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. 

Roman Property Law Comes Mainstream!

There’s a song in Fiddler on the Roof that begins, “Wonder of wonders, miracle of miracles.” That’s how I felt on May 26 when the word usucapion was called out at the Scripps National Spelling Bee.

U-S-U-C-A-P-I-O-N

Holy bovem, Batman! Roman property law has made its way into popular culture! Who saw that coming? Certainly not the hundreds of students I have taught at Tulane who generally groan when I discuss the Corpus Juris Civilis. Hell, I never thought that Roman modes of acquiring ownership through possession would make it to the big time, but last Thursday it happened. Roman property law was front and center. And on ESPN, no less!

As a person who writes in comparative property law and thus manages to make generally old doctrines that date back to the 1200s even older by talking about their Roman roots, I felt like this when I heard the word called out. When I saw Twitter posting after Twitter posting on the topic, I started singing "I'm so excited."  (My apologies to those of you who were also staying at the Hawthorn Suites in Champaign, Illinois and got stuck hearing my outburst.)  

It was all pretty darn cool.

Unfortunately Snehaa Ganesh Kumar misspelled usucapion (she spelled it usicapion, which is super close, but the National Spelling Bee is way more serious than horseshoes or hand grenades). That’s okay. You are still a rock star in my book, Snehaa! In fact, your misspelling of the word brought more light to the ancient Roman concept, because let’s face it, who remembers the words the spelling bee contestants spell correctly?

Now that we can all spell usucapion, it is worth talking about what it means. Usucapio in Roman law was the idea that possession of a corporeal thing for the requisite period of time could ripen in to dominium (full ownership) of the thing. The need for some means of acquiring ownership through possession arose in Roman law because of the strictness and inconvenience in how property, and particularly land, was conveyed. Usucapio, then, provided a private method of ensuring the transfer of ownership of land, even when there was a defect in the title.

Usucapio applied on to Roman citizens, though eventually a similar concept, prœscriptio, was developed for foreigners to acquire property. To acquire ownership through usucapio, one had to be in good faith (bona fiedes) and have a lawful origin for claiming ownership (iustus titulus). Property that was stolen could not be acquired through usucapio. Similarly, violence could not be used to acquire property via usucapio. Initially, the period of possession required for usucapion was only two years for immovable property like land, and one year for movable property. Eventually, though, Justinian altered the time periods to require ten years of possession if the true owner of the property as present, and twenty years of possession if the true owner was absent.

Usucapion, as is evident by now, is the analog for our modern doctrine of adverse possession. My guess is that most people won’t introduce usucapion into their 1L property classes. Having introduced the concept to my 1Ls before, my experience is that it doesn’t go over as well in practice as I think it will, but maybe that’s just me. Suffice it to say, I’ve never had a student say, “Wow, that’s so cool. Will you teach us more Roman law, please?” But, in thinking about modern adverse possession law, it is always helpful to remember the original purpose and application of the Roman equivalent. I know of no state in the United States that requires more time of possession when the true owner is away from his property, but if a goal adverse possession is trying to achieve is to put the true owner on notice that someone has a competing claim for her land, should we give the true owner more time when she is away? Or does our purpose of keeping land in commerce trump so that the reverse should be true? Should good faith matter? Lots of jurisdictions believe it does. Were the Romans right on that point? All great questions to think about as we continue to ponder the doctrine of adverse possession.

So thank you Scripps Spelling Bee and Snehaa for reminding us about the ancient origins of the modern doctrine. And a big thanks for making Roman law cool to talk about, even if only for a passing moment.

New Report Released by Seattle Law Homeless Rights Project

(Photo Credit: Rawstory.com)

The good people over at the Homeless Rights Advocacy Project (housed at the Seattle University School of Law) recently produced a series of briefs on various legal and policy issues relating to homelessness.  These reports will certainly be of interest to those teaching property (particularly with an emphasis on social policy and housing). Click here to access the briefs. Cribbing from the Project's release page:

The new reports examine the impacts of increasingly popular laws and policies that criminalize homelessness, such as prohibitions on living in vehicles, sweeps of tent encampments, pet ownership standards, and barriers to access at emergency shelters.

"Our research in 2015 started an important conversation, both locally and nationally, about treating people with compassion and fairness under the law," said Professor Sara Rankin, HRAP's faculty director. "These new reports take that conversation to the next level."

HRAP students conducted extensive legal research and analysis to complete the briefs, conducting interviews with a wide range of experts (including people experiencing homelessness); surveying municipal, state, and federal laws; and reviewing legal standards set by previous court decisions.

"We found that common homelessness myths are refuted by statistics, experience, case law, and common sense," said Justin Olson, a third-year law student. "These are the issues that people experiencing homelessness struggle with every day."

"The reaction by many cities to visible poverty has been to try to make it invisible using methods like homeless encampment sweeps," said Samir Junejo, also a third-year law student. "However, it's clear that we cannot sweep the problem of homelessness under a rug and hope it goes away."

Prejudice and unconstitutional discrimination against the visibly poor continues, Professor Rankin said. The new reports identify specific common problems and offer effective, legally sound alternatives.

Key findings of the 2016 reports:

• Nearly one-third of Washington cities surveyed ban people from living in their vehicles, even temporarily. Seattle has the highest number of ordinances against vehicle residency (20). Ordinances in Tacoma, Aberdeen, and Longview likely violate the U.S. Constitution.
• Business improvement districts can function as quasi-governmental agencies, regulating public space in ways that can unfairly target the visibly poor. The Metropolitan Improvement District in Seattle, for example, conducted 22,843 trespass and wake-up visits from 2014-15, a rate of roughly 62 interactions per day.
• The assumption that people experiencing homelessness can simply go to an emergency shelter is deeply flawed. Barriers to shelter access include lack of capacity, lack of accommodations for families, rules against unaccompanied youth, unsanitary or unsafe conditions, and sobriety requirements.
• "Sweeps" of homeless encampments are ineffective, traumatizing to residents, and potentially unconstitutional. 
• Pets contribute to the emotional well-being of people experiencing homelessness, but pet owners face constant attention, harassment, and scrutiny by both passersby and law enforcement officers. Licensing requirements, anti-tethering laws, and standards of care laws unfairly target the visibly poor. 
• Immigrants and refugees are particularly vulnerable to homelessness. Factors include economic challenges, language barriers, education barriers, housing instability, and legal status. 

(Hat tip: Sara Rankin)

Kids Learn the Darndest Things About Property Law

I am in recovery.

Recovery from spending two back-to-back weekends chaperoning eight-year-old girl sleepovers.

During the last weekend of April, I took my daughter and her Brownie Troop camping. Sure, thirteen little ones look cute standing on the dock making funny faces after fishing, but at 3pm when the heavens open and you are standing amid a rain storm with a group of screaming second graders, they are not quite as adorable. Or when 2am rolls around and the girls are like whac-a-moles—you get one in the tent in her sleeping bag and another one pops up. Again, not the precious angels shown here.

The next weekend (aka three days ago), my daughter had a sleep over to celebrate her eighth birthday. There were games, there were ice cream sundaes, there were high-pitched squeals. There was staying up until the wee hours of the morning to make sure the girls stayed down all night, and there was waking up before sunrise because, well, the girls were up and I like the downstairs of my house too much to let them have unsupervised control over it for any lengthy period of time.

While chaperoning these weekends of elementary school bliss, I realized that I could teach the better part of my 1L property class to the girls using the experiences they were having. It was a real life, in the moment type of class a la Jerry’s field class at the University of Idaho. It was, in the words of Tony the Tiger, grrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrreat.

I started at the very beginning, asking “what is property?” The girls looked at me like I was crazy, but then, so do my 1Ls when I ask the same question. Are your thoughts property? Is your persona property? Is your body property? All of these questions were dealt with during my chaperoning weekends.

8-year-old #1: (high-pitched yelp) She’s touching me! She’s touching me!
8-year-old #2: (higher-pitched yelp) She started it! She touched me first!
Me: (after drinking a sip of beer) Everyone keep your hands to yourself. Your body is yours, though we don’t want to call your body your “property” as that has negative connotations. But you have full rights to exclude everyone else from your body, unless parts of your body or organs have been removed, in which case you have no rights to them. See Moore.
8-year-olds #1 and #2: (looking at me like I have two heads) Huh?
Me: Well, you see there was a guy in California . . . . (8-year-olds run off, having forgotten what they were fighting about and now sharing the common thought that I’m nuts, not unlike my 1L property students)

Next, I taught about the Tragedy of the Commons.

Me: (putting out four large, family-sized bags of potato chips that were sufficient to feed an army) Snack time!
All 8-year-olds: (gulping down chips like they have not been fed for days) Gimme! She got more chips than I did! (munch, munch, munch) I want more! (smack, smack, smack)
Me: Sigh. (drinks longer sip of beer) I will divide the chips into even amounts for you, otherwise you will overconsume the chips out of fear that someone else will get your chips, thereby depleting all of our chips, and leaving us with no more snack time resources. This is a good time for me to tell you a story. Gather ‘round everyone for a cattle-grazing tale by a man named Garrett Hardin . . .
My 8-year-old: (whispering) Mom, please don’t embarrass me.
Me: Siiiiiigh. (opens another beer)

Then we moved into what makes up the proverbial bundle of sticks of property rights by first looking at the right to exclude.

8-year-old #1: (in a whining voice because she has a belly ache caused by overconsuming chips) She’s laying on my sleeping bag and pillow!
8-year-old #2: (in an equally whiny voice) I like yours more than mine. Let’s trade.
8-year-old #1: I want mine! Make her give me mine!
Me: Everyone has to use their own sleeping bag. No one touch other people’s stuff. Your sleeping bag is your own personal, private property so you have the ability to exclude everyone else from your sleeping bag.
8-year-old #1: (whispering in my 8-year-old’s ear) What is your mom talking about?
My 8-year-old: (opens her eyes wide, glaring at me with that “please be quiet” look) Mooooooom!

Having multiple kids sleeping in the same tent naturally leads to a discussion about the right to include.

8-year-old #1: (tears streaming down her face) They won’t (sob) let me (sob) in the tent!
Me: Everyone in the tent come out.
Three girls come out, looking sheepishly.
Me: You can’t exclude anyone from the tent. Everyone gets the right to use the tent. The tent is like a public thing or a quasi-public thing. Everyone has a right to . . .
8-year-old #1: (no longer crying) Do y’all want to go fishing?
All 8-year-olds: YAY! (they run off)
Me: Sigh. (shotgun second beer)

Fishing brings us to a lesson in the rule of capture.

8-year-old #1: I caught a fish! I caught a fish! I caught a fish! (waiving around a fishing rod with a small bass hanging on the end, still stuck on the hook)
Me: Hold still and let me take the fish off the hook. (insert mild expletives under my breath as I get stuck by the hook while removing the fish) There! (throw the fish into the bucket that is holding all of the fish)
8-year-old #2: Ooooh! I want your fish! (sticks hands in the bucket)
8-year-old #1: She’s touching my fish!
Me: Don’t bother the fish. That’s her fish because she caught it. When you capture something that is a res nullius, like a wild bass, it becomes yours under the rule of capture. The rule of capture is really fascinating because . . .
8-year-old #3: We’re catching tadpoles over here!
8-year-old #1 and 2: FUN! (recently caught fish is dropped on the ground and jumps around, finding its way back into the lake before I can grab it)

Catching tadpoles with nets allowed for a lesson in future interests and, shocking as it may be, the RAP (or at least the fundamental ideas behind the RAP).

8-year-old #1: (to 8-year-olds #2 and 3) You can use the net now, but after y’all use it, you have to give it back to me.
8-year-old #4: I want a turn!
8-year-old-#1: I gave the net to 8-year-olds #2 and 3 and then I get the net back.
8-year-old #4: (looking at me) She won’t let me have a turn!
Me: (looking at 8-year-old #1) You can’t control who uses the net that long after it’s been in your possession. You can only control the use of the net for 21 minutes after your possession of it because otherwise you would be exercising too much long-term control over the net and for the good of all of us on this camping trip, we want the net to be more transferable and usable by lots of different people so . . .
8-year-old #2: People are going hiking! Let’s go! (drops net into the lake such that I have to wade in to grab it)

Eventually, the fishing, tadpole-hunting, and hiking came to an end and we commenced roasting weenies and s’mores. I brought with us some long roasting sticks and put them out for the girls to use, which prompted a good discussion on adverse possession.

8-year-old #1: (tugging on my shirt while pointing at essentially all of the other 8-year-olds) She took my roasting stick!
Me: (thinking “why did I agree to be the Brownie Troop leader?”) Are you sure it was yours?
8-year-old #1: (confidently) Yes! (pointing aimlessly at the table behind her) I put my stick on this corner of the table three hours ago and told everyone not to touch it, but she (again, pointing at the collective group) picked it up and has been using it to roast two hot dogs and four marshmallows.
Me: (taking a deep breath) She’s been possessing the stick for a pretty long time. I think the stick is now hers. After you adversely, physically, openly possess property for a long enough period of time, that property becomes yours.
8-year-old #1: That’s not fair.
Me: I know it seems unfair, but there are a lot of reasons we say the adverse possessor gets the property. It requires you, the true owner, to pay attention to your marshmallow roasting stick instead of just leaving it, unattended on the table. It creates stability in title so 8-year-old #2 eventually can be confident the roasting stick she’s using is hers and won’t be taken away. It encourages her to use the roasting stick and develop it, shape it, bend it, into the best roasting stick she can make . . .
8-year-old #1: Chocolate!!!! (runs off when a new box of Hershey chocolate bars is opened)
Me: Sigh. (realizes beer is not strong enough so opens up flask of bourbon)

Finally, we all learned about the virtues of easements.

Me: Okay girls, everyone get in their sleeping bags and close their eyes. It’s time to go to sleep.
8-year-old #1 moves her sleeping bag to be right in the pathway I’ve created for the girls to exit the tent
Me: Put your sleeping bag back where you had it. We need to leave a pathway for folks to get out of the tent.
All 8-year-olds in unison: (in a voice that says “I’ll do anything to stay awake a little longer, even listen to your crazy lectures”) Why?
Me: Well, someone may need to potty in the middle of the night, so we need to have an easement so y’all can exit the tent. When you have an easement, you cannot block the use of that easement because . . .
All 8-year-olds: Zzzzzzzzzzzzzz.

There you have it. Property 101 through the eyes of an 8-year-old. We didn’t quite cover everything—I haven’t yet figured out how to work mortgages into the conversation—but we covered a lot. The conversations didn’t go exactly as I’ve described above. The girls were not nearly this whiney, in fact they were all actually pretty good, and while I'm not a particularly cool mom, I am a cool enough mom to not mention Garrett Hardin to my daughter’s friends. But all of the general activities described above did occur and the girls had a great time, which may be more than I can say for all of my 1Ls. Who knows, maybe they even took away a few lessons in property law.

2016 Society of American Law Teachers (SALT) Teaching Conference: Sept 30-Oct 1

Please see the attached call for panels and papers for the 2016 Society of American Law Teachers (SALT) Teaching Conference!  Proposals are due by June 15, 2016.  We look forward to seeing you in Chicago this fall!

Friday and Saturday, September 30 and October 1, 2016  

The John Marshall Law School, Chicago, Illinois

Download SALT - 2016 CFP

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.

Private property, markets, and natural resources: Lessons from Chile's water code

As part of this semester’s introduction to Environmental Law, I asked my students what “Environmental Law” means to them. The first answer was “government interference with private property rights.”

Because any resource protection or allocation regime must work in place, I spend a lot of time in all of my classes discussing the hows and whys—and benefits—of natural resource regulation in Idaho. One aspect of this discussion is always about the role of free market principles in managing the natural environment. But this aspect of the conversation seems to trend toward the abstract, without context that is meaningful for students who might have grown up in the farming, ranching, timber, and mining towns that are still home to many Idaho residents.

The first two weeks of January (both this year and last), I co-taught a course on international aspects of water resource conflicts in the Bio Bío river basin in Chile. Two things tend to surprise our students. First, new dams (including this approved project on the Rio Cuervo in northern Patagonia) are a significant part of Chile’s water resource planning, for a variety of both simple and complex reasons. And second, Chile has chosen to privatize water rights and rely on a market approach to allocating water use.

Despite being thousands of miles from home in a country most of them know very little about, this second element of Chile’s water resource regime provides context useful for my Idaho law students, many of whom innately distrust government and prefer market-based natural resource regulation.

After the Pinochet military coup in 1973, the new military dictatorship relied on a group of largely U.S.-trained economists knows as the “Chicago Boys” to implement a water code that relied almost entirely on privatization and freely-tradable water rights. Carl Bauer’s book Siren Song (and his related articles) contains an excellent overview of Chile’s water code, with Silvia Borzutzky and Elisabeth Madden (Markets Awash: The privatization of Chilean water markets, 25 J. Int. Dev. 251 (2013)) providing an update on changes since Siren Song was published in 2004.

Why is the Chile story useful for my Idaho students? Because, as you might imagine, the system hasn’t worked out as hoped. In practice, Chile’s water markets work relatively well in watersheds without competing types of uses (i.e., little or no hydropower v. irrigation conflict). And not surprisingly, the markets work relatively well when sufficient water is available for all users.

But when there is conflict, both with respect to the type of use or amount of water available, the system struggles. Part of the difficulty is due to a system that encouraged speculation, that doesn’t seem to honor priority in time, that failed to precisely define rights to water, or that made an unrealistic distinction between consumptive and non-consumptive uses. On that last point, the Chilean Supreme Court determined that a dam operator, with a “non-consumptive” right, could freely alter water flows even if the altered flows harm preexisting downstream consumptive rights holders.

This is only a simplified, incomplete introduction. But for anyone interested in property, water, or natural resources management, Chile’s story is fascinating. I recommend considering it. It relies on private property rights without adequately protecting them. It characterizes water as a public good, while allowing (until recently) private speculation and hoarding. It adopted an ‘American’ understanding of the role of the market to a greater extent than we’ve ever considered. And it provides a great case study to help think about water resource conflicts in the western United States, and the appropriate balance of market mechanisms and government regulation.

Faceoff in Dallas

Interesting conflict in Dallas between the Nasher Sculpture Center and a brand new, $200 million, 42-story residential condo tower which reflects some serious glare on the center.  Museum officials report that the garden has had to be resodded twice because of the heat of the glare, trees have been burned, and the galleries have been compromised.  Evil greedy developer versus a museum?  Except that the Museum Tower was built and is owned by the Dallas Police and Fire pension fund.

The conflict between the tower and the museum would be a fun ripped-from-the-headlines hypo to allow property students to discuss the balance between private property rights, nuisance, etc.

For more info, there is a story in the New York Times today, and a number of stories in the Dallas Morning News, including one on July 27th. 

Tanya Marsh

Introduction

Hello All,

Steve's introduction probably says it all, though it should have been "Australasian law journals (mostly NZ really)".

My recent work has appeared (or is forthcoming) in a balance of professional and academic journals - first point of comparison: New Zealand essentially doesn't have student-edited law reviews.  There are what you might call "bar journals" (mostly for the profession) and "refereed journals" (which are refereed, generally on a blind peer-review basis).  Some journals are student-edited in the sense of citation-checking, etc, but most publication decisions are made by faculty members. 

My forthcoming academic articles are on "property rights in resource consents: some thoughts from law and economics" and a "response" article on issues with remedial schemes for leaky buildings, taking into account ideas from gridlock and the role of morale in property rights.  Professional articles have been on body corporate AGM's (governance of common interest communities, sort of), and management agreements for bodies corporate (management of common interest communities, sort of).

My interest in unit titles deserves a bit of an introduction.  These are called "strata titles" in Australia, and the nearest US comparison is probably with condominiums, but NZ law has become particularly prescriptive and is probably less flexible than US law in this area.  I hesitate to use the phrase "common interest communities" because unit titles are a particular type of title/ownership/governance - very different to say a fee simple subdivision, even though in particular instances both/neither may relate to gated communities, or private infrastructure, etc.  A recent book with an NZ connection has used the term "Multi-Owned Housing", but I don't think that is quite right either, because many of the unit titles issues relate to mixed-use developments (commercial, residential, retail, etc).

I am particularly interested in the intersection (good academic word) of unit titles with administrative law, company law, and broader ideas of property theory.

Finally, my "day job" is as a director (aka partner, but we incorporated pursuant to an NZ law change) of a mid-size law firm.  My practice covers both company/commercial and property law, as well as the management and other responsibilities of being in this role. 

Also, I am guest lecturing securities law at the University of Waikato this semester.  Interestingly (by way of comparison) NZ is seeing a complete overhaul of securities law after the GFC - but property law is essentially untouched (no greater regulation of mortgagees, foreclosure, etc).

That's enough introduction for now.  Other posts will hopefully be more substantive.

Thomas Gibbons

 

The Land Grant of William M'Intosh

 

I'm teaching Johnson v. M'Intosh tomorrow, so I thought it would be fun to find the original land grant to William McIntosh.  My favorite part is how they crossed out James Madison's name at the top and handwrote in "Monroe." 

A few years ago, you had to visit the National Archives to get copies of original land grants.  Today, many are digitized and available online at the Bureau of Land Management's General Land Office website. 

You can click on the image to the right to get a larger version of the grant.  Feel free to e-mail me if you want a high resolution, full-size version.  I also have a map of Illinois from 1818, which shows that most of the state covered by the Johnson grant was not yet surveyed and open for settlement.

Tanya Marsh

 

 

 

 

 

 

 

 

 

 

 

The Steve Jobs Action Figure and White v. Samsung

 

 

We discussed the common law right of publicity today in class, particularly the 1993 9th Circuit Vanna White v. Samsung Electronics case.  If you aren't familiar with the case, Samsung had a national ad campaign which featured an image of a robot wearing a blonde wig, turning letters on a Wheel of Fortune-type board.  The campaign did not name White or Wheel of Fortune, but in the context, it is pretty clear that they meant to invoke White.  They even referred to the ad internally as the "Vanna White ad."  Underneath the image, the text read: "Longest running game show, 2012 A.D."  The class thought that bit was fairly funny.

We also discussed a ripped-from-the-headlines example of the Steve Jobs action figure.  The company "in icons" had proposed to sell the 1-foot, increadibly realistic action figure, beginning in February.  It received a cease and desist letter from Apple, threatening legal action.  After initially refusing to budge, in icons caved yesterday, announcing that out of respect for the Jobs family, it would not produce the figure.

Discussing the Jobs action figure after reading the White case was very effective, allowing us to debate drawing distinctions between property rules protecting the images of entertainment celebrities (like White) and public figures (like Jobs), the living and the dead, those who made money by selling their image, versus those who did not.  The same issues can be raised by discussing White v. Samsung and the Martin Luther King Jr. Center for Social Change case.

Tanya Marsh

Be Warned

I'm about to teach Kelo to my Property students. They'd all remember the hubbub about the case, right?  It was only a few years ago, right?  Wrong.  Many of them were in 9th grade.  I asked the class how many people remembered the case.  Only about 15% raised their hands.  Be warned.  We are old.

Ben Barros

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

Medill on Developing Professional Skills in Property

I have previously blogged about my efforts (which are hardly unusual) to integrate more lawyering skills and practical considerations into my Property course.  It is perhaps more difficult to simultaneously teach theory and practice in heavily doctrinal, common law 1L courses like Property.  However, it seems more natural for me to teach Property doctrine in a practical context since that is how I experienced the material during 11 years of practice.  For many professors who lack that background, teaching Property in an integrated way would be much more daunting.

Thankfully, Colleen Medill of the University of Nebraska College of Law (my father’s alma mater!) has come to the rescue with her new book, Developing Professional Skills: Property.  Designed as a supplement to traditional casebooks, and keyed to the major titles, Medill’s slim volume (approx. 120 pages, $25 cover price, $18 for the online version), is concise but powerful.  Ten chapters cover the topics of: finders, trespass and adverse possession, gifts, present and future interests, co-ownership relationships, landlord and tenant relationships, real estate disclosures, conveying title to real estate, easements, and takings.  Each chapter focuses on a different skill, including replying to a client e-mail, interviewing a new client, negotiation, and limited drafting.  The exercises are very focused and concise, and Medill provides checklists, forms, and questionnaires to guide inexperienced students.  The problems are designed to be very flexible.  Students can work alone or in groups, at home or in class, check each others’ work or submit to the professor for grading.

The teacher’s manual, which is nearly as long as the book itself, contains detailed information to allow professors to guide students through the activities and debrief afterwards.  Each chapter begins with a clear outline of the problem, the legal rules, the skills implemented in the exercise, the student assignment, the practice norms covered, and optional professional responsibility concepts. 

I am teaching two sections of Property beginning on January 17^th, but I spent a few hours last night tearing apart my syllabus in order to make room for Medill’s exercises.  I am planning to use nine of the ten (excluding only takings) and will supplement with two or three of my own exercises (title search, residential lease, and home purchase).  I think that I will have the students complete the problems at home when we finish each section of material, then submit to me via TWEN or e-mail, and bring a print-out to class the next day.  I will have students exchange papers within a small group and offer critiques.  Then I will walk through the main issues and show a few (anonymous) examples to the class.  We will work through the material at a slower pace if I devote this much time to the practical exercises, but I think that the students will have a deeper appreciation and understanding of the material, and hopefully will find Property to be as fascinating as I do!

Tanya Marsh

Teaching the Financial Crisis: Resources

I have referred a few times to the course that I'm teaching on the financial crisis this semester.  Several property profs have contacted me off-line for ideas about materials to use in incorporating a perspective on the financial crisis in the property class itself.  The problem with teaching the financial crisis is not that there isn't any material -- it is perhaps that there is too much material, much of it rich and detailed and difficult to adapt to a brief summary.  Here are a few ideas on resources that you may be able to use.

If you are interested in the events from May-October 2008 (the failure of Bear Sterns, the nationalization of Fannie and Freddie, the failure of Lehman, and TARP), the best option is Frontline's 1-hour show "Inside the Meltdown."  You can purchase the DVD from PBS, or watch the piece streaming on its site.  There is additional material on the site, including a timeline and uncut interviews from key players.

For a more dramatic version of the same events, you could watch HBO's adaptation of Andrew Ross Sorkin's Too Big to Fail.  The Frontline piece is much better.

If you are interested in the subprime aspects of the debacle, there are several options.  I would recommend having students read a few chapters from Alyssa Katz's Our Lot: How Real Estate Came To Own Us (particularly chapters 3, 5, and the epilogue) in conjunction with an excerpt from Michael Lewis' The Big Short, or his piece in Portfolio, which is adapted from the Big Short.  The website of the Financial Crisis Inquiry Commission also has a wealth of material, including a very good dissection of a 2006 Citigroup CDO filled with subprime mortgages originated by New Century.  The FCIC's "Story of a Security" includes all of the original documentation and most of the material is intimidating, but the overview tells the story well.  The graphics tab of the FCIC site also has some nice one-sheets near the end that help explain how CDOs work.

One final option, which again focuses on the subprime aspects of the financial crisis, is Episode 4 of Niall Ferguson's The Ascent of Money series on PBS.  Again, you can stream the films online for free.  This piece focuses on the historical evolution of the U.S. housing market since the Great Depression.  It may work well for homework in a Property class because it is accessible and provides some useful historical perspective. 

If anyone has other suggestions about materials, please share them in the comments.  In particular, the focus of my class has been very American-centric.  I would love to locate some accessible materials to help the students understand the sovereign debt crisis in Europe and other global aspects of the financial crisis.

Tanya Marsh

Genealogy and Property Law

This post is Part II in the series entitled “What Tanya Did this Summer.”  

This summer, as part of what turned out to be my ridiculously ambitious agenda, I enrolled in a 14-week online certificate program at Boston University in Genealogical Research.  I have been involved in genealogy for nearly 20 years, but I’m entirely self-taught.  So I thought this would be a good opportunity to learn research skills and methodologies from people at the top of the profession.  It was a great course, and I learned a lot, but it ended up taking much more time than I anticipated.  (Because, of course, I wanted to earn an A!)

I mention this course here because the work required me, again and again, to delve into the history of American real property law.  In doing so, I wrote notes to add to my Property lectures on topics such as women’s evolving relationship with real property under the law, and the customs of various ethnic groups in conveying their real property to children (patrilineal or by shares).  We also looked at topics that turned out to be about land use – early land development and division schemes, the development of ethnic neighborhoods, etc.  So while I thought that this summer course would be a fun diversion, it turned out in many respects to be an enrichment course for my own work in property. 

If you are interested in taking a look at property from a genealogist’s perspective, I would recommend E. Wade Hone’s Land & Property Research (Salt Lake City: Ancestry Incorporated, 1997).  The book walks through the historical background on Spanish, British, French, and Mexican possession of portions of the modern United States, the methods of property ownership under those regimes, and the records created.  Then it discusses the organization of state lands and federal lands, and the methods that the U.S. government has used to distribute land since the Revolution.  This background is incredibly helpful, particularly to understanding the historical context of some of our older property cases.  (For example, the railroad right of way abandonment cases.)

Last year, when we talked about deeds in class, I showed students a modern deed.  I’m not going to turn my Property course into a History of Property course, but next year I will also show them a 19^th century deed so they can see that the formal language really hasn’t changed all that much!  (If you want a 19th century deed too, but don't have one lying around, just click the thumbnail image above and you can download the full size image.)

Tanya Marsh

Practical Applications in Property

Last year, I taught Property for the first time.  I used the Sprankling/Coletta casebook, which I found easy to teach and my students found easy to understand.  I supplemented the casebook with materials and exercises drawn from my 10 years of real estate practice.  When I received my evaluations at the end of the semester, the students’ refrain was that they appreciated my attempt to mix doctrine, theory, and real world application.  My goal, which, based on their exam performance, I think I accomplished, was not to replace doctrine and theory with practice problems, but to use real world problems to illuminate the doctrine and help them see Property as I do – as an endlessly fascinating area of the law. 

One weakness of my approach last year was that it was fairly haphazard.  I came up with “brilliant” ideas of how to illustrate a particular principle a few days or the night before class.  I pulled forms or example documents from my library or from the Internet, and then tried at the last minute to weave those examples in to my plans for class.  As a result, I hadn’t had time to fully think about the best way to utilize those materials.

So one of my big projects this summer has been to organize and refine the exercises I used last year, and to add new exercises.  Before I teach again in the Spring, I will have an electronic casebook supplement to distribute to my class, which will have exercises for every major subject we talk about in class.  Some are simply real world hypos where the student is asked to advise a client on their legal options.  (Last year, they had several opportunities to write a short memo about a problem and e-mail it to me.  I made quick comments and handed them back.)  Many of the hypos are based on real cases, so after working through the problem, students can be told how that case was actually resolved.  Two exercises that I’m still working on, but I think are most promising, involve zoning and the sale of a home.

For the zoning exercise, students will be asked to represent a homeowner in a community with fairly restrictive zoning.  The client’s home was built prior to the zoning and therefore grandfathered in.  But sadly, there was a fire.  The client obtains a building permit and then begins to rebuild the same house.  The neighbors seek an injunction.  The students are given the relevant sections of the zoning code and asked to advise their client on the best course of action.  What can he do?  What should he do?

For the home sale exercise, they will represent a seller of a home and be asked to read and comment on a contract prepared by the buyer on a standard form.  Based on information provided to them about what their client wants to accomplish, they will be asked to assess risk and advise their client on a counteroffer.

I did two big exercises like this in class last year, one on the recording acts (which I discussed on the blog) and one involving residential leasing.  Each of the big exercises take an entire class period.  The hypos can be done outside of class.  Although it represents a significant investment of time, I think its worth it.

When I’m finished with the supplement, I’ll be happy to share it with anyone who is interested in looking at it or using some of the exercises in class.  The only catch is that you have to give me feedback to make it better!

Tanya Marsh

Welcome Newbies

It looks like all the "i's" have been dotted and all the "t's" have been crossed on this year's Hiring Report put together by Prawfsblawg.  Special congratulations are in order for all the new PropertyProfs who have landed jobs. Welcome future Jedi Masters of the Property world:

Daniel Morales (Depaul)

Justin Pidot (Denver)

Ann Tweedy (Hamline)

Uma Outka (Kansas)

Bela August Walker (Roger Williams)

Eva Subotnik (St. John's)

Deepa Varadarajan (St. John's)

Marc-Tizoc Gonzalez (St. Thomas)

Shelley Cavalieri (Toledo)

Samuel Bray (UCLA)

Betsy Baker (Vermont)

Jill Fraley (Washington & Lee)

Please let me know if I've missed anyone.

Steve Clowney

In Time for Easter: The Tragedy of the Bunnies

In my property class, we spend a couple of hours wrestling with the "Tragedy of the Commons."  In a typical year, I have my students read an excerpt from Hardin's seminal article, we go over the explanation in the Dukeminier textbook, and I pepper them with examples.  Although these standard approaches all work OK, I've found that the best way to demonstrate the concept is with a simple video game designed for high-schoolers.  

The game, called the Tragedy of the Bunnies, vividly illustrates how "The Tragedy" plays out and why private property rights can help.  The concept is simple; You're a bunny merchant and you make your living by selling bunnies to children.  Your goal is to sell an many bunnies as possible in two rounds.  In both rounds, you score points by selling the bunnies, which you do by clicking on them.

The catch is that between rounds the bunnies get frisky and their population multiplies.  If you sell them all in the first round then you'll have lots of money, but no bunnies to breed and sell in the second round.  As this is the tragedy of the commons, you're also competing against two other bunny merchants controlled by the computer. 

One final wrinkle; you can play the game in two versions.  In the "public" version of the game, the bunnies are a common resource and they all get wiped in a matter of seconds.  In the "private" version of the game, the bunnies are private property.  You can exclude other competitors from taking your bunnies and conserve them for the second round. 

I usually invite a student down to the front of the class to play both versions.  They can then explain to the class why they overused the bunnies in the first game ("Because everyone else was grabbing bunnies, I had to as well!") and how private property then saved the day.  I think it works pretty darn well.  Although the game is simple (and clearly designed to promote private property) but it's a good springboard to discussing when and why the Tragedy plays out.  Click on "Play the game" to see for yourself.

Steve Clowney.

Teaching the Rule Against Perpetuities

Over at Prawfsblawg, Dave Fagundes has a post outlining the debate over teaching the Rule Against Perpetuities.  Although the post and the comments are a thoughtful contribution to this topic, I do take issue with one small bit of Fagundes' argument.  He writes:

There are some plausible reasons to be skeptical that the RAP belongs on a modern property syllabus.  First, many states have abolished the RAP by statute, so it’s not even law in many jurisdictions.  Moreover, the RAP is complex enough that teaching it well takes, I’ve found, at least four full class-hours, and given that property is often hard enough to cover (at least if you have only four credits to do it), this time could be allocated to other issues that people may find more instinctively interesting or important. 

The notion that the RAP takes four class hours to teach needs to be challenged - it sets up a false choice between not covering the rule at all or sinking an entire week into the abyss of medieval times.  For example, here's a great post by Mary Sarah Bilder on how to teach the RAP in one hour.  The easiest way to save time on the RAP is to give students problem sets to do as homework (as opposed to doing them in-class).  The reading in the future interests section of most property textbooks is pretty light, so the additional work isn't much of a burden.   

For my part, I think teaching the Rule Against Perperuities in first year property remains important.  It conveys, like no other subject, that the law is actually quite difficult and takes a lot of work to master.  I see too many students who think that being a lawyer resembles being a elementary school librarian - you just need to mosey through the shelves, find the relevant case, and present its clear rule to the client.

Steve Clowney