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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