Michelle Wilde Anderson –
I recently interviewed a man in a weakened rural town who makes sausages for a local meat packing business on the 3am shift. He told me about a homeless woman who had come to the meat shop one dark morning with blood-soaked hands. Delirious with cold and exhaustion, she had punched in the glass on an abandoned burrito shack to shelter from the cold rain overnight.
For her, housing and land still matter. The forces of weather and gravity mean that 100% of people need shelter, with a patch of dirt for it to stand on. More than ever, it seems that housing and land matter most for understanding poverty and rising inequality. An average of more than 550,000 people were homeless each night in 2017, and 6,300 people are evicted in the US every single day. I live in San Francisco, where just yesterday I passed by 40 or so tent shelters on sidewalks, plus two Lamborghinis worth at least $250,000. I’ll guess that those cars don’t spend their nights outside.
The 1L introductory Property Law course isn’t usually about how law helps protect money and drive poverty, but I think it could be. Teaching it as a class mostly centered on land helps it get there.
In his piece for 1LPE, James Grimmelman admonished that property law “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.” I sat up straight, chastened: The only time those sloshing pools of money show up in my property class is when their subprime loans end up taking people’s houses and land. (Plus a day lighting tapers with Thomas Jefferson for the love of science and the useful—and not useful but equally worthy—arts.) Besides that, I realized that I am as land-bound in my knowledge and interests as feudal England.
Grimmelman is right, and he’s smart to start his term with a classification that locates corporate shares and cryptocurrency in the property universe. But this is where my course is more unapologetically about poverty than it is about wealth, because land is most formative of American poverty—including any roads out of it. It goes without saying that the quality and context of our homes matters profoundly for our opportunities, safety, and comfort.
A lot of what used to pass for teaching about land in Property Law is, as Grimmelman put it, a “museum of doctrinal arcana,” or in Jed Purdy’s 1LPE frame, questions about “who gets the driveway.” But those two scholars—and dozens more of us—are changing how we teach. Like Purdy, I still feel duty bound to teach a few classes of Ye Olde Property Doctrine, including present and future interests. (Partly I do that because I see how many students adore it. Questions with answers!)
But a property class with its eyes on poverty is really about housing, not just land. I now spend as many classes on landlord-tenant law as I do on future interests, as many classes on foreclosures and homelessness as I do on easements. I spend as many classes on anti-density land-use controls as on the common law of covenants. Some of this material feels more like Friends & Family Law (how mortgages work, how to share a house or a hallway, etc.) than big thinking about power and ownership, but those are good days as a teacher too—a chance to support my students’ present and future families.
The big questions are never far away, and land and housing set up those questions as well as any asset could: whether property rights should eclipse human freedom and autonomy, as in Dred Scott and Shack; the power of little property to stand up to big property, as in a nuisance case like South Camden Citizens in Action v. New Jersey Department of Environmental Protection; the power of using something that you need compared to the power of owning something, like homeless squatters in the foreclosure crisis trying to mobilize adverse possession doctrine.
As Ezra Rosser argues here, land is also a good teaching device for the awesome yet incomplete power of courts and the state, whether in M’Intosh or Mount Laurel. We get to reflect on the power of courts to confiscate property, and how much it matters whether it’s a private party (as in Ark Land v. Harper or other partition land sale cases) or the government (as in Berman and Kelo) that wants to do the confiscating.
Anchored in land, Property Law also raises vivid questions of liberty amidst interdependence. These include smaller liberty interests, like a covenant’s power to tell me whether I can keep a pet inside my condo. Big liberty interests are here too: Do we still need property protections in marriage as a private law safety net? Are court-ordered distributions in divorce a good way to prevent poverty, and if not, would we prefer more state-funded housing and childcare? Millennial students seem eager to discuss these questions even as their answers vary dramatically from one another.
Because few people dispute the importance of housing and land, these topics help to surface differences among students in their views of the appropriate role of government in a free society. For instance, I stylize the problem of homelessness as a classroom exercise that asks:
If we stipulate that homeless people need a place to sit and lie down, which of the following four general categories of responses best reflects your view of whether/how to provide a place for them to be? What is the best way to make this category of solutions work? Which cases/doctrines have we seen (or are you aware of) that promote or block this solution? If you believe in this option, what can be done to make it most effective?
- No intervention—they will need to make do wherever possible. Individuals must be responsible for themselves, and our collective duties are limited to people within our networks of family and friends.
- Intervention to fund temporary and permanent housing by the private charitable sector (such as non-profits, churches, volunteer efforts, or philanthropy).
- Provision by the public sector using redistributed tax dollars to fund temporary and permanent housing, or to fund the maintenance costs of homeless encampments on public property (such as sidewalks, parks, underpasses, strips along train tracks, etc.).
- Common law and regulatory tools to shift some costs for shelter to the private sector (such as private businesses or landownerseet) during weather conditions when sleeping outdoors is unsafe, or as a component of land use permitting (e.g., inclusionary zoning tools).
A rich discussion of students’ good faith views about the promise or perils of each of these is a basis for learning across political differences. It exposes some of the life experiences that lead students to trust or mistrust particular categories instinctively, and helps them (and me) think more critically about law and policy in general.
One way or another, we humans need our patch of dirt. So I usually give the last word of my property law class to V.S. Naipaul, in his novel A House for Mr. Biswas:
He thought of the house as his own, though for years it had been irretrievably mortgaged. And during these months of illness and despair he was struck again and again by the wonder of being in his own house, the audacity of it: to walk in through his own front gate, to bar entry to whomever he wished, to close his doors and windows every night, to hear no noises except those of his family, to wander freely from room to room and about his yard. . . . How terrible it would have been, at this time, to be without it: to have died . . . amid the squalor of that large, disintegrating and indifferent family, to have left [his wife] and the children among them in one room; worse, to have lived without even attempting to lay claim to one’s portion of the earth; to have lived and died as one had been born, unnecessary and unaccommodated.
I think Property Law has come a very long way in legal education, thanks to those scholars (like Joe Singer and the 1LPE authors on this thread) who called the course to a higher and more modern purpose in the 1L curriculum. It is still evolving, but I think Property Law has the potential to become a class about Poverty and Wealth, Opportunity and Inheritance. As much as anything in the first-year curriculum, it is a subject for our times.
Michelle Wilde Anderson (@MWildeAnderson) is Professor of Law and Robert E. Paradise Faculty Fellow for Excellence in Teaching and Research at Stanford Law School.
This post is part of our ongoing “1LPE” Series on bringing the LPE approach to the 1L curriculum. Click here for more posts in the series.