Wednesday, May 10, 2006

Teaching Land Use and Takings In First Year Property

Several times this spring I was struck by the thought that my students would get a lot more out of the land use and takings material that I cover in first year property if they had already taken constitutional law.  I noticed myself spending a lot of time explaining the strict/intermediate/rational basis levels of scrutiny (e.g., in discussing Belle Terre v. Boraas), which would be second nature to anyone who has taken con law.  I don't think that a student can really appreciate Euclid without having a decent grounding in economic substantive due process.  Ladue v. Gilleo is a first amendment case that among other things raises the distinction between commercial and political speech.  Mount Laurel is based on state constitutional law, but discussion of the case would be richer if the students had read the Supreme Court's major equal protection cases.  Indeed, almost every issue in zoning law, from unconstitutional delegation of legislative power in special exception cases to amortization issues presented by pre-existing nonconforming uses, is a con law issue.  Takings, of course, is entirely a con law issue.

This got me to thinking about moving this part of property to an upper-level required course that would be offered after con law.  But then I started wondering why this material should be required at all, rather than be left to an upper-level elective land use class.  Land use and takings issues are incredibly fun to teach, but this in itself doesn't seem like a good reason to include the material in first-year property.  So why should we include land use and takings in the first year property curriculum?

Ben Barros

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Tracked on May 16, 2006 4:10:07 PM


Ben, I agree strongly with your conclusion. I enjoy teaching Land Use, with plenty of time for takings coverage, as an advanced course, but I have never attempted (and never plan) to cover it in first-year Property. That course (which is now typically down to four or five credits) needs to be spent on basic real estate law concepts. It's inefficient to attempt to cover land use issues in first-year Property, and in most cases, teachers give land use only weak coverage in that course anyway. I've sometimes suspected that some (many?) first-year Property teachers like to spend time on land use because it avoids the necessity of dealing with the technicalities of real estate law, which they may not know well and may not want to bother to learn. But perhaps I'm too cynical.

Posted by: Dale Whitman | May 10, 2006 1:46:33 PM

I would distinguish between Takings and Zoning. I spend more time on Takings than our Con Law class, and I thoroughly cover it. With zoning, on the other hand, I barely scratch the surface, and feel the lack of the equal protection/substantive due process framework. Moreover, I tie takings to the concepts developed over the rest of the course, emphasizing the idea of property as a distinct part of the constitutional scheme, the identification of different sticks in the bundle and how that relates to the numerator/denominator issue, and the role of nuisance in Lucas.

Posted by: June Carbone | May 10, 2006 3:40:37 PM

Dale, I don't think you are being too cynical. We're all human, and talking about zoning issues is a lot more fun than talking about real estate transactions. But even on that front, I've found myself not having much fun covering the zoning stuff in a superficial way with students who can't yet really appreciate the issues.

June, that's an important point on takings -- it raises a lot of fundamental property ideas. It can also be done well in a relatively small number of class hours.

Posted by: Ben Barros | May 10, 2006 6:09:45 PM

Ben: I have a different view of all this. At Nebraska Law, Con Law is a second year course. Teaching Takings in the 1L Property course accomplishes a number of ends:

--it gives 1Ls a "public law" component in the first year, an important perspective to get early

--it gives 1Ls an opportunity to think very seriously about property rights and economic liberties as part of the basic Property course

--it provides a nice change-of-pace from the details and rules of estates & future interests, covenants, recording, and landlord/tenant, etc.

I love teaching Takings in Property; it is probably the last part of the course I would jettison.

Cheers, Rick Duncan

Posted by: Rick Duncan | May 11, 2006 10:14:19 AM

I agree with Rick, for a wide variety of reasons.

First, let's ask ourselves, why teach ANYTHING in first year property?

1. Relevance to practice: Zoning is certainly as much of a practice specialty as trusts and estates, transactions, etc. Property is not one unified practice area- no student will be a "property" lawyer. Instead, the first year property course exposes students to several distinct practice areas: trusts and estates, landlord-tenant, real estate transactions, and zoning. If I had to cut something, I would cut the things that don't fit into this framework: personal property, maybe even easements/covenants/equitable servitudes.

2. Relevance to the bar: The Takings Clause is a multistate subject, as is zoning to a slight extent. However, I concede that the multistate doesn't cover zoning as much as I would like.

3. Relevance to good citizenship: I believe that one excellent reason to take a course is to be exposed to major issues of the day (e.g. the exclusionary rule and Miranda in criminal procedure, joint and several liability in torts). Zoning is more relevant to us in our lives as voters than any other part of the first year course. Just look at all the hubbub generated by Kelo and by Measure 37. By contrast, you can be a perfectly well-informed citizen without knowing anything about the Rule Against Perpetuities.

So on criteria 1 and 3, zoning and takings are clearly important parts of property. I concede that criteria 2 favors less emphasis on Takings (though still some).

One counterargument I've read is that students can be exposed to this stuff in Con Law. Given how overcrowded Constitutional Law is, I don't think you can assume that students will be exposed to Takings in Con Law- I don't think I was!

Posted by: Michael Lewyn | May 12, 2006 12:05:30 PM

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