Download this Paper Open PDF in Browser

Property Outliers: Non-Citizens, Property Rights and State Power

58 Pages Posted: 25 Oct 2012 Last revised: 27 Jan 2014

Allison Brownell Tirres

DePaul University College of Law

Date Written: March 1, 2012

Abstract

In the last decade, state and local governments have passed thousands of laws attempting to regulate immigrants within their boundaries. These regulations have been the subject of much litigation, as well as media attention and legal scholarship. Legal scholars have written extensively on the criminal and employment provisions of such laws, as well as on the general question of whether states can or should have any role to play in immigration law. Missing from most accounts, however, is attention to another common focus of these state and local regulations: property law. When we look at the role that property plays in state immigration regulation, we uncover some surprising and troubling truths. The area is a legal muddle, characterized by incoherent and inconsistent court rulings. These inconsistencies leave significant gaps in the protection of non-citizen property rights, not only for unauthorized immigrants but also for legally resident ones. This article draws much-needed attention to these gaps. It compares the two major areas of state regulation of non-citizen property: real estate and landlord/tenant law. A comparison of case law in these two areas demonstrates that the courts have failed in the last century to create a coherent framework for the assessing the relationship between non-citizens, property, and state power. I argue that the resulting inconsistencies stem, in part, from the failure of the courts to take into account a property perspective. I suggest what a property perspective would look like, drawing in particular on the core principles of alienability, equality and non-discrimination. This article posits that alienage law is a property outlier, since few of the norms of modern property law have been applied to non-citizens. We should be concerned about this fact, not only because of what it says about the weakness of non-citizen rights but also because of its implications for the failed modernization of property law.

Keywords: property law, immigration, citizenship, legal history

Suggested Citation

Tirres, Allison Brownell, Property Outliers: Non-Citizens, Property Rights and State Power (March 1, 2012). Georgetown Immigration Law Journal, vol. 27, p. 77; DePaul Legal Studies Research Paper No. 2012-12. Available at SSRN: https://ssrn.com/abstract=2166312 or http://dx.doi.org/10.2139/ssrn.2166312

Allison Brownell Tirres (Contact Author)

DePaul University College of Law ( email )

25 E. Jackson Blvd.
Chicago, IL Cook County 60604-2287
United States
3123628116 (Phone)
3123625448 (Fax)

HOME PAGE: http://law.depaul.edu/faculty-and-staff/faculty-a-z/Pages/allison-brownell-tirres.aspx

Paper statistics

Downloads
106
Rank
217,153
Abstract Views
515