Saturday, February 2, 2008

Schorr on Blackstone

I'm just back from Sacramento where I tried out a paper on landscape art and antebellum property law at McGeorge Law School, University of the Pacific. It was good to see old friends, like Brian Landsberg whose recent book on the voting rights act, Free at Last To Vote: The Alabama Origins of the Voting Rights Act, you might enjoy. (Brian was with the Civil Rights Division of the Justice Department and in Selma the night that Jimmie Lee Jackson was killed in Marion--that's a story for another time, though.) The comments were of great help and perhaps I'll talk a little bit about the paper before I turn into a pumpkin here (i.e., before my visit ends). One conclusion about traveling between Tuscaloosa and Sacramento: you can't get there from here! I saw the sun rise as I was on the first of three flights yesterday (it rose over the Rocky Mountains; quite beautiful, even if I'd rather have been sleeping at the time, as I was on my way from Sacramento to Salt Lake City). Well, airplanes beat the covered wagon, for sure....

You may be interested in "Who Said Blackstone Was a Blackstonian? " by David Schorr of Tel Aviv University - Buchmann Faculty of Law. Here is Professor Schorr's abstract:

Based on Blackstone's famous characterization of property as "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe," "Blackstonian" property has become shorthand for a conception of property as individual, exclusive and absolute dominion. Yet the anointment of Blackstone as the symbol of property absolutism is odd; his characterization of property as sole and despotic dominion is largely at odds with his own exposition of the property law of England. Property in the Commentaries was full of complex arrangements of rights, creating communities with respect to specific assets and recognizing the rights of the community in what was nominally private property. Why has exclusive dominion as a model for property, then, come to be associated with Blackstone, of all people?

This paper begins by surveying the Commentaries, revealing that Blackstone placed property's complexity, and the typical lack of an owner with sole and despotic dominion over an external thing, front and center. Several possible explanations are offered to explain why Blackstone would first characterize property as sole and despotic dominion and give several hundred pages of illustrations undercutting this definition. It shows how Blackstone was long associated in the property context with doctrines portraying property as a bundle of rights, and how only in recent times, particularly in the United States, has Blackstone come to be associated with sole and despotic dominion. Finally, it offers an explanation for the new popularity of Blackstone as the avatar of absolute dominion.
It's available on ssrn.

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