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Home Archive Volume 63 Volume 63, Issue 6 Pragmatism and Postcolonialism: Protecting Non-Owners in Property Law
Pragmatism and Postcolonialism: Protecting Non-Owners in Property Law

By Rashmi Dyal-Chand | 63 Am. U. L. Rev. 1683 (2014)

Property law has a particular problem with non-owners.  Although property law clearly identifies the rights of property “owners,” the rights of “non-owners” are vague.  This problem is significant because modern property law is often called upon to balance the rights and needs of owners and non-owners.  Property law cannot adequately perform this function without clearly establishing both sets of rights.  The New Jersey Supreme Court case State v. Shack exemplifies this problem because it purports to be a case about protecting non-owners.  This Article examines both the case and the texts upon which the court relied to argue that the New Jersey Supreme Court could not adequately protect the non-owners in the case because the court could not understand their rights.  Instead, in its effort to evince a set of rights powerful enough to overcome the property owner’s rights, the court eliminated the voices of the migrant workers it claimed to protect.

This Article draws upon postcolonialist theory both in examining the problem and in prescribing a solution.  In its prescription, the Article proposes a pragmatic form of postcolonialist inquiry as a theoretical foundation for protecting non-owners in property law.  Relying on the less iconic case of Hilder v. St. Peter, this Article proposes three devices within the common law tradition that are well suited to the task of representing and protecting non-owners.  As Hilder demonstrates, legal decision-makers can more fully consider and protect the rights and needs of non-owners through the pragmatic use of storytelling, the personalization of claims, and the precise matching of remedies to harms and needs.

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