Kali Murray –
My teaching in Property Law is shaped by stories (if I am feeling fancy, I call them narratives). Whether true, false, or fictive (to borrow Carlos Ginzburg’s wonderful delineation), narratives enrich my teaching in property law because they offer a way to interrogate how property regimes manifest political, social and economic hierarchies within different societies.
This focus on these “thread of narrations” has been influenced by property law scholarship in the last twenty years. Groundbreaking work on property law that we have seen in the last twenty or so years in a number of disciplines including critical legal studies, progressive property theory, critical race studies, feminist theory, anthropology, geography and social/cultural history, led me as a young scholar to ask two questions:
- Whose stories do we tell in Property Law?
- If we tell new stories, how would that impact how Property Law is taught?
Early in my teaching career I encountered a law review article that prompted me to reconsider whose stories get told in Property Law: Evelyn Alicia Lewis’s masterful article, Struggling With Quicksand, in which Lewis addresses a default rule that manages shared ownership of property called a tenancy in common, which describes the relationship that arises where two or more people may have ownership interests in one property. In Struggling with Quicksand, Lewis uses a personal narrative of her family’s fraught disagreements over the family homestead to explore how default rules related to tenancies in common have often disfavored communities of color. Specifically, according to Lewis, default tenancy in common rules often fail to address when one sibling co-owner retains possession of the property, thus potentially disfavoring those co-owner siblings that do not retain possession of the homestead. The default tenancy in common rule does not manage conflict well between the in-tenant and the out-tenant, and consequently, this rule may harm families of color because such families may lack access to lawyers that might help them navigate around default rules.
By telling this new story, Lewis taught me how a seemingly neutral rule could reinforce pre-existing racial hierarchies in property ownership. Property law often tells the stories of winners: the person who wins possession over other claimants, the triumphant property owner’s subsequent rights to exclude, use and transfer that property, and how the property owner may simultaneously benefit and suffer state action. By telling new stories we can perform revolutionary work in teaching property law in two key ways. First, decentering common narratives may help students to recognize themselves in the sweep of property law, and may help them grapple with the pervasive ways in property law can structure their own experiences. Second, it is of notable importance that if we tell new stories in the first-year curriculum itself, it might expand what it means to “think” a lawyer. I insist that “thinking” like a lawyer is more expansive than conquering syllogisms; rather, it instead an interrogation of how we as a society constructs the solutions to problems. Thinking of property’s winners and its “so- called” losers aids in constructing property rules that work for us all.
In addition, telling new stories means that that we can “uncover” different areas of property doctrine that are often ignored. Scholarship such as Cheryl Harris’s Whiteness as Property and Marc Poirier’s The Cultural Property Claim Within the Same-Sex Marriage Controversy has suggested that group identities such as whiteness or heterosexuality can produce tangible and intangible property rights in exclusion, use, and transfer. For instance, in his work, Poirier traces how marriage and the legal rights enjoyed by heterosexual married couples (such as the right of descent) were denied to homosexual couples. Consequently, a social caste (heterosexuality) and property rights become intertwined: Obergefell disentangles this thread by eliminating the distinction between heterosexual and homosexual orientation in the acquisition of marital rights.
Exploring the ways in which social status becomes property highlights “new” property doctrine. For example, it has always irritated me that while most major property law textbooks offer substantive treatment of the Taking Clause of Fifth Amendment of the U.S. Constitution, the Thirteenth Amendment is usually ignored. The Thirteenth Amendment, though, is an ideal vehicle to explore how group identity can acquire property status in two ways. First, the Thirteenth Amendment eliminates the “group identity” of slaves and indentured servants. Indeed, if we link the actions of the Thirteenth Amendment to Joseph Singer’s recent work in titles of nobility, we can see how the Constitution may expand property rights by removing certain types of social status. For example, by eliminating the social caste of “nobles,” our Constitution created a society radically different than that in England, in which significant inequities persisted in land ownership because it was tied so closely to social status. Second, we can teach how citizenship is often intertwined with both property rights and racialized definitions of group identity, by connecting the Thirteenth Amendment to the subsequent passage of the Civil Rights Act of 1866, which allowed enslaved persons the ability to “to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.”
The exclusion of the 13th Amendment from most conversations about property law is telling. As most political philosophers understand our constitutional property tradition, liberty—the ability to live a life that is free governmental intrusion—is central to our constitutional property tradition. This is the why the government cannot place soldiers in your home or why the government must compensate you when it “takes” your property. However, the 13th Amendment suggests that constitutional property systems are also directed towards “equality” that that is the removal of property-like statuses that permit domination of one party over another. The removal of the status of a slave and all of the “badge and incidents” of slave, coupled with the granting of “civil rights” such as the ability to be a property owner is an important element of freedom. Here, I point to the experience of Japanese Americans before World War II. One of the reasons why Japanese-Americans were uniquely subordinated—that is interned—during the World War II was that even before the war, states such as California, Oregon, and Washington prohibited immigrant Japanese-Americans from owning property. In many ways, the erasure as property ownership for Japanese-Americans proceeded the erasure of citizenship for Japanese-American through the internment camps.
Kali Murray is an Associate Professor of Law at Marquette University Law School.
This post is part of our ongoing “1LPE” Series on bringing the LPE approach to the 1L curriculum. Click here for more posts in the series.