Following the Civil War, black Americans began acquiring land in earnest; by 1920 almost one million black families owned farms. Since then, black rural landownership has dropped by more than 98% and continues in rapid decline-there are now fewer than 19,000 black-operated farms left in America. By contrast, white-operated farms dropped only by half, from about 5.5 million to 2.4 million. Commentators have offered as partial explanations the consolidation of inefficient small farms and intense racial discrimination in farm lending. However, even absent these factors, the unintended effects of old-fashioned American property law might have led to the same outcome. Because black farmers often did not make wills, their heirs took the land as co-owners. Over generations, co-owners multiplied, the farms became unmanageable, and the land was partitioned and sold, a seemingly inevitable "tragedy of the commons" in which too many owners waste a common resource. Black rural landownership may seem a dusty topic, peopled with hardscrabble tales of property past. Consider, though, the daunting possibility that property future-think biomedical research, post-apartheid restitution, hybrid residential associations, perhaps cyberspace-may have the same analytic structure, be subject to a similar punishing legal regime, and face the same fate as the black rural landowner.
Heller, Michael A. "The Liberal Commons." H. Dagan, co-author. Yale L. J. 110, no. 4 (2001): 549-623.