Judicial

“The Most Litigious People in the World”

Lee Sigelman Jun 15 '09

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That’s the title of a piece by Jeffrey Rasley in the Summer 2009 issue of Phi Beta Kappa magazine. Surprisingly, he’s not talking about the United States.

Rasley notes that in the South Pacific island nation of Palau, land ownership is restricted to Palauans, of whom there are some 18,000. Early in the twentieth century, Germans began taking land from Palauans, and after the Japanese succeeded the Germans they followed suit. After World War II, the U.S. launched an effort to return land to Palauans. That’s when things started getting all snarled up:

bq. Anglo-American property law assumes there is a fee title to land, i.e., that property is owned by a specific person(s) set forth in a deed. Palauan clans, however, created no written records of land ownership. Certain areas, like reefs and beaches, were communally controlled by the clan, while residential and cultivated tracts were controlled by individuals and families. Palauan clan customs varied as to who would inherit land rights. The ‘title record’ of property was only known by the oral history of the clan.

Later, the Palauan Congress enacted legislation intended to recognize land ownership on a tract-by-tract basis for the entire country. That was supposed to straighten things out. “Instead,” as Rasley puts it, “the act created the opportunity for Palauans to drink deeply from the well of real estate litigation,” producing a legal “nightmare.”

As things now stand, approximately 10,000 cases have been filed and another 20,000 or so await filing. That’s 30,000 cases for 18,000 Palauans – quite a handsome ratio. And that’s not just because a few Palauans are filing a lot of cases, for one estimate is that 99 percent of Palauans are involved in land claims. “About two cases are resolved each working day. Yet, many cases are decades old, and new cases are filed every day.” In sum, the Land Court is falling further and further behind, with no realistic possibility of catching up.

The next time you hear someone describe the U.S. as a litigious society (which it certainly is), think of lovely Palau and recognize that it’s all relative.