Sunday, March 13, 2011

Thomas Mitchell Plays Key Role in ABA Model Adoption of New Model for Family Property

Recommended reading from Professor Andrea Armstrong:

Thomas Mitchell Plays Key Role in ABA Adoption of New
Model for Family Property

Submitted by UW Law News on March 2, 2011

     ABA Adopts Act

Recently, the American Bar Association approved a model law
called the  Uniform Partition of Heirs Property Act. After
decades of stories about  families forced to sell long-held
property at lower-than-market prices  as a result of the
actions of unscrupulous real estate speculators, the  law
aims to produce fairer outcomes in how land is divided among

For Thomas Mitchell
<>,  an
associate law professor at University of Wisconsin Law
School and the  Act's primary drafter, this shift could be
considered years in the  making. "For the past fifteen years
, families from across the country  have contacted me
because they have faced the prospect of losing  property
that had been in their families for generations," Mitchell

     Years in the Making

Mitchell's 2001 /Northwestern University Law Review/ article
, "From  Reconstruction to Deconstruction," the seminal
article in the field,  explored how forced partition sales
of tenancy in common property,  referred to more commonly as
heirs' property within poor and minority  communities, have
been a major source of black land loss within the  African
American community.

At the time of the article's publication, few had explored
tenancy in  common laws from such an angle. Many readers,
while praising Mitchell's  insight and his proposals for
reform, predicted no change would come  from his scholarship
because they believed that no one with any real  power would
support reforms designed to help disadvantaged property

However, a subsequent /Associated Press/ article, "Quirk in
law strips  blacks of land," quoted Mitchell and brought
national attention to the  topic. Based upon his work in the
area, the A.B.A. asked Mitchell to  serve on a task force
that would address the partition abuses the /A.P./  article
uncovered. This task force developed a strategy that
included  requesting the National Conference of
Commissioners on Uniform State  Laws to form a committee to
draft a uniform law reforming partition law.

Mitchell continued to conduct research in the field. His
2005 /Wisconsin  Law Review/ piece
examined the  legal problem from the bottom up and argued
that legal reform could help  thousands of black families
who still own millions of acre of land, an  important fact
not commonly known. In 2010, Mitchell published an  article
in  the /Florida State University Law Review/ that addressed
an issue of the  economics of forced sales and lay the
foundation for one of the key  reforms in what would become
the Uniform Partition of Heirs Property Act.

In his work on drafting the Act, Mitchell was able to call
upon a number  of organizations that participated in the
Community Development  Externship Program, a program he
began building while completing his  L.L.M. at UW Wisconsin
as a Hastie Fellow and serving as an Assistant Dean.

     Going Forward

The Act was approved at the ABA's Midyear Meeting in
February. States  won't be required to use the new model;
their own politics will  determine which do and don't. But
they often adopt acts authored by the  Uniform Law
Commission. Within days of the A.B.A. meeting, Oregon became
the first state in which a bill has been introduced to enact
the Act.

For Mitchell, the A.B.A. adoption of the Act is a
significant  achievement, yet work remains. "Taking the long
view," he says, "I'm  quite optimistic the Act will help
families to strengthen their property  rights and to protect
their real estate-based wealth."

*Additional Info.*

To read the /Dow Jones/ article covering approval of the Act
, go to:

To read Mitchell's /Northwestern University Law Review/
article, "From  Reconstruction to Deconstruction," go to:

To read his /Wisconsin Law Review/ piece, "Destabilizing the
Normalization of Rural Black Land Loss: A critical Role for
Legal  Empiricism," go to:

To read his /Florida State University Law Review/ article
"Forced Sale  Risk: Class, Race, and The 'Double Discount,'"

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