Sunday, November 5, 2006

History of Property Favorites

Horwitztransformation I'm just back from the AALS hiring conference.  I was impressed, as always, with the thoughtfulness and quality of people I met there.  Never ceases to impress me how talented the new generation of law teachers is.  Seems to me that the people on the market these days have really promising research agendas and have already done great work--and they seem even better than I remember from previous years.  I learned a lot from the interviews. Now that I'm home, I thought I'd post on one of my favorite topics: scholarship on property history.

This post is inspired by our friends over at prawfs.  They are making their way through the "canons" project, which I think is a great idea.  They came to legal history recently.  I enjoyed the suggestions that the community has over there for legal history (and was pleasantly suprised to see how many books were recommended outside of American legal history).  I thought I might add a little bit about works in the history of property.  And because I suppose my list is idiosyncratic, I thought I'd call them "history of property favorites" rather than something grand like the canon--they are works I enjoy and have learned a lot from and probably deserve some grand term.  I just don't feel qualified to give them that term.

Grossdoublecharacter I love Morton Horwitz's Transformation of American Law and Greg Alexander's Commodity and Propriety.  I taught Ariela Gross' Double Character for the first time this semester and the discussion was one of the best I've ever had on a monograph--it appeals to this generation of law students (or at least those who sign up for a seminar on the history of property).  James Ely's The Guardian of Every Other Right's a great, comprehensive introduction to the literature.

Then there's the periodical literature.  Maybe the best article I've ever read in legal history (and there are lots and lots of great ones out there) is William Fisher's "Ideology, Religion, and the Constitutional Protection of Private Property, 1760-1860," in 39 Emory Law Journal 65 (1990).  A rival in the greatest category: Adrienne Davis' "The Private Law of Race and Sex: An Antebellum Perspective," 51 Stanford L. Rev. (1999) on the implication of slave marriages for intestate succession.  Of course, Stephen Siegel's "Understanding the Contracts Clause: The Role of the Property-Privilege Distinction and 'Taking' Clause Jurisprudence," 60 S.Cal. L. Rev. 1 (1986) is encyclopedia.  Siegel categorizes, so far as I can tell, every takings case in the nineteenth century; and gives a great framework for understanding property jurisprudence.  You'll also want to check out William Fisher's  "Ideology and Imagery in the Law of Slavery," 68 Chicago-Kent Law Review 1051 (1993)

In terms of property doctrine, an under-appreciated and terrific article is Charles Reid's "The Seventeenth-Century Revolution in the English Land Law," 43 Cleveland State Law Review 221 (1995). (I'm also partial to my work on Stowe's interpretation of southern legal thought in Dred: A Tale of the Great Dismal Swamp in the Boston University Law Review back in 1998.  Mark Tushnet writes about this and other topics as well in his important book Slave Law in the American South.)

In terms of legal history theory (with application to property), there's William Fisher's “Texts and Contexts: The Application to American Legal History of the Methodologies of Intellectual History,” 49 Stanford Law Review 1065 (1997).  And along those lines is the exchange between William Nelson and Robert Gordon on critical legal history.  "An Exchange on Critical Legal Studies between Robert W. Gordon and William Nelson," 6 Law and History Review 139 (1988).

Well, that gets a list started.  More later.

Alfred Brophy
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