Raze and Rebuild the Property Course

James Grimmelmann

“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.)

Continue reading

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.

Continue reading

Zoning and Race, from Ladue to Ferguson

Rebecca Tushnet —

When James Grimmelmann, Jeremy Sheff, Mike Grynberg, Steve Clowney and I decided to write an open source property casebook that could be shared freely with students, one of the benefits was the ability to teach the material in ways that made sense to us. The mortgage chapter, for example, is actually the “foreclosure” chapter: it focuses heavily on the foreclosure crisis of the past decade. In contrast to the casebook I used to use, it asks why lenders issued terrible loans rather than asking only why borrowers took terrible loans. Likewise, most casebooks call the topic of initial ownership “acquisition”; we call it “allocation” to emphasize that there are rarely resources that don’t lend themselves to a conflict over initial ownership.  (Not unrelated to our general orientation towards the topic, we rely on fair use for some of the material we quoted, which traditional publishers often don’t allow no matter how strong the fair use case is.)

We also tell a different story around zoning than most casebooks. Our chapter on the topic, which I wrote, explores how zoning works in practice, with a particular focus on how it is used to create and reproduce racial hierarchies. As part of this approach, we include actual zoning codes and maps, which is surprisingly uncommon in the casebooks I looked at before writing this one. (There’s a slightly more standard version of the chapter for those who don’t want to spend multiple classes on zoning.)

To keep things concrete, our casebook focuses on St. Louis. St. Louis proper is one of the most segregated cities in the country, and its surrounding county is likewise highly segregated. Zoning in and around St. Louis is illustrative of issues that recur across the country. Examining zoning laws from this area allows the chapter to illustrate how property regulation in the US is, to a first approximation, always about race.

Continue reading

The State as the Foundation of Property

Ezra Rosser —

A few years ago, I set out somewhat deliberately to publically out myself as being at the far left extreme when it comes to property law scholarship. I attacked progressive property scholarship from the left and attacked information theorists as rationalizing the status quo. So perhaps it is surprising that my 1L Property class is a fairly standard, establishment-type class. Given the vaguely progressive bent of most of my students, I find that doing so forces them to think harder (and, as Jed Purdy notes, we do have an independent obligation to prepare students for the bar exam). Indeed, early in the semester I do a lot of work encouraging conservative and libertarian students to be active participants in the class. Though their peers may not change their minds, having a critical mass of vocal conservatives or libertarians in the classroom forces the rest of the class to be more careful when they make arguments and more critical about even matters of progressive consensus.

But I do subtly introduce critical perspectives throughout the semester. In particular, the emphasis I place on the state provides space for students to question existing property rules and to recognize the malleability of those rules. Though I resist directly telling students that one of the main things I want them to get from the course is an appreciation for the role the state places in creating, defining, and protecting property rights, throughout the semester I emphasize the singular importance of the state.

Continue reading

But Who Gets the Driveway? Teaching Property as LPE (Sort of)

Jedediah Purdy —

I wrote a lot about Property between 2005 and 2010. I came to the topic as a new law professor because it struck me as something like constitutional law for the economy: the basic arrangement of power, cooperation, and legitimacy. The writing I did then was about how property law creates the terms on which people cooperate. By allocating the resources we all need to live, act, and pursue our projects, it sets up the scope of options and the bargaining power between, say, an investor and an entrepreneur, a business owner and an employee, a homeowner and an undocumented worker doing yard maintenance. The distribution of control over resources is also the distribution of control over lives—one’s own and others.’ It empowers people and, by the same token, makes us vulnerable to one another’s demands.

Property law is often taught as a kind of elementary version of the theory of voluntary market cooperation generally: without ownership, we would fall into the tragedy of the commons, but with it we achieve both economic efficiency and autonomy-respecting uncoerced collaboration. I was interested in the underbelly of this theory: how the ideal landscape of free cooperation is in fact terribly uneven, marked by towers of wealth, highlands of security and capacity, and full of vulnerable lowlands, populated by people who mostly find they have to take what they are offered. The point was critical but also reformist—to look for places where different regimes could make the terms of cooperation more genuinely equal, which ideally would require people to enlist one another’s energy by appealing to their wishes more than to their fears—to make “an offer you can’t refuse” a slogan of joyful acceptance rather than unshakable threat. If the usual utopia of Property is Ronald Coase’s frictionless allocation of all resources to their wealth-maximizing uses, regardless of distributional results, I wanted to introduce an alternative utopia of truly voluntary cooperation, focused not first on the use of resources, but on the shape and tone of the human relationships that arise from a pattern of control over resources.

Continue reading

Just Transitions?

Sarah Krakoff –

 

“Either Way the Outlook is Dire, Especially for the Poor.” So concludes a journalist after reviewing a draft report by the International Panel on Climate Change (IPCC) on the environmental justice and human rights consequences of climate change. The 800-plus page report, which is not yet publicly available, details the effects of a 1.5 degree Celsius increase on food systems, water, shelter, infrastructure, and health. Even if countries meet their pledges under the Paris Accords (from which the U.S. withdrew under President Trump) 1.5 degrees of warming by 2030 is locked in. If countries fail to meet their commitments, the world will be well on its way to 2 degrees of warming or more.

 

“The risks to human societies … are higher with 1.5 degrees Celsius of global warming compared to today, and higher still with 2 degrees Celsius global warming compared with 1.5 degrees … These risks are greatest for people facing multiple forms of poverty, inequality and marginalization. —Draft IPCC Report, 2018

On one hand, there is nothing new about this. Environmental harms, and harms of all sorts, have disproportionate impacts on people, communities, and regions with preexisting vulnerabilities. Earthquakes, fires, floods, and drought do not themselves discriminate. But structural wealth insulates people from the ill effects of natural disasters and helps them to recover more quickly. As Mike Davis and John Mcphee have documented, albeit in distinct tones, wealth also constructs the very path of nature’s disasters, steering them away from privilege to the extent possible. Malibu’s ritzy canyon dwellers benefitted from fire suppression, and Pasadena’s craftsmen-style homes from the lassoing of the Los Angeles River, while L.A.’s population as a whole lost public spaces and healthy riparian areas. Climate change has made the unnatural inequalities of natural disasters more visible and acute, but the landscape of injustice preceded sky-rocketing greenhouse gas emissions. Laws, including environmental laws, sometimes shaped that unjust landscape, and at others did little to counter the unequal distribution of environmental and economic benefits.

Continue reading

State Power and the Construction of Contractual Freedom: Labor and Coercion in Bailey v. Alabama

Noah Zatz – 

If forced to choose, I might pick Bailey v. Alabama as my favorite contract law case. That is, if it even counts as one. Which is pretty much my point. Decided in 1911, Bailey is a criminal case – Lonzo Bailey was convicted for fraud.  It is also a constitutional case – the Supreme Court struck down the conviction as violating the Thirteenth Amendment’s prohibition of involuntary servitude. A labor case, too – the criminal statute specifically targeted workers who took advances on wages and then later quit before paying the debt. And a race case, though the Court denied it – Alabama’s “false pretenses” statute was one cog in the wheel of Jim Crow neoslavery. But yes, also a contracts case (in a libertarian’s casebook, no less!) because the Court used the case to erect a boundary between criminal and civil consequences for breach of contract.

This overflowing of conventional doctrinal boundaries makes Bailey the perfect vehicle to deliver key insights of a Law & Political Economy approach. So much so that I will do it over multiple posts.

In this first installment, Bailey punctures the ubiquitous conceit that there is or could be an autonomous sphere of economic life – “the free market” – that stands apart from politics, from contests over whether and when to authorize the coercive exercise of governmental power. That contrast between economic freedom and political power is ubiquitous, as in the language contrasting “private” law with government “intervention” in the market (via “public” law). This conceit renders unremarkable what might seem contradictory: a ubiquitous politics that abhors government regulation (of “the economy”) yet thirsts for a state that is “tough on crime.” Continue reading