THE PROPERTY COURSE: A MANIFESTATION OF SYSTEMS OF DOMINATION
Florence Wagman Roisman*
Prepared for ClassCrits IV: Criminalizing Economic Inequality
September 23-24, 2011
Panel 8: Brick by Brick: Understanding Systems of Domination in the Core Curriculum
It is ironic – perhaps intentionally – that the title of this panel is “Brick by Brick,” for that
is the title of an excellent film about government-imposed racial segregation in housing,2 one of
the principal systems of domination that deprives people of color in the United States of equal
access to opportunities – not only opportunities to live in decent housing, but also opportunities
for good educations, jobs, transportation, environmental conditions, and recreational and
commercial facilities.3
To whatever extent property is or is not theft,4 it certainly is domination: every property
standard and every property dispute is about allocating resources and power. Teaching Property
without illuminating systemic domination seems to me virtually impossible. The really difficult
challenge is deciding which forms of systemic domination to address, and how to do that.
*
William F. Harvey Professor of Law, Indiana University School of Law - Indianapolis;
2011 Chancellor’s Professor, Indiana University Purdue University Indianapolis; John S. Grimes
Fellow.
2
“Brick by Brick . . . A Civil Rights story,” directed by Bill Kavanagh, provides
background for the epic battle against housing and school segregation in Yonkers, N.Y. See
www.brick-by-brick.com.
3
See, inter alia, Xavier de Souza Briggs, More Pluribus, Less Unum? The Changing
Geography of Race and Opportunity, in The Geography of Opportunity: Race and Housing
Choice in Metropolitan America 17 (Xavier de Souza Briggs, ed., Brookings Institution Press
2005); Xavier de Souza Briggs, Susan J. Popkin, & John Goering, Moving to Opportunity: The
Story of an American Experiment to Fight Ghetto Poverty (Oxford U. Press 2010).
4
Pierre-Joseph Proudhon, What is Property? Or, an Inquiry into the Principle of Right and
Government (1840).
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Particularly now that Property usually is a four credit course,5 the Property professor has to make
hard choices. I outline below some that I recommend.
Before I get to substance, let me say a word about materials. I have assembled materials
to teach about the issues in Property; my book, Property and Human Rights (PHR), soon will be
published by Carolina Academic Press. I would be glad to provide copies of the contents to
people who want to use them before publication. Also, Al Brophy, Alberto Lopez, and Kali
Murray recently published Integrating Spaces: Property Law & Race, which, as the subtitle says,
focuses on the intersection of race and property law.6 Other useful material is in two Foundation
Press books, Property Stories and Civil Rights Stories,7 and in my article, Teaching About
Inequality, Race, and Property.8
1. Teach About the Current Foreclosure Crisis.
The foreclosure crisis has been especially, and brutally, devastating for households of
color. Between 2005 and 2009, the net worth of African Americans dropped by 53 percent, the
net worth of Asians dropped by 54 percent, and the net worth of Latinos dropped by 66 percent –
all due largely to the disasters in the mortgage market.9 I hope that all Property teachers will
include material about basic mortgage financing, the deliberate distortions that led to the
mortgage meltdown, the targeting of households and neighborhoods of color, and the racially
disparate impact of those activities.10 A wealth of material is available, much of it from current
5
Joanne Martin, The Nature of the Property Curriculum in ABA-Approved Schools and
its Place in Real Estate Practice, 44 Real Property, Trust & Estate L.J. 385, 391 (2009) (reporting
that a 2006 review showed that “the predominant course-hour allocation for the initial Property
course was four credit hours – almost half of the ABA-approved law schools had adopted this
approach”).
6
Brophy, Lopez, & Murray, Integrating Spaces: Property Law & Race (Wolters Kluwer
2011).
7
Gerald Korngold & Andrew P. Morriss, eds., Property Stories (Foundation Press 2004);
Myriam E. Gilles & Risa L. Goluboff, eds., Civil Rights Stories (Foundation Press 2008).
8
Florence Wagman Roisman, Teaching about Inequality, Race, and Property, 46 St. Louis
U. L.J. 665 (2002).
9
See Sabrina Tavernise, Recession Study Finds Hispanics Hit the Hardest, N.Y. Times,
July 26, 2011; Douglas S. Massey, Isolated, Vulnerable and Broke, N.Y. Times, Aug. 4, 2011;
Cornel West, Dr. King Weeps From His Grave, N.Y. Times, Aug. 23, 2011.
10
This is an especially important point because “the principal property topic that receives
less coverage as credit hours [in the Property course] decline is real estate transactions.” Roger
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media reports. For a SALT conference and book, I prepared a chapter about teaching this
material in the Property course: “Teaching to Address the Foreclosure Crisis,” in Vulnerable
Populations and Transformative Law Teaching: A Critical Reader,11 and material about
foreclosures is in my book, Property and Human Rights (PHR).
2. Teach About Slavery.
The system of domination known as chattel slavery in the United States has been the
foundation for much of the economic inequality we experience to this day.12 I open my Property
course with Dred Scott, partly to show that definitions of “property” change with time but mostly
to start students thinking about racial oppression at the very beginning of the course.13 Both PHR
and Integrating Spaces have material about slavery.
3. Teach About Racial and Ethnic Discrimination and Segregation.
I teach a unit on Race, Inequality, and Property, which includes material on explicit racial
zoning, racially restrictive covenants (including their use as recently as 2005),15 public
accommodations,16 and racial discrimination and segregation in federal housing programs and
14
Bernhardt & Joanne Martin, Teaching the Basic Property Course in U.S. Law Schools, 36
Probate & Property 36, 41 (2007).
11
Vulnerable Populations and Transformative Law Teaching: A Critical Reader 125-144
(Society of American Law Teachers & Golden Gate U. School of Law, eds., Carolina Academic
Press 2011).
12
See, e.g., Eric Foner, Inhuman Bondage, 293 The Nation 27 (Sept. 5, 2011) (reviewing
Robin Blackburn, The American Crucible: Slavery, Emancipation and Human Rights (Verso
2011) (stating that “the slave plantation underpinned the extraordinary expansion of Western
power and the region’s prosperity in relation to the rest of the world”).
13
Dred Scott v. Sandford, 60 U.S. 393 (1856).
14
Buchanan v. Warley, 245 U.S. 60 (1917) and related material on racial zoning cases,
including City of Birmingham v. Monk, 185 F.2d 859 (5th Cir. 1950); see Garrett Power,
Apartheid Baltimore Style: The Residential Segregation Ordinances of 1910-13, 42 Maryland L.
Rev. 289 (1982).
15
Shelley v. Kraemer, 334 U.S. 1 (1948); Hurd v. Hodge, 334 U.S. 24 (1948); Virginia
Man Must Pay for Housing Discrimination, N.Y. Times, Dec. 10, 2005.
16
Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964); Katzenbach v.
McClung, 379 U.S. 294 (1964). When I teach this material, I use excerpts from two episodes of
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“private” housing.17 One of the cases in my landlord-tenant unit involves racial discrimination.18
In addition, these issues appear elsewhere in the curriculum. Thus, for example, when I teach
defeasible fees, I include Charlotte Park and Recreation Commission v. Barringer, which
involves a park dedicated to use by whites only, and Hermitage Methodist Homes v. Dominion
Trust Co., which enforces loss of a gift because a school admits non-white students.19 A
servitude case, Lobato v. Taylor, offers an analysis of claims based on Mexican law.20 Whether
Berman v. Parker is taught on its own, or through references to it in Kelo, it is the basis for a
discussion of the depredations of the federal urban renewal program21; the racial implications of
Belle Terre and Moore v. City of East Cleveland are brought out by the dissents and separate
opinions.22 The racial implications of Euclid are illuminated by the trial court opinion and the
relationship to Buchanan v. Warley.23
4. Identify Other Systems of Domination and Exploitation in Property Materials.
Eyes on the Prize -- 3, Ain’t Scared of Your Jails, re: the sit-ins, and 4, No Easy Walk. Eyes on
the Prize (Henry Hampton, creator and executive producer; Blackside 1990). I also use part of the
film Race: the power of an illusion (Larry Adelman, executive producer; California Newsreel
2003).
17
Levitt v. Division Against Discrimination, 31 N.J. 514, 158 A.2d 177 (N.J. 1960), app.
dis., 363 U.S. 418 (1960); Jones v. Mayer, 379 F.2d 33 (8th Cir. 1967), Jones v. Mayer, 392 U.S.
409 (1968), and related material.
18
Jancik v. HUD, 44 F.3d 553 (7th Cir. 1995). This is one of my favorite teaching cases, as
it involves a landlord who asks a prospective tenant what kind of name hers is, and when she
replies that it is Norwegian, asks “whether ‘that’s white Norwegian or black Norwegian’ . . . .”
19
Charlotte Park and Recreation Comm. v. Barringer, 88 S.E.2d 114 (NC 1955), cert.
denied, 350 U.S. 983 (1956); Hermitage Methodist Homes v. Dominion Trust Co., 387 S.E. 740
(VA 1990), cert. denied, 498 US. 907 (1990).
20
Lobato v. Taylor, 71 P.3d 938 (2002).
21
Berman v. Parker, 348 U.S. 26 (1954); Kelo v. City of New London, 545 U.S. 469
(2005). See Wendell E. Pritchett, The “Public Menace” of Blight: Urban Renewal and the
Private Uses of Eminent Domain, 21 Yale L. & Policy Rev. 1 (2003).
22
Village of Belle Terre v. Boraas, 416 U.S. 1 (1974); Moore v. City of East Cleveland,
OH, 431 U.S. 494 (1977).
23
Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); see David Callies, Village
of Euclid v. Ambler Realty Co., in Property Stories, supra note 6.
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Many of the cases that appear in most casebooks illustrate systemic oppression: the points
are there to be made if one wants to make them. State v. Shack provides the basis for a discussion
of farmworkers (I supplement the decision with two short films).24 Johnson v. McIntosh and
Hodel v. Irving (and many other cases) provide the basis for consideration of the oppression of
Native Americans.25
24
State v.Shack, 277 A.2d 369 (N.J. 1971).
25
Johnson and Graham’s Lessee v. M’Intosh, 21 U.S. 543 (1823); Hodel v. Irving, 481
U.S. 704 (1987).
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