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Maureen E. Brady, Property and Projection, 133 Harv. L. Rev. (forthcoming, 2020).
Categories:
Property Law
,
Constitutional Law
,
Civil Practice & Procedure
Sub-Categories:
First Amendment
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Torts
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Property Rights
,
Real Estate
Type: Article
Abstract
In cities across the country, artists, protestors, and businesses are using light projections to turn any building’s façade into a billboard, often without the owner’s consent. Examples are legion: “Believe Women” on a New York City Best Buy; a scantily clad male model on the side of an apartment building; a nativity scene on the Los Angeles chapter of the American Civil Liberties Union. Two courts have considered claims by owners seeking to stop these projections under theories of trespass and nuisance. In each case, the courts held that because light is intangible and the projections result in no economic harm to the property, the common law affords no relief. This Article argues that property law can and should address projection claims by private owners. It traces the history of property tort claims involving light, explaining how the law developed to emphasize economic and physical harm and identifying the forgotten strands of doctrine that nonetheless support liability for targeted projections. Projections are forms of appropriation: they disrupt the owner’s use and control, but they also cause dignity and privacy harms by exploiting the owner’s realty toward unwanted ends. Protections for these noneconomic interests have long been parasitic on trespass and nuisance, but the light projections expose a gap between the two forms of action. This Article offers a pathway to mend the gap despite hurdles in both nuisance and First Amendment law. More generally, the projection cases teach broader lessons about the development of the property torts, the relationship between privacy and property, and the nature of property itself.
Maureen E. Brady, Property Convergence in Takings Law, 46 Pepp. L. Rev. 695 (2019).
Categories:
Constitutional Law
,
Government & Politics
,
Property Law
Sub-Categories:
Fifth Amendment
,
State & Local Government
,
Federalism
,
Courts
,
Property Rights
,
Eminent Domain
Type: Article
Abstract
Although one of the key questions in a federal system is how authority should be allocated between the state and national governments, property law has rarely generated serious controversy on this front. Instead, property entitlements and the rules governing resource use have typically been the province of state and local actors. The Supreme Court has repeatedly emphasized that property rights are created at the state level. And while federal regulations—for example, environmental regulations—certainly limit property rights, state and local land-use laws and state nuisance and trespass rules serve as major constraints on property’s use and enjoyment. This feature of property law means there is potential for interstate variation in property rules. In the private law of property—the body of law that governs disputes and relationships among private parties—there remains some variation among the states in both the forms of property recognized and in the different rules that limit ownership and use. However, in this Essay prepared for a symposium on federalism at the Pepperdine School of Law, I marshal evidence that one portion of the public law of property is on a different trajectory. This Essay identifies two areas of convergence across states in constitutional takings law. First, though the federal Constitution could theoretically protect varied property interests and could measure the constitutionality of regulations affecting property against different background state legal regimes, developments in takings doctrine have enabled some courts to make cross-state comparisons both to create or cap the interests protected and to determine which limitations on title an owner should have expected. Second, despite the potential for variation offered by state constitutional takings provisions, state courts often interpret their constitutional protections for property in similar ways even when presented with different text or other relevant considerations. This Essay identifies how lower courts are applying takings doctrine in ways that may curb the significance of interstate differences in property rules and speculates on the features of takings law that minimize variation in the scope of constitutional takings protection where the potential exists for it. In surfacing the phenomenon of convergence, this Essay builds a foundation for considering the virtues, vices, and normative desirability of uniformity and variation in both takings law and in property law more generally.
Maureen E. Brady, The Forgotten History of Metes and Bounds, 128 Yale L.J. 872 (2019).
Categories:
Property Law
,
Civil Practice & Procedure
,
Legal Profession
Sub-Categories:
Dispute Resolution
,
Legal History
,
Property Rights
,
Real Estate
Type: Article
Abstract
Since long before the settling of the American colonies, property boundaries were described by the “metes and bounds” method, a system of demarcation dependent on localized knowledge of movable stones, impermanent trees, and transient neighbors. Metes and bounds systems have long been the subject of ridicule among scholars, and a recent wave of law-and-economics scholarship has argued that land boundaries must be easily standardized to facilitate market transactions and yield economic development. However, historians have not yet explored the social and legal context surrounding earlier metes and bounds systems—obscuring the important role that nonstandardized property can play in stimulating growth. Using new archival research from the American colonial period, this Article reconstructs the forgotten history of metes and bounds within recording practice. Importantly, the benefits of metes and bounds were greater, and the associated costs lower, than an a historical examination of these records would indicate. The rich descriptions of the metes and bounds of colonial properties were customized to the preferences of American settlers and could be tailored to different types of property interests, permitting simple compliance with recording laws. While standardization is critical for enabling property to be understood by a larger and more distant set of buyers and creditors, customized property practices built upon localized knowledge serve other important social functions that likewise encourage development.
Maureen E. Brady, The Damagings Clauses, 104 Va. L. Rev. 341 (2018).
Categories:
Legal Profession
,
Property Law
,
Government & Politics
Sub-Categories:
State & Local Government
,
Legal History
,
Eminent Domain
,
Property Rights
Type: Article
Abstract
Twenty-seven state constitutions contain a clause prohibiting the “damaging” or “injuring” of property for public use without just compensation. Yet when compared to its relative, the Takings Clause of the Federal Constitution—which says that private property cannot be “taken” for public use without just compensation—the ways in which state courts interpret and apply their “damagings clauses” have remained opaque and virtually unstudied. This Article recovers the hidden history of the state damagings clauses. It traces the clauses to the threats to private property posed at the turn of the twentieth century as a result of rapid infrastructural improvement. These state constitutional provisions were meant to fix perceived inequities resulting from strict application of takings law: many jurisdictions would not recognize a right to compensation when public works affected use rights and drastically devalued property but did not physically invade or appropriate it. Drafters envisioned the damagings clauses as a powerful bulwark for property owners whose livelihoods and homes were affected yet not touched by public works. However, as state courts were tasked with the brunt of the interpretive work, their rulings coalesced around a variety of doctrinal limitations that severely undercut the clauses’ potency. As a result, modern interpretations of the clauses mainly provide coverage in a variety of contexts where the offending activity would already qualify as a physical-invasion taking under most federal precedents. This Article argues that the damagings clauses deserve broader applications in condemnation law. Damagings comprise a more limited and historically supported category than regulatory takings, for which courts have long awarded compensation. Moreover, courts already try to mandate compensation for some of these types of injuries by manipulating ordinary takings law, leading to unnecessary doctrinal confusion. As a new wave of infrastructural growth looms, it is time for professors and practitioners to return their attention to these forgotten provisions of the state constitutions.
Maureen E. Brady, Penn Central Squared: What the Many Factors of Murr v. Wisconsin Mean for Property Federalism, 166 U. Pa. L. Rev. Online 53 (2017).
Categories:
Constitutional Law
,
Government & Politics
,
Property Law
Sub-Categories:
Fifth Amendment
,
State & Local Government
,
Federalism
,
Supreme Court of the United States
,
Administrative Law & Agencies
,
Eminent Domain
,
Property Rights
Type: Article
Abstract
On June 23, 2017, the Supreme Court’s 5-3 decision in Murr v. Wisconsin provided some long-awaited guidance for courts to use in defining the relevant unit of property to perform regulatory takings analyses. The Court announced a new three-part test, tasking lower courts with two different multifactor inquiries to determine whether a federal regulatory taking has occurred. First, the court must figure out the right unit of property, and second, it must determine whether just compensation is owed using the three-pronged test articulated forty years ago in Penn Central Transportation Co. v. New York City. Despite its resort to multiple factors to determine the relevant unit of property, Murr is most striking because of an important one it minimizes: state-specific positive law. Takings doctrine has long valued, incorporated, and awarded protection to varied unique forms of state property. This constitutional property federalism is widely perceived as desirable, encouraging beneficial competition and innovation in the forms and content of property rights in different jurisdictions. This Essay argues that the Murr decision threatens constitutional property federalism by inviting courts to define the scope of protected property interests using law and regulation across jurisdictional boundaries. As lower courts and scholars struggle to give meaning to Murr, its effects on the federalist structure of property should not be neglected.
Maureen E. Brady, Property’s Ceiling: State Courts and the Expansion of Takings Clause Property, 102 Va. L. Rev. 1167 (2016).
Categories:
Property Law
,
Government & Politics
,
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Fifth Amendment
,
Transportation Law
,
Courts
,
State & Local Government
,
Eminent Domain
,
Property Rights
,
Real Estate
Type: Article
Abstract
The Federal Constitution and nearly all state constitutions include takings clauses providing that private property shall not be taken for public use without just compensation. To the extent that scholars have considered the role of state courts with regard to these takings clauses, they have focused around constitutional limits on judicial restrictions of what constitutes property. Little attention has been paid, however, to how state courts can expand the definition of private property — and the problems and possibilities associated with that capability. Through an original case study derived from unexamined historical sources, this Article explores the complex questions raised by constitutional property creation. It tells the story of a series of nineteenth- and twentieth-century cases on street grading, in which property owners sought relief when municipal officials vertically shifted streets — sometimes in excess of a hundred feet — to improve transportation. Though these regrades often loomed over people’s homes or left them stranded on inaccessible cliffs, government officials contended that because the regrades did not physically take any property, abutting owners could not bring takings claims. In response, state courts created a novel “right of access” to land and treated this right as constitutional property confiscated by the regrades, an innovation which entitled affected owners to compensation for the serious damages their land suffered. As this history demonstrates, state courts have played an important role in takings law by recognizing new forms of constitutional property. By neglecting constitutional property innovation, scholars who argue that legislatures should be responsible for changes in property rules have missed a significant piece of the puzzle. Consequently, the history of court-made constitutional property rights carries implications for institutional choice analyses in property law. While there may be good reasons to prefer that legislatures allocate and define novel property interests as a general matter, courts have been overlooked as sites where constitutional property rights are created and debated in response to perceived political failures.
Maureen E. Brady, The Lost “Effects” of the Fourth Amendment: Giving Personal Property Due Protection, 125 Yale L.J. 946 (2016).
Categories:
Constitutional Law
,
Property Law
,
Criminal Law & Procedure
Sub-Categories:
Fourth Amendment
,
Constitutional History
,
Criminal Justice & Law Enforcement
,
Personal Property
,
Property Rights
Type: Article
Abstract
In addition to “persons, houses, [and] papers,” the Constitution protects individuals against unreasonable searches and seizures of “effects.” However, “effects” have received considerably less attention than the rest of the categories in the Fourth Amendment. Recent Supreme Court opinions on Fourth Amendment searches reintroduced the word “effects,” and yet they did so without a definition of the word, an understanding of its history, or a clear doctrinal theory. In the absence of a coherent approach to “effects,” many lower courts apply the standard Fourth Amendment test: they ask whether the government has violated the claimant’s “reasonable expectation of privacy.” However, many lower courts protect or decline to protect personal property by examining the individual’s expectation of privacy in the property’s physical location. These courts hold that individuals have no expectations of privacy in personal property that is unattended in public space. This Article argues that personal property in public space should receive greater constitutional protection than is provided by these cases, because of the privacy and security interests inherent in ownership and possession. The history surrounding the Fourth Amendment provides evidence that the protection against unreasonable searches and seizures was connected to the law prohibiting interferences with another’s possession of personal property, including dispossession, damage, or unwanted handling. To restore this connection, this Article uses guidance from personal-property law to propose a framework for identifying Fourth Amendment interests in effects based on their qualities and environment. This intervention would grant effects the constitutional protection they deserve.
Maureen E. Brady, Defining “Navigability”: Balancing State-Court Flexibility and Private Rights in Waterways, 36 Cardozo L. Rev. 1415 (2015).
Categories:
Constitutional Law
,
Government & Politics
,
Property Law
,
Environmental Law
Sub-Categories:
Fifth Amendment
,
Fourteenth Amendment
,
Water Law
,
State & Local Government
,
Courts
,
Property Rights
Type: Article
Abstract
Over the course of American history, state courts have eliminated property rights in waterways through a quirk of public trust law: declaring the water in question to be “navigable” makes it public property, while declaring it “non-navigable” leaves the water subject to private control. The historical record is flooded with examples of these declarations by state courts. While some navigability rulings have protected public rights in waters against irrational private claims, others have abused this peculiarity to seize private property to placate irate, and even violent, interest groups. The scope of this authority to make navigability doctrine — especially whether it gives state judges the ability to change the definition of “navigability” once declared — is unclear. Current law fails to curb abuses of navigability doctrine and pays scant attention to constitutionally protected property rights. These issues are particularly salient today: prompted by large-scale water diversions, droughts, and fears of water shortages, twenty-first century litigants wishing to prevent water privatization are increasingly seeking new judicial declarations of “navigable” waterways. This Article provides an original history and analysis of state-law navigability doctrine and the limitations that should be implemented. First, it shows how this unusual common-law authority was created and how state courts exercised it in two moments in history when water rights became vitally important: the explosion of American development in the mid-nineteenth century and the rise of the environmental movement in the mid-twentieth century. Building on this history, this Article argues that to avoid abuses while permitting reasonable exercises of judicial power, navigability must be viewed through a national constitutional lens. The Takings Clause and Due Process Clause — independently or in combination — can provide guidelines that permit evolution while safeguarding individual rights.
Maureen E. Brady, The Failure of America’s First City Plan, 46 Urb. Law. 507 (2014).
Categories:
Government & Politics
,
Property Law
,
Environmental Law
Sub-Categories:
Land Use
,
State & Local Government
,
Property Rights
,
Eminent Domain
Type: Article
Abstract
Many legal scholars and urban planners extol the virtues of the great American downtown grid: the uniform blocks and parallel streets that dominate cities from New York to San Francisco. Against this precision, the serpentine roads of many early American towns are viewed derisively, as an undesirable consequence of disorganized colonization. The history of America’s first planned city offers a natural experiment for examining the legal and economic consequences of both types of layouts — and evidence about when the conventional wisdom on grids is wrong. This Article tells the story of the failure of America’s first city plan: the Nine Squares grid in New Haven, Connecticut. The Squares were problematic from their inception because they were too large and improvidently located. To adapt to land conditions and a commercial future far from what the town’s founders anticipated, eighteenth-century civic leaders resorted to a variety of processes to revise the layout, including a major subdivision that required use of the eminent domain power without payment of compensation in the 1780s. Town planning within the grid contrasted sharply with planning in areas surrounding the grid during the same time frame. In other parts of New Haven, incremental street decisions, legal mechanisms for resident involvement, and laws permitting in-kind compensation for new roadways allowed the town responsively to plan streets suited to changing land and settlement conditions. This Article advances a new theory of street planning drawn from the New Haven case study, aiming to surface the virtues piecemeal planning can bring during some points in a city’s development. Streets can be thought of in market terms, and comprehensive grid plans may act as market distortions, preventing settlement forces from organically producing more effective street layouts. Particularly where information about land is dispersed among members of a small population, bottom-up street plans may be desirable because they reflect residents’ preferences and harness dispersed knowledge about land conditions and uses.
Maureen E. Brady, Leaving Room for Research: The Historical Treatment of the Common Law Research Exemption in Congress and Courts, 12 Yale J.L. & Tech. 269 (2010).
Categories:
Property Law
,
Technology & Law
,
Government & Politics
Sub-Categories:
Congress & Legislation
,
Courts
,
Intellectual Property - Patent & Trademark
,
Intellectual Property Law
,
Science & Technology
Type: Article
Abstract
The recent suit over the validity of gene patents between the American Civil Liberties Union and Myriad Genetics has highlighted the troubling ways in which patents may be interfering with the willingness of scientists and companies to engage in basic biotechnology research on matters of vital importance to human health and disease. Many scholars have argued for a legislative research exemption to protect this sort of research. Theoretically, the common law already contains an exemption to protect certain uses of a patented product from being deemed patent infringement. This Article evaluates the history of the common law research exemption alongside the history of biotechnology policymaking since the 1970s, identifying how confusion over the scope of the judicial research exemption may have led to legislative stagnation on the issue of protecting research. Even during the infancy of biotechnology, members of Congress believed in the existence of a robust research exemption when making policy decisions about whether to create a legislative exemption. Now that the scope of the research exemption has been narrowed significantly by recent Federal Circuit decisions, at a time when the intellectual property regime permits patents on human building blocks as basic as genes, this Article highlights the need for a clear exemption. It also overviews and comments on existing policy solutions scholars have offered to counteract the chilling effect that the lack of a clear exemption might be having on basic research, including research in the biotechnology sector.