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.
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