Thursday, August 17, 2006
I've been invited to guest blog for a while, an invitation which I am happy to accept. I have been reading Cloudsplitter, Russell Banks's enormous and fascinating novel about John Brown and his sons. Cloudsplitter has been in print for eight years but I'm sometimes slow to catch up. Read (or re-read) it, as it offers remarkable insights into the nature of property (human slavery, of course, in this instance), the way some things lose their status as property, and the psychological process that produces extreme political violence, usually called terrorism. As to the latter point, Banks's fictional account of the process by which John Brown and his sons turned to radical violence in their moral quest to end slavery in America resonates particularly strongly in this era of global terrorism rooted in religious conviction. As to property, Cloudsplitter raises, at least to a property prof, questions about how things lose their status as property. As we all know, property is not about the relations of people to things, but about the relations between people with respect to things. How does (should) society restructure these relationships to "de-propertize" (if that's a word) such relationships? We use ordinary legal processes to (mostly) increase the range of legal entitlement to intellectual property, and we rely on custom to create socially (if not legally) recognized entitlements to such things as a parking place from which one has cleared the snow, or a seat at a meeting. These processes work in reverse, in theory, but how often do we actually eliminate property? Extending the public trust doctrine to provide waterfront access is an example, but such extensions are limited by the takings clause. Did Lincoln's Emancipation Proclamation constitute a taking? Odious thought, of course. We start out Property by asking students to figure out where property rights come from in the first instance. Cloudsplitter caused me to wonder whether we ought to spend a little time also in the beginning asking students to figure out when and how property rights ought to disappear.
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