Academic journal article Texas Law Review

Making Room in the Property Canon

Academic journal article Texas Law Review

Making Room in the Property Canon

Article excerpt

Making Room in the Property Canon INTEGRATING SPACES: PROPERTY LAW AND RACE. By Alfred Brophy, Alberto Lopez & Kali Murray. New York, New York: Aspen Publishers, 2011. 368 pages. $40.00.

I. Introduction

Property is oft considered the province of the antediluvian, far situated from modern concerns, particularly issues of race and diversity. Even more so than other areas of legal academia, Property remains the province of dead white men. Courses and casebooks continue to hark back to Blackstone, the epitome of the antiquated.1 The thread of old English law continues throughout the semester, to the consternation of many a first-year law student. It should come as no surprise that Property is then viewed as lifeless, the course least accessible, least relevant, most obscure. Nonetheless, Blackstone once avowed, "There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property . . . ."2 This adage may prove still true. If property is dead,3 long live Property!4

Integrating Spaces: Property Law and Race takes on one aspect of this potential impasse. Alfred Brophy, Alberto Lopez, and Kali Murray address a long-standing absence and bring the Property casebook into the twenty-first century.5 Their agenda is clear: to take on the fact that "[r]ace is often seen in property law but not heard in the property curriculum."6 Neither the concerns nor the cases are new.7 The final project, however, is innovative and indispensible. While neither flawless nor exhaustive,8 for the three hundred pages they provide us, the book does an impressive job of answering what it means to think about property and race.9

The introduction poses two fundamental questions: "First, why don't we hear more about the role of race in property law in the first year course? And, second, why aren't there more cases involving racial minorities . . . in our property casebook?"10 I have often asked myself these questions and have wondered how to resolve the deficiency. The authors turn the canonical narrative on its head, asking what Property would look like if race were considered at the core of the story instead of a tangential distraction.11

Integrating Spaces provides a way for both student and professor to unpack the meaning of race in the development of property law and consequently in the legal system and society as a whole. Race has always been present in our study of property, but it normally lurks in the background. This casebook takes age-old concerns and brings them to the forefront; the invisible has been made visible. The case selection challenges notions about the inherent nature of current property distributions by showing how the property system has worked to disadvantage certain groups. A presumption of legal neutrality and natural law is much harder to maintain in this light. The book is a story of the underbelly of property, the ugly picture of those dispossessed of legal rights, including the right to themselves.

Race-based property inequities in the United States remain deep and unrelenting.12 People of color own less property and the property they own is less valuable.13 The subprime-mortgage crisis has only worsened the divide.14 As many theorists have pointed out, the law has sustained and even created racialized distributions of property.15 In most law school classrooms, however, property disparities are taken as a given; the disproportionality becomes merely a backdrop to the "real legal issues." If we do not examine the system that produced this imbalance, the inequity will remain an inexorable byproduct of the organic development of property law. Not mentioning race makes the current relationship between property and people of color appear inevitable.

Racial issues have long been delegated to specialized courses: Critical Race Theory, Race and Crime, Intersectionalities, Race and Gender, Civil Rights Law. Race is seen as a story pertaining to racial minorities, and the majority of law students-as well as the majority of lawyers, law professors, and lawsuit parties16-are still white. …

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