Indiana Law Review
This Article critiques our focus on possession as the cornerstone of theories of property, examining the limitations of possession both as a theoretical concept and as a practical one. Second, the article examines how an investment-based labor approach has sharply shaped out understandings of possession. By examining the intertwining of possession and labor during colonization, the article describes how the labor approach to possession excluded more communal corollaries and instilled in American property law a consistent push toward grounding land claims at the labor-possession nexus.
Re-thinking the labor-possession nexus yields important shifts. First, labor matters for other reasons than investment-backed expectations. Labor matters because the loss of investments often means violence. There is a reason for the historical correlation between changes in property rights and revolutions. Focusing investment critically places property as a first-order value when it is, in fact, a second-order value or a means to a social end (specifically, non-violence). Second, focusing on labor as investment also places such an extraordinary emphasis on possession that American scholars and courts rarely think much about dispossession. Our emphasis on possession rather than dispossession frames American property law in terms of vested rights to such a degree that while scholars may think in terms of social relations theories, American property law is stuck thinking in terms of individual ownership rights even when the courts acknowledge the social nature of property arrangements.
Jill Fraley, The Meaning of Dispossession, 50 Ind. L. Rev. 517 (2017).