Friday, October 6, 2006

A Rant on Moore v. Regents

I taught Moore v. Regents on Wednesday.  As always, the fascinating factual scenario presented by the case sparked a great discussion.  Every time I teach the case, though, I'm struck by the very poor reasoning in the majority opinion.  It sucks.  It is really, really bad.  It is so simplistic, mechanical, and wrong that I suspect that it was drafted in crayon.  Most of the points made by the majority are absolutely demolished by Justice Mosk in dissent.  The California Supreme Court knew that this was a tremendously important case, and it is a sad statement about the quality of that court that it couldn't produce an opinion that at least had some intellectual content beyond "we don't want to recognize property in the body, but we don't really know why."  I don't mean to suggest that there aren't good arguments for the result reached by the court -- problems of commodification and economic coercion, among others, are very strong arguments for rejecting a claim of property in the body.  These good arguments, however, are completely absent from the majority opinion.  Therefore, I, D. Benjamin Barros, hereby resolve never to require my property students to again waste their time by reading the majority opinion in Moore, unless, of course, I change my mind.  I'll cover the case and the issues presented therein, but I don't have the time to use the case as an instruction tool about poor legal reasoning.  Life's too short to read bad law.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Property Theory, Teaching | Permalink

TrackBack URL for this entry:

Listed below are links to weblogs that reference A Rant on Moore v. Regents:


Ah, Ben, so this inspires a new question. We should take a poll: what are the worst property opinions?

Posted by: Al Brophy | Oct 6, 2006 9:42:40 AM

Good point. I'll put up a post early next week.

Posted by: Ben Barros | Oct 6, 2006 12:43:39 PM

I find terribly reasoned judicial opinions to be excellent teaching tools.

Posted by: Dan Cole | Oct 9, 2006 5:55:48 AM

I agree that the majority decision is sad. But I think that's what makes it such a good teaching case. It gives the students an early glimpse at realism. The leaky reasoning never goes unnoticed by the students, especially after reading Mosk's dissent.

Posted by: jeremy debeer | Oct 9, 2006 7:50:08 AM

My bad mood last week notwithstanding, I tend to agree with both Dan and Jeremy. The issue is how much time you have to devote to a particular issue. There are lots of bad cases that make good teaching tools. Property in the body raises a lot of great policy and theory issues, and I'd rather spend my time on them rather than the majority's poor legal reasoning. But that is a personal choice on this doctrinal point, and Dan's observation makes my closing observation that life's too short to read bad law clearly incorrect as a matter of substance, rather than rhetoric. Anyway, it is impossible to avoid bad law, short life or no.

Posted by: Ben Barros | Oct 9, 2006 8:39:24 AM

Ben, do you give your students Arabian's concurring reasons also? I've struggled with this. I think one has to discuss Panelli's reasoning, which carried the day despite its weaknesses. It is tempting (or necessary) to add Mosk's dissent, because of the dialogue. Arabian's concurrence is also highly valuable. But there's hardly time for deep discussion of all three, I find. Do you choose?

Posted by: jeremy debeer | Oct 9, 2006 5:56:10 PM

Jeremy, in first-year property I do discuss Arabian's concurrence because it injects the moral element into the discussion, but I don't go very deeply into any of the opinions because of time constraints. In my property theory seminar, where I spend eight class hours on property in the body, I've in the past had the students read all of the opinions, and we've discussed them all.

Posted by: Ben Barros | Oct 10, 2006 5:20:14 AM

Post a comment