Tuesday, June 23, 2009

Framing in First-Year Property

I've been thinking about possession quite a bit lately, and this in turn has led me to think a bit about how we frame issues in the first-year property course.  There are a number of issues where I (and I think most PropertyProfs) teach the received wisdom on certain theoretical or conceptual points.  For example, I tend to emphasize that in many cases, possession is more of a conclusion than it is a fact of the matter.  I also tend to teach the bundle of rights model of understanding property.  Both of these are contestable positions, and their acceptance can lead to certain normative conclusions.  For example, Adam Mossoff has argued that the bundle of rights model has led to a weakening of property rights.  If Adam is right, then we are leading students towards normative positions when we teach the bundle of rights approach.

All of this leads to the worry that how we frame issues in first-year property may shape student understanding in unpredictable ways.  I’m not sure there is any way to avoid this, and I think that professors should feel free to teach from a particular point of view.  Still, it makes me a bit unsettled.

Ben Barros

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Why should it make you feel unsettled? If this is a 'problem' at all, it is one common to all disciplines and all arenas defined by a student/teacher relationship. It sounds to me like you're uncomfortable with the fact that you perceive a sub-category of your profession and topic of law that is in a state of flux and are but one person; that you cannot bring about a change you sense needs to be brought; that you wish a greater tide sharing your predilections was extant.

I think the first thing you might consider is stop using the word 'normative.' It has to be one of the most abused words in the law professor's lexicon.

It's no crime if the best that you could practically do (given the limits of a calendar based, structured curriculum) is to bring students' attention to the existence of competing theories and urge them to acquaint themselves with them; that the 'normative' (ugh!) 'bundle of rights' approach provides maybe the best COMPROMISE among those theories?

Posted by: gompers | Jun 24, 2009 8:10:24 AM

Actually, I think my problem is the opposite of what you suggest. I'm not worried about my ability to make students see Property the way that I do. I'm worried that I might make students see property the way that I do, which might be a problem on contested theoretical issues.

I like "normative". Maybe it is because I've been hanging around a lot of philosophers. Normative normative normative normative. It's not nearly as bad as hermenutic or heuristic.

Posted by: Ben Barros | Jun 26, 2009 8:50:49 AM

HERMENUTIC?!?!? NOW I'M ANGRY!! Seriously, I agree about the H words...very much in the same category as the N word.

Regardless of which way the students end up viewing things, I think it's just an occupational hazard. Students take their cues from their teachers, just as kids take their cues from their parents. At some point, students must learn to think on their own and see beyond the little gray boxes in the side notes of the texts. It's called REALITY. Life doesn't mimic texts. This is the biggest complaint employers have with recent grads: that they think everything is supposed to work just like they 'learned' in school.

If anything do we not learn in law school, almost exclusively to all other disciplines, that there are always arguments for the other side; that to insist one's own is beyond rebuttal is rhetorical suicide?

If you are troubled by the fact that you think (indeed, insist) your students may be in 'trouble' based on your own teaching methodology, it is incumbent upon to prepare them for such contingencies.

But really, in the end, one could argue that most issues in law are 'contested.' You may get tired of having these trepidations if you carried out your misgivings to their logical ends.

If you weren't majoring in P, maybe you wouldn't give damn.

Remember what Steve Martin once said: the problem with studying philosophy is that you learn just enough to screw you up for the rest of your life.

Posted by: gompers | Jun 26, 2009 9:58:45 AM

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