Wednesday, February 7, 2007
I love both the history and theory of property, but struggle with how deeply to cover them in first-year property. I was reminded of this issue when I was looking through an older study guide for property. The guide took what I understand to be a traditional approach to covering estates and future interests, focusing in depth on the historical development of the common law from William the Conqueror to the present. My perception is that few professors still teach the property course in this way; I certainly don't. Some understanding of the feudal evolution is necessary to understand how our property system works, but I wonder how much. For example, does it really add anything to student understanding to know that executory interests were first allowed by the Statute of Uses?
On both history and theory, I tend to think that they should only be included in first-year property to the extent that they help student understanding of the basic legal covered in the property course. I wonder, though, whether there are basic theoretical and historical issues that are important enough to cover for their own sakes, regardless of the degree to which they help student understanding. On the theory side, for example, there is a good case to be made that all students should understand the basics of externalities and the property rule/liability rule distinction, regardless of their exact tie to the subject matter in the property course. I think that both help tremendously in understanding nuisance doctrine, especially nuisance remedies, but I think I could make a case for including them even if I didn't cover nuisance in the course.
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