New Article: Bethany Berger, Race to Property: Racial Distortions of Property Law, 1634 to Today, Ariz. L. Rev. (2022, forthcoming). Abstract below:
Race shaped property law for everyone in the United States, and we are all the poorer for it. This transformation began in the colonial era, when demands for Indian land annexation and a slave-based economy created new legal innovations in recording, foreclosure, and commodification of property. It continued in the antebellum era, when these same processes elevated nationalized property transactions over other rights; and gained new tactics after the end of slavery through the early twentieth century, when the pursuit of racial hierarchy expanded private owners’ rights to exclude and tied occupation of physical space to status. The influence of race on property became even more insidious in the modern era. As twentieth century courts and legislatures incrementally outlawed de jure discrimination, a new regime took its place. This hidden Jim Crow first transformed home finance and zoning to make residence in exclusionary enclaves central to family wealth, and then tied public goods like schools, recreation, transportation, and welfare to residence in those fragmented communities.
These racial projects deeply scarred how property is acquired, regulated, and distributed regardless of race. They have made our cities poorer, our homes more expensive and less secure from foreclosure, our public goods less public, and our social safety net less safe. They have lengthened our commutes, privatized our pools, and impoverished our schools. They have undermined the income mobility that was once America’s pride.
Opponents of reform often invoke property rights to support their claims. The history presented in this Article, however, shows that many of the rules of our system were significantly about race, not property. They were not designed, as property norms dictate, to enhance security, abundance, and distribution of resources. Instead, in part, their purpose was to exclude, dispossess, and dominate racial groups. Reform, therefore, does not undermine property. Rather, in many cases, it achieves what justifies the property system in the first place.