The Erasure Canon

For generations, law students learning the fundamentals of property have opened their textbooks to a sanitized origin story. Standard casebooks present property rights as a neutral system of boundaries, contracts, and quiet exchanges, quietly editing out the violence that actually forged them.

At the root of this sanitized tradition lies the Doctrine of Discovery. Once wielded by European powers to declare non-Christian lands as vacant and up for grabs, this legal fiction was formally baked into United States municipal law by the 1823 Supreme Court case Johnson v. M’Intosh. Conquest became the original deed.

Yet for a long time, standard casebooks hid this lineage while openly embracing an even darker foundation. Before the 1940s, property curricula routinely featured cases involving enslaved human beings to teach technical dry principles like inheritance and conveyancing. These cases did not treat human bondage as a moral catastrophe; they treated it as routine commercial infrastructure, seamlessly normalizing white ownership of Black people as part of the natural social order.

When legal education eventually pivoted away from explicit discussions of slavery, it did not replace it with a reckoning. Instead, it practiced a selective amnesia. By sweeping both conquest and slavery out of the foundational curriculum, legal textbooks presented modern property institutions—complete with their jurisdictions and unevenly distributed values—as the natural outcome of neutral legal evolution rather than the artifacts of racial power.

Efforts to reintegrate these foundational histories into the classroom have unfolded slowly since the 1970s. While some contemporary casebooks now acknowledge the landmark status of Johnson v. M’Intosh, these curricular corrections remain partial and inconsistent. When the origins of property are scrubbed clean, ownership appears innocent, masking the structural power that built it.