Producing Outstanding Scholarship
Thomas W. Mitchell, J.D., LL.M. is a 2020 MacArthur "Genius" Fellow, Professor of Law and Co-Director of the Program in Real Estate and Community Development Law in the School of Law at Texas A&M University (TAMU). We interviewed Professor Mitchell about his research that addresses developing policy and reforming long-standing laws that deprive African American and other disadvantaged American families of their property and real estate wealth, writing and research best practices, and his impact as a MacArthur Fellow.
What is the inspiration for your research?
There are two things that made me pursue this line of work. First, is the troubling reality that many disadvantaged communities have been displaced and the economic and non-economic consequences of that displacement. I grew up in San Francisco, and in 1970 there was an African American population of thirteen and a half percent in the city. The African American population in San Francisco today is about five percent and it is continuing to decline. It has had the most substantial decline of an African American population of any major city in the United States over the course of the last fifty years. I was quite troubled during my childhood to see that trend as it began to accelerate. Although I was only vaguely aware of it during my childhood, certain laws and policies were put in place in the city that contributed to the mass displacement of African American businesses and residents.
The second factor was that for a variety of reasons, I didn't get to know any of my extended family until I was in college, in part because my dad was estranged from his father. When my paternal grandfather died, my father asked me to go to the funeral in Newark, New Jersey, while I was going to college on the East Coast at the time. I did. It was a very interesting and revealing weekend. I was shown photo albums going back to our family's heritage in southwest Georgia, when sharecropping was prominent. Seeing these photos made me want to learn more about my own family's heritage and, more generally, about the African American historical experience in the rural south.
I spent a few weeks thinking about what I was really interested in separate and apart from both what I had studied in law school at Howard University and the specific type of legal work I had done as a practicing attorney. I focused on the two themes of the displacement of African American communities and a thirst to learn more about my family's heritage in the rural South. I read and thought of what would bring those two together and I didn't really find it in academic writings. In a couple of libraries in the Washington, D.C.-area where I conducted some research, I stumbled across newspaper articles about African Americans losing land as a result of a set of property laws. That's what got me going as I was better able to understand the connection between law and policy and what I had witnessed growing up in San Francisco where I had observed one Black-owned business after another that had to shutter and the displacement of many Black city dwellers. With the perspective of an adult with legal training, I belatedly realized that there had been laws and policies that had been put in place in my childhood that basically created the conditions that contributed to the troubling displacement I had observed.
What were the most surprising things you learned from your research?
I think the biggest surprise I learned was about the incredible deficiency in how law students and lawyers were trained about this particular area of property law. There was a huge gap between what was assumed about how this area of law worked –assumptions that failed to take any account of race and class – and the reality of how these laws worked on the ground. In fact, disadvantaged families and communities, which have an overrepresentation of people of color, often have a fundamental lack of access to affordable legal services and financial resources, which often means they have a whole different reality in terms of their ability to maintain their property. This reality was not being captured by the authors of law school textbooks and legal treatises, and so, generation after generation of law students were not learning about fundamental property injustices that were hiding in plain sight.
When I was doing research at the University of Wisconsin for my master’s in law, I spent a lot of time visiting various African American communities in the South. I remember a meeting in North Carolina where several families approached me and shared their deep agitation about how this particular property law had been used to undermine their ownership. They described how the law worked but nothing they described was consistent with what I had been taught in law school or with how casebooks or treatises had described this area of law. Initially I thought that these families sadly must have misunderstood the way this law actually worked but I politely told them that when I returned to Madison, Wisconsin, I would conduct some legal research and would get back to them with whatever I discovered.
Upon my return to Madison, I reviewed many casebooks and treatises but nothing that the families described to me was validated by anything I reviewed in these books. But then I decided to get the legal documents and judicial opinions from the rural southern court that had decided one of the cases one of the families had described to me. I remember when those documents arrived in Madison. I reviewed them carefully and was utterly shocked that everything the families had told me in North Carolina on my earlier trip, which I simply didn't believe could be accurate at the time based upon my legal training and experience as a lawyer, was actually true.
I think the other thing that surprised me was the number of African Americans who I talked to who discovered what I was researching, whether they were taxi drivers or professors, for example, who said, “Oh, my family has that problem.” Realizing how widespread this so-called heirs’ property issue was within the African American community, irrespective of people's class status or occupation or whether they lived inside or outside of the South or in an urban or rural area, made me realize I had stumbled upon a huge, but very much underappreciated phenomenon.
We have an incredible number of racial gaps in our country, for example in healthcare, incarceration, and education, many of which COVID-19 has brought into plain view. There is also a massive racial gap in this country in terms of families making wills and estate plans. It turns out that, approximately sixty-four percent of white families in this country have a will but fewer than twenty-four percent of African American families have a will. Not surprisingly, within any racial or ethnic group, those who make will or estate plans at the highest rates are those who have the most education. Approximately seventy-two percent of white Americans with at least a college education have a will. However, only thirty-two percent of African Americans who have at least a college education have a will compared to the fifty-seven percent of white Americans without a high school degree who have a will, which I find deeply troubling.
One of the possible reasons so many African Americans lack a will or estate plan is that after the Civil War, there were hardly any Black attorneys in the United States and few white attorneys would agree to represent Black clients. Over time it appears, this initial inability to have a will drafted due to the lack of access to legal services resulted in many of the descendants of these families believing that it was normal to not have a will. Unfortunately, in terms of property law, if you die without a will or estate plan and have at least two heirs, your property will be transferred under state laws to your heirs under the worst, most unstable and unmanageable form of common real property ownership recognized in the United States and this fact has contributed to substantial Black property loss in the United States.
Do you have any best management practices to help others in writing and research?
The first thing, I always try to think outside the box and try to think big, but that's not for everybody as there can be a high risk/high reward to this approach. Instead of having some fixed notion of what my research should be, I tried to think broadly. I tried to talk to as many people as possible, including people on the ground who may have a set of experiences academics have not captured. When I was a graduate student, I tried to think of what would personally inspire me at two in the morning when I would be working on my master’s thesis. Simply put, I have to be very inspired by what I'm doing because my work is not just academic but it's a calling or a mission for me.
I try to read as broadly as possible, including where it might be relevant from other disciplines. For example, I research other areas of law, besides property law. I conduct research of scholarship in other disciplines, whether it's sociology, anthropology, psychology, or economics, for example, and I often try to compare legal regimes in different places including doing some international research when that might be enlightening. In sum, I believe that I might get some insight from other sources that wouldn't be obvious if I limited my research to property law in the United States.
Writing and research is ninety percent editing and redrafting. Realize your first draft is just the initial clay not the finished ceramic work of art. The real work is molding and shaping and often throwing out something you initially thought was great. Submit to the process that it's not going to be perfect the first time. It's just going to take a lot of additional work and polishing, but you have to get that first draft out no matter how bad it is.
The last thing I'll say is to workshop your manuscripts as much as possible. Have people read it and tell those people, “Don't shower praise upon me. What I want is constructive feedback. Take out your red pen and be candid and rigorous, because to make my work better I need to hear constructive feedback, not just get a pat on the back.” Then try to receive this feedback without being defensive as you work on improving your work but at the same time edit your work in a way that you decide for yourself what part of the feedback you received is useful and what part may not be particularly useful to you.
What do you like to do when you are not writing?
I'll just admit it. I've been chronically overextended throughout my career because I don't just do research, which is actually a large part of the reason I was awarded the MacArthur Fellowship. I’ve been able to translate my research into law reform and policy development, which is how I see my broader impact in terms of trying to improve the actual conditions of people, including African Americans and other populations. As a structural matter, it's not a normal thing for a professor or a law professor to do substantial work in the realm of law reform and policy development, and it limits the amount of my free time.
I was an athlete way back in the day. I continue to run and do what I can to stay in shape. I love music of many different genres, including rhythm and blues, gospel, folk music, salsa, and certain types of Brazilian music. I also have a ten-year old daughter. My wife and I enjoy spending time traveling with her for her club soccer team and especially on vacations to warm weather islands whether in the Caribbean or in Hawaii.
What would you like readers to know that we have not talked about?
It's a great privilege to be awarded the MacArthur Fellowship, especially because earlier in my life I experienced some real hardships both financial and otherwise but I always tried to keep my head up and tried to keep moving forward one step at a time. In the 40 years of the program, there have been 1,061 MacArthur fellows. I think, I'm just the seventh or eighth law professor to have ever been awarded the MacArthur Fellowship. I am obviously incredibly grateful for this award, an award for which one does not apply. I found out the MacArthur Foundation recruits nominators who are leaders in all kinds of different fields, including in academia, the arts, and even community organizing. More than 2,000 people were nominated in the aggregate. This year, the MacArthur Foundation ultimately selected 21 fellows although on average about 25 fellows are selected per year. I only discovered I was under consideration when the MacArthur Foundation called me in mid-September to tell me I had been awarded the MacArthur Fellowship.
What I hope to do is leverage the incredible reputation of the MacArthur Fellowship to have a greater impact. My work could help a lot more people who are struggling with a variety of property problems, who are mostly disadvantaged and disproportionately black, indigenous, and other people of color. I hope to build a center and have staff. I would have law students and graduate students from a number of disciplines involved. We would work with a number of stakeholders to develop ideas to further legal reform and develop policy solutions to benefit disadvantaged communities. We would sponsor webinars for lawyers and judges, families, foundations, public interest law firms, and community-based organizations to help educate them on these various areas of law. The big idea is to take what I've done as an individual in terms of law reform and policy work, which never has been considered part of my job as a law professor, and to then be able to institutionalize this work so that it becomes sustainable, in part by having this work become a recognized part of my job. Creating such a center would enable me and those I’d work with to make a potentially significantly greater impact than the pretty substantial impact many consider that I've been able to make to date.
Crystal S. Carter