{"id":3897,"date":"2020-08-26T17:22:02","date_gmt":"2020-08-26T21:22:02","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=3897"},"modified":"2020-09-23T21:08:22","modified_gmt":"2020-09-24T01:08:22","slug":"nothing-certain","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2020\/08\/26\/nothing-certain\/","title":{"rendered":"Nothing Certain"},"content":{"rendered":"

Jessie Allen, School of Law, University of Pittsburgh<\/a><\/p>\n

Book the Second, Chapter the Eighteenth, Of TITLE by FORFEITURE.<\/strong><\/em><\/a><\/p>\n

This<\/a>\u00a0is one of those chapters where Blackstone revels in the tricks of the legal trade. Nominally, it\u2019s about forfeiture doctrine \u2013 that is, the rules by which property is lost as punishment for \u201csome illegal act, or negligence, in the owner of lands.\u201d (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.<\/p>\n

I must have heard the expression, \u2018nothing\u2019s certain but death and taxes,\u2019 about a million times, but it wasn\u2019t until I read\u00a0this chapter<\/a>\u00a0that 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\u2019s death precipitated a transfer back to the lord, or his descendants, and a redistribution \u2013 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.<\/p>\n

These days we worry about corporations getting too big and too powerful, and influencing politics in undemocratic ways, see\u00a0Citizens United<\/em>. 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\u2019s fruits and profits.<\/p>\n

The\u00a0chapter\u00a0<\/a>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\u00a0lawyers\u00a0<\/em>for the churchmen, \u201cwho, 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.\u201d (II, 270) The state\u2019s main legal tool for keeping land out of the tax-free hands of the church was a license in\u00a0mortmain<\/em>\u00a0\u2013 a dead-hand license, so called because land sold to the church effectively ceased all circulation. No more circulation, nor more life.<\/p>\n

Reading this, I couldn\u2019t help thinking of private colleges and universities. Some time ago, I heard the president of Vassar College\u00a0on the radio<\/a>\u00a0celebrating the increased \u201ceconomic diversity\u201d of her college\u2019s student body. Vassar has an endowment of over 800 million dollars and by my rough calculations from the\u00a0website<\/a>\u00a0is 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.<\/p>\n

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 \u201cinvesting a lot in their children.\u201d These families want \u201cgreat things\u201d for their kids, including \u201clots of single rooms, and great faculty, and small classes.\u201d 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\u00a0website\u00a0<\/a>informs me that \u201ca high proportion\u201d of dorm rooms are singles.<\/p>\n

I know I shouldn\u2019t be surprised by this. I teach property law, and I\u2019m 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 \u201cgreat things\u201d a top quality college has to offer. It\u2019s just that it enacts the basic privilege of exclusion in such a primitive way that it\u2019s almost funny.<\/p>\n

I don\u2019t mean to single out Vassar. The whole reason Vassar\u2019s 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\u00a0billion<\/em>\u00a0tax-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\u2019s 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.<\/p>\n

Still, there\u2019s reason to think the dead hand metaphor may have some continued relevance. In the spring of 2014, precious few of Harvard\u2019s graduating seniors were going to public interest jobs. Only \u201c3.5 percent were headed to government and politics, 5 percent to health-related fields, and 8.8 percent to any form of public service.\u201d\u00a0Washington Monthly<\/a>\u00a0<\/em>And it\u2019s not just a question of opting for more commercial paths. In the mid to late twentieth century ivy league grads interested in corporate careers \u201ctended to choose management training in industrial, aerospace, or chemical industries.\u201d 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.<\/p>\n

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\u2019s failure to circulate. Then again, it is only because of the concept of estates in time that property can defeat death.<\/p>\n

In a sense the very notion of property\u00a0rights<\/em>, 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\u2019s 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\u2019s property concepts were obsessed with \u201cestates in time.\u201d I try to imagine the moment (of course it wasn\u2019t 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\u2019s lifetime. How must that have felt? In my imagination it is slightly disorienting, and kind of hysterical.<\/p>\n

By coincidence, at the same time I was reading this chapter I was finishing the first book in Karl Ove Knausgaard\u2019s absurdly long and meandering series of autobiographical novels,\u00a0My Struggle<\/em><\/a>. Here is what the narrator Knausgaard has to say, as he views his father\u2019s dead body for a second time: \u201cNow 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.\u201d Book I, 441.<\/p>\n

Reading this it struck me how perfect it is \u2013 was, to construct a legal triumph over human mortality by investing these inanimate things with human identity through the idea of ownership. It\u2019s a clich\u00e9 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\u2019t think about, or, I didn\u2019t, 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\u00a0property<\/em>, the material world \u2013 the sand, stone, and water and even the electrical sockets \u2013 acquires a life, or afterlife.<\/p>\n

Once again I\u2019m 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 \u201cpossession\u201d and \u201cinvest\u201d the space a person occupies with her spiritual identity. This rather magical identification may explain how I\u2019ve been feeling recently about my own house. I\u2019ve never been a particularly meticulous housekeeper, to put it mildly. But lately, dirt fills me with dread. I\u2019m looking now at the streaky window by the sofa where I\u2019m 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.<\/p>\n

Something has to be said here about the property law doctrine of\u00a0waste<\/em>, which Blackstone introduces in\u00a0this chapter<\/a>. Waste is \u201ca 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.\u201d 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 \u201clife estate\u201d (meaning that the property is yours until you die), then you can\u2019t 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 \u201cpulling down a house,\u201d but also \u201csuffering it to fall for want of necessary reparations.\u201d (II 281) Waste can be a simple lack of maintenance, giving entropy free rein.<\/p>\n

Nor is the prohibition against waste just a matter of preserving value. Even profitable alterations are forbidden. It\u2019s a question of transformation, of changing or erasing the identity of the land from which the estate springs, so that the property becomes unrecognizable.: \u201cThe 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.\u201d (II, 282) Why? Because it changes \u201cthe evidence of the estate.\u201d\u00a0Id.<\/em>\u00a0This 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\u2019re entitled to inherit a meadow and the meadow disappears and in its place there\u2019s a wood someone might ask if you\u2019re entitled to anything at all. What you were in line to get seems to have changed and in a system that constructs individuals\u2019 identities through their relationship to lasting landscape, that\u2019s a big problem.<\/p>\n

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\u00a0Commentaries<\/em>, Shakespeare\u2019s\u00a0Macbeth<\/em>. Recall the last prophecy Macbeth receives (from an apparition in the shape of a child holding a tree) that \u201cMacbeth shall never vanquished be until Great Birnam Wood to high Dunsinane Hill Shall come against him.\u201d\u00a0Act IV, Scene 1.<\/a>\u00a0Is 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.\u00a0 He declares that because an uprising of trees is unthinkable, \u201cour high placed Macbeth shall live the lease of nature, paying his breath to time and mortal custom.\u201d\u00a0Id.\u00a0\u00a0<\/em>It\u2019s as though he\u2019s looking down the wrong end of the telescope at the metaphor coupling hereditary property and immortality.\u00a0\u00a0 Instead of seeing ownership of an inheritable estate as a way to conquer death, Shakespeare\u2019s doomed anti-hero figures his human lifespan as a temporary form of property, the kind that is subject to waste, a natural \u201clease\u201d that he must \u201cpay\u201d 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 \u201clease of nature.\u201d\u00a0 Ultimately, of course, the landscape does move against him, and even that limited lease is cut short.<\/p>\n

Originally published September 28, 2015.\u00a0<\/a><\/p>\n\n

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Jessie Allen, School of Law, University of Pittsburgh Book the Second, Chapter the Eighteenth, Of TITLE by FORFEITURE. This\u00a0is one of those chapters where Blackstone revels in the tricks of the legal trade. Nominally,...<\/p>\n","protected":false},"author":10,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[268,255,79,492],"tags":[132,200],"class_list":["post-3897","post","type-post","status-publish","format-standard","hentry","category-jurisprudence","category-law-and-philosophy","category-news","category-william-blackstone","tag-news","tag-william-blackstone"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/pasVL2-10R","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3897","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/comments?post=3897"}],"version-history":[{"count":1,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3897\/revisions"}],"predecessor-version":[{"id":3898,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3897\/revisions\/3898"}],"wp:attachment":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/media?parent=3897"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/categories?post=3897"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/tags?post=3897"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}