Tuesday, August 8, 2006
I've decided to change around the organization of the first part of my first-year Property class. Having taught the course twice now, I don't think that the first possession/secondary possession organization used by D&K and a lot of other books makes much sense. So here's what I'm going to try this year:
Unit 1: Introduction to the Law of Ownership.
Unit 1A: The Law of Personal Property: Capture, Bailments, Finding and Gifts. I like these subjects because they clearly present the issue of possession. They are also a lot of fun -- I start the course with Pierson v. Post and Popov v. Hayashi -- and are great for illustrating the basics of common-law decisionmaking.
Unit 1B: Conflicts Over the Possession and Use of Real Property: Discovery, the Right to Exclude, and Nuisance. I'll start this unit with Johnson v. M'Intosh, which I hope will be easier to teach after the students have been exposed to the malleability of the idea of possession through the personal property material. I'll then do a short unit on the right to exclude, using Jacque v. Steenberg Homes, State v. Shack, and an excerpt from Lior Strahilevitz's “Information Asymmetries and the Right to Exclude.” I'll complete the unit with nuisance. As I've mentioned before, last year I moved the externality/economic analysis of law material from the beginning of the course to the section on nuisance, where it is most relevant. Inspired by some discussion on the property prof's listserv, I've decided to keep this material together and to move it to the beginning of the class. This will get the theory material back to the beginning of the course. I also think that the problem of inconsistent land uses behind the law of nuisance compliments the material on possession in illustrating the problems with absolutist views of property rights.
Unit IC: A Brief Look at IP and Property in the Human Body. For IP, I focus on Kremen v. Cohen and Justice Kozinski's dissent in White v. Samsung, which is a good transition case to Moore v. Regents and property in the body.
I'll then do Landlord/Tenant, which the students find interesting and relatively intuitive, before moving on to estates in land, future interests, the RAP, and concurrent interests.
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