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Diversity Readings in Property

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Mary Whisner. Updated Aug. 24, 2014.

This guide is part of a series of guides with readings about issues of race, class, gender, sexuality, and disability in traditional first-year courses.


Property: General

Regina Austin, Nest Eggs and Stormy Weather: Law, Culture, and Black Women's Lack of Wealth, in Feminism Confronts Homo Economicus: Gender, Law, and Society 131-46 (Martha Albertson Fineman & Terence Dougherty eds., 2005), K349.F453 2005 at Classified Stacks

Derrick Bell, Racism: A Major Source of Property and Wealth Inequality in America, 34 Ind. L. Rev. 1261-71 (2001), LexisNexis

Derrick A. Bell, Jr., Property Rights in Whiteness: Their Legal Legacy, Their Economic Costs, 33 Vill. L. Rev. 767- (1988), excerpted in Critical Race Theory: The Cutting Edge 71-79 (Richard Delgado & Jean Stefancic eds., 2d ed. 2000), KF4755.C75 2000 at Classified Stacks

Steven W. Bender, From Sandoval to Subprime: Excluding Latinos from Property Ownership and Property Casebooks, in Vulnerable Populations and Transformative Law Teaching: A Critical Reader 111-24 (Soc'y of Am. Law Teachers & Golden Gate U. Sch. of L. eds., 2011), Classified Stacks (KF336 .V85 2011),

Alfred L. Brophy et al., Integrating Spaces: Property Law and Race (2011), Classified Stacks (KF5740 .B76 2011)

Publisher's description:

Integrating Spaces: Property Law and Race enables you to seamlessly integrate historical and contemporary issues of race and ethnicity into your Property syllabus alongside your casebook. With historical perspective and doctrinal analysis, it maps the directions in which property law has turned in response to issues of race and ethnicity, and demonstrates how racial and ethnic categories continue to affect contemporary property law. . . .


Sheryll D. Cashin, Middle-Class Black Suburbs and the State of Integration: A Post-Integrationist Vision for Metropolitan America, 86 Cornell L. Rev. 729-76 (2001), LexisNexis

Part I presents an overview of black suburbanization and the status of residential integration in the United States. It then analyzes the origins and extent of affluent black suburbs. Finally, Part I surveys the normative theories offered to justify these communities, including black separatism, black classism, and "localist" theories offered by civic republicans and public choice scholars. Part II examines why middle-class black suburbs are likely to fall short of the suburban ideal. Canvassing the economic isolation, poor schools, higher crime rates, and higher poverty associated with black middle-class communities, Part II clarifies the costs of such separatism. Part II then critiques the normative arguments offered in favor of black suburban enclaves in light of the empirical realities. It concludes that even affluent African Americans are harmed in some respects by racial isolation. Accepting the inevitability of residential segregation of African Americans, Part III presents a post-integrationist vision for metropolitan America.

p. 735

Feminist Perspectives on Land Law (Hilary Lim & Anne Bottomley eds., 2007), available through Summit

Publisher's description:

The first book to examine the critical area of land law from a feminist perspective, it provides an original and critical analysis of the gendered intersection between law and land; ranging land use and ownership in England and Wales to Botswana, Papua New Guinea and the Muslim world. The authors draw upon the diverse disciplinary fields of law, anthropology and geography to open up perspectives that go beyond the usually narrow topography and cartography of land law. Addressing an unorthodox variety of sites where questions of women's access and rights to land are raised, this book includes chapters on:
  • shopping malls
  • ancient monuments
  • nature reserves
  • housing estates
  • the family home.
  • An interdisciplinary and enlivening account of feminist perspectives on land law, it is an excellent addition to the bookshelves of students and researchers in legal studies, gender studies, social anthropology and social geography.

    Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707-91 (1993), SSRN, HeinOnline

    Issues regarding race and racial identity as well as questions pertaining to property rights and ownership have been prominent in much public discourse in the United States. In this article, Professor Harris contributes to this discussion by positing that racial identity and property are deeply interrelated concepts. Professor Harris examines how whiteness, initially constructed as a form of racial identity, evolved into a form of property, historically and presently acknowledged and protected in American law. Professor Harris traces the origins of whiteness as property in the parallel systems of domination of Black and Native American peoples out of which were created racially contingent forms of property and property rights. Following the period of slavery and conquest, whiteness became the basis of racialized privilege - a type of status in which white racial identity provided the basis for allocating societal benefits both private and public in character. These arrangements were ratified and legitimated in law as a type of status property. Even as legal segregation was overturned, whiteness as property continued to serve as a barrier to effective change as the system of racial classification operated to protect entrenched power.

    Next, Professor Harris examines how the concept of whiteness as property persists in current perceptions of racial identity, in the law's misperception of group identity and in the Court's reasoning and decisions in the arena of affirmative action. Professor Harris concludes by arguing that distortions in affirmative action doctrine can only be addressed by confronting and exposing the property interest in whiteness and by acknowledging the distributive justification and function of affirmative action as central to that task.

    J. Dee May, Disability Related Law Affecting Real Property, Advocate (Idaho St. B.), Jan. 1999, at 10. [Westlaw: 42-JAN Advocate (Idaho) 10]

    Federal, state, and even local governments have adopted disability-related laws and regulations that affect virtually every real estate transaction and every interest in real property. This article is intended as an overview of some of the most important disability-related laws of which attorneys advising clients dealing with real property should be familiar. The focus of this article is on provisions relating to architectural and structural barriers.

    Elizabeth Mayes, Private Property, the Private Subject, and Women, in Feminism Confronts Homo Economicus: Gender, Law, and Society 117-30 (Martha Albertson Fineman & Terence Dougherty eds., 2005), K349.F453 2005 at Classified Stacks

    powell, john a., New Property Disaggregated: A Model to Address Employment Discrimination, 24 U.S.F. L. Rev. 363 (1990), HeinOnline

    Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography):
    Analyzes Charles Reich's theory of the nature and function of property as detailed in The New Property. Argues for a more nuanced approach that would distinguish different types of property. Discusses several other modifications to Reich's theory, including recognition of the link between property and relationships, and of the rightholder's power over nonrightholders. Applies powell's "Revised New Property Model" to several cases.

    Joseph William Singer, Re-Reading Property, 26 New Eng. L. Rev. 711-29 (1992), LexisNexis

    What would property law look like if we took gender issues as central, rather than peripheral, concerns? Mary Joe Frug's analysis of the role of gender in contracts casebooks suggests that we would learn a great deal about property if we ask this question. But why only gender? Why not also ask about other differences that have been made to matter? What about race? Or class, disability, sexual orientation, religion? In fact, if the social treatment of women and men has differed significantly along these lines, it seems that if we talk about gender without noticing these cross-cutting differences, we will only be talking about some women and some men and therefore failing to notice the different social constructions that gender takes with men and women of different races and classes.

    p. 712

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    Alien Land Laws

    Keith Aoki, No Right to Own?: The Early Twentieth-Century "Alien Land Laws" as a Prelude to Internment, 40 B.C. L. Rev. 37 (1998), HeinOnline

    This Article recounts briefly the history and effects of the "Alien Land Laws" enacted in western states in the second and third decades of the twentieth century. These laws linked the virulent nineteenth century Sinophobia that culminated in the 1882 Chinese Exclusion Act with the mass internment of Japanese Americans in the mid-twentieth century. Initially, these laws barred "aliens ineligible to citizenship" from owning fee simple title in agricultural land and prohibited leases for such land lasting longer than three years. Ultimately, the ownership bar expanded to include all "real property," a term broad enough to encompass sharecropping contracts and shares of stock in corporations owning agricultural land as legally cognizable interests in land, and therefore, off-limits to alien ownership.

    pp. 37-38 (footnotes omitted)

    Hispano Title

    Gregory A. Hicks, Memory and Pluralism on a Property Law Frontier, the Contested Landscape of New Mexico's Costilla Valley, 47 Am. J. Legal Hist. 383-411 (2005), SSRN, HeinOnline, reprinted in 81 N.M. Hist. Rev. 299-335 (2006)

    This article explores the limits of legal victory and the problem of legitimacy of legal outcomes. It chronicles the decades-long dispute between Hispano settlers on northern New Mexico's Sangre de Cristo land grant and the succession of entrepreneur owners of the grant in the last decades of the 19th century and the first decades of the 20th century. The dispute occurred on a legal and cultural frontier defined by the transition from Mexican to U.S. dominion in the years following the end of the Mexican War and by the opening of the region to larger scale economic development at the end of the 19th century. The new Dutch and American owners of the grant sought to displace patterns of land and resource use developed during the Mexican colonial period, and suited to the frontier circumstances and subsistence local economy of that earlier period, with patterns of use intended to encourage new colonial settlement and the intensive development of the region's natural resources. In spite of winning every legal challenge to their new ownership, the new entrepreneurs struggled to establish effective control over land and resources to which they held formal title. The resistance of the Hispano settlers produced continual litigation and exacted efforts from the entrepreneurs to appease the sense of right of the Hispano settlers faced with extinction of their customary rights of access to the land and resources. The settlers' resistance, grounded in a sense of right based on the circumstances of their settlement and in an unwillingness to be displaced from their homes, proved enduring, and stymied the efforts of the entrepreneurs to develop the land as they would have preferred. Using correspondence and litigation records, this article reconstructs the dispute between the U.S. Freehold Land & Emigration Co. and its successors and the Hispano settlers, who organized themselves as the Defensive Association of the Land Settlers of the Rio de Costilla. The article situates the episode aCostilla s one of several in American legal history where popular property norms diverge from the property rules offered by the legal system. The article is strongly grounded in the specifics of the Costilla dispute, but it uses its sense of locality to explore larger questions about law, dissent, and the challenges that are posed when a legal system is asked to absorb and reflect pluralist values.


    Native American Title

    Frances Lee Ansley, Race and the Core Curriculum in Legal Education, 79 Cal. L. Rev. 1512-97 (1991), HeinOnline.

    • Property class
      • Roots of title in the New World – pp.1521-23
      • Slavery – pp. 1523-26
    • Race and the Constitution – pp. 1539-54


    Elizabeth Loeb, As "Every Schoolboy Knows": Gender, Land, and Native Title in the United States, 32 N.Y.U. Rev. L. & Soc. Change 253-83 (2008), HeinOnline

    This article begins with an obvious but necessary premise: the U.S. state has historically produced itself as sovereign over a specific territorial mass through the violent conquest and continuing occupation of lands to which Native Americans also lay and have laid sovereign claim. At its core, this article seeks to ask how a Liberal conception of law legitimates and maintains this foundational violence within its own texts. . . .

    Put less obtusely, this article will provide a close reading of two Supreme Court cases that continue to shape and ground the nature of sovereign relations between the United States and Native American peoples: Tee-Hit-Ton Indians v. United States and Santa Clara Pueblo v. Martinez.

    . . .

    The bulk of this article will analyze the relationships between gender, property, and sovereignty that Tee-Hit-Ton and Santa Clara continue to enforce.

    p. 253-54

    Joseph William Singer, Property and Coercion in Federal Indian Law: The Conflict Between Critical and Complacent Pragmatism, 63 S. Cal. L. Rev. 1821 (1990), LexisNexis

    Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography):

    Discusses the dangers of "complacent pragmatism," which often amounts to unreflective common sense. Uses the recent case of Lyng v. Northwest Indian Cemetery Protective Ass'n, in which California was allowed to build a highway through sacred Native American land, to illustrate that non-Critical analysis can lead to injustice for those outside mainstream "common sense." Suggests pragmatic analysis can become more successfully critical by struggling to understand a problem's context, and by engaging it from multiple perspectives, especially those of the oppressed.

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    Native Hawaiian Land Rights

    Maivan Clech Lam, The Kuleana Act Revisited: The Survival of Traditional Hawaiian Commoner Rights in Land, 64 Wash. L. Rev. 233-88 (1989), LexisNexis

    Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography):
    Analyzes the historical context of the Kuleana Act of 1850 and cases interpreting it. The Act was designed by King Kamehameha III to give native commoners fee simple rights to land. Points out that although the Act may have been well intentioned, authorities ignored traditional Hawaiian land use, which regarded all commoners as tenants in common to all land, and frustrated the goals of Kamehameha's government. Further, the commoners were only apportioned a small amount of the available land to divide into fee simple holdings. Argues that the old regime of land rights survives the system imposed by Western demands, and that Hawaiian land must now be reassessed and granted to the descendants of the earlier commoners.

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    Polluted Property

    Rachel D. Godsil, Viewing the Cathedral from Viewing the Cathedral from Behind the Color Line: Property Rules, Liability Rules and Environmental Racism, 53 Emory L.J. 1807-85 (2004) SSRN, HeinOnline

    Abstract: For more than twenty-five years, property scholars have been applying the theorem developed by Ronald Coase and systematized in the now-classic law review article, Property Rules, Liability Rules and Inalienability: One View of the Cathedral, by Guido Calabresi and A. Douglas Melamed. More recently, property theorists and proponents of behavioral law and economics have begun to challenge the assumptions stemming from Coase, Calabresi and Melamed and to develop alternative accounts of nuisance and takings theory. This literature has entirely sidestepped, however, the role of race and poverty in the location of polluting industries. Using the story of Waterfront South, a segregated, environmentally beleaguered community in Camden, New Jersey, I explore the historical role of government in creating racially segregated and polluted inner cities. This article's unique contribution is to fashion a remedy to common law nuisance claims that: (1) forces polluters to internalize the harmful effects of their actions, (2) responds to the market distortion in property value caused by the long history of racism; and most importantly, (3) optimizes the utility of residents.
    According to what I call a Residents' Choice Rule, courts should pre-set a damages award at the replacement cost of each residents' home in a nearby non-segregated community, and allow the residents to choose either injunctive relief or damages by majority vote. Building upon insights from cognitive decision theory, this hybrid rule allows residents of the community to decide whether they would be better off with a damages remedy or an injunction and minimizes the externally constructed impediments to their decision-making. The rule also has implications for takings jurisprudence because I contend that when the government exercises its power of eminent domain in segregated and underserved communities, compensation should be adjusted to reflect the devaluation caused by systematic racism.


    Public Lands

    Debora Threedy, United States v. Hatahley: A Legal Archaeology Case Study in Law and Racial Conflict, 34 Am. Indian L. Rev. 1-75 (2008), SSRN, HeinOnline

    Abstract (from SSRN): In this case study, the author examines the ways in which race affects the progress and outcome of litigation under the Federal Tort Claims Act. The litigation is brought by individual Navajo plaintiffs against the federal government for the destruction of over a hundred horses and burros. The background conflict over access to public land is laid out, and then the article looks at the difficulty in assessing damages, the impact of the litigation on the underlying land claims, and the question of judicial bias.
    Abstract (from published article): This article is a case study of United States v. Hatahley using the methodology of "legal archaeology" to reconstruct the historical, social, and economic context of the litigation. In 1953, a group of individual Navajos brought suit under the Federal Tort Claims Act for the destruction of over one hundred horses and burros. The first section of the article presents two contrasting narratives for the case. The first relates what we know about the case from the reported opinions, while the second locates the litigated case within the larger social context by examining the parties, the history of incidents culminating in the destruction of the Navajo horses, and the litigation that preceded Hatahley.
    The remainder of the article examines the role of racial conflict in various aspects of the case. Part II looks at the problem of cross-cultural damages and how the courts grappled with assigning money damages where the plaintiffs live in a non-market-based society. Part III examines the intersection of race and power, particularly the paradoxical role of law in both maintaining and challenging racial hierarchies. Part IV examines the question of judicial bias from a unique perspective. The case ultimately was assigned to another judge due to the trial judge's alleged partiality in favor of the Navajos. The section explores whether the lack of prejudice, when contrasted with a background societal prejudice, could be read as partiality. The epilogue points out how this question has a modem application.

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    Slavery

    Frances Lee Ansley, Race and the Core Curriculum in Legal Education, 79 Cal. L. Rev. 1512-97 (1991), HeinOnline.

    • Property class
      • Roots of title in the New World – pp.1521-23
      • Slavery – pp. 1523-26
    • Race and the Constitution – pp. 1539-54

    , Cheryl I. Harris, Finding Sojourner's Truth: Race, Gender, and the Institution of Property, 18 Cardozo L. Rev. 309-409 (1996), HeinOnline

    • Uses Sojourner Truth's famous "Ain't I a Woman" speech as a jumping off point. Contrasts the legal status of enslaved black women (who were property and could not marry) with white women (whose property rights were limited by marriage law).
    • Sorts through conflicting accounts of Truth's speech recorded by whites, develops the theme of the narrative as property.


    Patricia J. Williams, On Being the Object of Property, 14 Signs: J. Women in Culture & Soc'y 5-24 (1988), JSTOR, Literature Online, excerpted in Feminist Legal Theory: Readings in Law and Gender 165-80 (Katharine T. Bartlett & Rosanne Kennedy eds., 1991), Classified Stacks (K644.Z9 F46 1991)

    • Personal essay touching on many topics, including slavery.

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