The Folded Hands of Equity: Heirs Property, Partition Sales, and the Production of Inequality

Abstract

Paper #1 I analyze the symbolic and material production of racial inequality through formal law and on-the-ground judicial decision-making in heirs property cases involving partition sales. I interrogate how decision-making in these cases permit legal professionals to wield power, legitimate the legal profession as an institution, and reinforce disadvantage for Black Americans, using a rich dataset of case decisions from Pennsylvania and South Carolina from 1840-present. I identify particular mechanisms and circumstances in which the judiciary might opt for one mechanism or strategy over another. The judiciary showed a marked lack of comprehension as to how the weaponization of partition actions simultaneously espouse ideals of formal legal equality and, in practice, treat Black families facing loss of their ancestral property inequitably. I identify three strategies judges deploy to justify their actions as equitable and legitimate and to remain within the letter of the law, while reinforcing racial hierarchies positioning whites as superior: the whitewashing of the law, the strategic use of legal language, and logic to advance a particular vision of the law and to justify its position as THE arbiter of the law, paternalism towards marginalized groups and individuals, racial animus, and imposition of a white moral ideology on Black families. Each of these strategies decontextualizes the legal-moral values of fairness, equity and neutrality and makes these legal-moral values appear inherent to the legal system and natural. These strategies offer insight as to how the legal, economic and political systems establish and legitimate a racial hierarchy that have oppressed and subjugated Black Americans since the beginning of American history. The refusal of the judiciary to recognize the harms of this historical backdrop serve to retrench inequality in the American experience long after Emancipation. Paper #2 I examine the role of the legal maxim of ignorantia juris non excusat – roughly translated, “ignorance of the law is no excuse” – in judicial decision-making in case decisions rendered in Pennsylvania and South Carolina from 1840-present. I explore the extent to which judges cast decisions to not receive estate planning assistance from legal counsel as ignorance or negligence, the mechanisms by which they do so, the circumstances under which judges accept or reject ignorance defenses, and the consequences of these conceptions imposed upon decedents that these judges’ decisions have on the families left behind. I explore how judges make decisions in heirs property cases in which ignorance is an issue in terms of laypeople case parties, attorneys representing their clients, judges misinterpreting facts or the law in the decision-making process, probate judges managing their own estates in a suboptimal manner, and fraud by one or more people involved with the estate. In developing what I refer to as “weaponization of legal ignorance” theory, I identify four mechanisms – fetishization of court documents, emphasis on “plain meaning/language,” abuse of judicial discretion, and a tendency to decide cases based on technical issues, such as jurisdiction or statute of limitations issues, in order to avoid dealing with thornier substantive issues – through which judges and attorneys weaponize ignorance of the law against laypeople in the context of heirs property, at the intersection of property and probate law. Further, I identified some evidence of the operation of Dunn’s (2016) two-tiered justice system in the context of probate and property law, in that judges and other legal professionals are afforded much more leeway in the case of their ignorance or negligence than laypeople not educated in the law. In addition to exploring the mechanisms of one heretofore-unexplored consequence of legal ignorance – the possibility of the loss of property held by a family for generations – I extend the moral and practical underpinnings of the ignorance doctrine as applied in criminal cases to consider its operation in civil cases. Paper #3 This paper uses case decisions from Pennsylvania and South Carolina and Pennsylvania from 1840-present to examine the role the legal doctrines of coverture, dower, common-law marriage, and probate homestead exemptions play in judicial decision-making in heirs property cases. I uncover tension between two competing desires on the court’s part: on one hand, the legal profession’s desire to seek legitimacy for itself and its body of work through ensuring internal consistency and equality for all regardless of gender, and on the other hand, the stated desire by many jurists to offer special protection for women widows and their children (particularly minors) in handling of estate-related disputes. I identify mechanisms which operate to produce an inconsistent, incoherent body of law with respect to how gender inflects and informs decision-making in probate cases – the casting of adult women widows and minor children as vulnerable and ignorant, upholding moral ideals of women as primarily responsible for homemaking and childcare while simultaneously not providing the tools for women widows to overcome their legal disabilities, and the weaponization of moral judgments on couples who chose to partake in common-law marriage in order to justify expropriation of estate property. Similarly to the other two papers, judges employ strategies such as fetishization of evidence and language, weaponization of legal ignorance, selective invocation of judicial discretion, and emphasis on technical issues as an end-around to avoid dealing with substantive issues in order to produce gendered inequality in heirs property cases. This paper expands upon heirs property scholarship by introducing an explicitly intersectional approach to consider how Black women, in particular, are treated differently by the judicial system, and the potential downstream consequences of judicial decisions for descendants.