The Property Course as Critique

Justin Desautels-Stein

I wasn’t at all sure what to do after I was first asked to teach 1L Property Law. Not only was it an unexpected addition to my courseload, my background was in legal history and critical theory on the one side and in international law on the other, and the idea of picking up a first year private law course, just a couple years before going up for tenure, seemed crazy. Some colleagues suggested a copy and paste method for teaching the course: “Just grab a syllabus from someone you respect, assign their book, and stay one or two classes ahead of the students.” At first this seemed like the way to go. It would certainly save time and allow me to focus on my tenure pieces. But once I started reading the syllabi closely, the random doctrines seemed to beg for a narrative, and as it happened, I was already at work on just such a narrative in the history of American Legal Thought.  It was a narrative that I had been developing within a broad project to revitalize the first wave of critical legal studies (circa 1975-1984). Thankfully, I had some very helpful (and certainly critical) support from veterans Kristen Carpenter and Dan Ernst, and the eventual result was a Property Law course developed out of my critical legal studies perspective on legal history. More broadly, it was this approach that also ended up working itself into what became a book, The Jurisprudence of Style (“JoS”). My explanation here about how I came to teach property “from the left” will draw heavily on that book, which is largely a history of law and political economy in the United States from a structuralist point of view.

But before getting to the course itself, let me first mention the goals that I have for the course, and that I do not mention explicitly in the classroom. First, I want students to become familiar with the role of ideology in structuring property doctrine. Second, I want them to identify certain argumentative patterns at work within these structures, and the ways those patterns act as judicial constraints. Third, I want them to see the relation between property law and the owner’s right to exclude as an unavoidable aspect of a domination-subordination relationship. What’s more, I want them to see how, in the history of Property Law, this relationship has so often been racialized.  These three goals—(1) understanding the rules and how the rules are ideologically structured, (2) understanding that within these three structures, repeating “patterns of argument” or “styles of reasoning” function as judicial constraints, and (3) understanding that there is nothing neutral or necessary about these structures and styles, and that in fact, these structures and styles define and sustain relations of domination—remain in the pedagogical background. I pursue these goals as we immerse ourselves in the cases, rather than set them up at the outset. The reason for backgrounding these goals is largely strategic: My hope is that rather than intimidate the students with a bunch of “theory” at the outset, I’ll let them “see it for themselves” in the cases. With respect to what I do announce in terms of learning outcomes, here’s a version of how I articulate it on the first day of class.

“The purpose of this course is to help you learn how to think like a lawyer, and in particular, how to think like a property lawyer.  This idea of what it means to think like a lawyer is, of course, central to the law school mission. But what does it mean? Many of us will surely disagree about how to define it, but I want to suggest that thinking like a lawyer means arguing like a lawyer, and so, if we are to enter the profession as professionals, we need to understand how to make a legal argument in the context of property law. As a result, if our goal is to leave this course knowing how to argue like a property lawyer, we require a minimum of two kinds of knowledge. (To be sure, successful property lawyers need more than these two kinds of knowledge; but with respect to knowing how to argue about property law, these two kinds of knowledge provide the baseline.) The first is familiar, and it is the kind of knowledge you expect in every course you take in the first year, and that you hope will assist you when you eventually take the bar exam: you need knowledge of property rules.  The second kind of knowledge is less familiar but no less important, and it concerns what you need to know if you are going to practice the work of litigation: you need to know how to persuasively interpret a rule to mean X instead of Y, or reason your way from one interpretation of a rule to a conclusion A rather than conclusion B. This is simply the bread and butter of good brief-writing.

“Now, to be sure, most of you have experience with legal reasoning. You see it in your other first year courses, and you practice it in your writing courses. What is distinctive about what we are doing here is that we will see the arguments repeat. The forms of legal reasoning are not random, not ad hoc. They recur, over and over, and as a result, we see these forms of reasoning or patterns of argument act as constraints on what judges can and cannot do. To say again: in this course we need to know the rules (“the black letter law”) and we need to know the reasoning (“the practice of legal argument”). Knowing the one without the other leaves you with an impoverished understanding of how property works, in practice. This is no philosophy of property law, no extended discourse on property theory. This is what we need to know if we want to think like a lawyer, like a property lawyer, in the context of a real dispute between real people.

“Let me offer a brief analogy. Imagine that rather than a course in Property Law this was a course in elementary German. Imagine next that I told the class that by the semester’s end everyone would have a working fluency in the German language. And over the next 14 weeks or so, the class learns close to 500 German terms in detail. Students master the etymology of the vocabulary, and are able to define at will the various meanings associated with the terms.  At semester’s end, say that you find yourself walking across campus only to bump into a group of native German speakers. Proud of your lexical know-how, you mention that you have recently become fluent in German. Naturally, you are then asked a question in German, and to your surprise, you are unsure of how to respond.  You recognize many of the terms, but don’t understand how those terms have been assembled or the order in which they have been broken up and put back together.  And you have no idea how to do it yourself. Your German interlocutor asks if you have studied any German grammar, or only vocabulary. You respond that you have only studied the vocabulary, and that “grammar,” or “inflections,” or whatever that means, is offered in upper level elective courses on German Theory, and that you only took the first year course. Your interlocutor politely suggests that grammar is as essential to knowing how to speak a language as is the vocabulary, and that perhaps it is a mistake to think of the grammar as “theory” or “philosophy.” It is simply basic to knowing how to speak. Similarly, the goal in this course is to give you an understanding of both property law’s vocabulary (the rules) and grammar (the patterns of argument). We need both if we are to know how to practically speak the language of property law.”

This, or something like this, usually comes across in that first day of class. In terms of how the course is put together, my approach to teaching the vocabulary and grammar of Property Law is historical. However, my syllabus does not operate along the familiar lines of an intellectual history, offering political, economic, or cultural contexts, origins, or explanations for property rules. I think that these are great approaches to teaching Property, and many leftist approaches will do just this, arguing for the necessity of understanding property in an illuminating context of market power or political history. My approach is different, however, and it is what in my work I call “structuralist legal history” (JoS, ch 3, 6), though I do not use the phrase in class, or go into legal historiography in general.  My syllabus targets the language-system of liberal legal thought, and breaks liberalism into three historical structures of argumentative practice. These are, predictably, the “classic,” “modern,” and “contemporary.” I explain that our use of history, and our need to study these classic and modern structures, is in no way a feature of an antiquarian interest in how “things used to be.”  The interest here is entirely presentist. We need to become fluent in the classic and modern structures because we have no hope in mastering our own contemporary structure of property law without them.

The first unit of the course is directed at the classic liberal structure and its way of understanding fundamental property concepts (JoS, chs 1, 4). We begin with possession, and look to John Locke’s blueprint for how to argue for the primacy of private ownership and title in places and things. We glean from this first reading two basic features in the classic structure, and a particular style in which to argue. The two features are a hard-core commitment to an idea of free competition and individual rights, and an idea about a very sharp distinction between the private domain of individual rights and market competition and the public space of the police power. The argumentative style is legal formalism (JoS, ch 6). Relying exclusively on case law ranging between the Revolution and World War I, the broad themes in this first unit on the classic liberal structure include title through possession and the right to exclude, including discussion of the basic features of the slavery system, the estates system, and adverse possession, all in the context of this classic structure. The structure is clearly ideological, with its emphasis on free competition at the expense of the police power, but what is unexpected is the repetition of formalistic legal reasoning—reasoning that takes the same form but which can lead Judges in conflicting directions. The patterns of reasoning are like a grammar: Judges have to use them if they want to make cognizable property decisions, but like any grammar, they do not determine how the Judge will come out.  This encounter with classic property rules and classic forms of reasoning about property rules often gives students the sensation that property law is just politics.  Judges seem to come out whichever they want. While I am interested in emphasizing exactly the open-textured nature of the rules, what I find it more important to underline for students is precisely the opposite: Judges cannot just come out however they want. They are deeply constrained by a style of reasoning that functions grammatically in the decision. This sense of judicial constraint, however, is only sometimes reassuring to the student—they want the constraints to be in the rules, not in the reasoning, and if the constraints are not so much in the rules, then it feels political.

This sense of the politics of law is further deepened when we shift into the second unit of the course, the “modern” structure (JoS, ch 5). In modern liberalism, the two central features of the classic style get reworked.  The heavy emphasis in classic liberalism on free competition is backgrounded in favor of a heavy emphasis on the police power, state regulation, and social interdependence. The heavy emphasis in classic liberalism on a sharp public-private distinction is softened and blurred. And whereas the classic liberal structure deployed legal formalism, modern liberalism deploys a different pattern of legal reasoning: legal functionalism (JoS, ch 6). Once again, students cannot help but sense an ideological shift here from “the right” to “the left,” or at least, to “the center-left.” These two structures of property law are unavoidably ideological. However, I do not introduce any of this by way of law review articles or book excerpts, but rely entirely on the caselaw. Once again, the interest here is to show the rules and reasoning operating together in the context of judicial decisions—how to argue like a property lawyer. We see these ideological features, as well as the constraining logic of functionalist legal reasoning, in a number of property doctrines. We study zoning, the Fair Housing Act, landlord-tenant law, servitudes, and concurrent forms of ownership, all in the context of the modern structure of property law. The approach to the grammar of functionalist legal reasoning is virtually identical with respect to what we were doing with formalism in the unit on classic liberalism.

By this time in the semester, many students are desperate to know what the “contemporary” way of thinking like a property lawyer will look like.  They are desperate for a few reasons. One is that many of them are convinced of the ideological nature of the first two structures, and they are hoping to find in the contemporary some kind of non-ideological endpoint. A second reason is that many students find the theme of exclusion, and the manner in which exclusion is so often racialized, difficult to digest in the context of what they thought was going to be a “neutral” course on the technical doctrines of property law. Thus, they are hoping that in the contemporary we have transcended the racial aspects that were so central to both of the classic and modern structures. Third, most students have some familiarity with the formalism and functionalism of legal argument from other courses, even if they didn’t have names for those patterns of argument, and so they are genuinely curious to know if there is a third and alien structure.

My approach to contemporary legal thought in property law is likely disappointing. I explain that what we will see in this final round of property cases is a whole lot of eclecticism. We will see beaten-down versions of the classic style vying with beaten-down versions of the modern style (JoS, ch 8). Occasionally we will see these two version fighting with each other in the context of a single judicial opinion, while at others we will see cases decided one after the other duplicating the contest between the classics and the moderns. What seems to unite all of it, however, is a general commitment to a vulgar pragmatism (JoS, chs 7, 9). While few of our judges seem to any longer have faith in the sole workability of the classic or modern structures, what everyone seems at peace with is the idea that it is in the debris that we can find the tools for solving our contemporary problems. We return in this unit to the themes of ownership and exclusion we met in the first unit, but now with an eye toward understanding the rules in their current doctrinal form. We study title, trespass, nuisance, pubic trust doctrine, and eminent domain, all in the context of the warring eclecticism of contemporary legal thought. And it is precisely this ability to understand the persistence of these historical structures, which are also historical ideologies, in the pragmatic back-and-forth of today’s property law, which informs what it means to think like a property lawyer today.

Or, at any rate, that’s what I’m selling. Whether students buy it is another story. I’ve noticed a few kinds of outcome, some of which I anticipated and others I didn’t.  In terms of the unanticipated outcomes, there are at least two. First, some students have a very hard time dealing with the idea that racial domination and forms of exclusion are so deeply central to the field of Property Law. As someone who thinks of himself as a critical race theorist, I am not surprised when people find it difficult to see in the constituents of their own privilege a network of unappetizing commitments.  But what I have been surprised about is the outright refusal that students sometimes express, and the willingness to actually turn the tables, accusing the course itself as racist, presumably in terms of a racism against whiteness.

A second and very different sort of outcome that I hadn’t seen coming is the following.  My syllabus covers much of what any property syllabus covers: possession, title, trespass, nuisance, zoning, servitudes, landlord-tenant law, forms of ownership, fair housing, eminent domain and takings, and the estates system. Outside of the Locke reading, the whole rest of the syllabus is caselaw.  Nevertheless, I occasionally hear that my property course doesn’t teach the rules, but is actually a philosophy course. This is a difficult objection to understand, given that all we do every day is read cases, and read cases for the rules and for how they were argued. My guess about what is happening in that student’s head that comes away feeling this way is that when property rules are taught alongside the recurring patterns of reasoning, the rules “feel” less rule-like than they do in classes where the professor is only teaching the rules, like in a bar review course. And this does make sense, that some students will feel like they didn’t get the “rules,” if what they understand by a “rule” is an idea that can simply apply itself to a concrete dispute without the assistance of any reasoning.  But I don’t teach the rules as being able to apply themselves automatically, and I doubt that many law professors do. This is, after all, a kind of hard-core formalism that is hardly as popular today as it once was.

If I didn’t expect these outcomes, and I don’t have reason by the evaluations I’ve seen to think that they happen except for in a small number of property students, there are outcomes that I was hoping for.  As I mentioned at the outset, I have three pedagogical goals for the course: (1) understanding the classic, modern, and contemporary structures and doctrines of property law, (2) understanding how legal formalism, legal functionalism, and eclectic pragmatism are repeating “styles of reasoning,” and that these styles function as judicial constraints, and (3) understanding that there is nothing neutral or necessary about the way that property law picks its winners and losers. The question of how I can know whether students have absorbed these lessons is tricky. There is, of course, the exam, the bar passage rate, the job placement rate, and other rates of completion and success.

However, to the extent we are teaching “from the left” because we are trying to mold a particular kind of legal mind, “rates” are hardly the whole picture.  I don’t know if they are even a quarter of the picture. In any case, the legal mind I am hoping to help influence, in however a minor and partial influence as it is, will look vaguely like the following.  First, it is a legal mind that has a comfortable grip on the relation between the rule of law and political ideology.  That is, we can see in this law graduate an understanding of how valuable it is to cherish and work toward a legal order that is general, neutral, and free from political bias.  And yet this same person knows how deeply the root of our legal ideology really goes. Second, it is a legal mind that understands that wherever legal ideology thrives, there are spaces for contest and change.  That is, the identification of an ideological mystification is always a moment for seizing power: it releases the law graduate from a deadened sense of law as the way it has been, the way it will always be. Third, it is a legal mind that, in coming to understand the place of ideology in the structures of property law, and in law more generally, is also a legal mind that has a sensibility for structural transformation.  That is, this is a law graduate that sees in the open-textured terrain of doctrine much more than a pragmatic rehearsal of ground-level problem-solving, but sees instead what the structures have been in order to look out at and prophesize what they might become. Fourth, it is a legal mind that has detected in the structures of legal ideology a pattern of winners and losers that is as long-running as it is unjust.  That is, this is a law graduate that has been trained as a public citizen, and that will leverage her understanding of structure and style, of freedom and constraint, of the politics of law and the law of politics, in the battle to make the world more just.

If these are at least some of the outcomes one hopes for in deciding to “teach from the left,” how do we know if we are successful?  I imagine that in the end the proof will be in the pudding: Will there be any more justice in the world than when we began?

 

Justin Desautels-Stein is Associate Professor of Law at the University of Colorado School of Law. 

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