"Atrocity, Entitlement, and Personhood in the American Property Tradition” examines how Americans have thought about property that they have committed atrocities to acquire and own. Scholars such as Gregory Alexander, Joseph Singer, and others have described property ownership as a core component of the “American dream,” embodying a set of social relations and civic republican ideas that ultimately promote “life and human flourishing, the protection of physical security, the ability to acquire knowledge and make choices, and the freedom to live one’s life on one’s own terms.” In contrast, my paper argues that the American property tradition was forged in a crucible of atrocity. Focusing on historical examples including the Native American genocide (in particular, King Philip’s War), slavery, and lynching, my paper examines how Americans have traditionally understood and justified atrocities through their property. Committing atrocities related to the acquisition and ownership of property leads people to develop strong “personhood” connections to it. Drawing upon Margaret Jane Radin’s classic formulation of the “personhood value” of property, a theory closely related to the notion of a progressive American property tradition, I argue that atrocities have boosted the personhood investment in property, which in turn has functioned to absolve owners of the inexcusable circumstances of acquisition and use. For twenty-five years, personhood in property has been celebrated for affirming civil and human rights and embodying a comforting alternative to efficiency and labor-driven accounts of property rights. “Atrocity, Entitlement, and Personhood” questions the theory’s political valance. Establishing a fundamental connection between property’s “human flourishing” values and its violent past, I suggest a hidden value in American property doctrine that impedes the progressive agenda and urge progressive property scholars to focus more on distributive justice.
Monday, December 19, 2011
Sharftstein Wins AALS Scholarly Paper Prize
Congratulations to Daniel J. Sharfstein, Vanderbilt University Law School, who has won this year’s Association of American Law Schools Scholarly Paper prize for "Atrocity, Entitlement, and Personhood: The Value of Violence in Property Law." Sharfstein presented at this year's annual meeting of the American Society for Legal History; I take the following abstract from the ASLH's website: