“Certainly if we view the common law on the eve of reform, we see the spirit of Heath Robinson at his most extravagant. … It is a real question why nobody before Bentham was provoked, and a part of the answer is that nobody before Blackstone described the system as a whole.”
S.F.C. Milson, Historical Foundations of the Common Law xii (1969)
It is impossible to speak critically about a disorganized mess, except in one of two unsatisfying ways. One can point out a detail here or there that seems exceptionally out of joint, or one can gesture uselessly at the whole awful heap and suggest in vague terms that perhaps it ought to be scrapped and replaced with something better. Real reform requires real understanding.
The traditional organization of the first-year Property course is an affirmative obstacle to comprehension. It starts with an act of misdirection, encouraging students to think that property law is only about houses and land, please pay no attention to the vast amounts of abstract wealth sloshing through the financial system. It continues with a protracted tour of the Museum of Doctrinal Arcana, featuring such exhibits as the distinction between remainders vested subject to open and remainders vested subject to complete defeasance.
It is not that it is hard to find interesting political angles in this tangle. From “first” possession to permanent physical occupations, the use and abuse of power is everywhere in the course. A skilled teacher who wants to bring out progressive themes can do so in every class. So can a skilled teacher who wants to emphasize economic analysis, or the choice among institutions, or the long shadow of history. (Teachers gonna teach, teach, teach, teach, teach, teach.)
But the disorganized mess that is “Property” in the law-school curriculum stands equally in all of their way. It is easy to make progressive points about particular issues, and to leave students with a sense that the field as a whole is a battleground on which deep conflicts about the structure of society are fought. But when the subject itself, as students have encountered it, consists of a great mass of irrelevant detail with a few tasty sprinkles on top, there is no path from here to there for systemic reform.
To be sure, everyone of every ideological bent who tries to do something with property law runs into the same problem of pointless complexity: the subject itself sealions them into silence. The picayune classification of easements, covenants, and servitudes is equally an obstacle to economic efficiency and economic justice. But it is the progressive who thinks things are broken but fixable who has the most to lose when property is taught badly. The conservative who thinks things are fine just as they are wins by default if inertia born of ignorance prevails. It’s the dark pattern version of Chesterton’s fence: if a thing can be shrouded in enough confusion and chaos, then no one can ever understand it well enough to be allowed to change it.
Conceptual clarity is the root of true reform. So where to start? I have offered a detailed plan elsewhere, but here are the highlights.
First, the rotting real property silo is a nuisance in need of abatement. The other types of property need genuinely equal coverage. There are at least four broad classes: personal property, real property, intellectual property, and intangible property. And no, the last two are not the same: copyrights, patents, and trademarks are intellectual property, while Bitcoins, taxi franchises, and corporate shares are intangible property. These other forms of property are equally important for understanding modern society and its economy: if they are front and center too, students are better able to see how they are and how they could be.
Second, instead of delving deeply into the real-property doctrines on a given topic, a better property course would illustrate the unity and diversity of the doctrines on that topic across a wide range of types of property. Thus, rather than teaching students every variation on a real-property recording act, show them that the basic principles of recordation and notice are the same for car loans and copyrights. If you want to present the precarity of life for the poor, teach eviction, foreclosure, repossession, and garnishment together. The doctrinal boxes may be different, but they belong in the same conceptual and policy boxes.
Third, no part of the first-year Property course stands in more need of rethinking – or is more congenial to progressive concerns – than the part that deals with governmental regulation of property. Major areas of governmental control are typically ignored: public-law environmental regulations like CERCLA and architectural regulations like the ADA rarely receive coverage commensurate with their private-law cousins like nuisance. The topics that do receive detailed coverage (to the point of unteachable excess) are typically the ones that attract regulatory Supreme Court attention: the constitutionality of zoning, and especially eminent domain and regulatory takings. These are interesting and important, but their placement by themselves together (and typically at the end of the course) sets up a problematic framing, one that seems to pit distant and aloof regulators against heroic property owners.
Putting these high-drama topics together with all of the other constitutional constraints on government property regulation gives a richer and more complicated picture. Imagine a closing “property-law limits on government action” unit that also covered the public trust doctrine; the Contracts Clause, the First, Second, Third, and Fourth Amendments; the Ex Post Facto Clause, the canon against retroactivity, and the rule against reopening judgments; the Progress Clause; the Equal Protection Clause; and the Due Process Clause.
I have sometimes heard the objection that experimentation with the Property syllabus is precluded by the need to prepare students for the bar exam. It is true that the National Conference of Bar Examiners seems to regard the First Restatement as a syllabus. If they jumped off a bridge, would professors jump too? For one thing, it’s unclear why Property should be the course that knuckles under. Constitutional Law professors seem more than willing to tell the bar examiners where they can put their list of required topics, and many law schools don’t require Criminal Procedure at all.
For another thing, even within the confines of the MBE’s Real Property outline, there is much that can be done. Bar exam questions test on individual topics: putting those topics in a more coherent arrangement is an easy win. Proper abstraction is more pedagogically sound: a student who understands a general principle (e.g., proper recordation gives constructive notice to the world) is probably in a better position to apply it correctly to a real-property problem than a student who has memorized the different types of real-property recording acts. And presenting property concepts in an interesting, coherent, and engaged way is more likely to make students care enough to remember the material three years hence when they are studying for the bar exam.
This is also an outstanding time to experiment with teaching real-world property law rather than just real property law. My colleagues Jeremy Sheff, Rebecca Tushnet, Michael Grynberg, Steve Clowney and I have produced a set of freely-available materials, Open Source Property: A Free Casebook that are both easily adoptable and easily adaptable. The site includes my own “build” of the casebook from 2016, when I taught a course along these lines. My coauthors and others have put the materials together in clever and different ways. As a bonus, you’ll be saving your students hundreds of dollars in casebook costs, a small but significant example of putting progressive principles into action.
Whatever its merits as a theory of the philosophy of language, the Sapir-Whorf hypothesis is a good description of legal scholarship and pedagogy. The structure of how a subject is codified and taught constrains the imaginations of those who work with it. (Exhibit A: essentialist arguments that “property rule” injunctive remedies are logically required by the nature of the “property” right to exclude, which are no more necessarily true than the old claims that restraints on alienation were void because they were “repugnant to the fee.”) Freeing the shape of the property course from its traditional straitjacket allows students and scholars to put it to its highest and best uses.