Property is an odd subject. Typically a first-year, foundational course, it becomes apparent to beginning students rather quickly that it differs greatly from Contracts, Torts, and Criminal Law. Whereas those courses usually have a consistent rhythm, a mutually reinforcing structure, Property seems to be a grab bag of topics. Worse, the cases one studies are generally tort and contract cases. Are there property cases? What is distinctive about them?
To understand what we’re about to embark on, you must first understand what is happening in your other courses. I will give a very brief overview here of my conception of the structure of legal systems. I find that thinking broadly at first helps to show how the study of Property Law is different and also to explain the structure of a typical first-year curriculum. A fuller explanation, intended for non-experts, can be found in a short series of blog posts at http://hydratext.com/blog/category/laws-not-that-hard
An Atlas of Legal Systems
Contracts, Torts, and Criminal Law are substantive fields of the law. By that, I mean that they are basic categories of causes of action. They differ in the identity of the institution that controls lawmaking and prosecution.
Contract Law is the set of laws that are created by private entities (often, but not always, through bilateral agreement) and enforced by private lawsuits. Tort Law is the set of laws that are created by public entities (usually courts creating common law or legislatures) and enforced by private lawsuits. Criminal Law is the set of laws that are created by public entities and enforced by public lawsuits (or prosecutions).
|Privately Made||Publicly Made|
|Publicly Prosecuted||Parens Patriae||Criminal Law|
So where is Property Law?1 Under this view, it does not exist as a substantive category. Indeed, a Property course consists of tort cases, contract cases, criminal cases, and a few cases nominally labeled property cases but which are easily seen to be contract cases with different default rules and procedures. The chart simply makes plain that it could not be otherwise.
Let’s keep going for just a bit on the similarities among the substantive courses in order to discern a role for Property within a first-year education. While Contract, Tort, and Criminal Law differ in the nature of the institutions that make law and prosecute violations, they are remarkably similar in how their causes of action work. In each of these courses, you will learn an identical pattern for analyzing a lawsuit: Duty, Breach, Causation, Defenses, Damages. These may be taken up in different orders. The steps may even be given different names. But the essence is the same:
- Did the defendant breach the duty owed? Duties are often stated in general terms, and the question of breach is whether the a duty was violated under the specific facts of the case – an exercise that often involves returning to the question of duty and gaining more precision about what is and what is not against the law. If I owe a duty to avoid injuring others by driving a car using the ordinary degree of care a reasonable and prudent person would under the circumstances, whether I violated that duty by shifting my attention to the air conditioning or heating while in heavy traffic is a question of breach.
- Did the defendant owe a duty that is the subject of the lawsuit? Duties are what me might causally think of as “the law,” the things we must do or not do. They are created by legislatures, contracts, or courts. In Contracts, you will be concerned with the procedures for enacting duties (offer and acceptance, for example) and interpreting written contracts to determine what duties have been created. In Torts, you will primarily study judge-made duties and the policies behind them. While in Criminal Law, many textbooks focus on the duties contained in the Model Penal Code.
- Did the defendant’s breach of a duty cause the result specified in the law, typically an injury to the plaintiff or victim? As you’ll see in your other classes, this step usually involves two separate questions, one of logic and one of policy. First, was the defendant’s breach a logical or but-for cause of the injury, in the sense that no injury would have occurred but for the breach? This is necessary but not sufficient for liability. In each substantive area, we also ask a policy question: was the breach a proximate cause of the injury? This is a question of policy that asks whether the breach was such that we think the defendant ought to be at least partially responsible, typically because the breach was a substantial factor in bringing about the injury.
- Defenses, like proximate cause, are policy-based reasons to refuse to find all or some liability.
- Damages, or remedy, actually varies quite a bit among the subjects. Some Contract courses even begin with this step as a way of illustrating the distinctive purposes of the enforcement of private agreements.
This underlying structure is an important part of why Contracts, Tort, and Criminal Law reinforce one another in the first-year curriculum. These subjects, and thus courses, ask the same questions, only with respect to lawmakers and prosecutors of differing types. Because the same concepts are repeated, learning about one area helps to learn about others.
Property, as a vaguely defined collection of contract, tort, and criminal cases, does not take on the natural structure of a substantive area of the law through the systematic study of duty, breach, causation, defenses, and damages. Instead this textbook and most Property courses survey various topics in law with two goals in mind. First, we will study a number of traditional property topics, those where the issue of “ownership” and what that entails have long been thought to be a central issue. Second, but most importantly, our interdisciplinary study will introduce some of the major analytical techniques in law, from reasoning using precedent to law and economics to distributive justice. As we roam among topics, our goal is always, relentlessly to ask, “Why?” “Why should the law protect this party’s interest?” These major techniques that we will pick up along the way will help us provide better and better answers to this question.
As to our first goal, we will survey some of the major topics in the common law of land ownership as well as some highlights from the law of intellectual property. From trespass and nuisance, to land transfers, to adverse possession, to future interests, easement, covenants, and takings, there is quite a bit of fairly basic law that is not ordinarily covered in torts or contracts. Common to many of the topics we will cover are notions of “ownership” and “entitlement.” We will see that these concepts are not self-defining. Instead, what it means to own something will depend entirely on how we resolve cases in which owners’ rights are contested. It will never be good enough to respond to an argument that, say, a landowner should be stopped from making some use of his or her land by asserting that the landowner should win because it’s his or her property. Whether property ownership includes a right to make such a use is the very issue being contested.
Even if it were more precise and dispositive, ownership could hardly be a unifying criterion for identifying a body of Property Law. Ownership or entitlement is a critical element in just about every legal dispute. In many cases, though, it doesn’t come up. For example, in personal injury cases in torts, we rarely ask whether the plaintiff owned the part of her body that was injured. But the right to the integrity of that body part is indeed the very entitlement the law protects. Just because a thing is so well settled as not to be raised does not mean that it is not essential to the law. Moreover, there are cases in which the kind of ownership of one’s body that is asserted is not so obviously of a sort the law should recognize, and so the entitlement question becomes important. (Do you own your body in the sense that you can sell it? In what circumstances?) The point is only that the issue of entitlement or ownership is critical to just about every contract, tort, and criminal case, even if it is often not disputed. This textbook and course focus on areas of the law in which what it is that the law protects, what the entitlement is and who has it, is at issue.
The substantive topics we will study are all interesting in their own ways, but we are not studying them to become practice experts. The primary purpose of law school training, in my view, is not to learn the law itself but to learn how to learn it. That is, you need to become familiar with the techniques of legal reasoning, the structure of the legal system, and the major analytical tools of the law. With these in hand, it becomes possible to read judicial opinions and statutes quickly and to synthesize new arguments. In practice, you will work on cases raising issues you have not studied, and, even if have, you will do new research to understand the specific state of the law as it applies to your case. Doing law is a process, not a recalling of memorized facts.
With this in mind, our second and most important purpose is to build a toolbox of big ideas that appear over and over again, across the substantive categories. During this semester, we will focus on several, including:
- Reasoning from bare precedent, using decided cases like puzzle pieces that must be fit together;
- Instrumentalism, the idea that legal rules should be crafted to attain some public purpose;
- Law and economics, a huge and pervasive topic that we initially explore using nuisance law;
- The substantive and institutional differences between rules and standards, which the cases involving possession nicely raise;
- The distinction between natural law and positivist approaches;
- Labor, possession, and communication theories of ownership;
- The use of exclusion (property rights) or governance regimes to solve coordination problems of users of common resources, which we explore in the traditional context of oil and other common pool resources but also in how to design a system of property rights in ideas and expression – so-called intellectual property;
- The legal process school’s understanding that which institution, say courts or legislatures, decides a question can be more important than any arguments concerning the right answer.
There are more, and which ones your instructor focuses on and the order in which he or she does so may vary. This book is only a source from which this very important instruction in using the tools of the law can proceed.
This sort of study takes patience on your part. Lacking the reassuring order of duty, breach, causation, damages, and defenses, this course will ask you, yes, to learn what the law is in a number of areas, but more importantly to deepen your understanding of law’s reasons beyond the intuitions you may now have. You will be learning new ways to argue, new ways to read arguments. In Property Law, scanning across the whole field of law, we have the opportunity to learn not only law’s “what” but law’s “why.”
- Can you see why the set of laws in the Parens Patriae category might be a very small one?↩