Adverse Possession of Identity: Radical Theory, Conventional Practice
Clarke, Jessica A.
This Article examines the conditions under which acting as if one has a particular legal status is sufficient to secure that status in the eyes of the law. Legal determinations of common-law marriage, functional parenthood, and racial identity share striking similarities to adverse possession law – these doctrines confer legal status on those who are merely acting as if they have that legal status. In each case, the elements of a legal claim are strikingly similar: physical proximity, notoriety and publicity, a claim of right, consistent and continuous behavior, and public acquiescence. The reason public performance is critical is that these doctrines do not necessarily protect the immediate parties involved; rather, they aim to preserve third-party interests and the stability of the legal system against the threats of extra-legal forms of social ordering. This Article also examines what is at stake when legal doctrines acquiesce to public performances, a phenomenon I refer to as “performance reification.” By recognizing mere performance, these doctrines suggest that there is no underlying, extralegal, stable essence to property, marriage, parenthood, and race, potentially opening space for contesting the social meanings of these institutions. However, this Article concludes that performance reification is more likely to preserve traditional social meanings. For example, a woman is not recognized as a common-law wife unless she meets traditional expectations for wifely behavior. By only counting certain performances as worthy of reification, courts condition the grant of rights on conformity to particular social norms. Additionally, by imposing legal forms onto ambiguous social phenomena, performance reification solidifies the dominance of such forms. The law makes a person either a stranger or a parent to a child; there are no other legally recognized relationships. I conclude that law should only recognize performance when the third-party interests at stake outweigh the loss of potential variability caused by imposing a standardized form. For instance, the interests of children may weigh in favor of recognizing a standard set of parental duties, while community interests may not be strong enough to justify marriage as the only form of intimate alliance between adults.