Creating the Right To Exclude


Brian Sawers, Georgetown University Law Center, is publishing Race and Property After the Civil War: Creating the Right to Exclude in volume 87 of the Mississippi Law Journal (2018). Here is the abstract.

This Article uncovers a lost history of property, showing the role that race and white supremacy played in the development of modern trespass law. Property law does not change in response to economic opportunities, evolving to ever-more efficiency. Instead, property law reflects political power. At times, the political process may reorient property law to produce a larger surplus. Oftentimes, politics produce redistribution from the weak to the powerful. States closed the range to coerce blacks into working for white landowners for low wages and under bad conditions. Southern society as a whole suffered from the planter’s greed. Low wages and cruel laws impoverished not only black and white sharecroppers, but the entire region. Changing property law was a core element of the program of legal aggression that began with the black codes and continued with Jim Crow.

The full text is not available from SSRN.



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