Shoemaker: Fee Simple Failures

In Fee Simple Failures: Rural Landscapes and Race, Jessica A. Shoemaker (Nebraska Law) (full disclosure: also one of RRP’s creators) addresses how property law created—and now continues to perpetuate—racialized disparities across the rural landscapes. After placing data on disparities among minorities in rural areas within the larger context of demographic trends in rural America, Shoemaker outlines “how rural landscapes got so white.” Her primary focus is agricultural land ownership in the United States, which is 98 percent owned by people who are white.

Shoemaker traces specific legal choices throughout American history that have explicity and intentionally excluded people of color from land ownership or denied the support necessary for maintaining rural landownership.

Fee Simple Failures then highlights the attributes of the fee simple itself that contribute to the continuation of racial disparities, specifically the perpetual duration and the enablement of commodification and absentee ownership. Shoemaker also asserts that several contemporary policy choices have been tailored with the preservation of family farms narrative in mind and that these policies enforce existing, predominately white farm ownership.

By highlighting increasing financialization and concentration of absentee landownership, Shoemaker also highlights how even idealized versions of white, smallholder family farms are under threat by current system designs.

While Fee Simple Failures calls attention to the property law choices made historically and presently that have created a rural landscape that harbors racial disparity, the article also encourages creative solutions grounded in property law with a particular focus on those that reconnect ownership to possession and active stewardship of land, expand land access to new generations of farmers, and reimagine the way the property systems can be designed in more equitable and ecologically responsible ways.

This digest was produced with significant contribution by Aurora Kenworthy, UNL Law Student.