Teaching Property Law and Race: “Integrating Spaces” by Brophy et al.

My recollection of law school property class consists mostly of trying to fit a lot of archaic terms for ownership interests onto the one-page cheat sheet we were allowed for the exam. No fault of my professor, who made feudal language as interesting as it could be.

It was not until much later that I realized how truly fascinating property is. In a country where people used to own people, how can the law’s legitimation of a human’s attachment to something be anything but fascinating?

Today’s law students might come to this realization sooner, thanks to a practical, wide-ranging  book by Alfred Brophy, Alberto Lopez, and Kali Murray. Integrating Spaces: Property Law & Race (2011) is a casebook-style text that covers the many ways race and identity have shaped and continue to shape property in the U.S. It is intended as a supplemental text to help law professors integrate issues of race into their first-year property courses. Each chapter consists of a concise, clearly written overview of the issues and several illustrative cases.

Here is the table of contents:

Part I. Race in the Making of Property Law

Chapter 1. Origins: Possession and Dispossession in Property Law
Chapter 2. Property Rules and Slavery

Part II. Race and the Remaking of Property

Chapter 3. Racial Regulation of Public Spaces in the United States
Chapter 4. Discrimination and the Sale or Occupancy of Real Property

Part III. Race and Contemporary Property

Chapter 5. Redefining Housing and Neighborhood: Civil Rights and Its Impact on Property Law
Chapter 6. Contemporary Common Law Property
Chapter 7. Race, Ethnicity, and Culture in an International Perspective

I hope this much-needed book catches on.


The ‘Spatial Turn’ in Law: June 2011 Issue of Law, Culture, and the Humanities

The latest issue of Law, Culture, and the Humanities contains several articles relating to legal geography, space, and territorialization. Law joins, of course, a variety of other disciplines in taking this “spatial turn.”

Here are the titles and abstracts:

Law’s Spatial Turn: Geography, Justice and a Certain Fear of Space” by Andreas Philippopoulos-Mihalopoulos

Abstract: This is a critical reading of the current literature on law and geography. The article argues that the literature is characterized by an undertheorization of the concept of space. The focus is either on the specific geography of law in the form of jurisdiction, or as a simple terminological innovation. Instead, the article suggests that law’s spatial turn ought to consider space as a singular parameter to the hitherto legal preoccupation with time, history and waiting. This forces law into dealing with a new, peculiarly spatial kind of uncertainty in terms of simultaneity, disorientation, materiality and exclusionary corporeal emplacement. The main area in which this undertheorization forcefully manifests itself is that of spatial justice. Despite its critical potential, the concept has been reduced by the majority of the relevant literature into another version of social, distributive or regional justice. On the contrary, if the peculiar characteristics of space are to be taken into account, a concept of justice will have to be rethought on a much more fundamental level than that.

Cuts, Flows, and the Geographies of Property” by Nicholas Blomley

Abstract: How is property geographical? The making of liberal property, I argue, relies upon a topographical logic, premised on the production of bounded, coherent spaces, through which the individuated subjects and objects of property can be rendered legible. Such a spatialization helps sustain the territorialization of property, in which the government of space becomes a means for the enactment of property. The production of such spaces requires conscious ‘cuts’ in the processual networks through which social spaces are produced. As such, property should be seen as a conditional achievement, ever threatened by unwanted relationality and boundary crossing. I draw from Kate Grenville’s novel The Secret River to explore property’s spaces, and their ambivalent ethical and practical work.

The Constituent Power of Architecture” by Lior Barshak

Abstract: The claim that law is grounded in representations of authority hardly requires justification. The article outlines one view of the power of representations of authority to subject society to the law, and attempts to shed light on the social significance of architecture as a medium of such representation. I will argue that representation sets apart the realms of the living and the dead while sustaining a complex relationship between the two realms. It houses the dead in a separate realm where they exercise authority over the living. Monumental architecture founds the authority of law, and the entire realm inhabited by the living, by relegating the dead to a separate sphere where they assume the position of ancestral lawgivers. Architecture can separate the living from the dead and anchor the rule of law by virtue of its claims to perpetuity and aesthetic form.

‘Passing through the Mirror': Dead Man, Legal Pluralism and the De-territorialization of the West” by Ruth M. Buchanan

Abstract: The failures of Western law in its encounter with indigenous legal orders have been well documented, but alternative modes of negotiating the encounter remain under-explored in legal scholarship.The present article addresses this lacuna. It proceeds from the premise that the journey towards a different conceptualization of law might be fruitfully re-routed through the affect-laden realm of embodied experience—the experience of watching the subversive anti-western film Dead Man. Section II explains and develops a Deleuzian approach to law and film which involves thinking about film as ‘‘event.’’ Section III considers Dead Man’s relation to the western genre and its implications for how we think about law’s founding on the frontier. Finally, the article explores the concept of ‘‘becoming’’ through a consideration of the relationship between the onscreen journey of the character Bill Blake and the radical worldview of his poetic namesake.

Law and the Foucauldian Wild West in Michael Cimino’s Heaven’s Gateby Diana Young

Abstract: Classic western films often conceive of the west as existing in a legal void, where the central conflict is a binary one between lawlessness and legalization. The law is a monolith, and the legalization process is linear—a narrative of the west’s inexorable evolution toward a modern state governed by the rule of law. Cimino’s Heaven’s Gate presents a more postmodernist, pluralist conception. There is no grand narrative of legalization; the film envisages a discourse of justice emerging from the interaction of a variety of discourses, and which appears to be a unity only from the vantage point of history.


Slave Cemetery at VCU Turned Over to the Richmond Slave Trail Commission

The Root (and its partner, National Public Radio) have picked up the story of Richmond’s Burial Ground for Negroes, which we posted about a while back. The historic slave and free black cemetery (c. 1750-1816), now also known as the African Burial Ground, has been used as a parking lot by Virginia Commonwealth University since the state purchased it in 2008. Today, it will be officially turned over to the City of Richmond’s Slave Trail Commission, which plans to preserve and memorialize the 1.6-acre site. The move comes only after years of community activism, an unsuccessful lawsuit, and growing negative publicity that put pressure on the state and the university.

As The Root reports, the Richmond controversy is one of several that have arisen in recent years over historic slave and free black cemeteries. The most well-known of these is the African Burial Ground in lower Manhattan:

Chris Moore, a historian and curator at New York’s Schomburg Center for Research in Black Culture, was one of the first to inform the public about the African Burial Ground [in lower Manhattan]. According to Moore, the GSA tried to keep the excavation quiet. He said that federal officials and archaeologists initially claimed ignorance, but workmen at the site informed him they were ” … taking truckloads of bones out of here.”

The GSA initially announced that no more than a few hundred people were buried at the site; it is now estimated that there are 15,000-20,000 remains under a five-block area.

A long battle ensued, involving community protests, court hearings and support from city and state officials that finally garnered national attention. As a result, the excavation was halted for some time, and the disinterred remains of 419 people were sent to Howard University for research (and later re-interred at the African Burial Ground). A memorial was built next to the new building and an interpretive center added inside the lobby, explaining the site, now a national monument.

Other burial grounds have been rediscovered in places as varied as Portsmouth, N.H.; Rio de Janeiro, Brazil; and Dallas — and they often trigger similar community struggles to reclaim those sites. For several years, Harlem’s African-American community has been fighting to reclaim and memorialize a burial ground covered by a bus depot.

As the 150th anniversary of the Emancipation Proclamation approaches (Jan. 1, 2013), efforts to recover Richmond’s African Burial Ground — and all other sites that contain black ancestral remains — gain special significance for all Americans.


Woodson Symposium: African American & African Studies at Work in the World

Today was Day 2 of the Carter G. Woodson Institute‘s 30th Anniversary Symposium, themed “African American & African Studies at Work in the World,” at the University of Virginia. The three-day program is packed with thought-provoking panels, keynote speeches, and musical and dance performances. I’ve tweeted most of the events so far, but wanted to share some favorite talks here.

Carter G. Woodson

Yesterday’s highlight was a panel after my own heart, “People Out of Place: Race, Space, and Social Movements,” moderated by Timothy Lovelace, featuring Risa Goluboff, Craig Barton, and Scot French, all from U.Va. Goluboff’s talk traced the history of vagrancy laws, which “regulated the physical and economic mobility” of marginalized Americans, particularly blacks, until the laws were declared unconstitutional in 1971. The talk by Barton, an architect, demonstrated how built environments can render “invisible,” literally and socially, racial minorities whose labor is necessary to sustain the structures. Barton also told the moving story of the Scrabble School, a former segregated black school that has been converted into a contemporary civic space. French screened and discussed his documentary film That World Is Gone: Race and Displacement in a Southern Town, which tells the story of Vinegar Hill, a historically black area of Charlottesville that was destroyed in the name of “urban renewal.” (The film won the Audience Favorite Award at the 2010 Virginia Film Festival.)

Also yesterday, Yarimar Bonilla of U.Va. gave a terrific talk called “Non-Sovereign Futures? Caribbean Politics in the Wake of Disenchantment,” which began to map the many Caribbean islands that are neither independent nor colonized, but something in between. Her research asks what “sovereignty” means in an asymmetrically globalized world where political and economic independence do not necessarily occur simultaneously.

This afternoon, a panel entitled “Bio-Politics: Race, Health, and the Body,” featured a terrific talk by J.T. Roane of Columbia University on the social and racial connotations of the so-called “obesity epidemic.” Roane traces the technologies and mechanisms by which fat bodies have become “visible” as such, obscuring the structural problems that lead to poor health for blacks and other marginalized groups. For example, Roane argues, the BMI (body mass index), originally developed as a population-level indicator, was later adopted as an individual measure, which helped shape the discourse of obesity into a “politics of self-control rather than of the economics of food production and resource allocation.”

This evening, Dorothy Roberts of Northwestern University gave a lively keynote address entitled “Race, Gender, and Biopolitics in the Genomic Age.” Roberts described how the idea of race as a biological concept has reemerged through genetic technologies, a seemingly paradoxical (and certainly insidious) trend in this supposedly “post-racial” age. Roberts’ new book, Fatal Invention: How Science, Politics, and Big Business Re-create Race in the Twenty-First Century, looks fantastic and I can’t wait to read it.


Virginia to Finally Get Its ‘Ass-Phalt’ Off People’s Ancestors

The controversy over a historic slave and free black cemetery in downtown Richmond appears headed, finally, for a reasonable resolution. The Burial Ground for Negroes (c. 1750-1816), which currently lies under a parking lot at Virginia Commonwealth University, has been the subject of community protest and an unsuccessful lawsuit.

Today’s Richmond Times-Dispatch reports that VCU plans to remove the asphalt from the parking lot, which is slated to be turned into a memorial under a deal between the state, the city, and VCU. VCU will use state funds for the removal. But it’s still unclear how soon the work will be done, since the new plans depend on a budget amendment that won’t take effect until July 1.

I’ve been following this story since last fall, when I began researching the site’s history and analyzing the legal case that arose from it. Richmond was a major slave trading center, and the Shockoe Bottom neighborhood where the cemetery lies was once “ground zero” of the city’s slave trade, according to a documentary film by Shawn Utsey. The cemetery was always an abject space, located on flood-prone land adjacent to Shockoe Creek. It was near a notorious slave jail, as well as the gallows where Richmond’s most famous slave rebellion leader was executed. Over the years, the area experienced waves of redevelopment, much of it racially inflected, as black homes and businesses were torn down to make way for Interstate 95 and other structures. With such a sensitive history, it was no wonder that emotions rose when VCU purchased the 1.6 acre site in 2008 and began using it as a parking lot.

In early 2010, Sa’ad El-Amin, a former Richmond City Councilman and a divisive figure in local politics, filed a mandamus petition seeking to force the state to find the cemetery’s historic boundaries so that the site could be properly preserved. The suit was dismissed, as the standard for mandamus was clearly not met.

However, the case was instructive because it demonstrated the obstacles that descendants of slaves face when they seek to access or protect from desecration the burial sites of their possible ancestors. Due to conditions of slavery and racial inequities that continued after Emancipation, many descendants do not know or cannot prove their ancestry and, therefore, do not have standing to sue under the common law for cemetery access. (Alfred Brophy wrote a great article on cemetery law, available on SSRN.) El-Amin, not being able to prove direct descent from anyone buried in the cemetery, was limited in his legal options. The controversy, therefore, had to be resolved in the political rather than legal arena, and as such it was subject to the vagaries of local politics in a city that has historically “buried” its ugly racial past.

As with most conflicts over the dead, this one is really about relations between the living. Last fall, El-Amin stood in front of the Richmond courthouse and spoke to reporters about his mandamus suit and another suit he filed over the cemetery:

“We are here to get VCU’s asphalt off of our burial ground,” El-Amin said on the steps of the John Marshall Courts Building downtown, elongating the first vowel, as in “ASSphalt.” One can only imagine, El-Amin said, if the shoe were on the other foot.

“What do you think would happen if I drove over to Hollywood Cemetery and parked my car on one of those Confederate generals?” he asked.