Wednesday, August 23, 2006
Last fall, Michael Dorf of Columbia Law School wrote an article on FindLaw, aimed at incoming students, entitled “The Five Minute Law School.” In it he attempted to summarize in a very brief compass what students would study in the first year. Dorf took his inspiration for the article from two rather divergent sources: the pre-law school summer courses that I guess are being sold to lots of students these days and Father Guido Sarducci’s Five Minute University. The former I know less about than I ought to; the latter I was completely ignorant of. But now I see that it (like virtually everything else) is available on the web. Here are some great excerpts:
I find that education, it don't matter where you go to school, Italy, America, Brazil, all are the same -- it's all this memorization and it don't matter how long you can remember anything just so you can parrot it back for the tests.
I got this idea for a school I would like to start, something called the Five Minute University. The idea is that in five minutes you learn what the average college graduate remembers five years after he or she is out of school. . . .
You know, like in college you have to take a foreign language. Well, at the Five Minute University you can have your choice, any language you want you can take it. Say if you want to take Spanish, what I teach you is "¿Como está usted?" that means, "how are you", and the answer is "muy bien," means "very well." And believe me, if you took two years of college Spanish, five years after you are out of school "¿Como está usted?" and "muy bien" about all you're gonna remember. . . .
Theology, I'm gonna have a theology department, you know, since I'm a priest, and what you have to learn in theology is the answer to the question, "Where is God?", and the answer is, "God is everywhere." Why? "Because he likes you." That's kind of a combination of the Disney and Roman Catholic philosophy. It's just perfect for the late 70s or early 80s you know, just perfect.. . .
Great skit. I love it--it's worth reading in its (blessedly short) entirety. And you know what, it’s from the days when Saturday Night Live skits were the right length. Now that was entertainment.
(Much like SNL, I think my teaching’s gone downhill in recent years).
Professor Dorf did a very nice job for a couple of subjects, like torts and contracts. Of torts he had this to say:
The law of torts can be reduced to three principles. First, as used in the first-year law-school curriculum, a "tort" is not a pastry. If someone had pointed this important principle out to me before I started law school, I might not have gained those ten pounds in the first couple of weeks. "Tort" literally means "injury" or "wrong," and, as a technical matter, means the breach of a legal duty imposed by law (rather than voluntarily undertaken by contract). That's about a third of the course.
Second, in order for a plaintiff to win her torts case, she must prove not only that the defendant committed a legal wrong against her, but also that the wrong caused an injury to the plaintiff. As anybody who has ever read any science fiction knows, in some sense, almost every past event caused every subsequent event. If you go back in time millions of years and kill a butterfly, you unleash a chain of events culminating in your own disappearance in a puff of logic.
But the law does not traffic in such absurdities, so you can't sue for every past legal wrong that anybody committed. For example, suppose Joe is driving down a divided highway when his attention is drawn to the wreckage of an accident that occurred when Dave, who was driving drunk in the other direction, plowed his car into the guard rail. As a result, Joe takes his eyes off the road for a second, and when he looks back, it is too late for him to avoid rear-ending a car driven by Paul, who has also slowed his car to rubber-neck. Can Paul successfully sue Dave? (Most characters in law school examples have names beginning with the same letter as the name of the parties they become. Thus, "P" is for Paul and plaintiff, while "D" is for Dave and defendant. Amazingly, this phenomenon holds true in real life as well. Con!)
No, Paul cannot bring a successful claim against Dave. To be sure, absent Dave's wrongful drunk driving, Paul would have escaped injury, but the courts will say that the causal chain was too attenuated to hold Dave responsible. In torts jargon, we say that Dave's drunk driving was not the "proximate cause" of Paul's injury.
How close a relationship must there be between cause and effect for the former to count as the proximate cause of the latter? The law does not attempt to quantify the answer; it's a matter of judgment and common sense. That drives law students nuts. But if you remember that "proximate cause" is simply a fancy way of saying "use your common sense," you'll spend less time trying to reconcile all the nonsense written about proximate cause, which will leave you more time to sing the praises of your professors on your blog.
Speaking of time, the essentials of torts don't take much time to teach or learn. Accordingly, many torts professor fill most of their class time teaching something called "law and economics." As you would expect from the term, the discipline applies economic analysis to law. In practice, law and economics can yield some pretty odd conclusions. For example, if it would be cheaper for people who live downwind from a pig farm to purchase and wear gas masks, than for the pig farmer to prevent noxious fumes from escaping his farm, then, some law and economics scholars would say, the farmer should not be held liable for the tort of nuisance.
But when it comes to property law, Professor Dorf trails off into a short (and to us property profs, a not very funny) joke:
Property law is more of a hazing ritual than an actual subject. Typical property classes teach students the fine distinctions among different forms of ownership of land in medieval England, such as the "fee tail" and the "fee simple determinable," neither of which, alas, has anything to do with collecting a legal fee. Students forget these distinctions within a few seconds of completing their property law final exams, which is unfortunate, because then they have to learn them all over again for the bar exam. Only after successfully completing the bar exam, is it safe to forget the distinctions permanently.
So I set about wondering what would a more serious yet short summary of the class be? What are the key elements of property? Well, some key themes (for the property rights side) include the rights to exclusion of others, of use, and of alienation. However, in a lot of casses, there are the overlapping interests that non-owners have in other people’s property–easements for access and servitudes to restrict neighbors’ use of their property, for instance. Often conflicts arise between rights of exclusion (and the injunctions that protect those rights) and considerations of reasonableness, such as when one neighbor infringes on another’s property. Some of property is about reaching a reasonable accommodation between competing interests--between owners to use their land (for instance, for a cement plant) and neighbors. As courts try to balance those rights, they take the utility of each competing use into consideration.
Some themes can be captured (ha, ha) well by talking about Johnson v. McIntosh, a case where Chief Justice Marshall validated the federal and state government's right to grant land titles over the titles given by Native Americans: we acquire property rights by long-term use and by getting others to respect those customs. And our customs are that we respect those long-term uses and allow those long-term users to have what we call a “property right.” Those users can then sell or give away their interests and we will not go back and try to redistribute property. Whatever distribution of property existed at the beginning of time continues, unless the property is sold or given away. Or you could make the same point by talking about The Antelope.
This explains why you can acquire property by adverse possession, which requires that you occupy someone else's property and treating it like your own for a lengthy period. It also helps to explain servitudes, which give neighbors a right to restrict onwers' use of land and easements, which give neighbors a right to use owners' land. And then there's the takings muddle. We need a five minute class just on that topic--but again, there are some guide posts to when a government regulation "goes too far"--when it interferes with the expectations that owners have of what they can do with their property. Some of those involve questions of whether all economically viable use of the property is being taken away or with whether the government is imposing physically on the property. But we're also interested in what is termed "investment backed interests" in property. As with nuisance, we think that the money you paid for a property has some bearing on how much the property may be regulated.
Reasonableness in use of property is one key theme running
the course; limitations on what owners can do with their property is
another. And we probably ought to say something about property rules
(which allow you to get an injunction to prohibit others from
interferring with your property) and liability rules (which allows
someone who's interferring with your property to just pay money and keep
infringing). Check out Larry Solum's excellent summary here.
Anyway, this becomes rather complex rather quickly–but I’m interested in ways we can convey key themes in a small compass. I think that can help students immensely in learning and categorizing the material. This five minute class--well, ok, is should run to more time than that--needs a lot of refinement. I'm going to work on this a little. And believe me, we need to make this stuff accessible--because a few weeks after the course is over, they won't remember much about the intricacies of apportioning rights and liabilities among cotenants.
Endnote: The photograph of a class is courtesy of my friends at Indiana University--Indianapolis School of Law.
Alfred L. Brophy
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