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Univ. of Arkansas, Fayetteville

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Sunday, June 20, 2010

Crafting the First-Year Property Course

Newbie property law prof here.  This summer is marked by great transition for me and my family – from practice to the academy and from Indianapolis to Winston-Salem.  There is so much to do and think about that it is sometimes difficult to figure out where to start.  Just when I thought I had a handle on things, I had the opportunity to attend two AALS conferences back-to-back.  I just got back from the New Law Teachers Conference, which I will blog about later.  The previous weekend was spent in New York City, at the AALS Mid-Year Workshop on Property.

The Mid-Year Meeting was a really fantastic opportunity to meet (in person) some of the people who so generously helped me in this process.  The weekend was also chock-full of interesting ideas. 

The first plenary session focused on what should be included in the introductory Property course.  The panelists were Professors Al Brophy (UNC), Henry Smith (HLS), Stewart Sterk (Cardozo), and Molly Van Houweling (Berkeley).  They each offered a different and interesting perspective.  Professor Brophy discussed incorporating some non-traditional cases to highlight ethnic and racial tensions in the history and development of American property law.  Professors Smith and Van Houweling each presented their thoughts on the inclusion and exclusion of certain topics in the first year course, particularly how to handle intellectual property.  Finally, Professor Sterk shared his approach, which emphasizes asking students to role-play as lawyers and apply doctrine to client counseling problems.

More after the jump.

It has been noted many times that Property is a bit of a hodge-podge – traditional doctrinal topics (servitudes, estates in land) share time with disparate topics like intellectual property and land use.  No two professors solve this challenge in the same way (unless they are sharing syllabi).

During the Q&A portion of the session, Professor Roger Bernhardt (Golden Gate) came to the microphone to share the recommendations of the ABA Task Force on Real Property Law School Curriculum.  (Full disclosure, I am also a member of the ABA Task Force.)  Joanne Martin of the American Bar Foundation, in collaboration with the Task Force, conducted a survey both of property professors, to assess what is included in their courses, and new lawyers practicing real estate law to determine how they valued that content.  Ms. Martin’s full report can be downloaded here

The report found that nearly 52% of first year property courses are 4 credit hours, while 19% are 5 hours and 26% are 6 credit hours.  Ms. Martin found a strong correlation between the ranking of the law school according to U.S. News and World Report and the number of credits offered for property.  The Top 20 schools overwhelming offer 4 credits (81.4%) while the majority of 4th Tier schools offer 6 credit hours (57.3%).

The report also measured the frequency of coverage of thirteen topics in the course:  adverse possession, concurrent ownership, easements and servitudes, estates and future interests, intellectual property, landlord-tenant, land use regulation, natural resources, nuisance, personal property, real estate conveyancing, real estate financing, real estate recording, and other.  Ms. Martin has a number of tables which track the frequency of coverage based on the ranking of the school and the number of credit hours offered.

One clear trend that she found is that professors at the Top 50 schools are more likely to cover intellectual property and less likely to cover real estate transactions.  The professors in the Top 100 schools are less likely to cover real estate financing or recording than professors in Tier 3 and 4 schools.  This is perhaps not surprising because the schools in Tiers 3 and 4 are more likely to have 6 hour courses, where more topics may be thoroughly covered.

The paper concludes with the recommendations of the ABA Task Force:

1.    That Property coverage not be reduced below its traditional six units.
2.    That coverage of the rules of estates and future interests not be overemphasized.
3.    That real estate transactions and real estate finance not be completely eliminated from first-year Property courses, even where the credit value of that course has been reduced.
4.    That credit-reduction for Property courses not lead to a de-emphasis of scholarship in the field.
5.    That the bar examiners discontinue their current omission of real estate development (including land use) and other contemporary issues from the scope of their exams.

I think it is a fascinating report and one that is worthwhile reading as we all plan our first year Property courses for next year.  Again, you can download the full report here.

Tanya Marsh

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