Daniel Sharfstein enjoys exploring the ways in which history and historical analysis can contribute to theoretical and doctrinal debates in property law. Sharfstein, an associate professor who teaches courses in property law and American legal history, wrote his most recent article, “Atrocity, Entitlement and Personhood: The Value of Violence in Property Law (forthcoming in the May 2012 Virginia Law Review) to “work through some of the basic assumptions a lot of property professors—myself included—make in the classroom and in their scholarship.”
The article was honored with the Association of American Law Schools’ 2012 Scholarly Paper Prize, and Sharfstein presented his work at the organization’s annual meeting in Washington, D.C., on January 6. The competition is open to all law professors in the United States who have been teaching for five years or fewer. Sharfstein’s paper was selected by a committee of 12 established scholars who reviewed more than 100 submissions with the authors’ identities concealed. Sharfstein is also the author of a well-received book, The Invisible Line: Three American Families and the Secret Journey from Black to White (Penguin Press, 2011), recently released in paperback, which explores the history of race in the United States through the experience of three American families over several generations.
In “Atrocity, Entitlement and Personhood,” Sharfstein explores how people relate to and identify with their property when they have committed violent or unneighborly acts for it. While a generation of scholars has regarded the “personhood” that people invest in their property as a progressive basis for resolving a wide variety of legal questions across property doctrine, Sharfstein argues that personhood can derive from atrocity. “For hundreds of years,” Sharfstein said, “committing atrocities related to the acquisition and ownership of property has led people to develop strong personal connections to it. I argue that property constitutes such a special part of American identity in part because our ancestors killed for it.”
The article explores why atrocity might foster personhood, drawing on social psychology and cultural and legal theory. It also traces the history of how the American property tradition became so closely linked to personal identification with property. “I suggest that the killing of Native Americans has an under-appreciated role in the equation —not necessarily conquest writ large so much as the accumulation of individual acts of violence,” Sharfstein said.
The article also presents new readings of major areas of property scholarship and doctrine, including the right to exclude and adverse possession, nuisance and regulatory takings, and commonly owned property. “When conflicts over ownership and use arise, even harmful conduct can become conflated with the rights of ownership and people’s identities as owners,” Sharfstein said. “These moments when violence and pain intensify the bond between people and their property reveal how personhood does not always have a progressive valence. Personhood in property presents itself less as a basis for decision making than as a set of challenges for property law to navigate as it seeks to define and protect rights and obligations in a peaceful, prosperous and democratic society.”
Sharfstein joined Vanderbilt’s law faculty in 2007 after serving as a Samuel I. Golieb Fellow in Legal History at New York University School of Law. He earned his law degree at Yale and practiced with Strumwasser & Woocher, a California-based public interest firm, before entering the legal academy.
