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09/11/2021

Joseph Blocher & Mitu Gulati: Property, Sovereignty, and the Law of the Territories
Michael Ramsey

Joseph Blocher (Duke University School of Law) and Mitu Gulati (University of Virginia School of Law) have posted Navassa: Property, Sovereignty, and the Law of the Territories (Yale Law Journal, forthcoming) (52 pages) on SSRN.  Here is the abstract:

The United States acquired its first overseas territory—the island of Navassa, near Haiti—by conceptualizing it as a kind of property to be owned, rather than a piece of sovereign territory to be governed. The story of Navassa shows how competing conceptions of property and sovereignty are an important and underappreciated part of the history of the law of the territories—a story that continued 50 years later in the Insular Cases, which described Puerto Rico as “belonging to” but not “part of” the United States. Modern scholars are drawn to the sovereignty framework and the public-law tools that come along with it: arguments about rights, citizenship, and self-determination. But the property framework, and accompanying private-law tools, can also play an important role in understanding and dismantling the existing colonial structure.

Via Larry Solum at Legal Theory Blog, who says: "I had not known about the Guano Islands Act!  Highly recommended.    Download it while it's hot!"

As perhaps suggested by earlier posts, I have some doubts about the constitutionality of the Guano Islands Act.  But I would not want to start that debate over again.