Race and Property After the Civil War: Creating the Right to Exclude

64 Pages Posted: 21 Feb 2019 Last revised: 27 Mar 2019

See all articles by Brian Sawers

Brian Sawers

Georgetown University Law Center

Date Written: December 15, 2018


This Article uncovers a lost history of property, showing the role that race and white supremacy played in the development of modern trespass law. Property law does not change in response to economic opportunities, evolving to ever-more efficiency. Instead, property law reflects political power. At times, the political process may reorient property law to produce a larger surplus. Oftentimes, politics produce redistribution from the weak to the powerful. States closed the range to coerce blacks into working for white landowners for low wages and under bad conditions. Southern society as a whole suffered from the planter’s greed. Low wages and cruel laws impoverished not only black and white sharecroppers, but the entire region. Changing property law was a core element of the program of legal aggression that began with the black codes and continued with Jim Crow.

Keywords: Reconstruction, Open Range, Closed Range, Trespass

JEL Classification: K11, N91

Suggested Citation

Sawers, Brian, Race and Property After the Civil War: Creating the Right to Exclude (December 15, 2018). Mississippi Law Journal, Vol. 87, No. 5, 2018, Available at SSRN: https://ssrn.com/abstract=3330737

Brian Sawers (Contact Author)

Georgetown University Law Center ( email )

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