-mortem vindication of Frances Riddle’s choice. Though the female joint tenant is the “loser” in Taylor, the gender-neutral principle of party autonomy is still upheld. But as Hagan rightly notes, in the aftermath of Taylor, the only legal status which enjoys an indestructible survivorship right is surviving spouse – because only the tenant by the entirety is protected against unilateral (and undisclosed) conveyance by the other co-tenant to themselves as a tenant in common. Even under former law, the tenant by the entirety enjoyed greater protection than the ordinary joint tenant with right of survivorship. However, the “modernization” of Colorado law reflected by Taylor and prefigured by California and a few other states renders the difference between the distinctively marital form of joint ownership, the tenancy by the entirety, and all other forms of joint ownership, considerably starker. By elevating the importance of marital status as a determinant of property rights, the original opinion in Taylor therefore takes women backwards. The critique of marriage as simultaneously a privileged and degraded legal status for women also has deep roots in legal feminism. The legal disabilities of coverture, and their gradual abolition, formed a large part of the law reform agenda of first-wave feminism. Securing married women’s right to vote and to own property, to serve on juries, and to obtain credit without their husband’s involvement, took until the 1970s. Unmarried women also faced legal disabilities – for example, in adopting children or obtaining mortgages. Hagan’s concurrence also reminds us that in 2004, with Colorado still ten years away from recognition of same-sex marriage,14 any right restricted to the married also excluded gay men and lesbians, and thus reified and privileged a heteronormative ideal. In these ways, the continued existence of tenancy by the entirety, inherently discriminatory on the basis of marital status, is rightly criticized by feminist legal theorists. 12 13

14

Riddle v. Harmon, 162 Cal. Rptr. 530. Because Riddle is a California case, the alternative to joint tenancy with right of survivorship for the Riddles would have been community property, not tenancy by the entirety. Press release, Colorado Department of Law, Colorado Attorney Tells County Clerks to Begin Issuing Same-Sex Marriage Licenses (October 7, 2014), https://web.archive.org/web/ 20141012065826/http://www.coloradoattorneygeneral.gov/sites/default/files/press_releases/2014/ 10/07/100714_same_sex_marriage_guidance.pdf.

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Hagan’s concurrence pushes us to acknowledge that if we are to exalt party autonomy above all other legal values, there is no good reason for anyone – feminist or otherwise – to put the marriage relationship, and its distinctive form of joint property ownership, the tenancy by the entirety, beyond its reach. And indeed, for some feminist legal theorists, the elimination of the tenancy by the entirety would be part and parcel with a desirable process of disestablishing marriage as a privileged or distinct status for all legal purposes – along with eliminating joint income taxes, the unlimited marital estate tax deduction, and a variety of other marriage penalties and benefits. Rather than seeking a gender-neutral and inclusive form of marriage, advocates for disestablishment would prefer to see marriage become an intimate personal choice only, perhaps with religious dimensions, like baptism and the naming of godparents. But feminist legal theory contains multitudes, including strains strongly contrary to gender-blind formal equality and the exaltation of autonomy. Persistent demographic trends mean women outlive men and widows outnumber widowers more than three to one,15 and so the spouses protected disproportionately by tenancies by the entirety are in fact mostly women. The so-called difference feminist, who extols gender difference rather than minimizing it, who elevates and values traits and persons identified as feminine or female,16 could argue that persistent gender inequality warrants the special protections of tenancy by the entirety, because they substantively protect women. A feminist legal theorist with such views would look for ways to protect more women, rather than fewer; and to address the exclusion of unmarried women from this protection, rather than stripping it from those who currently have it. Taking this point further, Martha Fineman focuses on the universality of dependency and vulnerability as features of the human condition, to be acknowledged and respected, not ignored and despised, in law or otherwise.17 Under the influence of vulnerability theory, we might see that when the law permits one joint tenant to destroy the other’s rights of survivorship, unilaterally, without notice or consent, it sanctions a form of intimate abuse. Unlike

15

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See Marital status of the United States population in 2020, by sex, https://www.statista.com/ statistics/242030/marital-status-of-the-us-population-by-sex/. Berta Esperanza Hernández-Truyol, Talking Back: From Feminist History and Theory to Feminist Legal Methods and Judgments, in Feminist Judgments: Rewritten Opinions of the United States Supreme Court 33–34 (Kathryn M. Stanchi, Linda L. Berger, & Bridget J. Crawford eds., 2016). See, e.g., Martha A. Fineman, The Vulnerable Subject: Anchoring Equality in the Human Condition, 20 Yale J.L. & Feminism (2008).

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tenancy in common, both joint tenancy with right of survivorship and tenancy by the entirety are generally preceded by a voluntary act of the parties. Because tenancy in common is the default form of property ownership for multiple coowners, no special steps need be taken to create it. However, the joint tenancy with right of survivorship requires the four unities for its creation; and tenancy by the entirety requires a fifth – the “unity” of marriage. Vulnerability theory might suggest that having entered into either of these joint arrangements, the parties are entitled to be protected from the depredations of the other. On this approach, the wrong turn was taken when joint tenants were permitted to make valid unilateral conveyances that reduced the rights of their co-tenants. Protection for downstream transferees, the bona fide purchasers for value who take without notice of any underlying wrong by their transferor or defect in the transferor’s title, is a notable feature of American property law. It is a departure from traditional notions of caveat emptor and even “first in time is first in right.” Under the recording acts of most states, the first transferee to record a transaction, not the first grantee, prevails in a dispute between them – so long as the first-to-record is a third party, not a donee or other person so closely connected to the transferor as to have knowledge of the prior grant. These rules and principles, we are told, facilitate land transfers and the security of titles in transferees. But when one of two joint tenants makes a unilateral transfer, destroying not only their own rights of survivorship but those of their co-tenant, it is not a prior transferee, too slow to record, who loses their rights. It is the transferor’s own co-tenant, who (one imagines) might have had more reason than a thirdparty grantee to trust the transferor. If a transfer by one of two joint tenants were invalid, even to convey a tenancy in common, the risk and cost of determining whether a purported transferor was the sole owner would fall upon that would-be buyer. One might think that is as it should be. Informed by vulnerability theory, the burden of determining whether one’s transferor had the right to make a transfer would be upon the third-party transferee, instead of the risk of loss falling on the other co-tenant. The right balance between autonomy and interconnection, between carrying out the intent of the parties and protecting the vulnerable, is the perennial concern of feminist legal theorists of every stripe. In this way, the seemingly small and technical question of whether and under what circumstances a joint tenant should have the power to destroy the survivorship rights of their co-tenant, by unilateral and secret self-conveyance, puts before us the much larger question of what we owe one another, in the various forms of co-ownership available under our law.

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An opinion like Hagan’s forces us to evaluate whether a special right like survivorship should exist at all, a question not raised or even acknowledged by the actual opinions in the case. At the same time, it critiques the connection between that right and heterosexually married status. As an intervention into the law in 2004, it would have illuminated this marriage privilege, at a time when “marriage equality” was evolving into the central legal focus for gay rights.

TAYLOR V. CANTERBURY, 92 P.3D 961 (COLO. 2004)

justice carrie anne hagan, concurring I concur with the majority for three main reasons. First, I agree that Lee’s Estate v. Graber, 462 P.2d 492 (Colo. 1969), does not hold that the right of survivorship itself is irrevocable or “fixed and vested” and cannot be eliminated without the consent of the other joint tenant or tenants. Second, the strawman approach has been recognized over the years as a mere formality without much justification (why would one need to convey to a third party at all?). Third, our legislature has made changes to the law that support unilateral self-conveyances. While all of this supports my concurrence with the result reached by the majority here, some discussion is warranted of what is left behind in the end in terms of rights of survivorship. After today’s decision, in order to avoid the detrimental situation Lucy Canterbury found herself in, one would need to enter into a tenancy by the entirety, the only tenancy available to preserve a right of survivorship – one based solely on marriage. States, including Colorado, have traditionally recognized and codified three common law approaches to joint property ownership: joint tenancy with rights of survivorship, tenancy by the entirety, and tenancy in common, each of which comprises a set of rights and responsibilities that the parties have to one another. What differentiates joint tenancy and tenancy by the entirety arrangements from tenancy in common is that both joint tenancy and tenancy by the entirety include “rights of survivorship,” whereas tenancy in common does not. The term “right of survivorship” means that the death of the first to die extinguishes that deceased co-owner’s share by operation of law, increasing the interest of the survivor(s). This feature is the principal distinction between a joint tenancy and a tenancy in common. Bradley v. Mann, 525 P.2d 492, 493 (Colo. 1974). At issue in this case is the joint tenancy with rights of survivorship, a relationship traditionally created by the four unities of time, title, interest,

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and possession. See R. Powell & P. Rohan, Real Property § 51.01[2] (M. Wolf ed. 2001) (citing to 2 Blackstone’s Commentaries 180); see also Tabor v. Sullivan, 20 P. 437, 441 (Colo. 1889) (Elliott, J., concurring) (noting that joint tenancies require the four unities of time, title, interest, and possession). Moreover, if one of the four unities ceases to exist, a tenancy in common results. See, e.g., Riddle v. Harmon, 162 Cal. Rptr. 530, 531 (1980). Whether an attempted severance of a joint tenancy is effective turned on the question of whether the act is sufficient to destroy any of the four unities. Bradley, 525 P.2d at 493. A joint tenant could effectively sever a joint tenancy by the conveyance of the tenant’s interest to a third party. The conveyance to the third party would result in a tenancy in common between the third party and the non-conveying joint tenant(s), because the conveyance would destroy the unities of time and title. Historically, however, if a joint tenant wanted to retain his interest in the property but remove the feature of right of survivorship, it was not possible for that joint tenant to convey his interest to himself as a tenant in common, because no unity would be destroyed. Instead, a joint tenant wishing to terminate the right of survivorship of the tenancy and yet retain his interest in the property would need to convey the property to a third party, typically referred to as a “strawman,” who would, in turn, convey the property back to the former joint tenant. See, e.g., Alden v. Alden, 393 P.2d 5, 6 (Colo. 1964). With this reconveyance, the former joint tenants would now hold the property as tenants in common. In this case, however, Terrell Taylor disregarded the use of a strawman entirely, and reconveyed his interest in the land to himself directly and without notice to Lucy Canterbury. In so doing, Terrell Taylor purportedly cut off Lucy Canterbury’s right of survivorship as a joint tenant. The effectiveness of this conveyance is before us today. Initially, Terrell Taylor was the owner in fee simple of the property at issue in this case. In 1991, he executed a warranty deed that conveyed that property from himself as sole owner to himself and Lucy Canterbury as joint tenants with rights of survivorship. Terrell Taylor and Lucy Canterbury were not married. Subsequently, in 1997, Terrell Taylor, without notifying Lucy Canterbury, executed a quitclaim deed to the property to himself and Lucy Canterbury as tenants in common and with the intent “to sever the joint tenancy created by [the 1991 deed], and to create a tenancy in common.” The quitclaim deed was recorded the same day as executed. After Terrell Taylor’s death in 1999, Lucy Canterbury presumably first learned that her survivorship rights had been stripped from her via Terrell Taylor’s unilateral quitclaim deed.

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The majority begins its opinion by first analyzing our decision in Graber and stands firmly with the principle that “[i]n the case of real property, rights under a joint tenancy are fixed and vested in the joint tenants at the time of the creation of the joint tenancy,” Graber, 462 P.2d at 494 (citing Smith v. Greenburg, 218 P.2d 514 (Colo. 1950)), and that “once a joint tenancy is created, each joint tenant owns a vested interest in the property, which cannot be extinguished or alienated without that particular tenant’s consent.” While recognizing that Graber stands for fixed rights for joint tenants, the majority, however, also recognizes that “Graber does not hold that the right of survivorship itself is irrevocable or ‘fixed and vested’ and cannot be eliminated without the consent of the other joint tenant or tenants. Indeed, such a holding would fly in the face of years of precedent to the contrary.” The majority reasons that Graber is not controlling and ratifies Terrell Taylor’s actions. The majority does so, noting that, by eliminating Lucy Canterbury’s survivorship rights, or rather her expectation of survivorship, Terrell Taylor also eliminated his own. As to concerns regarding a secret severance, where a tenant could, in effect, “have his cake and eat it too,” the majority notes that, in this case, the quitclaim deed was recorded when executed. Thus, if the facts had been different and Lucy Canterbury had predeceased Terrell Taylor, the recorded deed would have blocked any claim of survivorship by him. The majority also recognizes that some states now permit a tenant to eliminate the right of survivorship through a reconveyance with the use of a strawman. The majority reasons that allowing the same in Colorado follows that trend. Under this new system adopted by the majority, tenancy by the entirety, which requires the marriage of the parties, is now the only type of tenancy in Colorado where a co-tenant cannot unilaterally convey that co-tenant’s interest to deprive the other co-tenant of survivorship rights. I write this concurrence because I am dissatisfied with the law with regard to rights of survivorship as created by today’s decision, as now survivorship rights are indestructible only for those in a marriage. Why must a woman seeking to protect her property interest have to get married in order to secure her survivorship rights and avoid Lucy Canterbury’s unfortunate outcome? Even apart from the gender issues involved with a tenancy by the entirety, why should survivorship rights only be indestructible in this one ownership context? Why should survivorship rights not be indestructible with joint tenants? Conversely, why should survivorship rights exist at all, in any context of joint property ownership? The special status of marriage is troubling, not only for women who find themselves in Lucy Canterbury’s position, but also for those unmarried or in same-sex relationships for whom marriage to their preferred partner is not

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available. Historically, tenancy by the entirety protected spouses from creditors of the other spouse. Women were also prohibited from owning property – which is not the situation as it exists today. Nothing about the tenancy by the entirety in modern times justifies it as continuing to exist as a special form of ownership – nothing other than antiquated notions of the vulnerability of women. If we hold, as the majority does today, that antiquated notions of strawmen are outdated and mere formalities kept in place by reliance on the traditions we have laid down over time, we should also rid ourselves of the gendered weight of the tenancy by the entirety, in which its very existence lies in the same historical, outdated, antiquated approaches we have rejected here today. The majority quotes Oliver Wendell Holmes: “[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” Perhaps we need to apply this same revulsion to the antiquated tenancy by the entirety, as we find ourselves similarly, blindly, imitating the past via that tradition as well. Perhaps, survivorship rights should not exist in any joint property relationship to avoid giving marriage the entitled special status we are left with here by continuing to recognize the tenancy by the entirety. Ultimately, it is up to the legislature to eradicate this form of marital property ownership. Should the legislature, however, find remaining value in right of survivorship concurrent ownership, it is up to the legislature to create a different version of what survivorship rights can be for property ownership in general. Until then, the fact that marriage exists as the remaining sole context in which one may receive indestructible survivorship rights as an aspect of property ownership evidences that, despite our revulsion with the past, we continue to prioritize a relationship status that will only offer protections if one is married. I reluctantly concur.

14 Commentary on Coggan v. Coggan phyliss craig-taylor

background Tenancy in common, joint tenancy, and tenancy by the entireties are forms of co-ownership of property. Inter vivos transfers, testate transfers, and intestate transfers of property can create these types of concurrent ownership. When an estate in fee is transferred to a married couple, the two become concurrent owners. The question is what form of concurrent tenancy is created. The classic formulation of co-ownership for married couples is tenancy by the entireties.1 This form of co-ownership is rooted in the theory that a married couple constitutes an indivisible unit. Married couples do not become tenants in common, nor joint tenants, because the couple – although two individuals – are considered one person in law. They cannot take the estate by moieties, because both are seized of the entirety, per tout et non per my.2 An estate by the entireties is an almost metaphysical concept which developed at the common law from the biblical declaration that “a man shall leave his parents and cleave unto his wife and the two shall become one flesh.”3 Unfortunately, this metaphysical oneness translated into a host of limitations and inequities women suffered at common law. Married women were subsumed by their husbands.

1

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Today, tenancy by the entirety property interest is recognized in approximately one-half of the states and the District of Columbia. 7 Richard R. Powell, Powell on Real Property §52.01 (3) (Michael Allan Wolf ed., 2002). John Reed, Pennsylvania Blackstone: Being a Modification of the Commentaries of Sir William Blackstone, with Numerous Alterations and Additions, Designed to Present an Elementary Exposition of the Entire Laws of Pennsylvania 469 (1831). Ephesians 5:31.

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Furthermore, common law concurrent ownership through tenancy by the entireties developed as part of the English feudal system of land tenures.4 Land rights in the English feudal system were based on a capability to fight in war.5 Under this war-readiness interpretation, women were not considered equals, because they were not thought to be capable of fighting in a war. As a result, they disappeared into the concept of “oneness” that left the male holding his rights and any rights that legally belonged to his wife. For purposes of property and contract, the married woman was for all practical purposes invisible. A husband and wife were considered one, and the only one with rights was the male. In the United States, a change began to take place in the 1800s as state legislatures redefined the property rights of married women.6 Collectively known as the Married Women’s Property Rights Acts, these new laws sought to remove the married woman’s legal disabilities promulgated under the common law, especially in tenancy by the entirety marital property.7 Once a co-tenancy is created, each property interest holder, as a co-tenant, has the right to use and possess the whole, unless the co-tenants enter into a separate written agreement. Although one co-tenant may exercise exclusive possession, the other co-tenants retain their right to possession of the whole. The co-tenant who is out of possession does not relinquish any possessory rights when allowing another co-tenant to stay in possession of the whole or take actual possession of a property. However, the relationship between the cotenants can change if any of the co-tenants act adversely to another co-tenant or oust another co-tenant. This is important because, if ouster is established, it gives the ousted tenant the right to an accounting of the value of the property and the right to recover his or her share in the event of a dissolution of the cotenancy. Courts require a specific act or clear communication to establish that ouster has occurred.8 In Olivas v. Olivas, the New Mexico Court of Appeals held that blocking a co-tenant’s use of or entry into a property is clear evidence of an attempt to oust a co-tenant.9 Other actions or communications also may result in a finding of ouster. For example, in cases involving domestic violence, courts have found that certain hostile acts, threats, or demonstrations of abuse

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5 6

7 8 9

Kip Wheeler, Feudalism, https://web.cn.edu/kwheeler/feudalism.html (last visited Dec. 21, 2020). Id. Richard H. Chused, Married Women’s Property Law: 1800–1850, 71 Geo l. j. 1359, 1425 (1982– 1983). Id. Olivas v. Olivas, 780 P.2d 640 (N.M. Ct. App. 1989). Id. at 642.

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are tantamount to a constructive eviction, resulting in a finding of ouster.10 If a court does not recognize acts intended to intimidate or control a female cotenant in a marital relationship as ouster, it can give rise to a finding that reinforces an unequal power relationship. This occurs, especially, in cases where male norms and male understandings shape legal definitions of what historically constitutes a family, who has claims and access to ownership of property, and ultimately how legal institutions function to give or deny redress for alleged and defined harms.11 In most areas of legal regulation, existing concepts do fail to account for or consider differences of power in a relationship. The outdated approach is not easily dismantled. The law is assumed to be appropriately gender-neutral, at least in aspiration, yet female plaintiffs still find they must challenge malecontrolled, male-defined gender notions. The challenge is readily apparent in some cases and in other cases strategically hidden under a cloak of insufficient evidence.12 To unravel these decisions, a core of gendered life concepts must be acknowledged as a factor in determining the outcome of a case or cases. However, any case analysis that attempts to address outdated gender notions is fraught with possible pitfalls,13 an example of which is Coggan v. Coggan.

original opinion In the original opinion, Coggan v. Coggan, the Supreme Court of Florida found in favor of George Coggan, the Petitioner, three to one.14 The majority centered its ruling in a legal analysis of what would constitute ouster. The issue centered on an office building that had originally been held as a tenancy by the entireties by George Coggan and Sarah Coggan, and which had been used to provide income for the family before their divorce and to provide income for George Coggan after the divorce.15 The building was not specifically addressed within the property settlement agreement as a part of the 10

11

12

13

14 15

Cohen v. Cohen, 746 N.Y.S. 2d 22, 23 (App. Div. 2002) (upholding the ouster of a male cotenant due to a history of assaults). See Beth Van Sichaak, Obstacles on the Road to Gender Justice: The International Criminal Tribunal for Rawanda as Object Lesson, 17 Am. U. J. Gender Soc. Pol’y & L. 361 (2009). Id. at 364–407 (the work of feminist scholars in international law opened new lines of inquiry into these questions); see also Kelly D. Askin, Prosecuting Wartime Rape and Other GenderRelated Crimes under International Law: Extraordinary Advances, Enduring Obstacles, 21 Berkeley J. Int’l L. 288, 317 (2003). Margaret E. Johnson, A Home with Dignity: Domestic Violence and Property Rights, 2014 BYU L. Rev. 1 (2014). Coggan v. Coggan, 239 So. 2d 17 (Fla. 1970). Id.

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divorce decree.16 Thus, in 1963, upon divorce, the parties became tenants in common by default because the building was not specifically addressed within the property settlement agreement as a part of the divorce decree. As tenants in common, all rights and benefits that attached to the property were to be shared equally between George Coggan and Sarah Coggan as cotenants. George Coggan, however, attempted to assert a proprietary ownership of the building and deny his ex-wife, Sarah Coggan, any interest in the building.17 With the omission of the building from the divorce decree, he essentially was asserting that his ex-wife not only had no equal interest in the property, but that she had no legal interest in the property at all – and that any attempt on her part to assert such rights would be null and void and could, and would, be aggressively denied and fought.18 However, over the course of nearly seven years after the divorce, Sarah Coggan sought to assert her rights of cotenancy through the courts, and succeeded at the trial court. George Coggan appealed and Sarah Coggan was again successful. George Coggan’s actions, including an attempt to deny his ex-wife’s title on the deed based on scrivener’s error, were unsubstantiated, but that did not stop him from appealing to the Florida Supreme Court to reverse the lower court decisions.19 Surprisingly, the Florida Supreme Court, in its majority opinion, overturned the lower courts’ decisions in favor of Sarah Coggan, effectively dismissing the evidence presented at trial demonstrating ouster by the exhusband and the right of the ex-wife’s right to an accounting of the value of the property.20 In rendering its decision, the majority applied a literal and narrow definition of what is deemed communication and notice. Citing Stokley v. Conner, the majority opinion stated that ouster requires a showing of “express notice or . . . acts and declarations that may be equivalent to notice of ouster.”21 The Florida Supreme Court expressed a clear finding: [T]hat the record is devoid of any evidence that prior to filing of the partition suit he advised the plaintiff he was claiming adversely to her, or that he had taken any action adverse to her interest or title, or that he had taken any steps to constructively oust her from possession or that she knew of or should have known he was claiming any right of the title adverse to her.22

16 17 18 19 20 21 22

Id. at 18. Id. Coggan v. Coggan, 183 So. 2d 839, 840 (Fla. Dist. Ct. App. 1966). Coggan v. Coggan, 239 So. 2d 17 (Fla. 1970). Id. at 19. Stokely v. Conner, 68 So. 452, 459 (Fla. 1915). Coggan v. Coggan, 239 So. 2d 17, 19 (Fla. 1970).

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By so interpreting the evidence and decisions of the lower courts, the Florida Supreme Court quashed Sarah Coggan’s right to an accounting based on a declaration of ouster by her ex-husband.23

the feminist judgment Professor Natasha N. Varyani and Professor Stevie Leahy, writing as Justice Varyani and Justice Leahy in their dissenting feminist judgment, find that the interpretation of ouster adopted by the court in Coggan v. Coggan is a myopic, rigid, and overly formalistic understanding of what constitutes communication and notice to establish ouster in a co-tenancy.24 They find it incredulous that the majority (1) ignored a history of Florida law that does not require “explicit and unequivocal communication or directive” to establish ouster;25 (2) ignored the findings of fact in the trial court, later affirmed by the district court, that supported a finding of ouster;26 and (3) refused to accept testimony at trial as evidence undergirding the establishment of ouster.27 Justices Natasha Varyani and Stevie Leahy present an expanded and deeper feminist argument about the meaning of communication and notice in general in a marital relationship that ended in divorce.28 In their argument for an expanded, more nuanced, understanding of asymmetries of power in marital relationships, Justices Varyani and Leahy also suggest some inherent limitations to a strict equality feminist legal framework when courts are deciding these cases. This is eminently important when the courts are addressing the distribution of marital assets in divorce cases. They assert that the nature of the marital relationship in this case was reflected in an inequality of resources, who controlled assets, and who determined what was “solely” owned. Also, of significant importance, in their view, was what repercussions the ex-husband demonstrated or indicated he would bring forth if these understandings of dominance and sole ownership were challenged by his ex-wife.29 Given what Justices Varyani and Leahy understood to be the overwhelming evidence before the court that notice and communication were made abundantly clear, they dissented from the majority’s decision.

23 24 25 26 27 28 29

Id. at 19. Id. at 20 (Boyd, J., dissenting). Id. at 4. Id. Id. Id. at 7. Id. at 5.

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The center of the feminist dissent exposes the subtext of this case – the majority’s belief that the ex-husband as head of household or primary provider was “entitled” to sole ownership of the property regardless of his ex-wife’s legal equality as a co-tenant – and the majority’s belief that the ex-wife therefore had no rights of ownership in the property from which to have been ousted. The majority applied a formalistic neo-coverture view of notice and ownership to “hide” the underlying gender bias in its ruling, ignoring law and evidence to render its judgment.30 The dissenting opinion clearly shows that a feminist legal perspective must be included when interpreting legal concepts in order to take into account the impact of asymmetrical gender relationships and other necessary issues that arise in interpreting legal terms such as communication and notice. If the feminist dissent had been the majority decision, the norm in future cases would have become a determination of whether “communication” is conveyed through gestures, voice, inuendo, or even threats in light of the nature of the relationship and existing imbalances of control. Such an alternate approach would provide a broader, more wholistic understanding of the term “communication” in domestic cases and especially in domestic violence and constructive eviction cases. Examining the embedded asymmetrical nature of a relationship could reveal hidden elements of power and inequality. Use of veiled, coded language and acts to hide threats and the overt exercise of established power in a relationship to sustain a dominant position and force concessions would be disallowed. A more equitable outcome would result. This is especially important in property cases arising out of broken marital relationships.

COGGAN V. COGGAN, 239 SO. 2D 17 (FLA. 1970)

justices natasha n. varyani and stevie leahy deliver a dissenting opinion The courts below correctly concluded that the evidence demonstrates that Petitioner George Coggan consistently denied Respondent Sarah Coggan, his ex-wife, from exercising her rights over the co-owned property at issue. This denial has resulted in Sarah’s ouster, for which she was legally entitled to an accounting and the appropriate proceeds from the jointly held property. Sarah Coggan was a contributing partner to the marriage and, upon her divorce

30

Coverture, Black’s Law Dictionary (11th ed. 2019).

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from George Coggan, was entitled to a fair distribution of jointly held property under the laws of this jurisdiction. The majority opinion erroneously holds that George Coggan never “communicated” his belief that he was sole owner of the property to his ex-wife and, therefore, she cannot have been given notice of having been excluded or ousted from the property. Accordingly, in the view of the majority, no accounting was necessary. We do not believe the record below supports the conclusion of the majority. We join with the dissent of Justice Boyd because the facts undoubtedly support a finding of ouster. We write a separate dissent to describe our reasoning.

i Florida’s constitutional amendment in 1957 has changed the previously unlimited certiorari jurisdiction of the State Supreme Court by requiring a District Court to certify a question before being taken up by the high court. Fla. Const. art. V §4(b)(2). The Supreme Court may take up a case if the District Court of Appeals has determined that it is a question of “great public interest” or if there are decisions from District Courts of Appeal that are in direct conflict. Id. Upon petition for a writ of certiorari, this Court must determine whether an order for an accounting is beyond this Court’s jurisdiction or if it conforms to essential requirements of law. Brooks v. Owens, 97 So. 2d 693, 695 (Fla. 1957) (citing 5 Fla. Jur. Certiorari Sec. 12). The analysis should focus on whether, if the order does not conform to law, petitioner would be materially injured throughout subsequent proceedings, for which the remedy on appeal would be inadequate, which should be a matter of great public interest. For example, this Court in Kaufman explained how a denial of the appropriate venue to defendants was not only in conflict with essential requirements of Florida law, but would also result in injury. Kauffman v. King, 89 So. 2d 24 (Fla. 1956). If defendants were forced to wait for the error to be corrected on appeal, they would have been required to incur the expense and inconvenience of defending a suit in the incorrect county. Id. at 26. Therefore, the remedy on appeal for the error would be inadequate, and certiorari was appropriately granted. Id. Assuming conformance with Florida law, if the defendant would be irreparably harmed if compelled to wait for remedy by appeal, review under this Court’s jurisdiction would be appropriate. Brooks, 97 So. 2d at 696. The majority decision makes no explicit finding that the lower courts’ decisions failed to conform to requirements regarding accounting. The majority does not adequately consider certain findings of fact from the courts below,

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and does not appropriately weigh others that support ouster. Moreover, practical considerations including the imbalance of marital power, and policy considerations in support of protecting the institution of marriage, are not taken into account. Furthermore, the majority’s holding lacks any finding that George Coggan would be materially injured; in fact, it is likely Sarah Coggan who has and will continue to suffer injury. In fact, the holding of the District Court requiring an accounting conforms to the essential requirements of longstanding Florida jurisprudence. Coggan v. Coggan, 230 So. 2d 34, 36 (Fla. Dist. Ct. App. 1969). As such, certiorari, when properly considered, is inappropriate in the instant matter and stands as an independent ground for denial of George Coggan’s appeal.

ii Our long-standing jurisprudence related to division of assets is an additional ground for denial of relief to George Coggan. Florida is an equitable distribution state and its statutes related to the distribution of property upon dissolution of marriage reflect the fundamental tenets that a marriage is a partnership and cornerstone institution to be protected. The policies treating assets jointly held or earned during the marriage as shared equally between husband and wife are consistent with furthering protection of the marriage partnership. The underlying theory in Florida, and indeed in most other jurisdictions, is that work outside the home and associated earnings by one spouse (traditionally, the husband) is supported by the work done in the home by the other spouse (traditionally, the wife). Despite the roles played by either gender, marriage is a partnership and each individual relies on the support of the other for the profit and success of the family as a unit. To this end, the way our courts treat the division of property at the end of a partnership is supportive of the axiom that there are many ways to contribute that add value, and all such contributions must be weighed. Upon dissolution of a marital partnership, we continue to protect the institution by evenly dividing assets that were jointly held during the marriage. A Sarah and George Coggan were divorced in 1963. They jointly owned an office building that George Coggan, a physician, occupied as his medical office. Upon the divorce, they became tenants in common of the building, which is the property at issue in the current appeal. No provision was made in the divorce decree regarding use and possession of the building. George

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Coggan continued in sole possession of the building, paid taxes, and made necessary repairs. Based on the record below, the majority concludes that George Coggan exercised “complete” control of the building. In 1967, Sarah Coggan filed a partition suit praying for an accounting of one-half the rental value of the office building from the date of the final decree of divorce. In his answer to the Complaint for partition, George Coggan denied the very existence of any co-tenancy with his former spouse. Coggan, 230 So. 2d at 36. Furthermore, George Coggan then refused to allow an appraiser to come into the property, as requested by his former wife, for purposes of division of assets. The trial court denied George Coggan’s counterclaim that Sarah Coggan’s name appeared on the deed to the office building due to scrivener’s error and ordered a partition sale of the office building, as well as an accounting in favor of Sarah Coggan to the extent of one-half of the rental value of the office building for the period post-divorce. Id. at 35. The appellate court agreed and affirmed. Id. at 36. Although the record below is sparse with recitation of relevant facts surrounding the parties’ relationship, these facts are sufficient to justify our dissent. The tenancy in common gave both Sarah Coggan and George Coggan a right to possession of the whole property. This concept of sharing ownership is one that has baffled law students new to the doctrine of property law, but is nonetheless a well-established principle that co-tenants in common all enjoy the rights attendant with ownership. Vaughn v. Vaughn, 119 So. 2d 391, 394 (Fla. Dist. Ct. App. 1960) (noting the “numerous presumptions of the utmost favor to the joint owners designed to insure that the title and rights of each shall be preserved unimpaired, at least to the extent that absent clear notice no direct or indirect assault on the interest of any one owner shall be made by any other”). Shared property ownership includes the rights to profits as well as sharing the burdens of administration (taxes and insurance), as well as more foundational rights like the right to exclude. The right to exclude, however, as it relates to co-tenants, may not be exercised against one another, and, if it is, then the excluded co-tenant is said to be “ousted” and may collect the value of the excluded co-tenant’s share of the property. In a Florida divorce proceeding, our courts have jurisdiction to determine and adjudicate the property rights between a husband and wife as an incident to divorce. Picchi v. Picchi, 100 So. 2d 627, 629 (Fla. 1958). An accounting, as requested by Sarah, is a well-established tool for a co-owner to assert rights to jointly held property. When one co-tenant has exclusive possession as a tenant in common, such co-tenant is liable to a co-tenant out of possession if ouster or its equivalent is present. Ouster requires “express notice” or “acts and declarations that may be equivalent to notice.” Stokely v. Conner, 68 So.

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Coggan v. Coggan

452, 459 (Fla. 1915). As the majority correctly states, “[t]here can be no holding adversely or ouster or its equivalent, by one co-tenant unless such holding is manifested or communicated to the other.” Coggan, 239 So. 452 at 19. The possession of one tenant in common is presumed to be the possession of all until the one in possession communicates to the other the knowledge that the possessor claims the exclusive right. B An accounting was correctly mandated because George’s actions with regard to and treatment of the medical office building amount to an ouster. George’s treatment of the property as his sole and exclusive property during a contentious period of five years following the parties’ separation sufficiently communicated exclusion of Sarah from the premises. The trial court, as affirmed by the district court, held that the record supported a finding of ouster by George that excluded Sarah. The essential requirement of communication was more than satisfied, especially considering the position of the parties and imbalance of power (as demonstrated even more fully by George’s reluctance to adhere to standards of decorum as required by the Florida judicial system, as discussed infra Section VI). The majority, seemingly biased by traditional gender roles and in deference to a husband, errs in finding that a wife was not notified of her ouster sufficiently to be entitled to an accounting. Although there is no evidence of a written communication or any other facts that establish explicit ouster, there is no requirement under Florida law for explicit and unequivocal communication or directive: “no actual expulsion by force is necessary to be proved.” Gale v. Hines, 17 Fla. 773, 774 (1880). Florida law requires evidence that amounts to a denial of the right of the cotenant out of possession. Id. Such acts are present here. This long-standing precedent is based on almost a century of Florida jurisprudence interpreting the Statute of Anne: “if a tenant in common receives rents and profits, otherwise than by actual occupation, he is made a bailiff of his co-tenant, and is accountable according to his title.” Bird v. Bird, 15 Fla. 424, 429 (1875) (citing Gowen v. Shaw, 40 Me. 56, 57 (1855)). This Court has previously found that when a co-tenant appropriates the whole proceeds to his own use, this is a factor in support of ouster. If that is combined with intent by the tenant in possession to occupy as separate property, ouster is satisfied. Id. The record demonstrates that George consistently denied that a tenancy in common existed. He maintained, and clearly communicated, the belief that he was the sole owner of the property and that his former wife was not entitled to any proceeds or occupation. Coggan, 230 So. 2d at 36. Since the separation,

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George continued in sole possession, paying the taxes, making necessary repairs, and otherwise exercising complete control. He refused to allow an appraiser to come into the property, as requested by his former wife, for purposes of division of assets. This single act alone is an illustration of exclusive control over a property; George was the primary earner of income in this partnership and operates within the space occupied by traditional norms of gender division. The building in question was used as a medical office to support his practice as a physician. In addition to all of the communicative acts as to Sarah noted above, George denied the co-tenancy in his answer to the complaint for partition. There is a legal distinction between denying the existence of a co-tenancy and excluding or ousting a co-tenant, but, in this case, the husband’s belief in his sole ownership is further strong evidence of his exclusion of his wife from the property in question. It is without question that our courts have established that the property was held by tenancy in common after dissolution of the marriage. The District Court noted the following testimony by George, in which he fully admitted to claiming exclusive and sole possession of the jointly held building: A. Q. A. Q. A. Q. A.

My position is that I am the sole owner of that property since I purchased it. He has no right to the property? That is correct. She had no right to possession of the property? That is correct. You have occupied the property as sole owner? I believe I have occupied the building as sole owner.

Coggan, 230 So. 2d at 36. Notably, George admitted these facts in an attempt to argue that his wife was never a tenant in common, as discussed further below, an argument explicitly rejected by the District Court and not disputed by the majority. Yet, the majority fails to treat George’s own admission that he considered himself the sole owner as a communicative act amounting to ouster. The record demonstrates that George’s position since 1963 was that his former wife had no right to the property, even though they owned the space as tenants in common. This position and related acts communicate ouster. In his counterclaim, George made the argument that Sarah’s name was on the deed to the office property due to scrivener’s error. Id. George subsequently abandoned this argument during trial, expressly for lack of evidence. Id. The parties held the property jointly as reflected by the terms of the deed.

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Sarah sought an accounting based on her right as a co-owner of the property. Despite owning the property together, George was wholly in charge of the use and care of the property and was paying expenses related to maintaining the property. The majority appears to take his actions as evidence of sole ownership, but not of exclusion. An accounting, however, is a well-established tool for a co-owner to assert rights to jointly held property. Picchi, 100 So. 2d at 629. An accounting does not require that all co-tenants be contributing evenly, but by its very nature, an accounting is designed to take into account both expenses and revenues and to divide the profits from the property according to ownership percentages. Because Sarah was a co-tenant and because the courts below correctly concluded that an ouster had taken place, she is entitled to an accounting. It is unclear from the majority opinion what additional steps or evidence Sarah would need to show to justify ouster. There is no requirement in our jurisprudence, nor does the majority rely on any corresponding precedent, that would require Sarah to try to unsuccessfully access the property simply to legally establish ouster. Even if that were the case, Sarah did try to access the property as found by the lower court insofar as the appraiser the wife requested was denied any such access. Again, George’s actions communicate sole possession and his ex-wife’s ouster from the building. Upon the dissolution of marriage, ownership in joint assets that are not accounted for in the divorce decree are converted to property held by tenancy in common. The record shows the property in question was held jointly as spouses during the marriage, and the default rule upon dissolution of the marriage applies because the property was never identified by any agreements, so it falls into a “catch-all” category governed by default rules. This is distinct from the residential property at issue in George’s counterclaim regarding the family home, because the home was explicitly identified and the disposition of its ownership agreed upon during the negotiations at the conclusion of the marriage. Though George appears to be motivated to apply the same rules of accounting to both properties, each parcel is factually and legally distinct and should be treated as such. Although Bird is nearly a century old, the guiding tenets support a finding of ouster. In Bird, the defendant was objecting to an accounting for an estate owned as tenants in common. Bird, 15 Fla. at 425. In that case, Bird entered the estate, claimed the estate as his own, and did everything in his power to defeat the interests of his co-tenants. He therefore put himself in “a position to expect from a court of equity a severe reckoning for the abuse of his trust, rather than to demand partiality as a favored suitor.” Id. at 427. In partitioning assets, the court stated that “no one shall have any advantage over the others.”

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Id. Likewise, the court in Stokely explained that the rights of co-tenants to exclusive possession were consistent with common ownership, and only after “express notice, or by acts and declarations that may be equivalent to notice” may a co-tenant not in possession be ousted. Stokely, 68 So. at 459. George’s intent to occupy the property exclusively, coupled with his actual exclusive occupation, can be viewed as de facto communication of exclusion of Sarah, justifying her request for accounting. George’s acts are more than sufficient under Bird and Stokely to put his former spouse on notice that he was excluding her from asserting her rights to a building that they owned as tenants in common. Even absent a consideration of policy and practical considerations, an accounting was properly ordered.

iii Finally, the majority’s decision with regard to the property does not reflect the respect for equality in the partnership of marriage that Florida’s laws are intended to protect. United States v. Stapf, 309 F.2d 592, 605 (5th Cir. 1962), rev’d on other grounds, 375 U.S. 118 (1963) (Wisdom, J., dissenting) (“Strong economic, social, and moral reasons support the view that marriage is a full partnership between equal partners.”). Though the building was exclusively used as George’s medical office, proceeds from his ownership and work at the building were used to support the marriage partnership and family. Upon divorce in 1963, the parties became tenants in common by default rather than explicit agreement as the divorce decree made no mention of the property. The lack of written agreement regarding the building in question is notable because, though it appears to motivate the husband in this case, it requires the court to consider the mechanics of default rules. When considering what rules apply absent an agreement, courts and legislatures have an increased responsibility to consider policy goals and set defaults that will function in a way that is consistent with the values of the jurisdiction. When examined through the lens of power imbalance in a marriage, George’s behavior becomes even more clearly labeled as ouster. There are three policy and practical considerations to examine: first, marital power; second, marital history; and third, societal expectations. The power of an individual stems from their ability to influence, largely in part based on their possession of resources. In this instance, the majority of resources, including the actual, physical possession of the building in question, were solely controlled by George by his own admission. The majority’s exclusive consideration of the standpoint of a husband, and not a wife, grants him a privilege that results in a significant financial loss to her. There is no analysis of the power

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held by George in the marriage, devaluing his former spouse, because the dynamics of this marital relationship, however unjust, have been common across our culture for some time. Failure to consider the facts of the ouster from this standpoint has fundamentally altered the application of justice for Sarah Coggan and is inconsistent with the duty to promote equity and justice held by this Court. When parties have been in a committed and sustained relationship, those factors can likewise influence and reinforce the positionality of each partner. Even from the record before us, we can conclude that George Coggan held a position of power throughout the course of the marriage. Serving in the role of a “provider” creates authority over financial and marital decisions that impact the balance of power in the marriage partnership; his obstinance in the proceedings below and his refusal to allow appraisal of a jointly held property reinforce the assessment of him as an individual who is used to having authority and getting his way. Such sustained actions only further entrench the parties in their positions. The majority did not consider the power dynamic between George and Sarah Coggan a contributing factor to the ouster despite it being a material factor in the legal relationship between parties. The analysis of the first two considerations puts Sarah at an unfair disadvantage in these proceedings. The ingrained imbalance of power between George and Sarah during their marriage is compounded by society’s expectations and assumptions on gender roles and positions. Our culture has long constructed certain roles for each gender and these roles are rewarded differently. Husbands worked outside the home and provided financial resources, exercising decision-making authority for the family unit which quickly becomes a proxy for power. For years, women have been fighting against the expectation and assumption that their role is solely as wife and mother, operating within the home. Betty Friedan, The Feminist Mystique, ch. 4 (1963). Their source of fulfillment was thought to derive solely from children and, based on the lack of other options in the workplace, this has been a difficult cycle to break. Recent efforts in the past decade have been aimed at trying to balance the inequities faced by women on a daily basis in their lives. See, e.g., 29 U.S.C. §206 (1963). The outcome in the case at hand shows that additional progress is needed to ensure traditional conceptions of “husband” and “wife” do not skew the administration of justice when dividing assets in a divorce. George Coggan, a physician, by his own testimony was unquestionably more involved with the day-to-day management of the property as it was related to his occupation and business. The finding that there was no ouster is predicated on traditional

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gender-role expectations. George and counsel have persuaded the majority that his sole possession, management, and ostensible ownership of the property in question, used as a medical office building, was not to his wife’s exclusion. George Coggan was driven by his own beliefs and biases that this was his right and duty as a husband, and it was outside the sphere of her assigned role; she had no reason to be there, and he believed he was under no obligation to communicate to her that she was excluded. By calling on his own assumptions, George Coggan used the court’s cultural biases and expectations to help come to a finding that exclusion was implied and expected. The majority enforces the husband’s right to exclude her in this way yet denies that this exclusion amounts to an ouster. The majority opinion lacks any consideration of either the policy or practical considerations, essential factors that are necessary for a just application of Florida law. “There is no such thing as justice administered in a vacuum.” Rainey v. Rainey, 38 So. 2d 60, 60 (Fla. 1948). Clearly, as the lower courts found below, consideration of these essential factors is unnecessary to finding acts sufficient to establish ouster when relying on the record before us, but they are necessary to the broader purpose and scope of our system of justice. Though Sarah Coggan did not manage business affairs outside of the home, the institution of marriage is predicated on the assumption that spouses’ work inside and outside the home is equally important to the marriage partnership. See, e.g., Strauss v. Strauss, 3 So. 2d 727, 728 (1941). The tenets of marriage and policies embodied by Florida law are meant to encourage a true partnership in a marriage. Florida society and jurisprudence are driven by conscious and unconscious gender biases related to earnings and entitlements of each party. Our courts presume that a husband is the head of the family. Solomon v. Davis, 100 So. 2d 177, 178 (Fla. 1958); see also McRae v. McRae, 52 So. 2d 908, 909 (Fla. 1951) (discussing the duties that Florida law imposes on “civilized man” based on biblical principles). Yet, the National Association for Women’s Bill of Rights drafted in 1968, and works from authors like Betty Freidan (The Feminist Mystique, 1963) and Gloria Steinem (Women and Power, 1968), all indicate that we are in the midst of a cultural revolution. Although societal construction of these norms has been rapidly evolving, there is an imbalance implicit in these biases that is still culturally prevalent. It is our duty as the judiciary to be impervious to these biases, or at least explicitly identify them and apply our rules in a way that recognizes fairness and equity. This dissent may serve as a call to arms for those like-minded judges who are committed to thoughtful and complete analyses that eschew influence from damaging gender norms.

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Coggan v. Coggan

iv We must address the actions of George Coggan and his counsel. As found by the District Court, George and counsel submitted documents that were not substantiated by the evidence in an attempt to mislead the court on ownership, maintenance, and access to the property. Coggan, 239 So. 2d at 20. Furthermore, the District Court also previously noted George’s “unwillingness to agree” that the court had the authority to grant access to the property for purposes of assessment, something he had been refusing to allow for the previous five years. Coggan v. Coggan, 213 So. 2d 902, 902 (Fla. Dist. Ct. App. 1968). George’s attempts at defining equitable distribution of marital property have been consistently informed and underscored by an unjust bias in his favor. The behavior of George and counsel to get their way at any cost suggests a pattern that has long since gone unchecked. Although our courts are “conscious of the old common law rule giving the husband full control of the wife’s property and income and subjecting her to his will in every species of transaction,” such practice is no longer controlling precedent; “equity and the statutes have removed practically all such restrictions.” Strauss, 3 So. 2d at 728. It was necessary, and inevitable, that this change take place because such a system is “harsh and inequitable.” Id. George and counsel believe themselves to be operating in the common law system where a husband can expect complete domination and control over his “property”: his wife and their shared real estate. Through its decision, the majority pays deference to and rewards this behavior. Judge Mann appropriately notes in his dissent in the Coggan interlocutory appeal case that the bench and bar “have an important responsibility in the administration of justice. When the courts are clogged the wronged go without recompense and the guilty without punishment.” Coggan, 213 So. 2d at 904. George and counsel have monopolized resources within our system of justice since 1963 and created unnecessary roadblocks to a fair distribution of property. The majority decision is a contortion of the facts and sanctions conduct that makes it even more difficult for one gender to equitably separate from a spouse. It ignores the principle that, whenever possible, practical considerations such as the imbalance of power within a marriage must override any contrived theory that prevents the administration of justice. Accordingly, we respectfully dissent.

part vii

Exclusionary Zoning

15 Commentary on Moore v. City of East Cleveland berta esperanza herna´ ndez-truyol

Moore v. City of East Cleveland1 is both a victory and a missed opportunity. It is a victory in the context of the U.S. Supreme Court’s pronouncement of the reach of the Fourteenth Amendment’s protection of families. Moore extends the understanding of the liberty interest in family and family life found by the Court in the Due Process Clause of the Fourteenth Amendment to members of an extended family. Such reading of the liberty interest extends protections, given historical trends regarding who lives in extended families, to the poor, to minorities, to immigrant families, and to cultural “others.” But through the feminist lens, the case highlights a missed opportunity in its failure overtly and unapologetically to adopt an anti-subordination feminist approach that considers – indeed centers – the multidimensionality of the legal concerns in Moore: matters of sex, race, diverse family structures, and socioeconomics. The case is a story about Inez Moore, an older AfricanAmerican woman – a grandmother living in a city that had lost the economic glory of its millionaire-residents’ past and was struggling in an era of hostility to neighborhood integration. In short, Moore is a case in which the Court upheld Inez Moore’s challenge to an ordinance that rendered her a criminal simply for living with two of her grandchildren in her own home. The specific facts are familiar to legions of law students. Mrs. Moore moved to East Cleveland in the 1960s. In 1966, East Cleveland passed an ordinance that both defined “family” narrowly and limited the occupancy of any dwelling to one family. Section 1341.0(d) provided that notwithstanding the other subsections defining family, “a family may include not more than one dependent married or unmarried child of the nominal head of the household or of the spouse of the nominal head of

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Moore v. City of East Cleveland, 431 U.S. 494 (1977).

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the household and the spouse and dependent children of such dependent child.” In addition, Section 1351.02 provided that the “occupancy of any dwelling unit shall be limited to one, and only one, family and to any authorized persons occupying such dwelling unit with such family.” Mrs. Moore lived in her two-family home in the City of East Cleveland with her son Dale Moore and his son, her grandson, Dale Jr. She had another son, John, who had a son, John Jr. Although John did not live with Mrs. Moore, John Jr. did. When John Jr. was still an infant, he went to live with his grandmother when his mother passed away. Mrs. Moore never encountered any problems with the challenged ordinance until she tried to register John Jr. in school when he was 6 years old and about to enter the first grade.2 At first, Mrs. Moore was not allowed to register John Jr. because she was not his guardian and the school board had instituted a requirement that only legal guardians could register children to avoid financial drain on the school district. She successfully challenged the guardianship requirement with the help of the Legal Aid Society. But this event seems to have placed Mrs. Moore on the City’s radar. After the guardianship challenge, an East Cleveland Deputy Housing Inspector started to visit the Moore home and give citations for myriad violations.3 There were citations for structural violations – such as leaks, defective lighting, and walls in need of repair – that Mrs. Moore sought to remedy. But what she could not easily solve was the designation of John Jr. as an illegal occupant, someone who could not live in her home. Because her grandson lived with her, Mrs. Moore was criminally charged with permitting two families to live in a single-family home, contrary to the ordinance’s provisions. With Legal Aid again representing her, she asked the trial court to dismiss the case claiming that the ordinance was unconstitutional. The motion failed and Mrs. Moore was found guilty of violating the ordinance. The trial court fined her $25.00, ordered her to spend five days in jail, and required her to remove John Jr. from her house. This she could not do. She appealed first to the intermediate appeals court, which affirmed the conviction, and next to the supreme court of the state, which denied review. Mrs. Moore would not give up. She went to the ultimate arbiter of what the law is in the country – the United States Supreme Court. She challenged the East Cleveland ordinance as violating her constitutional rights to due process,

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Nancy E. Dowd, John Moore Jr.: Moore v. City of East Cleveland and Children’s Constitutional Arguments, 85 Fordham L. Rev. 2603, 2606 (2017). Peggy Cooper Davis, Moore v. East Cleveland: Constructing the Suburban Family, in Family Law Stories 88 (Carol Sanger ed., 2008).

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equal protection, and property. The plurality opinion found it unnecessary to reach the equal protection or takings claims. The plurality opinion concluded, however, that the ordinance violated Mrs. Moore’s liberty interest under the Due Process Clause of the Fourteenth Amendment because of its “intrusive regulation of the family” – a regulation that intrudes on the liberty interest in “freedom of personal choice in matters of marriage and family life” that the Court has long recognized. The legitimate goals of minimizing traffic and avoiding financial pressures on schools were only marginally served by the ordinance. Justice Stevens joined in the judgment. However, he issued a concurring opinion stating his preferred theory that the ordinance, by regulating who could live with Mrs. Moore, was effecting a taking of property without just compensation. Since the Court rendered its judgment in 1977, citations to Moore evince two distinct propositions – one methodological and the other substantive. The methodological tool attributed to Moore is the Supreme Court’s standard to evaluate whether a right is fundamental. Specifically, citations to Moore often quote the requirement that, to be “fundamental,” a right must be “deeply rooted in this Nation’s history and tradition.”4 The substantive proposition for which Moore serves as authority is the fundamental right of a family, even an extended family as was the case in Moore, to be together. Acknowledging that “[s]ubstantive due process has at times been a treacherous field for this Court,”5 Justice Powell, writing for a plurality, nevertheless noted that “restraint” and not “abandonment” is the proper course with respect to substantive due process matters. The Court recognized “that the Constitution protects the sanctity of the family precisely because it is deeply rooted in this Nation’s history and tradition.”6 Moreover, the Court noted that the family tradition “is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition.”7 Thus, the Court concluded that the challenged ordinance could not stand as it constructed an “arbitrary boundary – the boundary of the nuclear family.”8

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Moore, 431 U.S. at 503. Id. at 502. Id. at 503. Id. at 504 Id. at 502.

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This recognition of the fundamental right to have family togetherness be protected – even extended family beyond the nuclear bond – is the case’s victory. But while, to be sure, the embrace of the extended family opens doors for the constitutional protection of other nontraditional families, the failure to expressly articulate these possibilities is part of the case’s shortcomings. Moreover, the Court missed the incalculably significant opportunity to bring race, sex, age, and economic considerations to the forefront in the analysis of the case with the purpose of achieving the deployment of justice for Mrs. Moore. Such an approach would have been the one taken with the adoption of a feminist lens. Interestingly, the concurrence of Justices Brennan and Marshall hints at this missed opportunity. It is only through this concurrence that we learn that Mrs. Moore is a 63-year-old grandmother at the time of the Supreme Court decision, that she is African-American, and that she is economically not thriving – an additional hint of which one had with the knowledge that it was the Legal Aid Society that was affording her legal representation. The concurrence makes plain that race matters in this case. Race matters because the unconstitutional definition of nuclear family embedded in the ordinance “is the pattern so often found in much of white suburbia . . . [and] [t]the Constitution cannot be interpreted . . . to tolerate the imposition by government upon the rest of us of white suburbia’s preference in patterns of family living.”9 Race matters because “[t]he extended form is especially familiar among black families,” with 13 percent of Black families living in extended family households as compared with 3 percent of White families.10 Sex and race matter because “[i]n black households whose head is an elderly woman, as in this case, the contrast is even more striking: 48% of such black households, compared with 10% of counterpart white households, include related minor children not offspring of the head of the household.”11 And race and economics matter because “[t]he ‘extended family’ . . . remains not merely still a pervasive living pattern, but under the goad of brutal economic necessity, a prominent pattern – virtually a means of survival – for large numbers of the poor and deprived minorities of our society.”12 The information provided by the concurrence helps shape the perspective, context, and experience13 of Mrs. Moore that is relevant to a feminist 9 10 11 12 13

Id. at 508 (Brennan, W. concurring). Id. at 509. Id. at 510. Id. at 508. Berta Esperanza Hernández-Truyol, Talking Back: From Feminist History and Theory to Feminist Legal Judgments and Methods, in Feminist Judgments: Rewritten Opinions of

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judgment – the approach to engaging in analysis and developing theory that seeks to expose, explore, understand, utilize, and center the realities of women’s lives. This feminist framework allows one to examine Mrs. Moore’s reality. She is poor – in the guardianship case, in which she was represented by The Legal Aid Society of Cleveland, she proceeded in forma pauperis.14 She is a Black woman who has managed to purchase a home in which she is raising her grandsons in a culturally and racially familiar extended family environment. She moved to East Cleveland in the mid-1960s as part of a movement that integrated a community that used to be 2.1 percent Black and looked much like the all-Black neighborhood in adjacent Cleveland.15 Thus the history of East Cleveland is relevant. In the late 1800s, East Cleveland was a small wealthy enclave that quickly grew. By the 1920s, it was a mix of mostly (approximately 85 percent) White US citizens and White immigrants. By the 1930s, it was no longer a village of wealthy inhabitants, and housing included not only the single homes of the past, but also two-family homes and multiple-family buildings. With the depression, East Cleveland took a turn to poverty with high unemployment and deteriorating housing. Home ownership dropped and disrepair grew. In the 1950s, the children of the original residents started their flight to newer, more fashionable suburbs.16 It was in the 1960s, in the context of this history, that Blacks, such as Inez Moore, began to move to East Cleveland in growing numbers. Such moves prompted speculation as to whether the City would become integrated or Black. The latter was the more likely outcome given the pattern of integration of residential areas in the United States. While ethnic Whites would first live in concentrated ethnic communities, as their economic stock became more robust, the pattern was to move and disperse across neighborhoods. Not so with Blacks for whom “a range of factors – some official, some private, and some a combination of the two – operated to maintain racial segregation.”17 Significantly, these segregation patterns continued as a matter of fact, even after – as a matter of law – it became illegal, sometimes effected by government policy, sometimes by private racially restrictive covenants.18

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the United States Supreme Court 24 (Kathryn M. Stanchi, Linda L. Berger, & Bridget J. Crawford eds., 2016). Davis, supra note 3 at 78. Id. at 79. Id. at 79–80. Id. at 80. See Shelly v. Kraemer, 334 U.S. 1 (1948) (invalidating courts’ enforcement of racially restrictive covenants).

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To be sure, East Cleveland authorities, aware of the influx of Blacks into the City and to deter “White-flight,” repeatedly amended the housing code to control both occupancy and upkeep of residential property, especially multiple-family residences.19 Yet, White-flight continued so the City engaged in a study to navigate the changing racial landscape. The report that was the result of the study, East Cleveland: Response to Urban Change, noted the possibility of increased segregation and impoverishment.20 Yet it also recognized the community’s strength and articulated an aspiration for an integrated, middleclass existence. The larger context, however, showed a climate of fear of disintegration and violence that was not only confirmed but exacerbated by national reports such as the Kerner Commission Report.21 Beyond this, Daniel Patrick Moynihan’s report identified Black family matriarchal structure as a source of “social pathology in black communities” and “the single-parent, and almost always female-headed household as a principal source of crime and other urban pathology.”22 It is in this imbroglio that Mrs. Moore’s fortunes were swept up from guardianship to occupancy. Thus, only by understanding Mrs. Moore’s complete reality can a judge engage in the full, proper, multidimensional, antisubordination, feminist analysis that is wholly absent from the case. Professor Danaya Wright, writing as Justice Wright, emphasizes in her opinion the facts and consequences of exclusionary zoning, a practice by which local governments implement restrictions on housing styles, sizes, occupancies, and uses to protect certain, usually White, neighborhoods and their property values, at the expense of other, usually non-White, neighborhoods. As this is a book on historically significant property cases, it is appropriate that she focus on the property aspects of the case more, for instance, than the due process or family law aspects. But it is important to note that these all dovetail in the Court’s cramped interpretation. Since 1922, cities have enacted zoning ordinances to control development and attract a selective type of growth.23 In analyzing a zoning ordinance in Mount Laurel, the New Jersey Supreme Court explains not only how certain zoning ordinances have led to declining real estate values and economic

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City of E. Cleveland & Anthony D. Little, Inc., East Cleveland: Response to Urban Change (1969). Id. See Davis, supra note 3, at 82. Id. at 83. See Euclid v. Ambler Realty Co., 272 U.S. 365, 386 (1926).

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protections for some and has privileged others, but also their racial and socioeconomic effects.24 The court explained how cities have acted affirmatively to control development and to attract a selective type of growth . . . [and] through [their] zoning ordinances ha[ve] exhibited economic discrimination in that the poor have been deprived of adequate housing and the opportunity to secure the construction of subsidized housing, and ha[ve] used federal, state, county and local finances and resources solely for the betterment of middle and upper-income persons. . . . This policy of land use regulation for a fiscal end derives from New Jersey’s tax structure, which has imposed on local real estate most of the cost of municipal and county government and of the primary and secondary education of the municipality’s children. The latter expense is much the largest, so, basically, the fewer the school children, the lower the tax rate. Sizeable industrial and commercial ratables are eagerly sought and homes and the lots on which they are situated are required to be large enough, through minimum lot sizes and minimum floor areas, to have substantial value in order to produce greater tax revenues to meet school costs. Large families who cannot afford to buy large houses and must live in cheaper rental accommodations are definitely not wanted, so we find drastic bedroom restrictions for, or complete prohibition of, multi-family or other feasible housing for those of lesser income. This pattern of land use regulation has been adopted for the same purpose in developing municipality after developing municipality. Almost every one acts solely in its own selfish and parochial interest and in effect builds a wall around itself to keep out those people or entities not adding favorably to the tax base, despite the location of the municipality or the demand for varied kinds of housing. There has been no effective intermunicipal or area planning or land use regulation . . .. One incongruous result is the picture of developing municipalities rendering it impossible for lower paid employees of industries they have eagerly sought and welcomed with open arms (and, in Mount Laurel’s case, even some of its own lower paid municipal employees) to live in the community where they work. The other end of the spectrum should also be mentioned because it shows the source of some of the demand for cheaper housing that the developing municipalities have permitted. Core cities were originally the location of most commerce and industry. Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorating housing. Despite the municipally confined tax structure, commercial and industrial ratables 24

Southern Burlington County N.A.A.C.P. v. Mount Laurel Township, 336 A.2d 713 (N.J. 1975).

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generally used to supply enough revenue to provide and maintain municipal services equal or superior to those furnished in most suburban and rural areas. The situation has become exactly the opposite since the end of World War II. Much industry and retail business, and even the professions, have left the cities . . .. A large segment of retail business faded away with the erection of large suburban shopping centers. The economically better situated city residents helped fill up the miles of sprawling new housing developments, not fully served by public transit. In a society which came to depend more and more on expensive individual motor vehicle transportation for all purposes, low income employees very frequently could not afford to reach outlying places of suitable employment and they certainly could not afford the permissible housing near such locations. These people have great difficulty in obtaining work and have been forced to remain in housing which is overcrowded, and has become more and more substandard and less and less tax productive. There has been a consequent critical erosion of the city tax base and inability to provide the amount and quality of those governmental services – education, health, police, fire, housing and the like – so necessary to the very existence of safe and decent city life. This category of city dwellers desperately needs much better housing and living conditions than is available to them now, both in a rehabilitated city and in outlying municipalities. They make up, along with the other classes of persons earlier mentioned who also cannot afford the only generally permitted housing in the developing municipalities, the acknowledged great demand for low and moderate income housing.25

As American cities have pursued roughly the same path, time and time again, poorer and non-White residents have been left behind to make do in deteriorating older housing that receives fewer and fewer public services while costing more and more in property taxes. This was the situation in East Cleveland when the City passed both its school guardianship requirement and its restrictive zoning ordinance. Hoping to prevent White-flight, it chose to punish those people it found undesirable rather than making investments to attract and keep the people it found desirable. The City, in effect, told the wealthy White people “Don’t leave, we will make life hard on poor, Black, and struggling families so they won’t come in, so you don’t have to leave.” By not seeing the multidimensional aspects of Mrs. Moore’s reality – race, sex, age, and socioeconomics – and the impacts of this reality in the zoning on which the Moore decision rests, Justice Powell, in his Moore opinion, simply

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Id. at 723–724.

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erases this profoundly important context. He ignores the lived reality of the Mrs. Moores of this world while ultimately protecting the sanctified family structure of more privileged Whites. Although Mrs. Moore benefitted from this decision by being allowed to remain in her home in East Cleveland with her two grandsons, economically disadvantaged families rarely see the benefits of family protections as their homes are scrutinized by code enforcement officers, their family relations are scrutinized by child protective services, they are held criminally liable simply for being poor, and they are blamed for making life unpleasant for the rest of us. Instead of trying to solve the problems of racism, sexism, ageism, inequality, and poverty, local governments instead erect more and more barriers between the privileged and the “undesirable” – those considered disposable people – thus normalizing the separation and blaming the victims. The City of East Cleveland was not unaware of the effects of exclusionary zoning. In fact, as discussed above, it had funded a study to examine ways to achieve precisely the effects it sought of maintaining White homeownership and resisting Black homeownership. The fact that the Supreme Court was unwilling to upset the exclusionary zoning practices that thousands of American cities were adopting is a testament to its conservative bias. By not even addressing the equal protection claim, the Court sidestepped this profoundly troubling practice and found refuge, instead, in the warm, fuzzy safety of family autonomy. Who doesn’t love families? But for families to thrive, they need safe neighborhoods, good jobs, and the opportunity to grow and transmit wealth from generation to generation. This is the missed opportunity. A feminist analysis contextualizes and addresses the real problems in the real people’s lives that are before the Court. In this case, the contextualization tells us that sex, race, and economics matter – and they matter indivisibly. This case is ripe for a feminist antisubordination, multidimensional analysis. Inez Moore was no less poor, than she was female, than she was Black. It is the combination of all those individual traits that placed her in the conundrum in which she found herself. The reality that she is Black, and that race matters, should have been the focus of, and therefore heightened, the scrutiny the regulation received. The reality that she is a woman should have been the focus of, and therefore heightened, the scrutiny the regulation received. The Court, had it wished to engage Mrs. Moore’s reality, even had precedent to rule that the reality that she is poor should have heightened the scrutiny the regulation received. On the economics side, the Court had materials from which to draw. In James, Justice Marshall, dissenting in a case

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in which a state provision required a referendum for expenditure of funds for housing for persons of low income, but not for others, noted that the regulation specifically “singles out low income persons to bear its burden” and should constitute invidious discrimination.26 Justice Marshall cited to Justice Harlan’s dissent in Douglas in which, referring to the same article at issue in James, Harlan concluded that it constituted “an explicit classification on the basis of poverty – a suspect classification which demands exacting judicial scrutiny.”27 In looking at the “facially neutral” regulation of the Moore case, there is no hint that sex, race, and poverty are relevant. But the history and the context tell us these protected characteristics are central to the plight of Mrs. Moore. The disparate impact of facially neutral regulations that have disparate impacts on the basis of sex, race, and economics matters. Thus, the overturning of Washington v. Davis and San Antonio Independent School District v. Rodriguez, as Wright does in her rewritten opinion, is imperative. Overturning Washington v. Davis is vital to a feminist understanding of the multidimensionality of discrimination for, in many situations, laws have a disparate impact on protected classes but lack the overt discriminatory motive the Court required in that case. But when race-, class-, and sex-based discrimination occur under the guise of a supposedly neutral, economically based law, a feminist lens tells us that the law is wrong. Rodriguez also needs to be overturned because the Court in that case held that economic- and classbased legislation is not subject to heightened scrutiny, thus providing an excuse for the exclusionary zoning that made Mrs. Moore a criminal. As Wright explains in her rewritten opinion, the limitation of Belle Terre is necessary to protect a broader definition of family, a definition that protects not just blood- and marriage-based families, but families who are chosen but may not fit White, middle-class, heterosexual norms. A feminist analysis takes us to this outcome. The ordinance is unconstitutional, yes, because family matters and, yes, because the liberty interest of the Due Process Clause of the Fourteenth Amendment includes family togetherness that is thus protected in this case. But that simple, unproblematized outcome does not protect beyond Mrs. Moore. There are many Mrs. Moores in the world who are disadvantaged by law because of who they are – poor women of color. Let the Moore v. City of East Cleveland opinion – rewritten in a feminist voice – incorporate the lived reality of those who are 26 27

James v. Valtierra, 402 U.S. 137, 144 (1971) (Marshall, J. dissenting). James, 402 U.S. at 144–145 (quoting Douglas v. California, 372 U.S. 353, 361 (1963) (Harlan, J. dissenting)).

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entitled to constitutional protection and recognize that multidimensionality matters. Only such feminist methodology will provide legal protection to the vulnerable, the marginalized, the subordinated.

MOORE V. CITY OF EAST CLEVELAND, 431 U.S. 494 (1977)

justice danaya c. wright delivered the opinion of the court i Facts This case should have been easy and unproblematic as, at its core, it involves the protection, nurturance, and support of the family unit so deeply ingrained in our jurisprudence that few would question its fundamental status. Mrs. Inez Moore lives in her East Cleveland home with her adult son, Dale Moore Sr., his son Dale Moore Jr., and her grandson John Moore Jr. John Jr. is the son of Mrs. Moore’s other son, John Moore Sr. Mrs. Moore, as families do, embraced the care of her grandson John Jr., who came to live with her at the age of 1 after the death of his mother. However, technical legal problems arose under the City of East Cleveland’s housing ordinance, which, like many throughout the country, limits occupancy of a dwelling unit to members of a single family. Yet unlike most, this ordinance defines as family only those persons narrowly related by blood or marriage within a single degree of relationship: essentially a nuclear family of married parents and their biological or adopted children, or a three-generation family descended in a single line.28 E. Cleveland, Ohio Housing Code §§1341.08, 1351.02 (1966). The definition of family as adopted by the City excludes from its dwelling units many common family groupings, such as the adult brother and sister, the married woman who rejoins her parents while her husband is in the armed forces, the married couple who takes in and raises an orphaned niece or nephew, the grandmother who raises the children of her deceased daughter, the married couple and their children who provide a familial sanctuary for their immigrant uncle, and the many configurations of family to which

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The zoning ordinance provided that “not more than one dependent married or unmarried child of the nominal head of the household or of the spouse of the nominal head of the household and the spouse and dependent children of such dependent child” could reside together.

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economically disadvantaged families resort to ensure the care of their multigenerational households. Because her two grandsons are cousins and not brothers, Mrs. Moore’s living arrangement of two adults and two children violates the East Cleveland single-line housing ordinance. East Cleveland is a suburb of Cleveland, Ohio, and contains a portion of Euclid Avenue. From the 1860s until about the 1920s, Euclid Avenue was called “millionaire’s row” and was the site of many historic homes, including that of John D. Rockefeller. By the 1960s, however, East Cleveland was no longer the fashionable suburb of the more industrial Cleveland, as the wealthy, mostly White, population had moved further into the suburbs, and East Cleveland became a city with a predominantly Black population. The change in racial demographics allowed many Black families to own their own homes relatively free of the restrictive covenants and de facto segregation that existed in other predominantly White areas of Cleveland. Housing restrictions are a familiar pattern in most American cities, despite the fact that de jure racial zoning was declared illegal in 1917. See Buchanan v. Warley, 245 U.S. 60, 82 (1917). Mrs. Moore, like 95 percent of her neighbors in East Cleveland, is Black. Mrs. Moore owns a duplex containing two houses in East Cleveland. She lives in one and rents the other, often to members of her own extended family. Mrs. Moore has a large family – three sons, one daughter, and twenty-two grandchildren. Although she resided only with her son Dale and two grandsons, Dale Jr. and John Jr., she was held in violation of the East Cleveland housing ordinance. When it came time for John Jr. to attend grade school at the age of 6 and Mrs. Moore attempted to register him, she was turned away because she was not his legal guardian, even though he had lived with her for five of his six years. The school board had implemented a requirement that only legal guardians could register children for school, a requirement that helped reduce school attendance and the corresponding financial drain on the local school district. Strict rules like the school board’s guardianship requirement are commonplace methods to resist integration of traditionally White neighborhoods and to make access to social services more difficult. Rep. of the Nat’l Advisory Comm. on Civil Disorders 27–28 (1968). Formal legal restrictions, like the school board’s guardianship requirement, significantly hamper economically disadvantaged families – working-class and minority populations – that may be unable or unwilling to comply with such formalities. These laws tell many people that they are not welcome in the neighborhood. If they leave, or never enter at all, the City is relieved of financial burdens and can expend its resources on the wealthier White residents it hopes to retain.

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Taken aback by what she perceived as an unreasonable requirement, Mrs. Moore sought advice from Legal Aid concerning her inability to register John Jr. for school. Legal Aid’s subsequent class action suit against the East Cleveland school board vindicated Mrs. Moore, as the claim was settled by elimination of the guardianship requirement. However, Mrs. Moore’s exercise of her legal rights vis-à-vis her family had the consequence of placing her on the City’s radar. Shortly after the settlement, a housing code inspector cited Mrs. Moore for being in violation of the strict single-line housing ordinance and, fourteen months later, she was charged criminally with “unlawfully permit[ting] two families to occupy a single family dwelling unit.” Appellant’s Brief, 5. Legal Aid again represented Mrs. Moore, filing a motion to dismiss on the ground that the ordinance was unconstitutional. The motion was rejected and Mrs. Moore was found guilty. She was fined $25.00 by the trial court, ordered to spend five days in jail, and mandated to remove her grandson from her house immediately. The Ohio Court of Appeals affirmed the conviction, the Ohio Supreme Court denied review, and she has now petitioned to this Court on the grounds that the housing ordinance violates her constitutional individual liberty interest under the Fourteenth Amendment Due Process Clause, her right to be treated equally under the law pursuant to the Equal Protection Clause, and her property rights under the Just Compensation Clause of the Fifth Amendment, which is incorporated through the Fourteenth Amendment Due Process Clause.

ii Procedural Posture A Although this Court has established prudential constraints that militate against deciding constitutional issues if there are other statutory or administrative grounds for resolving a dispute, U.S. v. Rumely, 345 U.S. 41 (1953), we eschew that constraint here for a number of reasons. Mrs. Moore raises due process, equal protection, and takings issues in this case, all of which are important claims that demand we resolve conflicting precedent. Recent decisions have created confusion over the relationship between the state’s duty not to discriminate and the proof required to show a constitutional violation. See Washington v. Davis, 426 U.S. 229 (1976); Village of Belle Terre v. Boraas, 416 U.S. 1 (1974); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973). Mrs. Moore’s challenge to the East Cleveland ordinance highlights precisely

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why we must be firmer in our refusal to tolerate discrimination and clearer in our guidance to government entities about what level of proof they must provide to sustain laws that have discriminatory impact on suspect classes and on fundamental rights. Since our decision in Euclid, affirming the power of local governments to impose land use restrictions through zoning ordinances, local governments have used that power creatively to achieve many legitimate goals, such as reducing overcrowding, traffic congestion, and slum conditions while minimizing land use conflicts and improving health and safety. Euclid v. Ambler Realty Co., 272 U.S. 365, 397 (1926). But they also, at times, have wielded that power for illegitimate purposes to undermine this Court’s decisions in Buchanan, outlawing racial zoning, and Shelley, outlawing racially restrictive covenants. Buchanan v. Warley, 245 U.S. 60, 82 (1916); Shelley v. Kraemer, 334 U.S. 1, 22 (1948). Some restrictive and exclusionary zoning ordinances maintain certain communities for White residents by using class-based criteria to exclude economically disadvantaged families. Studies in other areas of the country have shown precisely how damaging certain ordinances can be to struggling and low-income families. See, e.g., N.J. Dept. of Cmty. Affairs, Div. of State and Reg’l Planning, Land Use Regulation, The Residential Land Supply (April 1972) (a study assembling and examining the nature and extent of municipal zoning practices in sixteen counties as affecting residential land available for low and moderate income housing); Norman Williams Jr. & Thomas Norman, Exclusionary Land Use Controls: The Case of North-Eastern New Jersey, 22 Syracuse L. Rev. 475, 486–487 (1971). By relying on ostensibly neutral zoning requirements, municipalities can severely limit the size of families allowed to reside in their communities in order to attract only the well-to-do and limit the demands on schools, parks, and other public services. Exclusionary zoning uses maximum density, minimum square footage, and setback requirements to ensure that only the well-off can afford the large single-family homes allowed in their districts. Cities like East Cleveland also use exclusionary zoning to limit, or prohibit altogether, multi-family housing or smaller homes that economically disadvantaged families, including but not limited to immigrant, minority, working-class, and single-parent families, can afford.29 At the same time, zoning ordinances might prohibit industrial and

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We use the term “economically disadvantaged families” to include all families who struggle economically to reach or maintain the middle-class nuclear family ideal and understand that many individuals come from families that cross multiple identity categories of race, ethnicity, age, sex, immigrant status, class, sexuality, marital status, and the like.

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heavy commercial uses that provide jobs for those in economically disadvantaged families, and yet allow light commercial uses, such as shopping centers and grocery stores, that depend on minimum-wage workers who, by virtue of the high costs of housing in the neighborhood, cannot afford to live near their work. This type of zoning creates havens of economically privileged suburbs where the costs of social services for schools, transportation, and public parks are easier to meet because of the higher tax base and lower demand resulting from lower housing density. This leads to a cycle in which inner cities come to house the economically disadvantaged in deteriorating multi-family housing where the demands for social services are higher and the tax base is eroding as heavy industry moves overseas and wealthy residents move to the suburbs. The cycle is further exacerbated as low-wage workers, unable to live near their jobs, are forced to commute out to the suburbs from the inner cities, where crime is high and services are low. Exclusionary zoning, in conjunction with social service restrictions like Mrs. Moore’s successfully challenged guardianship requirement for school registration, exacerbates the suburban sprawl and deterioration of our inner cities. It is irrelevant whether exclusionary zoning is motivated by a desire to maintain a high tax base or exclude racial and ethnic minorities or economically disadvantaged families if the effect is to perpetuate the de jure race-based zoning and restrictive covenants of post– Civil War Jim Crow segregation. We agree that the City of East Cleveland may enact reasonable zoning ordinances to facilitate orderly growth and prevent conflicting land uses, Euclid, 272 U.S. at 389–390, reduce overcrowding and congestion, Belle Terre, 416 U.S. at 5, alleviate noise and unsanitary conditions, Berman v. Parker, 348 U.S. 26, 36 (1954), and otherwise further legitimate public health and safety objectives. But we must be especially wary that the zoning power is not used as a license for local communities to enact senseless and arbitrary restrictions that cut deeply in the private areas of an individual’s domestic autonomy. East Cleveland may not define “family” so narrowly that it abridges the “freedom of personal choice in matters of . . . family life [that] is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.” Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639–640 (1974). Nor may the City define “family” so narrowly that it violates the constitutional imperative of equal treatment under the law or that it takes a private property right for a public use without just compensation. A local municipality must exercise its zoning power to further the legitimate goals of health and safety without violating the constitutional rights of those who choose to live within its domain. Because prior precedents of this Court, even from as recently as last term, may be read to allow local governments

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to use the zoning power in illegitimate ways assured that they will receive a wink and a nod from this Court, it is time to clarify the scope of the Due Process, Equal Protection, and Just Compensation Clauses in relation to exclusionary zoning. B Much ado has been made in this case about the fact that Mrs. Moore simply could have applied for a hardship variance. Chief Justice Burger, in his dissent, not only accuses Mrs. Moore of willfully failing to pursue her administrative remedies, but then he shames her for taking space on the Court’s docket that could have gone to more “deserving” cases. The Chief Justice’s words are harsh: Appellant’s deliberate refusal to use a plainly adequate administrative remedy provided by the city should foreclose her from pressing in this Court any constitutional objections to the city’s zoning ordinance. Considerations of federalism and comity, as well as the finite capacity of federal courts, support this position. In courts, as in hospitals, two bodies cannot occupy the same space at the same time; when any case comes here which could have been disposed of long ago at the local level, it takes the place that might well have been given to some other case in which there was no alternative remedy.

The Chief Justice’s words ring particularly hollow to plaintiffs like Mrs. Moore who are so often told that their problems are unimportant, that the courthouse is reserved for important people, that they should not trouble their government with their insignificant slights. However, Mrs. Moore’s rights are as important and she asks no more than what all law-abiding individuals are entitled to ask, that they should not be worn down by the innumerable burdens and inconveniences that minorities, women, and the poor are forced to endure simply because they cannot afford the rights and privileges of White men. In Belle Terre, this Court did not chastise Mr. Boraas, a White neuropathic doctor from Minnesota who was a graduate student sharing a fourteen-room house with five other SUNY Stony Brook graduate students. 416 U.S. at 2. Nor did it chastise Dr. and Mrs. Judith Dickman, a White dentist and his wife, who rented the home in Long Island to Mr. Boraas, for wasting the Court’s time over a similarly restrictive zoning ordinance. We refuse to tell Mrs. Moore that her constitutional rights are less important than the constitutional rights of wealthy White residents of Long Island, of the City Commissioners of East Cleveland, or even members of this Court. Moreover, in Belle Terre, the Dickmans and Mr. Boraas were not charged with a criminal offense and did not have to spend time in jail for trying to

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utilize their property as they wished. Mrs. Moore, on the other hand, was jailed for trying to maintain her family together and would have had a permanent criminal record had she not challenged the law. A simple variance would not remove the chilling effect of a criminal statute like the one here, the very kind of low-level criminal statutes that are constantly used to police economically disadvantaged families and individuals in our society. See, e.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972). The Chief Justice is correct that the federal courts are facing overcrowded dockets, and that litigants are well-advised to pursue the simple and less-costly administrative remedies that are available to them. But such advice prevails only where the legislation is constitutional on its face, where its application works a hardship, and where the discretion and the will lie with local authorities to ameliorate such hardships. Requiring that Mrs. Moore exhaust her administrative remedies makes her jump through administrative hurdles that deflect attention away from the fundamental issue, which is the unconstitutionality of the law in the first place. Were Mrs. Moore to have obtained her variance, as the Chief Justice demands, and for which there is little guarantee she will succeed, then there would be no reason for judicial review of this local ordinance that severely violates the due process, equal protection, and property rights of all of Mrs. Moore’s neighbors. Where the law is constitutional on its face, the requirement of exhaustion of administrative remedies makes sense, for there the question is the application of the law to the particular petitioner. If the government recognizes that the application of a facially constitutional law may be problematic, the government and the petitioner can work out a viable compromise. But where the law is facially unconstitutional, as is the case with the City’s zoning ordinance, it would be a travesty of justice to require that Mrs. Moore negotiate to relieve herself from the unconstitutional effect but leave others subject to it. For who will challenge an unconstitutional law if the state can always fall back on discretionary exceptions and post hoc remedies to wriggle out of liability rather than rescind the law and remove its unconstitutional constraints? And how many people in Mrs. Moore’s position will have to turn away family members who need help, or will refrain from taking advantage of local schools or other services from fear of being discovered in noncompliance with this strict law? The threat of criminal prosecution hangs over everyone’s head in East Cleveland, forcing many who are barely struggling to get by to live in the shadows and forego their constitutional rights. The Chief Justice’s vitriolic tirade against the Black grandmother who dared to assert her right to be heard in the highest Court of the land exposes precisely the lack of concern for equality and due process that keeps the subjugated in their place and allows

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the elite and the privileged to dominate politics, law, and government. Despite the Chief Justice’s complaint, it is vital to all the people in Mrs. Moore’s situation that we directly confront the City’s unconstitutional actions that infringe her right to live with dignity in her family of choice.

iii Due Process Mrs. Moore argues that the single-line definition of family in the zoning ordinance of the City of East Cleveland violates the fundamental privacy right of individuals to make decisions about their family, their intimate relationships, and their domestic arrangements – and she is correct. The right of individuals to make decisions about their family and intimate relationships has been recognized and protected by this Court for over a half a century. In 1888, the Court described marriage as “creating the most important relation in life,” and as an institution constituting the “foundation of the family and of society. Maynard v. Hill, 125 U.S. 190, 205, 211. In 1923, the Court affirmed the “right to marry and establish a home” was fundamental. See Meyer v. Nebraska, 262 U.S. 390, 399 (1923). That principle has been affirmed in countless cases involving family relationships and living arrangements. See Pierce v. Society of Sisters, 268 U.S. 510, 534–535 (1925) (involving the rights of parents to control the upbringing of their children); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (involving the right to procreate); Prince v. Massachusetts, 321 U.S. 158 (1944) (involving, inter alia, the choice of housemates); Griswold v. Connecticut, 381 U.S. 479, 485 (1965) (involving the right to privacy in choosing to beget a child); Loving v. Virginia, 388 U.S. 1, 12 (1967) (involving the choice of whom to marry); Stanley v. Illinois, 405 U.S. 645, 649 (1972) (involving the right to parent one’s own children); Roe v. Wade, 410 U.S. 113, 153 (1973) (involving the choice to terminate a pregnancy). The right to choose who will share one’s home is a “principle . . . of justice so deeply rooted in the traditions and conscience of our people,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934), as to fall squarely within the liberty and privacy interests protected by the Fifth and Fourteenth Amendment Due Process Clauses. The City claims that our decision in Belle Terre established the right of cities to limit who can live together in a single-family zoned neighborhood. In that case, the Village of Belle Terre sought to evict six unrelated college students residing in a single-family home in an upscale, residential town on Long Island, New York. We commented that congestion, overcrowding, and

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excessive traffic are legitimate concerns of any municipality and upheld the Village’s action evicting four of the students. But the City reads Justice Douglas’s opinion in Belle Terre too broadly. Justice Douglas wrote that “the police power is not confined to elimination of filth, stench, and unhealthy places. Belle Terre, 416 U.S. at 8. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.” Id. While we agree with this statement, it must be understood in light of the individual’s right to choose the members of his, her, or their own family. Justice Marshall made clear in his dissent in Belle Terre that families may be preferred over transient individuals, but the identity of the family members may not be restricted: “[z]oning officials properly concern themselves with the uses of land – with, for example, the number and kind of dwellings to be constructed in a certain neighborhood or the number of persons who can reside in those dwellings. But zoning authorities cannot validly consider who those persons are, what they believe, or how they choose to live, whether they are Negro or white, Catholic or Jew, Republican or Democrat, married or unmarried.” Id. at 14–15 (Marshall, J., dissenting). Family values cannot mean protections only for persons related by blood or marriage, but rather must include those who choose their families differently. To the extent the decision in Belle Terre affirms the right of the state to limit the number of persons in a given dwelling unit, based on the number of bedrooms, bathrooms, square footage, or lot size, it may do so only consonant with the constitution’s guaranteed right to privacy and its protection of the individual liberty to personal choice in matters of family life. Id. at 9. Indeed, Belle Terre does not affirm, because it cannot, the right of the state to make zoning decisions based on narrow definitions of family or traditional family values that do not serve an impartial health and safety purpose. The establishment of a family home is in itself a decision about who will share familial living space. These are matters of intensely personal choice and matters which society has historically considered to be beyond the province of even legitimate governmental intrusion. The City’s ordinance relying on an extremely narrow definition of the nuclear family is out of step with history and with the patterns of modern society. In times of crisis, the American family has traditionally reorganized itself into a more extended family pattern to accommodate the needs of its members. An English visitor to the United States wrote in 1848, “Our blessed custom they have in America resulting from the abundance which they enjoy; a man dies, his widow and children are objects of peculiar care to the surviving branches of his family; the mother dies, her orphans find a home among her friends and relatives.” Arthur W. Calhoun, A Social

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History of the American Family 23 (1945). This practice of expanding the home to assist relatives has continued to be an accepted tenet of our society. Among all segments of modern American society, and especially within families which lean toward traditional religious values, kinship ties are relied on to provide a home for emotionally or economically needy relatives. John Kosa, Leo D. Rachiele, & Cyril O. Schommer, Sharing the Home with Relatives, 22 Marriage & Fam. Living 129 (1960). The extended family is of particular importance to elderly persons. It is recognized that the elderly need to maintain strong family ties to effectively cope with life as they grow older. A sample obtained by the United States Census Bureau in 1952 revealed that among elderly people (65 years and older) one-fourth of the married couples, almost one-third of the widowed, single, divorced, and separated males, and almost half of the widowed, single, divorced, and separated females lived with their children. Donahue and Tibbits (eds.), The New Frontiers of Aging 161–162 (1957). With the rapid increase in the percentage of elderly persons in our society, the prevalence of the extended family can be expected to increase. Robert C. Atchley, The Social Forces in Later Life: An Introduction to Social Gerontology 9 (1972). Among subgroups within our society, the extended family is more common among the very affluent and the very poor. Betty Yorburg, The Changing Family 108 (1973). Black families and White ethnic families frequently tend to be extended families. Michael Novak, The Rise of Unmeltable Ethnics 300 (1973). Within the Black lower class it has been quite common for several generations, or parts of the kin, to live together under one roof. Often a maternal grandmother is the acknowledged head of this type of household, which has given rise to the term “matrifocal” to describe lower-class Black family patterns. John H. Scanzoni, The Black Family in Modern Society 134 (1971). Mrs. Moore’s situation is not novel, nor is it unprecedented, and protecting the hundreds of thousands of individuals in this country who choose to live differently is why the Constitution protects the individual rights of the minority against the tyranny of the majority. The Due Process Clauses of the Fifth and Fourteenth Amendments provide that no person shall be deprived of life, liberty, or property without due process of law. Defining the contours of the liberty interest that is protected by these amendments has not been without some debate and has at times been a treacherous field for this Court. As the history of the Lochner era demonstrates, there is reason for concern lest the only limits to such judicial intervention become the predilections of those who happen at the time to be Members of this Court. That history counsels caution and restraint. But it does not counsel

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abandonment, nor does it require what the City urges here, cutting off any protection of individual rights at the first convenient, if arbitrary, boundary – the boundary of the nuclear family. Appropriate limits on substantive due process come not from drawing arbitrary lines, but rather from careful “respect for the teachings of history [and] solid recognition of the basic values that underlie our society.” Griswold, 381 U.S. at 501 (Harlan, J., concurring). Although it is tempting to view the traditional family arrangement of married parents and their biological children residing in a single-family home as the historical norm, it has only recently become the norm, and its dominance is quickly waning as economic and social pressures make it less and less likely that each successive generation will be able to live as comfortably as did the great generation in the postwar years of the mid-twentieth century. Today, rare indeed is the family that can survive on a single income with the male breadwinner and the female homemaker. More importantly, the Constitution protects the rights of individuals to be different from the norm, to dissent and to diverge in matters of fundamental individual rights. Personal autonomy in matters of intimate decision-making, like the decision to marry or not marry, to have or not have children, to love any person regardless of race or religion, have been recognized by this Court as the most fundamental of liberty interests protected by the Constitution. See Griswold, 381 U.S. at 485; Stanley, 405 U.S. at 649; Roe, 410 U.S. at 153; Loving, 388 U.S. at 12; Poe v. Ullman, 367 U.S. 497 (1961). The individual’s right to eschew the patriarchy of established marriage or the dictates of a homogeneous society in favor of diversity, love, dignity, and intimate fulfillment is fundamental to a free society that protects ordered liberty. Whether one chooses to live with one’s legal spouse and biological children, one’s unmarried partner, one’s extended family, one’s foster children, a menagerie of pets, a community of like-minded artists, or a cohort of work-mates, the individual right to choose with whom to share one’s most intimate private space and to define the relationships that nourish the soul is one of the most sacred rights of a free people. Against this fundamental right, the City of East Cleveland offers many justifications for its authority to limit the domestic arrangement of Mrs. Moore and her grandchildren. But to pass muster, the City must show a compelling justification and that its choice of means is the least restrictive to the fundamental rights at issue. That is a high bar, but it is not an impossible bar. Cities have legitimate objectives in limiting the numbers of people who can reside in certain-sized homes or neighborhoods, and they have important health and safety justifications for limiting crowding and congestion, traffic,

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squalor, noise, and incompatible land uses. An individual’s right to choose one’s domestic arrangement does not extend to living next to the city landfill, like the Ewells, without electricity or running water, and to raise children with no access to sanitary facilities or public education. This Court made clear in 1926 that the City may have a legitimate objective in limiting how land will be used, with residential areas protected from industrial areas. Euclid, 272 U.S. at 395. But the City does not have a legitimate objective in limiting the kinds of people who can live in certain areas or interfering in property transactions between willing buyers and sellers. This Court struck down racial zoning in 1917. Buchanan, 245 U.S. at 82. In 1948, we struck down racial covenants, insisting that property laws such as zoning and real covenants may not restrict property ownership or its use to certain categories of people, certain races of people, or people of certain religions. Shelley, 334 U.S. at 22. Just as restrictions on interracial marriages are unconstitutional, Loving, 388 U.S. at 12, land use restrictions based on citizenship status, marital status, race, sex, age, ability, religion, veteran status, political viewpoint, and other identity categories are inherently unreasonable. Although Justice White, in his dissenting opinion, cautions this Court against expanding the fundamental liberties protected by the Due Process Clause lest we fall back into the Lochner trap, that is not a concern here. Judges are not “roaming at large in the constitutional field,” Griswold, 381 U.S. at 502, when they protect the sanctity of intimate domestic decision-making. In fact, the decision about with whom to share one’s home is just as intimate and deserving of privacy protections as the decision about whom to marry. To be sure, the state has a legitimate interest in protecting vulnerable persons. For too many centuries, wives and children have been, and unfortunately continue to be, abused and neglected because the state has created a so-called private sphere in which it fails to interfere. Ironically, however, as with the challenged ordinance, the state often meddles in this private sphere in matters that pose no threat of harm while failing to intervene when the lives of vulnerable persons depend on it. Where there is no allegation of abuse of power, the state has no business limiting persons to whom Mrs. Moore can open her home, certainly not to exclude her orphaned grandchild. So long as her actions do not violate legitimate and reasonable zoning codes designed to protect the health and safety of the residents and neighbors, Mrs. Moore has the constitutional right to share her home and her private life with anyone of her choosing, regardless of the racially and economically exclusionary predilections of neighbors and politicians. Whether the right to choose one’s domestic companions is deemed a fundamental right or simply an important constitutional liberty interest, the

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state must show at minimum a rational basis for interfering with that right. There is no rational reason for limiting the domestic arrangement to the nuclear family of parents and children, or the three-generational family in a single line. The ordinance uses exclusionary zoning and social engineering in privileging the privileged, and not the legitimate concerns of public health and safety. The ordinance already protects against overcrowding through the minimum square-footage requirement. Thus, the extremely narrow definition of family irrationally and arbitrarily infringes on Mrs. Moore’s constitutional right to privacy without serving an independent legitimate end. There would be no change in the size or the use of Mrs. Moore’s home if Dale Jr. and John Jr. were brothers rather than cousins. Consequently, the City’s justification simply cannot withstand even the most basic rational basis review. By making Mrs. Moore a criminal because her grandsons were cousins and not brothers, the City unconstitutionally infringes on Mrs. Moore’s privacy right. She is constitutionally entitled to determine the persons who can reside in her home. Just as the federal government may not restrict food stamps based on the domestic arrangement of its recipients, U.S. Dept. of Agric. v. Moreno, 413 U. S. 528, 534 (1973), the City of East Cleveland may not evict Mrs. Moore’s grandson from the home that she has chosen to provide for him simply because she provides that same benefit to his cousin. The City’s housing ordinance distinguishes residents on the basis of an unconstitutional distinction that drives deeply into the private zone of an individual’s domestic decision-making, thus violating Mrs. Moore’s due process liberty interest. To the extent this Court’s holding in Belle Terre suggests that ordinary zoning ordinances may restrict the privacy rights of individuals to determine the persons with whom they will establish intimate domestic arrangements, we hereby clarify that it does not and, further, to the extent Belle Terre is at odds with this decision, it is overruled.

iv Equal Protection This Court has also established that certain regulations are unconstitutional as a violation of the Equal Protection Clause when they establish classifications that are arbitrary and capricious. Classifications that distinguish between groups defined by race, class, gender, or other immutable characteristics are particularly suspicious and deserving of higher judicial scrutiny. Classifications that result in denial or infringement of fundamental liberties are also particularly suspicious and deserving of higher judicial scrutiny. In

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this case, the City’s ordinance distinguishes between those persons who choose to live in traditional domestic arrangements and those who, by choice or economic necessity, live in extended family or unrelated households. Because the latter include many economically disadvantaged families – including immigrant, minority, female-headed, and less wealthy – the burden of this ordinance falls more heavily on them than on the majority of White middle-class Americans. The City’s narrow definition of family forces individuals into a White, middle- and upper-class paradigm that is unsustainable and unsustaining for many individuals and families. Because race, sex, and class intersect in indelible ways, this Court must be vigilant to ensure that government classifications like the one at issue here do not compound the inequalities into double or triple burdens. In today’s America, the “nuclear family” is the pattern so often found in much of White suburbia. J. Vander Zanden, Sociology: A Systematic Approach 322 (3d ed. 1975). The Constitution cannot be interpreted, however, to tolerate the imposition by government upon the rest of us of White suburbia’s preference in patterns of family living. The “extended family” that provided generations of early Americans with social services and economic and emotional support in times of hardships, and was the beachhead for successive waves of immigrants who populated our cities, remains not merely still a pervasive living pattern, but, under the goad of brutal economic necessity, a prominent pattern – virtually a means of survival – for large numbers of the poor and deprived minorities of our society. For them, compelled pooling of scant resources requires compelled sharing of a household. There is a much greater tendency for Black families than White families to take in young related children. In husband-wife families without children, only 3 percent of White families compared to 13 percent of Black families take in relations under age 18. In families headed by a woman, Black families demonstrate an even greater tendency to absorb other related children (41 percent as compared with 7 percent in similarly situated White families). Families headed by elderly Black women take in the highest proportion of related children, a figure of 48 percent. Robert B. Hill, The Strengths of Black Families 5 (1971). The role of the grandmother in the Black family is obviously of extreme significance. In discussing the Black family, Joyce Ladner states, Grandmothers often live in the homes of their children and grandchildren. Here they probably exercise more influence over the behavior of the child than do the parents because of their continuous involvement with them.

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They not only take care of them in the absence of the parents but the process continues even when the parents return home.

Joyce A. Ladner, Tomorrow’s Tomorrow: The Black Woman 61 (1971). Unmistakably, the City’s narrow definition of family in its zoning ordinance falls more harshly on women, minorities, immigrants, the working class, and poor Black women in particular. Considering these figures, the City’s ordinance suffers from “cultural myopia” and cannot be sustained without a compelling justification. Mrs. Moore does not allege that the City of East Cleveland acted with racial or class-based animus, but she does assert that it acted in disregard of the harsh consequences that its narrow family definition would impose on the more vulnerable sectors of its population. It might not be overt animus, but the City’s ordinance directly affects individuals based on race and class and, as such, covert animus is inescapable. This Court held just last year that governments do not violate the Equal Protection Clause when they pass legislation that has a disproportionate effect on protected classes of persons in the absence of a showing of intent to cause that effect. Washington v. Davis, 426 U.S. 229, 239 (1976). In Washington, we stated that “our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.” Id. In drawing that conclusion, we relied on cases in which discriminatory effects in schools and in apportionment were held not to be violations of the equal protection clause because they were the product of generic prejudice and de facto segregation. See Keyes v. School Dist. No. 1, 413 U.S. 189, 205 (1973); Wright v. Rockefeller, 376 U.S. 52, 84 (1964); Strauder v. West Virginia, 100 U.S. 303, 309 (1880). But for how long must society wait until the ugly racism and invidious history of de jure slavery and Jim Crow are eradicated? If laws imposing discriminatory effects on protected groups cannot be removed because of the ubiquitous presence of racism and discrimination in our society, then this country will never fulfill the promise for which so many have died. If the Fourteenth Amendment does nothing else, it provides the power to address the inequalities that exist by virtue of unequal laws as well as racial, societal, institutional, and economic discrimination, all of which burden Black families the most. Because this ordinance infringes on fundamental rights, the classification it draws must satisfy strict scrutiny; in other words, it must be strictly necessary to further a compelling state interest. Because it also falls more heavily on protected classes of racial minorities, Hunter v. Erickson, 393 U.S. 385, 391 (1969); Loving, 388 U.S. at 12 (1967); Brown v. Bd. of Educ., 347 U.S. 483, 493–494

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(1954), and women, Weinberger v. Wiesenfeld, 420 U.S. 636, 645 (1975); Frontiero v. Richardson, 411 U.S. 677, 690 (1973); Reed v. Reed, 404 U.S. 71, 76–77 (1971), the classification it draws must also satisfy this Court’s higher level of scrutiny. In this case, however, the narrow definition of family fails to bear even a rational relation to the object of the legislation. The Equal Protection Clause denies the state the power to legislate that differential treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). This Court’s decision in Washington requiring petitioners show intent to discriminate as well as disproportionate impact fundamentally decimates the promise of the Fourteenth Amendment’s equal protection guarantee and once again places this Court on the wrong side of history. Washington, 426 U.S. at 239; Dred Scott v. Sandford, 60 U.S. 393, 407 (1857); Plessy v. Ferguson, 163 U. S. 537, 542 (1896); Korematsu v. U.S., 323 U.S. 214, 216 (1944). Too often this Court has upheld state actions that were motivated by racial animus but hid that animus behind a patina of legal neutrality. Palmer v. Thompson, 403 U.S. 217, 224 (1971). But in today’s world of de facto racial discrimination and the unyielding legacy of slavery and Jim Crow, the unequal impact of a city’s decision on protected classes and vulnerable populations cannot be ignored. Where the impact of a state action falls more harshly on minorities, the poor, women, or other vulnerable and marginalized groups, there is no excuse for focusing on some hypothetical neutral post-hoc justification that, in theory, might have motivated the state. Discriminatory impact alone is sufficient if the state has no compelling justification on its side. Where there is clear disproportionate impact, even with no evidence of obvious racial animus, this Court must not close its eyes to the fact that allegedly neutral statutes with discriminatory effects often can be explained only by a desire to harm, or a complete disregard for the effects of the act on, protected groups. Yick Wo v. Hopkins, 118 U.S. 356, 373–374 (1886); Alexander v. Louisiana, 405 U.S. 625, 628 (1972). Thus, where de facto rather than de jure discrimination exists, the state must not be excused for passing legislation that disproportionately falls more heavily on vulnerable and more disempowered sectors of the population simply because the legislators may not have had a specific intent to harm those groups. The failure to recognize the disproportionate impact of supposedly neutral legislation is unacceptable in a civil society that places equality and liberty at the heart of its legal system. At the very least, the burden must be on

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the state to show that its actions were necessary to achieve an important public goal that could not be achieved through any less discriminatory means. Lack of concern about the negative impact of legislation is just as unconstitutional as invidious intention to harm any group of people. To the extent our decision in Washington suggests that disproportionate impact alone is insufficient to prove an equal protection violation, it is hereby overruled. A showing of disproportionate impact is sufficient to shift the burden of proof to the state to show that no less discriminatory means were available to achieve an important public goal. Where the public goal is not sufficiently important to justify the discriminatory effects or where other less discriminatory means exist to accomplish an important government end, the state’s choice of means does not satisfy the equal protection guarantee of the Fourteenth Amendment, regardless of the absence of invidious intent to discriminate. Applying this standard to the City of East Cleveland’s housing ordinance, the City must show some independent, non-pretextual justification for its narrow definition of family. Because Mrs. Moore has shown that the ordinance has a disproportionate impact on racial minorities and women, the burden is on the City to show that its definition of family serves some neutral and legitimate objective. Because the ordinance does not further the legitimate ends of reducing overcrowding, traffic congestion, or alleviating health or safety concerns, the disproportionate impact on racial minorities and women is an unconstitutional violation of the Equal Protection Clause. The City of East Cleveland argues that reducing its burden of school-age children is a legitimate, perhaps even a compelling, state interest because the burden of public education typically falls on the local property tax base. Reducing overcrowding in residential housing also reduces overcrowding in schools. This is a dangerous argument that must not be allowed to take root for, at its most basic level, economics is never neutral. Because of societal discrimination, many of our Black neighbors face sometimes insurmountable hurdles in being able to raise their children in a single-family home. Because of discrimination in the workplace, our Black co-workers are paid less and are channeled into lower paying jobs, which is often a result of housing discrimination and lack of investment in schools for minority children. This cycle of inequality and apathy by the state forces many Black and immigrant families into living arrangements that require extended family members to help with child care, or require multiple adults pooling their meager resources to sustain the household. Similarly, women are disproportionately affected by housing restrictions as the rate of single-mother households has skyrocketed with over 10 million children being raised in single-mother households in 1975. Moreover, alarming percentages of children are being raised in homes that

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subsist below the poverty level. These factors result in many women having to work outside the home and take in lodgers, older family members, or refrain from marrying their intimate partners in order to provide food and shelter for their children. The middle-class White ideal of the nuclear family living in a single-family detached home in the suburbs is a paradigm of domestic life that is unattainable for many, and undesirable to some. To require such a domestic situation is to impose an intolerable burden on women, minorities, and the economically disadvantaged that cannot be justified under any reading of the Equal Protection Clause. It is particularly telling that the City’s narrow definition of family has no effect on the East Cleveland public schools because it does not directly limit the number of children who are eligible for public education; it merely limits some family groupings and not others. Were John Jr. and Dale Jr. brothers instead of cousins, both would be entitled to attend the local public school. Hence, where the purported justification for a narrow housing ordinance that strikes deeply into private decisions about family arrangements is not furthered by the ordinance, the means–end fit fails even the most basic rational basis review. Furthermore, this Court’s decision in San Antonio Independent School District, which purportedly subjects state and local decision-making regarding public school funding to the lowest level of scrutiny, fails to recognize how public school funding decisions have discriminatory effects on racial and ethnic minorities as well as on the poor and the working classes. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 2 (1973). To the extent states require compulsory school attendance, as does Ohio under Ohio Rev. Code §3321, they may not use limiting school attendance as a justification for a legislative regime that impermissibly burdens vulnerable populations. School residents are defined in Ohio law as “all youth who are children or wards of actual residents of the school district.” Ohio Rev. Code §3314.64. The City may not rely on a desire to circumvent this statutory scheme as a justification for the challenged ordinance. By this ordinance, the City of East Cleveland is impermissibly attempting to regulate the right of students to attend school under state law. Because the right to public education is fundamental to success in adulthood and to the stability of our democratic regime, classifications that unduly hamper the educational rights of any child, and particularly of children of protected classes, are inherently suspect. Without showing an important state interest in restricting educational opportunities for anyone, any legislation like the City’s housing ordinance that has a disproportionate impact on Blacks and women cannot withstand an equal protection challenge.

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Perhaps more problematic is the fact that greater levels of wealth inequality in our society tend to undermine the public health and safety as well as democracy itself. Countries in which there is great disparity in wealth tend to be oligarchic, totalitarian, and less stable than those with a redistributive commitment to egalitarian principles. This is not to say that the Constitution’s commitment to equality requires formal equality or complete redistribution; but it does require that we recognize both the Founders’ concerns that classbased privileges and wealth disparities in England were inconsistent with individual rights and liberties and the evidence from history that furthering our democratic ideal requires vigilance over the destructive influence of wealth inequality that generates social dissatisfaction and political instability. To the extent our decision in San Antonio Independent School District ignores the City policy’s racially discriminatory consequences and thus holds that wealth is not a suspect classification in certain circumstances, or that a right to an education is not a fundamental right, it is hereby overruled. States must show more than a mere rational justification for a school funding regime, or any other regulation, that has a disproportionate impact on protected classes of people, regardless of whether the state’s decisions were made with the intention of harming those classes or were simply aimed at furthering ostensibly neutral economic policies.

v Takings The City of East Cleveland’s ordinance also violates that Takings Clause by depriving Mrs. Moore of her property rights without due process of law. The Fifth Amendment provides that private property shall not “be taken for public use, without just compensation.” U.S. Const. amend. V. The just compensation requirement has been held applicable to the states through the due process clause of the Fourteenth Amendment. See Chicago, Burlington, and Quincy RR. Co. v. Chicago, 166 U.S. 226, 241 (1887). This Court has held that the Takings Clause protects private property against physical takings through eminent domain and against the destruction of property rights from regulations that “go too far.” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). “The Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. U.S., 364 U.S. 40, 49 (1960).

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The single most important item of property for most individuals is their home, and this is especially true for individuals who, for too long in history, were denied homeownership of any kind. The state recognizes that there are many benefits from homeownership, including personal security, economic stability, and the ability to protect loved ones by building and passing on wealth from generation to generation through the family home. To support homeownership, the state and federal governments provide numerous legal advantages from tax deductions for home mortgages to zoning restrictions that protect home values. Equity in the family home provides collateral for loans to fund children’s higher education, to pay medical bills, or even to provide support during retirement. Homeownership provides financial stability so that loss of a job, a recession, or disability does not lead to homelessness and reliance on an ineffective social safety net. Homeownership is protected in bankruptcy proceedings and most states have homestead protections that ease the difficult transition often caused by death of the head of household. These laws attest to the profound importance of the family home for most people, and particularly for those for whom the home is their only major asset. The home provides not only protection from the elements, but a sense of belonging and safety that builds relationships and allows each generation to raise the next. It provides sanctuary for the young and the elderly alike as each generation moves through life’s many stages. An ordinance that prohibits use of the family home for protection, sanctuary, and wealth-building from generation to generation violates one of the most important values that the law places on the sanctity and value of the family home. If a home is a man’s castle, even if it is a humble shack, it provides shelter and protection to those welcomed within its doors. Prohibiting Mrs. Moore from allowing her two grandsons to live with her, just as prohibiting a homeowner from taking in a foreign exchange student or welcoming asylum seekers, violates her property rights as much as her privacy right and her right to equal protection. We buy homes to live in them with our loved ones, and the law cannot dictate to whom we choose to grant our bounty. There is no question that reasonable zoning ordinances that prohibit congestion or protect property values through reducing incompatible land uses also limit property rights, but they do so by providing an average reciprocity of advantage to all within the neighborhood. Pennsylvania Coal Co., 260 U.S. at 415. But there is no average reciprocity of advantage to Mrs. Moore’s neighbors by evicting John Jr., but allowing a sibling of Dale Jr. to reside there instead. There is no benefit to the state by allowing four persons to reside there, but not those particular four persons. A different four persons

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would not reduce congestion or alleviate overcrowding. If Mrs. Moore could live there with her son and his fifteen hypothetical children, but not with his one child and that child’s cousin, her property right to use her home to provide shelter to her loved ones is unreasonably denied. Since this Court’s decision in Euclid in 1926, the power of the state to restrict property rights through legitimate zoning ordinances is undenied. “Before [a zoning] ordinance can be declared unconstitutional, [it must be shown to be] clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, moral, or general welfare.” Euclid, 272 U.S. at 395. Zoning ordinances may legitimately restrict the kinds of uses engaged in on the land (residential, commercial, industrial, agricultural, etc.); they may legitimately restrict the size and location of structures on the land (setbacks, surface coverage, and height restrictions); and they may even require that a single-family home be occupied by a single housekeeping unit. But the only instances where zoning ordinances may permissibly regulate who occupies those single housekeeping units are prohibitions against transient occupancy, which can be justified by the valid community interest in preserving the stable character of residential neighborhoods. See Belle Terre, 416 U.S. at 7. Undoubtedly, the City’s narrow family definition in its zoning ordinance is arbitrary and capricious because it denies Mrs. Moore the benefits of homeownership when she cannot use her home to protect her loved ones, even if it would allow her to protect other loved ones. The ones to whom she has opened her home are the ones she wants to protect. And the City inflicts this harm with no corresponding benefit. As a result, the ordinance effects a taking of Mrs. Moore’s property rights without just compensation.

vi Conclusion Sometimes it takes a village to raise a child. The City of East Cleveland’s posthoc justifications for its extremely narrow housing ordinance exudes White privilege and middle-class values. While it may be ideal for children to be raised in the loving homes of their biological parents, not all children are so blessed. Family tragedy, economic uncertainty, global political unrest, and ingrained societal prejudice make this model unattainable for vast swaths of our population. For them as for others, legitimate health and safety regulations that limit overcrowding or reduce the dangers of traffic congestion are valid and welcome. But narrow regulations that criminalize the living condition of Mrs. Moore and her small household of one son and two grandchildren is

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arbitrary and unreasonable when it does not address the problems the ordinance seeks to resolve. If Mrs. Moore lived with all twenty-two of her grandchildren, perhaps the City would have a legitimate argument. But Mrs. Moore is doing what all loving grandmothers do when tragedy strikes their families. She has taken in the helpless children and done her very best to provide a stable and safe home where they can attend school, be fed and nurtured, and hopefully thrive. Just because East Cleveland does not want Mrs. Moore and her grandchildren in their town does not mean she does not have a constitutional right to use her property to protect her chosen family. We hold that the narrow family definition of the City of East Cleveland’s zoning ordinance violates Mrs. Moore’s due process, equal protection, and property rights protected by the Fifth and Fourteenth Amendments of the Constitution. The decision by the Ohio Court of Appeals affirming Mrs. Moore’s criminal conviction is hereby reversed and the case is remanded for judgment consistent with this opinion.

part viii

Evictions

16 Commentary on Phillips Neighborhood Housing Trust v. Brown lua kama´ l yuille

background The 1960s began a sustained transformation of American residential landlord– tenant law that was long heralded as a “revolution.”1 Through it, the status of residential tenants was (purportedly) improved substantially; and, it remains widely accepted, the law “escaped from the realm of private ordering, in which the stronger party typically has the advantage, and has become subject to regulation in the public interest.”2 Due to the radical realignments of this period, almost all tenants now enjoy the legal right to residences fit for human habitation as a “just and necessary implication” of their leases.3 Arguably more important, the “extraordinary ferment”4 markedly curtailed landlords’ power to control unilaterally the terms, conditions, and performance under leases by, among other changes, expanding procedural protections against retaliatory, arbitrary, capricious, constructive, profiteering, or otherwise exploitative eviction. The Civil Rights Movement, which catalyzed activist consciousness to usher in broad waves of legal change, and, to a lesser extent, the anti-poverty movement are often identified as the major ideological forces behind the landlord–tenant revolution. However, its practical impetus is generally agreed to be the “changes in the rhythms of life and the migration of economic

1

2

3

4

Edward H. Rabin, Revolution in Residential Landlord–Tenant Law: Causes and Consequences, 69 Cornell L. Rev. 517 (1984). Mary Ann Glendon, The Transformation of American Landlord–Tenant Law, 23 B.C. L. Rev. 503, 575 (1982). Lemle v. Breeden, 462 P.2d 470, 474 (Haw. 1969); see also Javins v. First Nat’l Realty Corp., 428 F.2d 1071, 1079 (D.C. Cir. 1970). Charles Donahue, Jr., Change in the American Law of Landlord and Tenant, 37 Mod. L. Rev. 242, 242 (1974).

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pursuits away from the land toward an industrial and urban society”5 that resulted in a pronounced drought of conscionable housing arrangements. That practical problem also drove the development of the public housing regime, first under Roosevelt’s New Deal and, then through the “war on poverty” of Johnson’s Great Society. In the 1980s, the landlord–tenant revolution collapsed. The first effects were seen in the public housing sphere, where funding dried up and, then, increasingly strict measures were implemented to respond to the pathologies – violence, drugs, promiscuity, dependence – that public housing was perceived to shore up. The Anti-Drug Abuse Act of 1988 required public housing authorities to terminate leases if the tenant or a wide range of people tenuously connected to them engaged in any “criminal activity, including drug-related criminal activity, on or near public housing premises.”6 As the war on drugs reached its apex, this type of public housing control became a rallying cry in then-President Clinton’s 1996 State of the Union address: “I challenge local housing authorities and tenant associations: Criminal gang members and drug dealers are destroying the lives of decent tenants. From now on, the rule for residents who commit crime and peddle drugs should be, one strike and you’re out.”7 Shortly after this speech, President Clinton signed the Housing Opportunity Program Extension (HOPE) Act of 1996, amending the Cranston–Gonzalez National Affordable Housing Act to emphasize that his “one strike,” “zero tolerance,” “no fault” eviction challenge was law. Under the HOPE Act, housing programs receiving federal funding were required to include provisions authorizing eviction if the tenant or any member of the tenant’s household or any guest or other person under the tenant’s control engaged in any criminal or drug-related activity anywhere.8

original opinion Against this backdrop, the State of Minnesota enacted a drug covenant law that implied into every residential lease and license an obligation that the lessee or licensee would “not unlawfully allow controlled substances in those premises.”9 Reflecting this law, when Mary Brown signed a public housing 5

6 7

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Shelby D. Green, Paradoxes, Parallels and Fictions: The Case for Landlord Tort Liability under the Revised Uniform Residential Landlord–Tenant Act, 38 Hamline L. Rev. 407, 408 (2015). Pub. L. No. 100-690, 102 Stat. 4181, §5101 (1988). President William J. Clinton, 1996 State of the Union Address (Jan. 23, 1996), in 142 Cong. Rec. H768-01, H770. Pub. L. No. 101-625, 104 Stat. 4079, §504 (codified as amended at 42 U.S.C. §1437d(1)(6)). Minn. Stat. §504.181 (1996).

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lease to rent an apartment owned and operated by Phillips Neighborhood Housing Trust, a nonprofit corporation that operated low-income housing units in distressed inner-city Minneapolis, it included the following language: RESIDENT Promises . . . not to act in a[n] . . . unlawful or dangerous manner . . . or to allow his/her family or guests to do so . . . [and] to refrain from such illegal activity or other activities on or away from the premises which impairs or down grades the physical or social environment . . . [and that v]iolation of any of the provisions of this section . . . is a material violation of this lease and at its option MANAGEMENT may cancel this lease and bring unlawful detainer proceedings to evict RESIDENT.10

Mary Brown, and her two minor daughters, complied with these terms. However, Mary Brown’s 20-year-old son, Anthony, who also signed the lease, did not. Not a week after the family had moved in, police found “crack cocaine” in the apartment while responding to a call that Anthony was threatening his mother with violence. The drugs belonged, indisputably, to Anthony. Neither Mary Brown nor her daughters knew about the presence of the drugs; however, Phillips Neighborhood Housing Trust initiated eviction proceedings against not only Anthony but Mary Brown and her daughters, as well. The housing referee found for the landlord. Mary Brown sought review by the Hennepin County District Court, which affirmed the housing referee’s decision. Mary Brown appealed. The Minnesota Court of Appeals issued a brief, formulaic judgment. It found that the terms of and consequences under the written lease were unequivocal. The lease prohibited unlawful drug possession on the penalty of eviction. Anthony had possessed drugs, so Phillips Neighborhood Housing Trust could cancel the lease and evict the whole household. Throughout the court’s analysis, Mary Brown herself is, largely, irrelevant. The court’s sole concession to the harsh reality confronting Mary Brown was to recognize eviction as a remedy of last resort.11 Nonetheless, it justified its use against her as the “most effective, if not [the] only effective, means of eliminating drugs” from public housing. The outcome of the case was so clear on the face of the lease, the unanimous court declined to address the impact of Minnesota’s statutory “covenant not to allow drugs.”

10 11

Phillips Neighborhood Hous. Tr. v. Brown, 564 N.W.2d 573, 575 (Minn. Ct. App. 1997). Id. at 575 (“We are aware that eviction is a harsh remedy that will not be enforced when the party seeking eviction has another adequate remedy.”).

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The path from Phillips Neighborhood Housing Trust v. Brown is short. The Minnesota Supreme Court declined to review the case,12 and it remains good law for its central proposition: “a public housing tenant is liable for those activities, which breach a lease, even if the tenant neither participated in nor controlled the conduct.”13

feminist judgment With her self-consciously anti-formalist dissent, Professor Pamela A. Wilkins, writing as Judge Wilkins, makes two critical methodological moves that might best be described as feminist inflections: (1) contextual reasoning and (2) gendering dynamics. Contextual Reasoning. Mary Brown – her lived experiences and her interests – is the frame of Wilkins’s analysis. Although she largely adopts the tone and form of traditional opinion writing, Wilkins rather intimately describes the tensive considerations Mary Brown faced when she entered into the Phillips Neighborhood Housing Trust lease. Wilkins foregrounds the fact that Mary Brown’s circumstances were shaped by gendered physical, economic, and cultural contexts. She acknowledges that homelessness and motherhood narrowed Mary Brown’s options, leaving her without meaningful choices or power with respect to the lease Phillips Neighborhood Housing Trust presented to her. Wilkins uses this critical context to contour the dispute, creating a degree of analytical parity between the power-stratified parties. This transforms the case from a straightforward factual dispute (whether Anthony’s conduct violated the lease) to a legal dispute about the nature of the specific agreement, as well as the kinds of agreements the State of Minnesota should sanction. With her enriched definition of the questions presented, Wilkins takes Mary Brown seriously and would, essentially by operation of law, level the contractual bargaining field post hoc. The kind of context-driven analysis in which Wilkins engages has been identified as a core leitmotif, a hallmark, of feminist legal reasoning. Knowledge, in what Katherine Bartlett calls “feminist practical reasoning,” is embedded in situation and experience not derived from value-blind abstract 12

13

While the terse case is rarely cited in published opinions, Judge Diarmuid O’Scannlain did rely explicitly on it in his opinion in the California case, which would form the basis for the Supreme Court’s sanctioning of no-fault, illegal act evictions. Rucker v. Davis, 203 F.3d 627, 644 (9th Cir. 2000) (subsequent history omitted). Bossen Terrace v. Miller, No. CX-98-2423, 1999 WL 343917 (Minn. Ct. App. June 1, 1999).

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logic.14 “[T]he meaning and value of rules and institutions can be discovered only by understanding how they affect the people within them.”15 Therefore, this type of feminist legal analysis begins by identifying the complex and varied explanators of human interactions and decisions – in this instance, homelessness and motherhood. This “force[s the] justification of results based upon what interests [including women’s interests] are actually at stake.”16 There is, then, space to demand solutions that are responsive to the particularities of the situation.17 Clarifying the implication of the feminist emphasis on context, Christine Littleton explains: “Feminist method starts with the very radical act of taking women seriously, believing that what we say about ourselves and our experience is important and valid, even when (or perhaps especially when) it has little or no relationship to what has been or is being said about us.”18 Here, Wilkins discards the caveat subscriptor story that was being told about Mary Brown in which she signed a contract, definitionally agreeing to its conditions, and must therefore be held to it. In its place, Wilkins engages the story Mary Brown told of compromised agency and limited choice. Gendering the Dynamics. In framing her analysis around an enriched account of Mary Brown’s situation, Wilkins implicitly and explicitly genders the determinative factors. For example, Wilkins describes motherhood (i.e. the gendered expectations and obligations of childrearing) as driving Mary Brown’s perceived imperative to support and manage the behavior of her adult son, without which Anthony may never have been a potential occupant and certainly would not have been a co-tenant. Moreover, Wilkins infers that, absent maternal norms, it is unlikely that Mary Brown would have adopted the ostensibly non-punitive, conciliatory approach to Anthony’s violent behavior. Wilkins also situates her statutory analysis in a broader debate about violence against women and domestic violence. Although it is not clear that Mary Brown herself would have characterized the violent interactions with her son that led to her eviction as domestic violence or otherwise as gendered violence, Wilkins frames them this way from what might be described as a representative female perspective. She draws on this framing to legitimize and shape her sustained statutory analysis, using it to render the majority’s 14 15 16 17

18

Katharine T. Bartlett, Feminist Legal Methods, 103 Harv. L. Rev. 829, 849–863 (1990). Cynthia R. Farina, Getting from Here to There, 1991 Duke L.J. 689, 707 (1991). Bartlett, supra note 14, at 863. Phyllis Goldfarb, A Theory–Practice Spiral: The Ethics of Feminism and Clinical Education, 75 Minn. L. Rev. 1599, 1636–1637 (1991). Christine A. Littleton, Feminist Jurisprudence: The Difference Method Makes, 41 Stan. L. Rev. 751, 764 (1989).

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outcome not merely unjust but absurdly inconsistent with the legislative commitments her analysis casts into relief. Wilkins’s engagement with the gender dynamics and implications of the law addresses the context-rich experience of a specific woman, Mary Brown, from the perspective of a broader generalized category of women. This move is also paradigmatically feminist. “‘Doing law’ as a feminist means looking beneath the surface of law to identify the gender implications of rules and the assumptions underlying them and insisting upon applications of rules that do not perpetuate women’s subordination.”19 Martha Minow describes this feminist analytical commitment as disrupting male epistemic power. Traditional legal standards, concepts, and rules tend to systematically disadvantage women principally by delegitimizing their knowledge. Drawing in and responding to that knowledge fundamentally reshapes the analysis and creates hurdles to reproducing women’s subordination.20

from inflection to formation Despite an unequivocally feminist inflection, Wilkins remains noticeably silent on the issue of race. This is no small matter. The public housing debate is not merely implicitly gendered (female) it is also highly racialized (Black). Mary Brown is framed, clearly, as a single mother, an archetype that is raced Black.21 It is the “the shortest possible shorthand for the pathology of poor, urban, black culture.”22 In turn, the matriarchal myth of Black motherhood demands these mothers “have sufficient social or moral authority with which to deter criminal behavior by their children.”23 Such authority belies any intimation that such a “domineering head of the Black family”24 could not know about or control the criminal behavior of all those around her. This translation of the “strong Black woman” trope to the context of Black motherhood – she “knows and controls all her children’s actions” – contrasts starkly 19 20 21

22

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Bartlett, supra note 14 at 843. Martha Minow, Justice Engendered, 101 Harv. L. Rev. 10 (1987). E.g., Dorothy E. Roberts, Racism and Patriarchy in the Meaning of Motherhood, 1 Am. U. J. Gender & L. 1, 25 (1993) (“Ideologically, in America, single motherhood is Black.”). Wahneema Lubiano, Black Ladies, Welfare Queens, and State Minstrels: Ideological War by Narrative Means, in Race-ing Justice, En-gendering Power: Essays on Anita Hill, Clarence Thomas, and the Construction of Social Reality 332, 335 (Toni Morrison ed., 1992). Regina Austin, “Step on a Crack, Break Your Mother’s Back”: Poor Moms, Myths of Authority, and Drug Related Evictions from Public Housing, 14 Yale J.L. & Feminism 273, 286 (2002). Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy, 104 Harv. L. Rev. 1419, 1442 (1991).

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with the myth of the fragile White woman, a mother who “passively nurtures with no power to mold identity” and is, therefore, not responsible for the criminal conduct of her children.25 Those stereotypes of Black motherhood work dialectically with the “welfare queen” trope, which overlays the idea of entrepreneurial breeding in which children are the primary source of financial resources, making clear that the drugs must be sanctioned. These dynamics explain, clearly, the impact of no-fault, strict liability, onestrike approaches to public housing: Chief among those adversely impacted by the campaign have been poor single minority female heads of household, often senior citizens, who are living with their actual or adopted offspring, one or more of whom, usually an adolescent or young adult male child or grandchild, sells or possesses drugs. The mothers and grandmothers (though sometimes it is a sister, aunt, cousin, wife, or girlfriend) are in general innocent, often even ignorant, of any criminal activity, but are nonetheless held responsible for the conduct of the other occupants of their units.26

The complex dialectic between race and gender outlined here subtextually motivates the majority opinion. It comes closest to the surface with the pointed (but analytically irrelevant) identification of the drug with which Anthony was found as “crack cocaine.” And, of course, crack is Black.27 That dog whistle, and the implicit characterization of Mary Brown’s fundamental inadequacy as a Black woman, underscores the court’s unsupported assertion that evicting Mary Brown is the only effective way to keep drugs out of public housing. Wilkins does not engage these dynamics. However, it is not at all clear that what might be read as Wilkins being inattentive to race is a choice. Rather, it is evidence of the scope of the exclusion of women and their interests and their knowledge from juridical spaces. Wilkins is bound by the record, and like the court, the record appears to be silent as to Mary Brown’s race. Race, gender, and their various intersections do not matter in the traditional legal analysis.28 However, confronting these questions creates the structure to

25

26 27 28

Mairi N. Morrison, The Knowledge/Power Dilemma and the Myth of the Supermother: A Critique of the Innocent Owner Defense in Narcotics Forfeiture of the Family Home, 7 Colum. J. Gender & L. 55, 61 (1997). Austin, supra note 23, at 275–276. Id. at 286. Despite its arguable aspirations, legal feminism has also struggled (and continues to struggle) to properly respond to and engage, among other identity vectors, race and gender. See Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581 (1990).

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move from feminist-inflected responsive intersectional legal reimaginings.

jurisprudence

to

radically

postscript Mary Brown and her adolescent daughters remained in the Phillips Neighborhood Housing Trust apartment from which they were being evicted throughout the pendency of the underlying proceedings and, then, on appeal. For some eighteen months, Mary Brown timely paid rent and dutifully “tried to respect and abide by the lease requirements.”29 Shortly after Mary Brown was removed from its property, Phillips Neighborhood Housing Trust jointly moved to expunge the eviction from Mary Brown’s record. The same court that had granted the underlying eviction concluded that “Mary Brown should not be prejudiced by the conduct of her adult son” and that allowing the eviction to pose an obstacle to Mary Brown’s future ability to obtain a residential lease would be “fundamentally unfair.” The expungement order paints so favorable a picture of Mary Brown that it would be reasonable to conclude that she had been evicted due to some error, not because of the wholly discretionary decision of one of the expungement movants. The expungement also lays bare what was at stake in the underlying matter. Phillips Neighborhood Housing Trust had no specific interest in evicting Mary Brown. Rather, it wanted to maintain draconian control over its tenants, predominately poor, women of color with whom rests, it can be inferred, the blame for the drug and violence problems about which Phillips Neighborhood Housing Trust claimed to be concerned. Relief from this control and some measure of housing stability is meted out discretionarily, as beneficence, not as a matter of right or, even, privilege. This surprising turn of events makes clear that the eviction was not the only possible response to the scourge of crack. Rather, it was part of a broader project to “control the behavior of the stereotypical welfare mother who is full of excuses for her progeny and always ready to overlook their shortcomings where drugs are concerned, out of an abundance of misguided maternalism.”30 The inadequacy of the post hoc, consolatory largesse eventually granted to Mary Brown is underlined when the case is situated in its broader context. Not long after Mary Brown’s eviction record was expunged, the Minnesota 29

30

Phillips Neighborhood Hous. Trust v. Brown, No. UD-1960705508 (Minn. 4th Jud. Dist. Mar. 2, 1998). Austin, supra note 23, at 286.

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Supreme Court was faced with a very similar case. There, the Minneapolis Public Housing Authority evicted Mai Lor and her minor children when firearms that had been used in a drive-by shooting in which Lor’s developmentally disabled son was involved were found in her home.31 This time, the Court of Appeals considered the deeper story, lived reality, catastrophic consequences, and teleological purposes of the statute and contractual language at issue.32 The Minnesota Supreme Court reversed, dismissing the rich analysis of the Court of Appeals in favor of the brief, zombie approach taken in Phillips Neighborhood Housing Trust v. Brown. Cases like Phillips Neighborhood Housing Trust and Lor were not unique. They proliferated around the country during the late 1990s and early 2000s. In Tennessee, the Memphis Public Housing Authority evicted Tara Thompson and her three children, when the father of her 3-week-old baby was found in possession of a small amount of cocaine while he watched her children so she could do the laundry.33 In Louisiana, the Housing Authority of New Orleans evicted Virgie Green because an acquaintance of her daughter had secretly brought drugs into the home.34 There were cases in New York,35 Pennsylvania,36 Connecticut,37 and so forth. In 2002, the U.S. Supreme Court took up the matter in Department of Housing & Urban Development v. Rucker.38 Rucker, a case stemming from California, presented a familiar story: Pearlie Rucker lived with her adult daughter, two grandchildren, and one great-grandchild. After her daughter was found in possession of cocaine three blocks from the apartment, the public housing authority elected to evict Rucker.39 The Court concluded unanimously that public housing authorities have the authority to terminate the lease of a tenant when a member of the tenant’s household or a guest engages in drug-related activity, regardless of whether the tenant knew, or should have known, of that activity.40

31 32 33 34 35 36 37 38 39

40

Minneapolis Pub. Hous. Auth. v. Lor, 591 N.W.2d 700 (Minn. 1999). Minneapolis Pub. Hous. Auth. v. Lor, 578 N.W.2d 8 (Minn. Ct. App. 1998). Memphis Hous. Auth. v. Thompson, 38 S.W.3d 504, 506 (Tenn. 2001). Hous. Auth. of New Orleans v. Green, 657 So. 2d 552, 552 (La. Ct. App. 1995). Syracuse Hous. Auth. v. Boule, 701 N.Y.S.2d 541 (N.Y. App. Div. 1999). Delaware Cty. Hous. Auth. v. Bishop, 749 A.2d 997 (Pa. Commw. Ct. 2000). Hous. Auth. of City of Norwalk v. Harris, 611 A.2d 934, 935 (1992), aff’d, 625 A.2d 816 (1993). Dep’t of Hous. & Urban Dev. v. Rucker, 535 U.S. 125 (2002). The other appellees in Rucker included an elderly woman, whose grandsons had been caught smoking marijuana in their apartment’s parking lot, and an elderly man with disabilities, whose caregiver was found with cocaine. Id. Id.

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Despite the well-documented burdens – especially on women of color – one strike remains the federal and state baseline in public housing.41 Wilkins’s reimagined dissent and the critical reflections it engenders ideate an alternative trajectory for this area of housing law after the landlord–tenant revolution. It is entirely likely that a feminist decision, written like Wilkins’s dissent, would have been overturned by the Minnesota Supreme Court. This was, indeed, the outcome in Lor. However, a feminist-inflected lower court decision would have forced the court to explicitly engage feminist reasoning. That is, it would have necessitated the articulation of the court’s anti-feminist ideological and epistemological choices. There is cognizable power in denaturalizing male-oriented legal reasoning, even if the immediate outcomes remain the same. When courts must respond to “the radical act of taking women seriously,” the project of taking women seriously gains traction across a wider range of political and social actors and institutions.

PHILLIPS NEIGHBORHOOD HOUSING TRUST V. BROWN, 564 N.W.2D 573 (MINN. CT. APP. 1997)

justice pamela a. wilkins, dissenting The majority’s opinion reads as an exercise in legal formalism and is devoid of any depth of empathy or appreciation for Mary Brown’s dilemma. And, perhaps more remarkably, the majority’s opinion fails even under its own formalistic terms: the ruling misconstrues the relevant statute and lease, and, in fact, frustrates rather than advances the values embodied by the law. Mary Brown and her minor children are entitled to retain possession of their home. Accordingly, I dissent. The majority’s opinion is incorrect in three respects. First, the majority misconstrues the issue. Second, and as a result of its incorrect view of the legal issue, it takes a cramped view of the facts, failing to understand the significance of certain uncontroverted facts. Finally, the majority’s legally incorrect and socially harmful analysis follows naturally from its misunderstanding of the issue and its decision to ignore certain facts.

41

But see U.S. Department of Housing and Urban Development Office of Public and Indian Housing, Notice PIH 2015–2019: Guidance for Public Housing Agencies (PHAs) and Owners of Federally-Assisted Housing on Excluding the Use of Arrest Records in Housing Decisions, November 2, 2015, https://www.hud.gov/sites/documents/PIH2015-19.PDF (making clear that public housing agencies are not required to adopt one-strike policies for public housing leases).

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I begin with the facts. According to the majority, the only relevant facts are the following: 1. Mary Brown (“Mary Brown” or “Brown”) and her son, Anthony Brown (“Anthony”), both were signatories to a lease with Phillips Neighborhood Housing Trust (“Landlord”). 2. Representatives of Landlord reviewed the lease carefully with them to ensure they understood what conduct was forbidden. Illegal conduct was forbidden. 3. Anthony possessed illegal drugs on the premises. Following this barebones recitation of the facts, the majority next asserts that the only issue for an appellate court is whether the facts are correct. Because these facts are correct, and because the lease forbids illegal activities, the majority concludes that the lease is subject to forfeiture and all occupants can be evicted. According to the majority, it is exactly that simple: the case presents no legal issues beyond whether the lower court’s findings of fact were clearly erroneous. The majority’s analysis is simple – too simple, in fact, papering over factual and legal complexities and thereby obscuring the real legal issue. A fuller examination of the facts forms the starting point for an accurate understanding of this case. Mary Brown and her two minor children, ages 16 and 4, had been homeless for two years when she entered into a lease42 with the Landlord. She also had a 20-year-old son, Anthony. Although it was under no legal requirement to do so, Landlord insisted that Anthony – technically an adult, though still under the legal drinking age – be a signatory to the lease rather than simply be listed as an occupant like Mary Brown’s other children. This requirement was Landlord’s policy. Not surprisingly, Mary Brown objected, arguing she wanted more leverage over Anthony than would exist if the two had equal contractual rights under the lease.43 Landlord was unyielding in its demand, and Mary Brown was faced with a terrible set of choices: (1) refuse to sign the lease with the objectionable term, thereby ensuring her family’s continued homelessness; (2) enter the lease as the sole signatory, thereby abandoning Anthony to the streets; or (3) enter the lease with Anthony as a co-lessee, thereby ensuring housing for her entire family but

42 43

This lease was part of the Federal Section 8 Moderate Rehabilitation Housing Program. Only those who are poor will face this kind of dilemma. Apart, perhaps, from a parent cosigning a lease for a college student, how many working or middle-class parents ever would enter into a housing agreement that gave a young adult child equal legal status with the parent? The question answers itself.

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virtually eliminating any control she had over Anthony. Mary Brown lacked some of the choices a person of greater means would have: given her family’s long-term homelessness and need for subsidized housing, she lacked the ability to negotiate with Landlord or to secure other housing with more favorable lease terms. Ultimately, she elected to keep her household together and end her family’s long period of homelessness. Despite her misgivings and her formal objection, she and Anthony both signed the lease as co-lessees. Even after the lease was signed, she continued to object to Anthony’s status as a co-lessee, seeking help both from Landlord and from a community organization to remove him as a co-lessee on the lease. Problems stemming from Anthony’s status as a co-lessee arose immediately after they signed the lease. When the family was moving in, Anthony tried to secure for himself the largest bedroom. Only days later, he insisted upon moving his girlfriend into the residence. Mary Brown objected, and a dispute ensued. This dispute was the event that set in motion the eviction at issue in this case. Both Anthony and his girlfriend grew angry and combative in the face of Mary Brown’s demand that Anthony’s girlfriend live elsewhere. The record reflects that Anthony threatened his mother and the minor children. Seeking to protect Mary Brown from Anthony and his girlfriend, one of Brown’s friends called law enforcement. Anthony’s girlfriend had a knife, and, although the police never found a gun that was reported in the call to law enforcement, Anthony was so combative that the police arrested him. In fact, Anthony’s behavior during the dispute with his mother was threatening enough that a court later granted Mary Brown an Order of Protection as authorized by the Minnesota Domestic Abuse Act. While the police were conducting the weapons sweep of the home, an officer found some “crack” cocaine hidden at the base of a decorative basket with a narrow neck and wide base. The basket was approximately 3 feet tall. The cocaine belonged to Anthony. In light of Anthony’s illegal activity, Landlord brought an action to evict not only Anthony, but also Mary Brown and her minor children. The Housing Referee found for Landlord. The Housing Referee and lower court also found, however, and Landlord does not dispute that Mary Brown and her minor children neither knew, nor had reason to know, about Anthony’s possession of drugs at the premises. In an extraordinary addendum to her opinion, the Housing Referee implored Landlord to reconsider its decision to evict Mary Brown, who had repeatedly offered compromise solutions to Landlord, all of which would have removed Anthony from the

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premises under all circumstances and all of which Landlord rejected out of hand. The Housing Referee characterized Mary Brown, herself, as a victim. Both tragically and ironically, Anthony’s possession of cocaine, which was discovered in response to a domestic call made for Mary Brown’s protection, resulted in Landlord’s decision to evict Mary Brown and her minor children. This Court should consider all of these facts in determining whether eviction is proper here. Of course, this Court should also consider the law. Landlord has pointed to two sources to prove it may evict Mary Brown and her children. First, Landlord cites Minnesota Statutes Section 504.181, which implies an anti-drug covenant in every residential lease and allows for eviction under certain circumstances. Second, Landlord relies on a provision in the lease itself, which authorizes eviction for “illegal activity . . . on or away from the premises which impairs or downgrades the social environment.” Landlord notes that the lease defines any violation of the “illegal activity” provision as “material,” thus justifying an action for eviction. This Court’s opinion, affirming the lower court’s ruling that Landlord can evict Mary Brown, relies entirely on the express language of the lease. In fact, the majority declines even to consider Minnesota Statutes Section 504.181, noting that, “[b]ecause the lease so clearly provides that [Landlord] may cancel the lease and recover possession of the premises when a resident engages in illegal activity, we need not address whether Minn. Stat. §504.181 (1996) also provides that right.” As to the lease, the majority notes that Anthony had illegal drugs on the premises and, therefore, Landlord “had the option to cancel the lease and bring . . . [eviction] proceedings.” It rejects Mary Brown’s argument that she herself did not violate the lease, instead finding that the agreement allowed for voiding the lease itself and that Brown’s “right to the apartment derives only from the lease.” Accordingly, she is subject to eviction upon breach of the express language in the lease. The majority’s analysis is fundamentally flawed in its failure to address the application of Section 504.181 and the relationship between statute and the language of the lease. The lease must be read consistently with the requirements of Section 504.181, and neither party can waive or modify the requirements and protections of the statute. The majority’s reading of the lease effectively eviscerates those protections. This is simply incorrect. In fact, neither Section 504.181 nor the lease itself allow for the eviction of Mary Brown and her minor children. Our first task is to consider the scope of Section 504.181. Although we ask only whether a lower court’s findings of fact are clearly erroneous, the standard of review for findings of law is de novo.

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i Minn. Stat. §504.181 Landlord has asserted that Minnesota Statutes Section 504.181 entitles it to evict Mary Brown, but exactly the opposite is true. The statute actually protects Mary Brown from eviction. The statute provides in pertinent part: Subdivision 1. Covenant not to allow drugs. In every lease or license of residential premises, whether in writing or parol, the lessee or licensee covenants that:

(1) the lessee or licensee will not unlawfully allow controlled substances in those premises; and (2) the common area and curtilage will not be used by the lessee or licensee or others acting under the lessee’s or licensee’s control to manufacture, sell, give away, barter, deliver, exchange, distribute, purchase, or possess a controlled substance in violation of any criminal provision of chapter 152. The covenant is not violated when a person other than the lessee or licensee possesses or allows controlled substances in the premises, common area, or curtilage, unless the lessee or licensee knew or had reason to know of that activity.

Minn. Stat. §504.181 (1996) (emphasis added). Section 504.181(2) provides that a breach of this covenant allows a landlord to bring an action against the lessee for eviction. Although the lessee’s right to possession is void upon breach, the provisions of the lease otherwise remain in effect. Just as importantly, neither party to the lease – not Mary Brown, but also not Landlord – can modify this covenant, including the portion that protects innocent tenants. Minnesota Statutes Section 504.181(3) expressly provides that “parties to a lease . . . of residential premises may not waive or modify the covenant imposed by this section.” What is not in dispute regarding the statute as applied in this case? First, Mary Brown would have a defense to eviction under Section 504.181 (1) had Anthony merely been a resident, rather than a co-lessee, in the apartment. Neither party disputes that under the statute, an innocent lessee – that is, one who lacks actual or constructive notice of the illegal activities of a non-co-lessee resident – is not subject to eviction. Moreover, neither party disputes that Mary Brown lacked actual or constructive notice of Anthony’s illegal drug possession. And neither party can dispute the statutory language

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that prevents either party from modifying or waiving the provisions of Section 504.181, including the provision that protects innocent lessees. Given that, Anthony’s status as a co-lessee – a status to which Mary Brown repeatedly objected but that was forced upon her by Landlord, a party with almost absolute bargaining power as compared to the homeless, destitute Mary Brown – is the only remotely possible statutory basis for the eviction of Brown, her 16-year-old daughter, and her 4-year-old daughter. So the real dispute can be boiled down to the following: Mary Brown contends that the statute’s innocent lessee rule protects her from eviction based on the criminal activity of any resident, including a co-lessee. Landlord contends the statute’s innocent lessee rule does not protect a lessee from eviction based on the illegal drug use of a co-lessee. Differently put, Landlord asserts that even if there is a scienter requirement as to the criminal activities of a mere resident or visitor to the home, there is no such requirement as to the activities of a co-lessee. Under the rule Landlord urges, there is strict liability for co-lessees: a lessee – and, of course, all other residents – may be evicted for the criminal activity of a co-lessee, even if the first lessee is utterly without fault and without regard to any equitable circumstances. The central word at issue in the statute is “lessee”: Does the statute protect an innocent co-lessee (co-tenant) from eviction based upon the unlawful drug use or possession of her co-lessee? The express language of the statute is silent regarding co-lessees. Although it could have made protection for innocent co-lessees clear, it also could have made lack of such protection clear. Neither Section 504.181 nor other statutory provisions pertaining to landlords and tenants answer this question. For example, the Code contains no definition of the term lessee, and Minnesota Statutes Section 566.18 defines the term tenant – the closest equivalent we can find to lessee – as including not only the lessee but also “all other regular occupants of [a] dwelling unit.” This definition sheds no light on the issue before this Court. In short, Section 504.181 is ambiguous regarding whether an innocent co-lessee may be evicted for the unlawful drug use of another colessee. Accordingly, the plain meaning rule avails us nothing, and we must resort to other tools to guide our interpretation of the statute. Several canons of statutory interpretation, as well as a variety of equitable principles, inform our analysis. In interpreting any statute, our principal task is to discern legislative intent. Minn. Stat. §645.16 (1996) (“The object of all interpretation and construction of laws is to ascertain and effectuate the intent of the legislature.”); see also, e.g., Beck v. City of St. Paul, 231 N.W.2d 919, 923 (Minn. 1975) (ascertaining legislative intent is the principal object of statutory interpretation). Moreover, we recognize that legislative bodies enact statutes

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against a backdrop of already existing law and policy, and this existing law and policy inform our interpretation of ambiguous provisions in a new statute. Cf. Van Asperen v. Darling Olds, Inc., 93 N.W.2d 690, 698 (Minn. 1958) (“[V]arious provisions of the same statute must be interpreted in light of each other.”). Differently put, our interpretation will consider the place of a specific statutory provision within a broader statutory scheme. Strict liability interpretations of statutes are disfavored: statutes will be found to impose strict liability only upon the clearest legislative evidence. See, e.g., Jenson v. Touche Ross & Co., 335 N.W.2d 720, 728 (Minn. 1983) (declining to impose a strict liability standard to a civil statute “[i]n the absence of a clear legislative intent” and where the statute contained terms that “denoted . . . culpability”). Finally, we will reject any interpretation that causes an absurd or manifestly unjust result – especially when that unjust result frustrates the basic values of the statutory scheme. See Minn. Stat. §645.17(1) (“[T]he legislature does not intend a result that is absurd.”); see also Erickson v. Sunset Mem’l Park Ass’n, 108 N.W.2d 434, 441 (Minn. 1961) (“Courts should construe a statute to avoid absurd or unjust consequences.”). Each of these principles favors an interpretation of the statute that protects innocent co-lessees. Several long-standing policies and one more recent one – all recognized both at the state and the federal level – form the backdrop for our interpretation of Section 504.181. First, Minnesota has long disfavored evictions resulting in lease forfeitures as a remedy. See, e.g., 614 Co. v. D.H. Overmayer Co., 211 N.W.2d 891, 894 (Minn. 1973) (noting “judicial abhorrence of forfeitures”); 1985 Robert Street Assocs. v. Menard, Inc., 403 N.W.2d 900, 902 (Minn. Ct. App. 1987) (noting trial court’s discretion to determine equitable remedies when forfeiture would impose an “unreasonably disproportionate hardship”); Hous. & Redev’p Auth. of Winona v. Fedorko, 1994 WL 654525, at *1 (Minn. Ct. App. 1994) (“Forfeitures are not favored and will not be enforced when great injustice is done and the one seeking forfeiture is adequately protected.”). Although these cases involved interpretations of actual lease provisions, their rationale applies equally to residential lease covenants imposed by statutes. Just as any lease provision allowing for forfeiture should be strictly construed to allow eviction under the narrowest possible circumstances, the same should be true for implied lease covenants required by statute. In fact, the judicial abhorrence of forfeitures and eviction and the requirement for strict construction of provisions allowing for forfeiture should hold special importance in the residential setting. This is especially true in light of the fact that Section 504.181 governs all residential leases in Minnesota, including leases for public or federally subsidized housing. Accordingly, we

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must be mindful of the need for our interpretation to be consistent with not only the demands of federal law, but also with the values and policies served by federal statutes and regulations governing public and subsidized housing. The United States has long recognized that safe and affordable housing under fair terms is a core policy priority and, accordingly, has long recognized limits on landlords’ power to evict tenants. See, e.g., Thorpe v. Hous. Auth., 393 U.S. 268, 281 (1969) (“One of the specific purposes of the federal housing acts is to provide ‘a decent home and a suitable living environment,’ . . . and [procedural protections during the eviction process] certainly furthers this goal.”). These policies, which are consistent with our own abhorrence of eviction as a remedy and which, in part, have inspired our own doctrines, also inform my reading of the statute. Second, both the State of Minnesota and the United States government are committed to the protection of victims of domestic violence. This commitment finds expression in Minnesota’s Domestic Abuse Act, Minn. Stat. §518B.01, as well as in a variety of provisions that ensure shelter and programming for battered women and their children. See, e.g., Minn. Stat. §611A.32 (mandating “community-based domestic abuse advocacy and support services programs” in every judicial district within the state). Notably, Minnesota’s Domestic Abuse Act includes within the definition of domestic abuse both “physical harm, bodily injury, or assault . . . [and] the infliction of fear of imminent physical harm, bodily injury, or assault” by one family or household member against another – including by a child against a parent. Minn. Stat. §518.01(2)(a), (b)(2). In Minnesota, as elsewhere, the overwhelming number of victims of domestic violence are women. See Minnesota Supreme Court Task Force on Gender Fairness in the Courts, Final Report, 15 Wm. Mitchell L. Rev. 826, 871 (1989) (noting that in 1984, women comprised 90 percent of the reported victims of domestic violence in Minnesota). Although Minnesota’s efforts have, like those of other states, all too often fallen short, Minnesota has, nonetheless, been recognized as a national leader in the movement against domestic violence. See id. (“[Minnesota] has some of the nation’s most progressive domestic abuse statutes.”). Among other things, Minnesota was the second state (after Pennsylvania) to create a process for obtaining a civil restraining order without filing a petition for marriage dissolution. Moreover, in 1974, St. Paul, Minnesota became the home to the first battered women’s shelter in the United States. More recently, in 1994, the United States Congress enacted the Violence against Women Act (VAWA), 42 U.S.C. §13701 et seq., which expresses a nationwide commitment to the eradication of domestic violence and to the protection of women who are disproportionately the victims of such intimate violence.

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Minnesota’s public policy in favor of protecting victims of domestic abuse is part of a larger statewide policy of advancing the civic and economic equality of women. Again, Minnesota has been a national leader in this nation’s long struggle to recognize women as equal citizens. In 1976, the legislature created the Council on the Economic Status of Women, a legislative council “to identify and promote solutions at the state level.” Minn. Stat. §3.9222. Creation of this Council led to progressive legislation, including the State Government Pay Equity Act in 1982, Minn. Stat. §§43A.01–.18, the Local Government Pay Equity Act in 1984, Minn. Stat. §§471.991–.999, and the Parental Leave Act in 1987, Minn. Stat. §§181.940–.944, the first of its kind in the country and an important precursor to the federal Family & Medical Leave Act of 1993. The policy aim of furthering the social and economic well-being of women must take into account the feminization of poverty, and the particular vulnerability of women of color, especially African-American women. The data are both staggering and sobering. In the past thirty years, “the proportion of poverty-level households that are maintained by women has risen in all racial and ethnic groups.” Audrey Rowe, The Feminization of Poverty: An Issue for the 90’s, 4 Yale J. L. & Feminism 73, 74 (1991). Moreover, “the fastestgrowing segment of the homeless population is families with children, the majority of whom are headed by women.” Id. at 75. The article also notes that problems of poverty and homelessness are considerably more acute for African-American women and their children, for reasons related both to race and gender. Minnesota’s expressed policy commitment to the well-being of women (along with, presumably, commitments to both economic and racial justice) must take into account not only middle-class women, but also the most vulnerable women and children in our society, including Mary Brown and her minor children. A final state and federal policy also informs our analysis. Conscious of the harm that illegal drugs can inflict upon families and communities, the United States and the State of Minnesota have committed to vigorous enforcement of federal and state drug laws and to eradicating illegal substances from our communities. That said, the War on Drugs, as it is colloquially known, is not the sole priority of the federal or state government. Rather, the War on Drugs must be waged in light of and consistent with other priorities, such as our commitments to fair, safe, and affordable housing for the poor, as well as to the safety and advancement of women. Turning to Minnesota Statutes Section 504.181 itself, I am mindful that any interpretation must give effect to its express language and to the legislature’s intent in enacting that specific section, but must do so in a way that is consistent with the State’s long-standing policy aims described above.

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Fortunately, the most logical interpretation of the statute standing alone is also most consistent with Minnesota’s broader policy commitments. The language of Section 504.181 reflects a legislative effort to harmonize and further several of the policy aims described above and restated as follows: (1) the policy aim of eradicating illegal drug use, captured in Section 504.181 by inclusion of a non-waivable mandatory anti-drug covenant; (2) the policy aim of ensuring safe housing for residents (which presumably is the ultimate reason for eradicating illegal drug use), also captured by the non-waivable mandatory anti-drug covenant; and (3) the policy aim of ensuring stable and affordable housing and the abhorrence of eviction as a remedy, captured by the non-waivable protection for lessees who lack actual or constructive knowledge of another person’s possession or use of illegal drugs. When determining whether the statute protects an innocent co-lessee from eviction based on the acts of a guilty co-lessee, we must ask which interpretation is most consistent with all of the concerns the legislature sought to balance. Considered in that light, the protection for innocent co-lessees is obvious. Interpreting Section 504.181 to include protection of innocent co-lessees maintains the balance among the multiple priorities the legislation was designed to achieve. In contrast, interpreting the statute to allow for the eviction of an innocent co-lessee prioritizes policy aim (1) of eradicating illegal drug use at the expense of aim (3) of ensuring stable and affordable housing, without furthering aim (2) of ensuring safe housing. And, in fact, interpreting the statute to allow for the eviction of an innocent co-lessee may well frustrate policy aims (1) and (2) by deterring lessees from contacting law enforcement for any purpose. Furthermore, interpreting the statute as protecting innocent co-lessees is consistent with our canon that strict liability interpretations are disfavored absent clear legislative intent. Cf. State v. Neison, 415 N.W.2d 326, 329 (Minn. 1987) (“[I]f criminal liability . . . is to be imposed by conduct unaccompanied by fault, the legislative intent to do so should be clear.”). Although this disfavoring of strict liability is clearest within the criminal law, see, e.g., Staples v. United States, 511 U.S. 600 (1994), the Minnesota Supreme Court has recognized that even civil statutes must evince a clear legislative intent before strict liability will be imposed. Cf. Jenson, 335 N.W.2d at 728 (declining to impose a strict liability standard to a civil statute “[i]n the absence of a clear legislative intent” and where the statute contained terms that “denoted . . . culpability”). As Landlord points out, typically breaches of contract are not governed by concepts like fault, which more properly belong to the realm of tort and criminal law. Here, however, the legislature has created a statutory-implied

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covenant that evinces a clear legislative intent to incorporate concepts of fault. Indeed, the fault-based terms are not limited to those regarding scienter – that is, to the protection for lessees who lack actual or constructive knowledge of another person’s possession or use of controlled substances. For example, Section 504.181(2) allows for the eviction of a lessee when those “under [the lessee’s] control” possess or use drugs in the curtilage or common areas of a residential property. Minn. Stat. §504.181(2) (emphasis added). This language suggests a policy determination that eviction is appropriate based on a lessee’s fault in failing to control the behavior of those subject to such control. Even the original language of the implied statutory covenant, that a lessee not “unlawfully allow,” is suggestive of fault. In short, Section 504.181 is at base a fault-based statute in which those who are not at fault have not violated the implied covenant. There is no clear legislative intent within the statute that an innocent co-lessee be strictly liable (and thereby subject to eviction) for the drug possession or use of another co-lessee. Given this lack of clear intent, and given (as noted above) the fact that innocent co-lessee protection is more consistent with the statute’s multiple policy aims, the statute is best read to protect innocent co-lessees from eviction. Moreover, the interpretation advanced by Landlord would lead to an absurd and unjust result. A simple hypothetical scenario illustrates the concept. Consider two co-lessees – say, a husband and wife. An all-too-common scenario occurs: the husband batters the wife. The wife calls law enforcement. Drugs are found, and the wife had no idea her husband had drugs. Under Landlord’s proposed interpretation of the statute, under which one co-lessee is strictly liable for the conduct of the other, the wife may be evicted along with her husband. Such a result would be both senseless and objectively unjust: a crime victim – completely innocent regarding knowledge of her batterer’s possession of drugs – is subject to eviction because the person who assaulted and battered her happens to be her co-lessee. In fact, the result would itself be abusive, with the wife twice a victim: a victim first of her husband and second of the legal system itself. To add insult to injury, this interpretation would frustrate the purposes for which the statute was enacted. Presumably the statute was enacted to ensure safe communities and to deter criminal conduct (drug use in particular) in and around residential communities. The strict liability interpretation relied on by the Housing Referee, the lower court, and the majority here (which papered over the dispute by not even mentioning the issue) does nothing to deter criminal conduct. It may deter the reporting of domestic violence, the effect of which may well be to increase the actual incidence of such

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domestic violence without any reduction in drug possession or use. Domestic violence victims already face many barriers to reporting incidents of battering and abuse, including realistic fears of retribution by the abuser, financial dependence on the abuser, and all too frequent dismissiveness and indifference by law enforcement, prosecutors, and judges. A fear of eviction and loss of eligibility for a Section 8 voucher should not be an additional barrier. The present case illustrates this point all too well. Anthony is not Mary Brown’s husband or domestic partner. He is her son. However, the call to law enforcement was a domestic violence call made for Mary Brown’s protection: her friend called law enforcement because Anthony and his girlfriend had threatened violence if Mary Brown did not yield to their demand that the girlfriend move into the apartment. In a weapons sweep of the apartment, again made for Mary Brown’s protection and that of her minor children, law enforcement found Anthony’s cocaine – drugs Mary Brown did not know about and had no reason to know about. The Order of Protection issued to Mary Brown was authorized under Minnesota’s Domestic Abuse Act. A strict liability interpretation of Section 504.181 – which would evict all co-lessees for the activities of any one lessee – would “protect” Mary Brown and her minor children right into eviction and probable homelessness. In this case, as in all too many others, a strict liability interpretation leads to a result that is both absurd and repugnant, and that, moreover, contravenes Minnesota’s commitment to protecting victims of domestic violence. For this reason, as for the others named above, a strict liability interpretation of Section 504.181 is simply incorrect and must be rejected. I realize that interpreting the statute to protect innocent co-lessees does not completely solve the problem of the reporter of domestic violence – on its face, the statute would still allow for the eviction of a domestic violence colessee who had actual or constructive knowledge of a co-lessee’s drug use. But an interpretation that at least protects innocent co-lessees reduces the potential injustice to victims of domestic violence, and, as for domestic violence victims who know of but are unable to control their abuser’s use of illegal drugs, I note this Court’s equitable power to refuse to allow eviction when it would result in great injustice to the lessee and when the landlord’s interests can be adequately protected. See, e.g., Fedorko, 1994 WL 654525, at *1 (“Forfeitures are not favored and will not be enforced when great injustice is done and the one seeking forfeiture is adequately protected.”). It would be a rare case of domestic violence in which this standard would not be satisfied. The ultimate solution to this dilemma is, of course, comprehensive legislation protecting domestic violence victims in the housing context.

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Finally, an interpretation that protects innocent co-lessees avoids any conflict with federal law. Although leases under the Section 8 Moderate Rehabilitation Program do not require anti-drug covenants, leases for Section 8 Existing Housing and for public housing do. See 42 U.S.C. §1437f (d)(1)(B)(iii)(1996)(Section 8 Existing Housing Certificate and Voucher Subsidized Housing); 42 U.S.C. §1437d(l)(5)(1996)(public housing). The legislative history regarding these covenants demonstrates a legislative intent that innocent public housing tenants be protected from eviction for the drug use of other residents, including co-tenants. See, e.g., S. Rep. No. 316, 101st Cong., 2d Sess. 179 (1990) (“The Committee assumes that if the [Section 8 existing housing] tenant had no knowledge of the criminal activity or took reasonable steps to prevent it, then good cause to evict the innocent family members would not exist . . .. The Committee anticipates that each case [of eviction from public housing based on drug possession or use] will be judged on its individual merits and will require the wise exercise of humane judgment by . . . the eviction court. For instance, eviction would not be the appropriate course if the tenant had no knowledge of the criminal activities of his/her guests or had taken responsible steps under the circumstances to prevent the activity.”). Courts interpreting leases containing federally mandated anti-drug covenants protect innocent tenants from eviction for the illegal drug activity of other adult residents. See, e.g., Charlotte Hous. Auth. v. Patterson, 464 S.E.2d 68, 72 (N.C. Ct. App. 1995). Because Minnesota Statutes Section 504.181 applies to all residential leases, including public housing leases, an interpretation that protects innocent co-lessees not only best fulfills legislative intent in Minnesota, but also avoids any potential conflict with federal law. In sum, Section 504.181 protects an innocent co-lessee from eviction based on the drug use of another co-lessee. This interpretation is most consistent with the language and purpose of the legislation; with our requirement that the legislature express itself clearly before we will interpret a fault-based scheme as incorporating any strict liability principles; with our commitment to avoiding interpretations that lead to absurd and unjust results; with our historic judicial repugnance toward lease forfeiture (i.e., eviction); and with Minnesota’s policy commitments to safe and affordable housing, to protection of the victims of domestic violence, and to the welfare and advancement of women. Far from authorizing her eviction, Section 504.181 actually protects Mary Brown and her minor children from loss of their home. Given the protection provided by Section 504.181 – a protection that cannot be waived or modified – the parties’ lease is irrelevant here. The sole basis for eviction was Anthony’s drug use and Mary Brown’s status as a co-lessee, and

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the statute speaks to this basis. Unless Landlord can point to an independent factual basis for eviction, the lease avails it nothing. Nevertheless, because both Landlord and the majority relied on the lease itself, and because of an unfortunate trend by this Court to ignore longstanding legal and equitable principles protecting tenants, I will briefly explain the majority’s most egregious errors.

ii Sections 7 and 19 of the Parties’ Lease The lease at issue in this case is one of Landlord’s forms. The “agreement,” such as it is, is in every sense a contract of adhesion in which Landlord possessed all the bargaining power. As noted above, Mary Brown actually attempted to negotiate with Landlord over the appropriate signatories, but Landlord refused. Brown’s options were to sign the lease exactly as Landlord required or remain homeless. Faced with this double bind, she chose what she perceived as the lesser of the two evils. Section 7 of the lease provides as follows: RESIDENT PROMISES:

(a) Not to act in a loud, boisterous, unruly, thoughtless, unlawful or dangerous manner or disturb or violate the rights to other residents to peace and quiet, or to allow his/her family or guest to do so (this includes but is not limited to damage by resident’s children, public drunkenness, loud parties or arguments, cars on the grass, police being called); (b) To use the Apartment/premises only as a private residence and not to in any way that is illegal or dangerous or which would cause a cancellation, restriction or increase in the premium in MANAGEMENT’s insurance and to refrain from such illegal activity or activities on or away from the premises which impairs or downgrades the physical or social environment of the development and/or surrounding neighborhood. Section 19 of the lease allows for eviction only for material violations, and Landlord included in Section 7 a provision that defined all violations as material. Anthony possessed drugs within the apartment, and for Landlord and the majority, that settles it. The majority’s analysis is incorrect for several reasons. First, as noted above, the lease cannot be read to provide a lessee less protection than that provided in Minnesota Statutes §504.181. Differently

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put, if Section 504.181 protects an innocent lessee against eviction based on illegal drug possession by a culpable co-lessee, Landlord’s form lease cannot contract away this protection: “The parties to a lease . . . of residential premises may not waive or modify the covenant imposed by this section.” Minn. Stat. §504.181(3) (emphasis added). The plain meaning of the term parties includes Landlord. Accordingly, the prohibition on modification of the covenant applies to Landlord. Differently put, if Mary Brown is entitled to protection under Section 504.181, which is an implied term of the lease, Landlord cannot remove that protection through other lease provisions. Here, Landlord’s entire argument concerning Sections 7 and 19 of its lease is nothing more than an attempt to circumvent the protection that Section 504.181 provides innocent tenants. Accordingly, the argument must be rejected out of hand. Wholly apart from Section 504.181, there are independent reasons that Landlord is not entitled to evict Mary Brown and her minor children. First, as noted above, it is not at all clear that federal law allows for eviction from Section 8 Moderate Rehabilitation housing under these circumstances. More importantly, though, and as the majority acknowledges, eviction is a harsh remedy that will not be enforced when the party seeking eviction has another adequate remedy. Unacknowledged by the majority is a related principle: this Court refuses to allow evictions, even following breach, when doing so would result in great injustice, assuming another adequate remedy is available to the landlord. Fedorko, 1994 WL 654525. In allowing eviction in this case, the majority invokes the importance of eliminating drugs in subsidized and public housing, and opines that eviction is probably the best, or even only, way to eliminate unlawful drug use. In short, the majority’s position is that eviction is the only adequate remedy for Landlord. It says nothing about whether eviction would be a great injustice as regards Mary Brown and her minor children. Perhaps the majority avoids analyzing the injustice prong of our test because it cannot dispute the great injustice involved. There is some degree of injustice any time an innocent tenant is evicted for the actions of another resident. Here, however, the injustice is even greater than in the typical case. Mary Brown is being evicted based on the – unknown to her – drug possession by a household member, whose behavior toward her was sufficiently threatening that she was granted an Order of Protection under the Domestic Abuse Act. Moreover, the event that was the ultimate catalyst for her eviction was a call to law enforcement made for her own protection. The great injustice of evicting a victim based on the actions of an abuser – actions over

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which she had no control – should be obvious, and eviction becomes still more unjust, even perverse, when one considers that these actions only came to light because someone tried to protect Mary Brown. But the great injustice of an eviction in this case does not end there. Landlord apparently does not dispute that Mary Brown would have a defense to eviction under Section 504.181 had Anthony merely been a resident of the premises, as opposed to a co-lessee. Assuming Landlord’s reading of Section 504.181 is correct – an assumption I obviously reject – it is only Anthony’s status as a co-lessee that subjects Mary Brown to eviction for Anthony’s possession of drugs. But the only reason Anthony had that status in the first place is that Landlord insisted upon it, over Mary Brown’s repeated objection both before and after the lease was signed. Although technically the elements of equitable estoppel are not met here, Landlord should not be permitted to insist upon a status that deprives Mary Brown of any effective control over Anthony, then rely on that status as a reason to evict her for failing to control Anthony’s behavior. To allow eviction under these circumstances would be greatly and gravely unjust. The injustice is compounded by an undeniable fact: an eviction will likely return Mary Brown and her two minor children, one of whom is 4 years old, to the streets. Moreover, the presence of an adequate remedy is obvious here. Anthony has not contested these evictions and no longer lives in the apartment. Mary Brown has obtained an Order of Protection against him. The lease can be modified to reflect Mary Brown’s status as the sole lessee. If she violates the lease by engaging in unlawful activity or violates the implied covenant of Section 504.181 by allowing those under her control to possess or use drugs, then eviction may be an appropriate remedy.44 Here, however, the anti-drug policy can be furthered effectively through less drastic means than eviction. The majority’s glossing over the injustice to Mary Brown and her family and its conclusory statement that Landlord lacked an effective remedy short of eviction is rooted in a fundamental error: its thoughtless elevation of the priorities of the War on Drugs over all other policy aims. Confronting our state and nation’s drug crisis is an important priority, to be sure – though, in my view, one better addressed through public health rather than through punitive measures like eviction – but it is not the only priority. Combating

44

Landlord claims it lacks an adequate remedy because Mary Brown has allowed Anthony on the premises three times since she obtained the Order of Protection. These allowances all occurred after Landlord refused to consider any offers of remedies short of eviction.

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homelessness, domestic violence, and economic instability should assume at least as much urgency as the War on Drugs. The likely outcome of the majority’s decision is that Mary Brown, her 16year-old daughter, and her 4-year-old daughter – a child barely past toddlerhood – will be sleeping on the streets of Minneapolis, seeking sleeping quarters at a relative’s home every few nights, or making their way to whichever shelter, if any, happens to have room for a woman and her two children, even though Mary Brown did absolutely nothing wrong. We are better than this. I dissent.

17 Commentary on Blake v. Stradford andrea b. carroll

introduction From today’s vantage point, it is easy to forget the rapid and expansive development of the law at the intersection of property rights and family relationships that has occurred over the course of the last several decades. At the time of Blake v. Stradford,1 the decision explored in this chapter, same-sex marriage was not legally recognized in the United States.2 Marriage between interracial couples had been sanctioned for only three decades.3 And when it came to marital property rights, married women held some, albeit few. Laws like that of coverture, and classification of the husband as the “head and master” of the family with the sole right to act in property matters relating to either spouse’s property, were still fading from the fore.4 Unmarried cohabitants, in contrast, were offered virtually no property protections. For parties who wished to share and jointly manage property attendant to an intimate relationship, the proposition was then, and arguably remains now, a risky one. Because the law offered no support in terms of evening out the equities for unmarried cohabitants, titleholders come out of any break in these relationships vastly ahead of their poorer, typically female, counterparts.5 Property and family law have justified these realities by highlighting the significance of choice. The choice to cohabit as unmarried individuals is one fraught with pitfalls, as evidenced in Blake, in which an unmarried woman

1 2 3 4

5

Blake v. Stradford, 725 N.Y.S. 2d 189 (2001). See Obergefell v. Hodges, 576 U.S. 644 (2015). See Loving v. Virginia, 388 U.S. 1 (1967). See, e.g., Claudia Zaher, When a Woman’s Marital Status Determined Her Legal Status: A Research Guide on the Common Law Doctrine of Coverture, 94 Law Lib. J. 459 (2002). See, e.g., Elizabeth Hodges, Will You “Contractually” Marry Me?, 23 J. Am. Acad. Matrim. Law 385 (2011).

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cohabitating with the father of her children is deemed a mere licensee subject to removal at his whim. Both the original opinion here and the feminist judgment offer the opportunity to consider just how much choice women have when it comes to ordering their intimate relationships and entering into the contract of marriage. And where such choice proves to be more aspirational than real, the case invites us to explore the question of whether and how the application of traditional property law doctrines can be equitably applied to avoid injustice to a family.

original opinion Blake involves a titleholder’s attempt to evict his former domestic partner and their two children from the home the family shared for nearly three years. Easton Blake and Kim Stradford began a romantic relationship, conceiving a child together. After the birth of their first child, Stradford and her baby moved into the home purchased by Blake several years earlier, and the three lived together as a family. The couple welcomed their second child several years after their cohabitation began. Soon thereafter, the relationship between Stradford and Blake soured considerably, and Stradford sued Blake for child support. In that proceeding, the family court issued an order of support, awarding the children the monetary aid from their father to which they were entitled.6 Stradford then sought a protective order from the New York District Court to prohibit Blake from approaching her except for necessary visitation exchanges. The protective order that issued expressly prevented Blake from the family home, as Stradford and the children resided there. Immediately thereafter, Blake sought to evict Stradford, alleging that the family home was his sole property. All parties agreed, and the court recognized, that Stradford’s name was neither on the deed nor the mortgage to the home. To support his argument to remove her, Blake urged the court to consider Stradford a “licensee” whose license had been terminated and who no longer had the right to occupy the premises. Stradford argued that both her eviction and her classification as a licensee were inappropriate.7 The court framed the issue in Blake as one of first impression, namely, whether Blake was entitled to classify his “ex-domestic partner” and his children as licensees and summarily evict them at his whim from the home

6 7

Blake, 725 N.Y.S.2d at 194. Id. at 190.

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they occupied.8 First, the court defined a licensee under New York law as one occupying premises with the permission of the owner. Accordingly, it found Stradford to be Blake’s licensee. The court rejected Stradford’s claims that her status as Blake’s former domestic partner and as mother to his children, residing all together, precluded her from being merely a licensee given the special character of their relationship.9 The court had the most difficulty with the couple’s children, essentially punting on the question of their status. Noting the legal obligation of support a parent owes to a minor child, and recognizing that a safe home is an essential component of that duty, the court found it improper to classify children as the licensees of their father. Still, the court held that the children’s status was largely irrelevant to the case at hand. The eviction proceeding was one brought against Stradford, and the children’s status was, in the court’s view, irrelevant to the resolution of that dispute. Recognizing the reality that eviction of Stradford results in eviction of the couple’s children, the court simply noted that children are often factually evicted in property law as a result of their guardians’ legal eviction.10 The conclusion regarding Stradford’s status is equally callous. The court details the exalted status that “wives” have historically enjoyed in common law and New York property law. Wives enjoy a right of possession to the family home and a legal right to support as a part of the “special rights incidental to the marriage contract and relationship.” Cohabiting partners in a state like New York, which does not recognize common law marriage, however, are entitled to nothing. Women and children who “choose to cohabit,” as the court describes Stradford and her family, are simply not entitled to the benefits afforded to married women and their children. The court rejects Stradford’s plea not to evict her, finding its recognition of her as Blake’s “ex-domestic partner” meaningless.11

feminist judgment The feminist judgment by Professor Meredith Render, writing as Judge Render, imbues the cohabitant who is a domestic partner with an equivalent status, from a property perspective, to that of a spouse. In extending the spousal exception to the rule that licensees may not be summarily evicted to domestic 8 9 10 11

Id. Id. at 192. Id. at 195. Id.

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partners, Render decouples the protections offered by property law from marriage and extends them to a woman (and her children) who held a functionally equivalent status in the home. Beginning with a recognition of the applicable common law definitions of a licensee, Render observes that an exception to the doctrine of revocable licenses has long existed for spouses, largely as an outgrowth of the duty of support a husband historically owed to a wife. Inroads have been made to that exception, however, broadening it beyond spouses to others who have reasonably relied on promises of occupancy made by the owner, or to others with a familial relationship to the property owner, including stepchildren and adult children. Nonetheless, the spousal exception is a limited one. It does not create a right of ownership or co-ownership. Rather, it merely creates some exception to summary eviction from one’s home, the contours of which are largely undefined. Render appropriately recognizes the spousal exception to classification as a licensee as an excessively narrow one, then. Her feminist judgment then places in historical and societal context the depth of the inequity that results from an exalted right dependent solely on one’s status as “wife.” Render highlights marriage as an institution that has been something far from a “choice” for women, but rather as an institution foisted upon them, often against their will. Even as marriage evolved away from its slavish roots in the twentieth century, its history as an institution that prejudiced women, particularly from an economic perspective, was already enshrined and carried forward to modern marriage. The laws of coverture, the inability of unmarried women to obtain employment and economic independence, and the commodification of women as the “responsibility” of their husbands until recent times serve to drive the point home. A woman’s status as “marriageable” (largely a function of a male’s perception of her wealth, sexual attractiveness, and reproductive capacity) was largely determinative of her future, thus perpetuating a patriarchal structure in which women had no practical choice but to conform, or lose economically. Render’s feminist judgment declines to perpetuate a societal construct favoring a woman who has drawn a man’s favor sufficient to garner the status of “wife” over a woman who, for whatever cause, has not been favored with this status. Viewing the spousal exception to the doctrine of revocable licenses through a broader lens, and construing it instead as a “familial exception,” Render includes unmarried romantic cohabitants within the exception’s ambit. Under Render’s approach, the licensee exception would extend beyond legal marriage and to relationships carrying intimacy, reliance, and trust. The feminist judgment therefore finds Stradford within the exception, and protected from summary eviction at Blake’s behest.

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Render’s judgment goes on to articulate the long history of discrimination based on sexuality and gender identity that has pervaded the history of legal marriage. She notes that at the time of the Blake decision, 2001, the status of “wife” was plainly unavailable to a huge segment of the population, particularly those identifying as LGBTQ. Because a spousal exception reinforces discrimination based on sexuality and gender identity, the feminist judgment finds further cause to jettison a spousal exception to revocable license in favor of an exception more focused on the nature of the intimate relationship between the parties. Stradford is freed of summary eviction proceedings in the feminist judgment. The judgment does not opine specifically on Stradford and Blake’s children, because they would also clearly be covered under a familial exception. And thus the judgment offers the protection of a safe and stable home to both the partner and children of a long-term relationship with the homeowner.

familism v. feminism This book, of course, is a celebration of the contributions of feminist inquiry and feminist theory to solving the practical problems that plague our courts daily in a more equitable manner than might traditional common law. Render skillfully highlights the law’s role in rendering women subservient to their male counterparts and romantic partners in the property domain. The law rather handily accomplished that effect at the turn of the century when Blake was decided. And it continues to accomplish it twenty years later through a series of family law and marital property doctrines that fail to empower women and to permit them to escape historical bonds.12 This feminist judgment takes an early and substantial step towards righting that wrong. But its greatest achievement is in promoting familism.13 As Render notes, unmarried women, and even women in general, are not the only societal group who have enjoyed diminished status in the property and family law spheres. Persons of color, those identifying in the LGBTQ community, victims of domestic abuse, those living in poverty, among others, continue to suffer from antiquated and destructive constructs of

12

13

See generally Andrea B. Carroll, Family Law and Female Empowerment, 24 UCLA Women’s L.J. 1 (2017). See generally Critical Familism, Civil Society, and the Law, 32 Hofstra L. Rev. 313 (2003) (developing and categorizing multiple forms of “critical familism”).

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family and property law.14 In the narrow context of license, Render’s feminist judgment reaches for equity. The result of the feminist judgment here is not one that is likely to be universally lauded. A homeowner is deprived of the ability to use summary eviction proceedings to oust a person who has no ownership interest whatsoever in his property and with whom he no longer desires to continue in a relationship. It undermines the central tenets of property law, including ownership’s very nature as absolute and exclusive.15 It is at odds with the expressive function of family law, at least insofar as family law’s desire for centuries has been to channel heterosexual couples into marriage.16 Family and constitutional law have progressed since the original decision in Blake, but not as much as one might have hoped. Carlos A. Ball noted that the United States Supreme Court, as early as 1972, has made clear that it is unconstitutional to “promote so-called family optimality by targeting certain classes of individuals for differential treatment.”17 Nonetheless, the Court’s 2015 decision in Obergefell v. Hodges, while recognizing marriage as a fundamental right and liberalizing the traditional view of marriage, continues to exalt marriage and to give preferential treatment to those who engage in it over that given to other intimate partners.18 What the Blake and Obergefell courts fail to recognize is that marriage is often not a choice at all. It is simply unavailable to certain individuals, despite their best efforts. Render recalls the unavailability of marriage to particular segments of the population, including, at the time of Blake, those wishing to marry an individual of the same sex. Historically, barriers to marriage by certain groups have been abrogated by the expanding recognition of marriage as a fundamental right.19 But what remains even today is a legal conception of marriage as a bilateral contract, requiring the assent of both partners.20 14

15

16

17

18 19

20

See, e.g., Editorial, Blacks Still Face a Red Line on Housing, N.Y. Times (2018), https://www .nytimes.com/2018/04/14/opinion/blacks-still-face-a-red-line-on-housing.html. See C.G. Van der Merwe, The Louisiana Right to Forced Passage Compared with the South Africanway of Necessity, 73 Tul. L. Rev. 1363 (1999) (explaining the traditional rule of property rights as absolute and exclusive since Roman times). See, e.g., Vivian E. Hamilton, Principles of U.S. Family Law, 75 Fordham L. Rev. 31, 38 (2006). Carlos A. Ball, Obergefell v. Hodges Re-Written from a Feminist Perspective, in Feminist Judgments, Rewritten Opinions of the United States Supreme Court 532, 541 (Kathryn M. Stanchi, Linda L. Berger, & Bridget J. Crawford eds., 2016). Obergefell, 576 U.S. at 669–670. See generally Loving, 388 U.S. 1 (U.S. recognition of the right to interracial marriage); Obergefell, 576 U.S. 644 (U.S. recognition of the right to same-sex marriage). Erik J. Krueger, God versus Government: Understanding State Authority in the Context of the Same-Sex Marriage Movement, 7 Liberty U. L. Rev. 235, 248 (2013).

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Theoretically, men and women have equal ability to initiate execution of the contract. The lived reality, however, even after multiple waves and strides in feminism and equality, is that in heterosexual couples, at least, men largely control the decision to enter into the marriage contract and they largely control the timing of that decision.21 For many, marriage, even in the twenty-first century, simply isn’t the “choice” Blake makes it out to be. Until we can truly say that women – or, more appropriately, all persons – have equal practical access to the contract of marriage, it is inappropriate to hinge essential property rights, including those which come with occupying a home as a licensee, exclusively upon whether an individual has been lucky enough to be chosen by another individual as a marital partner. The modern reality of births of children whose parents are not married – now said to be in the range of 40 percent of all children born22 – simply underscores the impact of property and family law rules that preference marriage above all other relationships. No doubt both partners to such relationships choose such a status quite often. But for many, that decision is made unilaterally, and relationship status does not represent any form of choice. Blake hinges the right of freedom from summary eviction upon a legal duty of support.23 Where there is such a duty, it suggests summary eviction is inappropriate. But such a legal duty of support only comes as an outgrowth of legal marriage.24 Absent a ceremonial or common law marriage, Stradford had absolutely no ability to create a mutual legal duty of support with the man whose two children she bore, and with whom she cooperatively lived for years. Property law traditionalists may opine that this is simply the way things must or should be with regard to many property rights. But when it comes to the right to housing – and particularly the family home – the law should do better. Internationally, the right to housing is well-recognized as a fundamental right and often as a constitutionally protected one.25 Summary eviction from a home one has occupied for years, and even eviction under a more procedure-laden process, would typically not be within the realm of possibility for a 21

22

23 24

25

See generally The State of Our Unions: The Social Health of Marriage in America, The National Marriage Project at Rutgers 2002, http://www.stateofourunions.org/pdfs/SOOU2002 .pdf (describing reasons men resist marriage, even when social science research demonstrates that such resistance is contrary to their best interest). CDC, National Center for Health Statistics 2018, https://www.cdc.gov/nchs/fastats/unmarriedchildbearing.htm. Blake, 725 N.Y.S.2d 189. Twila L. Perry, The “Essentials of Marriage”: Reconsidering the Duty of Support and Services, 15 Yale J. Law & Feminism 1 (2003). See Andrea B. Carroll, The International Trend toward Requiring Good Cause for Tenant Eviction: Dangerous Portents for the United States?, 38 Seton Hall L. Rev. 427 (2008).

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property owner as against a “stranger” occupying his home.26 The notion of putting out Stradford and Blake’s own children summarily would simply be anathema in jurisdictions adopting the traditional European fundamental right/good cause housing eviction rules.27 And while Blake does not tee up for consideration the entirety of housing law and an occupant’s right to a home vis-à-vis the owner, it certainly does offer an opportunity to do right by the children of a licensee and the owner’s romantic partner. Render’s feminist judgment departs from the narrow licensee rule of the common law in favor of a more nuanced approach based on the intimacy of the relationship and the full contours of the family occupying the home. For those who fear intrusion into a homeowner’s prerogative of exclusive ownership, Render’s feminist judgment is no doubt daunting. But it laudably accomplishes a long-overdue subversion of individual property rights in the narrow context where such subversion is required to promote family wellbeing. The judgment here promotes feminism. Even more so, it promotes familism, a concept for which traditional property law doctrines should yield more often in the interest of society as a whole.

BLAKE V. STRADFORD, 725 N.Y.S.2D 189 (DIST. CT. 2001)

judge meredith render delivered the opinion of the court In the case before us, we are asked whether New York law regards a “domestic partner” as materially distinct from a “spouse” with respect to the right to avoid summary eviction from a familial home. Petitioner, Easton Blake, would have us conclude that a domestic partner lives in the familial home solely at the pleasure of her partner, while a “spouse” lives in the familial home by right incident to the marriage relationship. However, this Court finds that no such distinction can be justified under New York statutory law, existing precedent, or principles of equity. While New York permits the summary eviction of a licensee pursuant to §713(7) of the Real Property Actions and Proceedings Law (hereinafter “RPAPL”), a legally married spouse is not considered a “licensee” under that statute. Rosenstiel v. Rosenstiel, 245 N.Y.S.2d 395, 400– 401 (App. Div. 1963). This is known as the “familial exception” to RPAPL, and 26 27

Id. Id.

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the Court here concludes that the familial exception is likewise applicable to a domestic partner. Thus, respondent Kim Stradford, as the domestic partner of an owner of real property who has lived on the property with the owner, is not a licensee within the meaning of RPAPL and cannot be summarily evicted. Similarly, their two minor children also fall within the familial exception. The minor children are not licensees under the statute and they cannot be summarily evicted.

i RPAPL §713(7) and the Rosenstiel Exception RPAPL §713 identifies the grounds for summary proceeding where no landlord–tenant relationship exists between the parties: A special proceeding may be maintained . . . after a ten-day notice to quit has been served upon the Respondent . . . upon the [ ] grounds . . . that [h]e is a licensee of the person entitled to possession of the property at the time of the license, and (a) his license has expired, or (b) his license has been revoked by the licensor, or (c) the licensor is no longer entitled to possession of the property . . . .

RPAPL §713(7). Blake argues that his ex-domestic partner and his two minor children are licensees who are subject to summary eviction under the RPAPL. This Court disagrees. It is well settled in New York that a wife (or husband) of an owner of a family home, who resides in that family home along with the owner, is not a licensee of the owner. A licensee occupies space by a permission that may be revoked at any time. In contrast, a wife (or husband) has a right to occupy the familial home that arises incident to the marriage relationship. This exception was first articulated by Rosenstiel v. Rosenstiel, 245 N.Y.S.2d 395. The Rosenstiel Court held that [A] wife, in her occupation of the marital home, would not ordinarily be considered to be using the same in the status of the “licensee” of her husband. This statute is not applicable to her because she is not, in accordance with the wording thereof, a “licensee” whose “license” has “expired” when she remains in occupation of the premises upon being abandoned by her husband; nor does she hold a “license” which may be “revoked” by a notice served upon her by her husband.

Id. at 402. The Rosenstiel Court reached this conclusion based on what it understood to be the implicit set of promises and duties that are incident to marriage. The Rosenstiel Court observed,

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From the very beginnings of the common law the husband has been required to support and maintain his wife. This duty is based not on contract or statute but on status. A part of this duty is to provide a suitable home for her. It shocks one’s sense of justice and of the fitness of things that a husband may in fulfillment of this duty provide such a home and later from willfulness or caprice or for no reason whatever turn her out of the home so established without providing a suitable place to live elsewhere. The law does not tolerate this.

Id. at 401. The “wife exception” to the common law status of licensee articulated by Rosenstiel has been extended to include stepchildren, see Nagle v. DiPaola, 512 N.Y.S.2d 761 (Dist. Ct. 1987), adult children, Sirota v. Sirota, 626 N.Y.S.2d 672, 673 (Civ. Ct. 1995), aff’d as modified, 168 Misc. 2d 123, 644 N.Y.S.2d 950 (App. Term 1996), and even unmarried cohabitating partners, Minors v. Tyler, 521 N.Y.S.2d 380 (Civ. Ct. 1987). As the exception has been broadened beyond the status of “wife,” it has come to be known as the “familial exception.” Moreover, although the Rosenstiel Court emphasized the intact nature of the marriage in that case, subsequent cases have found the exception exists even where the familial relationship itself has been dissolved. The familial exception as described by the Rosenstiel Court readily resolves the question of whether Blake’s minor children are subject to summary eviction. The minor children are clearly not licensees within the meaning of RPAPL. The children have rights that exceed that of a licensee by virtue of their familial relationship with their father. Both parents have an obligation to support their children, and that obligation imbues Blake’s minor children with rights that exceed that of a licensee. Blake’s obligation to support his children may or may not extend to providing shelter to the children. Nagle v. DiPaola, 512 N.Y.S.2d 761 (Dist. Ct. 1987). Whether Blake has an obligation to provide support to his children in the form of shelter is a question for Family Court to resolve pursuant to Family Court Act, article 4. Until that determination is made by the appropriate judicial body, Blake’s minor children fall squarely within the familial exception to RPAPL and are not subject to summary eviction. See id. (finding the exception extends to stepchildren based on the matrimonial relationship of the children’s parent and step-parent). We turn now to the question of the status of a domestic partner under RPAPL. Before this Court can determine whether a domestic partner falls within the familial exception to RPAPL, it is essential to first understand the basis for that exception. The familial exception is not found in the text of RPAPL. The RPAPL refers only to “licensees,” so the Rosenstiel court was tasked with reconciling the status of “wife” with a set of statuses that are

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conferred by property law, such as “owner,” “occupant,” “trespasser,” and “licensee.” Within this analysis, the Rosenstiel court ultimately situated the status of “wife” between an “owner” (the status does not confer ownership over real property owned by the husband prior to the marriage) and “licensee” (the status does confer a right to avoid summary eviction that exceeds that of a licensee). In general, an owner of real property may invite others to reside there, and, unless another legal relationship exists between the parties (e.g. a tenancy), the owner is permitted to revoke that permission at any time. In the usual case, a non-owner licensee has no right to occupy property belonging to another after permission to be there has been revoked. However, in some instances, equity requires that the owner be estopped from ejecting the non-owner. For example, if a non-owner has reasonably relied on promises made by the owner, then equity may prohibit the owner from revoking permission to occupy the property. The Rosenstiel court appears to have based the “wife” exception on this type of equitable theory. The Rosenstiel court found that the exception to the general licensee rule arose from a preexisting duty on the part of a husband to provide a suitable home for his wife. The existence of the duty – which was historically known as the “doctrine of necessities” – meant that a wife has a right to reside in the familial home unless another suitable home was provided by her husband. See William Tucker Dean, Economic Relations between Husband and Wife in New York, 41 Cornell L. Rev. 175, 177 (1956). While the Rosenstiel court does not identify the exact content of a wife’s right to occupy the familial home, it is clear that it exceeds the right of a mere licensee. The Rosenstiel court is also clear that the duty to provide a home for the wife is not based in contract or statute. Instead, it is a duty that is based on the marriage relationship itself. The Rosenstiel court explains that implicit in the marriage relationship is the promise that a husband will provide a home for his wife and from that implicit promise arises a legally enforceable right. Of course, one could imagine a much more robust enforcement of the duty to provide a suitable home than is offered by the Court. For example, if such a duty exists – and it is not merely a moral or ethical duty, but is instead a legally enforceable duty – then one could imagine that a cause of action may lay with a wife to acquire title to real property owned by her husband if the husband has failed to otherwise provide a suitable home. The status of “wife” might confer the more concrete and salient (in terms of meeting material needs) status of “owner” if a title transfer is necessary to secure fulfillment of a legally enforceable (if implicit) promise. Were that the case, then rather than asking the court to preclude summary eviction (while still facing an eventual eviction

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and lacking the legal status to avoid that outcome), the wife in Rosenstiel could have asked the court to declare her a co-owner of the property in question, in satisfaction of the husband’s judicially cognizable debt to her. However, the Rosenstiel court articulates a much feebler version of the right to a suitable, husband-provided, home. Under the Rosenstiel framing, that right is legally enforceable only insofar as the husband in question (1) already owns a suitable home; (2) has invited the wife to reside in that home with him; and (3) has revoked his permission for the wife to continue to reside in the home. If the husband owns a suitable home but fails to invite the wife to reside there with him, the Rosenstiel framing offers no enforcement of the promise. If the husband has the means to provide a suitable home but declines to purchase one, the Rosenstiel framing offers no enforcement of the promise. If the husband has a suitable home and invites his wife to reside there but then decides to sell the property, the wife has no power to stop the sale under the Rosenstiel framing (although other equitable doctrines may provide a remedy here). In this light, the limited property right (i.e. something more than a licensee) that is incident to the status of “wife” is a poor substitute for the status of “owner” or “co-owner.” While it confers a type of power to the wife-statusholder (to avoid summary eviction under some circumstances), it is an anemic and indirect power in that it depends on a series of autonomous choices by the husband. The husband may or may not decide (or be able) to secure a suitable home. The husband may or may not invite the wife to reside there. The wife’s power to enforce the duty to provide a home is limited to circumstances in which the husband has already contrived to provide a home and has later decided to withdraw it. In assessing the content of this legally enforceable promise, one might also question the consideration that is given to secure the debt. What corresponding and legally enforceable benefits are implicitly promised incident to the status of “husband?” The nature and judicial enforceability of this exchange is examined in greater detail below.

iii Findings of Fact In January of 1989, Easton Blake purchased a home at 485 Pinebrook Avenue, West Hempstead, New York. At some point prior to 1993, Easton Blake entered into a romantic relationship with Kim Stradford, which they eventually characterized as a “domestic partnership.” A domestic partnership is not a

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legally defined status in New York, but it may be understood to connote a romantic, pair-bonded relationship similar to marriage. In April of 1994, they welcomed a child together. In December of 1997, Kim Stradford and the child moved into the home at 485 Pinebrook Avenue, where Blake was already residing. At this point, 485 Pinebrook Avenue became the family home of Stradford, Blake, and the minor child. In July of 1999, Stradford and Blake welcomed a second child together, during which time the couple continued to live together with their children as a family at 485 Pinebrook Avenue. In early 2000, the relationship between Stradford and Blake deteriorated. At that point, Stradford sought and received an order from Family Court directing Blake to pay support to Stradford for the maintenance of the couple’s two minor children. Some months later in May of 2000, Stradford sought and received an order of protection against Blake. That order stated in pertinent part: Now, therefore, on default it is hereby ordered that . . . Easton B. Blake observe the following conditions of behavior: Stay away from Kim Stradford, and/or from the home of Kim Stradford, located at 485 Pinebrook Avenue, Lakeview, New York . . . or wherever she may be, except when appearing for visitation as agreed upon between the parties or as per court order – curbside pick-up and drop-off.

Unfortunately, the record before us does not reflect the facts that prompted the Family Court to enter this order of protection in favor of Stradford and against Blake. However, this Court takes judicial notice of the fact that the Family Court Act §842 authorizes Family Court “to determine which party remains in possession of a house or apartment directly via an order of protection, or indirectly by ordering the respondent to ‘stay away’.” N.Y. Fam. Ct. Act §842 (McKinney). Moreover, while ownership of real property cannot be transferred pursuant to a protective order, Family Court is empowered to grant a party exclusive occupancy. Id. Here, the order of protection clearly confers exclusive possession of 485 Pinebrook Avenue to Stradford and her children, insofar as it orders Blake to “stay away” from that property as well as from Stradford herself. That order of protection remains in effect. Shortly after entry of the order of protection conferring exclusive possession of 485 Pinebrook Avenue to Stradford, Blake demanded that both Stradford and the children vacate the property. In December of 2000, Blake served Stradford with a ten-day notice to quit the premises. In January of 2001, Blake commenced this proceeding to obtain exclusive possession of the property on the grounds that Stradford is a “licensee” whose license has been properly terminated by notice and service pursuant to RPAPL §713(7).

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ii The Status of “Wife” Rosenstiel makes clear that the legally cognizable status of “wife” lies at the center of this case. The Rosenstiel court stated that the basis of the familial exception lies not in contract but in status, specifically the status “wife.” Rosenstiel, 245 N.Y.S.2d at 401–402. In this, the Rosenstiel court emphasizes that a wife’s right to avoid summary eviction need not have been expressly agreed to in advance by the parties. However, the concept and status of “wife” carries with it a long and complicated legacy. A For most of American history, the marriage contract has been enacted against a backdrop of profound inequality. The most profound aspects of that inequality have historically been experienced by women and girls of color, multitudes of whom were kidnapped, brought to a foreign shore, and enslaved, or born to people who were. For those women and girls, the marriage exchange was a baldly economic endeavor in which women and girls were forced by male slavers into unions that were chiefly punctuated by sexual and reproductive servitude.28 These unions were not legally cognizable, but they were nonetheless legally sanctioned in that the law authorized slavers to force sexual unions on slaves. Darlene C. Goring, The History of Slave Marriage in the United States, 39 J. Marshall L. Rev. 299, 307 (2006). The resulting unions were pursued solely for the corresponding benefits (e.g. enslaved offspring) those marriages would garner for the slavers, and no corresponding benefits were implicitly promised to the women or girls that endured them. See Bethany Veney, A Slave Woman (1889) (“I did not want [the person conducting our marriage] to make us promise that we would always be true to each other, forsaking all others, as the white people do in their marriage service, because I knew that at any time our masters could compel us to break such a promise.”). The Rosenstiel court seemed not to have this type of marriage in mind, even though such marriages were ubiquitous in parts of this country from 1619 until 1865, a mere hundred years prior to the decision. This Court, however, 28

Marriages of choice also existed among enslaved people, although these were not legally enforceable because “as personalty, slaves lacked the capacity to enter into any form of marital union recognized necessarily or legally by the plantation masters, the government, or the judiciary.” Darlene C. Goring, The History of Slave Marriage in the United States, 39 J. Marshall L. Rev. 299, 307 (2006).

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declines to overlook this subset of “marriages” not only because to do so would be to dismiss as irrelevant the lived experiences of countless enslaved women and girls, but also because enslaved marriages, shorn of romantic and religious pretext, lay bare a basic economic structure that characterized the institution of marriage in America for much of its history. While forced enslaved marriages were singular in their savagery and inhumanity, the legal understanding that women and girls were chattel – property to be bought and traded chiefly through the mechanism of marriage – was the central organizing principle of the institution of marriage for much of American history. B Further, for much of American history, the bare economic exchange of marriage for “free” (non-indentured) white women – which is the subset of “wives” that the Rosenstiel court seems to have most in mind – was at least partially obscured by a façade of religious and romantic pretext. America inherited from English common law the legal concept of coverture. See 1 William Blackstone, Commentaries, 442. Under the doctrine of coverture, a woman or girl was legally the chattel of her husband – a literal object of his possession. The romantic overlay of this doctrine was the idea that a marriage makes a husband and wife “one person” – both legally and spiritually. See id. The practical effect of coverture meant that if a wife held property before the marriage, the title to that property transferred to husband upon marriage. Title transfer was automatic. It did not depend upon statute or contract but was incident to the status of “husband.” Norma Basch, Invisible Women: The Legal Fiction of Marital Unity in Nineteenth-Century America, 5 Feminist Stud. 346, 346–366 (1979). It conferred upon him a new status: the status of “owner” – not co-owner, as this Court imagined might happen in the context of the right to have a suitable home – but sole owner. Thus, under coverture, the status of “wife” conveyed the opposite of a benefit: it conveyed a deficit. The status of “wife” stripped a woman or girl of whatever access to economic independence she might have had prior to the union and rendered her economically dependent on her husband. This dependence was, of course, by design, and it is one of many ways in which property law served as an indispensable support to a system of gendered oppression that is broadly described as “patriarchy.” See Carole Pateman, The Sexual Contract 19–23 (1988). Simply put, patriarchy is a system that increases and preserves the economic, conventional, and political power of men (or male-identified people) while simultaneously limiting women’s (or female-identified people’s) access to those same categories of power.

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C Historically in America, patriarchal control of women and girls was not limited to the marriage sphere. Women and girls also lacked the capacity to access economic independence outside the context of marriage. Unmarried women and girls had limited capacity to pursue employment, to pursue education, or to engage in economic enterprise. William H. Cord, A Treatise on the Legal and Equitable Rights of Married Women; As Well in Respect to Their Property and Persons as to Their Children (1885). Women and girls had no right to appear in court, and they were legally prohibited from voting. As a result, women and girls were systematically prevented from accessing economic independence and civil liberty – as well as securing their own personal physical safety. Consequently, marriage for American women and girls was historically a matter of survival. Under such circumstances, it can hardly be understood to be a contract (or convention) freely entered. Throughout American history (and in an alarming number of subcultures and communities today), women and girls were forced into marriage relationships, without regard to their preferences and aspirations, to say nothing of their consent. Families would sell or trade daughters into marriage in exchange for economic or social gain, or failing that, to avoid the economic burden and social stigma of an unmarriageable daughter. The personhood and value of those born female was entirely understood through the metric of this marriage exchange, and consequently the role of women and girls in American society was entirely instrumental: they were a commodity. This commodification of American women and girls lies at the heart of the exchange of promises that is recognized by the Rosenstiel court. The basic structure of the exchange provided that the groom agreed to assume the responsibility of providing financially for his future wife. This is the origin of the implicit promise that a husband will provide a suitable home for his wife that serves as the basis for the familial exception articulated by the Rosenstiel court. Under the doctrine of coverture, it was a promise enforceable in equity. The promise itself was necessitated by the fact that women were formally prohibited from securing their own sustenance, having been stripped of virtually any lawful means to do so. The marriage exchange, although clothed in religious and romantic imperative, was an essential path to survival. Within the very limited set of options available to women and girls, marriage became the dominant desirable paradigm – an emblem of success and the apex of achievement – and marriageability became the central measure of female value. In this way, marriage offered women and girls a status-based promise of limited and indirect access to economic sustenance and physical security.

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It was, of course, far from a guarantee. Because the status of “wife” was anchored to the status of “chattel,” a husband was often able to physically assault his wife, to starve and neglect her, to cut her off from society or family, and to otherwise dominate and render miserable every aspect of her daily life without meaningful intercession from the law. See Reva B. Siegel, “The Rule of Love”: Wife Beating as Prerogative and Privacy, 105 Yale L.J. 2117 (1996). While laws existed to mitigate extreme cruelty or an utter failure to economically support one’s wife (in sharp contrast with the protections available to enslaved women), for the most part, whether or how a woman was sustained depended almost entirely on the capabilities and caprice of her husband. Whether she had a safe – let alone suitable – home depended entirely on whether her husband fulfilled those promises that were incident to the status of “wife.” In exchange for the promises of safety and sustenance, a bride (or her family) promised to the groom: sexual receptivity/availability; reproductive capacity; physical domestic and/or agricultural labor; and caretaking labor (including but not limited to caring for children). Thus, in exchange for supporting one’s wife, a husband earned what amounted to a life estate in her sexual, reproductive, domestic, and caretaking labor. It was a benefit incident to the status of “husband,” and it belonged to him until one of the spouses died. The importance of this uncompensated (except for the promise of safety and sustenance) labor in structuring the American economy cannot be overestimated. During America’s agrarian economy, this uncompensated labor sowed and reaped crops, maintained domestic affairs, and produced and reared the offspring who would grow into future workers. Cf. Friedrich Engels, The Origin of the Family, Private Property, and the State 137 (1972). During America’s early industrial economy, this uncompensated labor continued to undertake the vast majority of domestic and caretaking work, even while women and girls where simultaneously shuttled into factory work and into all manner of support and service jobs. Id. Everywhere in the American economy, women’s uncompensated or undercompensated work structured and supported patriarchal structures, all the while remaining largely invisible in the dominant economic narratives of the day. Put simply, a system in which most women married and subsequently engaged in uncompensated domestic, reproductive, and caretaking work suited and sustained the needs of the American patriarchy while relegating most American women to a legally constituted underclass in which they were subject to sexual and domestic servitude. Marriage (and the laws that regulated marriage) served as a mechanism for isolating women and girls in the

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“private” sphere of home and domestic life, limiting their educational opportunities (because why educate girls who will never work outside the home), and thereby ensuring their continued dependence and disenfranchisement. Marriage separated women and girls from direct economic and political power, insisting that women settle for surrogate agency via a male patron. Conventional wisdom and social valuation held that an economically sound marriage was most women’s best prospect, and consequently, women and girls were culturally conditioned for centuries (and to some degree to this day) to romanticize and aspire to be “marriageable.” See Jane R. Chapman & Margaret Gates, Women into Wives, the Legal and Economic Impact of Marriage 10 (1977). D The continued (if tacit) importance of “marriageability” undergirds the distinction that petitioner Blake would have us draw today between an unmarried cohabitating woman and a married cohabitating woman. The idea that a married woman (i.e. a woman who has demonstrable proof that she is capable of commanding the status of “wife”) has arrived at a higher station than an unmarried woman depends upon the idea that a woman’s value is determined by her capacity to gain a specific type of favor with a male patron. Embedded within this construct are a set of questionable premises about the set of female qualities that are most worthy of admiration and reward. For example, historically, marriageability was an economic marker: a woman or girl was more marriageable if she had assets to bring into the marriage (which would immediately belong to her husband under coverture) or if her family had resources to contribute to her dowry. Dowry itself was payment offered in consideration of the promise made by the groom that he would assume the future responsibility for the bride’s sustenance. The dowry was intended to offset the cost of her future maintenance. See Marion A. Kaplan, ed., The Marriage Bargain: Women and Dowries in European History (1985). Women in low-resource families who could not afford a dowry ranked lower on the marriageability metric. Similarly, unmarried women who had displeased their male patrons (usually a father, brother, or uncle) or whose male patrons were unwilling to spend resources on a dowry ranked lower on the marriageability metric. Thus, the concept of marriageability was a means of economic stratification and a metric of valuing women and girls that bore no relationship to the qualities of the individual woman or girl herself, but was solely concerned with the economic benefit they conveyed to a potential husband. A second quality connoted by marriageability was the sexual attractiveness of the woman or girl in question to the relevant male community. The nexus

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between sexual attractiveness (via the male gaze) and the concept of “marriageability” – given the importance of marriageability as the central means of valuing women and girls – has laden centuries of women and girls with the burden of becoming a thing that men want to look at and penetrate. This objectification of women and girls has reaped consequences too well documented and wide ranging to enumerate here, but it is a legacy that continues to invidiously wheedle its way into contemporary expectations about female bodies and female worth that have spawned epidemics of eating disorders, sexual harassment, and rape culture, among other problems. On a meta level, the idea that a woman or girl is predominately (or at least importantly) an object to be looked at and enjoyed sexually by men has perpetually marked women as a class of people with a kind of “otherness” that has handicapped women’s capacity to fully participate in public life on an equal footing with non-women. A third quality of marriageability was tied to a woman’s or girl’s reproductive capacity. Traditionally, reproductive maturation was the demarcation at which girls became marriageable. Once a girl was potentially physically capable of bringing a child into the world, she was ready for marriage, regardless of her subject experiences, intellectual maturity, aspirations, intentions, or preferences. Herein lies the origin of the long and troubling history of regarding women and girls as vehicles for child-production. The idea that a central part of a woman’s or girl’s worth is her ability to achieve motherhood has saddled centuries of women with the conventional understanding that their value is predominately relational and externally derived and that bearing and caring for children is an inherent aspect of the female experience. The resilience of this idea in the face of increasing formal equality for women in terms of educational and employment opportunities has played a nontrivial role in the development of the current situation, in which women are as likely as men to work outside the home, but are still primarily responsible for the majority of duties related to childbearing and rearing. In sum, the concept of “marriageability” represented all of the economic, social, and cultural capital that a woman or girl would be able to capture in her entire life. All of her future prospects depended on this one, sole exchange, in which she traded the only culturally salient assets she possessed – her body, her reproductive capacity, and her domestic and caretaking labor – for what would hopefully amount to a lifetime worth of basic sustenance and physical safety. Cf. Catharine A. MacKinnon, Towards a Feminist Theory of the State 77–80 (1989). If she (or, more often, her family) struck a poor bargain, she might suffer material deprivation and torment for the rest of her life. Worse still, from the dominant perspective of the time, she

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would bring shame to her family. Hence, the belief that “wife” is a uniquely laudatory and coveted status is an idea that has long been used as a mechanism to shepherd women into adopting the roles and beliefs that are most beneficial from the perspective of patriarchal structures and goals. As the American economy transformed from an agrarian economy into an industrial economy in the early to mid-nineteenth century, women and girls became useful as a new kind of commodity: a labor force commodity. During this time period, the doctrine of coverture gradually eroded as states enacted Married Women’s Property Acts, which permitted women and girls greater capacity to own and control property. However, the deeply embedded conventional construction of “marriageability” as the metric of female value and of marriage as the pinnacle of female achievement remained largely unchanged. Marriageability remained the primary measure of female value for at least another century following the collapse of coverture, and insidious tentacles of this patriarchal estimation of women’s purpose and worth are still felt today. In this case, petitioner Blake asks this Court to endorse this ancient patriarchal trope by declaring that a married woman who resides in a family home with her children and their father lives there by an implicit right incident to marriage, while an unmarried woman who lives in a family home with her children and their father lives there by revocable permission. Implicit in such a distinction is the notion that a married woman, having secured that status of “wife” and thereby the imprimatur of patriarchal convention, will be rewarded by a special equitable consideration that is denied to a woman who has chosen to build her family outside the institution of marriage. In this, Blake asks this Court to rehearse again the familiar refrain of marriage supremacy that has been used through the ages as a mechanism of oppressing women and girls. This Court is not inclined to presume, without evidence, that the drafters of §713(7) of RPAPL intended such a distinction. E Insofar as the Rosenstiel court, which we are obliged to follow, correctly identified the basis of a familial exception to RPAPL, it was not, as the Rosenstiel court made clear, rooted in statute or contract. It was rooted, instead, in a status that is derived from a set of implicit promises that arise in the context of a pair-bonded couple. It is possible to disaggregate the foundation of the Rosenstiel exception from its otherwise patriarchal derivation by understanding the exception as a “familial” exception rather than a “wife” exception. Indeed, this is what courts in New York have consistently done, finding that the Rosenstiel exception is applicable to a host of relationships

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outside the context of marriage. See Nagle v. DiPaola, 512 N.Y.S.2d 761 (Dist. Ct. 1987) (exception extended to adult children); Sirota v. Sirota, 626 N.Y.S.2d 672, 673 (Civ. Ct. 1995), aff’d as modified, 644 N.Y.S.2d 950 (App. Term 1996) (exception extended to step-children); Minors v. Tyler, 521 N.Y.S.2d 380 (Civ. Ct. 1987) (exception extended to unmarried cohabitating partners). The question of whether unmarried pair-bonded partners constitute a “family” was squarely addressed in Braschi v. Stahl Assocs. Co., 74 N.Y.2d 201, 206 (1989). In that case, the petitioner and his same-sex partner, who was the tenant of record, were residing in a rent-controlled apartment at the time his partner died. The owner of the apartment served petitioner with a notice to quit, identifying petitioner as a “licensee.” However, under the New York City Rent and Eviction Regulations 9 NYCRR 2204.6(d) (formerly New York City Rent and Eviction Regulations §56[d]), an owner may not evict “either the surviving spouse of the deceased tenant or some other member of the deceased tenant’s family who has been living with the tenant” (emphasis added). The petitioner asserted that he was the deceased tenant’s family, having resided with decedent in a loving and committed relationship for eleven years prior to his death. The Braschi court agreed, stating, The intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life. In the context of eviction, a more realistic, and certainly equally valid, view of a family includes two adult lifetime partners whose relationship is long term and characterized by an emotional and financial commitment and interdependence. This view comports both with our society’s traditional concept of “family” and with the expectations of individuals who live in such nuclear units.

Id. Similarly, this Court concludes that Stradford was Blake’s family during the pendency of their intimate relationship. Ideally, familial relationships (of which various types of committed romantic partnerships are a subset) are characterized by a degree of intimacy, support, reliance, and trust that is distinct from or exceeds that of other types of acquaintanceships. Consequently, a familial relationship is one in which the parties cannot and should not be expected or encouraged to hold one another at arms’ length – as a licensee and owner might. This Court is persuaded that an unmarried domestic partner who has lived as a family, in a familial home, with her children and their father, is identically situated to a married woman in the same circumstance. Consequently, Stradford’s “status” as Blake’s former domestic partner situates her squarely within the Rosenstiel familial exception.

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iv Significance of the Order of Protection This Court finds that Stradford’s relationship to Blake falls within the Rosenstiel familial exception, but even if it did not, there is another reason why Blake cannot succeed in securing an order of eviction against Stradford. Stradford is possessed of an order of protection that has granted her exclusive possession of 485 Pinebrook Avenue. By virtue of that exclusive possession, which under the Family Court Act §842 was within the Family Court’s power to convey, Stradford is not a “licensee” within the meaning of RPAPL. “As generally understood in the law of real property, a licensee is one who enters upon or occupies lands by permission, express or implied, of the owner, or under a personal, revocable, non-assignable privilege from the owner, without possessing any interest in the property, and who becomes a trespasser thereon upon revocation of the permission or privilege.” Rosenstiel, 245 N.Y.S.2d at 400–401. Here, Stradford is possessed of an interest in 485 Pinebrook Avenue. While it is not an ownership interest, property law has long recognized that the right of possession – severable as it is from other ownership rights – is an independent interest in real property. See Walsh, Law of Real Property (2d ed.) §150. Family Court has conveyed to Stradford a temporary right of exclusive possession. As such, she is possessed of a lawful interest in 485 Pinebrook Avenue and is therefore, by definition, not a licensee. See Tiffany, Real Property (3d ed.), §§829, 833.

v LGBTQ Discrimination There is another important reason why this Court is disinclined to draw the distinction between “domestic partner” and “wife” that Blake would have the Court impose. The impulse to reinforce distinctions between lawfully married couples and unmarried pair-bonded couples is a reverberation of the battle over lesbian, gay, bisexual, transgender, and queer (LGBTQ) rights that currently pervades our legal landscape. Those who would prevent LGBTQ couples and families from securing the same legal rights as opposite-sex couples are invested in reinforcing legal privileges that attend marriage, even the relatively modest privilege at stake here: the right to avoid summary eviction.

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In this way, Blake now implicitly asks us to conscript the already laden concept of “wife” into the service of heterosexual (or different-sexed couple) privilege. Blake would have us offer yet another benefit to legally married people that is denied to people who cannot get married in the State of New York – which includes LGBTQ people who wish to marry a person of the same sex. Discrimination against LGBTQ couples and families shares the same patriarchal suppositions and foundation that underlies the institution of traditional marriage. A same-sex or non-binary couple upends the sex-differentiated gender roles that are conventionally assigned in different-sex marriage. In a same-sex or non-binary couple, at least one conventional gender identity is missing (and in some instances, both conventional gender identities are missing). In a different-sex or non-binary couple, there may not be a “woman” to whom domestic and childcare duties may be assigned. Likewise, there may not be a “man” to whom the duty of providing financial security is assigned. The fact that different-sex and non-binary couples are able to form healthy, thriving, and lasting familial units in the absence of a sex-differentiated division of labor is deeply challenging to the predominance of gender roles and gendered hierarchies upon which patriarchal society depends. This challenge to the patriarchy is one of the many enriching gifts that same-sex and non-binary couples bring to the State of New York. It is also one of the reasons – if not the primary reason – that same-sex and non-binary couples continue to face vitriolic opposition from some political quarters as they press for their right to receive the same moral, social, and legal recognition and privileges as opposite-sex couples. It is largely an impulse to protect the preeminence of the patriarchy that compels political actors to draw hierarchical distinctions between same-sex and different-sex couples. To protect the preeminence of the patriarchy, it is important to relegate same-sex couples to a distinct – and decidedly lesser – class of familial relationships. Rather than simply according all committed couples the same moral, social, and legal recognition and privileges that different-sex couples currently enjoy, some political actors seem intent on excluding different-sex couples from the status of “marriage.” Through a network of privileges big and small, the category of “married” is elevated as the ideal and “normal” arrangement for committed couples, while the category of “domestic partnership” is defined as decidedly second-best. In this way, the notion of marriage supremacy that is so deeply rooted in the historical oppression of all women is currently being repurposed to oppress LGBTQ Americans. While the case at bar presents little opportunity to address these systemic injustices, this Court will use what power it has here to decline to place a thumb on the scale of marriage supremacy.

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Blake, here, would ask us to strengthen and extend that patriarchal structure yet again by finding that while a “wife” resides in the familial home by right, a “domestic partner” resides by permission. Implicit in such a proposition is the understanding that the marriage relationship confers a superior set of reciprocal expectations and duties, owing to the inherent or ontological superiority of the relationship itself. Given that same-sex couples are legally excluded from obtaining a marriage license in New York, the elevation of marriage to a status that is inherently superior to that of other pair-bonded couples suggests that the commitment shared between same-sex couples is somehow less significant, less abiding, or less sacred than the commitment between different-sex couples. This Court cannot endorse such a clearly erroneous proposition. Earlier this month, on April 1, 2001, the Netherlands became the first jurisdiction in the world to recognize same-sex marriage as a lawful form of marriage. In removing the legal distinction between same-sex marriage and any other lawful marriage, the Netherlands eliminated the stigma of the distinction itself. No longer is a same-sex couple in the Netherlands legally relegated to the category of “other” or second-best. Dutch LGBTQ people are now full citizens of their polity, as their government has finally recognized LGBTQ people’s equal moral worth and dignity. It seems unlikely that the Netherlands will be the last jurisdiction to reach this self-evident conclusion. Indeed, there is a growing understanding throughout this country that discrimination against LGBTQ people is anathema to the principles upon which the nation was founded. Such discrimination cannot be reconciled with the constitutional commitment to equal protection, nor is it consistent with the concept of ordered liberty. Moreover, to discriminate against a class of people based upon the sex of their chosen partner is yet another form of sex discrimination. To prohibit a woman from marrying a woman simply because she is a woman (while a man is free to marry a woman) is quite clearly discrimination because of sex. In this way, the project of protecting malecentered power depends on the oppression of all people who subvert the conventional gendered division of labor and assignment of relative worth that lies at the heart of patriarchal marriage. The inequity of the penalty that Blake would have us assign to Stradford for choosing not to marry would be compounded when applied to couples who would choose to marry but are forbidden by law to do so. This inequity is particularly salient for same-sex couples in New York who are forbidden by New York’s Domestic Relations Law to marry. The question of marriage equality for same-sex couples in New York, however, is not before this Court. Nevertheless, it is also the case that there is nothing in the RPAPL, the common law, or in principles of equity that would require this Court to limit the Rosenstiel exception to married

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couples. Indeed, because doing so would only attach an additional privilege to an already discriminatory institution, principles of equity – and decency – counsel against it.

vi An Exception to the Exception Finally, it must be noted that there are some circumstances in which justice would require that a family member – who would otherwise fall within the familial exception – be subject to summary eviction from the familial home. One such circumstance is when the family member poses a threat to the physical safety of others in the home. Under such a circumstance, it is immaterial whether the threatening person is the “owner” of the familial home or whether the threatening person otherwise falls within the Rosenstiel familial exception. A person cannot be asked to choose between their physical safety and potential homelessness (which also threatens physical safety), and judicial enforcement of the status of “owner” cannot be allowed to become yet another mechanism by which domestic abusers can further subjugate their victims. To do so would further entrench and exacerbate existing power inequities between domestic abusers and their victims, many of which are rooted in the historical legal and cultural subordination of women. For example, women are statistically more likely to be the victims of domestic violence. Also, statistically speaking, a man is more likely than a woman to be an owner of real property, owing to the fact that men tend to have more wealth than women. This fact itself is attributable to the long history of legal, social, and cultural subordination of women as is described above, as well as gendered inequities in economic opportunities and compensation that continue to persist today. Moreover, women are statistically more likely to be the primary caretaker of minor children, which imposes a much greater cost should a victim of abuse need to leave the familial home in search of safety. Hence, a rule that a domestic abuser may be subject to summary eviction from a familial home where the abuser resides with their victim(s) – even if the abuser is the owner of that home or would otherwise fall within the Rosenstiel familial exception – is a rule that helps to protect all victims of domestic violence regardless of their sex or gender, and it is also a rule that responds to long-standing power inequities that disproportionately threaten women’s safety and autonomy. Such a rule would de-privilege the status of “owner” in limited circumstances, in favor of protecting vulnerable people

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from a type of violence that is uniquely facilitated by an acontextual application of the status of “owner.” This is not to say that a domestic abuser would automatically forfeit his property rights in the familial home (although such a consequence might be an appropriate remedy in many cases), but it is instead to say that the status of “owner” or “family member” should not protect a domestic abuser from summary eviction from the familial home if the safety of others requires it. Property law tends to be more formalist than other doctrinal areas, and there are many reasons to recommend formalism when it comes to the regulation of property. However, status-based distributions of rights must yield to rules that are designed to redistribute power where law or convention has historically and systemically excluded people based on attributes such as race, sex, gender, partner preference, national origin, and so forth. This principle is well established in property law. The Fair Housing Act, for example, provides an exception to the common law rule that an owner may choose to exclude another from her property for any reason. The Fair Housing Act prohibits an owner from excluding a prospective tenant (or buyer) on the basis of sex, race, color, religion, marital status, or national origin. An abuser exception to the summary eviction familial exception would likewise strike an appropriate balance between property rights and the right of all people to be free of violence in their home. Petitioner Blake’s request for a warrant of eviction is denied.

part ix

Landlord–Tenant Premises Liability

18 Commentary on Bartley v. Sweetser lindsey p. gustafson

background On June 1, 1991, Jenny Bartley entered into a lease for apartment #6 in University Studio Apartments in Fayetteville, Arkansas. In the early morning hours of June 21, 1991, two men, one of whom was another tenant of University Studios, knocked on Ms. Bartley’s door. Because her basic push-button door lacked windows, a peephole, or any auxiliary locking device, Ms. Bartley opened the door to them without first checking to see who they were. The two men “illegally and forcefully” entered Ms. Bartley’s apartment, without her consent, and repeatedly raped and sexually assaulted her. Ms. Bartley sued her landlords, Jerry Sweetser and Shannon Sweetser, for negligence, seeking both compensatory and punitive damages. Her complaint alleged the Sweetsers breached a duty to provide reasonable security from foreseeable criminal acts against their tenants. Specifically, Ms. Bartley alleged the Sweetsers failed to provide adequate lighting for both protection and deterrence and failed to provide adequate warnings to tenants that University Studios was prone to criminal activity. In addition, Ms. Bartley argued that because their lease prevented Ms. Bartley from installing additional security devices – like deadbolts, safety chains, or peepholes – the Sweetsers had taken control of the physical security of the building, and that with this control came a duty to protect tenants from foreseeable criminal attacks. Ms. Bartley claimed the Arkansas Supreme Court had never ruled on whether a landlord has a duty to employ reasonable security measures to avoid foreseeable criminal attacks by third parties, but that recent holdings, both in Arkansas and in other jurisdictions, imposed a duty on those in control of premises or activities to prevent foreseeable harm caused by third persons. The Sweetsers disagreed with this characterization of Arkansas law and moved to dismiss Ms. Bartley’s complaint for failure to state facts upon which 399

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relief may be granted. In the motion, the Sweetsers drew on decades of Arkansas law narrowly defining a landlord’s duties. The Sweetsers argued the natural extension of this settled law was a refusal to impose a duty on landlords to protect tenants from the criminal acts of third parties. The Sweetsers argued that adopting this duty would make the landlord a guarantor or an insurer of the safety of tenants, and such a duty would lead to increased expenses passed on to tenants. In addition, the Sweetsers argued such a duty should be imposed by the legislature, not the courts, and the legislature had so far failed to act. Further, the Sweetsers argued they had not expressly assumed a duty in the lease contract to provide security and they had no special relationship – outside landlord–tenant – that would require they assume this duty. The Sweetsers narrowly defined “special relationships” to employer–employee or some other relationship where one party controls the actions of the other. In addition to arguments on the law, the Sweetsers threw in some factual arguments: first, that they had no actual or constructive notice that either of the attackers were a threat; and second, that because Ms. Bartley opened the door to her attackers without trying to determine who was knocking, the lack of a deadbolt could not have been a proximate cause of her injuries. Treating the motion to dismiss as a motion for summary judgment, the trial court granted the motion and dismissed the complaint. Ms. Bartley appealed to the Arkansas Supreme Court.

original opinion The Arkansas Supreme Court affirmed the trial court’s dismissal of Ms. Bartley’s complaint, agreeing the Sweetsers had no duty to protect Ms. Bartley from third-party criminal acts. After acknowledging a trend in other jurisdictions towards increased protection of tenants, for example through the recognition of warranties of habitability, the court doubled down on caveat emptor in Arkansas.1 The court noted that for more than sixty years, it “has seemed content” to “consistently impose . . . no legal obligation upon a landlord for a tenant’s injury on the premises unless a duty is imposed by statute or agreement.”2 Without any discussion or analysis, the court then determined this case offered “no sound reason” to depart from the general rule. The court then turned to application of the general rule and found that 1

2

Bartley v. Sweetser, 890 S.W.2d 250, 251 (1994) (adopting no duty because it is the most consistent with the common law in Arkansas). Id. at 252.

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Ms. Bartley did not fall under either exception – neither was there a directly applicable statute nor was there a clause in the lease agreement expressly imposing such a duty on the landlord.3 The court rejected Ms. Bartley’s argument that the lease necessarily shifted to landlord the responsibility for locks because Ms. Bartley herself, as a tenant, was barred from adding to the security of the apartment door. The court, instead, found that “the Sweetsers simply undertook no responsibility to provide any security or protection against possible criminal acts of third parties.”4 To hold that in Arkansas landlords had no implied duty to protect tenants from third-party attacks, the court had to distinguish the landlord–tenant relationship from other special relationships that create a duty of care.5 In 1983, in Keck v. American Employment Agency, Inc., the Arkansas Supreme Court held an employment agency had a duty to protect one of its customers because (1) the parties had a contractual relationship; (2) the agency was better able to foresee danger in sending its customer to a prospective employer; and (3) the agency maintained some degree of control over the employers offered to the customers.6 In Keck, the court found an agency had a duty to protect its customer when the agency’s customer was raped by the prospective employer provided by the agency.7 Two years later, the United States District Court for the Western District of Arkansas relied on Keck to hold that an Arkansas court would recognize a duty owed by the landlord to tenants to provide adequate security to protect against criminal attacks by third parties.8 That case, Jackson v. Warner Holdings, also involved a tenant raped by a third-party attacker who entered her apartment.9 The court in Bartley did not directly address why the landlord–tenant relationship should be treated differently from other relationships of control. It noted instead only that “Arkansas landlord/tenant law has its own history that bears on the issue before us.”10 It also noted why imposing such a duty on the landlord may be unfair: first, the superseding cause of harm of a third-party attack; second, the difficulty in determining the foreseeability of such attacks; third, the vagueness of the duty imposed on the landlord; fourth, the

3 4 5 6 7 8 9 10

Id. Id. See Keck v. American Employment Agency, Inc., 652 S.W.2d 2 (Ark. 1983). Id. at 4. Id. Jackson v. Warner Holdings, Ltd., 617 F. Supp. 646, 649 (W.D. Ark. 1985). Id. Bartley, 890 S.W.2d at 251.

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economic consequences on the landlord of such a duty; and finally, the shifting of the duty to protect from the government to the private sector.11 Justice Newbern, in his concurrence, could “see no reason why a landlord should be immune” from the analysis used in Keck finding a duty to protect when certain special relationships are formed. He stated, “A landlord’s relationship with a tenant is just as ‘special’ as that of an employment agency’s relationship with its client. Both are based on contract.”12 Nevertheless, Justice Newbern concurred in finding against Ms. Bartley and absolving the Sweetsers of responsibility for the third-party criminal acts because he found a lack of proximate cause. Justice Newbern reasoned that, although the lease prohibited Ms. Bartley’s ability to install security locks, Ms. Bartley opened her door, and thus this was not a case that allowed the court to examine “whether there is anything about the landlord–tenant relationship which would preclude us from holding that a landlord might be liable for demonstrable negligence causing injury to a tenant.”13

feminist judgment The rule from Bartley is not remarkable; many jurisdictions have refused to hold landlords liable for failing to defend tenants against third-party criminal attacks.14 But as Professor Taja-Nia Henderson, writing as Justice Henderson, makes clear in her rewritten majority opinion, Bartley could have been a decision that recognized and empowered two traditionally vulnerable populations: tenants and women.15

recognizing the vulnerability of tenants At the time Bartley was decided, Arkansas was one of the few states that did not recognize the implied warranty of habitability.16 To date, it is the only state not

11 12 13 14

15

16

Id. at 251–252 (quoting Robert S. Schoshinski, American Law of Landlord Tenant §4.14 (1980). Id. at 252 (Newbern, J., concurring). Id. See Barry A. Lindahl, Modern Tort Law: Liability and Litigation §38.45 (“Ordinarily a landlord has no duty to a tenant to protect against the criminal acts of others . . ..”). For an explanation on the breadth of feminism, see Kathryn M. Stanchi, Linda L. Berger, & Bridget J. Crawford, Introduction to the U.S. Feminist Judgments Project, in Feminist Judgments: Rewritten Opinions of the United States Supreme Court 3 (Kathryn M. Stanchi, Linda L. Berger, & Bridget J. Crawford eds., 2016) [hereinafter Introduction]. The Introduction also notes feminism can be seen as furthering a “broader social justice issue.” Id. at 3 n.1. See Bartley, 890 S.W.2d at 251.

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to do so.17 The original Bartley opinion used Arkansas’s traditionally limited protections for tenants to justify the court’s refusal to recognize a duty to protect tenants from third-party attacks; in other words, common law that had always limited tenants’ rights continued to do so.18 As the court in the original opinion admitted, it was “content” to continue with its traditional definition of landlord duties, and it therefore failed to engage in a rich analysis of the pros and cons of imposing this duty.19 This strict stare decisis model, however, narrows the scope of decision-making, may “obscure embedded and structural biases in the law,”20 and may act to “stunt” the law’s development.21 Henderson’s rewritten opinion demonstrates the way “feminist consciousness broadens and widens the lens through which we view law and helps the decision maker overcome the natural tendency to see things the same way or do things ‘the way they’ve always been done.’”22 Henderson broadens the court’s use of governing law by piecing together elements in Arkansas law – from language in a 1932 opinion noting Arkansas tenants “are among the poorest and most helpless of our citizens” to statutory language reaffirming tenants’ rights to bodily integrity – to find support for Ms. Bartley’s claim that the language in the lease implied the Sweetsers had assumed a duty to Ms. Bartley. Henderson also uses existing standards of appellate review to set the stage for her broad factual discussion. She emphasizes that the court had “previously recognized summary judgment as an ‘extreme remedy’ that should be granted only when there is no doubt as to whether there are issues in dispute.” She notes that “the law must sit squarely on the movant’s side, such that there is not, in effect, even a ‘scintilla of evidence’ from which a jury could infer facts in support of a nonmovant’s claims.” This articulation of the standard of review allows Henderson to make use of feminist practical reasoning, which emphasizes “the intricacies of each specific factual context,” rather than a “monolithic” source for values and

17

18

19 20 21

22

For a broad discussion of the failures of Arkansas laws to protect tenants, see http:// fairpropertylaws.org/research/. In 2021, Arkansas adopted implied residential quality standards for new leases, but tenants may waive defects if given written notice and may not withhold rent as a remedy for a breach of the standards. See 2021 Ark. Acts 1052. See Bartley, 890 S.W.2d at 252 (holding the rule that a landlord does not owe a tenant a duty to protect from third-party attacks is “consistent” with Arkansas law that a landlord has no duty to protect a tenant from injuries in common areas). Id. Introduction, supra n. 15, at 4. See Berta Esperanza Hernández-Truyol, Out of the Shadows: Traversing the Imaginary of Sameness, Difference, and Relationalism – A Human Rights Proposal, 17 Wis. Women’s L.J. 111, 151 (2002). Introduction, supra n. 15, at 5.

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justifications.23 Henderson tells the story of a renter who could not improve the safety of her apartment and landlords who caused the deficiency in security, knew of the deficiency, and yet required tenants to waive the deficiency. Henderson also tells the story of renters generally, who should not be “required to barricade themselves inside their homes, cut off from neighborly interaction and contact, in order to secure some modicum of security from those who would wish them harm, especially when the landlord is aware of dangerous conditions on the premises and chooses not to act.” By pushing back at the inevitability of stare decisis and by making space for an individualized story, Henderson expands the court’s scope of decision-making and makes the case that the court should remand to the trial court for a consideration of the disputed facts.

empowering the independence of women Henderson tells another story in her rewritten opinion: the story of a female tenant who – because she lacked other options – had to respond to a knock at her windowless door by opening it. The original opinion’s concurrence by Justice Newbern characterizes this action as the tenant’s choice, one that eliminated any causal connection between the security of the door and the access of the rapists. Henderson reimagines Justice Newbern’s concurrence as a dissent and calls attention to Justice Newbern’s framing of Ms. Bartley’s action of opening the door as a choice, noting the choice may have been forced by the landlord’s failure to provide a chain lock or a peephole. This shift is a nod to feminist scholars, who focus on “unpacking the concept of ‘choice’ and investigating the constraints under which women commonly make choices.”24 Henderson then goes further with a pointed statement about how we empower women to live independent lives. If Ms. Bartley’s claims about the security of her apartment were accurate, she was physically vulnerable. As Henderson notes, the law should not act to relieve the landlord of a duty of care when a tenant’s physical insecurity is foreseeable and preventable. Henderson’s attention to this policy also draws on feminist literature forwarding citizen freedom and equality: “citizens have independent interest in not being legally required to shape their conduct around the reality of pervasive rape and fear of rape in our society.”25 23 24 25

See Introduction, supra n. 15, at 15. Martha Chamallas, Introduction to Feminist Legal Theory 14 (3rd ed., 2013). Ellen M. Bublick, Citizen No-Duty Rules: Rape Victims and Comparative Fault, 99 Colum. L. Rev. 1413, 1413 (1999).

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As part of her making space for a female tenant’s story, Henderson pushes back against the landlords’ multiple references in the filings to the racial identity of Ms. Bartley’s assailants and to what Ms. Bartley was wearing at the time of the assault. Neither fact was relevant to either party’s arguments, but these facts are often part of a limiting and prejudicial way of viewing the world and framing the facts. Henderson’s opinion draws attention to the potential impact of these facts, and thereby makes space for new stories and unbiased legal analysis.

potential impact of the feminist rewritten opinion What difference could this feminist rewritten opinion have made in the development of landlord–tenant law in Arkansas? Outside of extending Keck to landlord–tenant relationships – something Justice Newbern was willing to do in his original concurrence – Henderson’s rewritten opinion does not alter Arkansas law. It refuses to “unilaterally recognize an implied warranty of habitability accompanying residential leases in Arkansas” (which would have been the easier way out), and instead recognizes the General Assembly as the more appropriate actor. It does not impose a duty on landlords to warn of defects. Its shift appears slight: It recognizes the value of factual development and relegates summary judgment to “extreme” cases. Henderson’s opinion combs carefully through the lease duties and the available facts, finding genuine disputes of material fact and allowing this tenant to tell her story to a jury. But Bartley as originally decided demonstrates the sometimes stifling weight of stare decisis; the Arkansas Supreme Court dodged an examination of policy and the current state of Arkansas tenants by pointing to more than sixty years of caveat emptor in Arkansas landlord–tenant law. Since the Arkansas Supreme Court decided Bartley, it has become an oft-cited, critical decision further cementing caveat emptor in Arkansas landlord–tenant law, even beyond the context of landlord liability for third-party attacks.26 Arkansas still does not 26

See Steward v. McDonald, 958 S.W.2d 297 (Ark. 1997) (narrowly construing a statute so it does not impose a duty on landlords to provide a safe workplace, and citing Bartley in support of caveat emptor in leases); see also, e.g., Hall v. Rental Management, Inc., 913 S.W.2d 293 (Ark. 1996) (granting landlord summary judgment when tenant injured by third parties); Boren v. Worthen Nat’l Bank of Ark., 921 S.W.2d 934 (Ark. 1996) (granting landlord summary judgment because landlord did not assume the duty to protect); Lacy v. Flake & Kelley Management, Inc., 235 S.W.3d 894 (Ark. 2006) (granting landlord summary judgment when tenant abducted from parking lot); Bussey v. Bearden, 384 S.W.3d 41 (Ark. App. 2011) (granting landlord summary judgment when tenant’s daughter-in-law injured by assailants).

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recognize landlord liability for defects,27 for common areas,28 for removing common hazards like ice or snow from areas of common use,29 or for conditions that make a property uninhabitable (a claim of breach of the implied warranty of habitability). Thus, none of these tenants’ stories is being told to Arkansas juries, and Arkansas common law is not expanding with changing tenant expectations. This would have been the significant impact of a rewritten Bartley opinion: Rather than being one more link in a chain of pro-landlord common law, it would have reaffirmed summary judgment as an extreme remedy, and it would have been cited for an expanded judicial decision-making willing to discover disputes of material facts in litigants’ stories. This narrower view of the role of summary judgment, and consequently expanding space for tenant stories, would likely have led to an Arkansas landlord–tenant common law more responsive to changing social values.

BARTLEY V. SWEETSER, 890 S.W.2D 250 (ARK. 1994)

justice taja-nia y. henderson delivered the opinion of the court Some of the facts of this case are undisputed. On June 21, 1991, two men forcibly entered the apartment home of Jenny Bartley. Once inside, the men raped Bartley. The rape occurred less than three weeks after Bartley had entered into a lease for an apartment in the University Studios development owned and operated by Jerry and Sharon Sweetser (d/b/a Sweetser Properties). One of Bartley’s assailants was also a tenant in the development. During her tenancy, Bartley’s apartment suite was secured with a door that contained no opening for viewing activity on the other side of the door. The executed lease for Bartley’s apartment included provisions that specifically barred the tenant from installing additional locking devices. This provision prevented Bartley from taking steps to improve the security of the apartment.

27

28

29

Denton v. Pennington, 119 S.W.3d 519 (Ark. App. 2003) (“Arkansas follows the common law rule that landlords are not liable for repair”). Eoff v. Warden, 953 S.W.2d 880, 882 (Ark. 1997) (citing Bartley, 890 S.W.2d at 252) (granting summary judgment for a third party’s injury in the parking lot because a landlord is under no obligation for injuries sustained in common areas, absent a statute or an agreement). Glasgow v. Century Property Fund XIX, 772 S.W.2d 312 (Ark. 1989) (granting summary judgment for a landlord on claim a tenant fell on a walkway made icy by the landlord’s failure to close the hot tub).

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On the night in question, a co-resident of the development knocked at Bartley’s door, prompting her to open it. That resident, together with an accomplice, forced entry into the unit and brutally assaulted Bartley. On November 16, 1992, Bartley filed suit against the Sweetsers, alleging the Sweetsers owed her (Bartley) and other occupants of University Studios a duty to provide reasonable security from foreseeable criminal acts against tenants, and that the Sweetsers breached that duty. The Sweetsers filed a motion to dismiss for failure to state facts upon which relief may be granted, pursuant to Rule 8 and Rule 12 (b)(6) of the Arkansas Rules of Civil Procedure. Treating the motion to dismiss as one for summary judgment, the Circuit Court, Washington County, Kim M. Smith, J., granted the motion and dismissed Bartley’s complaint with prejudice. Bartley appeals from that order. This court’s decision is bound by the rules of appellate review. On appeal, we review the motion for summary judgment de novo. Summary judgment may not issue unless “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ark. R. Civ. P. 56. All evidence submitted in support of summary judgment must be viewed in the light most favorable to the nonmovant. Clemens v. First Nat. Bank of Berryville, 692 S.W.2d 222, 224 (Ark. 1985). This court has previously recognized summary judgment as an “extreme remedy” that should be granted only when there is no doubt as to whether there are issues in dispute. Rowland v. Gastroenterology Assoc., P.A., 657 S.W.2d 536 (Ark. 1983) (opining that “if there is any doubt whatsoever, the motion should be denied”); Trace X Chem., Inc. v. Highland Res., Inc., 579 S.W.2d 89 (Ark. 1979); see also Harry J. Lemley, Summary Judgment Procedure under Rule 56 of the Federal Rules of Civil Procedure – Its Use and Abuse, 11 Ark. L. Rev. 138, 142 (1957) (former Arkansas federal judge describing summary judgment as “a drastic remedy [that] is to be sparingly used.”). Even where there are no material issues of fact in dispute, in order to succeed on a motion for summary judgment, the movant must also be entitled to judgment as a matter of law. In other words, the facts and the law must sit squarely on the movant’s side, such that there is not, in effect, even a “scintilla of evidence” from which a jury could infer facts in support of a nonmovant’s claims.30 On the basis of the record adduced below, we agree with Bartley that summary judgment was inappropriate.

30

This court reaffirmed its continued adherence to this rule in Thomas v. Sessions, 818 S.W.2d 940, 942 (Ark. 1991). See also John J. Watkins, Summary Judgment Practice in Arkansas: Celotex, The Scintilla Rule, and Other Matters, 15 U. Ark. Little Rock L. Rev. 1, 10 (1992).

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Bartley alleges that the Sweetsers owed her (and other tenants) a duty “to provide reasonable security from foreseeable criminal acts against the tenants” in the building. Complaint }6. According to Bartley, this duty included an obligation to provide security, security devices, and common area lighting sufficient to safeguard tenants’ safety. The complaint alleges that the Sweetsers breached this duty by failing to repair and maintain common-area lighting fixtures and other security devices in the building, thereby contributing to the circumstances leading to Bartley’s rape. It is undisputed that Bartley’s apartment was outfitted with a windowless door, accompanied by a simple push-button doorknob lock. Bartley argues that these fixtures provided an inadequate security measure for the apartment. There is a long-standing common law tradition in this state that relieves landlords of any duty to maintain or repair leased premises, except where such duty is imposed by statute or assumed by contract. As Bartley fails to assert either basis for an exception to this rule, her claim cannot succeed. While other jurisdictions have been willing to entertain arguments about the changing needs of a rapidly urbanizing society and have embraced modern principles to guide the allocation of duties and rights within the landlord– tenant relationship, including, inter alia, the implied warranty of habitability,31 Arkansas has not. Even though Arkansas does not currently recognize the implied warranty of habitability, it is nevertheless appropriate for this court to consider the continued viability of the common law rule relieving landlords of a duty to maintain or repair leased premises. This court has long recognized the special position of tenants in the state: “It is a matter of common knowledge that the tenant class of this State are among the poorest and most helpless of our citizens.” Bennett v. Taylor, 49 S.W.2d 608, 609 (Ark. 1932). The vulnerability of this “tenant class” in Arkansas is especially acute in our towns and cities, where adequate housing is limited due to swift population growth.32

31

32

See, e.g., Javins v. First National Realty Corp., 428 F.2d 1071 (D.C. Cir. 1970); Kamarath v. Bennett, 568 S.W.2d 658 (Tex. 1978); La. Civ. Code art. 2693 (1870) (obliging lessor to “make, during the continuance of the lease, all the repairs which may accidentally become necessary.”) Between 1980 and 1990, Washington County experienced significant growth, with the county’s total number of households rising by 20 percent, together with a “30% increase in its total labor force.” During the same period, rents in Washington County rose from $216 on average, to $274, a 26.8 percent increase. Northwest Arkansas Regional Airport EIS (Environmental Impact Statement) C38, C40 (June 1994).

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In Bartley’s words, “[l]arge apartment complexes are common, and rentals of single-family dwellings are becoming less common.” Brief for Appellant 2. We have previously held that this unique positionality affords the tenant class some consideration at our bar. More than sixty years ago, in Bennett v. Taylor, this court held that a landlord in Arkansas has no power of distraint; tenants are presumed to retain title to their personal belongings, even in the event of a rent default. Landlords’ liens in tenants’ belongings “arise only by operation of statute.” Bennett v. Taylor, 49 S.W.2d at 609. The Bennett Court affirmed the possession and security of personal property as matters of utmost importance for the tenant class. Personal belongings, according to the court, “in many cases, are all they have.” Id. Since Bennett, this state’s courts and lawmakers have repeatedly reaffirmed the rights of tenants to their personal property and bodily integrity. Ark. Code Ann. §34-1503 (Supp. 1985). This section of the code reads, [I]f any person shall enter into or upon any lands, tenements or other possessions and detain or hold the same without right or claim of title, or who shall enter by breaking open the doors and windows or other parts of the house whether any person be in or not, or by threatening to kill, maim or beat the party in possession, or by such words and actions as have a natural tendency to excite fear or apprehension of danger, or by putting out of doors or carrying away the goods of the party in possession, or by entering peaceably and then turning out by force, or frightening by threats or other circumstances of terror, the party to yield possession . . . shall be deemed guilty of a forcible entry and detainer.

Id. It is against this backdrop of protectionism for life and property that we consider the facts alleged in this case. It is undisputed that Bartley’s apartment door was outfitted with a push-button lock. A jury may certainly find that such locks are insufficient security for apartment exterior doors, and that the landlord’s provision of an inadequate door lock unreasonably enhanced the risk of loss to Bartley. Given our courts’ prior efforts to safeguard the tenant class from forceful dispossession, abuse, and exploitation, we are persuaded that a warranty of habitability ought be implied in residential leases in Arkansas. However, the General Assembly, and not this court, is in the best position to determine which aspects of the landlord–tenant relationship ought to be governed by an implied warranty in our state, as well as any remedies appropriate for proven breaches thereto. Accordingly, we decline to unilaterally recognize an implied warranty of habitability accompanying residential leases in the state of Arkansas.

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landlord’s duty to warn In addition to her claims about the landlords’ duty to maintain and repair the premises, Bartley further alleges that the Sweetsers had a duty to “provide adequate warning . . . that the apartment complex was prone to criminal activity and was unsafe.” Complaint }6. The complaint alleges that the Sweetsers breached this purported duty when they failed to warn plaintiff about known criminal activity on the premises. Under Arkansas law, a landlord is under no obligation to disclose patent or obvious defects on the premises. In the case at bar, however, further factual development is needed in order to determine if the criminal activity alleged by Bartley was, in fact, obvious. The evidentiary record adduced to date includes interrogatory responses from Sweetser Properties attesting that, as a general matter, prospective tenants are told that the company will install upgraded security devices – including deadbolt locks and door viewers – upon a tenant’s request. Bartley maintains, however, that no such statement was ever made to her. The record further includes testimony purporting to establish that the University Studio apartment complex experienced “multiple reports” of violent crime, including burglary, breaking and entering, and prowling, in the months preceding Bartley’s tenancy. If appellees and their agents concealed known facts about the safety of the premises in an attempt to gain a new tenant, thereby inducing Bartley to rely on their representation to her obvious detriment, then Bartley ought to have a remedy. Even in Arkansas, landlords continue to be bound by both a duty to exercise reasonable care and an obligation not to misrepresent conditions on the property to prospective tenants. A jury may infer that conditions on the premises were known to the Sweetsers and that fraudulent concealment and misrepresentations characterized their communications with prospective tenants such as Bartley; certainly, the property owner likely knew more about the property than Bartley – a tenant for a mere twenty days before her assault. Facts adduced at trial about the Sweetsers’ practice of installing additional security devices upon tenants’ requests may further establish the Sweetsers’ knowledge – and notice to other tenants – of criminal activity on the premises, including any knowledge of criminal activity by Bartley’s neighbor-assailant. Such knowledge would give rise to a duty to warn new tenants about the need for additional security devices on their apartment doors. Given the disputed facts surrounding the Sweetsers’ representations and omissions regarding criminal activity on the property, as well as whether Bartley received advance notice that the landlord would install a stronger door lock only at her request, appellees’ motion for summary judgment should have been denied.

Bartley v. Sweetser

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In addition, the evidentiary record developed to date suggests that the landlords’ failure to take swift action against tenants and guests purportedly known to engage in criminal behavior, in direct contravention of explicit lease provisions, may have rendered the premises unsafe for other tenants. On this motion for summary judgment, the parties’ lease agreement was entered into evidence. The lease governing the relationship between these parties (and presumably, between the Sweetsers and their other tenants) includes two provisions of note: 12. The Resident shall not use, or permit to be used, the leased premises for any unlawful purpose, or do or permit any unlawful act in or upon the leased premises. . . . 19. If the Owner shall at any time deem the residency of the Resident undesirable by reason of objectionable or improper conduct on the part of the Resident, the occupants of the apartment hereby leased, or visitors thereto, or actions of the persons aforesaid . . . then the Owner shall have the right to terminate this lease . . . . Lease, }}12, 19. Both provisions establish the landlord’s control over the premises and right to terminate tenants for a broad range of conduct deemed “objectionable or improper.” Id. In retaining the right to evict tenants for even minor infractions, the Sweetsers assumed the duty to enforce the provision and exercise this right in the event of tenant conduct believed to be unlawful. In cases like this one, where the landlord has retained broad powers to mitigate and/or control tenant conduct on the premises, the dictates of the common law rule that landlords are generally not liable for the unforeseeable criminal acts of third parties may yield.33 As this court previously found in Keck v. American Employment Agency, Inc., a special relationship may support a claim for negligence where (1) the parties have a contractual relationship; (2) the defendant has the ability to foresee danger to plaintiff; and (3) the defendant exercises some modicum of control over the risk of harm to the plaintiff. 652 S.W.2d 2 (Ark. 1983). The court agrees with Bartley that the Keck test provides an appropriate analogous framework for our analysis in this case. While the underlying duty of care in Keck arose by operation of statute – Arkansas law requires that employment agencies have a “bona fide job order”

33

See Keck v. American Employment Agency, Inc., 652 S.W.2d 2, 6 (Ark. 1983) (“[W]here a victim of rape can show that a defendant who owed some duty to the victim, breached that duty, and could foresee that the breach might result in injury to the victim, and that breach was a significant factor in a rape, then a jury question of negligence exists.”).

412

Bartley v. Sweetser

before referring prospective employees for an interview or placement34 – the underlying duty of care in the case at bar arose by operation of contract. One of Bartley assailants was her neighbor and co-tenant; if he had previously engaged in known “objectionable or improper” conduct, including unlawful conduct by him or his guests, the lease conferred upon the landlord a duty to act. Another question, then, for the fact-finder in this case is whether the criminal acts of these two assailants were foreseeable. On this record, there are insufficient facts to conclude whether the crimes described here were foreseeable. Further development of the facts of this case, including deposition testimony and document production, may lead a reasonable juror to find the acts of these assailants foreseeable. With the benefits of additional discovery and fact-finding, a jury can properly determine what the landlord knew, when the landlord knew it, and how the landlord communicated such knowledge to the other tenants and building staff. Did the landlord take steps to terminate the leases of those tenants engaged in unsavory or criminal activity in the building, as dictated by paragraphs 12 and 19 of the standard lease? Or, as Bartley alleges, did the landlord merely acquiesce to the proliferation of criminal enterprises on the premises? Evidence that tenants and nontenants congregated in the halls, engaged in crime and intimidating other tenants raises an issue of material fact on the foreseeability of plaintiff’s assault. Where reasonable minds could differ, summary judgment should not lie. Not relevant, however, and wholly inappropriate are some facts selectively mentioned in the parties’s filings. We note with concern that the filings submitted by both parties in this case include repeated references to the racial identity of Bartley and her attackers. See Complaint at }5; Brief in Support of Defendant’s Motion for Summary Judgment at 1, 9, 10, 17, 19; Plaintiff’s Response and Brief in Opposition to Defendant’s Motion for Summary Judgment }}7, 10. In a case alleging landlord liability arising from a tenant’s rape, this Court deems information about the racial identity of any of the parties or associated persons to be irrelevant, at best, and inflammatory, at worst. These clumsily coded appeals have no place in a court of law. The parties are advised that this particular style of client advocacy may give rise to sanctions under this state’s professional conduct rules.35

34 35

Ark. Stat. Ann. §81-1023 (1947). See In the Matter of Procedures of the Arkansas Supreme Court Committee Regulating Professional Conduct of Attorneys at Law, 792 S.W.2d 323 (Ark. 1990), amended by In re Procedures Regulating Professional Conduct of Attorneys at Law and Bd. of Law Examiners, 852 S.W.2d 316 (Ark. 1993).

Bartley v. Sweetser

413

on causation Justice Newbern, in his dissenting opinion, suggests that the act of opening her own apartment door was an intervening act interrupting the causal chain for Bartley’s rape. Neither our case law nor the common law deems the act of opening one’s own door to be a predicate for rape. It is undisputed that this crime was a violent one, and that the assailants forced their way inside the apartment. It is also undisputed that Bartley’s apartment door was held in place by a mere push-button lock, which requires but little physical force to overcome. A reasonable jury may find that the act of forcing their way inside the apartment could have been foiled by the installation of an additional security device (or devices) to the apartment door. At the very least, had the Sweetsers installed a viewing window or peephole, Bartley would not have needed to open her door to ascertain the source of the knocks she heard. Moreover, the Sweetsers argue, inter alia, that Bartley “opened the door without even asking or trying to see who was present,” thereby attempting to link Bartley’s omissions to her assault: “Here, Jenny Schlegel Bartley had complete control of the door and chose to open it. She chose not to ask who was present. She chose not to look out the windows on either side of the door. She chose not to get dressed before she opened the door, but opened it wearing only a T-shirt.” Abstract and Brief for Appellee 8, 10. The record includes more than one reference to Bartley’s attire on the night of her assault, which this court understands as a further attempt to cast Bartley as culpable for her own rape. See Abstract and Brief for Appellee iii (remarking “[t]he appellant was clothed only in a T-shirt.”). Notwithstanding our colleague’s and the Sweetsers’ attempts to link her conduct to her assault, Bartley did not cause her home invasion and rape. Even if Bartley’s opening the apartment door could be found to be a proximate cause of her assault, and contributory negligence were cognizable under Arkansas law, then the relevant question for the fact-finder in this case would be whether Bartley exercised reasonable care in opening her apartment door. As the door contained no viewing window, and there was no way to identify or confirm activity on the exterior side, a jury may find that the act of opening the door to a neighbor was reasonable and contributed nothing to Bartley’s subsequent assault. Moreover, where a plaintiff’s actions, even if negligent, were a foreseeable consequence of circumstances created by a defendant, an action may lie. Our colleague’s suggestion that the chain of causation was broken by the intervening act of opening the door merely reinforces our conclusion here that summary judgment was not appropriate on this undeveloped record.

414

Bartley v. Sweetser

The suggestion that Bartley contributed to her own assault by opening her apartment door also presumes the inevitability of rape. The argument roughly goes, “If only Bartley had not insisted on living alone and engaging with her neighbors, she would never have been raped.” Rape is not society’s punishment for unattached women who insist on independent lives. In fact, the inferior quality of the apartment door lock suggests that Bartley could easily have been victimized, even if she had not opened the door. Members of a community do not relinquish their rights either to basic privacy or to health and safety by the act of living in an apartment dwelling. The “poorest and most helpless” citizens of this state are not required to barricade themselves inside their homes, cut off from neighborly interaction and contact, in order to secure some modicum of security from those who would wish them harm, especially when their landlord is aware of dangerous conditions on the premises and chooses not to act. This tragedy may have been avoidable, but Bartley is not to blame. Viewed in the light most favorable to Bartley, the Sweetsers’ failure to enforce their lease terms to regulate the conduct of their tenants created the conditions leading to this horrific crime. The decision below is reversed.

Index

Aaronson, Daniel, 196 Adam, Alison, 113, 141 Adams, Abigail, 115 adverse possession, 6, 9, 28, 57, 62, 199–214, 218–223 color of title, 62, 212 American Civil Liberties Union, 121, 124, 128 American Revolution, 36–37, 40, 48–49, 54 Anti-Drug Abuse Act of 1988, 346 Association for Molecular Pathology v. Myriad Genetics, Inc. commentary, 121 rewritten feminist judgment, 132 Astell, Mary, 115 Atchley, Robert C., 330

Brandeis, Louis, 162–163 Brenner Johnson, Hannah, 7, 19 British Proclamation of 1763, 36, 38–39, 55 Buckner Inniss, Lolita, 7, 10 Burk, Dan L., 121, 147

Ball, Carlos A., 376 Barbeyrac, 99–102, 109 Barnes, Kristen, 6 Bartlett, Katherine, 348 Bartley v. Sweetser commentary, 399 rewritten feminist judgment, 406 Bartow, Ann, 154 Basch, Norma, 385 Blackstone, William, 94, 102, 108–109, 189, 254, 272–274, 290, 385 Blake v. Stradford commentary, 371 rewritten feminist judgment, 378 bona fide purchaser, 288 Booth, Katherine, 139 Botiller v. Dominguez commentary, 61 introduction to, 4, 8–9 rewritten feminist judgment, 73

Calhoun, Arthur W., 329 capture, 6, 28, 94–95, 98, 109, 112, 117–118, 160 Carroll, Andrea B., 371 caveat emptor, 12, 288, 400, 405 Chapman, Jane R., 388 Chused, Richard, 227 civil law, 66, 75–76, 265 Civil Rights Movement, 345 Coggan v. Coggan commentary, 293 rewritten feminist judgment, 298 colonial, 9, 36, 44, 50, 54–59, 92–94 community property, 62, 66, 76, 273 concurrent ownership joint tenancy, 6, 9, 28, 198, 209, 265, 272–275, 280, 283–291, 293 tenancy by the entirety, 6, 9, 28, 253–264, 270–281, 285–292, 294 tenancy in common, 6, 9, 28, 265, 272, 283, 288–290, 301–302, 304 condemnation, 9, 179–195, 199, 209, 211, 217 Coombe, Rosemary, 154 copyright, 125–139, 153–174 Cord, William H., 386 coverture, 254–255, 267–268, 286, 298, 371, 374, 385–388, 390 Coyne, Randall T.E., 161 Craig-Taylor, Phyliss, 293 Critical Race Theory, 61

415

416

Index

Dakota Access Pipeline, 9 Dean, William Tucker, 381 Declaration of Independence, 38, 54 deed, 59, 199, 205, 211–218, 220, 262, 267, 296, 301, 303, 372 legal description, 83 quitclaim, 290–291 warranty, 209, 290 defeasible fee, 40, 62 delivery, 39, 232–245, 249 devolution, 11–18 discovery, doctrine of, 9, 39–41, 45, 51–54, 62, 92 domestic violence, 3, 16, 27–28, 197, 294, 298, 349, 361, 364–366, 370, 395 dower, 62, 200–220 Duhart, Olympia, 182–184 Dyal-Chand, Rashmi, 6

practical reasoning, 7, 348, 403 rhetorical conventions, 203 storytelling, 7, 227 widening the lens, 7, 204, 207 Feminist Judgments Series, 3–5, 19–20, 23, 26, 28–30 Feminist Judgments: From Theory to Practice, 4 Fennell, Lee, 6 ferae naturae. See wild animals Fernandez, Angela, 29, 98 Fineman, Martha, 287 first in time, first in right, 39, 288 Flynn, Alexandra, 42, 45, 50 Fraley, Jill, 29, 90 fraudulent conveyance, 280–282 Freidan, Betty, 307 Frye, Brian L., 149 future interests, 6, 9, 232–233, 236

easements, 62 East India Company, 52, 57 ecosystems, 94, 97 ejectment, 45, 62, 73 eminent domain, 5–6, 28, 42, 180–197, 222, 339 Engels, Friedrich, 387 Epstein, Richard, 188 evictions, 9, 15–16, 345–347, 372–384, 390–396 constructive eviction, 295, 298

Garon, Jon M., 149–156 Gates, Margaret, 388 George, Erika, 124–129, 132 gifts, 6, 9, 227–249, 277, 281 donee, 227, 232–249, 288 donor, 227, 232–249 Gilden, Andrew, 153 Gilligan, Carol, 234–235, 243 Gilmore, Angela, 6 Ginsburg, Ruth Bader, 24–25 Glancy, Dorothy, 162 González, Marc-Tizoc, 4, 30, 61 Goring, Darlene C., 384 Gruen v. Gruen commentary, 227 rewritten feminist judgment, 236 Gustafson, Lindsey P., 399

Fair Housing Act, 396 Family & Medical Leave Act of 1993, 362 fee simple, 59, 66, 69, 76, 85, 89, 203, 205, 210, 281, 290 feminism anti-stereotyping, 7, 258 anti-subordination, 7, 152, 258, 311, 316, 319, 350, 395 autonomy and agency, 7, 183, 287 critical race, 70 cultural, 7, 124, 234, 395 difference, 152, 234, 287 dominance, 7, 152, 297 eco-feminist, 131 equality, 116, 152, 234, 253, 257, 260, 289, 297, 327, 336, 377, 404 feminist lens, 7, 11, 17, 20, 28, 42, 71, 228, 311, 314, 320 formal equality, 7, 205, 255, 257–260, 286–287, 389 intersectionality, 7, 17, 70, 152, 352 narrative, 5, 7, 92, 196

Hagan, Carrie A., 285–289 Haksgaard, Hannah, 198 Hamilton, Alexander, 189, 191 Hand, Learned, 134, 160 Haraway, Donna, 130 Henderson, Taja-Nia, 402–406 Hernández-Truyol, Berta Esperanza, 17, 311 Hill, Robert B., 334 Holmes, Oliver Wendell, 292 homestead, 62, 66, 68, 77, 201–202, 204, 208, 210–214, 218–219, 263, 340 Homestead Act of 1862, 71, 73 hot pursuit, 95, 98, 102, 118 Hottel-Cox, Meghan, 203–208

Index

417

Housing Opportunity Program Extension (HOPE) Act of 1996, 346 Hudson’s Bay Company Charter of 1670, 53

Littleton, Christine, 349 Locke, John, 100–101, 109–113 Luna, Guadalupe T., 4, 30, 66–71, 73

implied warranty of habitability, 12, 402–406, 408–409 Indian Removal Act, 41 Indigenous, 6, 8–9, 28, 35–44, 92–93, 110–111 Cherokee Nation, 42–43 Indian Nations, 54 Indian title, 40, 42, 54 laws of, 43 Piankeshaw Nation, 39, 42, 44, 48–49, 55, 59 inheritance, 62, 200, 205, 207, 216, 219, 238, 246, 273 intellectual property, 5–8, 28, 31, 151–152. See also copyright; patents; publicity rights; trademarks intestacy, 199–200, 205, 209, 211

Macaulay, Catharine, 116 MacKinnon, Catharine A., 195, 389 Madison, James, 189, 191 Mahoney, Julia D., 179 Married Women’s Property Acts, 254, 258, 294, 390 Marshall, John, 35, 39–43, 66–68, 71, 81, 83, 86–87, 319, 329 Martinez, George A., 71 Marty-Nelson, Elena Maria, 3 Massachusetts Bay Company, 56 matrilineal, 43–44 McDonald, Barry P., 143 Mexican American War, 30, 61 México, 61–68, 72 Minow, Martha, 350 Montague, Lady Mary Wortley, 115 Moore v. City of East Cleveland commentary, 311 introduction to, 16–17 rewritten feminist judgment, 321 Moynihan, Daniel Patrick, 316 Murray, Judith Sargent, 116 Murray, Kali, 124–129, 132–133

Johnson v. M’Intosh commentary, 35 introduction to, 8–9 rewritten feminist judgment, 45 judicial notice, 75, 83, 383 Justinian, 99–100 Kagan, Elena, 26 Kaplan, Marion A., 388 Keller, Susan E., 253 Kelo v. City of New London commentary, 179 rewritten feminist judgment, 184 Klein, Diane, 283 Klimt, Gustav, 227–228, 237–238 Kosa, John, 330 Ladner, Joyce A., 335 Land Claim Act of 1851, 62–67, 73, 87–88 land survey, 62, 80 land use. See zoning landlord-tenant, 3, 6–7, 9, 11, 28, 31, 345–346, 354, 379, 401, 405–412 Lanham Act, 151–152, 157, 167–172, 174 Law of Nations, 35–36, 39, 44 Leahy, Stevie, 297–298 Leeds, Stacy L., 6, 35 license, 6, 28, 372–373, 379–380 life estate, 199–205, 211–220, 228, 232, 236–237, 241, 246–249, 263, 387 Litman, Donna, 257–260

National Association for Women’s Bill of Rights, 307 Native American. See Indigenous natural law, 103 Nelson, Amy J., 6 notice, 39, 287, 290, 358 Novak, Michael, 330 nuisance, 183 ouster, 5, 195, 294–299, 301, 305 Ovid, 117 Parmet, Wendy, 144 parody defense, 152, 173–175 partition, 272, 275, 296, 301, 303 Pateman, Carole, 385 Patent Act, 121–122, 133–140 patents, 6, 9, 28, 121–148 DNA sequences, 121, 123, 127 nucleotide sequences, 122–123 product of nature exclusion, 122 paternalism, 42–43, 205, 216, 286

418

Index

patriarchy, 14, 17, 44, 196, 227, 331, 374, 385–394 Peñalver, Eduardo, 6 Phillips Neighborhood Housing Trust v. Brown commentary, 345 introduction to, 4, 14–16 rewritten feminist judgment, 354 Phipps, Oval A., 254, 265, 271, 273, 279 Pierson v. Post commentary, 90 introduction to, 8 rewritten feminist judgment, 98 Pope, James Gray, 145 possession, 29, 38–41, 46–54, 73, 77–78, 90–96, 98–100, 103, 105, 110–111, 117, 217–218, 294, 296, 300–307, 354, 357, 373, 379, 383, 392 Pothier, Robert-Joseph, 100–103, 109 Pregnancy Discrimination Act of 1978, 234 premises liability, 6, 9, 410–412 profits à prendre, 62 Prosser, William L., 159, 165 protective trust, 42 public housing, 346–348, 350–354, 366–368 public trust, 62 publicity rights, 6, 9, 28, 149–174 Puffendorf, 99, 108–109 Rachiele, Leo D., 330 Ramsey, Lisa, 155 recording acts, 62, 288 remainder, 227, 229, 232–233, 236–237, 243–249, 263 Render, Meredith, 373–378 revolution, 11–18, 307, 345, 354 Robbins, Kalyani, 6 Rodriguez-Dod, Eloisa C., 3 Rose, Carol, 93–95, 236 Rosser, Ezra, 6 Rowe, Audrey, 362 same-sex marriage, 286, 371, 394 Sawada v. Endo commentary, 253 rewritten feminist judgment, 260 Sax, Joseph L., 190 Scanzoni, John H., 330 Schommer, Cyril O., 330 severance, 283, 285, 290–291 Siegel, Reva B., 387 Singer, Joseph William, 146 Smith, Jason, 144

Sprankling, John, 93 Statute of Frauds, 62 statute of limitations, 62, 66, 210, 217, 221–222 Steinem, Gloria, 307 Stern, Stephanie M., 227–236 strawman, 283–285, 289 strict scrutiny, 130, 194 takings, 62, 181–182, 187–196, 208, 223, 313, 323, 339. See also United States (U.S.) Constitution Takings Clause inverse condemnation, 201–203, 206, 211, 220–224 just compensation, 187–188, 200–212, 220–224, 313, 325, 339, 341 public use, 180–195, 208, 220–221, 325, 339 Tate v. Water Works & Sewer Bd. of City of Oxford commentary, 198 rewritten feminist judgment, 208 Taylor v. Canterbury commentary, 283 rewritten feminist judgment, 289 terra nullius, 110–111 title by conquest, 40–41, 61–62 by patent, 45–46, 52, 62, 73, 80 chain of, 62 communal, 44, 58, 60 equitable, 62 imperfect, 62 inchoate, 62 perfect, 62–75, 85–89 quiet title, 199, 210–211 relativity, 39 unities, 272, 284, 288–290 Title IX, 3 Title VII, 3, 234 Trade and Intercourse Act, 37, 56 trademarks, 6, 9, 28, 149, 151, 156–157, 171 tragedy of the commons, 97 Treaty of Guadalupe Hidalgo, 61–70, 86–87 trespass, 66, 71, 78, 106, 128 Turnipseed, Terry L., 216 Tushnet, Rebecca, 6 United States (U.S.) Constitution Article I, 37, 121, 136 Article VI, 86 Commerce Clause, 58

Index Due Process Clause, 192, 311, 313, 320, 323, 325, 330, 332 Equal Protection Clause, 192, 323, 333, 335–338 Fifth Amendment, 180–181, 185–187, 193 First Amendment, 128–130, 133, 140–143, 152–153, 155, 170–173 Fourteenth Amendment, 129, 145, 187, 194, 311, 313, 320, 323–328, 335–337, 339 Takings Clause, 63, 65, 180, 185–193, 202, 206, 221, 339. See also takings Thirteenth Amendment, 126–128, 133, 145–147 United States Patent Office, 121, 123, 126–127, 147 unjust enrichment, 200–211 Varyani, Natasha N., 297–298 Veney, Bethany, 384 Violence against Women Act, 361 Virginia Charter of 1609, 53

Warren, Samuel D., 162–163 wasteland, 90–92, 94 West India Company, 52 White v. Samsung commentary, 149 rewritten feminist judgment, 156 White, Vanna, 149–157, 164, 167 wild animals, 90, 93, 98–100, 109, 111 Wilkins, Pamela A., 3, 14–16, 348–354 Williams, Susan H., iv, 141, 324 Wilson, Darryl C., 6 Wollstonecraft, Mary, 115 Women’s Court of Canada, 4 Wright, Danaya C., 16, 316, 320–321 Yorburg, Betty, 330 Yuille, Lua Kamál, 3, 15, 345 zoning, 6, 8–9, 11, 16–17, 28, 31, 316–342 occupancy limit, 311, 316, 321, 341

419