Shoemaker discusses complexities of property law, paths forward

America has been molded and shaped by property law from its beginnings, a unique history balancing ideals of individual freedom with a complex history of dispossession.  However, current trends in other countries may offer new perspectives in how to imagine approaches for the future, according to a University of Nebraska–Lincoln expert in property law.

Jessica A. Shoemaker, Steinhart Foundation Distinguished Professor of Law, presented her insights on land justice in rural America during the fall Nebraska Lecture, “Ground Rules: How Property Makes the Countryside,” on Nov. 12.

Throughout history, land has proven essential for building lives and communities, with property law emerging from “the social and political struggle over how we order ourselves,” Shoemaker said.

“Property laws are the literal ground rules that govern in a most foundational way how we allocate and manage access to and control one of our most valuable resources,” she said. “Ours is a landscape very much informed by and shaped by private property law.” 

American property law broke from the feudal power structure that governed land ownership in Europe, most notably through homestead laws, which gave people — granted, white males mostly — land that they could live and make improvements on and eventually own.

This tradition was built on sacrifices by others — decades of slavery and Indigenous dispossession, Shoemaker said.

As property law has matured in America, it has largely been seen as governing individual owners’ rights to determine how their land is used, who is allowed access to it and what they are allowed to do on it. Property law is entwined with concepts such as individual freedom, independence, privacy and freedom from government interference.

But property is more complex than that, Shoemaker said. “We don’t live on an island.”

Property law is not only about landowners’ rights but also their responsibilities. Property rights shape and identify social relationships, and they can stir up powerful emotions, she said.

The 20th century struggle for Black civil rights was also a struggle over property law. Ongoing issues surrounding the displacement of Indigenous peoples and treatment of Black farmers, as well as environmental concerns, continue to remind us that land justice is a complicated factor in how property law has evolved in America.

Today, concerns over just who owns rural land, whether it is Bill Gates or the Chinese government, are a flashpoint as farmland has transitioned from a place where people live and produce food to an asset for nonresident investors. There are about 300 private equity firms oriented to food and agriculture in the U.S.

Finding affordable land to buy is a top challenge facing young farmers. 

Examples from other nations may point the way to new approaches in America, too.

In Canada, agreements between the government and Indigenous people have set out land and resources for Natives. In Scotland, a “right-to-live” movement aims to combat the shortage of affordable properties in rural areas by giving young people the legal right to live in the communities where they grew up. And in England, a mildly seditious movement promoting “trespassers’ rights” has emerged as a rallying cry for greater public access to nature.

“We’re limited only by our imaginations” in pursuing land justice through property law, Shoemaker said.

The Nebraska Lectures: The Chancellor’s Distinguished Speaker Series are offered once a semester, sponsored by the Office of Research and Innovation, Office of the Chancellor and Research Council, in collaboration with the Osher Lifelong Learning Institute. The lectures bring together the university community with the greater community in Lincoln and beyond to celebrate the intellectual life of the university and showcase faculty excellence in research and creative activity.

A recording of Shoemaker’s talk will be posted on the Nebraska Lecture website within a week of the lecture.