Bernadette Atuahene

We Want What's Ours: Addressing the Legacy of Land Dispossession in South Africa (forthcoming)

Bernadette Atuahene — Fri, 25 Mar 2011 15:20:48 PDT

Limits of the Law: The Popela Community's Struggle to Regain their Land (forthcoming)

Bernadette Atuahene — Fri, 25 Mar 2011 15:18:56 PDT

Paying for the Past: Addressing Past Property Violations in South Africa (forthcoming)

Bernadette Atuahene — Fri, 25 Mar 2011 15:17:34 PDT

We Need to Anticipate Terrorists, Not React to Them

Bernadette Atuahene — Thu, 11 Mar 2010 09:34:13 PST

Haiti: Has God Turned His Back on the Country?

Bernadette Atuahene — Thu, 11 Mar 2010 09:33:01 PST

Property and Transitional Justice

Bernadette Atuahene — Tue, 09 Mar 2010 14:36:56 PST

Transitional justice is the study of those mechanisms employed by communities, states and the international community to deal with a legacy of systematic human rights abuses and authoritarianism in order to promote social reconstruction. There is a well developed transitional justice literature on how states can deal with past violations of civil and political rights, which discusses the value of truth commissions, and international and domestic prosecutions. The transitional justice literature on how to deal with past violations of property rights, however, is significantly less developed. The goal of this essay is to begin an important conversation about how transitional states can deal with multiple layers of past land dispossession in order to promote social reconstruction. I discuss the strengths and weakness of a state’s three main options: Maintaining the present property status quo, fully or partially returning to a prior status quo, or creating a new property status quo altogether. I argue that a state should decide which option it will choose in the context of a well-informed, inclusive public dialogue rather than through a less time consuming process involving only elites.

Property Rights & the Demands of Transformation

Bernadette Atuahene — Sun, 28 Feb 2010 20:02:10 PST

The conception of property that a transitional state adopts is critically important because it affects the state’s ability to transform society. The classical conception of real property gives property rights a certain sanctity that allows owners to have near absolute control of their property. But, the sanctity given to property rights has made land reform difficult and thus can serve as a sanctuary for enduring inequality. This is particularly true in countries like South Africa and Namibia where—due to pervasive past property theft— land reform is essential because there are competing legitimate claims to land. Oddly, the classical conception is flourishing in these countries. The specific question this Article addresses is: for states where past property dispossession can cause backlash and potentially destabilize the current state, is the classical conception appropriate or do these states require an alternative conception of real property? I develop the transformative conception of real property to explore how the exigent need for societal transformation should inspire us to rethink property rights.

Congress Needs to Help Victims of Foreclosures

Bernadette Atuahene — Fri, 30 Oct 2009 08:52:20 PDT

This is the Least We Can do to Wipe Your Tears: A Qualitative Study of the Financial Compensation (forthcoming)

Bernadette Atuahene — Fri, 30 Oct 2009 08:50:24 PDT

Things Fall Apart: The Illegitimacy of Property Rights in the Context of Past Theft

Bernadette Atuahene — Wed, 13 Aug 2008 14:59:24 PDT

In many states, past property theft is a volatile political issue that threatens to destabilize nascent democracies. How does a state avoid instability when past property theft causes a significant number of people to believe that the property distribution is illegitimate? To explore this question, I first define legitimacy relying on an empirical understanding of the concept. Second, I establish the relationship between inequality, illegitimate property distribution, and instability. Third, I describe the three ways a state can achieve stability when faced with an illegitimate property distribution: by using its coercive powers, by attempting to change people’s beliefs about the legitimacy of the property distribution, or by enacting a Legitimacy Enhancing Compensation Program (LECP), which strengthens the average citizen’s belief that she ought to comply with the law. Fourth, I develop the concept of a legitimacy disequilibrium, which is a decision-making framework that helps states decide if they should provide compensation to avoid instability. The framework requires states to weigh the cost of compensation against the cost of illegitimacy so I give a detailed description of what these costs entail. To best promote long-term stability, I argue that states should enact a LECP when the cost of illegitimacy outweighs the cost of compensation. Lastly, I outline the process a state should use to weigh the costs and decide whether to provide compensation for past theft to prevent things from falling apart.

From Reparation to Restoration: Moving Beyond Restoring Property Rights to Restoring Political and Economic Visibility

Bernadette Atuahene — Mon, 21 May 2007 10:27:05 PDT

Abstract: How does a democratic state legitimize strong property rights when property arrangements are widely perceived to be defined by past theft? The answer, I argue, is through restorative justice measures that redistribute wealth based on past dispossession. This answer, however, leads to two more complex questions: Who gets priority in the restorative process given limited resources and how should the process unfold? The concise answers to these two ancillary questions are: First, instances of what I call property-induced invisibility should be prioritized as a baseline for achieving legitimacy. When property is confiscated in this manner people are removed from the social contract and made invisible. Widespread invisibility is of particular concern because it can lead to chaos and instability and places the legitimacy of existing property arrangements in serious doubt. Consequently, states must, at minimum, rectify property-induced invisibility in the restorative process. Second, societies must change the focus from restoration of the physical property confiscated to the larger project of restoring an individual's relationship to society. This will happen if those subject to property-induced invisibility are included in the social contract through a bottom-up process that provides the dispossessed with asset-based choices. The process of allowing people to choose how they are made whole will do a substantial amount of work towards correcting property-induced invisibility and thereby increasing the legitimacy of existing property arrangements. I use a South African case study to test the practical effect of my theories of invisibility and restoration. Keywords: Reparation, restorative justice, restoration, restitution, invisibility, social contract, property, legitimacy, historical injustice, theft, distributive justice, past theft, apartheid, south africa, land reform, land restitution JEL Classifications: H53, I30, I31, O10 Working Paper Series

Thwart a Tyrant by Resolving Land Crisis

Bernadette Atuahene — Thu, 22 Feb 2007 11:22:30 PST

No Way to Deal with Slums

Bernadette Atuahene — Thu, 22 Feb 2007 11:21:55 PST

The Effectiveness of International Legislative Responses to the Helms-Burton Act

Bernadette Atuahene — Thu, 22 Feb 2007 11:20:43 PST

The Cuban Liberty and Democratic Solidarity (Libertad) Act (Helms-Burton Act) is the latest appendage to the Cuban embargo. Title III has caused an international uproar because it gives U.S. victims of Cuban expropriation a right of action within U.S. courts against third parties who traffic in confiscated property. For example, a U.S. citizen can sue a Canadian Mining company doing business in Cuba if they are operating on or using expropriated property. The Helms-Burton Act (HBA) targets U.S. allies who continue to trade and invest in Cuba regardless of pending U.S. claims of expropriation. In response to the HBA, Cuba, Canada, Mexico, and the European Union (EU) created antidote legislation to protect their domestic interests against the allegedly illegitimate extension of U.S. jurisdiction. This Article investigates the interesting relationship between the economic and political power of a country and its ability to curtail the domestic effects of the HBA. Part II provides a brief background of the HBA and evaluates the virtues and vices of each of its four titles. Part III argues that the United States is using Title III as a bargaining device to force U.S. allies to adjust their policy towards Cuba and to discourage foreign corporations from investing in the island. Given the United State's acutely unequal level of political and economic power in the world, the mere threat to enforce Title III has had severe implications for Cuba and its trading partners. Part IV presents the legislative offensive launched by Cuba, Canada, Mexico, and the EU to protect their domestic interests in the face of this Title III threat. More importantly, this section explores how power asymmetries limit the ability of foreign governments to block the application of U.S. law within its jurisdiction. Part V explores the utility and efficacy of using antidote legislation as a diplomatic tool.

Legal Title to Land as an Intervention Against Urban Poverty in Developing Nations

Bernadette Atuahene — Thu, 22 Feb 2007 11:20:03 PST

One intervention intended to ameliorate poverty and its subsidiary effects is the distribution of legal title to land to poor urban dwellers, otherwise known as land titling. Given the billions of dollars that the World Bank, country-based development agencies, regional development banks, and developing countries themselves have spent on land titling programs, it has become one of the most important property law issues confronting the developing world. Several countries have undertaken comprehensive urban land titling programs to transform the dwellings of those who live in the squalor of squatter settlements into assets recognized by the formal sector. This Article accepts as a given that land titling programs are moving forward and millions of dollars are being spent on them - the purpose of this Article is to take the next step of evaluating how such programs are best designed. The goal of urban titling programs should be to remove structural barriers that contribute to cycles of poverty by limiting indigent populations' access to opportunity and their long-term ability to succeed. First, this Article reviews the literature regarding land titling to give a sense of how my contributions are situated within the larger academic discussion. Second, I develop a theory of how best to achieve titling mobility, which is a goal attained when the state allocates land title in a manner that eliminates structural barriers that impair poor people's social mobility and ability to accumulate wealth in the long-term. I argue that favorable location of titled land, and procedures that ensure equitable distribution of title among women and men, are essential. Third, I use the Peruvian, Philippine, and South African land titling programs as models to test my theory of how best to achieve titling mobility, by investigating how each government's method of allocating land titles affects poor populations. Fourth, I examine the distributional consequences of titling programs by focusing on who benefits from the resources expended and suggest how the Peruvian, Philippine, and South African models should be adjusted to comport with my theory of how best to achieve titling mobility.

Land Titling: A Mode of Privatization with the Potential to Deepen Democracy

Bernadette Atuahene — Thu, 22 Feb 2007 11:19:22 PST

Land titling is a form of privatization in that public assets are transferred to private families and individuals. This is unlike other forms of privatization, however, because there is a systematic diffusion of economic and decision making power down to indigent populations rather than out of the country or up to its local elites. In light of this uniqueness, the question I will grapple with in this Article is, can property ownership, achieved through land titling programs, bolster democracy? First, using Peru as an example, I explain the context that necessitated the creation of land titling and the process by which informal holdings are legally recognized. Second, I argue that there are four primary ways that land titling strengthens democracy. By creating a property owning society, land titling: 1. Gives indigent populations a buffer between themselves and the State, which allows them to make the independent electoral decisions vital to a functioning democracy; 2. Makes poor people stakeholders in democratic institutions; 3. Gives people an incentive to secure greater liberties; and 4. Provides a space where individual autonomy is respected and minority viewpoints, critical to a healthy democracy, can thrive.