Property

Professor Grimmelmann

University of Maryland

Spring 2014

First Assignment

Please read Assignment 1 in the course supplement.

Overview

Here is the official description of this course from the curriculum guide:

Property is the study of the nature and functions of property as an institution. The course examines the origins, justifications, and characteristics of private property. The characteristics studied include transferability (both voluntary and involuntary), divisibility (both spatial and temporal as well as functional), and relativity (some claims are superior to others). Property prepares students for the upper-class curriculum by allowing them to see how law functions to allocate resources and to create and distribute wealth.

That’s accurate, but a little dry. More colorfully, a little over half a century ago, Felix Cohen wrote:

Suppose we say, that is property to which the following label can be attached:

To the world:

Keep off X unless you have my permission, which I may grant or withhold.

Signed: Private citizen
Endorsed: The state

We here in law school care about capital-P Property because this way of arranging legal relations turns out to be of remarkable importance in the American legal system. “Property” is one of a small handful of basic substantive legal building blocks, like “Tort,” “Contract,” and “Crime,” and like them it has its own course early in the curriculum. Property has earned that place for a variety of linked reasons.

First, property is everywhere, which means that property law is everywhere, too. Property in land is less important than it was in the agricultural economy of five hundred or a thousand years ago, but property in other things has taken its place. Property is a bar exam subject; the powers that be feel it has sufficient importance that every lawyer needs to know a little substantive property law.
Second, a long list of practice areas are built on a foundation of property law. If you work in family law, environmental law, corporate law, real-estate law, or intellectual property, or any of a half-dozen other fields, you will be grappling with property problems morning noon and night. This course is a bit of a sampler platter; it will help you see whether you might be interested in continuing your legal education in one of these fields.
Third, some of the basic concepts characteristic of property law recur again and again and again in other areas of law. If you understand the importance of possession or the problem of notice to third parties and how property law deals with them, you will be in a good position to predict how other areas of law deal with them, as well. Property-law abstractions and property-law intuitions are part of every good lawyer’s toolkit.
Fourth, even as we study what makes property law different than contract or tort, we will also be paying attention to the overlaps between property law and what you already know from your other courses. Law, it is said, is a seamless web; we will pay attention to the ways in which familiar ideas like estoppel, restitution, and strict liability are not confined to the courses in which you first learned about them. We will read some cases that are canonical in other areas of law–not as constitutional law or civil procedure cases, but for the property issues lying just beneath the surface.
Fifth, property law structures the world around us; part of being an informed citizen and a member of the legal profession is understanding its hidden influence. Everything from the causes and consequences of the financial crisis to the fact that classroom doors outwards shows the traces of property law. Appreciating them will help you shape them for the better–and give you things to talk about at cocktail parties.
And sixth, the fraught and complicated institution of private property gets at deep questions about what it means to be human, what it means to live under law, and what kind of a society we live in. It gives us a lens on equality, family, capitalism, democracy, innovation, nature, freedom, and humanity. I can’t promise answers, but I can promise that we will ask some big questions this semester.

If you want a sense of how the course fits together, imagine a large two-dimensional grid. Along the top are different kinds of property: real estate, natural resources, cars, jewels, books, money, stock, and even sometimes ideas, to name just a few. Along the left are different facets of what it means that these things are “property”: how they come to be owned in the first place, how they change owners by sale or gift or otherwise, what the owner can and cannot do to keep others from using them, and how to sort out the messes that result when more than one person has a claim to the same thing. Our goal for the semester is to fill in the grid; we will take advantage of some important patterns in property law to make the task easier.

Texts

You will need:

Thomas W. Merrill and Henry E. Smith, Property: Principles and Policies (the “casebook”). Either the first or the second edition is acceptable; I will provide parallel page references. I encourage you to find the least expensive version you can.
John G. Sprankling, Understanding Property Law (3rd ed. 2012) (“Understanding”).
The course supplement.

The following books are not required and I have not asked the bookstore to stock them. They are, however, potentially useful sources if you seek an outside perspective on the material covered in the course.

Joseph William Singer, Property (3rd ed. 2009). This is an unusually well-written (some might say “over-written”) treatise. Singer has a strong social-justice perspective and a talent for presenting multiple takes on difficult questions. A useful antitode if you find Merrill and Smith’s economic approach too cold or Sprankling’s doctrinal approach too narrow.
Gregory S. Alexander & Eduardo M. Peñalver, An Introduction to Property Theory (2012). A good, accessible introduction to philosophical issues in property law. The authors present the major theories of property and show how they play out in different parts of the field. Consider this book if you want to know more about the “why” of the subject.

Assignments

The course is divided into twenty-five assignments. They are intended to cover roughly two hours of class time each, so that we will read roughly one per class session. Unless I tell you otherwise, please read one assignment each time we meet. I may make slight adjustments to this pace as we proceed; I will announce any changes in class and post them here. Our pace will be relentless; do not let yourself fall behind.

Each assignment is listed in the course supplement. Following a short introduction to the topic, you will find a table listing the readings, along with their locations in the casebook, Understanding, or the supplement. The readings within each class are listed in the order I anticipate covering them in class, and are grouped into sets of related materials.

In general, I will ask you to read only the cases from the casebook; unless specifically listed in an assignment, the notes are optional. In class, you are on call for anything in the cases, as well as for the usual hypotheticals based on them. This will be our principal way of gaining insight into the structure of property law. I will lecture on any black-letter doctrine beyond the assigned cases that I think it is important for you to know. There will be a few reading assignments in Understanding, but for the most part you are welcome to refer to it when you find it helpful, and to ignore it when you do not.

Class Meetings

We meet Mondays and Thursdays, from 9:50 AM to 11:50 AM in Room 107. We will take a ten-minute break somewhere towards the middle of each class session. Please note that we will not meet on January 13, to accomoate the Supreme Court trip for Professor Percival’s course, and we will not meet on January 20 because of the Martin Luther King Jr. day holiday. We will, however, meet on Wednesday, January 29, from 9:50 AM to 11:50 Am in Room 107.

Here is what I expect from you in class:

I expect you to be in class, unless you have a compelling reason to be absent (e.g. illness) and have notified me beforehand. More than two unexcused absences will be grounds for a reduction in your grade or exclusion from the course.
Please arrive promptly. If you must enter or exit the classroom for any reason, please do so quietly.
Be prepared to discuss the day’s readings.
Bring your casebook and the supplement with you.
When the syllabus assigns problems,I will expect you to have thought about and written down answers to them before you walk into class.
I cold-call extensively, mostly at random. I will do everything I can to make the experience supportive and unthreatening.
Questions are always welcome. I will answer as many questions as time constraints permit. If something seems unclear to you, it is likely that others are also wondering the same thing.
In class discussions, you should be respectful of and courteous towards your classmates. One of the skills you are learning as law students is how to express disagreement in a friendly and professional manner.
The classroom generally will be a computer- and cell-phone-free zone. Bring a pad of paper, pens, and your undivided attention.

Integrity

“We don’t check the statements of the ‘young gentlemen’ around here. We simply cashier them if it ever turns out that they have not told the truth.”

–Robert Heinlein

We are members of an academic community built on respect, trust, and honesty. I will take you at your word; in return, I expect you to be truthful and candid in your dealings with me and your classmates.

Your conduct in this course is subject to the Student Honor Code. I encourage to collaborate in preparing for class and in studying, but in the classroom and on the exam your work must be exclusively your own.

Final Examination

Your grade will be determined principally on the basis of a final examination, to be held on a data and time to be determined by the registrar. It will be an in-class, closed-book, essay examination, and subject to a strictly enforced word limit. I will discuss the format in class later in the semester, but as of now I anticipate:

The examination will be set in the fictional jurisdiction of Carrolton, a mid-Atlantic state whose property laws bear a strong resemblance to those of Maryland.
The majority of the examination will consist of issue-spotting analytical essays that place you in a clearly defined role (e.g., counsel to a party). The questions will be generally similar to questions from my past examinations.
One or more questions may ask you to discuss property issues in a context that we have not discussed in class. The point is to identify and apply appropriate doctrines from throughout the course. For example, to answer a question about neighbors’ rights and duties to rainwater, you might draw on first possession (whoever captures rainwater owns it), beneficial use (one may only collect rainwater that is put to a reasonable use), nuisance (one neighbor may not divert flood waters across another’s property …), and easements (… unless she has been doing so in reliance on her neighbor’s grant of permission). This is a departure from my previous practice, so I am bringing it explicitly to your attention.
Before the start of examination period, I will hand out a near-final version of the actual cover sheets from the examination, including both the information on timing and word limits, and also information on some statutes and common-law doctrines of Carrolton law. (These rules may or may not be tested on the examination itself.)

I may adjust exmination grades grade up or down by one-third of a grade based on class participation. I consider good class participation to be anything that helps your fellow students learn, and poor participation to be anything that obstructs their learning.

Under no circumstances may you discuss the contents of the examination with any other person until after the end of the examination period. You may not ask any other person for help during the examination; your work must be entirely your own. The examination is subject to the Honor Code.

All my previous examinations are available from my courses webpage. Select the appropriate course and scroll to the bottom for the examination and a memorandum discussing it.

I highly recommend John Langbein’s advice on Writing Law Examinations.

Contact

Office: Room 231
Phone: 410-706-7260
Email: jgrimmelmann at law.umaryland.edu
Office Hours: Thursdays, 1:00 PM to 3:00 PM

My office hours are the times I reserve for student meetings, not the only times I am available. Appointments are recommended but not required. If my office hours are inconvenient for you, email me to set up another time or just drop by. If the door to my office is open, please feel free to come in.

Email is the best way to reach me and will generally lead to the fastest response.

This syllabus is at http://james.grimmelmann.net/courses/property2014/. As the semester progresses, I will post updates to it here.