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Hurricane Katrina and the subsequent failure of the levees resulted in the dispossession of thousands of residents throughout the Gulf Coast region.  Our article, The Houses that Eminent Domain and Housing Tax Credits Built: Imagining a Better New Orleans,[1] was in essence a proposal for ameliorating the plight of the dispossessed through a public-private partnership that would combine use of the government’s power of eminent domain with low-income housing tax credits to incentivize developers to rebuild the affordable housing stock in post-Katrina New Orleans.

Professor Murray recounts the social failures in the years after Hurricane Katrina that undermined the potential success of the efforts to rebuild New Orleans.[2]  We contend that Professor Murray is right– dispossession can be a framing concept of modern property law.  However, to move to a property law framework that considers dispossession as well as possession requires a new conversation, since property law is a response to a societal conversation about what interests are valued and whose interests will be protected.

Although not often labeled, dispossession is a concept embedded in modern property law.  We offer three contemporary examples that illustrate the dominant presence of dispossession even when that term is not used: (1) eminent domain, (2) adverse possession, and (3) foreclosure.  In addition, in all three examples the possessors are, in some sense, “innocently” dispossessed—possessors who through no fault of their own find themselves landless, or in the residential context, homeless.

Eminent domain played an important role in our proposal because through eminent domain, the government could acquire low lying areas that were inappropriate for residential use and provide funds for former residents to obtain more appropriately located affordable housing and desegregated housing in other parts of the city.  At its core, eminent domain is about giving government the tools to promote public projects for a public purpose and for public use.  However, the unavoidable consequence of the exercise of eminent domain is dispossession.  When we speak of eminent domain, we do not expressly use the term “dispossession,” but the concept is embedded in the very power of eminent domain, in the very act of removing a possessor for the public good, thus creating the dispossessed.

Modern property law is actively addressing the dispossession that results from eminent domain.  In 2005, the United States Supreme Court revisited the boundaries of the public use requirement under the Takings Clause of the Fifth Amendment to the United States Constitution in the case of Kelo v. City of New London.[3]  The Court upheld economic development takings and articulated a broad interpretation of public use.  The Court also stressed that deference must be afforded to the states’ determinations of public purpose.[4]

Many were concerned that the Kelo decision would make it too easy to dispossess citizens of their private property through transfers to private developers under the guise of pursuing the public good through economic development.  In the aftermath of Kelo, there were numerous state judicial responses in which state courts rejected the Kelo rationale in applying their own state constitutional provisions on eminent domain.[5]  For instance, in City of Norwood v. Horney, the court held “that an economic or financial benefit alone is insufficient to satisfy the public-use requirement of” the Ohio State Constitution.[6]  In Mayor and City Council of Baltimore City v. Valsamaki, the court rejected “business expansion” in the context of expedited condemnation as meeting the public use requirement.[7]  A final example is County of Hawaii v. C&J Coupe Family Limited Partnership in which the court held that “although our courts afford substantial deference to the government’s asserted public purpose for a taking in condemnation proceeding, where there is evidence that the asserted purpose is pretextual, courts should consider a landowner’s defense of pretext.”[8]  Thus, post-Kelo, some states interpreted their property rights legislation and constitutional provisions in a manner that was responsive and accountable to the dispossessed by making it more difficult to effectuate a Kelo-type taking.

The Kelo decision can be viewed as an egregious case of dispossession of crucial property: the home.  Following the decision, many states responded to address the conversation of dispossession for the purpose of economic development and decided to afford greater protection to those threatened with dispossession in this type of context.  Thus, the aftermath of the Kelo decision is a contemporary example of one method of “incorporat[ing] a conceptual experience of dispossession” that Professor Murray recommends.[9]

The law has used a threat of dispossession to incentivize certain behavior towards property.  For example, adverse possession rewards the trespassers who behave like possessors for a sufficiently lengthy period of time; consequently, the record owner is dispossessed and the adverse possessor gains title consistent with her outward behavior towards the property.  That an owner can be dispossessed comes as a surprise to many and often leads to public outrage when a case is publicized.  In a Colorado case of adverse possession, a retired judge and his wife acquired title to a portion of their neighbor’s land by using, for twenty-five years, property that they knew did not belong to them.[10]  In response to this intentional dispossession, the state of Colorado amended its adverse possession statute to give greater protection to owners who might be dispossessed through adverse possession.[11]  The statute now adds a good faith requirement and permits those who are adversely possessed, i.e., the dispossessed, to seek compensation for the loss of title.  The statute also heightened the burden of proof required for adverse possession from a preponderance standard to a clear and convincing standard.[12]

Professor Murray mentions the ongoing housing crisis that began in 2008.  One of the consequences of the housing crisis has been the increase in foreclosures.  In many instances, these foreclosures were of mortgaged property being rented by tenants who were properly paying their rent.  When the owner defaulted on the mortgage loan and the lender chose to foreclose the mortgage, the tenants found themselves dispossessed.  Again, concern arose about the inequity of the tenant who was in compliance with the lease, but who lost possession because the owner was not making the mortgage payment.  To address the tenant’s plight of dispossession, Congress passed the Protecting Tenants At Foreclosure Act of 2009,[13] giving some form of protection to the dispossessed tenant by requiring a 90-day notice to vacate if the underlying mortgage was federally related.  While not full protection against the loss of a home, the law was designed to temper the negative consequences of the dispossession of tenants who were paying their rent.

These three examples show that the concept of dispossession meanders like a river throughout all property law doctrines.  To recognize it as a “key doctrinal principle”[14] as Professor Murray suggests requires more than simply a change in the law.  It also requires a change in the broader conversation about what it means to possess property and what it means to be dispossessed of property.  There must be an opportunity for a new conversation about the consequences of that dispossession and about the plight of the dispossessed.  Opportunity has been called “a critical component of post-disaster recovery” and is “defined by the extent to which a community uses a disaster as an occasion not simply to return to normal, but also to achieve a new and better standard of living.  It means retaining assets and correcting flaws while rebuilding.”[15]  Certainly, post-Katrina is an opportunity to have the conversation about the recognition of dispossession in the law.

We can perceive these failures by juxtaposing two important Articles that seek to analyze the availability of low-income housing credit as an attempt to provide affordable housing in the wake of Hurricane Katrina. The first Article——and the subject of this discussion——Carol Brown and Serena Williams’s The Houses that Eminent Domain and Housing Tax Credits Built: Imagining a Better New Orleans,[1] “imagines” a diverse, social landscape that can be successfully shaped through a “combination of the smart exercise of eminent domain and of ‘housing production’ subsidies’——housing tax credits” that could be used to “rebuild the rental housing market of New Orleans.”[2]  Brown and Williams suggested that the post-recovery efforts after Hurricane Katrina provided a unique opportunity to reduce concentrated poverty in the city of New Orleans by first providing for the use of eminent domain in potentially destroyed neighborhoods, and then using low-income tax credits to construct affordable housing in New Orleans’s mixed-income neighborhoods and surrounding parishes.[3]  This private-public planning would then provide for ideal opportunities by fostering “community engagement” in selecting the sites for eminent domain, “regional approaches” that included “reducing barriers such as exclusionary zoning ordinances,” and other affirmative actions “to promote affordable housing” and “workforce development.”[4]  This Journal published Brown and Williams’s Article in 2007. The Article’s prescriptive policy choices reflect an experimental optimism about the ability of housing policy to reform the social landscapes of New Orleans.

In 2011 though, such experimental optimism appears to be naive, given the circumstances described by a second Article: Stacy E. Seicshnaydre’s recent work, How Government Housing Perpetuates Racial Segregation: Lessons from Post-Katrina New Orleans.[5]  Seicshnaydre suggests that while housing authorities throughout the region of New Orleans attempted to use the exact policy prescription suggested by Brown and Williams——the use of low-income housing credits to increase affordable housing and to decrease concentrated poverty——such attempts still failed.[6]  Such attempts failed because local governments perceived that the provision of affordable housing would destabilize their efforts to rebuild after Hurricane Katrina.  Indeed, Seicshnaydre records that local governments competed creatively to thwart any effort to undertake the type of model suggested by Brown and Williams.[7]  Bans of every sort seemed to be quite popular. Local governments enacted bans on affordable housing financed by low-income housing credits,[8] bans on multi-family housing, bans on rebuilding affordable housing destroyed by the hurricane,[9] and in one infamous incident bans on housing units occupied by families that were not “blood-relatives” of tenants or owners that had previously lived within the relevant neighborhood.[10]  Consequently, Seicshnaydre concludes that, even if housing subsidies are available (in the form of low-income housing credits or housing vouchers), it is simply not enough to provide the “initial intervention” of the housing subsidy, if “the federal government yields to a highly decentralized, laissez-faire scheme with regard to where the subsidy will be utilized.”[11]  Seicshnaydre, ultimately, suggests that significant federal government interference is needed in these types of recoveries to ensure that segregation or re-segregation does not occur, even in these moments of experimental optimism.[12]

The failure of our good intentions in post-recovery Katrina, then, suggests that property law in the United States still struggles to successfully incorporate the conceptual experience of dispossession.  Property law is framed around the experience of possession; that is, the property owner’s ability to control the propertied item.  Thus, the ability of low-income housing credit seeks to prompt the provision of housing, which in turn allows a low-income tenant to acquire the respective property, which in turn, creates a more virtuous citizen. This logic of “possession” reinforces our good intentions.  The experience of post-recovery Katrina, however, suggests that any attempt at recovery was going to take place within a social landscape of intense social and racial segregation, and that what Nicholas Blomley has termed the “social geographies of dispossession” were going to persist even when the post-recovery period suggested a “massive reworking of property relations” was necessary. [13]

Notably, Brown, Williams, and Seicshnaydre all suggest that if the federal government had intervened to prevent the ongoing experience of dispossession through the framework of discrimination outlined in the Fair Housing Act, it could have perhaps addressed efforts to prevent the provision of affordable housing.[14]  But, federal intervention predicated on crisis is not sustainable, given its potentially episodic nature.  Crisis prompts intervention, but dispossession within a social landscape starts before the crisis, and persists after the crisis.

Comparative experiences such as South Africa suggest that the conceptual commitment to recognizing dispossession as a key doctrinal principle needs to be interwoven within the relevant common law, statutory, and constitutional frameworks that embody property law.  For example, in Port Elizabeth Municipality v. Various Occupiers,[15] the Constitutional Court of South Africa, interpreting a statutory mandate as to the eviction of “squatters,” suggested that their dispossession should be not only within the statutory framework directly relevant to their particular circumstances,[16] but also within a relevant constitutional framework that specifically addresses the historical dispossession of black and coloured South Africans,[17] and within a common-law framework that attempted to use equitable flexibilities to remedy the potential injustice of unfair eviction.[18]  Port Elizabeth, thus, demonstrates a continual engagement with the historical and social reality of dispossession, and by doing so, avoids treating potential federal intervention as a mere response to crisis.  Obviously, how to translate this doctrinal commitment within the constitutional, statutory, and common law traditions of the United States and in relation to the specific problems of affordable housing is a difficult question.  Nevertheless, this task is a necessary one if the experimental optimism of Brown and Williams is to be achieved.

My Article was centered around the NAS report’s claims that there was something amiss in forensic science, that the failure of something called “scientific culture” was at the root of the problem, and that the adoption of something called “scientific culture” was the key to the solution.  I argued that the NAS’s discussion of scientific culture lacked nuance and equated all scientific activity with what I called “discovery science”[4]——an equation that, incidentally, is resurrected in the penultimate paragraph of Professor Koppl’s Response.  I proposed to improve upon the NAS’s discussion of forensic science by positing a more nuanced view of forensic scientific work divided into five general task categories.  I argued that a failure to distinguish these categories had played some role in generating the confusions and controversies that have beset forensic science over the past couple of decades.  For example, the dispatching of practitioners to answer queries about the validity of their own practice yielded absurd responses, such as the “fingerprint examiner’s fallacy,”[5] the “individualization fallacy,”[6] the “casework fallacy,”[7] the “zero error rate,”[8] and the like.

Professor Koppl does not seem to disagree greatly with the above analysis.  As is typical of these sorts of things, it was my proposals for reform that conclude the paper that generated the greatest disagreement.  At the most general level, I merely proposed that efforts to reform forensic science consider some task differentiation, rather than treating “forensic science” as a monolithic entity.[9]  Again, there is little disagreement over that.  But I went further.  I suggested an unabashedly “hierarchical” model in which individuals assigned certain high level tasks would exercise control over the claims made by individuals assigned lower level tasks.[10]  What I had in mind, in concrete terms, was that line practitioners would no longer be expected to, or even permitted to, validate their own practices.  Validation work would be expected of and performed by people with training primarily in conducting scientific research, rather than of people with training primarily in conducting forensic assays.  I then offered medicine as a loose analogy for the sort of organizational structure I had in mind, an analogy that has been used by others as well.  Here is where Professor Koppl disagrees.  I will try to respond to three key issues below.

I.  The Medical Analogy

Because I analogized my proposed organizational structure with the current structure of medicine, Professor Koppl seeks to counter my proposal by undermining what he portrays as my implicit assumption of the virtue of modern medicine’s organizational structure.[11]  Thus, he challenges the notion that medicine’s organizational structure was chosen rationally or democratically, is in fact hierarchical, yields “good” research, or yields good outcomes.[12]

My main response is that Professor Koppl has read too much into my use of medicine as an analogy for thinking about the organizational structure of forensic science.  My use of medicine as an analogy was by no means intended as a claim that medicine has a “correct” organizational structure, that medical knowledge is always correct, or that health care is delivered efficiently.  Though I am not an expert on medicine or on health economics, I am aware enough of the deficiencies of modern medicine, especially in the United States, on all these fronts.  I am neither equipped nor inclined to defend the knowledge production or economics of modern medicine.  My assertions about medicine were intended as casual observations, rather than empirical claims about the rationality of either medical knowledge or delivery.  I believe that my words conveyed this casualness, “society is reasonably content with the hierarchical model in medicine.”[13]

What I meant to convey was merely that the medical model made a certain amount of intuitive sense compared with the current forensic model.  The organizational structure of medicine does not ask radiological technicians to defend the validity of knowledge claims deriving from radiology.  When I wrote that, “society is reasonably content with the hierarchical model in medicine,” I meant to convey that society is reasonably content with this situation, not content with all of medical knowledge and delivery.  In other words, I do not perceive a groundswell of public support for the notion that clinical trials on radiological knowledge claims should no longer be conducted by biomedical researchers, but should instead be delegated to radiological technicians.  The current organizational structure of forensic science does precisely that, and that makes no sense at all, as I believe Professor Koppl would agree.  I was not intending to make a strong empirical claim about the rationality of medical knowledge or delivery.[14]

In any case, the medical analogy was intended to be merely that: an analogy.  I do not think it is necessary for me to defend the validity of all medical knowledge or the efficiency of all health care delivery to support my use of medicine as a model for rethinking the organizational structure of forensic science.[15]

II.  Capture of NIFS

Readers should recall that the first recommendation of the NAS report was the creation of the National Institute of Forensic Science (NIFS), independent of law enforcement.[16]  Professor Koppl charges that my proposal would create a regulatory institution (NIFS), “captured” by law enforcement with control over forensic science.[17]  I have two responses to this.  First, this charge slightly confuses a knowledge hierarchy with a regulatory hierarchy.  The essence of my argument was that individuals with training in conducting scientific research (whom I called “Basic Researchers”) should be the only individuals empowered to——or expected to——validate or evaluate forensic knowledge claims.[18]  In this sense, they are superior in a knowledge hierarchy to individuals whom I called “Analysts,” who should not be permitted to——or expected to——validate or evaluate their own practices.[19]  But a knowledge hierarchy does not necessarily imply a regulatory hierarchy.  Basic Researchers need not necessarily be employees of NIFS, or even funded by it.  “While some of them might have ‘official’ positions in forensic science (e.g., NIFS scientists), others might be independent of forensic science and employed by universities, industrial corporations, or non-government organizations.”[20]  My argument was about education, training, and research orientation, not about regulatory oversight.  To draw on the medical analogy again: any credentialed medical researcher can evaluate a medical knowledge claim, whether employed by the National Institutes of Health, a university, or a pharmaceutical firm, but radiological technicians and practicing pharmacists are not generally trusted——or expected——to evaluate medical knowledge claims.

My second response is perhaps simpler.  An NIFS captured by law enforcement is not an NIFS.  The NAS was admirably clear on this point: the NIFS must be independent of law enforcement.  The creation of any institution to regulate forensic science that is not independent of forensic science is not an implementation of NAS recommendation #1,[21] but rather a deception, co-option, or, to use Professor Koppl’s term, “capture.”  I am second to none in my abhorrence of such a development, and I accept no responsibility for the pernicious outcomes that would result.  In short, I entirely agree with Professor Koppl that a law enforcement-controlled “NIFS” would have pernicious effects, but these effects have nothing to do with my proposal, which concerns a knowledge hierarchy based on education, training, and orientation and presupposes an independent NIFS.

Professor Koppl is, of course, right to be concerned about capture, a point I tried to make in my Article.  Recent activity in Congress suggests strong interest in creating precisely the kind of institution both Professor Koppl and I are warning against: a law enforcement-controlled forensic science oversight institution.[22]  How to prevent this perverted outcome is a political problem for which I do not feel I have any special expertise in proposing a solution.  However, I do feel that the entity with the greatest power to forestall such an occurrence is the NAS itself.  As a mainstream scientific institution, the NAS has unique authority to speak about the regulation of forensic science.  A strong statement from the NAS that a law enforcement-controlled oversight institution is fundamentally incompatible with the NAS’s recommendation would be perhaps the most persuasive argument against the creation of such an institution.

III.  Koppl’s Free-Market Adversarial Proposal

Professor Koppl closes by proposing his own solution to the ills of contemporary forensic science, which he has articulated at greater length elsewhere in an elegant series of papers.  To greatly oversimplify, Professor Koppl, like a true economist, seeks to harness the power of competition to improve forensic outputs.[23]  His argument links together strands from three schools of thought: free-market economics, legal adversarialism, and Popperian philosophy of science.  All of these lead to a similar familiar conclusion (hence Popper’s own linking of them in The Open Society and Its Enemies[24]): competition between ideas is the best way of ensuring their general excellence.  At the practical level for forensic science, Koppl is proposing competition between adversarially inclined experts retained by the two parties, the prosecution and defense, as the best way to come closest to “the truth.”

Again, I am neither equipped nor inclined to engage in a sustained critique of Professor Koppl’s proposal, which I think has much to recommend it.  On a smaller scale, some of his proposals, such as replacing open review within laboratories with masked review between laboratories,[25] are useful proposals for forensic science. Instead, I will make two points.  First, his proposal would seem to leave out some important points.  For example, his proposal leaves out the notion of admissibility law altogether.  Thus, it would seem any evidence should be admissible; it should all simply be subject to the adversarial process.  But what if a form of evidence is invalid or of unknown validity?  Is it still acceptable to use, so long as an adversary has had the chance to advance its own interpretation?  In Koppl’s free-market competition, will juries be inclined to believe the expert confidently asserting that her own technique is valid or the expert challenging the technique’s validity?  What if a technique is so novel, so invalid, or simply so preposterous that the adversary cannot find an expert to rebut the proponent’s claim? Professor Koppl’s proposal is also vulnerable to the common criticism that juries may be inclined to credit the expert witness who is most persuasive, rather than the one who is most correct or truthful.[26]

My second point is that, with the above caveats properly addressed, I would not be unhappy with Professor Koppl’s proposal, just as I would not be unhappy with a variety of proposals to reform forensic science other than mine.  For example, in my Article, I noted that I would not be unhappy with the proposal that all forensic science tasks be upgraded so that doctoral level scientists must perform them.[27]  The question is less which proposal is best, than which proposal is most likely to actually be implemented, and which one is least likely to be perverted in its implementation.  By this measure, I must say that I find Professor Koppl’s proposal at least as naive as mine.

Free-market competition requires a level playing field.  The imbalance of resources between defense and prosecution is notorious to legal scholars,[28] and there are indications of pro-prosecution bias among judges and jurors as well.[29]  Forensic science reformers have long observed that defense experts are almost exclusively drawn from the ranks of retired prosecution experts and that the cadre of professional defense experts is virtually non-existent.[30]  Moreover, there are few, if any, models for a forensic laboratory that exclusively serves defendants.  All of this suggests to me that Professor Koppl’s vision of a level playing field in which defense and prosecution experts compete in a free-market is at least as naive as my proposal that forensic scientific knowledge claims be evaluated by those qualified to evaluate them.

At the risk of sounding overly conciliatory, I think that the two general visions espoused by Professor Koppl and myself are not greatly incompatible.  For the most part, Professor Koppl’s and my proposals are taking aim at different targets, and some of the reforms we propose should be compatible.  For example, Professor Koppl’s vision of vigorous competition between experts in applying analytical tools in specific cases is in no way incompatible with my argument that the general validation of those tools should be performed by research scientists, rather than line practitioners.  The challenge lies in harnessing the current public and political interest in forensic science to bring these visions to fruition.

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