Teaching from Narrative in Property Law – Part II of II

Kali Murray –

In my last post, I argued that property law needs to tell new stories, and in doing so, a key benefit would be that we would “uncover” the relationship between property and equality.  In this second post, I will turn to another benefit to using narrative as a teaching tool–the ability to “frame” abstract concepts by grounding them in experiential detail.  To do so, I would like to tell a story.

One of my favorite property narratives comes from an entry contained in the diary of Charlotte Forten, a noted antebellum African-American abolitionist. In this entry, written in 1864, Forten describes visiting a government-occupied plantation in South Carolina before she went to work with newly freed communities. During her visit, Forten marvels that when she “[a]rrived at the Superintendent’s house we were kindly greeted by him and the ladies and shown into a lofty ceilinged parlor where a cheerful wood fire glowed in a grate, and soon we began to feel quite at home in the very heart of Rebeldom.” Forten’s narrative offers a new frame by which we can view three subjects that are often poorly understood in property law: dispossession, disruption and spatiality.

The first frame, dispossession, is a doctrine that speaks the active ouster of a pre-existing owner. Dispossession lurks in the background of Forten’s story; after all she can visit in the parlor because the plantation owner no longer occupies the space. Highlighting Forten’s story is a way to introduce a discussion that focuses on the claim that dispossession—like its counterpart, possession—is an act that depends on enforceable legal mechanisms. Consider, for instance, terms of the Emancipation Proclamation. The Emancipation Proclamation, although this not always well understood, was an executive order that issued under Article II, Section II of the Constitution. The Proclamation mandated that “all persons held as slaves” would be freed and furthermore, promised that the United States will “recognize and maintain the freedom of such person.” In these terms, we can see how the Emancipation Proclamation ousts ownership of enslaved persons from (rebellious) slave owners and furthermore, it legitimizes this ouster by “recognizing and maintaining” the freedom of enslaved individuals. Here, I would further emphasize to students that doctrines related to dispossession are not mere historical inquires. Notably, the Supreme Court is currently considering whether the state of Oklahoma engaged in sufficiently dispossessive acts to have reclaimed land reserved to the Four Nations tribes of Oklahoma, absent Congressional disestablishment or diminishment.

Forten’s narrative also frames the disruptive origins of property ownership and rights. A disruption in a property regime can range from a relatively minor shift in the law (i.e., a shift from a prior appropriation regime to a reasonable use regime) to a major re-organization of property system (such as what happened after the Civil War of the United States). Forten’s diary is reads like a series of small snapshots of a property regime in the throes of disruption: the US government has taken a plantation; a black woman enters as a “lady” into the front parlor of the plantation home and that woman makes a home in “the heart of rebeldom.” Teaching property law through Forten’s story shows how the first-year property curriculum might expand to address the disruptive origins of property. As noted above, the “constitutional” story of property law would grow to include the Thirteenth Amendment. In making this connection, a property teacher might also connect the Thirteenth Amendment to other constitutional orders that managed large-scale property system disruption, such as Eastern Europe during the transition from communism to free market regime or South Africa’s attempts to redress the economic, political, and social consequences of apartheid.

The final frame is what I term spatiality—that is, property law is inscribed into the ground. What makes Forten’s story powerful is that she is claiming the plantation as a site for democratic justice. In our conversations about property law, we have to understand that property is experienced in space; consequently, the social relations between individuals “on the ground” shapes what type of property rules emerge from that space. I can name all sorts of spaces that matter in property law:

  • The space of the plantation
  • The space of the reservation
  • The space of the ghetto
  • The space of the neighborhood
  • The space of the farm

Property law is shaped by these spaces: for instance, private arrangements around covenants and public arrangements though zoning impact how we experience neighborhood.  And as we live in democracy, these sites can come site of democratic contest as different groups jockey over different space, and this democratic conflict is shaped by the interaction of social customs, law, and governance. And it explains why changes in these “spaces” are so difficult. For instance, by 1876, the plantation had once again reclaimed back from individuals like Charlotte Forten; by the 1930s, we are witness to the plantation as a place of settled social and racial hierarchies in Gone with the Wind.

I could go on from here to spin out other property stories just from Charlotte Forten’s diary alone. It would be interesting, for example, to examine how should historic preservation laws navigate contested sites such as plantations; or to examine how Forten’s story is representative the ways you may unbreak the tangle of property benefits associated with group identity. I end here, though, because it is a wonderful place to start.

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.

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