Law and Political Economy of Commodity Rushes: Reflections on “Land Grabbing” in the Global South

Lorenzo Cotula –

A few years ago I travelled to central Ghana, in the fertile farmlands west of Lake Volta. A global land rush was in full swing: large agribusiness plantation deals – “land grabs” for the critics – were announced at a dizzying pace in many low- and middle-income countries. This transition belt between Ghana’s forest zone and the northern savannah proved popular with international agribusinesses, and I came to understand the deals’ local impacts.

One day I spoke with a farmer who, until then, had made a living growing maize and yam. Shaded by a rough straw hat, the grey-bearded man retraced how a jatropha plantation took much of his land. He thought the compensation was not enough to get land elsewhere, and felt too old to establish a new farm anyway – or take a job with the plantation. He had some land left but knew they would come for that too. When that happens, he concluded, he would just stay at home.

I asked him how he felt about these developments. “I am unhappy about what happened”, he said, “but there was nothing I could do”. As a long-term migrant, he did not own the land: the power to allocate land rested with the traditional chief, who signed a lease with the company. Behind the farmer’s life-experience lay the way law structures property, territory and decision-making power. Confronting the issue alone seems impossible: it calls for a bold agenda of action and research that ties the global with the local.

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Money and Property

Money and Property

NB: This post is part of the “Piercing the Monetary Veil” symposium. Other contributions can be found here.

Lua Yuille and Rohan Grey —

Money and property law are mutually constitutive. Property rights are defined and valued in terms of their relationship to monetary instruments, while whether something counts as a monetary instrument for this or that purpose is itself a result of bundling property rights a certain way. Yet property law treats money as opaque: a neutral measuring stick that happens to prove useful in the process of doing the real work of property.* This is partly because money is grossly under-theorized and misunderstood by property law scholars. In property law, “money provides the unit in which prices appear, supplies a medium of exchange, and acts as a store of value”, but it does so as if by magic. Unlike students of economics, who are introduced to money through the self-consciously ahistorical fable that money evolved as an evolutionary response to the inefficiency and inadequacy of barter, American law students are not formally introduced to money at all. Money is taken as an idea that needs no articulation or unpacking. The result is a  ‘functional monetary illiteracy’ that fails to conceptualize the complicated relationship between money and property law, serving to obscure the role of the state and of private power in defining each.**

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Black Proprietorship and Crises of Value

Shirley E. Thompson –

9780674970953By shedding historical light on the development and practices of black banking, Mehrsa Baradaran’s excellent and thought-provoking The Color of Money demystifies some fundamental free market myths and strongly cautions against the widespread faith, among policymakers and activists alike, in banking as a means of overcoming long-entrenched and worsening racial disparities in wealth. In this response, I suggest that the history of black banking, even for its many failures, holds a unique perspective on property and its contradictions of value. It also contains a deep lesson about how economic strategies generate and are reinforced by affective practices—and how racist economic laws rested on public feelings of their own. The personal and the structural are closely interlinked.

From the debacle of the Freedmen’s Bank, to the rise of black-owned banks under Jim Crow, to the promotion of “empowerment zones” in more recent times, economically isolated black communities have consistently been urged to engage in “capitalism without capital.” Because black banks were cordoned off from their mainstream peer institutions, Baradaran shows, they could not effectively tap into the money multiplier effect, the means by which a bank stood on the good credit, financial security, and proprietor status of its patrons and generated value by lending its deposits through the system more broadly. Because black people did not own large stores of property, any wealth accumulated by black banks swiftly left black control as it sought greater prospects elsewhere: “once in the banking system,” Baradaran writes, “money flows towards more money.”

It is difficult to overstate the policy implications of Baradaran’s work. The story she tells of the institutional segregation and siphoning off of black wealth disarms the widely held premise that black poverty derives from some sort of cultural deficiency or a lack of personal financial literacy. By exposing the lure of “for-us, by-us” banking and “community empowerment” as “a decoy,” “an empty promise,” and a faulty basis for banking legislation and activism, she paves the way for a bolder vision and more creative experimentation in attempting to remedy a seemingly intractable racial inequality. Indeed, proposals such Darrick Hamilton’s and William A. Darity Jr.’s endorsement of “baby bonds” and Baradaran’s own call for the return of postal banking flow from such an understanding of the structural impact of racism on US political economy.

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It’s Mine, and Yours

Rashmi Dyal-Chand –

I teach in a law school where most students and faculty pride themselves on falling somewhere along a spectrum of progressive, extremely progressive, socialist, and left anarchist. Thus, every year, usually within the first month of starting my first-semester property law course, I find myself surprised that the vast majority of my students appear to be intuitively and deeply committed to the idea that property ownership is and should be fundamentally about exclusion. Many of the same students who demonstrate depth of understanding about issues of discrimination, inequality, and power, voice the intuition that exclusion is somehow essential to those of us in the 99% (including their family and friends) without really considering the ways in which exclusion produces and maintains maldistribution.

Regularly, the first instance when students voice this commitment during class is when we discuss Jacque v. Steenberg Homes, in which an elderly couple sued a manufacturer of mobile homes for trespass when the defendant crossed an unused portion of their land for the purpose of delivering a mobile home to their neighbors. I have long used Joe Singer’s casebook, and I start my course with a unit on trespass that begins with State v. Shack. Thanks to Singer’s pioneering analysis of public accommodations law as central to understanding the principle of access in property law, I spend much of the trespass unit discussing the balance in trespass law between exclusion and access. Yet when we get to Jacque v. Steenberg Homes, students voice their intuition that the Jacques had the right to exclude the mobile home company from their property. “Why?” I ask, “Their property was in no way harmed by the defendant’s use of it.” They typically answer with some version of: “Because the defendant is a big corporate entity and the Jacques have very little power. The only power they have is over their property. We can’t take that power away.” “Well,” I ask, “what about the fact that mobile homes are a major source of affordable housing in this country? What if the company was doing its best to limit the costs of installing affordable housing on the neighboring property in order to avoid transferring those costs to the Jacques’ neighbors, who may not have been able to afford those costs?” For years, when we had this conversation, the students remained resolute. They said, for example, that the larger point still remained that corporations have too much power in this country and that property rights are our defense to such power.

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The Racial Wealth Gap and the Question of Time Zero

Michelle Wilde Anderson

Each year teaching Property Law, I have taught many of the big cases and topics on race and property law, such as M’Intosh and Dred Scott; segregationist turbulence in rights of reasonable access; public accommodations law; racially restrictive covenants; the Fair Housing Act. I never quite had a cohesive idea about this—they each seemed formative.

Meanwhile, evolving case law and politics have made it clear that we still have a basic disagreement at the heart of American law and politics, and my students carry that question with them into class: On matters of race, did we reset the playing field of property to start a merit system where fair access to markets would govern? Did we create a new Time Zero—for instance, when LBJ signed the Fair Housing Act as a gesture of solace and appeasement seven days after Martin Luther King, Jr.’s assassination?

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Property Law as Poverty Law

Michelle Wilde Anderson –

I recently interviewed a man in a weakened rural town who makes sausages for a local meat packing business on the 3am shift. He told me about a homeless woman who had come to the meat shop one dark morning with blood-soaked hands. Delirious with cold and exhaustion, she had punched in the glass on an abandoned burrito shack to shelter from the cold rain overnight.

For her, housing and land still matter. The forces of weather and gravity mean that 100% of people need shelter, with a patch of dirt for it to stand on. More than ever, it seems that housing and land matter most for understanding poverty and rising inequality. An average of more than 550,000 people were homeless each night in 2017, and 6,300 people are evicted in the US every single day. I live in San Francisco, where just yesterday I passed by 40 or so tent shelters on sidewalks, plus two Lamborghinis worth at least $250,000. I’ll guess that those cars don’t spend their nights outside.

The 1L introductory Property Law course isn’t usually about how law helps protect money and drive poverty, but I think it could be. Teaching it as a class mostly centered on land helps it get there.

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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.

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Teaching from Narrative in Property Law – Part I of II

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.

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Raze and Rebuild the Property Course

James Grimmelmann

“Certainly if we view the common law on the eve of reform, we see the spirit of Heath Robinson at his most extravagant. … It is a real question why nobody before Bentham was provoked, and a part of the answer is that nobody before Blackstone described the system as a whole.”

S.F.C. Milson, Historical Foundations of the Common Law xii (1969)

It is impossible to speak critically about a disorganized mess, except in one of two unsatisfying ways. One can point out a detail here or there that seems exceptionally out of joint, or one can gesture uselessly at the whole awful heap and suggest in vague terms that perhaps it ought to be scrapped and replaced with something better. Real reform requires real understanding.

The traditional organization of the first-year Property course is an affirmative obstacle to comprehension. It starts with an act of misdirection, encouraging students to think that property law is only about houses and land, please pay no attention to the vast amounts of abstract wealth sloshing through the financial system. It continues with a protracted tour of the Museum of Doctrinal Arcana, featuring such exhibits as the distinction between remainders vested subject to open and remainders vested subject to complete defeasance.

It is not that it is hard to find interesting political angles in this tangle. From “first” possession to permanent physical occupations, the use and abuse of power is everywhere in the course. A skilled teacher who wants to bring out progressive themes can do so in every class. So can a skilled teacher who wants to emphasize economic analysis, or the choice among institutions, or the long shadow of history. (Teachers gonna teach, teach, teach, teach, teach, teach.)

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The Property Course as Critique

Justin Desautels-Stein

I wasn’t at all sure what to do after I was first asked to teach 1L Property Law. Not only was it an unexpected addition to my courseload, my background was in legal history and critical theory on the one side and in international law on the other, and the idea of picking up a first year private law course, just a couple years before going up for tenure, seemed crazy. Some colleagues suggested a copy and paste method for teaching the course: “Just grab a syllabus from someone you respect, assign their book, and stay one or two classes ahead of the students.” At first this seemed like the way to go. It would certainly save time and allow me to focus on my tenure pieces. But once I started reading the syllabi closely, the random doctrines seemed to beg for a narrative, and as it happened, I was already at work on just such a narrative in the history of American Legal Thought.  It was a narrative that I had been developing within a broad project to revitalize the first wave of critical legal studies (circa 1975-1984). Thankfully, I had some very helpful (and certainly critical) support from veterans Kristen Carpenter and Dan Ernst, and the eventual result was a Property Law course developed out of my critical legal studies perspective on legal history. More broadly, it was this approach that also ended up working itself into what became a book, The Jurisprudence of Style (“JoS”). My explanation here about how I came to teach property “from the left” will draw heavily on that book, which is largely a history of law and political economy in the United States from a structuralist point of view.

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