American Property Law Research Articles

Red Codes and Removal: Racial Exclusion and Indigenous Persistence in the Midwest

Abstract: The Midwest is typically defined as a site of Indigenous erasure. But citizens of the Miami Tribe of Oklahoma continue to live in their original homeland despite the official removal of their people from the Wabash River Valley in 1846. Myaamia families who stayed behind used fee simple family reserves as a tool to combat ethnic cleansing. Despite their keen understanding of American property law, settlers in the Hoosier state crafted “Red Codes,” laws and enforcement regimes targeting Indigenous peoples, to achieve their dispossession. Red Codes, akin to the more well-known Black Codes, reveal how state and local authorities designed laws to advance white supremacy. The appropriation and performance of Indigeneity grew out of the race-based legal regimes that defined the nineteenth-century Midwest.

Birth Registration and the Administration of White Supremacy

Birth registration formed a key part of the administration of white supremacy between Reconstruction and World War II. In the allotment of Indigenous lands and the enforcement of de jure segregation by states, birth registration served an important ideological and administrative function. Because allotment policy combined property transmission with family reorganization, it made documentation of identity more important to the federal Indian Office. The Office imposed nuclear family structures on complex kin networks to establish access to land title, and it used documentation to alter family relationships to fit with American property law. During the same years, southern states used birth registration to fix racial identity in order to determine access to school, marriage, and many other benefits. Racial classification through birth registration, in other words, worked less to record the truth than to help produce it.

“We ain't never stolen a plant”: Livelihoods, property, and illegal ginseng harvesting in the Appalachian forest commons

In the southern Appalachian Mountains, wild American ginseng (Panax quinquefolius) has been harvested for commercial sale for nearly 250 years. Ginseng is vulnerable to overexploitation but can be harvested according to regulations implemented to prevent a tragedy of the commons. Despite regulations, much ginseng is harvested illegally. Conservationists, supported by American property law, tend to believe illegal ginseng harvesters are thieves interested in quickly obtaining cash. This article argues instead that many illegal ginseng harvesters believe one cannot “steal” a wild plant. Many Appalachian forest users believe the owner of a ginseng root is the person who harvests it and not the landowner. Efforts to protect ginseng often rely on excluding harvesters from accessing lands historically considered to belong to the commons, which can also exclude them from an important strategy for earning income in a region where formal living‐wage jobs are scarce. This article adds complexity to understandings of the rural poor who make a living at the edges of the global capitalist system and contributes to a more nuanced understanding of poor rural Appalachians by exploring the reasons for ginseng harvesting, a behavior that otherwise might appear consistent with negative stereotypes of Appalachian culture.

Race and Property Law

This chapter offers an outline for understanding the key role of race in producing property values in the history of the American property law system. It identifies major developments in the mutually formative relationship between race and property in America that made and remade property interests in America through the processes of 1) dispossessing nonwhites, 2) degrading their homelands, communities, and selves, and 3) limiting their efforts to enter public space and occupy or acquire property within the regime thereby established. First, it describes the use of law to create the two most important forms of property in the colonies and early Republic, both of which acquired value and status as property through white ownership and control– namely, enclosed land and enslaved human beings. Second, it addresses the significant shift in the way that race produced property values after the abolition of slavery, and how the anti-blackness entrenched by the slave trade spurred and organized resistance to Black landownership and property rights more generally. Third, it turns to the way the government, after consolidating the national territory through conquest, drew upon the continuing backlash to abolition and widespread desire for racial segregation to remake the infrastructure and the very commodities on offer on the real estate market through its notorious redlining program and establishment of a major secondary mortgage market. In this way, it seeks to show the structural relation between transformations to the property system during these different historical periods and the evolving role of race in its organization, while providing comprehensive citations, in the style of a handbook, to relevant scholarship and primary materials throughout.

Conquest and Slavery as Foundational to the Property Law Course

This piece contains ideas for teaching about the foundational place of the histories of conquest and slavery to American property law and the property law course. I begin by briefly reviewing how these topics have been erased and marginalized from the study of American property law, as mentioned by casebooks in the field published from the late nineteenth century to the present. I then show how the history of conquest constituted the context in which the singular American land system and traditional theories of acquisition developed, before turning to the history of the American slave trade and the long history of resistance to Black landownership that its abolition fueled. Here, I suggest ways to correct for the tendency of traditional property law curricula to focus exclusively on English doctrines regulating relations between neighbors, rather than the unique fruits of the colonial experiment -- the land system that underpins its real estate market and its structural reliance on racial violence to produce value.

Disseisin, Doubt, and Debate

Property law scholars in the United States have discussed the doctrine of adverse possession for more than a century. Indeed, ever since American property law scholars began to write property law treatises, formalize property law courses in modern law schools, publish property specific articles in law reviews, and publish property law case books, adverse possession has served as a staple of property law discourse. This Article examines how property law scholars think about and discuss adverse possession. It explores how adverse possession talk has changed—and not changed—over time. In other words, this Article examines both the substance and rhetoric of property law scholars’ attempts to explain, appraise and, at times, reform the doctrine of adverse possession.

The Ambition and Transformative Potential of Progressive Property

The emerging progressive property school of thought champions and finds its meaning in the social nature of property. Rejecting the idea that exclusion lies at the core of property law, progressive property scholars call for a reconsideration of the relationships owners and non-owners have with property and with each other. Despite these ambitions, so far progressive property scholarship has largely confined itself to questions of exclusion and access. This paper argues that such an emphasis glosses over the race-related acquisition and distribution problems that plague American history and property law. The modest structural changes supported by progressive property scholars fail to account for this racial history and, by so doing, present a limited vision of the changes to property law that progressive scholars should support. Though sympathetic with the progressive property political and scholarly orientation and the policy arguments made regarding exclusion and access, I argue that the first priority of any transformative project of progressive property must be revisiting acquisition and distribution.

The Meaning of Dispossession

This Article critiques our focus on possession as the cornerstone of theories of property, examining the limitations of possession both as a theoretical concept and as a practical one. Second, the article examines how an investment-based labor approach has sharply shaped out understandings of possession. By examining the intertwining of possession and labor during colonization, the article describes how the labor approach to possession excluded more communal corollaries and instilled in American property law a consistent push toward grounding land claims at the labor-possession nexus.Re-thinking the labor-possession nexus yields important shifts. First, labor matters for other reasons than investment-backed expectations. Labor matters because the loss of investments often means violence. There is a reason for the historical correlation between changes in property rights and revolutions. Focusing investment critically places property as a first-order value when it is, in fact, a second-order value or a means to a social end (specifically, non-violence). Second, focusing on labor as investment also places such an extraordinary emphasis on possession that American scholars and courts rarely think much about dispossession. Our emphasis on possession rather than dispossession frames American property law in terms of vested rights to such a degree that while scholars may think in terms of social relations theories, American property law is stuck thinking in terms of individual ownership rights even when the courts acknowledge the social nature of property arrangements.

The Meaning of Dispossession

This Article critiques our focus on possession as the cornerstone of theories of property, examining the limitations of possession both as a theoretical concept and as a practical one. Second, the article examines how an investment-based labor approach has sharply shaped out understandings of possession. By examining the intertwining of possession and labor during colonization, the article describes how the labor approach to possession excluded more communal corollaries and instilled in American property law a consistent push toward grounding land claims at the labor-possession nexus.Re-thinking the labor-possession nexus yields important shifts. First, labor matters for other reasons than investment-backed expectations. Labor matters because the loss of investments often means violence. There is a reason for the historical correlation between changes in property rights and revolutions. Focusing investment critically places property as a first-order value when it is, in fact, a second-order value or a means to a social end (specifically, non-violence). Second, focusing on labor as investment also places such an extraordinary emphasis on possession that American scholars and courts rarely think much about dispossession. Our emphasis on possession rather than dispossession frames American property law in terms of vested rights to such a degree that while scholars may think in terms of social relations theories, American property law is stuck thinking in terms of individual ownership rights even when the courts acknowledge the social nature of property arrangements.

THE JUDICIAL INVENTION OF PROPERTY NORMS: ELLICKSON’S WHALEMEN REVISITED

Robert C Ellickson argues that the close-knit community of American whalemen in the nineteenth century used norms of their own creation to settle arguments over contested whales without violence or frequent litigation. Ellickson also contends that these norms were largely adopted by courts as the property law of whaling. A close examination of trial transcripts and depositions from two litigated whaling disputes reveals, however, that whalemen settled contests not upon clear and widely accepted norms but rather upon the application of some rather general maxims that were often poorly understood even by experienced captains and crews. Whaling disputes were, in fact, most often settled through compromises grounded in inchoate notions of what constituted honourable behaviour arising out of the particular situation and parties involved. In seeking to settle the handful of litigated disputes, judges drafted opinions that suggested a level of agreement among whalemen as to prevailing norms that never existed at sea. The scholarly acceptance that judges accurately stated whaling customs explains the mistaken belief that whalemen created the American property law of whaling. Instead, judges and the lawyers who represented ship owners were, to a large degree, responsible for creating much of what came to be memorialized in legal treatises by the end of the nineteenth century as the property law of whaling.

Global Legal Standards: Common Rules to Protect Property and Businesses

I decided to make you familiar with an aspect of American property law. You may not realize that a formalistic approach is taken regarding the necessity of consent to form contracts often presented to consumers, including subprime mortgage borrowers who signed the notes (which are themselves contracts) and mortgage documents to transfer the property to lenders. Because many who give what is known as objective consent ie they sign the paper incorporating an agreement, but they do not understand the terms of the contract or the impact on them, I argue that the form contract may protect businesses that use these, but not the property of those consumers/borrowers. These types of “take it or leave it” contracts are known as adhesion contracts. In subprime mortgages lenders offer borrowers form contracts (promissory notes) which the borrower must sign in order to obtain the loan. There is no negotiation of the terms of the note or the mortgage document.A significant part of the subprime crisis in residential real estate in the United States is due to a lack of subjective consent to the contracts entered into regarding the subprime mortgage loans. Then, of course because of globalization of investments this economic crisis affected investors worldwide. As was presented at the meeting of the Italian Civil Law Notaries in Torino in January 2008, many of these global investors trusted the US regulators and U.S. ratings agencies only to learn that neither was working effectively or as investors believed.

The Judicial Invention of Property Norms: Ellickson’s Whalemen Revisited

Robert C. Ellickson has argued that whalemen developed norms to settle arguments over contested whales. These norms, Ellickson explained, were largely adopted by courts as the property law of whaling. Ellickson’s point is that whaling norms “did not mimic law; they created law.” Ellickson is certainly correct that the close-knit community of nineteenth century American whalemen managed to settle disputes in ways which maximized group welfare. What Ellickson has failed to recognize is that that the means by which whalemen resolved disputes without violence or frequent involvement of courts was built not upon widely accepted norms, but rather upon the application of some rather general maxims that were often poorly understood even by experienced captains and crews. Whaling disputes were, in fact, most often settled through compromises grounded in inchoate notions of what constituted honorable behavior arising out of the particular situation and parties involved.In seeking to settle the handful of litigated disputes, judges drafted opinions that suggested a level of agreement among whalemen as to prevailing norms that never existed at sea. The scholarly acceptance that judges accurately stated whaling customs explains the mistaken belief that whalemen created the American property law of whaling. Instead, judges and the lawyers who represented ship owners were to a large degree responsible for creating much of what came to be memorialized in legal treatises by the end of the nineteenth century as the property law of whaling.A close examination of trial transcripts and depositions from two of the five whaling disputes from the Sea of Okhotsk that were litigated in the nineteenth century reveals the vagaries of whaling norms and the problems in using judicial opinions to recover such practices. In Heppingstone v. Mammen, it is impossible to draw from the testimony of crew members and expert witnesses anything resembling a norm upon which battles over contested whales could be resolved at sea or in court. The court’s misunderstanding in Swift v. Gifford of whaling practices was quickly accepted by legal scholars as definitive evidence that the whaling fleet in the North Pacific had adopted a single standard for determining when an interest in a fleeing whale ripened into ownership.Whalemen in the Sea of Okhotsk proved adept at resolving controversies on a common sense, ad hoc basis without universal norms. The close knit nature of their community, the intensely communal nature of their competition, and the economic pressure to settle disputes allowed Okhotsk whalemen to resolve contests without the aid of well settled norms.

Oil and Water: Easements and the Environment

The age of American environmentalism has arrived. Surveys show widespread public support for preservation policies, open spaces, and natural parks, while reflecting popular disdain for new development of wild lands. Federal and state governments have reacted to public sentiment by adding acreage to national preserves, increasing the budget for agencies tasked with preservation, and by enacting and enforcing pollution laws and regulations. Despite popular support and government-initiated efforts, forty million acres of land – larger than the state of Florida – were newly developed between 1992 and 2007. This paper addresses the historic and deeply rooted pro-development policy informing American property law. While critical in the country’s infancy, encouraging land use and development through legal constructs is less important and arguably detrimental now. Long-standing legal constructs encourage land use and as a result discourage conservation. Our need to develop wide swaths of wild land has changed; our common law has not. One area of property law, easements, fully embraces pro-development policies. The legal principles defining express easements, implied easements by necessity, easements by implied grant, and prescriptive easements champion the development of land while disfavoring parties that allow land to remain “idle.” The pro-development policy undergirding common law property tenets lacks a conservation counterbalance. This paper details several approaches that might curb pro-development bias in easement law.

The Anti-Apartheid Principle in American Property Law

Recently, many federal courts have been interpreting civil rights laws to allow racially discriminatory treatment of customers in retail stores and racial and religious harassment of tenants and home owners by their neighbors. These courts are misinterpreting federal law and ignoring the will of Congress embodied in the Civil Rights Act of 1991 which clarified that market participants have the right to enjoy property and contract rights on equal terms. More important, these courts are wrongly assuming a background norm of negative liberty; they presume that we are free to engage in racial discrimination in market transactions unless statutes clearly and unambiguously limit our freedom. But this is a mistake. Since the 1960s, the background norm has become a presumption that market participants are not allowed to treat people unequally because of race, religion, sex, or disability. Both federal and state statutes embody this norm and many statutes contain it explicitly. Even the Civil Rights Act of 1866 was amended in 1991 to provide that private persons are entitled to equal contract terms. We aspire to be a free and democratic society that treats each person with equal concern and respect. We now understand that this commitment not only entails the repudiation of feudalism and slavery but the abolition of apartheid, whether imposed by law or enacted by private persons exercising their property rights. Liberty does not mean the absence of restraint on action; it means the creation of a legal infrastructure of a free and democratic society. Equal access to the marketplace without regard to race is now as fundamental a norm as is the abolition of feudal tenures. For this reason, the common law should be interpreted to include a background assumption that prohibits racial discrimination in housing or public accommodations. Unless statutes affirmatively grant stores the right to treat their customers differently on account of race, courts should presume that they have no such right. Unless statutes affirmatively grant individuals the right to harass their neighbors on account of race or religion, courts should presume that housing rights include the right to be free from such discriminatory harassment. Rand Paul was wrong to suggest that liberty demands freedom to reject customers because of their race; the very opposite is true. American property law now contains a fundamental anti-apartheid principle that ensures access to the marketplace without regard to racial discrimination and the federal courts should start acting on that foundational commitment.

The Strand Not Taken: The Taxing/Taking Taxonomy in American Property Law

Takings jurisprudence is struggling with a constant paradox. It is conventionally portrayed as chaotic and “muddy,” and yet attempts by the judiciary to create some sense of order in it by delineating this field into distinctive categories that apply to each a different set of rules are often criticized as analytically incoherent or normatively indefensible.This Article offers an innovative approach to the taxonomic enterprise in takings law, by examining what is probably its starkest and most entrenched division: that between takings and taxings. American courts have been nearly unanimous in refusing to scrutinize the power to tax, viewing this form of government action as falling outside the scope of the Takings Clause. Critics have argued that the presence of government coercion, loss of private value, and potential imbalances in burden sharing mandate that the two instances be conceptually synchronized and subject to similar doctrinal tests.The main thesis of the Article is that this dichotomy, and other types of legal line-drawing in property, should be assessed not on the basis of a “pointblank” analysis of allegedly-comparable specific instances, but rather on a broader view of the foundational principles of American property law and of the way in which takings taxonomies mesh with the broader social and jurisprudential understanding of what “property” is. Identifying American property law as conforming to two fundamental principles -- formalism of rights and strong market propensity -- but at the same time as devoid of a constitutional undertaking to protect privately-held value against potential losses as a self-standing “strand” in the property bundle, the Article explains why prevailing forms of taxation do seem to be disparate from other forms of governmental interventions with private property. Focusing attention on property taxation, the Article shows why taxation is considered a “lesser evil” type of government coercion, how the taxing/taking dichotomy better addresses the public-private interplay in property law, and why taxation is often viewed as actually empowering property rights and the control of assets.This type of systematic inquiry is very timely. American property law is nowadays located at a crucial crossroad, with its longtime foundational premises and convictions being vigorously reexamined in the face of the domestic and global economic crisis. Although it remains to be seen whether government measures taken in the months and years to come will create a major upheaval in the fundamentals of property law, it should be clear that any such major shifts will have inevitable profound influences on what may be wrongly viewed as “isolated” legal doctrines, including the taking/taxing taxonomy.

A New Right to Property: Civil War Confiscation in the Reconstruction Supreme Court

A New Right to Property: Civil War Confiscation in the Reconstruction Supreme Court DANIEL W. HAMILTON* During the Civil War, both the Union Congress and the Confederate Congress put in place sweeping confiscation programs designed to seize the private property of enemy citizens on a massive scale. Meeting in special session in August 1861, the U.S. Congress passed the First Confiscation Act, authorizing the federal government to seize the property ofthose participating directly in the rebellion.1 The Confederate Congress retaliated on August 30, 1861, passing the Sequestration Act.2 This law authorized the Confederate government to forever seize the real and personal property of “alien enemies,” a term that included every U.S. citizen and all those living in the Confederacy who remained loyal to the Union. Ten months later, in July 1862, the U.S. Congress passed the much broader Second Confiscation Act.3 This expansive law per­ mitted the Union government to seize all the real and personal property ofanyone taking up arms against the government, anyone aiding the rebellion directly, or anyone offering aid or comfortto the rebellion. This effectivelymeant the U.S could legally seize all the property of all those who recognized and supported the le­ gitimacy of the Confederacy. The Civil War represented the second great American experiment with broad leg­ islative confiscation during wartime, after the American Revolution.4 The Civil War isjustly described as America’s second revolution.5 Yet the nineteenth-century experience with con­ fiscation reveals the extent to which, when it came to the relationship of property and the state, the country had changed from the first revolution to the second. The outcomes of these two wartime experiments with con­ fiscation were nearly opposite. Revolutionary confiscation was marked by the quick, deci­ sive, vigorous pursuit of disloyal property. A great deal ofLoyalist property was seized for­ ever, without compensation or recourse to the courts. Eighty years later, confiscation met quite a different fate. During the Civil War, the A NEW RIGHT TO PROPERTY 255 Revolutionary conception of sovereignty found its fullest expression only in the los­ ing section. The Confederacy quickly put in place an effective confiscation program, de­ signed to seize U.S. property, that was every bit as zealous as any pursued during the Rev­ olution. Yet in the wake of Confederate de­ feat, this broad assertion of legislative power was quickly reversed. After the war, the Con­ federate confiscation program was completely dismantled. Soon after victory, the Union nul­ lified almost all the public laws ofthe Confed­ eracy, including sequestration. From the point of view of American law after the Civil War, it was quite literally as ifthe Confederate Se­ questration Act had never existed. The seizure of millions of dollars of U.S. property by the Confederacy was meaningless and had never, in the eyes ofthe law, taken place. If Confederate sequestration was marked by vigor, Union confiscation was marked by an agonized, intractable, ideological impasse. Union confiscation defied legislative consen­ sus andmostly failed inpractice as a result. The language ofthe Acts containedconfusing, even contradictory instructions, which made their enforcement immensely difficult, if not virtu­ ally impossible. Relatively little property was actually confiscated, and the Second Confisca­ tion Act was more or less ignored by Lincoln and the executive branch during the war before languishing in the federal courts for decades afterwards. Once confiscation ceased to be politi­ cally viable, it did not simply vanish. Instead, it remained a fixture in American property law for fifty years. Even as the executive branch ceased to confiscate property, the fed­ eral courts were beginning to considerthe vital legal and constitutional issues raised by con­ fiscation. These questions included many that the Supreme Court had not faced in seventyfive years, or had never faced. Was permanent, uncompensated property confiscation for dis­ loyalty a legitimate power of Congress? Did a presidential pardon mandate the return of already-confiscated property? Who had title to confiscated land, and how should it be treated in the marketplace? What was the le­ gal and constitutional status of the Confeder­ ate Sequestration Act and property seized un­ der the Act? The Supreme Court had never been asked these fundamental legal questions. Its...

The Public Trust: A Fundamental Doctrine of American Property Law

Professor Dunning argues that the public trust doctrine, with provides for public access to navigable waters and a significant range of related natural resources, deserves more recognition than it currently receives from property law scholars. He notes the doctrine in some states has taken on the status of an implied constitutional doctrine, which greatly adds to its theoretical interest and practical impact.

The Antiwilderness Bias in American Property Law

The Antiwilderness Bias in American Property Law

The Cherokee Nation Cases of the 1830s

The Cherokee Nation Cases Of The 1830s Jill Norgren “It is a serious thing, for abranch ofhistory, to lack a general treatment. It means there is no tradition, no received learning, no conventional wisdom. But tradition is needed: to define what is important and what is not, to guide students, researchers, other historians—and the general public. Withouttradition, thereisno framework, no skeleton, nothing to hang one’s ideas on, nothing to attack and revise.”1 Despite the early study of Native American cultures in school, most Americans leave high schoolknowingalmostnothingaboutthehistory ofNativeAmerican-UnitedStatesrelations.Fewer still have any knowledge ofthe law that governs thisrelationshipandtheroleplayedbytheUnited States Supreme Court in forming that law. This is neither surprising nor inexplicable. For years, writers in the fields of anthropology, history, law,andpoliticshaveassertedthatschol­ ars have dealt poorly—if at all—with subjects related to Native American-United States his­ tory. In his recent book The Long, Bitter Trail, anthropologistAnthonyF.C. Wallacewritesthat “it is remarkable how little attention has been paid to the [Indian] removal ofthe 1830s... .”2 HistorianHoward Zinn has notedthat two ofthe best-regarded studies oftheAge ofJacksondo not mentionPresident Jackson’sIndianpolicydespite its importance to his election and political vision. ContemporarysurveysofAmericanlegalhis­ torysimilarly devotelittle attentiontolegislative and judicial lawmaking as they have affected NativeAmericans, althoughlawwasundeniably the handmaiden for colonial and American na­ tional expansion in North America and contin­ uestobe importantin guidingNative AmericanUnited States relations. Most legal historians have shied from examining law in this context because they are not well-schooled in its content andbecauseits contentpresentstough questions concerning European occupation of the conti­ nent. As a result ofthis neglect and, perhaps for political reasons, federal Indian law has come to be thought of—to the extent that it is thought about at all—as a dull, complex “backwater of law” that many legislators, jurists, and scholars would willingly avoid.3 The error ofthisjudgment is amply demon­ strated by the Cherokee cases of the 1830s. In three appealstothe Supreme Court ofthe United States, the leadership of the Cherokee Republic petitioned the American jurists to address the most fundamental issues of power and rights. This article tells the story ofthese appeals, legal casesthatrequiredtheMarshallCourttodevelop an American law of real property and, in so 66 1994 JOURNAL doing, to consider nothing less than who should control the North American continent. In 1830 theleadersofthe Cherokee Republic, having internalized the ideals of American law, hired lawyers to litigate in courts of the United States. The lawyers they hired were Americans; the goal was to protect the Cherokee Nation’s internationally recognized political rights in­ cluding their national boundaries and sover­ eignty. The Cherokee soughtprotection fromthe actions ofthe people and the government ofthe stateofGeorgia. Georgianswereneighborsofthe Cherokee. Early Georgia-bound colonists had cometo the southeastern seaboard fromEngland beginning in the 1730s. As their numbers grew, the colonists came into increasing conflict with the Cherokee and other original inhabitants of the region over land and its use. The European colonists, whose standard ofliving was not nec­ essarily superior to that ofthe Cherokee, never­ theless had certain advantages in their pursuit of land. First, their numbers grew quickly, aidedby high population and apoor economyin England. Theirweapons weresuperior. Theybroughttrade and capital that permitted the creation of eco­ nomic and social networks helpful to expansion. Finally, the eighteenth century colonists had, in written language, a more efficient system of com­ munication in their far flung ventures than the Cherokee who, until the early nineteenth century, did not have a written form oftheir language. But most critically, the Cherokee and the Georgia colonists were separated by different world-views. The colonists came out of a tradi­ tion that honored individual effort and acquisi­ tiveness. Individual rights—however limited by gender, race, and class—was an emergingtheme in British colonial culture. The Cherokee, in contrast, livedbymore communalnorms. Among the Cherokee, for example, land was not held individually and was not considered a commod­ ity subject to individual commercial transaction. Very different understandings of the universe also separated Cherokee and Georgians. The colonists, drawingupon Western religious ideas, believed naturetobe God’s giftto man, subjectto man’s dominion. The colonist was both permit­ ted and expectedto tame nature and to develop it in ways appropriate to the growth of empire and the enhancement of...

Policy, Autonomy, and the Numerus Clausus in Italian and American Property Law

Policy, Autonomy, and the Numerus Clausus in Italian and American Property Law