Monday, August 27, 2007

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.]

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I still do the Pierson v. Post and Popov v. Hayashi class described in one of the links above. But your first classes seem great. I think the key is to pick something that really engages the students right off the bat.

Posted by: Ben Barros | Aug 28, 2007 10:06:59 AM

Last Friday was my first day of teaching property. My goal was to generate a definition of property. I assigned one case to read -- Johnson. I began the class by stealing one student's backpack, and announcing she would not get it back unless the class could persuade me to return it. We then turned to Johnson, and made the point that one thing we know for sure about property is that it depends upon power. Threatened ultimately with state force to enforce her rights to the backpack, I relented and agreed to acknowledge her ownership, but tried to bargain to retain the right to possess and use it at will (she said no), or exclude her from using it (no again), or sell it at will (no again). From that exercise, and Johnson, we were able to agree that property must be a set of rights (exclusion, possession and use, transfer) against others with regard to things, endorsed by power. I thought it worked well.

Posted by: Mark Edwards | Aug 28, 2007 1:57:17 PM

How do I start Property I each year (here at Faulkner, it is a first year, first semester course)?

With a simple question.

I walk into the class, greet the new students, and ask each one to take a piece of property that they own and hold it up in their right hand.

Normally, I get pens, bottles of water, even a carefully-balanced laptop.

From there, we discuss what it means to "own" and how that word means something much different under the law than it does in lay terms (much like the word "assault").

By the end of the class, the students soon realize that--in terms of absolute control over something they possess--there is no property that they "own" without some type of legal limitation.

Posted by: Chad Emerson | Aug 28, 2007 7:26:08 PM

I begin with Pittsburgh Athletic Co. v. KQV Broadcasting Co. I wish I could remember who suggested this to me, so I could thank him/her.
The case involves a radio station broadcasting accounts of Pirates baseball game without purchasing the rights, by having people sit in a tower and look into the stadium. It foreshadows numerous concepts in the course, including intellectual property (for example, the good students quickly see the analogy to Napster). The case cites INS v. AP, so I don't have to separately assign it. It's a great conversation starter for a lot of reasons, including the fact that it has physicality, exclusion, and contract, but obviously goes beyond them. I could probably spend weeks on the case, and raise almost every topic in the course.
But I don't. I would encourage less experienced professors to NOT spend a lot of time on the introductory material. The cases and themes are seductive, and generate strong class participation. But you will wish you had some of that time back later in the term, when you can't get to land use controls, takings, or some other topic that is both relevant and interesting. Most, if not all, of the pedagogical advantages of the traditional intro material - Pierson, M'Intosh, finders, etc. - can be accomplished with other material (for example, by covering landlord/tenant earlier in the first semester).

Posted by: Howard Katz | Sep 3, 2007 7:32:59 PM

I just wanted to credit Carol Rose for the original Goffman idea--as probably generations of property students know, she always started her class that way. By the way, the first thing I do in class is put on the board/powerpoint the toddler's laws of property and Blackstone's statement about property and absolute dominion, and then get them to say how the various sticks in the bundle are divided with others in all their different living situations (single family home, rental, condo), and then use goffman to discuss what property is good for and why we recognize it in others, and then play this out more with discussing a student's right to his or her seat.

Posted by: Bethany Berger | Sep 5, 2007 3:36:49 PM

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