PropertyProf Blog

Integrating Lawyering Skills in the Property Classroom

I've been following the debate over on Prawfs Blawg regarding Bruce Newton's paper entitled "Preaching What They Don't Practice:  Why Law Faculties' Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy."  There have been a number of interesting posts on Prawfs Blawg regarding the ABA's recommendations for reform and possible ways to work practical skills into the academic curriculum.  Certainly not a new debate, but definitely interesting.

I thought I'd post a little bit about the Real Estate Transactions class that I'm developing as I teach this semester.  I posted this summer about my search for a book, and ended up adopting George Lefcoe's Real Estate Transactions, Finance and Development.  This is a really interesting area in terms of books -- they are all very different and I could have easily been happy with several others.  I just received a preview copy of the book by James Durham, Debra Stark, and Thomas White III (Commercial Real Estate Transactions: A Project and Skills Oriented Approach) and it also looks great.   I also toyed with the idea of teaching from the ABA's A Practical Guide to Real Estate Transactions, but ended up putting it on reserve as a supplement.

What I'm trying to do is work lawyering skills into the class as a means of reinforcing the legal concepts.  Real Estate Transactions is a little funny because it isn't a doctrinal class, but it does include doctrine.  But I'm also not teaching a drafting class (not that there's anything wrong with that).

So I explained to the students on the first day that we would first build a foundation before getting to the meat of commercial real estate transactions -- we needed to be on the same page about standard contract law before we could move into this more specific type of contract.  On the first day, I gave them an actual, very complicated purchase and sale agreement for an operating shopping center.  I had them make lists of concepts that were unfamiliar to them, then I compiled those lists into a master list that we will work our way through the semester. 

We then spent a few days working through some material from Tina Stark's Drafting Contracts book, talking about the differences between reps and warranties, covenants, conditions to obligations, etc.  They looked through my sample contract and found examples of those types of provisions, and we talked about them.  I gave them the option of drafting a few simple provisions and then gave them written feedback outside of class.  In class, we spent 15 minutes debriefing to further reinforce the concepts.

Yesterday, I gave them a real residential lease and we talked about the analytical skills that transactional attorneys use to spot business issues, evaluate risk, and then mitigate risk.  Today, they broke into pairs and negotiated certain provisions in the contract, role playing the landlord's attorney or the tenant's attorney.  After each negotiation, we debriefed about the content of their negotiations, what each party was trying to get, what kind of compromise was mutually acceptable, and what terms are enforceable.

Thursday the real work specifically on commercial real estate transactions will begin.  But I think that these first two weeks have been a great investment of time.  They seem very comfortable with the ideas of balancing risk, aligning incentives and control, and crafting appropriate standards, which I think are pretty important in commercial real estate transactions.  The negotiation exercise in particular is one that I think I will use throughout the semester because the students were very engaged as they argued with one another, and seemed to learn a lot during the debrief from the other students.  It also proved to be a great jumping off point for me to work in the substantive points that I wanted to make about landlord/tenant law.

So far, I think that my attempts to integrate lawyering skills into an "academic" class, as a means of teaching the substantive law, have been successful.  Next semester I will teach Property, which I believe will be a bigger challenge given that it is a fundamental doctrinal course. 

I'm very interested in how other Property Profs are addressing this debate.  Do you think that lawyering skills should be taught in separate courses by a separate faculty (as advocated by some on Prawfs Blawg) or should they be more integrated in the academic curriculum (as I am attempting)?  Thoughts?

Tanya Marsh

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Couchsurfing 101

Last week, the LA Times ran a short Q&A about how to get rid of a freeloading house guest.  According to the author of the piece:

An adult living in a rental property without paying rent or being party to a rental agreement, oral or written, is consider a "tenant at will." Since the law regards him as a tenant, he cannot be locked out or forcibly removed. Your only legal avenue is to give him a written notice of termination of tenancy. If he doesn't leave voluntarily after receiving written notice, you can file an eviction lawsuit, known as an unlawful detainer, in court. Because he is a tenant at will, you need only give him a 30-day written notice to vacate, rather than the 60-day notice that would be applicable to a traditional month-to-month tenancy of more than a year.

The author certainly knows more about California law than I do, but this strikes me as odd.  Couldn't you consider the ne'er-do-well friend a licensee, rather than a tenant-at-will?  Any Californians care to shed some light on the issue?  I also find the response completely bizarre and inappropriate for dealing with a relationship between friends.  Who would ever sue in this situation without first trying some basic self-help measures?  Turn the cable off.  Empty the fridge.  Invite your smelliest friend to share the couch for few days.  But suing a friend?  That seems like the worst possible solution.         

Steve Clowney

(Pic from WikiCommons)

Personhood, Property and Pamphlets

The New York Times is running an interesting story about an online collection of real estate pamphlets, curated and displayed by Columbia University's Avery Architectural and Fine Arts Library.  The collection includes pamphlets from as long ago as the 1880s to as recent as the 1970s (interestingly, if you browse through the sample that accompanies the Times article, you are interrupted by . . . real estate pamphlets).

There are over 9,000 pamphlets in the collection, which is enough to sidetrack an obsessive like me for weeks, but they are fascinating.  One immediate realization: advertisers understood that property is an extension of personhood long before Radin's seminal work.  Look at the this advertisement:

It's beautiful, and the image perfectly captures the address of the property: One Gracie Square.  What's missing entirely, of course, is the actual, physical property.  What's for sale here is a piece of 'personhood' -- graciousness, elegance, a way of being.  Don Draper would have understood it perfectly.

By contrast, the least effective pamphlets are the ones that focus on the physical aspects of the property.  They are informative but don't stir the idea of oneself -- which is the essence, in some ways, of the property as personhood idea.

It might be useful to use these pamphlets as a discussion launcher when teaching a case like Kelo -- what, after all, is really at stake for Mrs. Kelo, and taps into our outrage, other than a sense that something intrinsic to a person's identity is being demolished?

Mark Edwards

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Bayern's Conveyance Interpreter

I've been worried for some time about computers taking over; here's more evidence of it....

Shawn Bayern of Florida State University has a web program that is a "conveyance interpreter" that diagrams grants of estates ("To A for life, but if he becomes a lawyer, then to B for 21 years" and so on). The program uses a "context-free grammar" to understand the language of the conveyance, and then it generates an image that maps out the resulting property interests. Shawn borrowed the style of the images from diagrams that Andrea Peterson, his Property professor at Berkeley, used in class. In fact, Shawn wrote it when he was a property student.  

I've been playing with it some this morning --- and I have to report that it's pretty darn cool. Just in time for the start of the new year. This could be the new teaching tool of the season! Hours and hours of fun just waiting you and your students.

For instance, at right is the diagram Shawn's program drew for the grant "to A for life, then to B and her heirs if B survives A."  The "conveyance interpreter" is available here.  

The fact that we're one step closer to our jobs being taken over by computers is a story for another time.

Now, Shawn, where's the program to evaluate the rule against perpetuities?

Al Brophy

A Poem for Friday

As two of my co-bloggers on this site have academic interests in cemeteries (see: here, here, here, and here), I can't resist linking to this excellent poem (and reading) from Billy Collins, poet laureate of United States:

Cemetery Ride, by Billy Collins.

 
Steve Clowney

(pic: Homewood Cemetery, Pittsburgh, where I worked as a groundskeeper in summer of '98)

Litigating Takings Conference at UC Berkeley

From John Echeverria (Vermont)

On November 5, 2010, the 13th Annual Conference on Litigating Takings Challenges to Land Use and Environmental Regulations will be held at Berkeley Law in Berkeley, California.  This year’s conference, sponsored by Vermont Law School, Georgetown University Law Center, Berkeley Law and others, will feature a discussion of constitutional review of property rulings in the aftermath of Stop the Beach Renourishment, takings claims in the era of climate change, eminent domain practice five years after Kelo, takings claims arising from water regulation, and other issues.

The program brochure and registration information are available at:

http://www.vermontlaw.edu/x11644.xml

CDs of the program materials and conference proceedings also will be available.

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A Fight in the Negev

The New York Times details a land dispute between the Bedouins of the Negev Desert and the Israeli government:

The contest over this small patch of desert reflects a clash of cultures, of modern and traditional lifestyles and laws of ownership and increasingly, for many Bedouin, of loyalties and faith. Part of Israel’s Arab minority, the southern Bedouin, who now number more than 170,000 and make up a quarter of the population of the Negev, established good relations with the young Israeli state. Unlike most Arab and Muslim citizens of Israel, many have volunteered to serve in the Israeli military. But none of that has eased the tensions over the land in the Negev. The area lies in Israel proper, not in the Israeli-occupied West Bank, which the Palestinians want as part of a separate state. Originally nomads, the Negev Bedouin had settled into a largely sedentary lifestyle by the time the Israeli state was founded. Israel did not recognize their land claims, and about a third to half the Bedouin of the Negev now live in dozens of unrecognized villages . . .

Steve Clowney

Orth's Reappraisals in the Law of Property

John Orth's charming and insightful Reappraisals in the Law of Property has just appeared in Robin Paul Malloy's "Law, Property, and Society" series. The book collects a series of Orth's essays, many of which have appeared in the Green Bag. Here's the description from Ashgate's website:

Some of the most basic doctrines of property law are very old, many dating to the medieval era. How can legal rules that were born so long ago remain viable today? In Reappraisals in the Law of Property, author John V. Orth considers various topics in order to discover the forces that have been made and are continuing to remake these areas of the law. Orth proposes three forces in particular that have shaped the development of property law over time: the inertial force of tradition, the reforming power of judicial and legislative activism, and the constant challenge of academic criticism. Together, these themes form the foundation of a critical and challenging work, one that re-evaluates property law and demonstrates both its enduring consistency and the unique and often drastic ways in which it has evolved in the modern era.

I am certain that property profs will enjoy reading Orth's commentary on areas of property, such as tenancy by the entirety, leases, and easements, as well as his speculation on the importance of "driving forces," like intention, competition, and fiction.  And I hope that you'll encourage your library to add this to their collection.

Al Brophy

Rental Safety Inspections

The fellows over at the Daily Dish have highlighted the issue of rental safety inspections:

In the last two towns where I have lived (Burlington, VT and State College, PA) both had local laws requiring that rental units had to be inspected at regular intervals. In other words, once a year (or so) renters are legally required to allow a government employee to conduct a search for illegal [supposedly just safety-related] activity.  If they catch a violation either the resident or landlord can be fined depending on who's at fault.  In Burlington if you refuse them they will just come back with a warrant regardless of probable cause.  In State College there is just a flat fine for not having had it done.  I don't think you could invent a more straightforward violation of our 4th amendment rights than to get searched at regular intervals, without probable cause, to make sure that no one is acting illegally. I seem to be completely alone in actually caring.  Am I missing something?

As a homeowner in a college town where unsavory landlords continually (and illegally) convert single family homes into mini-fraternity houses, I'm not very sympathetic to this argument (the Homevoter Hypothesis in action!).  More substantively, I think the author is also wrong on the legal issues.  Courts generally conceptualize regulatory sweeps as local property regulations and, as a result, give them considerable deference.  Additionally, as Nicole Garnett details in her excellent book, Ordering the City, the rise of aggressive land use policies actually stems from a judicial attempt to bolster 4th Amendment -- as judges cracked down on police discretion, cities turned to property regulations (PrawsBlawg book club: here).  In theory, the presence of regulatory sweeps allows cities to maintain order without involving the police.  Moreover, the system of regular check-ups in State College may actually be preferable to the system we have here in Lexington, which seems completely arbitrary and ineffectual.  

Steve Clowney

ALPS Meeting Registration is Open

This year's Association for Law, Property, and Society annual meeting will be held on March 4-5, 2011, at Georgetown Law School.  Registration is now open at the ALPS website.  Last year's meeting was great, and I hope that many of you can make it.

Ben Barros

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When Neighbors Attack

A lime-green paint-job raises questions about neighborliness, nuisance, self-help, and strong property rights.

Steve Clowney

The Experiment Begins . . .

Well, I'm back from my last bit of vacation, and begin teaching Property I to my new group of 1ls tomorrow. 

As I wrote earlier in the summer, this year I want to put more emphasis on the political economy of property rights, so instead of starting with Johnson v. McIntosh or Pierson v. Post, I'm actually starting with . . . The Communist Manifesto (chapter two, specifically).  And excerpts from Michael Jensen's Freedom, Capitalism and Human Behavior.  Seriously.

I have no idea whether this will work so I'm a bit nervous, although honestly the change isn't that radical (so so speak): we'll be getting to Johnson on day 2.  But I'm hoping to introduce on Day 1 a theme that we will return to continually throughout the year: the central place of property rights in the human tragicomedy.  I'll let you know how it works! 

Mark Edwards

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Bed Bugs -- Ick!

I love the Diane Rehm show, but I just listened to a very disturbing installment regarding bed bugs.  Apparently they are on the rise, particularly in New York City, although several people called in from Cincy, Kansas City, and other larger cities reporting they had problems.  It is also a big issue in college dorms.

A few key points:

1.  They are very difficult to get rid of.

2.  They are very easy to transmit from place to place, including from hotel room to home and from unit to unit in a multi-family development.

3.  They are difficult to detect unless you know what the signs are.

4.  They don't really like mattresses.  They don't like light, so they hide in crevices, clutter, behind pictures, baseboards, etc.

Of course, I think this has all kinds of interesting Property implications.  For example, should states require disclosure of bed bugs along with roof leaks and other latent defects in home sales?  Should landlords be required to disclose bed bugs to tenants?  Should tenants be required to tell their landlords if they have bed bugs in order to prevent transmission to adjoining units? 

I am suddenly very itchy.

Tanya Marsh

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Pierson v. Post Overturned!

Hot off the press from LawForAttorneys.Com: 

In what can be billed as one of the most surprising decisions handed down in recent memory, the ruling in Pierson v. Post, one of the nation’s oldest property-law cases, was reversed this week by the Supreme Court of New York. The court’s reconsideration of the ruling was prompted by new evidence arising from an in-depth autopsy analysis that was performed last month on the remains of the fox at the heart of the famed case. . . .

[E]arlier this summer at the request of Broderick Post, great-great-great-grandson of Lodowick Post, the remains of the fox were exhumed and analyzed, at a personal cost of about $1 million. The long-overdue autopsy found conclusive evidence that, by the time Pierson had discovered the fox, it had already died of exhaustion from Post’s pursuit. Post then petitioned the court to have the case reopened.

Read the whole thing for more on this shocking development in property law!

Ben Barros

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One good parking post deserves another

Tanya's comment on my last post raised the question, "Should governments subsidize more vertical parking structures to encourage more density?"  Well, maybe if they looked like the structures below.  The top ten most beautiful parking garages in the world:

10.  Temple Street Parking Garage, New Haven

9. Kansas City Library

8. Milwaukee Art Museum

7. Veranda Parking Structure, Rotterdam

6. Autostadt, Wolfsburg

5. Marina City, Chicago

4. Michigan Theater, Detroit

3. The Parkhaus Engelenschanze, Stuttgart

2.  Santa Monica Civic Center Parking Structure

1.  1111 Lincoln Rd, Miami

Steve Clowney

The $31,000 Parking Space?

In the NY Times, Tyler Cowen takes on the high cost of subsidized parking.  Money quote:

The subsidies are largely invisible to drivers who park their cars — and thus free or cheap parking spaces feel like natural outcomes of the market, or perhaps even an entitlement. Yet the law is allocating this land rather than letting market prices adjudicate whether we need more parking, and whether that parking should be free. We end up overusing land for cars — and overusing cars too. You don’t have to hate sprawl, or automobiles, to want to stop subsidizing that way of life.

Steve Clowney

Limiting confinement feeding operations

Its state fair time, for those of us lucky enough to live in a state with a strong state fair tradition.  For many of us, attending the state fair may be the closest we ever get to the animals who provide us with meat, eggs, and milk.  Industrialization and urbanization have obviously moved many Americans away from their agrarian roots, increasing the disconnect between the food on our plates and the beings that produced it.

I've been an ovo-lacto vegetarian for over 20 years (meaning I still eat eggs and dairy products), so I'm admittedly biased.  But in my mind, there is a significant moral difference between the confinement feeding operations (more commonly known as "factory farms") which have become the norm, and the small farm like that run by my Great-Uncle Jack in northeast Nebraska.  On Jack's farm, the hogs will end up as bacon some day, but in the meantime, piglets run around a noisy barnyard and basically get to act like pigs.  The chickens also run around, eating bugs, scratching the dirt, basically acting like chickens. 

This is, of course, how all farming operations were run a few short decades ago, until industrialization revolutionized the American agricultural sector and diverse small farms were replaced by monocultural fields dedicated to corn, soybeans, or wheat, and barnyards were replaced by outbuildings housing thousands if not millions of animals.  The word "million" is not an exaggeration.  Hoosier Pride Farms recently applied for a permit to build a six-barn complex in Jay County, Indiana which would house 2,013,094 egg-laying hens.  

More after the jump.

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Please Suggest A Note Topic

Cross-posted from thefacultylounge....

 Well, it's time for that annual ritual: the visits to faculty offices by students looking for a note topic. Many congratulations to you all on making whatever review.  It's going to be a lot of work and also some fun (I hope) and also it'll be a nice line on the resume.

So, you want a note topic.  Well, I've thinking mostly about property and trusts and estates and legal history these days, so I'm going to re-post some ideas from a few years back here at propertyprof and add a couple of new ideas in here ....

Lo' those many years ago Eben Moglen suggested a topic to me, on federalism in the Taney Court.  I am eternally grateful to him.  And over the years I've suggested a bunch of topics to students.  Some of the better ones in recent years include Amy Wilson's on the jazz influence in property law (got to read it--I'm not going to give away the punchline); Kitty Rogers' on integrating the city of the dead (catchy title, eh?); Leah Green's on the Erie Canal in American legal thought; Elizabeth Bates on statutes of limitations for reclamation of artwork produced by slaves; Chris Williams on an empirical study of smart growth; and Fred Wright's on the effect of New Deal residential finance and foreclosure policies on property law.  In terms of a really excellent execution of a remedies topic, I'd point you to Grace Long's The Sunset of Equity: Constructive Trusts and the Law-Equity Dichotomy.  It's darn good and it's about reconciling equity doctrine in a couple of diverse areas (injunctions and constructive trust), which I think shows a ton of both creativity and facility with doctrine.  It's a model of strong scholarship.

The key to a good student note topic is: that it's do-able over the course of the second year.  What's that mean?  First, it's a topic that hasn't yet been over-written.  That means stay away from takings (exception to follow).  Some years ago (like nine at this point) one of my favorite students of all time asked me about writing on takings.  And I said, well, spend the weekend looking at what's been done and reading (the then most recent case), Palazzolo and if you can find something new to say, let me know.  So the next week she said, "seems like everything has been taken.  [pause]  I guess that was your point."

Second, find something that's at least a little interesting.  You're going to be living with it for a while.  Third, find something that's narrow enough that you can read everything on the topic and come to a reasonable conclusion in the time you have available.  Fourth, find a topic on which you can say something about the law (this usually means finding a place where law is in flux).  It's not a great idea to rehash the arguments against a particular Supreme Court decision.  That's been argued and answered, even if you don't like the result.  (This advice applies to faculty, as well.)  The Columbia Law Review used to have a rule: you can't criticize the Supreme Court in your note.  Good advice for second year law students, I think.  Not that the Supreme Court has always done everything right; it's just that it's good to stay away from a topic on which you know going in you can't have much effect.

That means that narrow doctrinal topics are really good; brief empirical pieces, are also very good.  And I think historical pieces are ideal, because there is so much that's left to be said about legal history. Talk to people at work; often times, the best note ideas come from practicing attorneys who see issues as they're just beginning to make their way through litigation.  Some ideas below the fold....

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Take the Cannoli

Gerard Magliocca sees the Godfather through a property lens.

Steve Clowney

A Place to Call Your Own

 

I am, to say the least, rather particular about where I write.  It has always seemed self-evident that good writing only happens in spaces that are cramped, quiet, filled with places to stack papers, and rather dark.  I am continually surprised that other people feel differently.

Curious about how the masters work, I've cobbled together some pictures of the places that famous authors do their writing:

(1) The Guardian has a wonderful series of portraits of writers' rooms.

(2) Famous "man caves."

(3) Fun interactive feature on Roald Dahl's writing hut.

(4) Finally, here's a delightful article from the N.Y. Times about constructing one's own dream work room.

I hope you all find a mokki of your own.

Steve Clowney

(picture: Mark Twain's writing room)