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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.
Edited by
ELOISA C. RODRIGUEZ-DOD
Florida International University College of Law
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 independ-
ent 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
About the Cover Art xxiii
part i introduction 1
ix
x Contents
9 Kelo v. City of New London, Connecticut, 545 U.S. 469 (2005) 179
Commentary: Julia D. Mahoney
Judgment: Olympia Duhart
Index 415
Advisory Panel for Feminist Judgments: Rewritten
Property Opinions
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
Could feminist perspectives and methods change the shape of property law?
To answer this question, we brought together a group of scholars and practi-
tioners 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 perspec-
tive 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
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 devel-
opment 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
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 consti-
tutional 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 precon-
ceptions 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
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).
2
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
types of landlord–tenant cases involving vulnerable women rarely reach any level of the court
system, let alone the appellate level.
3
Phillips Neighborhood Hous. Tr. v. Brown, 564 N.W.2d 573 (Minn. Ct. App. 1997) (see
Chapter 16).
4
Botiller v. Dominguez, 130 U.S. 238 (1889) (see Chapter 5).
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).
6
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.
7
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.
8
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
9
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.
10
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.
11
See Feminist Judgments in International Law (Loveday Hodson & Troy Lavers eds., 2019).
12
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 expli-
citly 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 develop-
ment 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 prem-
ises liability. Most of the authors of the rewritten opinions and the commen-
tators 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 restructur-
ing 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 view-
points in first-year property courses and throughout the law school curricu-
lum, 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.
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 stand-
ard 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 surpris-
ing.18 Although some scholars have focused on property rights of Mexican,
Indigenous, and Spanish women, those women remain primarily missing
13
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.
14
Ironically, had we chosen a chronological framework, these three cases would also have been
placed at the beginning of the book.
15
Johnson v. M’Intosh, 21 U.S. 543 (1823) (see Chapter 4).
16
Botiller v. Dominguez, 130 U.S. 238 (1889) (see Chapter 5).
17
Pierson v. Post, 3 Cai. 175 (N.Y. Sup. Ct. 1805) (see Chapter 6).
18
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 exclu-
sionary 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 par-
ticularly 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
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
introduction
In the rewritten judgments that follow in this volume, authors envision
alternatives to existing property cases. In their work, the authors query inter-
pretations 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 underpin-
nings of feminist thought, from the classic distinction between liberal, differ-
entialist, 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
Lolita Buckner Inniss, (Un)common Law and the Female Body, 61 B.C.L. Rev. E.Supp. I.-95
(2020).
2
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
10
Revolution, Devolution, and Feminist Legal Theory 11
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 conscious-
ness 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.
assessing Black rights as “whether using common law norms can deliver justice to people who
are outsiders to the system”).
3
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).
12 Lolita Buckner Inniss
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 immedi-
ate, 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 appli-
cation 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 convey-
ances 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, substi-
tuting 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
Revolution, Devolution, and Feminist Legal Theory 13
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 desig-
nated 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 concen-
trated 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
4
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).
5
Id.
6
Carol Willis, Zoning and “Zeitgeist”: The Skyscraper City in the 1920s, 45(1) Journal of the
Society of Architectural Historians, 47–59 (1986).
14 Lolita Buckner Inniss
7
Margaret Davies, Property: Meanings, Histories, Theories (2007).
8
Phillips Neighborhood Hous. Trust v. Brown, 564 N.W.2d 573, 574 (Minn. App. 1997).
Revolution, Devolution, and Feminist Legal Theory 15
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 home-
lessness, 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 mother-
hood, poverty, and use of publicly funded housing make Mary Brown discur-
sively, 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
Lua Kamál Yuille, Commentary, Chapter 16.
10
Patricia Hill Collins, It’s All in the Family: Intersections of Gender, Race and Nation, 13(3)
Hyptia 62, 62 (1998).
11
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).
16 Lolita Buckner Inniss
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 some-
how 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 rewrit-
ten 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
Moore v. City of East Cleveland, 431 U.S. 494 (1977).
13
Id. at 503.
Revolution, Devolution, and Feminist Legal Theory 17
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
14
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).
15
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.
18 Lolita Buckner Inniss
16
See Feminist Judgments: From Theory to Practice 15 (Rosemary Hunter et al. eds., 2010).
17
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
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 femi-
nist 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
1
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.
2
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).
19
20 Hannah Brenner Johnson
3
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).
Feminist Perspectives throughout Law School Curriculum 21
4
A Brief History, W&L, https://my.wlu.edu/about-wandl/history-and-traditions/a-brief-history
(last visited Feb. 18, 2020).
5
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).
6
Law School Enrollment by Race & Ethnicity (2018), Enjuris, https://www.enjuris.com/
students/law-school-race-2018.html (last visited Feb. 19, 2020).
7
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).
8
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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