Wednesday, February 7, 2007

Teaching History and Theory in First Year Property

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.

Thoughts?  Opinions?

Ben Barros

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I agree with you that utility is an important - perhaps the most important - criterion. But I conceive of utility rather broadly. When teaching estates, I like covering the historical materials, because they help the students understand the murkiness and historical contingency of words like "ownership." I'm not sure how useful such information is for lawyers in day-to-day practice, but I think there's an important liberal-arts component of law teaching. Law schools aren't, or at least shouldn't just be, white-collar vocational training schools, turning out lawyers who are adept at writing trusts, but have no understanding of the historical evolution of the concept of trusts. Lawyers are elite professionals, who should have a broad understanding and purview of the history and theories of their profession. Partly for this reason, I become upset when the appellation "perspectives course" is applied to what I consider fundamental subjects such as Legal History and Jurisprudence.

Perhaps that simply shows how much of an academic I am, divorced from what's really important in the lives of practicing lawyers and judges.



Posted by: Dan Cole | Feb 7, 2007 11:30:00 AM

Dan, that's a good way of putting it. The question of whether a particular theoretical or historical issue is worth class time to cover it remains, but I agree that our job is to teach more than doctrine. I also think that your approach is consistent with a view that it is good for professors to teach their favorite theoretical and historical issues -- students gain by being exposed to new ways of thinking, and benefit from the professor's passion for the subject.

Posted by: Ben Barros | Feb 7, 2007 1:05:38 PM

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