It’s Mine, and Yours

Rashmi Dyal-Chand –

I teach in a law school where most students and faculty pride themselves on falling somewhere along a spectrum of progressive, extremely progressive, socialist, and left anarchist. Thus, every year, usually within the first month of starting my first-semester property law course, I find myself surprised that the vast majority of my students appear to be intuitively and deeply committed to the idea that property ownership is and should be fundamentally about exclusion. Many of the same students who demonstrate depth of understanding about issues of discrimination, inequality, and power, voice the intuition that exclusion is somehow essential to those of us in the 99% (including their family and friends) without really considering the ways in which exclusion produces and maintains maldistribution.

Regularly, the first instance when students voice this commitment during class is when we discuss Jacque v. Steenberg Homes, in which an elderly couple sued a manufacturer of mobile homes for trespass when the defendant crossed an unused portion of their land for the purpose of delivering a mobile home to their neighbors. I have long used Joe Singer’s casebook, and I start my course with a unit on trespass that begins with State v. Shack. Thanks to Singer’s pioneering analysis of public accommodations law as central to understanding the principle of access in property law, I spend much of the trespass unit discussing the balance in trespass law between exclusion and access. Yet when we get to Jacque v. Steenberg Homes, students voice their intuition that the Jacques had the right to exclude the mobile home company from their property. “Why?” I ask, “Their property was in no way harmed by the defendant’s use of it.” They typically answer with some version of: “Because the defendant is a big corporate entity and the Jacques have very little power. The only power they have is over their property. We can’t take that power away.” “Well,” I ask, “what about the fact that mobile homes are a major source of affordable housing in this country? What if the company was doing its best to limit the costs of installing affordable housing on the neighboring property in order to avoid transferring those costs to the Jacques’ neighbors, who may not have been able to afford those costs?” For years, when we had this conversation, the students remained resolute. They said, for example, that the larger point still remained that corporations have too much power in this country and that property rights are our defense to such power.

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The Racial Wealth Gap and the Question of Time Zero

Michelle Wilde Anderson

Each year teaching Property Law, I have taught many of the big cases and topics on race and property law, such as M’Intosh and Dred Scott; segregationist turbulence in rights of reasonable access; public accommodations law; racially restrictive covenants; the Fair Housing Act. I never quite had a cohesive idea about this—they each seemed formative.

Meanwhile, evolving case law and politics have made it clear that we still have a basic disagreement at the heart of American law and politics, and my students carry that question with them into class: On matters of race, did we reset the playing field of property to start a merit system where fair access to markets would govern? Did we create a new Time Zero—for instance, when LBJ signed the Fair Housing Act as a gesture of solace and appeasement seven days after Martin Luther King, Jr.’s assassination?

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Property Law as Poverty Law

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.

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Teaching from Narrative in Property Law – Part II of II

Kali Murray –

In my last post, I argued that property law needs to tell new stories, and in doing so, a key benefit would be that we would “uncover” the relationship between property and equality.  In this second post, I will turn to another benefit to using narrative as a teaching tool–the ability to “frame” abstract concepts by grounding them in experiential detail.  To do so, I would like to tell a story.

One of my favorite property narratives comes from an entry contained in the diary of Charlotte Forten, a noted antebellum African-American abolitionist. In this entry, written in 1864, Forten describes visiting a government-occupied plantation in South Carolina before she went to work with newly freed communities. During her visit, Forten marvels that when she “[a]rrived at the Superintendent’s house we were kindly greeted by him and the ladies and shown into a lofty ceilinged parlor where a cheerful wood fire glowed in a grate, and soon we began to feel quite at home in the very heart of Rebeldom.” Forten’s narrative offers a new frame by which we can view three subjects that are often poorly understood in property law: dispossession, disruption and spatiality.

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Teaching from Narrative in Property Law – Part I of II

Kali Murray –

My teaching in Property Law is shaped by stories (if I am feeling fancy, I call them narratives). Whether true, false, or fictive (to borrow Carlos Ginzburg’s wonderful delineation), narratives enrich my teaching in property law because they offer a way to interrogate how property regimes manifest political, social and economic hierarchies within different societies.

This focus on these “thread of narrations” has been influenced by property law scholarship in the last twenty years. Groundbreaking work on property law that we have seen in the last twenty or so years in a number of disciplines including critical legal studies, progressive property theory, critical race studies, feminist theory, anthropology, geography and social/cultural history, led me as a young scholar to ask two questions:

  • Whose stories do we tell in Property Law?
  • If we tell new stories, how would that impact how Property Law is taught?

Early in my teaching career I encountered a law review article that prompted me to reconsider whose stories get told in Property Law: Evelyn Alicia Lewis’s masterful article, Struggling With Quicksand, in which Lewis addresses a default rule that manages shared ownership of property called a tenancy in common, which describes the relationship that arises where two or more people may have ownership interests in one property. In Struggling with Quicksand, Lewis uses a personal narrative of her family’s fraught disagreements over the family homestead to explore how default rules related to tenancies in common have often disfavored communities of color. Specifically, according to Lewis, default tenancy in common rules often fail to address when one sibling co-owner retains possession of the property, thus potentially disfavoring those co-owner siblings that do not retain possession of the homestead. The default tenancy in common rule does not manage conflict well between the in-tenant and the out-tenant, and consequently, this rule may harm families of color because such families may lack access to lawyers that might help them navigate around default rules.

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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.)

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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.

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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.

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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.

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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.

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