Fee Simple Failures: Rural Landscapes and Race

62 Pages Posted: 3 Nov 2020 Last revised: 18 Nov 2021

See all articles by Jessica A. Shoemaker

Jessica A. Shoemaker

University of Nebraska - College of Law

Date Written: October 18, 2020


Property law’s roots are rural. America pursued an early agrarian vision that understood real property rights as instrumental to achieving a country of free, engaged citizens who cared for their communities and stewarded their physical place in it. But, we have drifted far from this ideal. Today, American agriculture is industrialized, and rural communities are in decline. The fee simple ownership form has failed every agrarian objective but one: the maintenance of white land ownership. For it was also embedded in the original American experiment that land ownership would be racialized for the benefit of its white citizens, via acts of colonialism, slavery, and explicit race-based exclusion in property law. Today, rather than undoing this racialized legacy, modern property rules only further concentrate and homogenize rural land ownership. Agricultural land ownership remains almost entirely—98 percent—white. This is a critical racial justice issue that converges directly with our impending environmental crisis and the decline of rural communities more generally.

This Article builds on work of rural sociologists and farm advocates who demonstrate, again and again, that despite a pervasive narrative of rural places dying for want of population and agricultural systems too far gone for reform, the reality is a crowd of emerging beginning farmers—and farmers of color in particular—clamoring for access. Existing policy efforts to support beginning farmers have focused primarily on supporting a few private land transactions within existing systems. This Article brings property theory to the table for the first time, arguing that property law itself is not only responsible for the original racialized distributions of agricultural land but also actively perpetuates both ongoing racialized disparities and the currently industrialized and depopulated rural landscape. This Article deconstructs our most fundamental land-tenure choice—the fee simple itself—and calls on our collective legal imagination to develop more adaptive, inclusive, and dynamic land-tenure designs rooted in these otherwise overlooked rural places.

Keywords: property, land, land tenure, agriculture, race, rural development, sustainability beginning farmer, land access, land security, equity, history, land reform, racism

JEL Classification: D63, Q00, Q01, Q12, Q15, Q24, Q28, R52, K11

Suggested Citation

Shoemaker, Jessica A., Fee Simple Failures: Rural Landscapes and Race (October 18, 2020). 119 Michigan Law Review 1695 (2021) , Available at SSRN: https://ssrn.com/abstract=3714326 or http://dx.doi.org/10.2139/ssrn.3714326

Jessica A. Shoemaker (Contact Author)

University of Nebraska - College of Law ( email )

103 McCollum Hall
P.O. Box 830902
Lincoln, NE 68583-0902
United States

HOME PAGE: http://https://law.unl.edu/jessica-shoemaker/

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