PropertyProf Blog

Alexander on American Property Law Doctrine

Gregory Alexander (Cornell) has posted Five Easy Pieces: Recurrent Themes in American Property Law (University of Hawaii Law Review) on SSRN. Here's the abstract:

The title of my article, "Five Easy Pieces," may not resonate with those of you who are too young to remember Jack Nicholson as a budding young movie star cut out of the James Dean mold. For those who do remember, it is, of course, the title of one of Nicholson's early (and, to my mind, greatest) movies. Jack's five easy pieces were piano pieces, easy for him to perform, less so for others. There was a certain irony about the word "easy" in the title. The irony lay not only in the fact that just about everyone else consider those pieces difficult, but, more deeply, because those piano pieces were the only pieces of the life of Bobby Dupea, the character whom Jack portrayed, that were easy for him. Life as a whole, the big picture, was one great, almost impossible challenge for him.

My five easy pieces have their own ironic twist. They are rather different but equally challenging in their own ways that first-year law students here will readily recognize. My pieces, this piece, is really aimed at them. The pieces I will discuss are five recurrent themes in American property law, leit motifs, to continue the metaphor from the Nicholson movie, that run throughout American legal doctrines. These themes provide a way of structuring all of property law, adding coherence to what so often appears to law students as an unintelligible rag-tag collection of rules and doctrines that defy any attempt to construct an overarching framework for analysis. I have given five simple labels to these recurrent topics: "conceptualizing property," "categorizing property, " "historicizing property," "enforcing property," and "de-marginalizing property." We begin with how we conceptualize property.

Hiring Announcement: California Western School of Law seeks 2-3 tenure-track faculty members

This just in from from Laura M. Padilla at California Western for anyone on the market this year in property law:

Do you value diversity? At California Western School of Law, we pride ourselves on the diversity of our student body.  This year, around 50% of our incoming students are from diverse cultural and ethnic backgrounds.  We are committed to having a faculty that reflects our student body and our community.  

Do you want to influence legal education at an established but innovative law school?  California Western recently celebrated its 90th anniversary - but we have never been stale or ordinary.  We were on the forefront of innovative, experiential education three decades ago.  As a result, our graduates have a reputation for being uniquely practice-ready.  California Western continues to rethink the status quo in legal education – balancing a rigorous practical education with cutting edge scholarship and community service.  

Who are you?  We are seeking candidates with an entrepreneurial spirit who are eager to put their own stamp on a law school with an expanding faculty and many growth opportunities.

What do you want to teach?  We can prioritize your teaching preferences regardless of subject matter. 

Where do you want to live?  California Western is in downtown San Diego, California, literally overlooking the Pacific Ocean.  A city of breathtaking beauty, we have perfect weather, miles of beaches, and nearby mountains.  We are a family-friendly, diverse city with small city traffic and walkable neighborhoods. 

If you are excited about teaching a diverse student body, shaping the next iteration of an innovative and successful law school, and living in “America’s Finest City,” we want to hear from you.

Candidates should email their materials by September 30, 2016 to Professor Ken Klein at [email protected].  Candidates are encouraged to submit a statement to our Appointments Committee addressing how they can contribute to the goal of creating a diverse faculty. 

Law in Place: The need for an outdoor legal education

(University of Idaho students discussing a culvert on a Boulder Creek tributary scheduled to be replaced to improve salmonid habitat.)

A common complaint about legal education is a perceived lack of “practical” experience. Law schools across the country, including at the University of Idaho, have addressed this need by increasing opportunities for students to participate in live-client experiences through clinics or internships, and by incorporating practical exercises throughout the substantive curriculum. But although students now have the opportunity to draft real legal documents, appear in court, and communicate with clients, many students are still missing exposure to the “things” of law—the people and places that law affects and effects.

The study of law is, of course, notoriously dense and difficult, with much in the way of words and little in the way of images, places, or dirt under the fingernails. This is a serious problem, as should be particularly obvious when we are studying the law of natural resources, land use, environmental protection, and real places and real people. We cannot understand conflict, and cannot propose useful solutions, until we know—intimately—the people and landscapes where those conflicts arise.

In August 2014, during my first attempt at offering a field course in natural resources law at the University of Idaho’s McCall Field Campus, we spent all of one afternoon driving gravel roads around what would become the Lost Creek-Boulder Creek Landscape Restoration Project on the Payette National Forest. We were looking at places that would be burned, roads that would be closed, and culverts that would be replaced to allow for steelhead and bull trout passage. I also tried to take advantage of our time in the forest to teach my students to identify all of the trees in the area, and perhaps more important—to me at least—to care about what those trees are. This is something of a Long-family tradition that I have taken from my father and am trying to impose on my own sons. My sons seem to enjoy it, but on the Payette, I got the sense that while a few of the students seemed to want to know the trees, most were bored—or worse, annoyed—by my constant pestering.

I finally felt compelled to pull our van over in a large clearing, at the high point of that day’s drive. The spot is known as Railroad Saddle, and is the hydrologic divide between Boulder Creek to the north and Lost Creek to the south. It is a broad, open, and relatively flat divide, offering few clues as to its legal and ecological significance.

But it is significant. Boulder Creek flows north and east about twenty miles to the Little Salmon River, which continues north until it meets the main stem of the Salmon River at the small town of Riggins, Idaho. At this point, the Salmon has mostly completed its unencumbered journey across Idaho. From Riggins, it continues north and then west before finally joining with the Snake River on the Idaho-Oregon border.

Precipitation falling south of Railroad Saddle follows a different path, flowing into the East Fork of Lost Creek. The East Fork flows about eight miles before joining with Lost Creek itself, a mile or so upstream of the Lost Valley Reservoir. After pausing a bit in the reservoir—filled with algae, surrounded by cows and overgrazed riparian areas, off-road vehicle trails, and paradoxically, a colony of the threatened Northern Idaho Ground Squirrel—Lost Creek continues on another ten miles to the West Fork of the Weiser River. This becomes the Weiser River, and then after flowing southwest for quite a while, eventually also meets the Snake River at the town of Weiser, Idaho, also on the Idaho-Oregon border.

Although both Boulder Creek and Lost Creek are part of the larger Snake River watershed, they differ in meaningful ways. The divide is open and flat enough that you can look each direction and see how the vegetative communities change, from the thicker, wetter, Douglas fir dominated forests in the mostly north-facing Boulder Creek drainage to the more open, drier, Ponderosa Pine forests on Lost Creek. Because we had spent the morning with the New Meadows District Ranger, we also knew that as we traveled from Boulder Creek into Lost Creek, we’d start seeing more cows and more evidence of unauthorized off-road vehicle use.

But it is what we cannot see that might matter more, particularly from a legal perspective. Boulder Creek is part of the Salmon River watershed, famous for containing the largest area of contiguous wilderness in the continental United States—the Frank Church River of No Return Wilderness. Although the Frank Church gets the most press, the Salmon River watershed is also home to the Gospel Hump Wilderness and millions of acres of National Forest. It is a fairly pristine watershed, as they go in the contemporary West, and between Railroad Saddle and the confluence of the Salmon and Snake Rivers, there are no dams, just as there are no dams on the entire Salmon River itself.

The Weiser River, and thus Lost Creek that flows into it, are farther upstream in the Snake River watershed. Lost Creek has its own dam, just a few miles from where we stand on Railroad Divide. But much more significant, immediately after flowing into the Snake River, the Weiser River water enters Brownlee Reservoir and the slack water of Brownlee Dam. Below Brownlee, it becomes the slack water of Oxbow Dam, and then the slack water of Hells Canyon Dam, a 330-feet tall concrete monolith standing at the head of Hells Canyon.

Together, these three dams—the Hells Canyon Complex, owned and operated by Idaho Power—are a complete barrier to fish passage, and the thousands of miles of streams that were historic spawning grounds for migrating salmon and steelhead.

This is what we cannot see, standing on Railroad Divide. Despite having to endure the eight dams on the Columbia and Lower Snake rivers on their journeys to and from the Pacific, salmon and steelhead continue to survive, and on occasion thrive, in the watershed to our north. But there are no migrating salmon or steelhead in the watershed just a few feet to our south.

The law means two very different things in these few feet of space we occupy on Railroad Divide, some of us standing in salmon habitat, some of us not. And we can see those differences on the ground, and in the proposals for landscape restoration we discussed in the morning and are visiting in the afternoon. The hours we spent seeking out culverts—both old and new—would have been largely meaningless just a hundred yards to our south. And the cows and off-road vehicles we will soon see would be much more meaningful—as significant as they already are—just a hundred yards to our north.

All of these subtle, meaningful things come together in this one place, as law on the ground. During this day, we have seen human uses on the landscape: sheep and old timber harvests and camping areas complete with 1950s pit toilets. We have seen the different trees, the different slopes and mountains and streams. And we have talked and thought and seen the effects of law. And so concluding my Railroad Divide soliloquy, I tell my students that it is my belief—and the raison d’être of the class—that you can only understand how law works, and why, when you understand the natural history of a place, when you know the people who live there and what they care about, and when you have walked the landscape and felt the rocks beneath your feet, waded the streams, and maybe crawled through the culverts.

And when you know the trees.

Railroad Divide, as a place, demonstrates how understanding specific laws, or particular legal or policy decisions, requires moving beyond text and into the forests. Understanding place in a broader sense is at once as simple as thinking about how water flows across the ground, and as complex as all of the constellations of legal, cultural, social, and physical landscapes through which that water might pass. An intricate understanding of people and landscapes, and of the unique cultural and social histories they developed on those landscapes, similarly requires exploring the streams and forests, meeting the people, and thinking about how legal, social, and cultural relationships work themselves out on the ground.

September Professor's Corner

It's time for this month's Professor's Corner, brought to you by the ABA Real Property Trust and Estate Law Section.  This month will be a little different because we are switching from audio only calls to webinars.   

Wednesday, September 11, 2013

12:30pm Eastern/11:30 am Central

Register online at http://ambar.org/professorscorner

September’s Program:  “Implications of Same-Sex Marriage for Real Estate and Trust/Estates Practitioners”

Either by court decree, legislative action, or referendum, same-sex marriage is now legally sanctioned in 13 states and the District of Columbia.  Thirty percent of American citizens now live in same-sex marriage jurisdictions.  Demographic trends suggest these numbers will likely increase in the years ahead.

The availability (or unavailability) of same-sex marriage presents challenges for lawyers handling real estate transactions and estate and tax planning for same-sex couples.  September’s Professors’ Corner webinar features two outstanding and highly-regarded experts to address these challenges.

Professor Patricia Cain, Santa Clara University School of Law.  Professor Cain is a national expert in federal tax law and sexuality and the law.  She previously taught for 17 years at the University of Texas and for 16 years at the University of Iowa, where she held the Aliber Family Chair in Law and also served as Interim Provost and later Vice Provost.  She has taught at Santa Clara since 2007.  Her area of specialization is taxation and estate planning for same-sex couples.  She is a Fellow of the American College of Trust and Estate Counsel, and is a frequent lecturer on tax and estate planning for same-sex couples at state and national CLE programs.

Tamara E. Kolz Griffin, Associate Director of the Estate Planning Clinic, Harvard Law School Legal Services Center.  Griffin received her law degree from Harvard and a LL.M. in Taxation from Boston University.  At Harvard, she teaches a seminar on estate planning and supervises clinical students in the areas of estate planning, permanency planning and probate matters.  She was previously a partner in the Private Wealth Services Section of the Boston office of Holland & Knight, LLP, and still maintains a private practice serving clients with estate planning needs.  She is a Fellow of the American College of Trust and Estate Counsel, and has given numerous presentations to national, state and local groups on matters related to same-sex estate planning.

Register for this FREE program at http://ambar.org/professorscorner and join us on Wednesday, September 11!

 I'll be hosting the call.  I hope you can join us!

Tanya Marsh

 

Howdy from Old Savannah!

Many many thanks to Steve, Ben, Tanya and Mark for having me.  As Steve said, a few familiar names to this blog set out on a wild excusion this past year by signing on as the innaugeral faculty at the Savannah Law School.  So what could Savannah Law School offer that would make it worth a move?    I'm going to pitch you five reasons why you'll want to make Savannah your home too -- or at least make you want to stop by for a visit. 

Young Rock Star Faculty and Amazing Staff (myself excluded from the commentary).   Have you ever tried to navagate an 18 person bicycle through an ancient city with your faculty and staff on board -- that's the kind of faculty and staff we have at Savannah Law School.   The faculty and staff I have joined make teaching law sooooooo much fun.   I have always had fun teaching law.  But joining these highly competent, extremely thoughtful, and engaging people have made teaching so much fun this year. So Caprice, Elizabeth, Kelly, Kellyn, Belinda, Montre, Ray and Rose Anne --you rock!

The Building.    Our building is a rennovation of a 1790's era hospital -- the largest rennovation in Savannah in the past forty years.   Listen to the date again -- 1790's.   The depiction above shows the charm that the building will hold for sure, but like so many things, there is more than meets the eye.  There are tunnels under the building where people who succumbed to yellow fever in the 18th and 19th century were transported out of the city. And across the street is one of the best parks (Forsythe Park) anywhere. The building (they say) is haunted -- which in itself makes this the most unique law school in the country.  This building is just waiting for Al Brophy to begin what I am sure will be an Emmy Award winning show on Bravo -- Monument Hunters.  If you believe esthetics are important to education (which is a hard pitch given the plethera of neo-soviet style 1950's bomb shelters canvassing American colleges today), then Savannah might be the right place for you.  

The Students.  Our students have been awesome.   The students are highly talented, multi-versed and, like their faculty, adventurers.  They are kind, endearing and not without a little bit of pizzazz. 

Savannah Itself.  Savannah is one of the oldest cities in the U.S.   Steeped in history and covered in spanish moss, Savannah is the crown jewell of the Southeast (all due respect to our Brethren in Charleston and New Orleans).    But Savannah has more than just history.  There is SCAD.  There is Tybee Beach (12 minutes from my house). There is the Port. There are ghost tours everywhere.   And the food is amazing.  

The Tree.  Last but certainly not least, nestled right outside the building is the Candler Oak, the oldest Oak Tree in the State of Georgia. The stories the tree could tell would be amazing.  

Later this week I will take some picutres of the inside of the new rennocation and tell you more about this awesome building.  

Later

Marc 

 

 

Testimonial to Pat Randolph

Since I know that not all Property Profs also subscribe to the DIRT listserv (although you should), I wanted to share that fellow Property Prof and founder of DIRT, Professor Patrick Randolph of University of Missouri at Kansas City, passed away on October 12th.  Pat Randolph has had an enormous impact on property professors and real estate lawyers across the country for decades. 

Although I did not know Pat Randolph well, I've seen him at least once a year, usually twice a year, at meetings of the American Bar Association Real Property, Trust and Estate Law Section.  He was always warm, funny, and kind to me.  As his constant presence at ABA meetings demonstrates, Pat worked hard to create and maintain connections between academia and the practicing bar.  The DIRT listserv is one example of those efforts.  He will be missed.

Here's a little more detail about Pat's contributions to the academy and practice, courtesy of his friend and colleague, Professor Roger Bernhardt of Golden Gate University:

It is not easy to adequately describe Pat's enormous contributions to legal education, real estate law and the legal community. Dirt arose as an offshoot of the ABA's Quarterly Development Report, which Pat assembled and provided to us for years, and it was the best way I knew of keeping up with developments outside my turf.  Later, when Pat got Dirt underway, it was the Daily Developments' fully briefed and thoughtfully analyzed cases that he provided for us almost every day of the year - that quickly became our bread and butter source of information.  I cannot estimate how much discipline and how many hours that Pat had to donate to keep Dirt vibrant for so many years.

Pat also sat on the Executive Committee of the Real Property Probate & Trust Section of the ABA, founded a Legal Education Section there, and pried loose a Real Estate Transactions Section out of the AALS Property Section. He was at the same time going around the country giving his "Top Ten" talks to numerous bar groups, as well as being an entertaining speaker at frequent panels for the ABA, ACMA, ACREL, and PLI.  On top of all that Pat wrote Friedman on Leases and played a pioneering role in starting a real estate legal system in China, constantly going back and forth there and accommodating their students in his house in Kansas City) and writing books and journals on it.

What I particularly valued most of Pat's many activities was his effort to bridge the gap between law school academics and the practicing real estate bar. Before Pat, property professors wanted nothing to do with real estate practice, and lawyers typically couldn't even remember the name of who taught the course to them in law school.     Pat got the two groups interacting with each other, for which I am truly grateful.

 

Tanya Marsh

"Property Law" at law school

I didn't take a course in "Property" in my New Zealand LLB; rather, I took courses in "Land Law" and "Equity and Succession".  Some thoughts:

* The basis of Land Law was the Torrens system and issues around indefeasibility, though of course estates in land, the relationships of landlord/tenant and mortgagor/mortgagee, easements, adverse possession, etc were part of the paper.

* Equity and Succession covered trusts, wills, and equitable jurisdiction (though in NZ, common law and equity are in a single court system - and some would say are "fused", at least to some extent).  This also considered realty vs personalty.

* Personal property and intellectual property were generally part of optional courses.

What this means is that the rule against perpetuities was part of Equity, rather than "Property" (and in New Zealand we have a Perpetuties Act, which generally makes things much easier).  It seems to be an obsession of US teachers (and students) of "Property"!

The failing of this system, however, was the lack of an overview of "Property" as a whole.  It is one thing to learn about land registration, estates in land, trusts, and so on - but quite another to miss out on "what is property?" (particularly given my earlier comments on the lack of graduate law courses in property).  On the other hand, that has had the benefit of discovering Rose, Heller, Gray, Merrill and Smith by reading them, rather than being taught them - which might be the best way to learn.

But what do the Americans think - is the rule against perpetuities here to stay in the first-year Property course?  Does it belong somewhere else? Will the first-year Property course itself remain in its current (varied) forms?

Thomas Gibbons

Reflections on David Segal's Latest NYT Article

As indicated by Steve’s ridiculously kind post below, I visited the University of Kentucky last Friday.  (Thanks for the warm hospitality!)  I drove from Winston-Salem to Lexington, and stopped, as I often do, at libraries and cemeteries of interest.  Some of my “people” were in Bourbon County, Kentucky for a few decades in the late 1700s and early 1800s, so I enjoyed visiting the Cane Ridge Meeting House and the John Fox, Jr. Memorial Library in Paris to learn more about them.  My genealogy research often informs my understanding of property law, so I was fascinated to discover details regarding my ancestors’ land holdings in Kentucky, including deeds from Patrick Henry, as governor of Virginia, to my ancestor Leonard Hall, and documents relating to the probate of Leonard’s will and the distribution of that land between his ten children.  To understand these transactions and their context, I had to spend a little time reading up on the legal and popular history of Kentucky and Virginia.

So, steeped in this brief but illuminating study of early American property law, I returned home to read this Sunday’s New York Times and the latest article by David Segal.  In some ways, I am the poster child for the reforms that Mr. Segal advocates.  I joined the academy after practicing commercial real estate law for ten years.  For five of those years, I taught business drafting as an adjunct.  My scholarship is far more practical than theoretical (and thus is rarely cited).  When I ran the in-house legal department at a real estate developer, I hired and trained attorneys fresh from law school.  You won’t find a truer believer that transactional law and skills deserve a more prominent place in the law school curriculum.  That being said, I think that Mr. Segal view of law school is desperately wrong in many respects.

Mr. Segal makes several statements highly critical of the first year curriculum.  For example: “Law schools have long emphasized the theoretical over the useful, with classes that are often overstuffed with antiquated distinctions, like the variety of property law in post-feudal England.”  He does make an accurate if clever observation: “Here is what students will rarely encounter in Contracts: actual contracts, the sort that lawyers need to draft and file.”  (Question:  how many contracts get “filed”??)  And this so clever it is untrue turn of phrase:  “To succeed in this environment, graduates will need … to know less about Contracts and more about contracts.”  (Mr. Segal makes a fair number of factual and logical errors in his article, but those are fairly obvious to anyone who has ever gone to law school and are discussed elsewhere in the legal blogosphere, so I won’t belabor those points.)

So after spending my weekend as I did, my critique of Mr. Segal’s view is as follows.  Reading Leonard Hall’s 1791 deed makes me a better commercial real estate lawyer.  Struggling with the history of property law in post-feudal England (which is an odd description, by the way) makes me a better commercial real estate lawyer.  Taking the classic, Harvard Contracts (big C) class made me a better commercial real estate lawyer.  I am a better commercial real estate attorney because I have a deep and rich understanding of the common law of property and contracts, and the legal history of the United States and England.  I draw upon this reservoir to make creative legal arguments, to help my clients understand the boundaries of the law, and help them maneuver within it.  For example, I have worked with some skilled and experienced paralegals during my career.  But paralegals are not the same as lawyers.  I would not hire even an experienced paralegal to do the same work that I would hire a young lawyer to do.  The central reason is that paralegals understand contracts, but they do not understand Contracts.

As a lawyer, I understand both.  Yes, I can draft contracts.  And yes, I learned my drafting skills on the job, not in law school.  But frankly, the idea that there are “skills” classes that will teach law students everything they need to know in order to practice law is ludicrous.  That world has never existed and becomes increasingly unrealistic as the law becomes simultaneously more specialized and broader.  I was a fairly sophisticated corporate and real estate lawyer for a decade and I can’t answer the question that Mr. Connolly asked his new associates in the beginning of Mr. Segal’s article.  But hey, give me a few hours and I’ll figure it out.  See, that’s the point.  Law school teaches you HOW to be a lawyer, which includes the ability to figure out answers to questions that we haven’t even asked yet. 

There are many aspects of the law school experience that could be improved.  But if the critics of law schools are interested in real reform, then we should engage in a discussion of what works and what doesn’t.  And I, as an advocate for increasing the emphasis on transactional skills and drafting, will continue to argue that a strong theoretical and historical first year curriculum needs to remain the foundation of American legal education.

Tanya Marsh

Case Western Students Smack Property Fraudsters (Civilly)

Congrats to students from Case Western's Milton A. Kramer Law Clinic Center, who successfully sued a fraudulent home repair financing company preying on Cleveland homeowners, obtaining a whopping $1.1M in damages.

According the Cleveland Plain-Dealer,

The verdict itself was unusual -- a Cleveland family winning $1.1 million after they were ripped off in a home-repair and financing scheme.

But if you consider who handled the case  --  two law students -- it was almost unheard of.

Now, the reality is that they'll be lucky to collect any of it, since the defendant is now out of business.  But, at the very least, that verdict gives predatory and fraudulent financing companies a good reason to hesitate before they go looking for victims in Cleveland.  There's real (albeit limited) value in that.  And that's enough. 

Good work, Case Western students!

Mark A. Edwards

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Davidson from Colorado to Fordham

As a Fordham alum, I'm delighted that my good friend Nestor Davidson is joining the faculty at Fordham from the University of Colorado at Boulder.

Ben Barros

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Kelly from Baltimore to Notre Dame

PropertyProf and clincian James J. Kelly, Jr. will be moving from Baltimore to Notre Dame, after a visit this spring at Washington & Lee.  At Notre Dame, Jim will develop a new community development clinic.  I've been a longtime admirer of Jim's work, and this is a great pick up for Notre Dame.

Ben Barros

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Unsolicited Advice for Candidates Heading to DC

A year ago at this time, I was stressing over my impending speed-dating exercise to the Wardman.  This year, I’m writing a midterm for my Real Estate Transactions students.  Take heart, candidates!

I thought I’d take a brief break from property-related subjects to give some unsolicited advice to candidates who are heading to DC for their own speed-dating exercise in a few short weeks.  I’m no expert, and I’m not on my school’s appointments committee.  I’m just someone who was lucky enough to emerge from last year’s process with a job.  So take this advice with whatever grains of salt you feel are appropriate.

[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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Social Media for Property Profs

I'm wondering what kind of social media my fellow property profs use for professional and networking purposes.  I taught undergrad business students last year and we had interesting conversations about their relationship with social media as students and how that would change when they entered the "real" world.  I suspect that the norms that I'm used to as a practitioner are different than the norms in the professional academic world. 

1.  Blogs.  This one is easy since this is, obviously, a blog.  My experience is that blogs are significantly more prevalent in academic circles.  Practitioners don't seem to use them.  I think they're missing out.

2.  Facebook.  When I asked my undergrads how many of them used Facebook, nearly every hand in the room went up.  We talked about their criteria for "friending" and it usually translated to "someone I met at a party once."  One senior had 1000+ "friends."  I, on the other hand, have pretty strict rules about Facebook.  I'm "friends" with my family and actual friends, but not "work friends."  Definitely not clients.  Or students.  I understand that 250-500 million people are on Facebook and it has its place, but I have a hard time imagining how it can be used in a professional context.  

3.  Linked In.  I am a big fan of Linked In, which is much smaller but basically the equivalent of Facebook in the professional world.  I've found it to be very useful to smooth initial introductions to people I'd like to talk to as well as keep those in my rolodex updated on my professional moves.  I have linked with a number of my former students on Linked In and some of them have told me that it helped them find jobs.  Besides helping our students make professional connections, Linked In also has great promise in bridging a gap between academics and practitioners, allowing us to share info with one another.  Any property profs who are members, I'd love to link with you!

4.  Twitter.  For some reason, the accounting profession is in love with Twitter.  Beyond that, it seems to be populated by Ashton Kutcher and Demi Moore fans.  I'm not sure legal academics can do too much with 140-character tweets.

What do you think?  Are legal academics using social media effectively?  Could we do more to use these tools to collaborate and create virtual communities with our colleagues across the country and around the world?  What else could we try?

Tanya Marsh

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Treanor from Fordham to Georgetown

As Dan Filler reports, Bill Treanor is leaving his post as Dean of Fordham Law School to take up the position of Dean of Georgetown Law.  As many readers know, Bill is a noted legal historian, and has written the authoritative histories of the Just Compensation Clause.  He was also my professor for first-year Property, Land Use, and two independent studies on takings issues.  This is a great appointment for Georgetown, and a big loss for Fordham.

Ben Barros

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Measuring Impact of Property Scholars

A few weeks ago I posted Brian Leiter's list of most-cited property scholars.  As Nicholas Blomley and I discussed in the comments to that post, Professor Leiter's list is parochial by design:  it includes only professors at US law schools.  It therefore excludes some scholars who have had a large impact on U.S. property scholarship, such as Hanoch Dagan (because he is not at a U.S. law school), or Bill Fischel (because his appointment is in economics).  Because the citation study is done using Westlaw's JLR database, the study also obviously focuses on impact on U.S. legal scholars, and excludes property scholars with high impact in other disciplines or in other countries.  All of this got me thinking about the following questions:

(1) Using Professor Leiter's methodology, are there any U.S. legal scholars who were missed?  The study measures journal citations from the past five years, so it captures the people who are most cited in recent scholarship, not the people who have the most citations overall.  I think that Patty Salkin would make the list.  Are there others?

(2) Sticking only with the JLR database, and therefore impact on U.S. property scholarship, but including academics from other disciplines and from non-U.S. law schools, who else might have had a large impact on U.S. property scholarship?  I just did a quick search on Elinor Ostrom, who had quite a few hits but not as many as I would have expected given the importance of her work.

(3) Widening the scope even further, would it be possible to measure the highest impact property scholars worldwide?  What databases could be used?

(4) Without strict reference to citation-based impact measures, who are the most important property scholars in non-U.S. law schools and in disciplines other than law?

Any thoughts on any of these questions would be very welcome.

Ben Barros

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Most Cited Property Scholars

Brian Leiter has posted the most recent iteration of his scholarly impact study, which includes list of the most cited Property scholars.  Professor Leiter provides a good amount of detail on his methodology, but the most important thing to note is that this is a study of citations within the last five years, not overall citation.

Property

Rank	Name	School	Total Articles Citing Name	Age in 2010
1	Robert Ellickson	Yale University	810	69
2	Carol Rose	University of Arizona	790	70
3	Michael Heller	Columbia University	570	48
4	Joseph William Singer	Harvard University	500	56
5	Henry Smith	Harvard University	370	45
	Stewart Sterk	Cardozo Law School/Yeshiva University	370	58
7	Vicki Been	New York University	310	54
8	Gregory S. Alexander	Cornell University	290	62
	Lee Fennell	University of Chicago	290	44
	Lior Strahilevitz	University of Chicago	290	37
	Runner-up for the top ten
	David Callies	University of Hawaii	260	67
	Nicole Stelle Garnett	University of Notre Dame	250	40
	Eduardo Penalver	Cornell University	200	37
	Michael Schill	University of Chicago	190	52
	Steven Eagle	George Mason University	180	65
	Highly Cited Scholars Whose Cites Are Not Exclusively in This Area
	Thomas Merrill	Columbia University	1400	61
	Margaret Jane Radin	University of Michigan	860	69
	Gideon Parchomovsky	University of Pennnsylvania (half-time)	530	42
	James Krier	University of Michigan	460	71
	Abraham Bell	University of San Diego (half-time)	270	42

Ben Barros

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Legal Education and the Housing Bubble

Over at the Conglomerate Blog, Christine Hurt (Illinois) has an interesting post comparing law school debt to the sub-prime mortgage market.  Here's a taste:

For a couple of decades now (and until a few years ago), the conventional wisdom was that real estate would always rise in value and that the world would always need lawyers.  Home ownership at whatever cost, particularly with tax-deductible interest rates, was better than alternatives such as renting; financing a law degree with student loans, some of which was low-interest and tax-deductible, was an equally good investment given the value of the law degree.  Just as something about home ownership seemed intrinsically good, so did getting a law degree, from any law school. . . .  Anyway, more and larger houses were built; more and larger law schools were built.  Then, as if on a dime, the world changed . . . .

This post was included in a flurry of recent posting at the Conglomerate about the future of lawyering and legal education.  Interesting stuff!

Mike Kent

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One Candidate's Experience in the AALS Hiring Process

Thanks Ben for the re-introduction.  I’m looking forward to blogging about my efforts to prepare for my first year of teaching Property and Real Estate Transactions as well as other substantive topics.

But first, I thought I’d share a few impressions about the AALS faculty hiring process, assumptions, and reality.  (after the jump)

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Testing Theory on Property Exams

Does anyone offer a "pure" theoretical question on their property exam.  This semester I assigned 88 pages out of Commodity and Propriety to force students to undertake careful reading in a different context other than cases.   So we have weaved in through the semester this theme as it has been appropriate.  Then came the question, how was I going to test this material.  

One of my divinity school professors would give ten theoretical questions at the beginning of the semester, of which four would be on the exam. I decided to use this trick and give my students two questions in advance of which one of them will be on their final examination. The trick is that they don't know which one.  The other trick is that the exam is a word limit exam, and they do not know the word limits prior to the exam.  My rationale is that this material is such that I just want their knowledge to be expanded.  So if they are caused to think about the material in preparation of answering a question on the exam, they at least have been exposed to the material as more than an in class anecdote or a piece of nice trivia.  From the grading perspective, I hope that this causes better answers than if the students were presented the material and asked to create a thoughtful answer in less than four hours.  Since I have distributed the questions in advance, I can go ahead and post them here as well.  

Possibility 1

Alexander writes: “Commodification had ambiguous implications for the Rule [against perpetuities].”  On the one hand, it made sense to conclude that the Rule was consonant with a commodified conception of land, insofar as it made land more readily available to creditors.  On the other hand, the commodified conception of property was not strictly an economic idea; more fundamentally, it was part of a broader social vision.” Is the modern approach to the Rule Against Perpetuities a greater reflection of the economic nature of property or the social ordering aspect of property?  

Possibility 2

Alexander describes the tension of American civic republicanism and English common law institutions in the context of time and history. Alexander writes: “American republican lawyers, including not only Jefferson but virtually everyone who wrote on the subject of Property, answered with a historical understanding of property and individual freedom.  Individual autonomy, they said, was secured by individual property rights because the meaning of individual liberation was negatively framed as the repudiation of ‘feudal tyranny’ itself serving as the central metaphor for domination and hierarchy. So long as the meanings of individual autonomy and property and their relation to each other were articulated in terms of a negation, the dilemmas of individualized property rights were avoided. … History (particularly, the feudal past) was a trope by which property and human liberation were signified, a symbol for the past that Americans were transcending.”    Explain the Johnson v. M’instosh opinion as either a confirmation or a repudiation of this American Republican Vision. 

Does anyone do anything similar?

Marc