Abstract

African Americans in contemporary U.S. society continue to experience economic inequality. Regardless of the indicators one reviews—property ownership, employment, or income—the data confirm the entrenchment of African Americans’ disadvantaged status. It is the thesis of this Article that the economically subordinated status of African Americans cannot be divorced from the historical processes that have created or contributed to the divide between African Americans and other social groups. In this Article, I explore the struggle of ex-slaves and their twenty-first century descendants to achieve the promise of property in a democratic society and the role of law as a reflection of and tool of racial hierarchy. I focus on the role played by the judicial partition process in creating a system that inextricably led to stripping African Americans of their property. In recent years, courts and legislatures have scrutinized and expressed increasing hostility toward exercises of regulatory power that effect takings. This Article gives a similar scrutiny to the partition process and argues that it should be modified to alleviate the unfair burden it places on poor property owners and to assure that property owners are afforded just compensation when their property is involuntarily taken to achieve a public purpose.

Keywords

Race discrimination, Tenancy in common, Partition (Real property), African Americans, Judicial power, Property rights, Real estate appraisal, Regulatory taking (Law)