In Re-Placing Property, Jessica A. Shoemaker demonstrates the extent to which our legal rules about property have allowed real property ownership to become, in many cases, paradoxically completely divorced from place attachment. Drawing from disciplines such as geography and sociology, Shoemaker defines “place attachment” as “a ‘sense of belonging, loyalty, or affection that a person feels for one or more places.’” (P. 15, quoting A Dictionary of Human Geography (Oxford 2013)). With real property increasingly owned by people who have little or no connection to the land itself, including absentee heirs and distant investors who often simply own shares of property through an investment fund, local communities bear the costs of these absentee owners’ choices.1 Consequently, early American ideals that, at least in theory, favored egalitarian access to ownership and that “reward[ed] productive improvement and agrarian stewardship,” (P. 4), are now being trampled to accommodate elitist ownership patterns that in some ways mirror feudalism. (Pp. 20, 60.)
Professor Shoemaker avoids romanticizing the past by highlighting the fact that “we tend to erase” Indigenous histories of land possession “in favor of a simplified story of American expansion . . . .” (P. 4.) Thus, Shoemaker is not using the past as it actually played out as a model so much as demonstrating that our traditional ideals of access to property ownership, however unevenly and unfairly applied in the past, are undermined by the modern reality that land is becoming increasingly commodified by the rich to the detriment of working-class and middle-class families and individuals, many of whom can no longer afford to buy homes or own farms because prices are being driven up—in some cases by distant investors, many of whom are foreign, and in other cases, particularly with respect to farms, because land is tied up in “hereditary family dynasties.” (P. 60.)
One example of this commodification is the fact that, over a six-year period, a billion-dollar private equity investment venture bought up 19 out of 32 homes on a single block in Nashville, Tennessee in a working-class area known for its affordability. The venture not only transformed the block into an area that middle-class buyers could not afford, but, at the same time, the venture failed as a landlord to fulfill basic maintenance requests for the tenants who rented the houses it owned. (Pp. 6-7, 35.)
Professor Shoemaker provocatively urges us to reimagine our property laws so as to facilitate more rights for those that have strong place attachment to certain areas. Using the Standing Rock Sioux Tribe’s protests against the Dakota Access Pipeline (DAPL) as an example, she argues that lack of land ownership is often unfairly used as an absolute bar to legal rights and access, even in the face of place attachment going back generations or, in this case, centuries.2
As Professor Shoemaker notes, the federal government’s strategy of using the Standing Rock Sioux Tribe’s lack of ownership of the lakebed, under which the pipeline was proposed to go (and ultimately was built), against the Tribe was particularly cruel because that land was illegally taken from them by the United States government. (P. 31.) Another devastating twist that Shoemaker highlights pertains to the peculiarities of federal property law relating to Tribes. These peculiarities allowed the federal government to issue a federal trespass notice to the protesters despite the fact that they had the permission of an individual Tribal citizen who was a co-owner of the land. (P. 32.)
Thus, even very deep place attachment and strong cultural significance did not ultimately give the Standing Rock Sioux the power to object to the pipeline. And their protest itself was unfairly cut short by the perverse injustice of federal property law with respect to Native Americans.
Another example that Professor Shoemaker discusses to illustrate property law’s failure to privilege place attachment is the way that the single-family home market is increasingly being taken over by investors, including private equity funds comprised of distant and even foreign investors. This has led not only to rising home costs but also, in at least some cases, such as the Nashville example discussed above, to poor response to maintenance requests and unfair rent hikes. (Pp. 7, 35.) She argues persuasively that “[p]roperty rules decide, as a first principle, to sanction absentee investment” and that “[i]t is a choice to design property rights such that title and possession can be decoupled without limits . . . .” (P. 35.)
Much of the article is devoted to Professor Shoemaker’s very interesting explorations of the importance of place and to convincing arguments about why place should matter that build on work by scholars such as Margaret Radin, Gregory Alexander, Keith Bassos, and others. At the same time, however, Shoemaker also acknowledges that putting too much importance on place attachment can also lead to its own problems, such as hereditary family dynasties that impede newcomers’ entrance into farming as well as communities that enforce socially undesirable norms like racial exclusion or class-based exclusion in the form of protests against proposed affordable housing projects. The argument is thus for a more balanced approach to property rights in which place attachment plays an important role, not for an approach in which place attachment is the only consideration.
Ultimately, Re-Placing Property shows us that failure to privilege place attachment sufficiently in our property rules has facilitated wealth concentration to the detriment of local residents who do have such attachments. As Professor Shoemaker explains, when absentee ownership becomes the norm, “[t]he land—the landscape itself and the local people who inhabit it—is captured in a sense, controlled and used to benefit outsiders, with costs and harms left local.” (P. 52.)
While the article makes a number of important contributions, I found its elucidation of how the absence of any requirement of place attachment in our property law creates injustices for local community members and Tribes to be particularly valuable. Professor Shoemaker provides a new way to think about and define the problems with relatively novel but increasingly common practices—like foreign investors’ buying homes in well-off areas and then leaving them vacant for long periods of time or buying homes in poorer areas in order to rent them out and then raising the rents beyond what existing renters can afford.3
Professor Shoemaker offers a number of potential solutions to the problems she describes, highlighting Scottish Land Reform’s emphasis on broad public access rights as one possible approach to giving more weight to place-based attachment. Using a wider lens, she advocates more generally for alterations in our property rules to “favor[] or in some contexts . . . [to] require[e] . . . conditions that promote a place-based attachment . . . .” (P. 57.) One of the aspects of the article that makes it so engaging is Shoemaker’s exploration of her own place-based attachment to her grandparents’ land in Wisconsin and her concession that perhaps she does not need ownership to preserve and honor that attachment but only access. (P. 69.)
The article is a must-read for anyone concerned about the current levels of wealth concentration in the United States and the resulting inequities. Professor Shoemaker’s critique of the sometimes unchecked freedoms that come with ownership and her argument that we should structure our property rules differently so as to limit these freedoms in the absence of place-based attachment are incisive.
- One stark example provided in the article of a distant investor is Bill Gates’s being the largest landowner in Nebraska, a position he holds solely as a result of “his passive investment objectives.” (P. 5.)
- Accounts describe the Oceti Sakowin (also referred to as the Great Sioux Nation) as arriving in what is now South Dakota in the 1700s. See, e.g., Native American & Indigenous Studies, Rebecca Crown Library, Dominican University.
- See, e.g., ‘Ghost’ Foreign Investors Buying Palo Alto Homes, But Keeping Them Empty, CBS New Bay Area (Apr. 28, 2015); Sarah Buduson, Cashing in on Cleveland: How Foreign Investors Siphon Money Out of the City’s Poorest Neighborhoods: ‘All We Are is a Line on a Spreadsheet’, News 5 Cleveland (Oct. 20, 2022).
