PropertyProf Blog

Property Prof as Graduate Student

I'm guesting this month over at PrawfsBlawg.  As some readers know, for the past two years I've been doing graduate work in philosophy at the University of Maryland.  I just put up a post at Prawfs that talks about doing graduate work while being a law professor.

Ben Barros

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Hamilton from Chicago-Kent to Illinois

According to Brian Leiter, property prof Dan Hamilton is moving from Chicago Kent to the University of Illinois.

Ben Barros

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Property in Space

The Boston Globe has a great article on property in space.  It raises a number of interesting theoretical issues about property, and might make a great teaching tool.

Hat tip:  Ilya at the VC.

Ben Barros

Asteroid Photo From NASA via Wikicommons

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Brick by Brick

Thanks to Florence Roisman for pointing me to Brick by Brick: A Civil Rights Story, a film about housing and education discrimination in Yonkers.  According to Florence, the housing issues predominate, and it might make an interesting addition to property courses.

Ben Barros

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Teaching Order -- Reprise of Where Should Servitudes Go?

Back in January, I noted that I was going to change my coverage order this Spring.  Rather than doing Real Estate Transactions - Recording - Nuisance - Sevitudes - Zoning, I put servitudes first.  Doing servitudes did have some advantages -- students, for example, were familiar with servitudes of various sorts when they came up in transactional or recording cases.  The downside was that students didn't have as solid a grasp of recording and notice when we covered servitudes.  There is a bit of a chicken and egg issue here, but I think that having the recording material before servitudes is more helpful than having servitudes before recording.  So next year, I'm going back to the traditional order.

Ben Barros

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Bonfield, Chused, and Tracht to New York Law School

Brian Leiter is reporting that:

In addition to Gerald Korngold from Case Western, New York Law School has also made (or recently made) tenured hires of Lloyd Bonfield (property, EU law, legal history) from Tulae University, Richard Chused (property, copyright, Cyberlaw) from Georgetown University, and Marshall Tracht (real estate transactions, bankruptcy) from Hofstra University.  All are affiliated with NYLS's Center on Real Estate Studies.  A pretty dramatic set of hires in a short period of time for New York Law School!

I agree.  Very impressive!

Ben Barros

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Korngold from Case Western to New York Law School

Gerald Korngold, the McCurdy Professor of Law at Case Western, will join the faculty of New York Law School in the fall.

Ben Barros

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Rock Star Brophy From Alabama to UNC!!!

This has been a poorly kept secret for a while now, but since Brian Leiter is reporting it, we can now announce that our own certified rock star Al Brophy will join the faculty at UNC Chapel Hill next year.  Apparently, he will have some fancy title.

Congrats Al!

Ben Barros

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Property in the Lord of the Rings

Ilya Somin, the libertarian counterpart to GMU's natural law duo of Mossoff and Claeys, has a post at the VC on Property in the Lord of the Rings.

Ben Barros

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Mossoff to George Mason

According to David Bernstein at the VC, Adam Mossoff is moving from Michigan State to George Mason.  Will the natural law duo of Mossoff and Claeys eventually challenge Yale's Smith and Merrill for property theory supremacy?  Stay tuned to find out.

Ben Barros

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Merrill to Yale

Brian Leiter is reporting that Tom Merrill is moving from Columbia to Yale, joining his frequent collaborator Henry Smith.

Ben Barros

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Ball from Penn State to Rutgers-Newark

Brian Leiter is reporting that property prof Carlos Ball is moving from Penn State to Rutgers-Newark.

Ben Barros

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Breaking Up a Long Class

A new property prof writes:

My class is an hour and forty minutes twice a week.  While this is good for me (only two times rather than three per week), I know that I need some good ideas for keeping students engaged for that length of time.  I know I can break them into small groups, hand out problems, etc., but I was also thinking about film clips or other sorts of media to break up the standard class.  Do you or any of your colleagues do this?  Any other advice for keeping a long class lively?

I sometimes use small group discussions to break up a long class, but not as much as I could.  Any thoughts?  I'd imagine that Brophy, being a rock star and all, is the master of this kind of thing.

Ben Barros

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Underkuffler to Cornell

This is somewhat old news that I missed when it first came out, but Laura Underkuffler is moving from Duke to Cornell.  With Greg Alexander, Eduardo Penalver, and Emily Sherwin already there, Cornell will now have one of the strongest property faculties in the nation.

Ben Barros

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Teaching Order - Where Should Sevitudes Go?

It's been a crazy first week of the semester, but I'm finally starting to feel like things are under control.  Earlier in the week, I put together my syllabi for my property classes for this semester.  I'm teaching the second half of property to an evening section, and teaching the whole course to a day section.  This gives me a chance to test something I've been thinking about for a while.

Like most property profs, I have been teaching servitudes late in the course, as part of a larger unit on land use controls.  It has occurred to me, though, that it might make sense to teach servitudes earlier.  Servitudes are non-possessory interests in land, and can logically be placed after a unit on co-ownership of property.  This placement in the course would have the advantage of exposing students to servitudes before the unit on land transactions and title insurance, where many of the issues involve easements and covenants (e.g. marketable title, the warranty against encumbrances, and many recording cases).

So this semester, I'm going to teach servitudes in the traditional way in my evening section, and move it forward in my day section.  I'll let you know how it goes.

Ben Barros

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First few days of property: roundup of some of our favorite posts

So the new semester's about to start and that means first year students everywhere (or at least at a lot of schools) will be reading cases like Pierson v. Post and Johnson v. M'Intosh.  So I thought I'd round up a couple of propertyprof classic posts on the 1L chestnuts.

Here's some great talk about Pierson (from Rachel Godsil).
Go to school where Heppingstone v. Mammen is taught instead of Pierson?  Check out Carl Christensen's post on "the whale case."
Don't like how your property course is beginning, here are some other ways it might have begun.
Want to get a sense of what's coming?  Check out the five minute property class.
And want to see some faculty discuss their favorite cases?  Check out Ben Barros' post on favorite cases. That discussion is always sure to stir debate over Stambosky.

And for faculty, Rose has some advice here (and me here).

Other classic posts we should be linking to here?

Al Brophy
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It Gets Worse Every Year

Every time I teach property, the subject of self-help repossession comes up at some point, usually in the context of a landlord's attempt to lock-out a defaulting tenant.  I inevitably want to reference the film Repo Man.  Two years ago, I got a lot of blank looks when I mentioned the '80s classic, so I now know to ask in advance how many people have seen the movie.  Last year, it was about ten out of sixty people.  This year, it was two -- count 'em, two, out of sixty.  Arrrrgh.

Ben Barros

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Anderson on Teaching the Right to Exclude

Jerry L. Anderson (Drake University Law School) has posted Comparative Perspectives on Property Rights: The Right to Exclude on SSRN.  Here's the abstract:

A comparative perspective can help students understand that the bundle of rights we call property can be allocated in a variety of ways, in order to serve societal interests. This article examines two variations on the right to exclude, which the American Supreme Court has declared to be essential to property ownership. Laotian hunting rights allow public access to private lands, clearly violating the right to exclude but providing important public benefits. Likewise, the right to roam in Britain qualifies the right to exclude to allow public hiking on private land. These examples help students realize that property rights represent a balance between private and societal interests.

Ben Barros

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Teaching the Law of Personal Property

For quite some time now, I've been meaning to blog about Peter Wendel and Robert Popovich's article The State of the Property Course:  A Statistical Analysis, which appeared last year in the J. Legal Ed. (anyone know of a link to an electronic version - I couldn't find one).  There are a lot of interesting things to talk about from the article, but one thing that jumps out is the degree to which traditional personal property subjects like the law of finders and intervivos gifts are neglected, especially in four credit courses.  There is nothing inherently surprising about this -- my understanding is that personal property coverage has been declining for some time now, and something needs to give in a four credit class.  I have a hard time, though, imagining teaching property without a reasonable amount of personal property coverage because personal property presents possession issues incredibly well.  I've restructured the first part of my course to be all personal property -- capture, finding, bailments, and gifts.  I do them quickly, and since I'm teaching a four credit property course this year, not in great depth.  The cases are relatively easy and accessible for first-year students.  By the end, the students have a good sense of the malleability of the idea of possession, which makes teaching related real property subjects easier.  Indeed, the classic finding case Hannah v. Peel presents the odd idea of possessing real property very well.  Time is scarce, but keeping at least some personal property coverage seems to me to be a good idea.

Ben Barros

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Introducing Property

Today, I began my second year of law teaching and it was also the first day of my year-long Property class. It's amazing what just one year of teaching the course taught me about what I would do differently the next time around.

The first change I made focused on the particular substantive area of property law with which I wanted to begin the course. Last year, following Joe Singer's suggestion in his article, "Starting Property," 46 St. Louis U. L.J. 565 (2002) and Steve Friedland's comments at last year's AALS New Law Teacher's Workshop, I decided to start the course by teaching the right to exclude first before teaching the origins or acquisition of property.  The first case I assigned was Jacque v. Steenberg, followed by State v. Shack.  By the end of the first semester, I thought that beginning the course on the right to exclude definitely helped to hone in the principle that property rights are not absolute and the students understood that the rights of ownership and possession also come with certain obligations.

There were times in the middle of the fall semester last year, however, when I thought that it would have been helpful for the students to have learned first the difficulties of acquiring or establishing the right to possess property. So this year, I decided to begin the course with acquisition of property.  There are of course different cases one could use to start off this topic as discussed here and here.  I chose to assign the first case on Singer's casebook, which like D&K's, is Johnson v. M'Intosh.   

The second thing I changed is that I opted not to assign a case for the first day of class. Although I assigned Johnson v. M'Intosh as the first case, we will not discuss it until the second day of the course. For today's class, I assigned the excerpt of Erving Goffman's Asylums: Essays on the Social Situation of Mental Patients and Other Inmates in Perspectives on Property Law (Robert Ellickson, Carol Rose and Bruce Ackerman, 3rd Edition). I thought the essay was a great way to introduce basic property concepts of ownership rights (rather, lack of ownership and why one might want to have ownership over a thing) but also property theories (personhood, labor, first-in-time, distributive justice).

Thanks to Bethany Berger for giving me the idea!

The third thing I changed (and this one is not substantive at all) was that unlike last year, I did not bring a bunch of sticks to class.  To highlight that property constitutes a "bundle of rights," I handed out a stick to different students with various labels attached to the sticks (leasehold, easement, future interest, etc.). Although I got great feedback on my evaluations for doing this last fall, I thought that I'll experiment with doing different things on the first day.

What do you do on your first day of teaching property?

Rose Cuison Villazor [Comments are held for approval, so there will be some delay in posting.]

YIMBY – Yes in Mickey’s Backyard?

For those of you getting ready for your property classes this semester, here’s an interesting story to bring up when you cover zoning law.

The city of Anaheim (CA), home to Disneyland, is embroiled in legal issues over the use of a 26-acre property located near property owned by Disney.  As reported by the Washington Post last week (here), the 26-acres area, similar to Disney's property, has been zoned for tourist development since 1994.  The Anaheim City Council, however, voted a few months ago to allow a developer to build 1,500 housing units, including 225 subsidized housing, on the property.  According to the NY Times (here), the site is a mile from Magic Kingdom, ½ mile from Disney’s California Adventure, and directly across an 88-acre area that is the potential site of a third Disney theme park.  The LA times article today on this story includes a map of the proposed housing development and possible new theme park.

As in all property cases, the story here involves property disputes among various parties.  Disney filed a lawsuit in February to prevent the project from going through and protect what it views as its property interests in keeping the area “an attractive place for tourists.”  Disney also has the support of a coalition of residents, Save Our Anaheim Resort.  If the initiative is approved by voters, it would give residents the right to vote on any new housing development in the area. 

To counteract this initiative, supporters of the housing development (backed by SunCal, the developer) are trying to get an initiative on the ballot that would give voters control over the establishment of a third theme park.  Then there are advocates for affordable housing – YIMBY (Yes in Mickey’s Backyard) -who argue that the housing development is necessary, particularly affordable housing.  The median home price in the area is $645,000 and rent for a one-bedroom apartment costs $1,400 a month.  Interestingly, if the latter initiative is placed on the ballot, there is the possibility of both initiatives being passed.  Both would give voters the ability to approve the use of the properties owned by Disney and the City (or SunCal if the contract for sale of the 26 acres goes through).

Rose Cuison Villazor

Mary Bilder on Teaching Rule Against Perpetuities

In the spirit of propertyprof's effort to help with the teaching of property, I asked Mary Sarah Bilder (who is a non-blogger and is also, by the way, author of this terrific book), if she would quickly write up her outline for her one-hour class on the rule against perpetuities.  She uses Dukeminier.

I think it is useful to teach RAP as a way to explain that Anglo-American law has attempted to put some limits on dynastic wealth and to emphasize how words matter in legal drafting. Here is one way to teach the RAP in 60 minutes at a first-year property level. My apologies and thanks to the many secondary sources from which this approach has been drawn (including, in particular, the wonderfully useful Mark Reutlinger, Wills, Trusts, and Estates.)  This approach may not have every member of the class able to work out every RAP problem, but they will get the idea and get the type of basic problems that they might actually by mistake draft into a document. (It also will mean that people are a bit cautious before they blithely agree to write wills for friends and family in later life.)

The class has 5 parts

1. Big Picture
2. The Rule
3. How to Apply it
4. Patterns
5. Reform

1. Big Picture: Explain the Duke of Norfolk's Case: You can tie up your property through the lifetime of people you know and the minority of the next generation. Briefly discuss pros/cons.

2. Give Rule (Gray version): go over interests created, future interests to which the rule applies (you need to have explained these well in a prior class and have done an equally good job with the concept of vesting), what to do if an interest violates rule.

3. How to Apply it: Explain that it is a rule against remoteness of vesting; that the hard part to understand is the part about "or fail"; explain that what one is looking for are interests that might vest after the period (give a couple examples -- I often use the idea of a one-episode reality show -- some will make it; some won't but you'll know by the end vs. the soap opera); explain that one does this by searching for the validating life (or alternatively a nonvalidating life); explain that it will always be a likely suspect--someone who affects the contingency (b/c everyone else can die); explain that a good trick is to always try and kill off everyone alive at the time of the conveyance; explain to always beware vested remainders (b/c RAP doesn't apply to them and so they are valid!).

I have my students do the following steps:

1. Classify all interests

2.  Which ones are subject to RAP?

3.  ASK: When will the cont. rem., etc. vest? (-what event is necessary for it to vest?)

4.  Is there a validating life--look for some connection between the necessary event and the person + 21 years OR prove it could vest after

5.  If no validating life, then interest is bad--cross it out and relabel the interests

4. Patterns -- basically all the RAP problems that I think a first-year student needs to understand fall into one of three patterns:  (You should have a couple examples for each pattern and work over it in class.)

1. The problem of remote vesting (these are the executory limitations problems with state charity-to-charity exceptions)

2. Taker of the interest is the VL for herself -- these are the patterns where the taker is VL, group of takers are VL, people who affect the contingency are the VL, savings clauses

3. Afterborn people problems -- these all involve the trick of the problem using a class word (child, spouse, widow, grandchild) and that person might be an afterborn: child at 25 and grandchild in will vs. deed are good problems.

5.  Reform: Explain state reforms (which all make a lot more sense if you have some grasp of the Rule) and then end with some discussion on the dynastic trust situation because lawyers can learn complicated ways in which to keep dynastic wealth together over generations but apparently can't learn the RAP

Al Brophy
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Should We Still Teach the RAP?

So asks Ilya Somin at the VC:

In legal circles, the RAP is virtually a byword for abstruse complexity, and is traditionally one of the most hated parts of the law school curriculum. Forcing law students to learn it is almost a form of hazing, much like making them learn the Blue Book.

But that's not why I'm considering dropping it. I think it should probably be dumped from introductory property courses because virtually every state and most foreign common law jurisdictions have essentially abolished it - either by providing for the creation of "perpetual trusts" or by enacting statutes suspending its operation for 90 years after the death of the previous owner. The RAP takes a good deal of time to read about and explain, and causes endless frustration for both students and property professors. I suspect that that time and energy can be better spent on more productive activities - much like the time we spend learning and applying the Blue Book.

Ilya's point about the changes to the RAP is an important one.  Pennsylvania just abolished the RAP for newly created interests (wait-and-see will continue to apply to pre-2007 interests), and I'd bet that the RAP will be abolished completely within the next twenty years.  Many of the statutory changes, however, still involve some application of the common law rule, which suggests that keeping the RAP in first year Property is a good idea.  The RAP is also something that might be hard to grasp without having some exposure to it in law school, and the Rule does come up in some odd contexts.  On the other hand, teaching it well takes at least four hours of class time.  With time scarce, I wouldn't be surprised if the RAP is increasingly cut out of Property.

Ben Barros

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Property Signs - Cape Cod Edition

Regular readers will know that we like to talk about property signs here at PropertyProf.  Earlier this week I took a couple of pictures of signs on the beaches here in Orleans, MA, where we've been coming for vacation for a few years.  Al and Carl will be amused to know that I was humming "Signs" by the Five Man Electrical Band to myself while I was taking some of the pictures.  There are two main beaches in Orleans, Skaket on the Bay side and Nauset on the Ocean side.  We spend most of our days on Skaket, where the water is warm and the tide goes out a long way (over a mile), leaving behind tide pools that are lots of fun for kids to splash around in.  Skaket isn't a long beach, and at high tide things can get a little tight.  There are three private houses at one end that have a small strip of private beach, leading to this sign:

What I like about this example is the combination of the "End of Protected Beach" sign and the private beach sign -- the "this is private property, keep off" message comes through, but the overall vibe is more "if you come over here and drown, don't blame us."  Of course, people on the Cape tend to be polite and bourgeois, so there is no need to make the sign too pointed.

Over at Nauset, where we often go in the evening, there is this sign:

The dunes are prone to erosion and are habitat for the endangered piping plover.  I think the two signs together make an interesting pair.  They both are all about the right to exclude, but the right is being used for different purposes in each situation.  Maybe I'll use the signs when I'm teaching the right to exclude this year.  Is the use of the right to exclude in one situation better in some way than the other?  Discuss.

Ben Barros

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Teaching Tips: Of Songs and Poems

This post has been sitting on my computer for a year and, inspired by Rose's post on property songs, I thought I'd blow the dust off it and put it up.

I've been corresponding with one of my favorite former students, who's going to start her teaching career this fall.  So I've been thinking a little more than usual about teaching methods.  Plus, some of our friends over at prawfsblawg are advising new profs against preparing for weeks the summer before teaching for the first time.  Before following that (or any) suggestions, I'd recommend thinking about the following advice from James Gordon's riotously funny article "How Not to Succeed in Law School"  from the Yale Law Journal: "If you want to know what kind of people law professors are, ask yourselfthis question: 'what kind of person would give up a jillion dollar salary to drive a rusted-out Ford Pinto and wear suits made of old horse blankets?'  Think about this very carefully before asking your professor's opinion on any subject." (100 YLJ 1679, 1668 (1991)).  More recently at prawfs, Joseph Slater's been criticizing law schools for not doing enough to encourage good teaching.  Joe has some very useful suggestions on how to improve teaching.

Time will tell for sure just how important teaching vs. research turns out to be in the next decade.   I think the consumer culture is coming to universities in a big way.  One sign of this is that tenure committees (particularly at the university level) are increasingly looking at student satisfaction with teaching.  And for those who have taught, good teaching evaluations are critical in the lateral movement game.  So, obviously, is good scholarship.  In fact, standards for both teaching and scholarship are rising.  Tenure is become substantially more difficult to obtain; universities are looking very closely before making a contract that will bind them for the next twenty-five to thirty-five years.  As an aside, quality is increasingly being measured by citations and publication outlets, rather than based on a close reading of the relevant scholarship, I fear.  Citations are an important (though by no means the only) measure of the quality of legal scholarship, of law reviews and perhaps of the quality of schools publishing those reviews.  But now I'm getting rather far afield.

Property professors generally think that teaching's pretty dern' important.  Perhaps that's because our field is notoriously difficult. I'm not sure.  I'd like to suggest a couple of tips.  Obviously, knowledge of the substantive law is essential.  And once you have that down, there are some other pretty basic things to keep in mind (in my opinion).  Try to have a few basic points you want to make in each class; keep those points in mind as you structure the class and as you talk with students.  A good class is a good conversation, where you explore some ideas, treat difficult concepts in a systematic fashion, and come to some increased understanding.  New faculty often focus unduly on facts of cases; the cases are there to help structure the discussion and give some jumping-off points for further exploration of legal rules, of how those rules arose and are applied, of how we should counsel clients when faced with similar situations, of how we can avoid future litigation.  Working through problems are great ways of exploring the nuances of rules.  I always look closely at the quality of problems in picking casebooks.  There are a couple of problem-centered property casebooks, which I've been tempted to use over the years.  Then at the end of class, I think it's helpful to recap the key principles.  What's the old advice?  Tell people what you're going to tell them, tell them, and then tell them what you've told them?  Good law teaching doesn't so much involve telling students as talking with students--but students can really benefit from some sign-posting along the way to help them structure what often appears to be "stream of consciousness" discussions.  (I think a good property class should have some meta-themes, which we're spoken about some in the past; but each class meeting should also have some discrete, smaller themes.  I find I ask myself as I'm preparing for class: how does what we're going to talk about fit into the overall structure of the course.  And what are the key ideas and rules students need to know from this particular class.  Clarity of thinking, like charity, begins with the individual teacher.)

And bear in mind that it's hard to sit for seventy-five (or even fifty) minutes and maintain your concentration.  Every once in a while it's a good idea to sit in the (usually uncomfortable) chairs our students use in the classrooms and think about what that experience is like.  [Maybe you teach at Stanford, where they have really comfy chairs for students.  Heck, the ones in this room  are much, much nicer than the one I have at my office.  But for the rest of us, remember how uncomfortable our students are and try to do things to help them stay focused and engaged.]

One cue we can take from the trial practice teachers is the importance of re-triggering jurors' (or in this case students') attention.  Try to break the class into segments; make it possible for students who've "checked out" to check back into class.  That is, even if you lose the attention of students, have convenient places where they can return to the conversation of the class.  This relates to the material in the previous paragraph--keep sign posting and relating each segment of the class to the overall points for the day.

A Few Concrete Pieces of Advice

But the primary reason for this post is to talk about a couple of simple pieces of advice on teaching: try to connect with students and present the material in a way that makes sense to them.  I'm so out of touch with mainstream culture that it's absurd.  If, like me, you've never eaten a jello shot (or maybe don't even know what that is), you're out of touch with this generation.  Or maybe even that dates me.  I don't know.  Every now and then I watch cable television to get a sense of our students' culture.  And, to be honest, I feel like Rip Van Winkle.  Perhaps a very confused and dizzy Rip Van Winkle, because the attention span of the generation of college students (if we can use popular television as a gauge) is mighty short.

Yet, I think there are some easy ways to connect with students that even the most rigid of us can employ.  Humor's helpful; alas, I'm not a very funny person by nature.  Nor, I suspect, is the average property professor.  Yet I think that we can say things that students wouldn't at first expect--and therefore things that appear strange (and perhaps funny).

Song lyrics are decent ways of doing this, particularly if you're using cheesy 1970s lyrics.  Early on, after you've read a decision that appears unfair, you may want to invoke the immortal words of the Village People's YMCA: "I felt the whole world was so jive."  And if you start with Johnson v. McIntosh or The Antelope, as I suggested, then you can wheel that one out on the first day.

Procol Harum's Whiter Shade of Pale's getting a little musty for our students to know.  Oh, who's kidding whom; they won't know it.  And no, we can't even expect them to know it through the Big Chill.  But wow are these great lyrics:

If music be the food of love
then laughter is its queen
and likewise if behind is in front
then dirt in truth is clean

(Though one of my students last fall did know it--he's a Procol Harum fan--and he told me that those lyrics aren't part of the version that Procol Harum recorded.  The story on those mysterious lyrics is here.  Goes to show what I know.  Incorporate by reference the Yale Law Journal advice given above, here.)

And sometimes federal circuit judges refer to "Whiter Shade of Pale," too.  There's a lot to be said about Judge Janice Rogers Brown's speech "Whiter Shade of Pale Jurisprudence," which she gave to the University of Chicago Federalist Society in April 2000.  But that's not a subject for propertyprof.

You might also try some lines of "White Rabbit" from Grace Slick and the Jefferson Airplane when you read a particularly incoherent opinion:

When logic and proportion
Have fallen sloppy dead
And the White Knight is talking backwards
And the Red Queen's off with her head
Remember what the doormouse said:
"Feed your Head
Feed your Head!"

Careful on this one, though; it's easy to overdue it.  And then your students will think you're some antique from the 1950s.

I've found that my students are often too deferential to what judges say.  If it's in a judicial opinion, then they they take it as the word of God.  And one of the things we can do is to teach them to question precedent.  A healthy respect for the limits of what they can do for clients is important (that's part of what we call good judgment).  But so is a sense of what precedent is subject to reasonable criticism and, therefore, vulnerable to modification.  So I try to pick casebooks that have a mix of well-reasoned cases and poorly reasoned ones, too.  When you cover some of the poorly reasoned ones, you might want to use some poetry, like William Prosser's The Common Law of Texas:

They buy their burbon by the case and never shun the cup
And when they ride around in Cadillacs, they smash each other up
But when they litigate a case, it's the darndest ever seen,
Because the poor benighted courts try to follow Leon Green
...
They enter into arguments, and then they have a fight,
They call each other dirty names, and brood on it all night,
They lie in wait for sixteen hours behind an old rail fence,
And shoot the fellow in the back, but it's all in self-defense.
...
They raise an oil well derrick in the city hall front yard,
And when the damn thing blows to hell they take it mighty hard.
Petroleum and rocks and mud are strewn all o'er the sod.
It makes a most unsightly mess, but it's just an act of God.
...

Pull out a few lines of that one when you read a messed-up common law case (perhaps even the Texas case of Othen v. Rozier). That's what my torts professor, Willis L.M. Reese, did with us.  And when I heard Craig Joyce and Bob Cottrol perform it some years later at the American Society for Legal History, I realized that I'd want to use it in my classes, too.

If all else fails, you can always do the Dead Poet Society imitation (jump on the desk or chair and change the students' perspective of what happens in class).  Or maybe just walk up and down the rows.  Though I got the inspiration for that not from DPS but from the introductory scene of Fat Man and Little Boy.  The movie was less than great, but there's a terrific scene in the beginning that has some inspirational teaching.

Alfred L. Brophy
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Singing as A Pedagogical Tool?

With the onset of the AALS New Law Teachers Workshop this week, I thought I would take this time to take a break from writing about scholarship and blog about teaching.  But this post won't focus on questions such as which case should be the first case covered in property or which case book one should choose. 

Rather, we can take a (quick) break from our research and writing to talk about interesting and unique pedagogical ways of teaching property.  Singing, for example, has long been known by child educators as an effective teaching tool.  Of course, our law students are no longer children but surely, some of you might agree that singing poses a distinctive and perhaps effective way of teaching a case? 

I have to confess that I (yes, a first year law professor) sang to my students when I was teaching future interests.  My students at SMU told me later that I helped decrease the stress (a little bit anyway) of learning life estates.  When I taught Kelo v. City of New London, I circulated the words to the "Kelo Song," which was written by a student member of the Harvard Law School Federalist Society. 

So how many of you sing songs to your students?  From conversations I've had with some of you at last year's AALS Annual Conference, I know that several of you do.  Any other songs (or poetry) you want to share?  Do you have other creative ways of teaching property?

Rose Cuison Villazor

Indigenous Ownership of Lands and Culture

Many law students in their first year property course learn in Buchanan v. Warley that states are prohibited from restricting the alienation of lands on the basis of race, color or national origin.

Two laws in the U.S. territories challenge this fundamental principle inherent in the right to own property. Specifically, in American Samoa and the Commonwealth of the Northern Mariana Islands (CNMI), ownership of land and the ability to lease land for more than 55 years are contingent on whether a person has the requisite amount of indigenous “blood.” The American Samoan Code prohibits the alienation of “any lands except freehold lands to any person who has less than one-half native blood.” (More than 90 percent of lands in American Samoa are communally owned and the rest are either freehold lands or individually owned). The CNMI Constitution provides that only those persons who are at least of “one-quarter Northern Marianas” descent may acquire property. (The CNMI has a private property regime.)

Are these laws constitutional? Many would be surprised to know that both laws have prevailed against equal protection challenges. As I discuss below and in a subsequent post, one of the rationales that the courts used to justify the constitutionality of these laws is what they saw as the role that indigenous land ownership played in preserving the indigenous cultures in those territories.

Rose Cuison Villazor

In this post, I will focus on Craddick v. the Territorial Registrar of American Samoa, which sustained the validity of that territory’s land alienation restriction law. I’ll discuss Wabol v. Villacrusis, 958 F.2d 1450 (9th Cir. 1990), which upheld the constitutionality of the CNMI law, in a subsequent post.

In Craddick, the High Court of American Samoa, which is the highest court in that territory, recognized that the “one-half native blood” land alienation restriction requirement created a classification based on race. The court applied strict scrutiny analysis and ultimately held that the territory had a compelling government interest in “preserving the lands of American Samoa for Samoans and in preserving the Fa’a Samoa, or Samoan culture.” The court noted that “the most valuable tangible thing that the Samoan people possess is land” and the law is necessary “to protect the lands, customs, culture, and traditional Samoan family organization of persons of Samoan ancestry.”

One might ask, “How does the restriction on the alienation of land protect the American Samoan way of life or culture?” According to the court, “[l]and to the American Samoan is life itself. He cherishes the land where his ancestors came hundreds of years ago, and where he and his children were born . . . Land is what he lives from, for it is only on the land that he can plant, nurse, and grow his plantations of coconuts, papayas, taro... and other food. Land is where he cooks his food. Land is where the bones of his beloved ancestors are buried.”

The limited space I have on this blog does not allow for a detailed analysis of Craddick, American Samoan culture, traditional land tenure system or the historical reasons that led to the restriction. (Here comes the shameless self-promotion). In “Exploring the Meaning of Blood Quantum Laws,” I examine the various issues of culture, property rights and citizenship that this case raises. One criticism that I provide is how the case relies on an outmoded concept of culture as static and monolithic. Surely, American Samoan culture and the ways in which American Samoans utilize their lands today differ remarkably from their way of life and use of those lands when it became U.S. territory in 1899. Overall, the court lacked the in-depth analysis of the connections among property, culture and restriction based on “blood-based” indigeneity that I think is necessary when examining a law involving a racial property restriction.

To date, no federal court has directly addressed the constitutionality of the American Samoan land alienation restriction law. The D.C. Circuit Court of Appeals, which has appellate jurisdiction over cases decided by the High Court of American Samoa, acknowledged that the restriction is race-based in Presiding Bishop v. Hodel, 30 F.2d 374, 385 (D.C. Cir. 1987) but opted not to rule on it.

Admittedly, American Samoa, like Native American nations, may be sui generis. Nevertheless, the Craddick case provides a unique insight into fundamental principles of equal protection in the right to own property and the relationship between culture and property.

Rose Cuison Villazor
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Modifications to D&K

In the comments to Prawfsblawg's recent post on picking a property text, I promised to do a post on my modifications to D&K.  So here it is.  My supplement varies in size from year-to-year, depending on what I'm trying to do.  Some years I've had time to do some extensive work with the students on takings and/or property theory (I have six credits, which gives me plenty of time).  But here is the core of what I change, focusing on cases that I don't like:

I reorder the first couple of units in the book to create a coherent introduction to the issue of possession through the law of personal property.  So I start with Pierson v. Post, immediately followed by Popov v. Hayashi as a supplement.  I do the rest of capture, then a short unit on bailments using Peet v. Roth Hotel and First American Bank, NA v. D.C.  I think that bailments are worth covering, and don't like their omission from D&K.  I then do finding and gift.

For the next unit, I do possession issues in land, doing discovery, the right to exclude, and adverse possession.  I supplement the right to exclude material with a short excerpt from Lior Strahilevitz's article on the right to exclude.  In adverse possession, I replace Van Valkenburgh v. Lutz with Marengo Cave.  I actually like the facts of Van Valkenburgh, but New York's adverse possession statute is very idiosyncratic, and I like Marengo Cave better as an introduction to adverse possession.  In a short unit on IP, property in the body, and theory, I skip most of the material in the book -- I don't like INS v. AP much since it is so dated.  I was happy to see better treatment of Kozinski's dissent in White v. Samsung in the new edition.  I supplement with Kremen v. Cohen, which is a great IP theory/cyberlaw case.  I teach Moore v. Regents because I love the facts, but I hate the case because of its poor legal reasoning.  I also save the Demsetz material for later when I cover nuisance.

Continuing with my out-of-order approach, I then do Landlord-Tenant.  I replace Ernst v. Conditt with Neal v. Craig Brown Inc.  I have a hard time using a case that screws up the difference between privity of contract and privity of estate to teach privity.

I really focus on problems in the estates and future interests material -- I might actually skip all of the cases on defeasible estates next year.  I've written problems sets for both basic future interests and the rule against perpetuities (if you'd like the problem sets, send me an e-mail and I'd be happy to share them).  I don't teach Symphony Space or any other cases for the RAP, but do talk about a PA case that applied the RAP to an option.  I think that the co-ownership unit works very well, and don't modify it at all.

In the unit on transactions, I skip Rockafellor v. Gray, which is loathsome, though I spend a lot of time the issue of whether the present covenants in a general warranty deed "run with the land."  I do teach Stambovsky v. Ackley even though I don't like it -- I consider cutting it every year.  In the recording material, I skip Board of Ed. v. Hughes, and skip some of the more complicated chain of title problems.  I generally like the servitudes material, though I'm starting to wonder whether Miller v. Lutheran Conference is worth the trouble.  In the land-use unit, I don't teach Euclid for reasons I've discussed previously, though I do lecture briefly on the case and on Euclidian zoning.

My biggest modifications are in the takings unit, which isn't surprising since I'm a takings geek.  I supplement with Madison's essay Property and short excerpts from my articles on Berman and Midkiff (giving background for Kelo) and on the Police Power (focusing on the original understanding of the takings clause).  I lecture on Loretto -- the case really isn't that interesting, though the rule it sets is important, and the version of the case in the book is way too long.  But the biggest change I make is to do excerpts from Commonwealth v. Alger and Mugler v. Kansas before doing Hadacheck, Mahon, Penn Central, and Lucas.  I don't think you can understand either Mahon or Lucas without understanding Alger and Mugler.  (I explain why Alger is important in the article on the Police Power).  I have case edits of both that I'd be happy to share.  I do Palazzolo and Tahoe-Sierra very quickly -- Palazzolo is worth mentioning for its rule on subsequent owners being able to make a takings claim, and Tahoe-Sierra is vaguely interesting for the strategy that the plaintiffs tried to use, but frankly isn't as interesting as many people make it out to be.  I don't think that any serious observer thinks that Justice Stevens's dicta in the case has finally resolved the denominator problem.

I'm always trying to try new things, so I'd be delighted to hear about how others modify their courses.  I'll be visiting at Catholic next year, where Property is a four-credit class, so I'll need to think hard about where to spend my time.

Ben Barros

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Selecting a Property Casebook

PrawfsBlawg is running a series of posts collecting advice for new profs teaching various subjects.  One post is on selecting a casebook for property.  Drop by and add your two cents.

Ben Barros

Lee on Teaching the Amistad

Brant T. Lee (University of Akron) has posted Teaching the Amistad on SSRN.  Here's the abstract:

This brief essay discusses the use of a slavery case, the Amistad, in teaching a first-year Property Law course. It argues that teaching about slavery in the first year of law school not only emphasizes the significance of race issues in American legal history, but also helps students to connect broader philosophical ideas to the rules at hand. The essay reviews the facts underlying the Amistad case, including reference to the movie about the case and to intellectual property issues that arose in the making of the movie. The essay then traces the deployment in the Amistad case of the standard property themes of possession and title. The essay closes with suggestions about how to connect the discussion of the Amistad to broader themes in property law.

Ben Barros

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Merrill and Smith's new casebook

Friday's mail brought Thomas Merrill and Henry E Smith's exciting new property casebook, Property: Principles and Policies, which Foundation has just published.  Pretty interesting organization of the course and it's sure to be a great resource.

From the book's website:

The book presents the subject through vivid cases, including most of those beloved by generations of property teachers. But in contrast to other casebooks, which present property as a hodge-podge of issues, it seeks to organize the material in an integrated way, starting with the idea of property as the right to exclude and systematically developing elaborations, exceptions, and counterfoils to this idea. Issues of contemporary relevance such as intellectual property and regulatory takings are given relatively pervasive and expansive treatment. The emphasis throughout is on fundamental principles and policy questions.

Here's a link to their table of contents.

Alfred L. Brophy

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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Property Pedagogy

Jeremy de Beer at the University of Ottawa is working on an article on property pedagogy, and is looking for material on the subject.  If you know of any good sources, please leave a comment.

Ben Barros

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Open Book v. Closed Book

When I first started teaching two years ago, I was a big fan of open book exams -- real life is open book, so why shouldn't exams be open book?  This year, I tried something different in my Property I class.  I made the exam closed book, and I gave four graded quizzes throughout the semester.  All of the quizzes were closed book; some were multiple choice and some were short-answer.  The result was a dramatic improvement in the overall performance (measured by quality of answer) on my final.  I'm not sure how much of the improvement to attribute to the quizzes and how much to the closed-book nature of the exam.  I suspect that both played a part.  Interestingly enough, the student feedback on the quizzes was very positive -- my students appreciated the early feedback, and the preparation for the quizzes put them in good shape to prepare for the final.  From now on, I'm going to use the same format -- graded quizzes, closed-book exam -- for all of my large classes, including Business Organizations.  The quizzes, of course, were some extra work, but the results were worth it.

Ben Barros

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Stambovsky v. Ackley

I'm teaching real estate transactions in my Property II class, and today we covered Stambovsky v. Ackley, the famous haunted house case.  I have to say that despite its fun facts, I don't find the case very useful.  Sure, its discussion of caveat emptor is okay, but there are a lot of better cases out there on that point.  Am I missing something?

Ben Barros

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Case Method in Law School Teaching

Over at the VC, David Post has some commentary on an issue near and dear to my heart -- using unedited cases in law school.  His basic position is against.  In the comments to his post, I've stated my position to the contrary.  But anyway, if you're interested in this issue, read the whole thing.

Ben Barros

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Teaching Out of Order

As I mentioned in a previous post, I changed up the order of subjects in my first-year property class.  Among other things, I moved up nuisance to the first few weeks of class.  The previous year, I had instead moved the introductory material on theory to the later part of the course where nuisance usually goes -- right before zoning, etc -- so that I could do the material on externalities in tandem with the material on nuisance.  I liked doing the theory together with the nuisance, but also liked doing some theory up front.  Hence, the attempt at doing nuisance early in the course, which had the added benefit of illustrating early on how property rights can conflict with each other.  Having done it now both ways, I think that next year I'll move nuisance, along with the theory, back to its position later in the course.  I still like doing the nuisance and theory together, but nuisance fits better conceptually with the land use material, and even though I'm a property theory geek I don't emphasize that much of it in first-year property.

Another subject that I've been doing out-of-order is landlord-tenant, which I do very early in the course, right after finding, gifts, and adverse possession.  Landlord-tenant can really go anywhere in the course, and I like doing it early because it is fairly intuitive and the students can really relate to it.

Ben Barros

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Prof. Solove on "A Guide to Grading Exams"

Ha!

Rick Duncan

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In the News: Justice Scalia vs. Law Profs at Harvard

In a recent Harvard Law Record, there is an interesting story about Justice Scalia's recent visit to Harvard and his jousting with Dean Kagan and Profs. Ackerman and Manning. Here are the relevant excerpts:

1. When Dean Kagan asked Scalia about his support  for a "dead" Constitution, Scalia responded: "I can package it better than that. I call it the enduring Constitution."

2. "Professor Bruce Ackerman, who offered a Wendell Holmes Lecture Series this fall called 'The Living Constitution,' asked Scalia why the justice does not see his task as interpreting the meaning of the words in the Constitution as they are understood today. Scalia again emphasized that ordinary statutes are not reinterpreted as time passes, but that Congress must respond with legislative action to changing times and meanings."

3. Finally, before you ask Scalia a question, take note of his exchange with Prof. John Manning,

who asked Scalia about analysis of open-ended phrases in the Constitution: "How do you know that [such] phrases aren't meant to delegate to the courts the authority to take into account changing morality and sensibilities?"

Scalia, not one to mince words, responded tersely and with his characteristic sense of wry humor, calling Manning "an easy target."

"How do I know? I know because it would be idiotic otherwise," Scalia said. "Do you seriously think the Constitution would have been ratified if it had a clause that said the document would be interpreted by nine different lawyers?"

These are typical questions 1Ls ask about the Constitution. Is it a "living, breathing, evolving" document, or does it have a fixed meaning as originally understood. When a student asks me about the "evolving" Constitution, I usually respond something like this:

Where does a judge applying an "evolving Constitution" look to determine what new species the written constitution has evolved into? DNA testing? Bob Bork says "the truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else." Do you agree? Is the "living Constitution" theory really a theory of evolution, or is it more accurately described as a theory of intelligent design?

Do these issues come up in Property? Many of them do in my classes. I am fascinated by the overlap between Constitutional Law and Property, not just in the Takings area, but also with respect to religious land use, race and exclusionary zoning, race-restricting covenants (including those that are racially neutral on their face, but operate to exclude minority residents from restricted communities), speech-restricting covenants (and their enforcement by homeowner's associations), and substantive due process cases like Moore v. City of East Cleveland. When I teach Moore, I turn it into a restrictive covenant case and ask students whether a covenant that defined family in exactly the same way as the City did in Moore could be enforced against Mrs. Moore. Does Shelley apply, for example, to covenants that restrict SDP rights and First Amendment rights?

At Nebraska, Con Law is a 2L course, so I try to bring a little more of it (plus RLUIPA) into my Property class to give the students a little more exposure to public law as part of their first year experience. One o