Tuesday, March 31, 2009

The Ancient Mariner Was Right

With fewer and fewer classes left in the semester, I'm starting to think about how I can make adjustments to my syllabus for next year.  Most of my internal debate is fairly predictable: is the time spent on rule against perpetuities really worth the payoff?  How much of the conveyancing material is necessary in a 4 credit class?  Do the students get anything out the measly few hours we spend on IP? 

Although most of this is well-trodden ground, one new idea keeps resurfacing -- should I be teaching more water law?  Disputes over water keep popping up in the news (see here, here, and here), and it's likely that water shortages will only get worse as the population continues to boom. 

Although we certainly don't have any water law on the Kentucky bar, the subjects of water, water pricing, and inter-generational equity seem like they might be a rich source of discussion in class.

Any thoughts on whether this might be worthwhile? 

Picture:  French Victorian engraver Gustave DorĂ©'s take
on the Rime of the Ancient Mariner (Note the Flight of the Conchord ill-fated albatross)

Steve Clowney


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Great question. I added a very short unit on natural resources to my Property class this year. It doesn't take much time to cover basics of the Eastern and Western approaches to water rights and highlight a few of the policy issues. I think of first-year property as a survey course, and I think it is more important to get broad coverage of as many issues as possible. A lot of people disagree with this approach, for good reasons. Looking at it as a survey course, I think some quick coverage of water and mineral ownership makes sense. Of course, I had the time in part because PA abolished the rule against perpetuities, so I don't teach it any more.

Posted by: Ben Barros | Apr 1, 2009 6:24:57 AM

I agree. I hope to cover water rights this fall, as major water conflicts continue to present themselves nationwide (e.g., Mississippi/Memphis - http://memphis.bizjournals.com/memphis/stories/2008/12/01/daily23.html, North Carolina/South Carolina (http://www.heraldonline.com/109/story/1175787.html), etc.). Even in law schools in states that continue to follow the Rule Against Perpetuities, I am not certain it should be taught at the expense of surveying the basics of water law.

Ben, are you using supplementary materials to teach a natural resources segment in Property?

Posted by: Tim Mulvaney | Apr 1, 2009 5:08:07 PM

Tim, I did use some supplemental materials. I basically went through some Natural Resources Law casebooks to see what they covered for mineral rights and water law. I then threw together some supplemental material. The unit went pretty well, so next year I might put together something more polished.

Posted by: Ben Barros | Apr 2, 2009 12:24:26 PM

Joe Singer's casebook includes materials on water rights after Elliff v. Texxon (on oil and gas), which follows Pierson v. Post, showing both applications of and alternatives to the rule of capture for natural resources. It doens't get into the richness of water disputes (which I don't understand all that well anyway) but does work well for the broad survey approach to the property class, which I agree with. BB.

Posted by: Bethany Berger | Apr 5, 2009 12:01:48 PM

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