Composing a feminist opinion in Gruen v. Gruen1 is a challenging project. Using the feminist move of storytelling is not readily available as a vehicle for reframing the case. Given the sparse descriptions by the courts of the roles of the various players, their characters, and whether their actions stemmed, in part, from male aggression render reliance upon them too speculative an analytical baseline.2 This case involved a purported gift from a father, Victor Gruen, to his son, and the challenge to the validity of the purported gift by Victor’s widow. On the evidence as we have it, the primary actors with regard to the purported gift, the donor and the donee, were both men, a father and a son. Though Victor had a checkered marital past and the widow, Victor’s fourth wife, did not receive the valuable asset that was the subject of the disputed inter vivos gift, she was neither a subject of any particular attention in the litigation nor an object of bounty more obvious than any other family member.

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

From today’s vantage point, it is easy to forget the rapid and expansive development of the law at the intersection of property rights and family relationships that has occurred over the course of the last several decades. At the time of Blake v. Stradford,1 the decision explored in this chapter, same-sex marriage was not legally recognized in the United States.2 Marriage between interracial couples had been sanctioned for only three decades.3 And when it came to marital property rights, married women held some, albeit few. Laws like that of coverture, and classification of the husband as the “head and master” of the family with the sole right to act in property matters relating to either spouse’s property, were still fading from the fore.

The 1960s began a sustained transformation of American residential landlord–tenant law that was long heralded as a “revolution.”1 Through it, the status of residential tenants was (purportedly) improved substantially; and, it remains widely accepted, the law “escaped from the realm of private ordering, in which the stronger party typically has the advantage, and has become subject to regulation in the public interest.”2 Due to the radical realignments of this period, almost all tenants now enjoy the legal right to residences fit for human habitation as a “just and necessary implication” of their leases.3 Arguably more important, the “extraordinary ferment”4 markedly curtailed landlords’ power to control unilaterally the terms, conditions, and performance under leases by, among other changes, expanding procedural protections against retaliatory, arbitrary, capricious, constructive, profiteering, or otherwise exploitative eviction.

Sawada v. Endo1 has become a foundational case for feminist jurisprudence despite facts that, at first blush, appear to have nothing to do with matters of women’s equality. An automobile-on-pedestrian personal injury case in Hawaii, the dispute veered into the terrain of gender and marital property law only when the tortfeasor and his wife sought to shield their sole asset – the family home co-owned in tenancy by the entirety – from the claims of the tort victims, conveying it to their sons prior to judgment. That purported transfer provides the occasion for considering the modern contours of the estate owned by the couple. This dispute over whether the conveyance was made to defraud the tort victim creditors still does not directly implicate the interests of the actual woman who co-owned the estate in question. She had no role in the accident and then died prior to the resolution of the case. The specific issue as presented on appeal is entirely about the nature of the husband’s interest.

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

With its 2004 decision in Taylor v. Canterbury,1 Colorado joined several other states, most notably, California,2 in eliminating the “strawman” requirement for an effective severance of a joint tenancy by unilateral conveyance to oneself as a tenant in common. In the years following Taylor, several additional states have also abolished the requirement.3

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

Tenancy in common, joint tenancy, and tenancy by the entireties are forms of co-ownership of property. Inter vivos transfers, testate transfers, and intestate transfers of property can create these types of concurrent ownership. When an estate in fee is transferred to a married couple, the two become concurrent owners. The question is what form of concurrent tenancy is created.

On June 1, 1991, Jenny Bartley entered into a lease for apartment #6 in University Studio Apartments in Fayetteville, Arkansas. In the early morning hours of June 21, 1991, two men, one of whom was another tenant of University Studios, knocked on Ms. Bartley’s door. Because her basic push-button door lacked windows, a peephole, or any auxiliary locking device, Ms. Bartley opened the door to them without first checking to see who they were. The two men “illegally and forcefully” entered Ms. Bartley’s apartment, without her consent, and repeatedly raped and sexually assaulted her.

In Kelo v. City of New London, a narrowly divided United States Supreme Court sustained as constitutional the condemnation of fifteen homes to further an economic development scheme.1 One of the most unpopular decisions in Supreme Court history, Kelo provoked public outrage across the political spectrum.2 The breadth and magnitude of this furor caught many by surprise, including Justice John Paul Stevens, who wrote the majority opinion.3