Cromwell Article Prize to Brady

We have word that the William Nelson Cromwell Article Prize, awarded by the trustees of the William Nelson Cromwell Foundation on the recommendation of the Advisory Committee on the Cromwell Prizes of the American Society for Legal History, has gone to Maureen E. Brady, Harvard Law School, for “The Forgotten History of Metes and Bounds,” Yale Law Journal 128 (2020): 872-1173.   From the recommendation of the ASLH committee:

…The subject of the article would not seem promising. … Though regarded by historians as a relic deserving only antiquarian interest, in Brady’s hands it commands our attention as a vital legal tool that enabled communities to use the law to impose order on an uncharted terrain through the creation of property rights.  It has long been a commonplace that recording boundaries and conferring title create rights in property, but Brady’s article gives new meaning to the practice.  Her mastery of seemingly arcane procedures and the legal rights they created reveals the many ways that the law of metes and bounds provided a supple and flexible means of securing the property rights that served the social and economic ordering necessary to foster communities bound together by law.  …

The ability to focus on apparently strange or insignificant aspects of a lost world and use them to cast light and provide surprising insights is the mark of a more mature scholar, but it is readily evident in this article.  Brady’s compelling argument is based on an exacting and concentrated study of the documents generated by the process of determining and enforcing metes and bounds.  Her analysis original and her noteworthy.  More than the other articles, it shows a real historical flair in terms of both the research and the presentation.  It does more than just marshal the past to make a point in the present—although, of course, that is what we expect of law review articles.  Rather, [it] is great history, excavating a past that that was lying in plain sight, but that no one had really bothered to explore.  She walks us through that world and its logic, which does not appear very logical to us today; by scrupulously reconstructing the way that these documents were created and used, she brings to life communal practices and legal activity in a world that we have lost.  Hence the humor, which she deploys masterfully.  Then she shows why that history is important today, recasting basic assumptions and opening up new ways of thinking about contemporary problems.

–Dan Ernst

Eves on Mort D’Ancestor and Collusive Conveyances

Collusive Litigation in the Early Years of the English Common Law: The Use of Mort D’Ancestor for Conveyancing Purposes c. 1198–1230 by William Eves, University of St. Andrews, currently is open access in the Journal of Legal History:

The extent to which real actions such as mort d’ancestor were used collusively for conveyancing purposes in the early years of the English common law is subject to debate. This article first discusses why parties to a transfer of land might engage in collusive litigation, before surveying the existing literature on the question of how collusive suits can be identified, and the suggestions which have been made as to the prevalence of collusive litigation in the late-twelfth and early-thirteenth centuries. It then discusses a method which may be used to provide a more precise answer to this question, and employs this method to uncover the extent to which mort d’ancestor could have been used collusively in the period c.1198–1230. It concludes with a suggestion that this method could be used in relation to other early common law actions to further our understanding of litigation and conveyancing in the period.

--Dan Ernst

Jarwala on Racially Restrictice Covenants and the Changed Conditions Doctrine

Alisha Jarwala, a 2020 graduate of the Harvard Law School, has posted The More Things Change: Hundley v. Gorewitz and 'Change of Neighborhood' in the NAACP’s Restrictive Covenant Cases, which is forthcoming in the Harvard Civil Rights-Civil Liberties Law Review 55 (2020):

Racially restrictive covenants flourished throughout the United States in the early twentieth century. These private agreements prohibited the sale or rental of specific parcels of land to non-white individuals, with the goal of maintaining residential segregation. Today, the primary case associated with restrictive covenants is Shelley v. Kraemer, in which the Supreme Court used the state action doctrine to strike down restrictive covenants in 1948.

However, there was a road not taken. The NAACP challenged hundreds of restrictive covenants and lost the majority of these cases, with a notable exception in 1941: Hundley v. Gorewitz. In Hundley, a federal court struck down a racially restrictive covenant in Washington, D.C., under a different theory: the “change of neighborhood” doctrine. This doctrine allows a court in equity to declare a restrictive covenant unenforceable if there has been such a radical change in the neighborhood that the covenant’s original purpose has been defeated. NAACP lawyer Charles Hamilton Houston was able to persuade the D.C. Circuit that a racially restrictive covenant was unenforceable if a neighborhood was already becoming predominantly Black, and the Hundleys kept their home.

This Note seeks to provide a legal historical account of Hundley v. Gorewitz and the change of neighborhood doctrine in the fight against restrictive covenants. A close examination of this case and doctrine provides insights into the NAACP’s civil rights litigation strategy. First, Hundley demonstrates the NAACP’s desire to use litigation as a tool to educate the courts and the public about the social and economic impacts of restrictive covenants. In addition, the use of this doctrine highlights Houston’s legal pragmatism: Ideologically, the change of neighborhood doctrine was a compromise because it accepted the premise of segregated neighborhoods. In making this argument, Houston utilized the converging interests of white homeowners, who wanted to be able to sell their properties to Black buyers. Ultimately, Hundley and the change of neighborhood doctrine showcase Houston’s ingenuity, pragmatism, and forward thinking at a time when the NAACP faced long odds in the fight against housing segregation.

--Dan Ernst

Prifogle, "Legal Landscapes, Migrant Labor, and Rural Social Safety Nets in Michigan, 1942-1971"

Emily Prifogle (University of Michigan Law) has posted "Legal Landscapes, Migrant Labor, and Rural Social Safety Nets in Michigan, 1942-1971." Here's the abstract:

In the 1960s, farmers pressed trespass charges against aid workers providing assistance to agricultural laborers living on the farmers’ private property. Some of the first court decisions to address these types of trespass, such as the well-known and frequently taught State v. Shack (1971), limited the property rights of farmers and enabled aid workers to enter camps where migrants lived. Yet there was a world before Shack, a world in which farmers welcomed onto their land rural religious groups, staffed largely by women from the local community, who provided services to migrant workers. This article uses Michigan as a case study to examine the informal safety net those rural women created and how it ultimately strengthened the very economic and legal structures that left agricultural workers vulnerable. From the 1940s through the 1960s, federal, state, and local law left large gaps in labor protections and government services for migrant agricultural laborers in Michigan. In response, church women created rural safety nets that mobilized local generosity and provided aid. These informal safety nets also policed migrant morality, maintained rural segregation, and performed surveillance of community outsiders, thereby serving the farmers’ goals of having a reliable and cheap labor force. 

The full article is available here. (h/t @WomenKnowLaw)

-- Karen Tani

Haksgaard on the Homestead Rights of Deserted Wives

Hannah Haksgaard, University of South Dakota Knudson School of Law, has posted The Homesteading Rights of Deserted Wives: A History, which is forthcoming in the Nebraska Law Review:

Mrs. Faro Caudill, Ironing (NYPL)

During the late nineteenth and early twentieth centuries, the federal government of the United States distributed 270 million acres of land to homesteaders. The federal land-grant legislation allowed single women, but not married women, to partake in homesteading. Existing in a “legal netherworld” between single and married, deserted wives did not have clear rights under the federal legislation, much like deserted wives did not have clear rights in American marital law. During the homesteading period, many deserted wives litigated claims in front of the Department of the Interior, arguing they had the right to homestead. This is the first article to collect and analyze the administrative decisions regarding the homesteading rights of deserted wives, offering a unique view of American marriage. After documenting the history of homesteading rights of deserted wives, this Article explores how these unique administrative decisions adopted or rejected the prevailing marital norms in America and how understanding these administrative decisions can aid in our understanding of marriage in American history.

–Dan Ernst

University of Michigan Race & Property speaker series

 [We share the following on a speaker series organized by Emily Prifogle at the University of Michigan this fall.]

Race & Property in Historical Perspective: 

A Series of Conversations about Research & Methods

K-Sue Park, Georgetown University

"Conquest and Slavery as Foundational to the Property Law Course"

Wednesday, September 23, 2020, 12-1pm.

Justin Simard, Michigan State University

"Citing Slavery"

Wednesday, October 14, 2020, 12-1pm

Taja-Nia Y. Henderson, Rutgers &

Jamila Jefferson-Jones, University of Missouri-Kansas City

"#LivingWhileBlack: Blackness As Nuisance"

Thursday, October 29, 2020, 12-1pm

For Zoom link or more information, e-mail: rickardj@umich.edu 

--Mitra Sharafi