Nothing Certain

Book the Second, Chapter the Eighteenth, Of TITLE by FORFEITURE.

This is one of those chapters where Blackstone revels in the tricks of the legal trade. Nominally, it’s about forfeiture doctrine – that is, the rules by which property is lost as punishment for “some illegal act, or negligence, in the owner of lands.” (II, 267) But the main thrust here is the great artifice of law, and the ins and outs of a system of property rights designed to survive our individual demise. So this also turns out to be a chapter about mortality. No surprise there, I guess. A chapter about forfeiture is a chapter about loss.

I must have heard the expression, ‘nothing’s certain but death and taxes,’ about a million times, but it wasn’t until I read this chapter that it occurred to me that these two phenomena are not just similarly unavoidable but causally linked. As Blackstone reminds us, in feudal society all land grants were for the life of the individual recipient only. Every feudal landholder’s death precipitated a transfer back to the lord, or his descendants, and a redistribution – all of which occasioned various payments and fees that amounted to taxes on the property. So, where there was death, taxes were sure to follow. Here, of course, is where the craft of lawyers comes in. You might think taxes would be easier to avoid than death, but medieval lawyers attacked the problem from the other side. Their solution was to create a kind of legal person who would never die, and so would never transfer land and have to pay taxes. That legal person was, of course, the corporation.

These days we worry about corporations getting too big and too powerful, and influencing politics in undemocratic ways, see Citizens United. But whatever political problems they may cause, corporations are generally figured as the lifeblood of a healthy economy. Blackstone worries about corporations, especially charitable corporations, lasting too long, that is, indefinitely, and interrupting the circulation of property’s fruits and profits.

The chapter opens with six pages on the 500-year-long battle of wits waged between Parliament and the church to collect/avoid taxes on land held by the church corporations. Naturally, as Blackstone points out, this was actually a battle between Parliamentarians and lawyers for the churchmen, “who, Sir Edward Coke observes, in this were to be commended, that they ever had of their counsel the best learned men that they could get.” (II, 270) The state’s main legal tool for keeping land out of the tax-free hands of the church was a license in mortmain – a dead-hand license, so called because land sold to the church effectively ceased all circulation. No more circulation, nor more life.

Reading this, I couldn’t help thinking of private colleges and universities. Some time ago, I heard the president of Vassar College on the radio celebrating the increased “economic diversity” of her college’s student body. Vassar has an endowment of over 800 million dollars and by my rough calculations from the website is taking in another 60 million a year from tuition, but as a non-profit corporation is exempt from most property taxes. That of course means that to some extent, the experience Vassar offers its students is being subsidized by the rest of us taxpayers.

A lot has been written about the high price of college lately. The Vassar president explained that it is hard to keep costs down because elite colleges compete for the progeny of the economically privileged who are “investing a lot in their children.” These families want “great things” for their kids, including “lots of single rooms, and great faculty, and small classes.” Standing in my kitchen, slicing a tomato and listening to this out of the corner of my ear, I thought, Single rooms? Really? Spending on financial aid, the Vassar president continued, means cutting back on other things. Apparently not on single rooms, though. The Vassar website informs me that “a high proportion” of dorm rooms are singles.

I know I shouldn’t be surprised by this. I teach property law, and I’m forever pointing out to my students the tight, tangled connections in the United States between private real estate and personal identity. But honestly it kind of blows my mind that with all the outrage about income inequality, lack of access to educational opportunity, and the insane cost of college these days, single dorm rooms are still regarded as one of the indispensable “great things” a top quality college has to offer. It’s just that it enacts the basic privilege of exclusion in such a primitive way that it’s almost funny.

I don’t mean to single out Vassar. The whole reason Vassar’s president was being interviewed on the radio show I happened to catch is that the school is a standout for its efforts to broaden its student base. Harvard admits a lower percentage of low and middle-income students and is sitting on an endowment of over 30 billion tax-free dollars. Plus, all of this has a nitpicking quality. The real question, I suppose, is what becomes of all the resources poured into the young people who attend these schools. To return to Blackstone’s framework, we might ask whether the fruits and profits of all that tax free property ever emerge back out into the wider world. Clearly the answer is yes. Harvard and Vassar grads have cured diseases, solved engineering challenges, written great poetry, sung great songs, worked to bring about transnational peace accords, and served as national and international leaders, including, of course, our current POTUS.

Still, there’s reason to think the dead hand metaphor may have some continued relevance. In the spring of 2014, precious few of Harvard’s graduating seniors were going to public interest jobs. Only “3.5 percent were headed to government and politics, 5 percent to health-related fields, and 8.8 percent to any form of public service.” Washington Monthly And it’s not just a question of opting for more commercial paths. In the mid to late twentieth century ivy league grads interested in corporate careers “tended to choose management training in industrial, aerospace, or chemical industries.” Now, not so much. Today nearly a third of Harvard graduates go to financial jobs on Wall Street or work for one of the big corporate consulting firms, like McKinzie and Bain, where, presumably, there talents will circulate in a very narrowly elite market indeed. Maybe the picture of a gnarly old hand squeezing shut the channel through which these resource-laden young graduates pour back out into the world is not so far off after all.

This chapter makes clear that the whole dead-hand problem is a function of a foundational property law concept: the idea that property rights extend over time. It is only because of the great common law invention of inheritable estates that we face the dead-hand problem of property’s failure to circulate. Then again, it is only because of the concept of estates in time that property can defeat death.

In a sense the very notion of property rights, rather than sheer violent control, a vision of how things should be rather than just the way they are, begins with ownership over time. This may be hard to see today, because in mainstream U.S. culture desire for real estate is mostly figured in space and stuff. It’s all about the square feet and original detail. But Blackstone and the common lawyers who came up with the legal rules that still inform today’s property concepts were obsessed with “estates in time.” I try to imagine the moment (of course it wasn’t a moment; it must have been a long spotty period) when the idea took hold, when people realized that they could construct an institution of land holding that extended beyond immediate occupancy into a continuous future beyond an owner’s lifetime. How must that have felt? In my imagination it is slightly disorienting, and kind of hysterical.

By coincidence, at the same time I was reading this chapter I was finishing the first book in Karl Ove Knausgaard’s absurdly long and meandering series of autobiographical novels, My Struggle. Here is what the narrator Knausgaard has to say, as he views his father’s dead body for a second time: “Now I saw his lifeless state. And that there was no longer any difference between what once had been my father and the table he was lying on, or the floor on which the table stood, or the wall socket beneath the window, or the cable running to the lamp beside him. For humans are merely one form among many, which the world produces over and over again, not only in everything that lives but also in everything that does not live, drawn in sand, stone and water.” Book I, 441.

Reading this it struck me how perfect it is – was, to construct a legal triumph over human mortality by investing these inanimate things with human identity through the idea of ownership. It’s a cliché by now to point out that our system of inheritance functions as a way for people to achieve a kind of immortality, or at least to strive toward a kind of fictional substitute. But what we don’t think about, or, I didn’t, anyway, until I happened to read Blackstone and Knausgaard in the same week, is that this immortality is achieved through a means that is far from accidental. What I mean is, that the symbolic immortality here has a double meaning, because not only does the person who dies manage to live on in some way through passing down her property but, at the same time, as property, the material world – the sand, stone, and water and even the electrical sockets – acquires a life, or afterlife.

Once again I’m forced to consider how much our modern legal consciousness has in common with animistic practices that connect the living and the dead through various forms of “possession” and “invest” the space a person occupies with her spiritual identity. This rather magical identification may explain how I’ve been feeling recently about my own house. I’ve never been a particularly meticulous housekeeper, to put it mildly. But lately, dirt fills me with dread. I’m looking now at the streaky window by the sofa where I’m writing and the slightly dingy curtains, and the sight of this unkept stuff is almost more than I can bear. The insouciance of youthful chaos is entirely absent here. I have a premonition of things coming apart, body and mind and spirit separating in the sandy bed sheets, the stain on the formica; entropy coming for us all.

Something has to be said here about the property law doctrine of waste, which Blackstone introduces in this chapter. Waste is “a spoil or destruction in homes, gardens, trees or other corporeal hereditaments to the disherison of him that hath the remainder or reversion in fee simple or fee tail.” 281 In other words, if you have a right to live on land or in a house for a limited time, for instance on a lease for a term of years, or as the owner of a common law “life estate” (meaning that the property is yours until you die), then you can’t do, or not do, something that ruins the property for the person entitled to it after you are gone. Note that this is not just a question of actively looting or destroying a place. As Blackstone puts it, waste is not just “pulling down a house,” but also “suffering it to fall for want of necessary reparations.” (II 281) Waste can be a simple lack of maintenance, giving entropy free rein.

Nor is the prohibition against waste just a matter of preserving value. Even profitable alterations are forbidden. It’s a question of transformation, of changing or erasing the identity of the land from which the estate springs, so that the property becomes unrecognizable.: “The conversion of land from one species to another is waste. To convert wood, meadow or pasture into arable, to turn arable or woodland into meadow or pasture; are all of them waste.” (II, 282) Why? Because it changes “the evidence of the estate.” Id. This seems literally to mean that such a change might make it harder for the person entitled to inherit the property to prove ownership. And I suppose that could be true in a system where land parcels are identified not by surveys and GPS coordinates but descriptively. But as is often the case in law, it is hard, if not impossible, to separate the proof of the right from the right itself. If you’re entitled to inherit a meadow and the meadow disappears and in its place there’s a wood someone might ask if you’re entitled to anything at all. What you were in line to get seems to have changed and in a system that constructs individuals’ identities through their relationship to lasting landscape, that’s a big problem.

The social free fall linked to the sort of landscape transformation that counts as waste makes an appearance in one of the few English texts more famous than the Commentaries, Shakespeare’s Macbeth. Recall the last prophecy Macbeth receives (from an apparition in the shape of a child holding a tree) that “Macbeth shall never vanquished be until Great Birnam Wood to high Dunsinane Hill Shall come against him.” Act IV, Scene 1. Is this not a kind of shock-and-awe version of converting woodland into meadow and meadow into wood? Macbeth responds in an odd third-person speech that I now see is suffused with the morality of common law inheritance and its power to animate ordinarily inanimate objects.  He declares that because an uprising of trees is unthinkable, “our high placed Macbeth shall live the lease of nature, paying his breath to time and mortal custom.” Id.  It’s as though he’s looking down the wrong end of the telescope at the metaphor coupling hereditary property and immortality.   Instead of seeing ownership of an inheritable estate as a way to conquer death, Shakespeare’s doomed anti-hero figures his human lifespan as a temporary form of property, the kind that is subject to waste, a natural “lease” that he must “pay” with his breath to the landlord time. Literally, as a great lord, Macbeth certainly owns inheritable property. But he has no children. More to the point, Macbeth is nothing if not narrowly self-absorbed, obsessed throughout the play with enhancing his own immediate position with no thought of lasting consequences. With no sons to whom his property could pass, and with no apparent concern for establishing his succession, Macbeth is not in a position to take advantage of the common law invention of estates in time. Live by the ethic of fleeting individual triumph, die by it. Having opted out of the whole social system of inheritable property rights, all the land and power in the world cannot help him transcend the mortal “lease of nature.”  Ultimately, of course, the landscape does move against him, and even that limited lease is cut short.



Filed under Uncategorized

Make the Law by Walking

Book the Second, Chapter the Seventeenth. Of TITLE by PRESCRIPTION.

This chapter is about a legal doctrine that is easy to articulate and hard to believe: by using land for a long time as if it were rightfully yours to use, you acquire a legal right to use it. Prescription turns trespassers into stakeholders, while owners who have purchased or inherited their land through a flawlessly formal legal process lose the right to exclude them.  No wonder the students in my Property class are scandalized.

The right to exclude other people from your property is considered a crucial part of individual autonomy and a backstop against government tyranny. Yet under the common law doctrine of prescription, if you don’t intervene the folks who beat a path across your lawn day in and day out acquire a prescriptive right of way. Stop and think how perverse this is. One of the main reasons we have a legal system is supposedly so individuals don’t have to enforce their own rights.   Law enforcement takes over so that private citizens do not have to resort to force to protect what’s theirs and send us all back to the old “war of all against all.”   But with prescription, it’s use it or lose it.

Generally, when life and law face off directly, it’s the law that comes out on top. Law’s rituals – signed contracts, deeds of sale, jury verdicts – may be consistent with quotidian behavior or in conflict with it, but it’s understood to have priority – otherwise it’s not really clear what legality is, or what law is for. Sure every day life goes on its way heedless and often contrary to formal legal rules. But once it comes to formal legal action, once legal rules are invoked on their own terms and routines called to account, law masters, interrupts and shapes the relations and activities of everyday life. In fact law seems almost definitionally about this kind of interruption, these hesitations and callings to account – -from papers that must be signed to traffic signals that must be obeyed to the licenses we have to wait in line to obtain. There’s an annoying commercial on the sports radio station here in Pittsburgh about a local requirement to alert the gas company before putting in a new fence or foundation, with a jingle that captures the glitchiness of this legus interruptus: “Before you dig, call 811, it’s the law, call before you dig . . . .” There goes the law again, breaking up the flow, chopping life into little pieces with discrete edges that have to be arranged just so. You can’t just go about your business, putting in those fence posts – you’ve got to follow the law.

Prescription upends this order. Picture all these folks just shuffling along from here to there. Not only does the law not hold them up when they trespass on your land, not only do they get to keep on walking unless you take it upon yourself to stop them, but by walking they acquire a legal right to keep on doing exactly what they’ve been doing all along, which is, of course, breaking the law!

Blackstone is very clear that the property rights prescription creates are just legal as the rights that were disrupted. In fact, he makes a big deal in this chapter about the difference between prescriptive rights, which he classifies as personal legal rights and custom, which “is properly a local usage, and not annexed to any person. So, for example, there might be “a custom in the manor of Dale that lands shall descend to the youngest son, but if “Sempronius, and his ancestors, or those whose estate he hath, have used time out of mind to have such an advantage or privilege,” that’s a personal prescriptive right. II, p. 263 Another example of custom that he gives is “if all the inhabitants of the parish of Dale “may dance on a certain close, at all times, for their recreation.” Id. According to Blackstone, “this is strictly a custom for it is applied to the place in general, and not to any particular persons,” while, if the owner of the Manor of Dale “alleges that he and his ancestors . . . have used time out of mind to have common of pasture in such a close, this is properly called a prescription; for this is a usage annexed to the person of the owner of this estate.”Id. at 263-264.

Notice that functionally custom and prescription seem to convey the same opportunity to use property that is not formally your own. Any of the conduct Blackstone cites as customary could be allowed to someone via prescription, and vice versa. The manor owner could be dancing on the green under a prescriptive right and the villagers could be pasturing their sheep there by custom. The difference isn’t the kinds of activities allowed, or even, really, how people acquire the ability to keep on engaging in those activities, since both custom and prescription basically develop just by people living somewhere in particular and doing something in one particular way for a long, long time. The difference is the way we think about those activities.

There’s a kind of foreshadowing here, of H.L.A. Hart’s observation that obedience to law doesn’t just involve doing or not doing something but also what you think about what you are doing or not doing. As Hart pointed out, our concept of law entails recognizing a difference between habitual and law-abiding behavior.  An observer from Mars likely wouldn’t see much difference between someone stopping every day on the a street corner to adjust her hat and someone stopping there regularly whenever the light is red. But to those of us living in the culture of traffic regulation these two acts have quite different meanings. Stopping for hat adjustment is some kind of routine or maybe just a repeated accident, while stopping for the red light is obedience to law. Blackstone’s distinction between custom and prescription isn’t exactly the same as Hart’s contrast between habitual and law abiding conduct, because the idea of custom still seems to incorporate some sort of normative permission or even a kind of informal mandate, but the big idea is there: Law isn’t just about what people do, but also what they think about what they are doing. Dancing according to custom and dancing by legal right might look exactly the same, but the dancers don’t think they are doing exactly the same thing.

The crazy thing, of course, is that the legal rights Blackstone is contrasting with custom come about by erasing and reversing the line between habit and obedience, trespassing and lawful use. Prescription turns interlopers into rights holders, and makes law abiding performance out of daily routine, and a law violating routine at that. But maybe that’s the point. It’s not just that law depends on a difference between quotidian habit and formal rule following, but that law can transform one into another. And what better evidence of the ultimate power of the law than its ability to make legal rights out of the dross of everyday existence.

In the end, I think part of why my students are so irked and mystified by prescription is that even before coming to law school, they were steeped in a culture that puts belief before practice, planning before action, mind before matter. All their lives they’ve been taught to identify a goal and go for it – eyes on the prize! You dream big, discipline yourself, and work to fulfill the ideals you envision. That’s how they got into law school, for God’s sake. And now that they are here, they find that the dominant concept of law is a version of the same instrumental approach: law is figured as a tool for accomplishing social projects.

Prescription messes with that whole neat scheme. Prescription is like an intersection, a crossroads or a doorway between the ordinary moves of daily life and the meaning laden work of formal legal action. It’s a place where everyday life and the lives of every day folks enter into law’s work of regulating and constructing social structures. A place where the unscrutinized world of daily routine and the legal world of pregnant meaning meet and change places – where we discover that legal meaning comes from daily life as much as it controls and orders it, and that the potency of legal rights need not come from carrying out abstract concepts of universal human rights, or predictions of socioeconomic utility, but can materialize out of the ordinary human grind. As Bronislaw Malinowski said of Trobriand magic, it is “a primeval possession of man to be known only through tradition and affirming man’s autonomous power of creating desired ends.” Argonauts of the Western Pacific 75-76.


Filed under Uncategorized

Why Begin at the Beginning?

Book the Second, Chapter the Sixteenth. Of TITLE by OCCUPANCY.

This chapter is about where things begin and what they become. For Blackstone, “the true ground and foundation of all property” is occupancy, or, “the taking possession of those things which before belonged to nobody.” II, 258. You might expect that Blackstone would want to show that his beloved common law reflects that original justification, the only one that “natural reason suggested.” Id. Possession is still a crucial factor in determining who owns real estate, so Blackstone easily could have stressed its continued legal role. But no. Instead he chose to emphasize that private property’s original justification had been “confined by the laws of England within a very narrow compass.” Id. What’s up with that?

As John Berger says, origin stories are always about trying to understand the way something is, not just the way it started; otherwise we wouldn’t care. About Looking, 6.   In the story Blackstone tells, the original mode of acquiring land has been reduced to a single, oddball circumstance – a way to patch the failure of a particular cranky form of ownership known as a life estate pur auter vie. II, 258. At first it just seemed perverse to me that in the property scheme Blackstone describes possession, the only natural law basis he recognizes for private ownership, is relegated to this tiny stop gap. Then I began to think about how marginalizing that natural law justification expanded the importance of the creative legal fictions that Blackstone celebrates.

In Blackstone’s vision, the artificial structures of property descent — the tables of consanguinity, the counting of degrees of connection, the lineal and collateral lines, the confabulated treatment of a newly purchased estate as something passed down from a distant ancestor – extend to cover virtually every contingency. Once land has been owned, it will always belong to someone. If the family bloodline runs out, it goes to the descendants of the lord who gave or sold the land to the owner’s ancestor. Failing that possibility, it goes to the king. II, 259.

So when Blackstone writes, in an oddly emphatic first person, “This, I say, was the only instance; for I think there can be no other case devised, wherein there is not some owner of the land appointed by the law,” II, 261, he is reporting a stunning triumph of legal creativity. Think of it! All those cunningly crafted estates spread out and interwoven through various forms of purchase and descent to cover all of English time and space – all except for this one tiny gap where artifice fails and we see natural law peeking through the gorgeous man made surface. It reminds me of the Persian carpet flaw, the deliberate glitch in the otherwise flawless pattern, supposedly put there in deference to God’s unique capacity to create a perfect object, but, of course, by its very presence proving just the opposite — that the mortal master weaver could and would have produced perfection, had he not chosen to make a purposeful mistake.

Blackstone tells a story of the English landscape’s complete conversion from common space to private property through the application of common law artifice and fictions, a story that stands in striking contrast to the founding American property myth of the wide open spaces. But there’s a crucial link. All the ostensibly unowned American land is ripe for transformation through those same common law fictions and doctrines into private property. The techniques Blackstone describes, can be used to appropriate that land, not just for the luxury of personal privacy, but as a source of real political power. Remember that in both eighteenth-century England and the early U.S., the privilege of choosing law makers belonged exclusively to men who owned property. Only owners could vote. Think of the potential, then, lying out there in all that unoccupied American land, just waiting to be converted into politics through the application of common law property doctrine.

There was only one problem: the American continent was not actually unoccupied. The colonists’ land acquisition was less a matter of taking “things which before belonged to nobody” than of eradicating the previous occupants. This was a time honored colonial practice, which Blackstone described with gimlet clarity as “seising on countries already peopled, and driving out or massacring the innocent and defenceless natives, merely because they differed from the invaders in language, in religion, in customs, in government, or in colour.” II, 7.   Given the obvious application of that critique to the American project, it is rather surprising that Blackstone’s Commentaries was the most popular legal text in the early United States.

I’ve heard lots of explanations for Blackstone’s early American popularity: because the Commentaries was available at a time when case reports were hard to come by; because of his readable style; because his emphasis on natural rights and limited government lined up with the political philosophy of the new republic. Probably all of these were at work. Personally, though, I wonder if the American affinity for Blackstone had more to do with Blackstone’s appreciation for legal creativity. For better and for worse, legal imagination is what the American founders needed. They needed the fictions and artifice of the common law to reconstruct colonial violence and transform an occupied landscape into wild commons and then into exclusive private property. Blackstone made those common law techniques accessible.

Without such a creative tool for transforming past violence into present legitimacy, you’d be unable to investigate the past. You could never face the violent past of any valued institution. Your only resort would be blanket denial. That’s what seems to be going on, for instance, in a strange New Yorker article I read recently about, of all things, the Parthenon. The article, by Daniel Mendelsohn, reports on a book by anthropologist Joan Breton Connelly, expounding her theory that the Parthenon was built as a site for human sacrifice, specifically ritual killings of young girls thought to guarantee Athenian victories in wars with neighboring city states. Mendelsohn trashes the idea. He pokes fun at the “emotionality” of Connelly’s argument, and makes her sound like an overwrought Girl Scout leader flapping her hands at the dirty bits of an established classic. Mendelsohn can’t deny the violent strain in Athenian culture, including “tales of virgin self-sacrifice.” Apparently, he has read Antigone.  In any case, he explains condescendingly that these killings are “old hat”; they “were clearly to be taken metaphorically” The unsophisticated girl scout leader just doesn’t get the joke! But the whole point of Connelly’s book – which I have not read and am only getting via Mendelsohn’s critique – seems to be that the presumed metaphoric nature of the violence is exactly what we ought to reconsider.

At this point the article takes a weird, and decidedly Freudian, turn. It turns out that Mendelsohn has his own longstanding fascination with the Parthenon, and a deep investment in the innocence of that interest. He describes how as a young boy he labored over models of the building – first a cardboard version with toilet paper rolls for columns and, later, in junior high school, a table-sized project with a modeling clay frieze – the same frieze Connelly now contends depicts teenage girls on their way to the slaughter. Mendelsohn’s description of his relationship with “the maiden chamber” is a textbook gendered reversal of the overheated response he attributes to Connelly. Even as an adolescent, he manages not to succumb to crudely literal fantasy. Instead he’s down there in his parents’ basement night after night busy with his mathematically proportioned model, because, after all, what else would a teenage boy be doing with his hands?  And while Connelly is still ranting hysterically about the terrible things being done to virgins in some secret chamber, Mendelsohn has moved on. He never finished his model and has no idea what became of it. Recently, though, “out of sentimentality” he bought a flea-market plaster cast of the Parthenon frieze and hung it in on his living room wall, where he likes to contemplate it by candlelight (I am not making this up!). So he has come up out of the basement into the light and his adolescent need to get his hands around the object of desire and find out how the thing is put together has matured into a dignified visual appreciation. So should we all be satisfied, he suggests, with what we know and what we don’t about our cultural icons. After all, Mendelsohn assures us, we “know that they are beautiful.”

Here is an attitude Blackstone never would have tolerated. He may be criticized as the purveyor of imaginative historical and legal fictions contrived to legitimate political violence, but he was not afraid to uncover that violence. Indeed, Blackstone’s faith in the imaginative, transformative power of law seems to allow him to look with unusual directness at the social and political hierarchy he wants to legitimate. In contrast, Mendelsohn is both afraid to imagine the blood bath origins of his personal favorite icon of Enlightenment culture, and unable to imagine that culture has the capacity to recognize and repair a horrific past. He doesn’t even seem to realize how his need for purity all the way down tends to diminish the creative power of the Enlightenment culture he cherishes. Not that this attitude separates him from most of us most of the time. We all want to maintain as much innocence as possible – Blackstone included.

Blackstone’s antipathy to the U.S. is generally understood to be a product of his Tory politics, but possibly his antagonism owed something to the Americans’ use of the creative legal fictions he championed to legitimate acts of horrific violence. It is striking the way he repeatedly connects the U.S. with its recent violent abuse of the same first occupancy that he discounts as having any role in contemporary English property. It’s as though the more Americans embrace Blackstonian legal fictions to legitimate settlers’ property in the new republic, the more Blackstone wants to emphasize that American private property is still tainted with the injustice of its original acquisition.

Finally, it strikes me that there is another lurking appropriation of property here, an individual occupation of previously common cultural ground. I am thinking of the Commentaries itself. In fact, what better way is there to describe Blackstone’s packaging of centuries of wildly disparate court opinions and social practices into four coherent volumes than as his “taking possession of those things which before belonged to nobody” and to everybody. With the success of his treatise, Blackstone became in a way the private owner of the common law, the singular authority in charge of what had previously been a vast, untamed commons. Maybe, in the end, Blackstone identified with the American founders. Now that I think of it, the most creative legal fiction of them all is the notion that once Blackstone was through with his appropriation, the common law was still common. Of course it continues to be shaped and reshaped by judges, lawyers and changing social norms. But at the same time we surely see Blackstone as a kind of common law proprietor.   To this day, through interpretations of his text, he exercises an owner’s power to police the boundaries of his property, to say what belongs in and what doesn’t, and maintains a private estate whose temporal reach, so far, appears infinite.



Leave a comment

Filed under Uncategorized

Escheating Death

Book the Second, Chapter the Fifteenth. Of TITLE by PURCHASE, and First by ESCHEAT.

This chapter is about line drawing – and erasing. The focus is ostensibly the line that separates two different ways of acquiring property: by descent or by purchase. But a graphic Table of Descents shows that Blackstone is also interested in lines that connect things. Staring at this map of property’s passage across generations, it struck me that the common law system of property rights both defies and mimics mortality.

If you think about it, it makes sense that there would have to be some kind of extinction of the hereditary line. As a structure built to triumph over death, property has to go on after an owner dies. But only something convincingly lifelike can defeat death, and death is part of life, so to make inheritance a convincing meta-life, there has to be a risk of meta-death: “The law of escheats is founded upon this single principle, that the blood of the person last seised in fee simple is, by some means or other, utterly extinct and gone.” Bk II, 245.

Sitting with my mother in the weeks before she died, I had the impression that she was making an effort to stay connected, even as she lost her connection to the past that had for so long sustained her. It was the first time in all the years of her dementia that she ceased to talk about New Orleans, where she was born and grew up, and she seemed no longer to remember the house on Oak Street where so often in the past decade she was convinced she still lived. In a strange way she became more present just as she began to disappear. I realized that she had begun to catalog the things she saw. First it was couched as commentary: “That’s a really nice picture,” “I like that dress you are wearing,” “the clouds are beautiful.” Then gradually the evaluation fell away, and she would just name things –“trees,”or, more often, colors –“blue” “white.” And then she stopped. You could almost hear the guy wires let go, like that weird stage direction at the end of Chekhov’s Cherry Orchard (a play, incidentally, about the fate of family property): “A distant sound is heard from the sky, as it were, the sound of a snapping string mournfully dying away.”

The family line, the blood line. What is line-like about family life, anyway, that chaos, that crowded (or deserted) space where people come and go and mix it up together? The family porridge, the family cistern, the restless nightmare bed, the old blood bucket.

Is there anything more hopeful than a straight line, more redolent of a desire to straighten out this mess once and for all and get on with it for God’s sake? The optimism of it. Blackstone is the great organizer of common law confusion, but he never fully capitulates to this drive for linear abstraction. On his Table of Descents, ancestors and descendants connect with lines shaded to look three dimensional, like ropes, maybe, or pipes the blood flows through. They zig-zag across the pages like Seussian plumbing or those plastic tubes my daughter used to use to make a sort of roller coaster for the marbles she sent clattering down the track, spinning plastic tumblers and flipping levers as they went. The table’s marriage bonds literally pale by comparison. At various points on the bloodline infrastructure, a circle-wife and square-husband are joined horizontally by dashed lines so slender and faint they look made to be undone, like the basting stitches you rip out of a new suit’s pockets the first time that you wear it.

There’s another kind of line drawing and erasure in this chapter as well. Rule after doctrinal rule is met with exceptions that make it hard to see the rules as rules after all. You could get whiplash trying to follow why “escheat” counts as a purchase rather than an inheritance, and by the time the explanation rounds the last hairpin turn, little is left of the line between purchase and inheritance, or, for that matter, real-life actions and legal fictions:

  1. “Purchase” is every method of acquiring property other than “acquisition by right of blood,” or, inheritance. Someone who inherits acquires property “not by his own act or agreement, but by the single operation of law.” In contrast, a purchaser acquires land “by his own act or agreement; and not by descent from any of his ancestors.” Bk II, 241.
  2. “Escheat” is the transfer of property back to the original grantor after an owner dies without descendants. Escheat happens when there is no one left to inherit the property. So by definition escheat is not inheritance, and must be a form of purchase.
  3. But of course escheat doesn’t usually go back to the natural person who originally granted the land (who is generally long dead by the time the escheat happens), but to one of his descendants, and is thus “a title frequently vested in the lord by inheritance.“ Bk II, 244.
  4. But escheat is still a form of purchase, because law alone is not enough to complete a title by escheat; “it is necessary that the lord perform an act of his own, by entering on the lands,” and that means he acquired title by his own act not strictly by the law of descents. Bk. II, 245.
  5. But “this may also be said of descents themselves, in which an entry or other seisin is required to make a complete title” by inheritance. Bk. II, 245.
  6. Uh-oh.

Ambiguity eats category. Escheat is neither inheritance nor purchase, or maybe it is both, and just as soon as Blackstone lays it down, the line between these two defining property-law structures disappears in a puff. This kind of thing happens constantly in law. In fact, it may be that muddling lines is as much a defining feature of law as drawing them. Things can’t be safely confined to one side or the other of the categorical coin; concepts switch back and forth depending on when and how you look at them, cross over and disappear. Moment by moment, all the boundaries seem solid, then evaporate, then shimmer with what the great anthropologist Mary Douglas called the powers of danger.

My mother asked me what her name was. “I love you,” I said, over and over; “I love you, too,” she mouthed.  Blue. White.  Now you see her.  Now you don’t.

Leave a comment

Filed under Uncategorized

On the Bus

Book the Second, Chapter the Fourteenth. Of TITLE by DESCENT.

This chapter is not about nature. You would think that family inheritance would be an ideal place to root the law of private property in biological and moral necessity. But Blackstone insists that inheritance is not a “natural right.” Instead, if a property owner dies, “the land, by the law of nature would again become common,” available for anyone to occupy and claim. II, 211 This separation of inheritance from ownership makes strange the ordinary American meaning of ‘owning your own home’. And I haven’t even gotten to the strangest part. The chapter goes on to explain that the legal requirements for inheritance can be satisfied with a made-up story that contradicts the real history of the property in question. This bald-faced preference for make-believe made me think again about law’s relationship to fact and fiction.

Over and over Blackstone declares that there is nothing natural about a system that keeps private property in the family after its original owner dies. The default status of property is not continuous private ownership but common access. When a land owner dies, any natural familial connection to the land dies with him. To the extent that Blackstone justifies the law of inheritance, then, he doesn’t claim it follows a morally necessary or natural order. Instead, his point seems to be that because no one has any natural right to inherit anything, the politically expedient laws of inheritance can’t be criticized for passing anyone over: “There is certainly . . . no injustice done to individuals, whatever be the path of descent marked out by the municipal law.” II, 211

When it comes to the blood relations that man-made “path of descent” ostensibly tracks, Blackstone presents a landscape of overwhelming natural proliferation. Two charts of lineal “consanguinity,” demonstrate the “astonishing . . . number of lineal ancestors which every man has, within no very great number of degrees.” Counting back three generations, everyone already has eight ancestors: “the parents of his two grandfathers and two grandmothers, “ and “by the same rule of progression he hath an hundred and twenty-eight in the seventh; a thousand and twenty-four in the tenth; and [here comes the break with accountable kinship] at the twentieth degree, or the distance of twenty generations, every man hath above a million ancestors.” II, 203 But even this heady multiplication presents an unrealistically organized natural model. Blackstone notes that “so many different bloods is a man said to contain in his veins, as he hath lineal ancestors.” Id. It isn’t a matter of traceable blood lines so much as a swirling, surging mix. There’s no basis here for black letter rules about who gets to keep the house.

Nevertheless, for Blackstone, ownership is still very much a matter of bodies. It’s just that the key corporeal relationship is not between generations but between the owner’s body and the land or house he “possesses” or “occupies.” “The right of property, which is gained by occupancy, extends naturally no farther than the life of the present possessor.” II, 211. By chance, when I came to this chapter, I happened to be reading another book that made a similar point from a different perspective. In Becoming Animal, David Abram proposes that “one’s relation to one’s house . . . is hardly a relation between a pure subject and a pure object – between an active intelligence, or mind, and a purely passive chunk of matter.” [32] One night Abram realizes that the singular old beams of his house “had been quietly conversing with my creaturely body over the course of the year, coaxing my eyes and my wandering fingers in countless moments of distraction.” Those beams, whose “subtly different dispositions had lent a communal warmth,” helped to instill an “uncanny kinship” he felt with his home. [34] Abram attributes this palpable interaction to the awakening of his “animal senses.” But, reading this chapter of the Commentaries, it strikes me that he may be missing what his “kinship” with the house owes to our longstanding legal-cultural connection between property and family. Abram’s experience basically flips the cause and effect structure of legal inheritance: instead of acquiring his house through a kinship relation, he develops a kinship connection by living in his house. As Blackstone puts it, “we often mistake for nature what we find established by long and inveterate custom.” II, 11.

Whichever way the causal arrow runs, there’s no doubt that some people develop an attachment that almost seems to animate their homes. If there are houses that are haunted, there are also people haunted by the houses they once occupied. Geographically speaking, my elderly mother now lives near me in Pittsburgh in an assisted living facility. But as far as she is concerned, her home is still the house her father built in New Orleans at 8630 Oak Street, a block from the levee, where she was born and lived till she was in her twenties. It’s a lovely house, compact and all on one floor, built of local cypress wood with high, high ceilings for the heat and a wide front porch. My mother is mostly lost in time and space, and when she does orient herself it is to that house in New Orleans. Still, when I remind her that we all moved from Brooklyn to Pittsburgh when I got the job at the University, it doesn’t seem to come as a shock. She generally accepts the geographical facts with good enough grace. Sometimes, though, she is more confused. “Did anyone tell my father that I won’t be home for dinner”? she’ll ask. She’ll phone me sometimes, asking to be picked up. “I’m here at the church,” she’ll say, “and I just need someone to come get me and give me ride home.” Home is 8630. Usually I’m able to talk her out of it. I remind her that we sold the house in New Orleans 20 years ago, and that her father was long gone before that. “Mama,” I say, “you are 97 years old – how old would your father have to be”? “Too old,” she concedes.

Recently I heard a radio program about a German elder care facility that was having a problem with residents who, like my mother, became convinced that they needed to return home. The woman on the show described these elderly people’s intense agitation—“my parents wait for me,” “my children wait for me.” Like my mother, they were sometimes inconsolable, and occasionally the more able bodied among them would wander away from the group home and get lost. The Germans came up with a remarkable solution: They built a pretend bus stop outside the home – complete with a sign and a bench and a shelter that matched the regular municipal bus stops.   Now, when someone becomes agitated and desperate to go home, a staff member will lead her to the bus stop and they will just sit on the bench and wait. They don’t have to do a lot of talking. It’s a recognizable activity, waiting at a bus stop. And the surroundings are apparently nice – the woman on the radio mentioned that you can hear birds. They sit on the bench and wait, and at some point the old people stop waiting for the bus to get home and continue just sitting on the bench in the sun, and eventually they get up and go back inside, perhaps to have some tea. They are led through the pretend bus stop back into reality – or at least into some relatively comfortable sense of themselves in the moment.

When my mother calls me and wants to go home, though, I can never play along. I am resolute that she is who she is and where she is and that has to be okay. It isn’t possible for me to join her by pretending she is a young girl who has to get home to dinner so her father won’t be worried. Playing along feels like a cheat that would make life easier for me and rob her of what little autonomy she has left. But I wonder. Because, actually, you know, it may very well be that my mother really has no idea where she is—and knows that she has no idea. In fact, on reflection, it seems very likely, that the story about being a girl in New Orleans who is at a church supper and needs a ride home is just that – a plausible story that she has invented – perhaps not quite deliberately but not exactly unknowingly either – a story that she uses to comfort herself and to make sense of an otherwise unfathomable reality.

For Blackstone there’s no shame in fiction and invention. Explaining how early lawyers got around the notion that only direct descendants of the original purchaser of property could inherit, he puts the legal artifice right out there: “a method was invented to let in the collateral relations of the grantee to the inheritance.” II, 221 That method was the “feudum novum to hold ut feudum antiquum.” The way this legal fiction works is that we all pretend that the house you bought last week is an ancestral estate that has been in your family for centuries, so that it makes sense that if you die childless, some distant cousins can inherit the house “because they might have been of the blood of, that is descended from, the first imaginary purchasor.” Id.

Okay, stop. Let’s be clear about what Blackstone is saying here. The whole structure of family inheritance—the system of private property preservation he calls “the principal object of the laws of real property in England”—is being justified based on an admittedly imaginary history.   Rather than relying on data-driven social policy objectives or falling back on natural connections (blood is thicker than water), Blackstone’s legal players just invented a story.

This is exactly the kind of sleight of hand that Blackstone’s great rationalist critic Jeremy Bentham despised. For Bentham, justifying property rights with imaginary history was either a scurrilous legal trick or just plain crazy. He wanted law to consist of straightforward rules in black and white, transparently designed to facilitate objectively determined policy goals. Legal fictions ruined that kind of rational law-policy connection: “the pestilential breath of Fiction poisons the sense of every instrument it comes near,” Bentham said in his Comment on the Commentaries. [411] Fictions are dark and twisted, opaque. Transparency was the great good.

But clear legal rules avowedly designed to carry out deliberately chosen policies have a tendency to obscure another aspect of law, namely, the way law helps to construct the world it ostensibly regulates. Pretending, on the other hand, steers away from fact and shows us another kind of truth about ourselves. So long as we know we are pretending, pretend justifications show us that the law we follow is not necessarily grounded in either moral right or objective empirical observation, but is rather the product of human invention. Blackstone cheerfully acknowledges law’s power to fabricate as well as regulate the society whose policies are at stake. So at the same time that Blackstone lionizes the private property status quo, his approach presents property law as something that came about through human choice and that can, and perhaps should—by choice—be changed. And if law based on pretend history changes, the new law can be every bit as legitimately authoritative as what now looks so authoritatively, naturally right.

But, you say, someone has to be in charge. Someone has to keep her wits about her and say “okay, it’s time to go home now,” and actually know where home is and how to get there in real time and space. And isn’t law supposed to be that practical adult in full possession of her faculties, who knows what time it is, who can tell north from south and right from wrong, and brings us back to face reality, rather than letting us stray farther and farther into make believe, like imaginative children or a delusional old woman making up stories to comfort herself? Maybe. But then you get back to those millions of ancestors, those talking beams and all those swirling, surging bloods, and who is ever going to take charge of that?



Filed under Uncategorized


Book the Second, Chapter the Thirteenth.  Of the TITLE to THINGS REAL, in General.

This chapter is about feelings and actions and how one leads to the other.  Of course Blackstone doesn’t talk about feelings or actions per se.  His discussion of title, or, ownership, is couched in terms of rights and possession. But I don’t think it is too much of a stretch to see the question of what it takes for someone to ‘have title to,’ or, own, property, as what it takes for us to feel right about someone’s act of occupying land.  The remarkable thing is that Blackstone refuses to choose between the two, or even, really, to prioritize one over the other.  He insists that both rights and actual possession are necessary to create legal ownership – and that the causal arrow runs both ways.  Property rights may be actualized in possession, but even wrongful possession can transform into ownership.

At first it looks like rights will be more important. (In a volume titled “The Rights of Things” this seems unsurprising. ) The chapter sets up a series of “stages or degrees” needed for ownership.  II, 195.  It begins with “naked possession, or actual occupation” which Blackstone describes as “the lowest and most imperfect degree of title.”  This is followed by “the right of possession.”  II, 196.  But then, as we move away from possession all the way to rights, the hierarchy dissolves.   Instead of a higher degree of ownership, we find the “mere right” of property, a situation in which “the estate of the owner is . . . said to be totally devested, and put to a right.” II, 197.   It turns out both rights and possession are necessary to form “a complete title to lands.”  When the right of possession is joined with the right of property and “to this double right the actual possession is also united . . . then and then only, is the title completely legal.”  II, 199 (my italics).

Blackstone explains that a rightful owner divested of his land may win it back by bringing a timely legal action against the interloper and making use of “a variety of legal remedies.”  II, 196.  So far so good.  This process matches our conventional picture of how rightful ownership is supposed to work.  Rights trump possession.  The person with legal rights proceeds to enforce those rights in order to make social reality conform more closely to the legal ideal.  But it seems the transformation works in reverse as well – reality can reform rights. If the person with the right to the land doesn’t take possession, and doesn’t bring a lawsuit, “his adversary may imperceptibly gain an actual right of possession.”  II, 197.  Eventually,  possession by someone with no right at all to the land “may, by length of time, and negligence of him who hath the right, by degrees ripen into a perfect and indefeasible title.”  II, 196.  What’s more, it seems that the act of taking possession is not just an alternative route to ownership, but an essential key:  “without such actual possession no title can be completely good.”  II, 196.

Something very strange is going on here.  I know we say that possession is nine-tenths of the law, but isn’t that supposed to be an ironic statement about the way law caves to power?  After all, the very notion of property rights seems to take shape in opposition to possession.  Anyone can possess something by just grabbing it, or, in the case of a house, by just moving in.  Legal ownership must be based on something different, or else what distinguishes law from force?  So why should “actual” possession be a significant, let alone a necessary (“then and then only”), ingredient of legal ownership?

My discomfort with the process of turning possession into ownership reminds me of another dichotomy – yes, feelings and actions. In what I think of as the standard, modern Western view, feelings motivate actions and actions come from feelings — not vice versa.  Action without feeling is considered insincere — suspect, deceptive, not real. In a similar mode, I think, we generally think of rights as prior to acts and structures that express or instantiate those rights.  Blackstone’s description, note, doesn’t prioritize possession over rights.  Instead in this scheme the two are equal – and the goal is to get them together.  Likewise, no one would say that feeling is more important than action (and, to the contrary, we might say that deeds matter most).  Nevertheless, feelings are necessary, it seems, to fully validate actions – to make them authentic.

When I was a young actress, studying in New York City in the 1980s, there was quite a premium placed on authentic feeling on stage.  I thought, and I think it is safe to say that most of my fellow acting students agreed, that the only way to produce really “believable” performances of dramatic scenes was for the actors to experience certain emotions that would then naturally be expressed.  In other words, in order to play a scene in which a character was supposed to get really mad, you had to somehow first produce a feeling of outrage, which would then lead you to yell and throw things.  The most paradigmatic, mysterious and prized example of this feeling-action continuum was the ability to summon authentic tears.  This is a (vastly oversimplified) version of the “method” acting approach that was, and I believe still is, ascendant in mainstream American theater, but it is by no means the only way to go. My friend Christine, who was a great acting teacher, used to tell the story of the summer stock role she had early in her career that called for her to break down in tears at the climax of the second act.  Concerned about her ability to reach the necessary emotional peak on cue night after night, she sought advice from a company veteran.  “Sweetheart,” he said, “just put your hands over your face and shake your shoulders.”

Now, Christine told this story to get the laugh, but also to challenge the idea that actors needed to feel anything in particular in order to produce great performances. Of course burying your face in your hands and shaking could look ridiculous onstage.  But if one’s technique were excellent enough, presumably the audience would not be able to tell the difference between real tears and a well crafted simulation. For that matter, what did it even mean to talk about “real” tears deliberately manufactured for a public  performance of a fictional scene?  Under the circumstances, any feeling you ginned up would be the product of your imagination, not a response to real events.  Why should imagination flow only one way from feeling to action?  Why not free actors to meet the creative needs of the drama from the outside in, as it were.  Finally, Christine argued, if you really put yourself to the physicalization of crying – not just the gestures but all the sounds — and kept it up for some time, you would find that it is almost impossible not to begin to feel something like sadness, or even grief.  Eventually actions produce feelings as surely as feelings drive actions.

I have to say that at the time I did not buy it.  It just didn’t seem possible to me that a show of emotion produced technically could possibly be as compelling as tears that came as the natural expression of feeling.  Somehow my performance would not be as good – or as legitimate — if I produced it in this deliberate way, by acting as if I had a feeling I did not really feel.  This now seems silly to me – and romantic in a rather uninteresting way.   But although I suspect my discomfort with the possession to rights approach to property is in some way similar, it is harder to shake.

Certainly when the context shifts from theater to law something more, or at least something different, is at stake. For one thing, legal rights raise a problem of conflicting claims not present in a histrionic setting.  We are not just concerned about whether property authentically belongs to the one who possesses it, but that it might rightfully belong to someone else.  The problem is not just that the act of possession without rights seems illegitimate, but that it could actually prevent possession by the person who has a right of ownership.   On the other hand, if the outside-in, shake-your-shoulders approach to acting is potentially liberating and empowering on stage, so is the possession-to-rights road to ownership in real life.   Flipping the order of rights-possession makes property available to individuals and groups who have no access through the traditional progression.  If property rights are otherwise a matter of heredity and/or economic power, allowing someone to acquire legal ownership of land just by acting as if she owns the place gives the law of property democratizing potential.

This might be the place to reflect that the very notion of possession is quite problematic – with or without attendant rights – especially when it comes to “real” property, that is, land.  If possession means literal, exclusive physical control, what can it mean, really, to possess land?   Obviously, you can put up some fences.  That might keep most or at least some people out.  But really?  Only the ones who recognize the fences as a sign of exclusion and choose to comply.  How does a fence become not just a physical obstacle, but a sign of the force and exclusivity – and perhaps the legitimacy — of the fence builder’s control?  A fascinating article by Nicholas Blomley suggests that the process may have more to do with a summer stock scene than you might otherwise imagine.  Blomley offers a way to think of fences as a “performance” of property. As performance, “Property claims are continuously remade and re-enacted, and, as such, open to surprise and complexity, yet also capable of fixity and sedimentation.”  A fence neither simply bars physical access nor purely represents ownership, but acts in combination with other creative and conventional actions, words, and objects to bring property into being.

Instead of thinking of rights like feelings that motivate actions, think of them as part of that constellation of words and (imaginary objects) that, combined with possessive actions like fence building, complete the performance of property.  Indeed, the very fact that land cannot be possessed by individual humans in a physical, personal containment sort of way may be one reason the notion of rights developed.  In a world that conceives of property as a matter of private ownership, it is actually very, very hard to see how land could come to be owned (as opposed to just occupied).  One would need, it seems, some sort of conceptual, or, imaginary, connection between a person and the land to stand in for personal physical containment. Rights would be that imaginary connection.

If you can’t grab the land itself and hold onto it, you can be a “rights holder.”  As imaginary objects, rights can spring into being in any shape we choose and be held and transferred through any sort of conventionally agreed upon process. But of course, as Blackstone’s scheme points out, rights not actualized in tangible physical occupation are fictions – not just imaginary but invisible –without any real effect.  In its requirement of actual physical possession, then, Blackstone’s understanding of legal ownership acknowledges the fictitious, made up nature of rights.  And in allowing ownership to begin not just from rights, but from physical occupation, Blackstone, like the summer stock veteran, recognizes that if you are going to perform some new state of affairs into being, you are going to have to start somewhere.  Sometimes, you just have to put your face in your hands and shake your shoulders.


Filed under Uncategorized

Finders Keepers

Book the Second.  Chapter the Twelfth.  Of ESTATES in SEVERALTY, JOINT-TENANCY, COPARCENARY, and COMMON.

This chapter is about invention and discovery.  The ostensible subject is the different ways that people can own land together.  But the back story that grabbed my attention is the conflict between two different ways Blackstone presents the legal rights and limits he describes – as something we can find out based on the meaning  of property or as something we make up in order to decide what property means. This duality between finding and making seems to be ever present in law.  A moment ago I said these two views conflict, but actually the more I think about it, the more I think that law has to be somehow both found and made all at once in order to be law at all.

Sometimes the double nature of law as found and made gets split apart and chronicled as a historical shift.  One version of this story is that back in the day, people thought that law was something “natural” to be discovered like the physical world and dictated like the rest of the universe by God directly (or from God through us as reason or immemorial custom), but now we know that it’s really something we are just making up as we go along.  In another version of the story, there was once a golden legalist age in which lawyers and judges faithfully executed their duty to find, not make, law and developed powerful techniques for discovering the true answers to legal questions, but those techniques have been lost or discarded by modern lawyers and judges who just impose their own ideas and dress them up as legal interpretation.  This version is championed by ideological conservatives led by U.S. Supreme Court Justice Antonin Scalia.  Perhaps unsurprisingly, the moral of this story is that we should listen to Justice Scalia, who claims to be dusting off the old methods, in particular a narrow focus on the words of legal text, and once again finding rather than making law.

Neither of these stories is very convincing.  The Scalia version can be quite compelling until you realize that somehow every time he employs his “textualist” method the result turns out to be just what you’d expect him to say based on his conservative politics.   On the other hand, the story in which we now see the necessary subjectivity of law that our ancestors were incapable of recognizing feels like just another iteration of the tired Enlightenment tale of progress told to make ourselves feel superior to some relatively primitive and misguided predecessors.  What’s more, the story of purely subjective law leaves a gaping moral and conceptual hole.  Doesn’t the very idea of making a legal decision require that the decision maker looks outside herself to find the answer?

In the end, apart from the issue of political morality, neither of these stories captures the twisted now-you-see-it-now-you-don’t found-made way law feels.  In my experience, it is virtually impossible to look at any legal question carefully for a long time without realizing that there is more than one possible answer and eventually you are just going to have to choose.  But at the same time, even when you know that the answers to legal questions are ultimately made up, you have to see them as found somehow, or they don’t look like law at all.

Blackstone is sometimes tagged as a believer in found law, but I see both finding and making in his account.  In this chapter, he presents the complex rules about which co-owner gets what benefit from jointly owned land not as choices, but as discoverable features of whatever specific type of “interest” the co-owners have been given.  In this scheme, a judge adjudicating a property dispute isn’t trying to come up with the fairest, most socially beneficial or most economically feasible result.  Instead her job is to figure out which of the “three species of estates,” II. p. 179, the disputing landowners have, and then to tell them what their rights are based on her expert knowledge about the legal characteristics of estates.

So far, I admit, this all seems to be about finding. Blackstone reports the intricate rules associated with different kinds of traditional landowning as though finding and reporting on the characteristics of a strange group of creatures that have developed without any singular direction.  You can even see a ghost of Justice Scalia’s textualism in the way Blackstone treats legal language as the source for discovering the truth about who owns what.  Blackstone explains that the specific kind of estate created depends on the relevant document’s wording.  So if a will leaves land “to A and B and their heirs,” that makes them “joint tenants” instead of tenants in common and means that if one dies the survivor gets everything and the one who died does not get to leave his share to his kids. II, p. 181. The “thorough and infinite union of interest” says Blackstone, explains the doctrine of survivorship, “the grand incident of joint estates.” II, p. 183.  Because joint tenants all own the whole estate in the same way at the same time, if one dies the survivor still has the whole thing – and there’s nothing for the dead owner’s heirs to take.  The survivor just continues to own what she had all along. “This is the natural and regular consequence of the union and entirety of their interest.”  Id.

But here is where the made up part begins to come in. For what is being found?  For Blackstone, an estate is not the land itself, which always remains just outside the grasp of ownership, but an “interest” in the land. And these interests and estates are obviously, beautifully fictional.  As we are introduced to the joint tenancy, the coparcenary, the estate in common, there is a flickering sense that they exist in some external way, separate from the physical realm of houses, the politics of social relations and the mind of the person interpreting the legal documents that have called them into being. But at the same time, it is perfectly obvious that these marvelous “species” are fantastic inventions – the kinds of creatures that delight the readers of Harry Potter books because their features spin out such cunning creative choices. What’s more these estates are obviously works in progress.  Like all imaginary objects, they are open to any transformation that can be justified as consistent with previously descriptions. Blackstone refers repeatedly to historical changes in the rights and obligations associated with different traditional types of estates.  He also observes that the law favors certain forms of ownership, which seem obviously made to benefit powerful individuals, tending, for instance, to prevent breaking up large land holdings.

Blackstone has been criticized – mocked, really – for centuries for his apparently naive acceptance of a patently fictional approach to property law.  But this critique always seems to me to miss the point.  Isn’t the obviousness of the fictions the most interesting thing about this whole scheme?  There’s no evidence that Blackstone regards these made up estate structures as themselves naturally determined.  To the contrary, he goes out of his way to note that property law is shaped by social policy choices that can change even the most basic meanings over time.  For instance, he explains that the practice of inheritance, and the notion of a “permanent” right in property on which it is based, “is certainly a wise and effectual but clearly a political, establishment” and “no natural but merely a civil, right.”  II., p. 2.  More generally, he observes that “we often mistake for nature what we find established by long and inveterate custom.” II, p. 11.  Nevertheless it is true that Blackstone presents the complicated estate system as if it were a kind of  pre-existing structure that compels certain limits and privileges of ownership as the “natural and regular consequence” of the features of that system.

Wholehearted, unskeptical belief in the factual basis of this obviously fictional account would certainly be naive.  But Blackstone may not have felt the need to parse so carefully the difference between fact and fiction, nature and creation, that is so prevalent these days – in law and elsewhere.  In my own job as a teacher, it seems like every time I turn around someone is complaining that some pedagogical method or learning assessment is insufficiently “data driven,” or announcing that an issue we’ve been treating as conceptual is really an empirical question that ought to be tested.  There’s a kind of peas on this side of the plate mashed potatoes on the other feeling to these arguments that makes me wonder how much they have to do with the specific subjects at hand and how much they reflect a general anxiety to establish boundaries.

An oddly doubled version of this quest to separate the real from the invented pervades the U.S. Supreme Court’s opinion this spring in a case called Association for Molecular Pathology v. Myriad Genetics, Inc. , 569 U.S. ____ (2013). The Court’s analysis ostensibly focuses on distinguishing natural discoveries from synthetic inventions in order to allow patents only for inventions.  But the justices seem equally concerned to separate discovery from invention in their own work, in order to ground their decision in law that appears found as opposed to made by them.

In Myriad Genetics, the Court invalidated a patent granted to scientists who located and isolated two genes associated with an inherited tendency to develop breast cancer.  Right from the git go, the case had a problem for the conservative justices who emphasize the plain meaning of legal text as the most reliable source for finding law. The U.S. Constitution empowers Congress to provide patents for “Authors and Inventors” on “their respective Writings and Discoveries,” Art. I, Sect. 8, and the associated federal statute makes available patents for “Whoever invents or discovers any new and useful . . . composition of matter, or any new and useful improvement thereof.”  35 U.S.C. 101.  So the relevant constitutional and statutory text appear to authorize patents for both invention with discovery. Nevertheless, the Court brushes by this textual mixing to reassert the crucial divide.  The unanimous opinion written by Justice Thomas explains “We have ‘long held that this provision contains an important implicit exception[:] Laws of nature, natural phenomena, and abstract ideas are not patentable’.”  Myriad at 11.  In other words, patents are available only for creative inventions.  Products discovered in nature are not created and thus not patentable.

There is no mistaking the importance of the discovery/invention dichotomy here.  The opening paragraph of the Myriad opinion uses the word “discovery” twice and the word “natural” five times.  Myriad at 1.  The Court goes on to explain that the process described by the Myriad scientists as “the final step in an extraordinarily complicated set of inventions” was actually a discovery of something natural: “The location and order of the nucleotides existed in nature before Myriad found them.”  Id. at 12. The opinion does acknowledge that sometimes the line between discovery and invention is not so clear.  After all the most classically patentable machines are made of naturally occurring materials and employ the principles of force and motion found in the natural universe.  Indeed, “all inventions at some level embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.” Id. at 11Uh-oh . . . . does that mean it is up to the justices to decide where they think Myriad’s claims fall on blurry continuum of nature and creation?

Not at all.  According to the Court, the decision in Myriad is not a matter of the individual justices’ views about where best to draw the line in order to create a fair and economically beneficial patent policy. They are just applying the “well-established standard” separating discovery from invention in order “to determine whether Myriad’s patents claim any ‘new and useful … composition of matter,’ § 101, or instead claim naturally occurring phenomena.”  Myriad at 11.  The Court’s purported reliance on the statutory text about “new and useful” compositions is particularly striking, given that the whole project of drawing the legal line between invention and discovery flies in the face of the same statute’s language authorizing patents for anyone who “invents or discovers” some new composition. The statutory text was problematic, but luckily there was another source available.  Myriad’s patent itself revealed that their supposed invention was found not made:  “Notwithstanding Myriad’s repeated use of the phrase ‘present invention,’ it is clear from the text of the patent that the various discoveries are the ‘invention.’”  Id. at 14, fn. 4.

It is quite remarkable, really, how the Court’s determination in Myriad that the scientists who claimed to have invented something instead discovered it mirrors and reverses the Court’s own implicit claim to have avoided invention in order to  discover the correct legal result.  The scientists don’t deserve a patent because they didn’t make anything new, they just peered into their microscopes and found those genes.  The justices’ decision does deserve respect, because they didn’t make it up.  They just peered into the legal text and found the answer.

Did the justices look in the mirror of Myriad and see their own practice reflected? If they did, they don’t admit it.  But before I go too far in criticizing the lack of self awareness in the justices’ need to style their decision as the pure discovery of something outside themselves, I should note that this hardly seems to distinguish them from the rest of us these days.  Myriad Genetics is in a sense just one more example of our widespread faith that the empirical data points we find can reveal the truth about our world.  Such faith does seem a bit naïve, when you consider the way that truth keeps changing.  Remember when coffee and salt were bad for you?  No more.  A recent study shows the health benefits coffee provides, although the benefits are only definitive for those who drank at least four cups a day.  And it seems that no amount of table salt applied to make food more tasty actually has any ill effects.  But does anyone really believe these happy conclusions will not eventually be overthrown by some newly discovered opposite “truth”?

In fact the final irony here may be that the very difference between discovery and invention, nature and artifice, that seems so undeniably real and important, if difficult to discern, is just as ephemeral and made up as the traditional estates Blackstone describes.  Inventors don’t get patents for things they find in nature, and judges don’t get legitimacy for inventing legal answers, but in both contexts the line between finding and making turns out to be disappearingly fine.  It may be that both judges and inventors have to make do with the messy results of practices that cannot be defended as either wholly objective or entirely original.  These compromised methods are disturbingly messy and undifferentiated, and cannot produce a satisfactory feeling of either straightforward belief or unalloyed skepticism, but they may be all we have.  As for coffee and salt, I’m sticking with my (96-year-old) mother’s advice on how to handle the frustratingly changeable line between healthy and toxic foods:  Just don’t eat too much of any one thing.


Filed under Uncategorized