Law Commons^™

Property And Sovereignty In America: A History Of Title Registries & Jurisdictional Power, K-Sue Park

Georgetown Law Faculty Publications and Other Works

This Article tells an untold history of the American title registry—a colonial bureaucratic innovation that, though overlooked and understudied, constitutes one of the most fundamental elements of the U.S. property system today. Prior scholars have focused exclusively on its role in catalyzing property markets, while mostly ignoring their main sources in the colonies -- expropriated lands and enslaved people. This analysis centers the institution’s work of organizing and “proving” claims that were not only individual but collective, to affirm encroachments on tribal nations’ lands and scaffold colonies’ tenuous but growing political, jurisdictional power. In other words, American property and property …

Navassa: Property, Sovereignty, And The Law Of The Territories, Joseph Blocher, Mitu Gulati

Faculty Scholarship

The United States acquired its first overseas territory—Navassa Island, near Haiti—by conceptualizing it as a kind of property to be owned, rather than a piece of sovereign territory to be governed. The story of Navassa shows how competing conceptions of property and sovereignty are an important and underappreciated part of the law of the territories—a story that continued fifty years later in the Insular Cases, which described Puerto Rico as “belonging to” but not “part of” the United States.

Contemporary scholars are drawn to the sovereignty framework and the public-law tools that come along with it: arguments about rights and …

Whiteness As Contract, Marissa Jackson Sow

Faculty Publications

2020 forced scholars, policymakers, and activists alike to grapple with the impact of “twin pandemics”—the COVID-19 pandemic, which has devastated Black and Indigenous communities, and the scourge of structural and physical state violence against those same communities—on American society. As atrocious acts of anti-Black violence and harassment by law enforcement officers and white civilians are captured on recording devices, the gap between Black people’s human and civil rights and their living conditions has become readily apparent. Less visible human rights abuses camouflaged as private commercial matters, and thus out of the reach of the state, are also increasingly exposed as …

Léon Duguit And The Social Function Of Property In Argentina, M. C. Mirow

Faculty Publications

Despite its early introduction to Argentina in 1911, the doctrine of the social function of property was not quickly appropriated into the Argentine legal system. Only after a period of more than thirty-five years did this concept of property find expression in this country through the Constitution of 1949, the Peronist constitution drafted under the guidance of the Arturo Enrique Sampay. Duguit's writings formed part of a broader understanding of the social function of property that was informed by various scholars and sources, and particularly by works on Christian humanism and the social doctrine of the Roman Catholic church. Although …

A Research Agenda For The History Of Property Law In Europe, Inspired By And Dedicated To Marc Poirier, Anna Di Robilant

Faculty Scholarship

Proposes the following research agenda: (a) understanding the relation between property and long-term economic change by focusing on the relation between property law and what historians call "social property" relations; (b) understanding property concepts and ideas in the context of the larger ideological and philosophical ideas that shaped the immediate world of jurists and property lawyers; (c) looking beyond the single, contingent episodes of the history of property law and identifying longterm patterns and regularities in the way jurists conceptualized property; and (d) understanding European property culture in its many entanglements with the non-European world.

Cultural Paradigms In Property Institutions, Taisu Zhang

Faculty Scholarship

Do “cultural factors” substantively influence the creation and evolution of property institutions? For the past several decades, few legal scholars have answered affirmatively. Those inclined towards a law and economics methodology tend to see property institutions as the outcome of self-interested and utilitarian bargaining, and therefore often question the analytical usefulness of “culture.” The major emerging alternative, a progressive literature that emphasizes the social embeddedness of property institutions and individuals, is theoretically more accommodating of cultural analysis but has done very little of it.

This Article develops a “cultural” theory of how property institutions are created and demonstrates that such …

Law And Artifice In Blackstone's Commentaries, Jessie Allen

Articles

William Blackstone is often identified as a natural law thinker for whom property rights were preeminent, but reading the Commentaries complicates that description. I propose that Blackstone’s concept of law is more concerned with human invention and artifice than with human nature. At the start of his treatise, Blackstone identifies security, liberty and property as “absolute” rights that form the foundation of English law. But while security and liberty are “inherent by nature in every individual” and “strictly natural,” Blackstone is only willing to say that “private property is probably founded in nature.” Moreover, Blackstone is clear that there is …

'Dred Scott V. Sandford' Analysis, Sarah E. Roessler

Student Publications

The Scott v. Sandford decision will forever be known as a dark moment in America's history. The Supreme Court chose to rule on a controversial issue, and they made the wrong decision. Scott v. Sandford is an example of what can happen when the Court chooses to side with personal opinion instead of what is right.

Some Pluralism About Pluralism: A Comment On Hanoch Dagan’S “Pluralism And Perfectionism In Private Law”, Jedediah Purdy

Faculty Scholarship

No abstract provided.

Property Rights In Land, Agricultural Capitalism, And The Relative Decline Of Pre-Industrial China, Taisu Zhang

Faculty Scholarship

No abstract provided.

Property In Law: Government Rights In Legal Innovations, Stephen Clowney

Law Faculty Scholarly Articles

One of the most enduring themes in American political thought is that competition between states encourages legal innovation. Despite the prominence of this story in the national ideology, there is growing anxiety that state and local governments innovate at a socially suboptimal rate. Academics have recently expressed alarm that the pace of legal experimentation has become "extraordinarily slow," "inefficient," and "less than ideal." Ordinary citizens, too, seem concerned that government has been leeched of imagination and the dynamic spirit of experimentation; both talk radio programs and newspapers remain jammed with complaints about legislative gridlock and do-nothing politicians who cannot, or …

Public Rights And Private Commerce: A Nineteenth-Century Atlantic Creole Itinerary, Rebecca J. Scott

Articles

Tracing the history of a family across three generations, from enslavement in eighteenth-century West Africa through emancipation during the Haitian Revolution and subsequent resettlement in New Orleans, then France, then Belgium, can shed light on phenomena that are Atlantic in scope. A business letter written in 1899 by the cigar merchant Edouard Tinchant to General Máximo Gómez in Cuba frames an inquiry that opens out onto a family itinerary that spanned the long nineteenth century. Rosalie Vincent’s achievement of freedom in the shadow of slavery in Saint-Domingue in 1793–1803 can be seen as linked to her grandson Edouard Tinchant’s participation …

A Cuban Connection: Edwin F. Atkins, Charles Francis Adams, Jr., And The Former Slaves Of Soledad Plantation, Rebecca J. Scott

Articles

Edwin F. Atkins and Charles Francis Adams, Jr., stand out on this stage not as major players but as a particularly intriguing Boston connection. Among the truly major players, planters like Juli?n Zulueta and the Count of Casa More owned hundreds of slaves and shaped Spanish policy. On the Cuban nationalist side, few could equal the impact of Antonio Maceo, the mulato insurgent general who insisted on full emancipation at the end of the 1868-1878 war, or the thousands of rebels who fought under the orders of rebel generals Maceo and Maximo Gomez. As the master of some ninety-five patrocinados …

Whose Music Is It Anyway? How We Came To View Musical Expression As A Form Of Property, Michael W. Carroll

Articles in Law Reviews & Other Academic Journals

Many participants in the music industry consider unauthorized transmissions of music files over the Internet to be theft of their property. Many Internet users who exchange music files reject this characterization. Prompted by the dispute over unauthorized music distribution, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view. By analyzing the economic and legal structures governing music making in Western Europe from the classical period in Greece through the Renaissance, the Article shows that the law first granted some …

Le 'Droit D'Avoir Des Droits': Les Revendications Des Ex-Esclaves À Cuba (1872-1909), Rebecca J. Scott, Michael Zeuske

Articles

In Cuba, a distinctive process of gradual emancipation brought a large number of enslaved and recently-freed men and women into the legal culture. What earlier might have remained oral or physical challenges now took legal form, as slaves and former slaves built alliances with those who could assist them in their appeals. The assertions of former slaves suggest an emerging conviction of a "right to have rights", going well beyond the immediate refusal of their own bondage. In this light, the office of the notary and the courts of first instance became places where freedom itself was constituted through the …

"Well-Behaved Women Don't Make History": Rethinking English Family, Law, And History, Danaya C. Wright

UF Law Faculty Publications

In 1857 Parliament finally succumbed to public and political pressure and passed a bill creating a domestic relations court: the Court for Divorce and Matrimonial Causes. This new court for the first time in common-law history, combined the following jurisdictions: the ecclesiastical court's jurisdiction over marital validity and separation; the Chancery court's jurisdiction over child custody and equitable estates; the common-law court's jurisdiction over property; and Parliament's jurisdiction over divorce and marital settlements. Wives were given the legal right to seek a divorce or judicial separation in a court of law, receive custody of the children of the marriage, and …

Of Property And Anti-Property, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

Private property is widely perceived as a potent prodevelopment and anticonservationist force. The drive to accumulate wealth through private property rights is thought to encourage environmentally destructive development; legal protection of such property rights is believed to thwart environmentally friendly public measures. Indeed, property rights advocates and environmentalists are generally described as irreconcilable foes. This presumed clash often leads environmentalists to urge public acquisition of private lands. Interestingly, less attention is paid to the possibility that the government may prove no better a conservator than private owners. Government actors often mismanage conservation properties, collaborating with private developers to dispose of …

Property In Writing, Property On The Ground: Pigs, Horses, Land, And Citizenship In The Aftermath Of Slavery, Cuba, 1880-1909, Rebecca J. Scott, Michael Zeuske

Articles

In the most literal sense, the abolition of slavery marks the moment when one human being cannot be held as property by another human being, for it ends the juridical conceit of a "person with a price." At the same time, the aftermath of emancipation forcibly reminds us that property as a concept rests on relations among human beings, not just between people and things. The end of slavery finds former masters losing possession of persons, and former slaves acquiring it. But it also finds other resources being claimed and contested, including land, tools, and animals-resources that have shaped former …

When Should Rights "Trump"? An Examination Of Speech And Property, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

Rationing Justice—What Thomas More Would Say, Michael E. Tigar

Faculty Scholarship

No abstract provided.

The Boundaries Of Private Property, Michael A. Heller

Articles

If your house and fields are worth more separately, divide them; if you want to leave a ring to your child now and grandchild later, split the ownership in a trust. The American law of property encourages owners to subdivide resources freely. Hidden within the law, however, is a boundary principle that limits the right to subdivide private property into wasteful fragments. While people often create wealth when they break up and recombine property in novel ways, owners may make mistakes, or their self-interest may clash with social welfare. Property law responds with diverse doctrines that prevent and abolish excessive …

A New Image Of The Slave Auction: An Empirical Look At The Role Of Law In Slave Sales And A Conceptual Reevaluation Of Slave Property, Thomas D. Russell

Sturm College of Law: Faculty Scholarship

This legal history article presents a new understanding of the nature of slave property. Slave property was divided and fragmented into many different interests including those with application to real property such life estates, remainders, shifting and spring interests, and leasehold interests. With regard to these interests, the article overlays the first-year, law-school property course onto slaves as property. Property interests in slaves were also divided by credit mechanisms including mortgages and secured credit transactions. Warranties are another example of divided property interests in slaves.

The fragmented, Hohfeldian nature of slave property distributed the stake that southerners had in the …

Thinking Property At Rome, Alan Watson

Scholarly Works

It is a commonplace among writers on slavery that there is an inherent contradiction or a necessary confusion in regarding slaves as both human beings and things. In law there is no such contradiction or confusion. Slaves are both property and human beings. Their humanity is not denied but (in general) they are refused legal personality, a very different matter.

Things as property may be classed in various ways, and the classification may then have an impact on owners' rights and duties. A thing may be corporeal or incorporeal, immoveable or moveable. Some moveables may be classed as res se …

Chapter 5 - Matrimonial Bonds: Slavery And Divorce In Nineteenth-Century America (Previously Published Article), Elizabeth B. Clark

Manuscript of Women, Church, and State: Religion and the Culture of Individual Rights in Nineteenth-Century America

In the covenant of marriage, woman is compelled to promise obedience to her husband, he becoming, to all intents and purposes, her master -- the law giving him power to deprive her of her liberty, and to administer chastisement. He has so framed the law of divorce . . . as to be wholly regardless of the happiness of women -- the law, in all cases, going upon a false supposition of the supremacy of man, and giving all power into his hands.

Matrimonial Bonds: Slavery And Divorce In Nineteenth-Century America, Elizabeth B. Clark

Publications

In the covenant of marriage, woman is compelled to promise obedience to her husband, he becoming, to all intents and purposes, her master -- the law giving him power to deprive her of her liberty, and to administer chastisement. He has so framed the law of divorce . . . as to be wholly regardless of the happiness of women -- the law, in all cases, going upon a false supposition of the supremacy of man, and giving all power into his hands.

Chapter 4 - Self-Ownership And The Political Theory Of Elizabeth Cady Stanton (Previously Published Article), Elizabeth B. Clark

Manuscript of Women, Church, and State: Religion and the Culture of Individual Rights in Nineteenth-Century America

The emphasis on freedom or enslavement of the body, and the issues that sprang from that focus, were feminists' contribution to nineteenth-century American liberalism, as well as their link to radical thought. Elizabeth Cady Stanton drew arguments from the realm of political liberty and religious tolerance to make the case for choice in private life. But the vision of individual autonomy in sexual and domestic matters served also as the basis for her definition of citizenship and as a paradigm for relations among citizens and between citizens and the state. Self-ownership was the unifying theme that ran through Stanton's political …

Self-Ownership And The Political Theory Of Elizabeth Cady Stanton, Elizabeth B. Clark

Publications

The emphasis on freedom or enslavement of the body, and the issues that sprang from that focus, were feminists' contribution to nineteenth-century American liberalism, as well as their link to radical thought. Elizabeth Cady Stanton drew arguments from the realm of political liberty and religious tolerance to make the case for choice in private life. But the vision of individual autonomy in sexual and domestic matters served also as the basis for her definition of citizenship and as a paradigm for relations among citizens and between citizens and the state. Self-ownership was the unifying theme that ran through Stanton's political …

Some Aspects Of Householding In The Medieval Icelandic Commonwealth, William I. Miller

Articles

There has been much, mostly inconclusive, discussion about how to define the household in a manner suitable for comparative purposes. Certain conventional criteria are not very useful in the Icelandic context, where it appears that a person could be attached to more than one household, where the laws suggest it was possible for more than one household to be resident in the same uncompartmentalised farmhouse; and where headship might often be shared. Definitions, for example, based on co residence or on commensalism do not jibe all that well with the pastoral transhumance practised by the Icelanders. Sheep were tended and …

The Right Of Property And The Law Of Theft, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Liberty And Property In The Supreme Court: A Defense Of Roth And Perry, Peter N. Simon

Publications

No abstract provided.