This Essay answers a single question: What led Frederick
Douglass to accept an appointment as the D.C. Recorder of Deeds, especially at
the height of his public service career? A possible answer, which is informed
by the historical record and more contemporary accounts, is that Douglass
accepted such an appointment for three reasons. The first reason is that the
D.C. Recorder has been long recognized as an exemplar of fairness, perhaps due
to its ministerial obligations, even when there could be no such expectation
with respect to how Black folks are treated. The second reason is this office
provided Douglass with a relatively safe position, in economic and political
terms, that he used to call for more standard treatment of Black people by
various governmental units such as the U.S. Supreme Court. The final reason is
the D.C. Recorder collects public information, in the normal course of its
business, which validates Douglass’s call for more standard treatment.
These three reasons, if they are read as a whole, refer to
what the Essay is the first to call the hidden power of recording deeds. This
power is made up of unnoticed benefits, largely arising from governmental
policies informed by procedural fairness, which help to limit racial
discrimination. Procedural fairness, by definition, is when U.S. governments
refuse to treat similarly situated people in nonstandard ways without adequate
justification. One reason for such a refusal to do so is that governments may
have ministerial obligations, which limit their ability to exercise any discretion.
The D.C. Recorder has ministerial obligations which were
intended to increase economic efficiency rather than to advance racial
equality, such as the duty to register property interests upon the satisfaction
of certain conditions precedent, but nonetheless ensure that Black people are
treated just like everybody else. This office also does work that highlights the
implications of failing to ensure standardization, which include unjustified
economic losses that stem from adverse selection and other asymmetric
information issues. Lastly, the D.C. Recorder shows that any such losses are
not solely imposed upon Black folks, especially as many neighborhoods have
become increasingly integrated, so harms are not limited to property owners in
majority-Black areas. Stated simply, this hidden power is a less-than-salient
way to remove “unfreedoms that leave [Black] people with . . . little
opportunity of exercising their reasoned agency” even when they suffer from
chronic property right violations such as trespasses to land or nuisances.
Part I provides additional information about Frederick
Douglass and how he may have understood the various powers that are exercised
by the D.C. Recorder of Deeds. Part II explains how to build upon Douglass’s
legacy as the first Black D.C. Recorder, especially his call for more
standardized treatment, mostly by explaining how this office could make better
use of public information that it has in its possession. The Conclusion offers
specific suggestions for how to achieve this goal, so as to prevent purchase
price discrimination, lien fraud, and deed fraud.