Property

Professor Grimmelmann

University of Maryland

Spring 2016

This syllabus was last updated on February 26.

Overview

Here is how the curriculum guide describes this course:

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, many practice areas are built on a foundation of property law. If you work in family law, environmental law, corporate law, real-estate law, intellectual property law, 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.
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.
Sixth, property law in particular has a lot to say to us here in Baltimore in the spring of 2016. We will talk about how racially restrictive covenants and exclusionary zoning are responsible for patterns of residential segregation that continue today. We will look at predatory lending, the fight for habitable housing, discrimination in public accommodations, and discuss the relationship between law on the books and life on the ground.
And seventh, 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”: what it means to “own” a thing, how things come to be owned in the first place, what kinds of things can be owned at all, how different people can own different interests in a thing at the same time, how things change owners, and how government can regulate the ownership of things. Over the course of the semester, we will fill in the grid. 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

Our primary readings will be taken from a coursepack, which will be distributed electronically on Blackboard and in hardcopy from the table outside the copy center on the second floor of the law school. For the most part, these are traditional casebook-style readings, although you will find a few surprises as we proceed. The coursepack is a draft of an “open source” casebook I am writing with several other like-minded property teachers. Instead of selling it for $200 or more through a traditional casebook publisher, we will post it online, so that anyone can download it for free.

We need your help! In the “Discussion Board” section of Blackboard there is a forum for “Casebook Feedback.” Please share with us your ideas for how to improve the materials. Everything from typos to your opinions on what’s working and what isn’t will be greatly appreciated and will help improve the book for future generations of law students. When Jeremy Sheff taught from an earlier draft in the fall, his students posted hundreds of suggestions. Can you do even better?

You will also need a copy of John G. Sprankling, Understanding Property Law (3rd ed. 2012) (“Understanding”). This is a clear, concise, and mostly comprehensive student treatise. I will give parallel reading assignments so that you have a clear reference on the issues we’re discussing in class. In fact, I recommend reading the treatise excerpts first, before you tackle the cases, so that you have a sense of the legal backdrop against which the courts are operating. My teaching philosophy for the course is that the cases are essential to make property law vivid and concrete, but that it is much easier to extract the black-letter rule from a secondary source than from a case.

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 talent for presenting the strongest arguments for and against a given policy.
Gregory S. Alexander & Eduardo M. Peñalver, An Introduction to Property Theory (2012). This is 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.
Alfred Brophy, Alberto Lopez, and Kali Murray, Integrating Spaces: Property Law and Race (2010). This marvelous mini-casebook “maps the directions in which property law has turned in response to issues of race and ethnicity, demonstrating how racial and ethnic categories continue to affect contemporary property law.” We will discuss some of these issues in our course, but this book goes deep on many more.

If you are looking for a source of sample questions and problems, the Examples and Explanations series is usually quite good, and Barlow Burke’s Property entry is no exception. Do not worry about getting the most recent edition; the subject does not move fast enough that changes in the law are substantial.

Assignments

The course is divided into twenty-six 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. I will post the rest of the schedule as the remaining portions of the coursepack are released.

Part I: Owning Property (9 classes)

January 12: Personal Property, sections A and B
January 14: Personal Property, section C; Real Property, section A
January 19: Real Property, section B
January 21: Intellectual Property, section A
January 26: No class (make-up date: April 20)
January 28: Intellectual Property, sections B, C, and D
February 2: Intangible Property, sections A and B (up through the questions after Rothko only)
February 4: Intangible Property, section B (finish); Case Study: Natural Resources, section A
February 9: No class (make-up date t/b/d)
February 11: Case Study: Natural Resources, sections B and C; Case Study: Human Beings, section A
February 16: Case Study: Human Beings, sections B, C, and D

Part II: Dividing Property (8 classes)

February 18: Simultaneous and Consecutive Ownership, section A
February 23: Simultaneous and Consecutive Ownership, section B
February 25: Simultaneous and Consecutive Ownership, section C
March 1: No class (make-up date t/b/d)
March 3: No class (make-up date t/b/d)
March 7: Simultaneous and Consecutive Ownership, section D
March 8: Real Property Leases, section A
March 10: Real Property Leases, section B
March 15: Spring Break
March 17: Spring Break
March 22: Easements
March 24: Bailments and Liens

Part III: Transferring Property (5 classes)

March 29: Voluntary Transfers, pp. 4 to 31
March 31: Voluntary Transfers, pp. 32 to 47; Transfers by Operation of Law, pages 48 to 65
April 5: Transfers by Operation of Law, pages 66 to 75 and pages 79 to 96. I will lecture on eminent domain ;you do not need to be prepared to discuss the materials in section C.
April 7: Recording Acts
April 11: Mortgages and the Mortgage Crisis

Part IV: Regulating Property (4 classes)

April 12: Nuisance and Regulation
April 14: Restrictive Covenants
April 18: Zoning
April 20: Constitutional Limits

Class Meetings

We meet Tuesdays 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. We will not meet on Thursday, March 3. I will schedule a make-up class sometime during the semester, most likely on a Friday.

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 the relevant section of the coursepack with you in hard copy.
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.

I want our classroom to be a welcoming space, one where we all learn from the diversity of each others’ experiences and perspectives. If anything in or out of class troubles you in a way that you think might affect your participation or learning, please come and talk to me about it. Not all discomfort is avoidable, but I will do everything I can to help that is consistent with the educational goals of the course. I will also respect any requests for confidentiality as far as my legal and professional duties allow.

In particular, if for any reason your preferred name is not the one that appears on the course roster, please let me know how you would rather be addressed. (For example, I typically have several students a semester who go by their middle names rather than their first names.) It’s a small thing, but one there is no reason I should get wrong.

Integrity

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).
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, 1:30 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/property2016S/. As the semester progresses, I will post updates to it here.