Conquest and Slavery as Foundational to the Property Law Course
Forthcoming in The Oxford Handbook of Race and Law in the United States (Devon Carbado, Khiara Bridges & Emily Houh eds., Oxford University Press)
26 Pages Posted: 11 Sep 2020
Date Written: July 24, 2020
This chapter addresses the foundational place of the histories of conquest and slavery to American property law and the property law course. It begins by briefly reviewing how these topics have been erased and marginalized from the study of American property law, as mentioned by casebooks in the field published from the late nineteenth century to the present. It then shows how the history of conquest constituted the context in which the singular American land system and traditional theories of acquisition developed, before turning to the history of the American slave trade and the long history of resistance to Black landownership that its abolition fueled. This chapter suggests ways to correct for the tendency of traditional property law curricula to focus exclusively on English doctrines regulating relations between neighbors, rather than the unique fruits of the colonial experiment -- the land system that underpins its real estate market and its structural reliance on racial violence to produce value.
Keywords: property law, legal history, curriculum, slavery
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