Vanderbilt University Law School Scholarship@Vanderbilt Law Vanderbilt Law School Faculty Publications Faculty Scholarship 2005 Adverse Possession of Identity: Radical Theory, Conventional Practice Jessica A. Clarke Follow this and additional works at: https://scholarship.law.vanderbilt.edu/faculty-publications Part of the Family Law Commons, Law and Race Commons, and the Sexuality and the Law Commons Recommended Citation Jessica A. Clarke, Adverse Possession of Identity: Radical Theory, Conventional Practice, 84 Oregon Law Review. 563 (2005) Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/948 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law School Faculty Publications by an authorized administrator of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. +(,121/,1( Citation: Jessica A. Clarke, Adverse Possession of Identity: Radical Theory, Conventional Practice, 84 Or. L. Rev. 563 (2005) Provided by: Vanderbilt University Law School Content downloaded/printed from HeinOnline Wed Sep 19 11:57:17 2018 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information Use QR Code reader to send PDF to your smartphone or tablet device JESSICA A. CLARKE* Adverse Possession of Identity: Radical Theory, Conventional Practice T he doctrine of adverse possession is an outlier in the rigid and formalistic realm of property law. Adverse possession rewards the squatter who pulls off a successful performance as the true owner of a piece of property, to the disadvantage of the original owner. Adverse possession, however, is not the only le- gal doctrine that confers legal status on those who are merely acting as if they have that legal status. Other familiar doctrines, such as common law marriage, provide recognition, and the ac- companying rights and duties, to those who act as if they are hus- band and wife. But sometimes acting as if is not enough. If a person who comports herself as a woman is deemed to be a bio- logical "man," she may find herself fired, without legal recourse, if she tries to come to work wearing a dress.1 When is acting as if one had legal status sufficient to secure that status in the eyes of the law? What normative rationales have been put forth by courts and commentators for transform- ing de facto performances into de jure protections? When should the law formalize a performance? This Article will take up these questions in three contexts: property law, family law, and the law of sex and race determination. Adverse possession confers property ownership on trespassers who have occupied land for a given period of time. Common law marriage statutes treat a couple as married upon dissolution of the relationship or death of one spouse, if that couple has behaved as if married for a certain amount of time. The evolving legal concept of func- tional parenthood grants custody rights to persons who fulfill * Law Clerk, Hon. Shira A. Scheindlin, U.S. District Court for the Southern Dis- trict of New York. J.D. 2003, Yale Law School. The author wishes to thank Kenji Yoshino for his invaluable comments and suggestions. 1 See, e.g., Doe v. Boeing, 846 P.2d 531, 533 (Wash. 1993). [563] OREGON LAW REVIEW [Vol. 84, 2005] caretaking roles for children, even if those persons are not legal parents. Doctrines of race determination in the nineteenth cen- tury conferred legal rights to those who successfully acted out social expectations for behavior of white persons. In each case, the elements of a legal claim are strikingly simi- lar: physical proximity, notoriety and publicity, a claim of right, consistent and continuous behavior, and public acquiescence. Moreover, while the law protects the interests of the parties im- mediately concerned, protection of third-party interests and so- cial expectations turns out to be the dispositive factor in each case. This Article will also examine what is at stake when legal doc- trines acquiesce to public performances, a phenomenon I will re- fer to as "performance reification." The theory behind performance reification seems to be that the law is public en- forcement of a preexisting natural status or private arrangement. Law is not constitutive of that natural status or private arrange- ment. However, the doctrines of performance reification demon- strate that a legal doctrine can give shape to the very social behaviors that it attempts to describe. Indeed, these doctrines raise fundamental and profound questions about the nature of property, marriage, the family, and racial and gender identity. What distinguishes property from theft, marriage from prostitu- tion, parenthood from kidnapping, passing from whiteness, male- to-female transsexuals from women? Is the difference one of pri- vate rights, social judgments, or legal forms? At first glance, it appears that performance reification is a rad- ical idea and a subversive phenomenon. By recognizing mere performance, these doctrines suggest that there is no underlying, extralegal, stable essence to property, marriage, parenthood, race and gender. Thus, the theory goes, these doctrines should open social conventions and legal institutions to contestation. How- ever, upon closer examination, it becomes apparent that such performance reification might simultaneously and unpredictably shore up the power of the underlying norm to exact conformity from individuals. To the extent that courts are only counting a certain performance as worthy of reification, they are condition- ing the grant of rights on conformity to a particular social norm. Individuals find that they must accede to many limitations in or- der to be cognizable as rights-bearing subjects. Therefore, I con- tend that doctrines of performance reification should be Adverse Possession of Identity approached cautiously by anyone who seeks progressive social change. In Part I of this Article, I outline the symmetry between the doctrinal elements of adverse possession law, common law mar- riage, and functional parenthood, and examine the policy ratio- nales for each doctrine. I extend this analysis to the historical doctrines of race determination in slavery and segregation cases, which bear a surprising similarity to adverse possession. Part I further analyzes contemporary doctrines of sex determination, in which performance is consistently inadequate to guarantee legal recognition. In Part II, I apply two legal theories: formalism and realism, in an attempt to build a conceptual framework to ex- plain these doctrines. However, the analysis provided by these legal theories is incomplete, so I draw on Judith Butler's theory of gender performativity to demonstrate that the law here is en- gaged in recognizing a successful public performance. In turn, Part III analyzes the subversive and conservative aspects of per- formance reification to conclude that these doctrines are more likely to preserve conformist community expectations than to open social norms to contestation. Lastly, Part IV concludes that "one-size-fits-all" legal institutions, such as property, marriage, parenthood, whiteness, and sexual identity, should only be im- posed upon ambiguous performances when strong third-party in- terests are at stake. I ANALOGOUS DOCTRINES OF PERFORMANCE REIFICATION Under what conditions is acting as if one was an owner, a spouse, a parent, or a white person sufficient for a court to recog- nize one's legal status as such? Interesting parallels emerge from comparison of the doctrines of adverse possession, common law marriage, functional parenthood, and trials of race determina- tion. Interestingly, a similar doctrine of performance reification is not apparent from the case law on sex determination. A. Property Law 1. Adverse Possession: Acting like an Owner Adverse possession is the transfer of a legal interest in prop- erty from the original owner to one who has acted as if she OREGON LAW REVIEW [Vol. 84, 2005] owned the land for a certain period of time, regardless of whether or not that person actually has title to the land. Carol Rose offers the following example: Suppose I own a lot in the mountains, and some stranger to me, without my permission, builds a house on it, clears the woods, and farms the lot continuously for a given period, say twenty years. During that time, I am entitled to go to court to force him off the lot. But if I have not done so at the end of twenty years, or some other period fixed by statute, not only can I not sue him for recovery of what was my land, but the law recognizes him as the title owner.2 Courts in most jurisdictions have developed a series of fairly uniform requirements for adverse possession, including "(1) an actual entry giving exclusive possession that is (2) open and noto- rious, (3) adverse and under a claim of right, and (4) continuous for the statutory period."3 An adverse possessor acts like a true owner: "the sort of entry and exclusive possession that will ripen into title by adverse pos- session is use of the property in the manner that an average true owner would use it under the circumstances."'4 One court ex- plained, "[i]t has become firmly established that the requisite possession requires such possession and dominion 'as ordinarily marks the conduct of owners in general in holding, managing, and caring for property of like nature and condition." 5 The ad- verse possessor must send a clear signal: acting like the owner in a way that is consistent and continuous throughout the statutory period.6 The notoriety requirement shapes which acts are sufficient to establish adverse possession.