PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Monday, February 14, 2011

Property, Student Notes, and Elite Law Schools

EllicksonAndrew Yaphe (Stanford Law School) has posted Taking Note of Notes: Student Legal Scholarship in Theory and Practice.  At its core, the piece provides "an empirical analysis of recent student notes, enabling the reader to get an overview of the forms that student scholarship has actually taken over the past few years."  The whole thing is worth reading, but there are some bits of information that will be of special interest to Property Profs. 

Yaphe found that at "non-elite" schools, property was the fourth most popular subject for student notes, accounting for 7% of the total. In contrast, the sample of student notes from elite institutions (three years worth of pieces from Yale, Virginia, Stanford, Northwestern, Michigan and Columbia), contained only 4 articles (2%) about property issues.  Yaphe goes on:

This disparity becomes more significant when one examines the elite notes on property law more closely.  Three of those elite notes were empirical analyses of aspects of property law in local communities; these notes, in their methodological approach and conceptual stance, were all strongly influences by the work of Robert Ellickson.  In other words: If it weren't for property law notes written under the aegis of Ellickson, there would hardly be any elite property law notes at all. (emphasis added)

That's a stunning finding.  Yaphe hypothesizes that the "disparity of notes on property law may reflect the status of the course in American law schools.  The course tends to be underempahsized at elite law schools . . . while getting more attention at non-elite law schools . . . ."  There's probably something to that explanation, but I'm not sure it fully explains the difference.  My bet is that the local nature of property law (and family law - another subject ignored by elite schools) doesn't lend itself to the kind of sweeping national-level reforms that folks at elite law schools tend to make.  I also wonder if the number of "not-property" people teaching property courses leads to a lack of property mentors.  

Steve Clowney

Hat tip to Joseph Blocher for passing this article along.

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Comments

I can't tell from the description whether Yaphe surveyed the full range of journals that a school offers. If not, it may also be that at the "elite" law schools, there are specialized journals, in which many of the property related pieces appear. At NYU, for example, I think you'd find more property pieces in the NYU Law Review than Yaphe reports in his sample, but if you added in our Environmental Law Journal (which also covers land use), you'd see many more, and others often appear in our international law journal.

Vicki

Posted by: Vicki Been | Feb 15, 2011 5:32:06 AM

The sample size is so small -- 6 elite law reviews over a 3 year period - that I don't think it's possible to draw much of a conclusion. I wonder what the effect would have been of simply randomly choosing an elite school like Cornell, with its outstanding property prof group of potential advisors, since an additional one or two articles would have significantly changed the results. Also, I wouldn't be surprised if the results over the next three years are very different, as students get a grip on the foreclosure crisis.

However, to the extent the results are telling, my immediate bias is to think we really are underselling property, focusing on brooches found during wars rather than on ideas of property as the causus belli. If we lose the political-economic forest for the doctrinal trees, property is much less compelling for students (and for profs).

Posted by: Mark A. Edwards | Feb 15, 2011 6:35:55 AM

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