Wednesday, October 18, 2006

Hicks on the Property Law Frontier

Gregory Alan Hicks (University of Washington School of Law) has posted Memory and Pluralism on a Property Law Frontier on SSRN.  Here's the abstract:

This article explores the limits of legal victory and the problem of legitimacy of legal outcomes. It chronicles the decades-long dispute between Hispano settlers on northern New Mexico's Sangre de Cristo land grant and the succession of entrepreneur owners of the grant in the last decades of the 19th century and the first decades of the 20th century. The dispute occurred on a legal and cultural frontier defined by the transition from Mexican to U.S. dominion in the years following the end of the Mexican War and by the opening of the region to larger scale economic development at the end of the 19th century. The new Dutch and American owners of the grant sought to displace patterns of land and resource use developed during the Mexican colonial period, and suited to the frontier circumstances and subsistence local economy of that earlier period, with patterns of use intended to encourage new colonial settlement and the intensive development of the region's natural resources. In spite of winning every legal challenge to their new ownership, the new entrepreneurs struggled to establish effective control over land and resources to which they held formal title. The resistance of the Hispano settlers produced continual litigation and exacted efforts from the entrepreneurs to appease the sense of right of the Hispano settlers faced with extinction of their customary rights of access to the land and resources. The settlers' resistance, grounded in a sense of right based on the circumstances of their settlement and in an unwillingness to be displaced from their homes, proved enduring, and stymied the efforts of the entrepreneurs to develop the land as they would have preferred. Using correspondence and litigation records, this article reconstructs the dispute between the U.S. Freehold Land & Emigration Co. and its successors and the Hispano settlers, who organized themselves as the Defensive Association of the Land Settlers of the Rio de Costilla. The article situates the Costilla episode as one of several in American legal history where popular property norms diverge from the property rules offered by the legal system. The article is strongly grounded in the specifics of the Costilla dispute, but it uses its sense of locality to explore larger questions about law, dissent, and the challenges that are posed when a legal system is asked to absorb and reflect pluralist values.

Ben Barros

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