Sunday, June 27, 2010

We are Under-Selling Property. Debate.

Tanya's recent post on devising a first-year property curriculum, and my recent experience teaching and researching in the Czech Republic, have brought to the fore of my mind an important -- I'd say critical -- misstep in many property courses: we are under-selling the importance of property rights.

Now, that may seem counter-intuitive: it's a required course, after all, and usually the one that eats up the most credits.  It covers, as Tanya discusses, such a wide range of issues that it runs the risk of dissolving into a coreless hodgepodge.  So how can we be under-selling property rights?

Here's how: how many of us take the time to teach our students that property rights are at the center of the most massive struggles in world history?  That the fundamental, irreducible core of capitalism is a particular conception of property rights, that the fundamental, irreducible core of communism is a different conception of property rights, and that these two conflicting ideas dominated the course of the 20th century and may yet dominate this one?  That conflicting systems of property rights determined the courses of colonial empires and colonized cultures?  That millions upon millions died as a result of these struggles?

Property, in other words, isn't so much about lost brooches as it is about lost generations.

What I think we are underselling is both the political economy of property rights, and the flesh and blood (with an emphasis on blood) results of ideas about property. This year I'll be revising my first-year property syllabus to include readings on the capitalist and communist conceptions of property rights and the concrete, historical results of these ideas.  I'll be expanding the readings about colonialism beyond just Johnson v. McIntosh.  And I'll be adding recent cases from places such as South Africa that may bring into sharper relief than our domestic cases that these struggles are not consigned to history, but are part of the present and future as well.

I'd love to hear your thoughts.

Mark Edwards

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

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Interesting thought, Mark. I tend to think that this sort of theory material should play a relatively minor role in first-year Property, but that it is worth including some material on these subjects. As a theory person, I think these issues are important, but not as important in the first-year course as an introduction to basic legal concepts. Like many other issues, these theory points can be raised well in a relatively short amount of time. In the past, I've asked my students to read the short version of Chapter 3 of the Mystery of Capital that is available on de Soto's website ( It worked pretty well in raising some of the interesting "why is private property important" issues.

Posted by: Ben Barros | Jun 28, 2010 6:32:53 AM

Mark, Great food for thought as I try to figure out what to include in the class. The historian in me loves the way you put it -- "property rights are at the center of the most massive struggles in world history." If it was all about lost brooches it wouldn't be nearly as interesting. I think some theory discussion probably gives the students some broader context for the basic legal concepts.

Posted by: Tanya Marsh | Jun 30, 2010 2:59:19 PM

I was hoping there would be more replies here so that I would not have to ask the following embarrassing or obnoxious question: What ARE the "basic legal concepts" we care about in first-year property? The requirements for a valid gift, or adverse possession, or creation of an easement? Those just don't seem to have the same basic-ness as, say, the nature of liability for negligence or strict liability or the essence of a valid contract. I can't help thinking that an understanding of what property is and what it (the concept) does for us (as a society or legal system) is more useful as a foundation for understanding the law than the miscellaneous doctrines that I, like everyone else, teach in my Property course.

Posted by: Paula | Jul 1, 2010 2:00:34 PM

Mark, I agree it's an important dimension to raise and I agree with Ben that it can be done sufficiently in a brief time in the basic Property course. If you are willing to share the materials you develop, perhaps you could make them available to me (and perhaps others)who are interested.

Posted by: Tim Iglesias | Jul 2, 2010 8:47:08 AM

Hi Paula -- Sorry for the tardy response. I couldn't agree more. I think the important point to be made, repeatedly, for the students is, roughly:

'Don't lose the forest in the trees. The world has divided and will divide and struggle over property rights. The greatest conflicts of the past centuries -- capitalism v. communism, colonial powers vs. each other vs. indigenous populations, even the individual vs. the state -- have been over property rights; perhaps the most dangerous conflict in the world today -- between Israel and the Palestinians -- is over property rights. That said, we in the United States, as a common law country, have allocated property rights in a particular way through the development of case law. We need to examine our own particular doctrines -- adverse possession, gifts, easements, etc. -- but always with the understanding that they are just trees in a much larger forest. By keeping that in mind, you prepare for the bar and become an informed participant in the world.'

I said in my post that property isn't so much about lost brooches as lost generations. The reason I said that, of course, is in reference to the Hannah v. Peel case that many of us teach from the Dukeminier textbook. What I find astonishing about the inclusion of that case in the textbook is that we teach the students about the damn brooch, rather than the context in which it was lost: World War One, which killed millions, destroyed the massive Hapsburg empire, lead to a massive redistribution of property rights in Europe, gave birth to the Soviet Union and thus the first communist state in the world, nearly produced a war over rights to the southwestern states between the U.S. and Mexico, and, in the punitive division of postwar spoils, sowed the seeds for the rise of the Nazis. And we ignore all of that and focus on the silly lost brooch! If that's not underselling property, I can't imagine what is.

Tim, I will gladly share the materials I use! I agree that it will likely be done in a brief time in the basic property course -- just enough to make the point about the bigger picture and let it sink in. It can be very useful later when talking about doctrines like future interests (would future interests be permitted under a communist legal system?) and takings.

Posted by: Mark Edwards | Jul 7, 2010 1:54:57 PM

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