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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