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Abstract:
As the Supreme Court of the United States faces a potentially defining moment in its history, with a new chief justice and additional retirements on the horizon, the Minnesota Law Review brought together thirteen leading scholars to discuss its future. This foreword introduces the collection of articles, which includes contributions from Professors Randy Barnett, Steven Calabresi (with David Presser), Neal Devins, Dan Farber, Michael Gerhart, Thomas Lee, Angela Onwauchi-Willig (with Guy Charles), Martin Redish (with Uma Amuluru), Stephen Smith, Kenneth Starr, David Stras, Mark Tushnet, and Adrian Vermuele.

Supreme Court, Institutional Reform, Future

Abstract:
The Minnesota Supreme Court decided State v. Hess in 2004, holding that an 1898 deed from two northern Minnesota landowners to the Brainerd and Northern Minnesota Railway Company for a railroad right-of-way conveyed a fee simple determinable. Because the abutting landowners failed to record their outstanding right of reverter, Minnesota's Marketable Title Act operated to extinguish that interest. As a result, the court held that the state's DNR, which now operates a public recreational trail along the former railroad right-of-way, owns the land in fee simple absolute.

The Hess court's reasoning and holding depart from precedent case law and analytical principles of deed interpretation in a way that creates a unique dilemma for future cases. Since courts' primary goal in interpreting deeds is to discern the actual intent of the original grantors, contemporaneous case law and scholarly work should paint an accurate picture of grantors' legal understandings and intentions. However, Hess's marked departure from turn-of-the-century precedent now means that courts interpreting similar language will be forced to decide between prior cases' depictions of the relevant law and Hess's underlying public policy preference for recreational trails.

This Comment proposes a variety of judicial and legislative solutions to aid future courts in fairly balancing the competing interests of private landowners and recreational trail enthusiasts. These proposals would establish a more principled approach to interpreting ambiguous railroad conveyances and would legitimize shifting public policy preferences in accordance with society's view of what constitutes the best use of abandoned railroad corridors. In addition, Minnesota's position as a leader in the field of rails-to-trails offers the state a unique opportunity to pilot innovative legislation and set an example for other states confronting the same issues.