Thursday, March 26, 2009

A Year in the Life

Thinking more about the entry-level hires today raised one question: Is there anything property-specific that isn’t covered in the literature on getting started in legal academia?  With only one year under my belt, I don't think I have a lot of insight on this topic, but there is one thing I wish I'd put more thought into; choosing a property casebook. 

Like most new property people, I adopted the Dukeminier, Krier, Alexander, & Schill textbook.  This decision turned out just peachy, but it wasn’t terribly well reasoned; I used the Dukeminier as a student, it's got some neat cases, and--as everybody told me at the AALS New Teachers’ Workshop--it has "an amazing teacher's manual." 
Wrapping up a year with the Dukeminier (who taught at Kentucky) here are some thoughts (from least to most serious):

(1) First, I really miss the look and feel of the Fifth Edition.  The Fifth Edition, short and squat, had personality.  It was a textbook (with a potbelly!).  A textbook that could beat up other textbooks and eat a bratwurst at the same time.   

(2) Second, the teacher’s manual is actually pretty “meh.”  It provides nice summaries of the cases, but it’s no more comprehensive than the supplemental material that comes with the Merrill & Smith or the Freyermuth, Organ, Noble-Allgire and Winokur.  Why don’t the other (really good) teacher’s manuals get more airtime?

(3) Third, is it good for property scholarship that so many young scholars are introduced to the basic concepts through the same set of materials?  If everyone’s first thoughts about adverse possession are filtered through the lens of Van Valkenburg v. Lutz does that have long-term effects for the profession?  I've suggested elsewhere that the portrayal of holographic wills in Dukeminier's Trusts & Estates textbook has negatively impacted the academy’s perception of homemade testaments.  Are the biases of the Dukeminier property book having a similar effect?

Steve Clowney

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These are great thoughts. I also teach with D&K, for a lot of the same reasons. I completely agree about the teacher's manual -- it is good, but not as good as everyone makes it out to be, and probably not much better than many of the others out there. And the book has some real deficiencies, some of which I've blogged here before. I just taught covenants that run with the land, and D&K's coverage of these issues is very confusing. This is a bit surprising in light of the excellent coverage of easements. I think that most people who use D&K for more than a few years end up customizing it pretty heavily.

Your third question is really interesting. D&K has such a dominant position in the marketplace that I'm sure that it shapes the academy in some ways. I wonder whether an expert would see some slant in any casebook's coverage. I don't like the book's coverage of regulatory takings, which is the subject I know most about. Among other things, Hadacheck is a lousy case for the nuisance exception - Mugler or Commonwealth v. Alger are much better, and more historically important. I'm sure that Hadacheck's inclusion in D&K contributes to its misplaced prominence in academic discussion of regulatory takings.


Posted by: Ben Barros | Mar 26, 2009 6:29:39 AM

I despised Dukeminier's 6th Edition as a student last year. The book is really rather atrociously edited---its various chapters have (apparently) been rewritten on different schedules, such that, for instance, the vocabulary shifts from section to section. Some chapters reference "previous" discussions, or assume knowledge of concepts that no longer appear in the work's earlier sections! I agree with Ben's assessment of its treatment of covenants---I must have pulled half a dozen supplements trying to figure out that part.

And while I know leases and economics and policy questions are very much in the forefront of property law thinking these days, Dukeminier's treatment of the "meat and potatoes" of estates in land and the basics of personalty were a bit skimpy.

The text has some fascinating cases and good notes, but it was a lot more confusing for a first-semester 1L than it needed to be.

Posted by: Paul | Mar 29, 2009 4:13:55 PM

Thanks Steve. I was leaning towards using Dukeminier to teach Property for the first time in the fall, so I greatly appreciate your comments. Have you heard anything about Property: A Contemporary Approach? It is new, interactive text, and the online version has links to cases, articles, and other materials. Online resources also include photos, maps, diagrams, audio clips, etc. You can review a sample chapter at


Posted by: Tim Mulvaney | Mar 30, 2009 6:10:48 PM


I'm thinking about using the Sprankling and Coletta book, though probably not for another year. I'm looking forward to getting a copy of the whole thing. When it comes out, I'll start a blog conversation about it.


Posted by: Ben Barros | Mar 31, 2009 7:02:12 AM

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