The Faculty Lounge

Arizona trespass case and the application of laches to state land claims

I’m very excited to be visiting here as a guest blogger.  I thought I’d start off by discussing a very interesting Arizona case I came across while exploring recent developments in Property Law.  Sussex v. State of Arizona is a trespass case that’s currently pending in the Arizona Court of Appeals, and I’ve found it to be a great teaching tool as well as an interesting factual setting in which to think about laches.  The facts are contested, but the Sussex family, who are the defendants, have averred that their family has been living on the property that the state claims to own since 1894 (part of the property appears to be claimed by the City of Tempe—it’s the driveway to the house that is allegedly on state land).  Arizona sued siblings Steven Sussex and Judy Troutman and Mr. Sussex’s wife Virginia Sussex for trespass to the land in 2005.  In August 2012, a jury awarded the State $1,500 in damages after a judge ruled against the Sussex family’s laches argument.  The State apparently originally received the land from the federal government as Common Schools Land.

Although there are several issues in the case, the laches argument interests me the most.  The basic argument is that the State’s ability to enforce its claim to the land is barred by laches because the Sate waited so long to enforce it, to the detriment of the Sussex family.  The trial court ruled that laches doesn’t apply to the State when acting in its sovereign capacity and also suggested that the Sussex family’s laches argument was improper because it was basically an attempt to adversely possess state land despite the bar on adverse possession of government land. 

Although the defense of laches traditionally has not been available against government land claims, the issue has been coming up in Federal Indian Law cases in the past few years.  In that context, the Supreme Court has begun to apply the doctrine against tribes on land-related claims (loosely speaking), without even requiring a factual showing as to the first element of laches—the unreasonably long delay in assertion of rights.  See City of Sherrill v. Oneida Indian Nation, 544 U.S. 197, 217-221 (2005); see generally Kathryn Fort, Disruption and Impossibility:  The New Laches and the Unfortunate Resolution of the Modern Iroquois Land Claims, 11 Wyo. L. Rev. 375 (2011).  Given the legal and economic obstacles tribes faced in bringing such claims until recent years, this application of laches seems quite troubling, but , in the Sussex case, the equities appear (to me at least—my students have not always agreed) to cut the other way.  Here we have a family that has been using land for over one hundred years, and the State decided only fairly recently to sue for trespass, which would cut off their access to their home.  The State’s responses--that, because it acted in its sovereign capacity with respect to the land, laches shouldn’t apply and that it shouldn’t be expected to have been keeping track of whether trespassers were utilizing its vast land holdings seem like they would allow the State to work an injustice in this particular case, if accepted (although that doesn't necessarily mean the traditional bar against asserting laches against a sovereign should be jettisoned).   And the prejudice the Sussex family has suffered as a result of the delay is linked to—and illustrates nicely-- some of the justifications of adverse possession—particularly those of Radin and Holmes (even though laches and adverse possession are clearly separate issues). 

The case has been a great teaching tool for me in Property, where I use it to introduce the notion of laches and to discuss the policy implications of applying the doctrine to a sovereign, as well as to illustrate some of the justifications for adverse possession.  I also use it as a jumping off point to explore creative approaches the State’s lawyers might have taken instead of litigation. And, especially given my Indian law background, the case also provides an interesting framework in which to think about the application of laches.

For further information, here’s a news article, and the Sussex family’s opening brief is here:  Download 02-25-13 Opening Brief.dktd (1).  The State’s brief is available at 2013 WL 1886302.

 

The Perils of Living in a College Town

North Carolina’s Research Triangle is a glorious place to live.  Besides the benefits of three major research institutions within a half-hour of each other (UNC-Chapel Hill, Duke and NC State), it’s warm, green, diverse, friendly and overflowing with great food and culture. 

But living in a college town can have its dangers.  This week’s police blotter in Chapel Hill reports that a developer building a small residential enclave near my neighborhood has had the development’s new street sign stolen off the pole three times since January.  The new street:  Road Less Traveled.  For those who took the Road Less Traveled, I want to know:  Did it make all the difference?

This is what happens when people read.  Poetry corrupts; good poetry corrupts creatively. 

--Bernie

Jefferson's Fragments

    It is a virtual commonplace of legal theory and the history of legal and political thought today that Jefferson is not to be counted among its great subjects. With the notable exception of Sanford Levinson, constitutional theorists and historians of legal thought today generally pass by Jefferson’s comment to Madison that “the earth belongs in usufruct to the living” as at best an overly idealistic road wisely not taken. David Strauss and Jed Rubenfeld treat Jefferson as a fundamentally unrealistic and anti-historical thinker (by Rubenfeld’s lights, akin to Nietzsche, which is telling), while Stephen Holmes dismisses Jefferson as simply an “anti-constitutionalist.” David Konig, the leading historian of Jefferson’s legal career and the editor (along with Michael Zuckert) of his legal commonplace book, argues that Jefferson’s stance is that of a speculative philosopher which had to be subsequently reigned in by his more judicious friend and collaborator. Hannah Arendt noted Jefferson’s ward republic idea as a precious gem forgotten by both American politics and the revolutionary tradition, and Jennifer Nedelsky and Richard Matthews (among others) have noted Jefferson’s radical theory of property rights in his extended dialogue with Madison, but those are the apparent limits of Jefferson’s identity as a legal thinker. Paul Finkelman writes about he impact of Jefferson on American constitutional law, but that impact is felt through his subsequent political career.

    What many of Jefferson’s critics on this front have in common is a feeling that Jefferson’s idea was simply ahistorical- an example of what Michael Oakeshott calls political rationalism at its worst. Robert Tsai has an appraisal of Jefferson’s idea and the project of legal revolution, but he suggests Jefferson is ultimately inadequate here because it requires us to imagine ourselves stepping out of our context and the assemblage of law and history that brought us to it. Similarly, Kunal Parker views Jefferson and Paine as exhibiting a revolutionary theory of the timelessness of consent. I just don’t see it that way at all. What is Jefferson doing hunting down manuscript copies of the colonial laws of Virginia and the records of the Virginia Company if he thinks he is conveniently stepping out of the thickness (or the need for) historical representation? What about his concern for the writing and rewriting of legal text so apparent in his plans for councils to go over proposed amendments to the state constitution, or his wish, again, expressed to Madison, for a plebiscite to make suggestions before approving the US Constitution? And what flippant anti-historical idealist composes the Manual for Parliamentary Practice?

     I see Jefferson as first and foremost a practically engaged theorist of the politics of historical representation, and he distilled that theorizing into an understanding of the ideal citizen as essentially a user of inherited materials- land, yes, property, yes, but also of law and of language. In that sense, Jeb Rubenfeld’s linking of Jefferson and Nietzsche is apt, but precisely because Jefferson, at his best, thought basically historically, or genealogically and counter-genealogically, or even archaeologically, about law and politics.

     Somewhat (and I emphasize the somewhat) in the spirit of Corey Robin’s recent separate posts on Jefferson as a racial thinker and Nietzsche as the closeted inspiration for neoliberal economic theory, we could, anachronistically, say that Jefferson’s thinking about the use and disadvantages of history for life and his vision of a transformative human subject was capable of both radically democratic and reactionary, violent implications. Unlike Nietzsche the philologist and philosopher, Jefferson the man of action, slaveowner, and proponent of continental empire had a direct hand in realizing some of those implications himself. In the final analysis (if there is such a thing), Jefferson’s career is incomprehensible without understanding it as a project of constituting and protecting the racial, gendered, and geographic boundaries of a potent ideological vision of the true and ideal citizen.

    But problematizing and forgetting are two very different things. In our current moment, it might just be that the memory of Jefferson’s conjoined concepts of law as use and of the citizen as a particular kind of reader can appear in a new light. The historical practice appropriate here is one not just of recovery but of active recollection. If Jefferson if of any use, it is to teach us that that is where our political thinking can begin again. 

    I want to thank Al Brophy and Dan Filler for letting me chime in here at the Lounge for the past month or so- I have been and always shall be a regular reader of this great blog. 

U.S. Supreme Court Upholds Constitutionality of DNA Collection Upon Arrest (Maryland v. King)

The U.S. Supreme Court ruled this morning, in Maryland v. King, that it is constitutional under the Fourth Amendment’s protection against “unreasonable” searches and seizures for the state to compel collection of DNA from arrestees. The probable cause required to arrest someone under the Fourth Amendment permits fingerprinting and taking photographs during the booking process, and the Court held that collecting DNA (limited to 13 loci in supposed “junk DNA”) was not relevantly different. The decision was 5-4, with Kennedy writing for the Court and joined by Chief Justice Roberts and Justices Thomas, Alito, and Breyer. Justice Scalia dissented in his usual spirited way, joined by Justices Ginsburg, Sotomayor, and Kagan.

I may write more about this decision if I have time. In the meantime, here is a still-relevant primer I co-authored in 2004 on legal and ethical debates involving DNA and the criminal justice system (including issues related to both offender DNA databases and post-conviction access to potentially exculpatory crime scene DNA). Note that Justice Breyer (whose alignment with the "conservative" wing (sans Scalia) of the Court may surprise some), in addition to being the Court’s resident patent expert (except him to play a large role in the upcoming Myriad gene patenting decision), has been following debates about DNA and the criminal justice system for some time. He authored Chapter 2 of the book I just linked to.

Life Insurance and Hillman v. Maretta

Boy, make sure you file your change of beneficiary designations.  State law won't save you (or perhaps I should say can't).  Then again, maybe we need a federal common law that revokes beneficiary designations of those covered by the Federal Employees' Group Life Insurance Act upon divorce?

I'm particularly interested in Justice Alito's concurrence, which supports the insured's beneficiary designation even in the face of divorce because it was an explicit choice (albeit a lot happened in the insured's life after the designation).  Lots of state probate codes defeat beneficiary designations -- and wills -- in the wake of a divorce.  Are we going to see more suspicion of default rules that defeat an expressed intent?  

We're going to be hearing a lot more (or at least my trusts and estates students will be hearing a lot more) about Hillman v. Maretta down the road.

Property Law and American Empire

Michael Burger and Paul Frymer have a new paper up on ssrn, "Property Law and American Empire," which is about to appear in the University of Hawaii Law Review.  Cribbing now from their abstract:

Current scholarship by legal commentators and political scientists recognizes that the weapons of American empire have involved non-militaristic activities as much as militaristic ones. Such non-militaristic activities include the hegemonic influence of trade agreements, the imposition of legal and procedural norms, and the dissemination of ideological and cultural predispositions through corporations and diverse medias. In this paper, we examine an under-explored area on the “soft” belly of the American leviathan, focusing specifically on how property and intellectual property law have operated on physical and ideological frontiers to comprehend, participate in, and legitimate the expansion of American empire. We offer new accounts of two historical instances of empire-building: the acquisition and seizure of property from Native Americans in the early- and mid-19th century, and the expropriation of intellectual property rights to plant genetic resources from indigenous communities in the global South in the late 20th century. These two stories, taken together, offer unique insights into both the process and the substance of law’s operation on the frontier of empire. They illuminate how the authority of law has fused with private power and legal legitimacy to enable the nation to expand swiftly, energetically, and powerfully. These insights, in turn, lead toward the more general conclusion that the rhetoric of property has functioned to subjugate peoples and places, cultures and natures, to an imperial regime.

This is an exciting and obviously wide-ranging article, which a lot of property professors will enjoy reading -- it fits well with Jed Purdy's article from a while back that focused on Johnson v. M'Intosh and the law of imperialism.  

And because it's going to be in the Hawaii Law Review, this reminds me that when missionaries went to Hawaii in the 1820s they brought with them the market and property rights.  The missionaries were bringing western property law to Hawaii in the era when the Supreme Court was issuing Johnson v. M'Intosh (and the parallel opinion in The Antelope). Property law served as a tool of empire in Hawaii, just as did law generally.  Law, like the transatlantic ship, the printing press, and the gun, worked as a technology to expand the power and reach of the empire.

The image is of a sugar factory in Hawaii in the pre-Civil War period, which I think relates well how western technology appeared on the land in Hawaii.  And of course I always love talk of the use of landscape art to understand property law.

The Great Gatsby and Anti-Feudalism in American Property Law

No sooner have I written about jurisprudence and Django than I see that everyone's talking about The Great Gatsby.  Perhaps it's time to revisit a property question from the book, which I posed in a short article on teaching servitudes in the St. Louis University Law Review back in 2002 :

The man who built Gatsby's house was rumored to have offered to pay the taxes of the surrounding houses for five years if they would thatch their roofs.  That would have made their property look like peasant cottages and his house, by comparison, like a manor house. The neighbors did not take him up on the offer, for “Americans, while willing, even eager, to be serfs, have always been obstinate about being peasantry.” And so, while we are deprived of an example of such a servitude, because of the independence of the neighbors, I wonder whether such a servitude would run with the land? There are affirmative promises going both ways: the neighbors agree to thatch their roofs and the owner of the “manor house” agrees to pay the taxes.

Now let's try a somewhat more outrageous example. Suppose Gatsby's predecessor did not want the continuing burden of paying taxes, so he offers to sell the property at a reduced rate up front and in return extracts a promise (an affirmative covenant) that whenever people appear on the property outside of the house they will wear peasant clothes. Does that affirmative covenant touch and concern the land? To make it look even more like a feudal incident, suppose they must appear on the first day of June and pay homage to the owner of the manor house? Such servitudes certainly affect people in their use of the property, but perhaps they provide an insufficient current benefit to landholders for us to say that the servitude touches and concerns the land.

Funny how references to servitudes keep coming up in motion pictures, isn't it?  The image is of Oheka Castle, which wikipedia informs me was a partial inspiration for Gatsby's house.  I can't quite make out any thatched roofs around the estate, so I'm not sure where that inspiration came from!  

Never can tell where you're going to hear talk about the anti-feudal impulse in American property law, can you?  And on that Stacey Gahagan and I hope to say something more soon.  And when I have some more time I want to talk about another feature of Gatsby -- Tom's inept reference to Lothrop Stoddard's The Rising Tide of Color, which is a book I've been reading of late for a paper that Elizabeth Troutman and I are writing on the eugenics movement in North Carolina.  Pretty scary stuff in that book.  

Meanwhile, I guess Gatsby is just further evidence that if you wait long enough scholarship will come into fashion.  I'm just waiting for a movie about the Tulsa race riot of 1921, which I'm sure is coming one of these years.  

Our Obligation to Posterity

Greg Alexander has a paper up on ssrn, "Unborn Communities," that engages a topic of much interest to me: whether we owe a duty to future generations.  I blogged about this topic a few years back when the GW Law Review had a symposium on "What does our legal system owe future generations."  I framed the issue somewhat differently: by asking did previous generations owe us anything?  The trusts and estates professor in my is interested in ways that previous generations bound themselves for our benefit.  Obviously trust provide one example of a previous generation binding itself -- voluntarily, I know -- for the benefit of a later generation.

Alexander is interested in moral, rather than legal, obligations.  But Alexander uses analogies to trusts, too, to try to shift out the property we leave to later generations and some of the limits we try to impose on that property (such as limitations on whether the property can be sold).   Here is his abstract:

Do property owners owe obligations to members of future generations? Although the question can be reframed in rights-terms so that it faces rights-oriented theories of property, it seems to pose a greater challenge to those theories of property that directly focus on the obligations that property owners owe to others rather than (or, better, along with the rights of owner). The challenge is compounded where such theories emphasize the relationships between individual property owners and the various communities to which they belong. Do those communities include members of future generations? This paper addresses these questions as they apply to a property theory that I have developed in recent work, a theory that we can call the human-flourishing theory of property.

The conclusion drawn here is that property owners do indeed owe moral obligations to future generations. But the scope of those obligations is restricted, certainly more so than some theorists, such as Jeremy Waldron, have claimed. Unlike Waldron, for whom such obligations are a matter of rights, I argue that the obligations that property owners owe to past generations are grounded on dependence. Specifically, I argue that if we expect fellow members of our communities in future generations to continue what I call the life-transcending projects that we began, then it is incumbent on us to provide that same background conditions that we enjoyed to those future generation community members to whom we transfer the responsibility of continuing or fulfilling our life-transcending projects. Moreover, as the distance between the living and the unborn increases, our obligations to future generational communities generally weaken. Our obligations to them are limited to the background conditions that enable them to continue the life-transcending projects transferred to them. These conclusions place me in an intermediate position between those who take a robust view of the obligations that the living owe to future generations and those who think that the living owe no such obligations at all.

As I said in my blog post back in 2009, previous generations have done a heck of a lot for us, no doubt.  And they did so in part, perhaps large part, because they were building something better for the future.  One of my favorite quotes along these lines is Ralph Waldo Emerson's observation in "The American Scholar" that insects store up for future generations.  He found the common elements of the human mind to store up knowledge "like the fact observed in insects, who lay up food before death for the young grub they shall never see."  There's a great tradition in America--and in human society more generally, I suppose, though I don't have the expertise to testify to it--of making sacrifices for future generations, of doing something so that people whose names we will never know can have a better life.  One thinks, of course, of the American Revolution here -- and of course the Puritans' Errand into the Wilderness.  (The image is of the Sycamore tree at the Brandywine Battlefield Park.)

Come to think of it, there were some antebellum writers and politicians who talked about what was owed the future.  They even spoke about this in the context of the "famous" Wyoming massacre -- famous because it was the subject of a discussion I had with my favorite librarian about a painting of a young woman in Wyoming in the wake of the massacre.  (That's a long story and portrays me in a rather unflattering light, so I'll reserve it for another time.)  Maybe the most directly on-point antebellum address comes from William B. Sprague, The Claims of Past and Future Generations on Civil Rulers.  As is so often the case with Sprague -- who looms large in my paper on Phi Beta Kappa addresses -- it's a very thoughtful defense of considering the future on the present.

Roisman on Property and Human Rights

I'm delighted to see that Florence Roisman's casebook on Property and Human Rights has appeared from Carolina Academic Press.  Cribbing now from the Press' website:

This book contains materials regarding intersections of property law with civil and human rights claims in the United States and internationally. The chapters cover The Nature of Property, The Development of Civil Rights Principles in the U.S., International Human Rights Law, and Human Rights in the U.S. Roisman addresses homelessness, expropriation, and discrimination on the bases of race, sex, sexual orientation, disability, and other characteristics. Among the recent cases presented are the U.S. Supreme Court’s 2004 decision rejecting a claimed property interest in the recognition of a protective order, a South African case enforcing a right to housing, a 2003 Maryland decision assessing the need for just cause for eviction in Low Income Housing Tax Credit developments, a 2002 9th Circuit opinion regarding disability discrimination, and the Michigan Supreme Court decision overturning Poletown. 

This book looks terrific and I'm looking forward to reading it and I hope teaching from it as well.

Spivack on Slayer Statutes

Carla Spivack of Oklahoma City University's law school has a new paper up on ssrn, "Killers Shouldn't Inherit from Their Victims . . . Or Should They?"  Here is the abstract:

The article offers a profound reassessment of so-called “Slayer Rules,” laws that, in all states, bar killers from inheriting from their victims. For the first time in the literature, this piece questions the underlying rationale for these rules by examining the context of family violence and mental illness in which these killing occur, and argues that, given that context, these rules are often neither legally nor morally justified.

My argument is as follows: at first glance, the idea behind Slayer Rules seems reasonable, indeed, morally obvious: a killer should not be able to profit from his or her crime. This truism, however, may not necessarily be true. Where murder and inheritance overlap, we often find family. When family members kill one another, the equities are often cloudy. The sociopathic child who kills a grandparent to hasten an inheritance is an anomaly. In reality, murders within families are usually a product of that family’s harmful, often violent, dynamics, from which, because of the failures of state and society, a family member sometimes can find no escape except murder. Most women who kill their husbands or partners do so to protect themselves or their children from violence. Most children who kill a parent act to stop severe and prolonged abuse by that parent; most of the other child killers are acutely mentally ill. Most mothers who kill children suffer from post-partum psychosis, a severe mental illness whose symptoms include visual and auditory hallucinations and delusions. Once the tragedy has occurred, the legal system often fails to address the defendant’s plight, offering inadequate representation, barring effective defenses at trial, and extorting guilty pleas that may not reflect actual guilt. Given this reality, it’s not clear that barring the defendant’s inheritance is just, fair, or even sound policy. 

Carla's article is part of the growth (or perhaps I should say rebirth) of serious work in trusts and estates that we've been seeing in the last half-dozen years or so.  I think this is happening for several reasons -- first, a lot of newer scholars have realized that the area is ripe for analysis along lines of gender (and to a lesser extent race and class) that have been so prominent in allied areas, like property.  Second, there is a realization that there is room for a lot of empirical and doctrinal work as well--especially doctrinal work; and third, this is an area that has increasing appeal for students, in part because there seem to be better job opportunities here than in many other areas (or maybe I should say less bad career opportunities).

I'm particularly intrigued by Carla's framing of this -- where the conventional wisdom is that slayers shouldn't be able to inherit from the people they kill, Carla reminds us that the statutes apply almost exclusively against family members.  (A slayer might be a non-family member beneficiary of a will, trust, or life insurance contract.  Or one might be a non-family member and joint tenant with the decedent.)  Because of the preponderance of family members among the slayers, Spivack suggests that blanket provisions against inheriting may work inappropriate hardship.  Carla raises some really serious questions about whether slayer statutes -- which I usually fully support -- are too broad.  And whether we should allow slayers to inherit from family member decedents.  I wonder how much this will matter, because I'd imagine that a lot of people who would inherit absent a slayer statute will still be liable up to the value of what they inherit in a wrongful death suit to the decedent's other heirs.  Though I suppose this could be handled by limiting wrongful death claims when a family member is slayer.  That would be controversal, to say the least.

Anyway, if you teach trusts and estates or family law you'll find the article worth reading.  I'm excited by how much new and interesting scholarship is being written in trusts and estates these days!

Imagining the World We Teach and Write

If you were describing the raison d’etre for why your course matters, what would that look like? This semester, I find myself teaching two core first year courses -- Property and Torts.  Though my colleagues joke that I teach ‘Prorts,’ I suspect they are not far off.  I might even suggest that what I teach is the law of property and the law concerning forced transfers of property through civil systems.  Perhaps though, that is just a reflection of how I see the world -- as dominated by one theoretical construct versus another.  

This became clear to me last week as I attempted to think with students about policies animating the law of accident, nuisance, and strict liability as they fit within a broader legal scheme.  I started with a circle: the ‘it.’  Next, I added ways we transfer the ‘it’ -- a parallel line of consent.  Sometimes, as in the world of contracts, we transfer the ‘it’ through express consent; and sometimes, as in criminal law, we force the transfer of the ‘it’ through implied consent (we might call this representative democracy, deliberative democracy, or some other politically animating principle).  

There is also another axis -- the public/ private axis.   We might say that the public private axis represents the division between how we allocate the ‘it’ -- whether the “it” is allocated to individuals or whether the “it” is distributed across society.  Said another way, do benefits and burdens accrue towards individuals, or do they accrue against soceity collectively? 

So if we were locating the law of accident, we might draw a wide circle around the middle, crossing both axis, but not covering the whole of the it.  After all, torts includes both allocated and distributed policies and is animated by policies undergirded by express and implied consent.  Nuisance and Strict Liability might find themselves at the poles, balancing both allocative and distributive policies, and balanced also between public and private spheres.  

 

And the ‘it’ -- well the ‘it’ for me is property, or more broadly entitlements.  And sometimes, the 'it' may be things that look like property or entitlements.   In my mind, Property becomes the canvas upon which all other courses are built. Granted, my canvas has many holes -- and relies upon many fictions.  But it is the narrative I find myself retelling.   I am curious - do you see your subject in similar constructs? 

 

Restrictive Covenants and HOAs

This is tragic for all concerned, a lesson in the problems with home owners associations, and how people become entrenched in positions.  But from the perspective of a property professor, it also has all the makings of a great final exam question.

Some Keys to Django?

I think people are over-doing it with the comparisons of Samuel L. Jackson's character (Stephen) in Django Unchained to Uncle Tom.  I mean, have the people drawing these parallels ever read Uncle Tom's Cabin?  I'm guessing no.  If they had, they'd know that Uncle Tom was tortured to death because he refused to tell Simon Legree where two of Legree's runaway slaves, Cassy and Emmeline, were.  That is, the Uncle Tom of Stowe's novel has more in common with Django Freeman than with Stephen.  There were a few slaves in Stowe's novel who were complicit with Legree -- Sambo and Quimbo -- though they later repented their role in torturing Uncle Tom.  And therein makes me wonder about Stephen planting the idea in the mind of the white people at Candyland about what to do with Django.  I wonder if Stephen's suggestion that Django be sold to the LeQuint Dickey Mining Company might have been a way of saving Django in some way?  It certainly spared him from immediate mutiliation and death shortly afterwards and ended up being the means for his escape.  I'm just wondering if there is something buried deep in Stephen that was trying to help out Django in some way.  Maybe not -- I confess that I could too optimistic in my interpreation here.

All of this leads me to wonder, though, which sources did Tarantino read when he was writing Django? (The title of this post leans on Stowe's A Key to Uncle Tom's Cabin, which she published to discuss the sources she drew upon for the novel.) I'm guessing Uncle Tom's Cabin, because Calvin Candie's statement that "Under the laws of Chicakasaw County, Broomhilda is my property.  And I can do anything with my property I so desire" he's paralleling Legree's statement that "isn't he MINE?  Can't I do what I like with him?  Who's to hinder, I wonder?"  (More on Uncle Tom's Cabin here.)  And maybe some of the other antebellum literature, like William Goodell's non-fiction American Slave Code in Theory and Practice.  If you're looking for evidence of the brutality of slavery and the legal system, that's one place to start.

What about secondary sources?  I'm guessing a big no to U.B. Phillips' American Negro Slavery.  And I'm going to have to say no to the portrayal of slavery from Robert Fogel and Stanley Engerman's Time on the Cross.  I think Tarantino drew a bunch on works about slave life that emphasize brutality but also the strength of enslaved people.  What about Eugene Genovese's Roll, Jordan, Roll?  And though it's been largely rejected by literature written in the wake of the Civil Rights movement, I'm wondering if Stanley Elkins'  Slavery: A Problem in American Institutional and Intellectual Life might have been the basis for some of Stephen's character?  That's been a classic for generations.  Walter Johnson's Soul by Soul: Life Inside the Antebellum Slave Market's a distinct possibility.  Maybe Ariela Gross's Double Character because there's all that talk about warranties and contracts for sale of slaves.  Someone who know a fair amount about law obviously consulted on this.  I continue to be deeply interested in Schutlz' adherence to law -- in part that's obviously self-interest -- and his final act in violation of the law.  This part of the movie correlates with themes in Melville's Billy Budd and Stowe's Dred: A Tale of the Great Dismal Swamp (and debates over the Fugitive Slave Act of 1850).

And what about slaves and mining?  I'm wondering if Taratino drew upon the evidence of the California Slavery-Era Insurance Registry, which reveals that mine owners were frequent customrs of life insurance companies for their slaves.

All of this reminds me, though, of a suggestion of a friend of mine who's a fabulous historian of slavery that there's some excellent work to be done on "loyal slaves."  Perhaps the character of Stephen will provide an impetus to work on that important and strangely neglected topic.

The illustration of this post is the cover of Maurie McInnis' fabulous book, Slaves Waiting for Sale.

Zoning and Marginality

Understanding the move towards zoning in the early 20th century is a venture in identity-preservation.   I suggested in my last post that Justice Sutherland in his description of the Village of Euclid’s comprehensive zoning plan (and what that plan protects against), and even city layouts preserve a layer of homogeny in areas society collectively chooses to protect the most.  This is the nature of comprehensive zoning -- the most intense limitations in spaces we deem most necessary to protect.  

But there is a flipside to the creation of homogeny -- marginality. Robert Park illuminates the disconnectedness of early 20th century cities with that of the more stable residential community: 

A very large part of the populations of great cities, including those who make their homes in tenements and apartments houses, live much as people do in some great hotel, meeting but not knowing one another.  The effect of this is to substitute fortuitous and casual relationships for the more intimate and permanent associations of the smaller community.    

As Betsy Kilasmith suggests, “the luck and randomness of the ‘great hotel’ overpower any claim urban domestic spaces might make to intimacy or permanence.” This disconnection of apartment living was only reified by what one might perceive apartments and tenement houses to bring -- immigrants and squalor.  Peter Hall described these places in New York’s Lower East Side as:

perversely result[ing] from a so-called improved housing design: developed in a competition in 1879, the notorious dumb-bell tenement allowed twenty-four families to be crowed on to a lot of 25 feet wide and 100 feet deep, with ten out of fourteen rooms on each floor having access only to an almost lightless (and airless) lightwell.  Not infrequently, two families crowded into these wretched apartments; in 1908 a census of East Side families suggested that half slept three to four people to a room, nearly a quarter at five or more to a room; they depended on a few communal taps and fixed baths were non-existent.  

This immense lack of separation was far more profound, though, than mere loss of space. One could say that the deprivation of “light and air” was emblematic of a deeper perception -- that tenement houses represented spaces without individualized place; rooms without separation, where families merged unnaturally without a separate life.  

Jacob Riis, an early advocate of tenement reform considered tenement housing to be an inescapable moral problem of unsatisfactory living conditions; he described the common tenement noting:

every blade of grass, every stray weed, every speck of green, has been trodden out, as must inevitably be every gentle thought and aspiration above the mere wants of the body in those whose moral natures such home surroundings are to nourish.  In self defense, you know, all life eventually accommodates itself to its environment, and human life is no exception.   

As Kenneth Gandal observed of Riis’s descriptions, where there is no separate family life, “moral character is impossible as well.”  Thus, Riis, and to an extent Justice Sutherland, reflect that the protection of space was a contemporaneous protection of the morals that space represents -- guarding openness creates a zone of protection without which our virtues may be diluted by the incongruous and disharmonious life that apartment dwellers may bring.  Green-space, air, and light thus not only become metaphors of cultural superiority, but defining characteristics for the space most protected through the police power of the state.  

Forthcoming:  Reforming Tenement Spaces

Forging Collective Identity Through Space Allocation

 

I want to thank Dan, Al, and the rest of the loungers for inviting me to blog in the Lounge this month.  

As Al mentioned, for the last three years, I have been working on an ethnographic exploration of space-claiming in public spaces.  (Yes, my actual research agenda requires me to spend significant amounts of time at beaches, parks, and hanging out with artists).  My scholarly work raises this central question: how do we value our notions of collective identity?

Robert Park, the University of Chicago sociologist expounded on the meaning of the city laboratory in his book The City as Social Laboratory:

[I]t is in the urban environment  -- in a world that man has made -- that mankind first achieved an intellectual life and acquired those characteristics which most distinguish him from the lower animals and from primitive man.  For the city and the urban environment represent man’s most consistent and, on the whole, his most successful attempt to remake the world he lives in more to his heart’s desire.  But if the city is the world which man created, it is the world in which he is henceforth condemned to live.  Thus, indirectly, and without any clear sense of the nature of his task, in making the city, man has remade himself.  

Park observes that the city’s laboratory evidences mankind’s desire to remake himself.  This observation suggests that the way we occupy space -- the people we invite to join us in places, the people we exclude, and the manner in which we do so -- communicates an impression of our collective selves onto the world around us.  

Let me provide a tangible example.  In Village of Euclid v. Ambler Realty Co., the Supreme Court considered the rational basis of a comprehensive zoning plan proposed by the Village of Euclid.  The Plaintiff, Ambler Realty Co. attempted to invalidate the plan because a tract of land it owned was zoned for three different types of uses: one parcel of the tract was zoned for heavy industrial, one parcel was zoned for all residential and light commercial, and one parcel was zoned for only single family and duplex residential.  One of the salient issues confronting the court was whether the prohibition of apartment housing across the zones was rationally related to the state's police powers.  The court said:

With particular reference to apartment houses, it is pointed out that the development of detached house sections is greatly retarded by the coming of apartment houses, which has sometimes resulted in destroying the entire section for private house purposes; that in such sections very often the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district.  Moreover, the coming of one apartment house is followed by others, interfering by their height and bulk with the free circulation of air and monopolizing the rays of the sun which otherwise would fall upon the smaller homes, and bringing, as their necessary accompaniments, the disturbing noises incident to increased traffic and business, and the occupation, by means of moving and parked automobiles, of larger portions of the streets, thus detracting from their safety and depriving children of the privilege of quiet and open spaces for play, enjoyed by those in more favored localities-until, finally, the residential character of the neighborhood and its desirability as a place of detached residences are utterly destroyed.  Under these circumstances, apartment houses, which in a different environment would be not only entirely unobjectionable but highly desirable, come very near to being nuisances.

Did Justice Sutherland believe that these light and air stealing apartments had no children?  Or did he just believe that families occupying the air and light abundant zones should have a greater right to occupy open space than those that occupy apartment buildings?  In a follow-up post, I will talk about who those people were.  For now, lets simply agree that the people occupying apartment houses were likely poor and marginalized.   Justice Sutherland in defining the apartment house as a "parasite"  and nuisance on the space around it, also implicitly reified that the image that we most protect is likely the image for which we most relate.

Before I taught Village of Euclid this week, I showed the video at the top of this post.  In the video, the narrator says “the grid plan is... pure homogenizing in a city where there is no homogenization available, there is only total existence, total cacophony, a total flowing of human ethnicities, tribes, and beings, and gradations of awareness, and consciousness, and cruising.”  The grid plan represents systematic order -- much like many of us, it lays forth well mannered streets that politely intersect one another at discreet right angles.  And for others of us, the grid plan confronts our sensibilities, reminding us that the order of the city does not reflect us all  So confronted, whose image does the space we occupy reflect?  And where are we in its collective image?

Commemorating and Teaching the Emancipation Proclamation (and Farewell!)

Today marks the 150^th anniversary of the Emancipation Proclamation. In case a primer is in order, the National Archives has posted images and a transcript of the original document. Over the next year, libraries, museums, and universities will be commemorating the Proclamation with public lectures, conferences, workshops, and exhibitions: As an example, the Schomburg Center at the New York Public Library has on display “Visualizing Emancipation,” an exhibit of eighty antebellum and postbellum photographs of enslaved and free persons. It would be great to know if any of you are teaching the Proclamation to your law students; if so, how and in what classes?  I am not teaching Property this semester, but plan to include a mini-module on the Proclamation when I teach it again this Fall.

Today also marks the end of my stint in the Lounge. I have fully enjoyed the community and appreciate the opportunity to engage here; and even though my trivia skills remain lackluster, I look forward to rejoining the ranks of the blog’s avid readership.  Keep those hard-hitting posts coming, fellow Loungers . . . and Happy New Year one and all!

Mill Trivia Question

Well, let's start the new year off right ... that is, with a trivia question.  I've pretty much exhausted my stock of nineteenth century courthouses, so I think I need to branch out a little here.  I'm going to ask a question about a mill, in large part because I have a photograph of it -- but also because I've written now and then a little bit about the law of mills (and the images of mills as indicators of progress).

Where most people who write about mill law are interested in the rights of mill owners to use water -- and this is actually one of my interests -- I am also interested in the financial arrangements that made it possible to get the capital together necessary to build a mill and the agreements between co-owners of a mill.  Francis Daniel Pastorius, for instance, had a form in his Young Country Clerk's Collection (which was written contemporaneously with the mill pictured here -- though I don't think it was related in any way to this mill) for sale of a part interest in a mill.

All of this, then, brings me to the question: where's the mill pictured at right.  Pretty impressive structure when you consider it was built in the early eighteenth century, don't you think?

Teaching Prisons and Slavery (Or, This is Not About Django)

This is not about Django. As much as I am dying to write a post about Tarantino's new film, my academic writing beckons. 

Thank you, Patrick O'Donnell, for your earlier post and bibliography on teaching prison law.  I'd like to add to Professor Dolovich's call for a curricular commitment to bringing prisons and prisoners into legal education:  We should not forget to include a consideration of how antebellum slavery shaped the development of America's early penal institutions.

I am hard at work on a project that looks at the administration of slavery in antebellum Virginia through the institutional prisms of the county jail and the state penitentiary. Many (many) years ago, while trying to nail down a dissertation topic, I became interested in the practice of confining alleged fugitive slaves in local, southern jails until they were "claimed" by their owners. (Many folks confined in antebellum Virginia’s local jails were never accused of any crimes, and were most often merely suspected of being runaways.) Hunted down on the roads and in the countrysides, people of discernible African ancestry were presumed to be fugitive slaves; no law prevented their seizure and confinement upon such suspicion.  

The project tells (what I hope to be) a new story about the history of incarceration in the early national/antebellum south and the emergence of Virginia’s administrative regime, while also offering fresh insight into how these institutions shaped – and were shaped by – the institution of slavery.  Antebellum Virginians relied upon jails to perform functions separate and apart from holding accused persons awaiting indictment or trial; such facilities became sites for the realization of the state’s interests in slave property security. Jails were frequently used throughout this period as holding pens for slave traders; as clearinghouses for putative owners’ property claims in suspected fugitives; and as marketplaces for violence, as slaveowners sought – and paid for – corporal and terroristic punishment to be inflicted upon their recalcitrant bondsmen. No similar security measures were implemented for other forms of antebellum property, reinforcing for us (as modern readers) that slave property was peculiar and that institutions of law helped to create and reinforce this peculiarity. 

Few have considered the experiences of blacks in what might be considered "civil" custody during this period; beyond those excellent monographs on slaves-as-criminal defendants (Schwarz, etc.), this other history has gone (somewhat) untold. Penal institutions in this country have troubled pasts; introducing them to our students will both spark their interests and motivate further scholarly excursions (and activism) into the field.

“Civil Rights” Acts (Or, How The Post Office Gets It Wrong)

The Postal Service has commissioned a commemorative “forever” stamp in recognition of the sesquicentennial of the Emancipation Proclamation.  Stamps are (appropriately) not shipped until January, but are available for pre-sale now. The Emancipation Proclamation stamp is one of three stamps in a “civil rights set” that the Postal Service has commissioned for 2013.  One of the other stamps commemorates the birth of Rosa Parks.  The third stamp in the set has yet to be revealed. 

I think the stamp is a great idea (and I will use these throughout the next year); I wonder, though, why the Proclamation is lumped together with the civil rights movement. Presumably, the historians at the Postal Service are aware of the Proclamation’s history (including the 1862 Preliminary Proclamation) and desired effect; it was never intended to – and never did - grant “rights” to any person. The Proclamation effectuated a war goal, and clarified for Union forces how enslaved refugees (or “contraband”) ought to be treated under the rules of war (in parts of the Union-occupied Carolinas, for example, several thousand persons were “freed” due to the Proclamation).  While its symbolism sent a powerful message to enslaved people in the Confederate and border states (and more broadly, to the nation and Europe), relatively few walked free because of its dictate. In fact, outside of Union-occupied territory, tens of thousands of enslaved men and women would subsequently have to risk life and limb to reach Union lines in order to realize the Proclamation’s promise. Steve Hahn’s excellent book (A Nation Under Our Feet, on Amazon) is great on this point – between Fort Sumter and Appomattox, enslaved folks took emancipation into their own hands and (at least physically) freed themselves. Do these self-emancipators have a place in traditional tellings of this story?  Do they have a place in our legal histories of this period? Was the Proclamation a "civil rights" act?

The Student’s Paper

    Many of us, I’m sure, have been the faculty advisor for a student’s independent study paper. I don’t do this often, not because I don’t like doing it, but because I have the earned reputation of being a hard grader. Over this fall, however, one of my brave students wrote a very good paper dealing with the standards associated with granting zoning variances.

    For the non-property law scholars out there, the traditional and almost universal rule is that a variance cannot be granted without a showing of a substantial hardship (or similar standard). Her paper argued that this standard was inappropriately high on the merits and is, in reality, almost universally ignored at the local level.

    When I have taught zoning in my property class, I presented the standard view fairly uncritically. It seemed easy to justify: zoning is to serve the public good and if exceptions are too easily made, it rapidly becomes a tool that serves the ones who are wise (or rich) enough to apply for a variance. Somewhat surprisingly, I’ve continued to mirror the standard line even after I started serving on my local zoning board which grants many a variance of dubious merit. I don’t think I can teach the subject the same way this year, so it is time to rebuild the material on variances.

    I have always seen independent studies as a good way of allowing a student to do in-depth research on a topic. After almost thirty years in the academy, its time to acknowledge their broader potential.