Property

Professor Grimmelmann

Georgetown University Law Center

Spring 2013

About the Course

First Assignment

For our first class on Tuesday, January 15, please pages 1-16, 369-74, and 433-39 in the casebook. Please also read Madden v. Queens County Jockey Club, Inc. and the excerpt from the Civil Rights Act of 1964 in the course supplement.

Overview

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

Examines classical and modern concepts of property, personal property issues, the nature of interests held in real property, the transfer of such interests, the law of landlord and tenant, and private and public restrictions upon the use of real property.

That’s accurate, but a little dry. Here is how Felix Cohen described the subject over half a century ago:

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 build 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 dead-hand control 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, 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 fifth, 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.

Class Meetings

We meet Tuesdays and Thursdays, from 3:30 PM to 5:30 PM in room 202. We will take a five-minute break each class session, somewhere towards the middle.

Expectations

Here’s what I expect from you:

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 with you. Bring the supplement with you on days when there are assignments from it.
When the syllabus calls out problems from the casebook, I will expect you to have thought about and written down answers to them before you walk into class.
I call extensively on students, mostly at random. I’ll do everything I can to make the experience supportive and unthreatening.
Questions are always welcome. I’ll answer as many questions as time constraints permit. If something seems unclear to you, it’s 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.

“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 Disciplinary 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.

Texts

You will need:

Thomas W. Merrill and Henry E. Smith, Property: Principles and Policies (2nd ed. 2012). The first edition is not an acceptable substitute.
The course supplement. Unless otherwise noted, any additional readings listed on this syllabus can be found in the supplement.
A small number of additional cases will be assigned as links to Westlaw and Google Scholar.

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.
John G. Sprankling, Understanding Property Law (3rd ed. 2012). The best black-letter treatise on the market: Sprankling is clear but honest about taking doctrinal complexity seriously.
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.

Exam

The final exam will be held on Tuesday, April 30. It will be take-home with a time limit of eight hours. It will be available for download starting at 9:00 AM and your typed answers must be returned electronically no later than 6:30 PM. (Thus, you are strongly advised to download it and start the eight-hour clock by 10:30 AM at the very latest.)

The exam will be subject to a strict page or word limit and formatting rules such that it will not be even remotely possible to type the entire time. Instead, think of it as a four-hour exam with plenty of extra tme to check your work.

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

Under no circumstances may you discuss the contents of the exam with any other person until after the end of the examination period. You may not ask any other person for help during the exam; your work must be entirely your own. The exam is subject to the Student Disciplinary Code and Georgetown’s policies on plagiarism.

Contact

Office: Hotung 6011
Phone: 202-661-6619
Email: jtg51@law.georgetown.edu
Office Hours: Mondays 10:00 - 11:30 and by appointment

This syllabus is at http://james.grimmelmann.net/courses/property2013S/. As the semester progresses, I’ll post updates to it here.

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

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.

Schedule

The schedule below is divided into twenty-six assignments. Unless I tell you otherwise, you’re responsible for reading one assignment per class session. I promise to stick closely to one assignment per session. Our pace will be relentless: roughly 25-30 pages of reading per class, sometimes more. Do not let yourself fall behind.

The Rights of Owners (3 classes)

January 15: Trespass

M&S 1-16 (Jacque, Hinman)
M&S 369-74 (notes on criminal and civil protections for property)
Madden v. Queens County Jockey Club (in supplement)
M&S 433-39 (Fair Housing Act)
Civil Rights Act of 1964 (in supplement)

January 17: Remedies

M&S 52-60 (Pile I, Pile II, Golden Press)
M&S 65-81 (Producers Lumber, Olwell)

January 22: Nuisance

M&S 23-29 (Hendricks)
M&S 938-60 (Adams, Campbell)

The Origin of Property Rights (4 classes)

January 24: First Possession

M&S 82-96 (Pierson, Ghen, Keeble)
M&S 105-13 (sunken vessels, home run baseballs, oil and gas)

January 29: Creation and Accession

Supplement: Larami Corp.
Supplement: Cheney Brothers
M&S 161-79 (Wetherbee, Edwards)
M&S 184-90 (Strain)

January 31: Adverse Possession

M&S 190-220 (Marengo, Carpenter, Howard, Songbyrd)

February 5: Finders

M&S 220-41 (Armory, Clark, Anderson, Fisher, Goddard, Hannah)

What Can Be Property (3 classes)

February 7: People

M&S 143-49 (Midler)
M&S 242-57 (Moore)
M&S 267-75 (Corrow)
13th Amendment (in supplement)

February 12: Public Rights

M&S 291-308 (Illinois Central RR)
M&S 1173-86 (Roth, Perry)

February 14: Internet

M&S 346-55 (Tribune)
M&S 374-87 (Intel)
Kremen v. Cohen (available on Courseware)

Estates in Land (4 classes)

February 26: Present Estates and Future Interests

M&S 500-31 (Williams, Klamath Falls)
Do the problems at page 517

February 28: Limits

M&S 532 (flexibility of the system)
M&S 543-45 (Johnson)
M&S 549-51 (personal property)
M&S 551-63 (Brokaw)

March 12: The Rule Against Perpetuities

M&S 572-92 (Symphony Space)
Do the problems at page 578
M&S 794-803 (Wilber) (the crucial fact here is that charitable trusts are exempt from the Rule Against Perpetuities; to what extent is cy pres a substitute for the Rule?)

March 14: Co-Ownership

M&S 594-617 (Delfino, Gillmor, Harms)
M&S 625-35 (O’Brien)

Landlords and Tenants (4 classes)##

March 19: History

M&S 646-77 (Paradine, Smith, Sutton, Blackett, Gotlieb)
Do the problems at page 652

March 21: Modern Leases

M&S 677-98 (Medico-Dental Building, Javins)
M&S 702-09 (Sommer)
M&S 387-94 (Berg)

Transfers

M&S 709-36 (Mullendore, Jaber, Kendall, form lease, rent control)

Property-Owning Entities

M&S 743-45 (coops, condos, and subdivisions)
M&S 763-71 (Pullman)
M&S 778-80 (trusts)
M&S 785-94 (Rothko)
M&S 803-07 (corporations and partnerships)
Walkovszky v. Carlton (in supplement)

Transactions (4 classes)

Powers of the Owner

M&S 449-58 (Wood)
M&S 464-73 (Allen)
M&S 485-99 (Pocono Springs, Eyerman)