Real + Imaginary = Complex: Toward a Better Property Course

Authors James Grimmelmann

Plaintext

930

At the Lectern

Real + Imaginary = Complex:
Toward a Better Property Course
James Grimmelmann

The first-year course in property has a dreadful reputation. When the St.
Louis University Law Review invited four students to contribute to a symposium
on teaching property, three of the four used the occasion to bash the course.
One “began with the hypothesis” that it shouldn’t be a required course.1
Another wrote, “I must admit my disappointment to find Property on the
class schedule for my first semester of law school.”2 And a third recalled
“long hours desperately trying to understand the destructibility of contingent
remainders, the rule in Shelley’s case, the doctrine of worthier title and the rule
against perpetuities” only to admit that her “memory quickly faded as to the
importance of these rules.”3 The bar of student expectations is set so low that
every time I teach property, without fail, I have students who later tell me they
were surprised they didn’t hate the course.
Professors are hardly more complimentary. Even those who relish teaching
property describe a constant struggle against intricacy, incoherence, and
irrelevance. Property is a “montage of ill-fitting subjects, jarringly connected
by arcane language and obfuscatory rules”;4 “the word [‘property’] is used
to describe a range of problems that have little or no logical connection with
each other”;5 there is no “apparent coherence of the principles addressed in

James Grimmelmann is Professor of Law, Cornell Tech and Cornell Law School. My thanks to
Jordan Reth for research assistance, and to Aislinn Black, Josh Blackman, Karen Czapanskiy,
Stephen Clowney, Joshua Fairfield, Michael Grynberg, Christopher Newman, Michael Pappas,
Jeremy Sheﬀ, Martin Skladany, Henry Smith, Rebecca Tushnet, and the participants in a faculty
workshop at Penn State Dickinson Law for their comments on this essay and on the larger
project. This essay may be freely reused under the terms of the Creative Commons Attribution 4.0
International license, https://creativecommons.org/licenses/by/4.0/.

1. Jay Zych, Theory and Praxis: Advice to Those Learning Property and a Request to Those Who Teach It, 46 ST.
LOUIS U. L.J. 807, 807 (2002).
2. Kelly M. Plummer, Who Owns America?, 46 ST. LOUIS U. L.J. 829, 829 (2002).
3. Amanda G. Altman, Everything I Needed to Know About Being a Lawyer I Learned in Property, 46 ST.
LOUIS U. L.J. 821, 821 (2002).
4. Steven Friedland, Teaching Property Law: Some Lessons Learned, 46 ST. LOUIS U. L.J. 581, 581
(2002).
5. A. Dan Tarlock, Book Review, 21 STAN. L. REV. 1266, 1276 (1967) (reviewing CURTIS J.
BERGER, LAND OWNERSHIP AND USE: CASES, STATUTES, AND OTHER MATERIALS (1968)).

Journal of Legal Education, Volume 66, Number 4 (Summer 2017)
Toward a Better Property Course 931

the course.”6 Students “approach the property law course with a great deal of
trepidation” because “[t]hey have heard horror stories.”7 “[T]he elements of
the traditional Property course most often taught, estates in land and future
interests, are those probably least used in practice.”8 Property is “perhaps
the least obvious of the first-year courses that deserves retention in the core
curriculum.”9 “Our colleagues, it seems, are not convinced of the central
importance of the topic we teach, perhaps because we have not succeeded
in making clear to them, or to ourselves, just what it is.”10 This isn’t a new
problem, either. In 1976, “the authors (or co-authors) of the widely used first-
year property casebooks seemed unable to articulate any generally agreed
purpose or underlying philosophy for the teaching of first-year property.”11
And these are some of property’s friends.
I come not to praise the property course but to bury it. The critics are right.
The course as taught today is a mess, an anachronism, an embarrassment.
It does belong in the first-year curriculum, but not in anything close to its
present form. It is time to bar the entail, destroy the contingent remainders,
commit a few acts of ameliorative waste, and put Blackacre up for sale.

I. For Real, Property?
The heart of the problem is the heart of the course: real property. At
Stanford, property “deals with possession and ownership of land and with
the incidents thereof”;12 at Yale, “[t]he principal focus will be on entitlements
in land.”13 Personal property is a very distant second. John Humbach’s 1976
survey of property teachers reported, “Over one-fourth of the respondents
omit Personal Property topics almost entirely and another one-fourth spend
less than 5 hours on Personal Property.”14 When Roberta Kwall and Jerome
6. Friedland, supra note 4, at 590.
7. Peter W. Salsich, Jr., Property Law Serves Human Society: A First-Year Course Agenda, 46 ST. LOUIS U.
L.J. 617, 618 (2002).
8. Louise A. Halper, Q: Why Is This Course Diﬀerent from All Other Courses? A: Maybe It’s Not, 22 SEATTLE
U. L. REV. 965, 966 (1999) (book review).
9. William L. Reynolds, Back to the Future in Law Schools, 70 MD. L. REV. 451, 455 (2011).
10. Halper, supra note 8, at 965.
11. John A. Humbach, What Is Taught in the First Year Property Course? A Report of a Survey of Instructors
Teaching the Basic Property Course, 29 J. LEGAL EDUC. 459 (1978).
12. Property, STANFORD LAW SCHOOL COURSE CATALOG, https://law.stanford.edu/courses/
property/ (last visited May 10, 2017).
13. Yale Law School 2016-2017: Course Oﬀerings, BULLETIN OF YALE UNIVERSITY, http://bulletin.
printer.yale.edu/htmlfiles/law/course-oﬀerings.html (last visited May 10, 2017).
14. Humbach, supra note 11, at 466. By way of reference, ABA Standard 310 currently requires
700 minutes of “classroom direct faculty instruction” per credit: one fifty-minute “hour”
per week for fifteen weeks, minus one week for a final examination. A four-credit course
thus comprises fifty-six “hours” of instruction, and a six-credit course comprises eighty-four.
Thus, half of property teachers surveyed spent ninety percent or more of their class time on
real property.
932 Journal of Legal Education

Organ did a similar survey in 1997, their instrument included seven headings
devoted to real property and “a miscellaneous category that included personal
property, economic and ownership theory, body parts, intellectual property,
and other nontraditional topics.”15 And when Peter Wendel and Robert
Popovich repeated the exercise in 2004, they concluded that “Property
professors consider [personal property] topics to be among the least important
in the course.”16 The Multistate Bar Exam is even starker: It tests exclusively
on real property.17
This obsessive focus on real property, I believe, is the source of all our ills.
For one thing, it contributes to the subject’s legendary dryness. Real property is
the Augean stable of the common law: 700-year-old statutes are still good law.18
Most of the complaints about the property course dwell on the topics with
the oldest lineages. Everyone gripes about shifting and springing executory
interests, about the Rule in Shelley’s Case and the Doctrine of Worthier Title,
about the baroque classification of easements and the Byzantine complexity
of covenants, and especially about the Rule Against Perpetuities. The inner
animating logic of these antique survivals19 is gone; they no longer constitute a
coherent system. Students can tell these are just abstract rules to be memorized,
and casebooks have largely given up on trying to pretend they’re anything else.
All of this might be forgivable if real estate were central to modern legal
practice. But it is not. Most lawyers are not real estate lawyers; easements by
necessity and covenants that touch and concern the land are not concepts they
will ever wield in practice. Even for land lawyers, arcane distinctions like the
one between a fee simple determinable and a fee simple subject to a condition
subsequent rarely rear their heads. Students are rightly skeptical that any of
this material will be relevant in their professional lives. And yet the dead hand
of the Rule Against Perpetuities rules them still.
The property course has apologists, not defenders. They take its collage of
topics—the joint product of history, inertia, and chance—and construct ad hoc
post hoc rationalizations for why teaching this particular grab bag is nonetheless
worthwhile. The reasons are many, but they are all unpersuasive.
15. Roberta Rosenthal Kwall & Jerome M. Organ, The Contemporary Property Law Course: A Study of
Syllabi, 47 J. LEGAL EDUC. 205, 206 (1997).
16. Peter Wendel & Robert Popovich, The State of the Property Course: A Statistical Analysis, 56 J. LEGAL
EDUC. 216, 222 (2006).
17. NATIONAL CONFERENCE OF BAR EXAMINERS, MBE SUBJECT MATTER OUTLINE 2017, at 6
(2017), http://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F201.
18. See, e.g., Chianese v. Culley, 397 F. Supp. 1344, 1345 (S.D. Fla. 1975) (“This right to convey
hearkens back to the Statute of Quia Emptores in the year 1290, and the right to alienate
one’s property has been accepted as an incident of an estate in fee simple ever since.”). This
is not to say that everything in the stable is a turd; alienability has survived for good reason
and is one of the key conceptual pillars of modern property law. See infra Part II.B.
19. Where they even survive, that is. No American court has destroyed a contingent remainder
in decades.
Toward a Better Property Course 933

First, there is the simple inertia of tradition. Property was a first-year course
when today’s professors’ professors’ professors were in law school, in something
not unlike its current form. Holmes compellingly refuted the argument from
tradition in 1897, and I cannot improve on his formula.

It is revolting to have no better reason for a rule of law than that so it was laid
down in the time of Henry IV. It is still more revolting if the grounds upon
which it was laid down have vanished long since, and the rule simply persists
from blind imitation of the past.20

Holmes was talking of doctrine, but he might as well have been talking of
pedagogy. The modern property course is a historical survival, not the product
of reasoned design. It bears strong traces of John Chipman Gray’s six-volume
casebook,21 and of the First Restatement. The former defined the metes and
bounds of the subject; the latter codified black-letter rules. The combination
was deadly for pedagogical innovation, because it created a canon that was at
once too authoritative to ignore and too sprawling to clarify and challenge.
Topics have come (zoning), gone (copyhold tenures), and been spun oﬀ
(wills and trusts) over the years, but as long as the course is built around real
property, incoherence and anachronism will be baked into its very definition.
The law of land is the true law of the horse.
Another buck-passing defense is that property is a bar exam subject, and
the bar tests real property and real property only. The list of top-level topics
on the MBE is revealing: ownership, rights in land, contracts, mortgages, and
titles.22 At least the National Conference of Bar Examiners has the honesty
to admit that this is an examination in “real property,” though not the gall to
explain why every lawyer in the country needs to be able to classify remainders
as vested or contingent.23 Teaching real property law because it is on the bar
exam accepts as given the wisdom of the bar examiners—something that law
faculty do almost nowhere else. To be sure, professors cannot stray too far
from the test every student must pass. But that does not mean that what the
test tests is right. If the anachronistic content of the property course is dictated
back by the bar exam, the better solution is to change the bar exam.
Next is the argument from history. Property law is historically grounded;
some concepts make better sense if one knows where they came from.24 But
the point of teaching history in law school is to make better lawyers for today,
and that means choosing the right history to teach. The only reason to choose
20. The Path of the Law, 10 HARV. L. REV. 457, 469 (1897).
21. JOHN CHIPMAN GRAY, SELECT CASES AND OTHER AUTHORITIES ON THE LAW OF PROPERTY
(1888 – 1892).
22. See NATIONAL CONFERENCE OF BAR EXAMINERS, supra note 17.
23. Id. at 6.
24. A good example is the origin of the law of covenants in the law of landlord and tenant,
which explains both its peculiar notions of privity and something about when a promise
touches and concerns land.
934 Journal of Legal Education

the history of real property as opposed to some other topic in legal history is
that there is more of it. Fundamental features of the modern adversarial jury
system were laid down in the same century as the Statute of Uses: Which of
these two would you rather have all law students learn? I’m guessing it isn’t
the one they currently do.
Other apologies are frankly more cynical. They accept that property’s
obsession with real property does not provide a coherent body of doctrine
that a substantial fraction of students will ever apply as such. But they find in
the course something that will nevertheless benefit students. The truﬄe hunt
was a bust, but we had a lovely walk in the woods and learned something
about pigs.
For example, it is said that property leads students to confront deep
questions about society, such as the relationship between the individual and
the community, or designing legal institutions to serve democratic values, or
optimal rules for economic eﬃciency in a world of limited resources. There is
something to these claims. Property does raise fundamental issues, especially
in the hands of a skilled teacher. And it does brain-build. But the question
that any such explanation must confront is, why property? Might some other
course, or even some other selection of property-related topics, serve the same
purpose as well or better? If you were designing a course from scratch to teach
some of these sweeping themes, why not cut loose estates in land and much of
conveyancing? Or at the very least, why not bring in other forms of property
that also raise similar issues?
The argument from diﬃculty is even worse. Few property teachers today
would match A. James Casner’s imperious proclamation:

The law is supposed to be a learned profession. Would not that supposition
have to be revised if lawyers could no longer talk intelligently about fee tails
after possibility of issue extinct, or distinguish a destructible contingent
remainder from an executory interest in the nature of a shifting use? There
may be legal problems that have more social significance, but none that
similarly stretch the mind to its maximum capacity.25

And yet I hear something similar from other property professors when I
raise the question with them: Yes, the doctrine itself is pointless, but it’s hard
work, and hard work is good for you. At heart, this argument rests on a faulty
syllogism:

Students should learn something diﬃcult.

This is diﬃcult.

Therefore, students should learn this.
25. James Vorenberg, In Memoriam: A. James Casner, 104 HARV. L. REV. 983, 984 (1991) (quoting Third
Academic Symposium: The Challenge to Legal Education, in THE PATH OF THE LAW FROM 1967, 139, 158
(A. Sutherland ed. 1968) (remarks of Associate Dean A.J. Casner)).
Toward a Better Property Course 935

The same reasoning could be used to “prove” that students should learn
the ERISA regulations in the first year, or almost anything else. If the goal is
to master a complex formal system, then any equally complex formal system
would serve just as well; so why not choose one whose relevance is more
readily apparent to students, one that will serve them well in their later studies
and in practice? And while learning Gray’s codification of the Rule Against
Perpetuities26 is often a rite of passage for students, so are binge drinking and
fraternity hazing.
The common theme in these apologies is that they are all fit and no
justification. They are explanations of the property course as it is currently
constituted, not statements of how the course ought to be constituted, if it
should be constituted at all. But there is no strong reason that a good theory
of the property course would match the accidental coverage of most syllabi. A
better theory should be prescriptive: It would tell us what to change and what,
if anything, to keep.

II. Diversity and Unity
Despite its flaws, the property course does have something worth salvaging.
Even if Property with a capital “P” is a curricular anachronism, property with
a small “p” is pervasive in law school and in the law. On the conventional
curricular account of property, real property is the theme and the other
forms—personal, intangible, and intellectual property27—are variations. The
conventional account is backward. Sometimes lawyers deal with land, but
more often they are concerned with bank accounts, industrial equipment,
customer lists, stocks and bonds, franchise agreements, retirement accounts,
Facebook accounts, and other modern forms of unreal property. Property
cases and concepts show up in upper-level courses in family law, wills and
trusts, real estate transactions, landlord-tenant, land use, local government,
environmental law, energy law, natural resources, payment systems, secured
transactions, debtor-creditor, bankruptcy, corporations, intellectual property,
and taxation. Real property doesn’t even feed into a majority of these courses.
It is property that matters, not real property. Treating the two as synonymous
is actively harmful. In Julie Cohen’s words, “The idea of property in land
as the paradigm case of property exercises despotic dominion over property
thinking, with clear consequences for theory and doctrine alike.”28 She
and others have capably detailed the ways that slighting these other forms
26. JOHN CHIPMAN GRAY, THE RULE AGAINST PERPETUITIES 174 (3d ed. 1915), https://archive.
org/details/ruleagainstperp00graygoog.
27. I will use “personal” property to refer to property in movable physical objects, “intangible”
property to refer to property in objects that lack physical substance but by social convention
are capable of exclusive possession and control, and “intellectual” property to refer to
property in information as such. This is not quite the traditional classification—but unlike
the traditional classification, it makes sense.
28. Julie E. Cohen, Property as Institutions for Resources: Lessons from and for IP, 94 TEX. L. REV. 1, 2
(2015).
936 Journal of Legal Education

of property distorts doctrine and stultifies scholarship. But it also has ugly
consequences for pedagogy.
First, students are subconsciously taught not even to perceive other forms
of property as fit objects of study: they avoid classes in intellectual property
because they think that “intellectual property” is synonymous with “patents,”
or steer clear of courses in commercial law because they don’t know what
payment systems or secured transactions even are. The property course as
currently taught goes out of its way to deemphasize its own relevance to the
rest of a law school education.
Second, students who see only real property examples do not realize
that property concepts generalize to other forms. Personal property can be
adversely possessed.29 Intellectual property can be jointly owned.30 All the
intuition and doctrinal knowledge students develop about real property is left
to wither on the vine after the exam—even though it applies perfectly well to
other forms of property.
Third and conversely, treating real property as the paradigm leads students
to make inappropriate extrapolations from what they have learned about
real property. The default state of real property is owned; the default state
of information is free for common use. Real property transactions tend to
be complicated, expensive, formal, and either bespoke or at least made to
measure. Transactions in personal property are often the opposite: No one
calls a lawyer to draft the deal documents for a pack of chewing gum. The
endless doctrinal insistence that real property is unique and requires unique
remedial protections should be a warning against building the course around
it.
The other forms of property are not “[real] property’s unruly stepchildren”;31
they are full-fledged members of the property family. If there is a black sheep
here, it is Blackacre. The key to teaching a course that captures the essence of
this extended family is to combine a diversity of subjects with a unity of concepts.
On the one hand, the range of fields that property feeds into is a sign of
strength. A well-designed first-year property course could support the upper-
level curriculum by teaching material that makes other courses make sense.
Just as copyright needs torts and employment law needs contracts, many
courses need property. Of course, secured transactions deals with diﬀerent
kinds of property than pension and employee benefit law does. The property
course should embrace this diversity: It serves the whole curriculum, not just
the real estate courses.
On the other hand is the persistent anxiety that there is no “there” there in
property. But this is partly an artifact of building a course around land and
partly a reflection of the fact that property concepts are broadly applicable.
29. E.g., O’Keeﬀe v. Snyder, 416 A.2d 862 (N.J. 1980).
30. E.g., 17 U.S.C. § 201(a) (2012).
31. Cohen, supra note 28, at 7.
Toward a Better Property Course 937

It does not show that there are no such concepts. Quite the opposite. The
mechanics of sorting out priority among conflicting transfers of a copyright
look very much like the mechanics of sorting out priority among conflicting
transfers of a tractor. Something general is at work here, something that is
not specific to any field of practice, and something that does not have a home
elsewhere in the required curriculum. The property course should bring out
these unifying concepts.

A. Diversity of Subjects
Start with the diversity. Property comes in many shapes and sizes; they
should all be given the same serious treatment as real property. Personal,
intellectual, and intangible property deserve their day in the sun.

1. Personal Property
Personal property is typically treated as a one-hit wonder: First possession
is the opening act before real property takes the stage, perhaps with finders as
an encore. But that is typically it for main cases. Beyond these topics, personal
property usually shows up only in casebook notes. A few books deal with
bailments, gifts, and involuntary transfers through good-faith purchase or the
running of the statute of limitations, although these are often isolated topics.
I am aware of only one modern casebook that has a soup-to-nuts section on
personal property.32 This abbreviated treatment contributes to the common
student sentiment that the cases are frivolities, with no doctrinal connection to
the rest of the course.
This is a shame, for two reasons. First, personal property is omnipresent.
Most law students have more personal property than real, and much more
familiarity with personal property than real, especially in this post-crisis
age when homeownership is a distant dream for many of the young. It is
omnipresent in the curriculum, and omnipresent in law practice: from the
assets divided on divorce to the property in property crimes to the tangible
assets on a typical corporate balance sheet. Real-property deals are occasional
moments of high drama for the in-house or small-business lawyer; personal-
property deals arise every time someone executes a purchase order.
And second, personal property is a beautiful, coherent body of law. It has
about a dozen moving parts; for the most part, they fit with one another. The
legal diﬀerences among diﬀerent types of tangible personal property are far
less salient than their similarities. The real-property system, if something so
ramshackle can even be called a “system,” is more complicated, less logical, and
far less intuitive. It is possible to teach all of the important personal property
topics in about one credit’s worth of class time, at the end of which students
can look at a complicated set of facts about a thing and make a confident
32. See BARLOW BURKE, ANN M. BURKHART & R.H. HELMHOLTZ, FUNDAMENTALS OF PROPERTY
LAW 1-103 (3d ed. 2010).
938 Journal of Legal Education

statement about who owns it. At the end of that unit, students know what
property is and how it works, more or less.
Here, then, is what students should know about personal property to be well-
educated lawyers:
Initial acquisition. This traditional jumping-oﬀ point for the course is a crucial
topic for personal property. The two great heads here are first possession
(previously unowned things) and accession (derivation from previously
owned things); together they permit a wide range of kinds of things to be
brought into play: wild animals, to be sure, but also natural resources like oil
and water.

Voluntary transfers. This subject is frequently treated only under abandonment
and gifts in property courses, but sales and wills are equally valid modes of
transfer.33 The details of sales are well-covered in contracts, but wills (and
intestacy) receive at most glancing coverage in any first-year course. This,
even though many property cases are unintelligible without some implicit
knowledge of estates law. Abandonment, of course, provides a great link back
to initial acquisition for personal property, one explored in classics of the
canon like Haslem v. Lockwood34 and Eads v. Brazelton.35

Involuntary transfers. Some casebooks mention adverse possession of personal
property, usually with a classic like O’Keeﬀe v. Snyder.36 Good-faith purchase,
however, is usually relegated to the notes. Talking about them two together
brings out that they both cut oﬀ the true owner’s title, but for arguably
diﬀerent reasons. Other important forms of real-world transfers by operation
of law—e.g., the execution of judgments and bankruptcy—escape attention
entirely. The former is a “civil procedure” topic, the latter an “elective” topic:
why?

Personal property crimes, torts, and remedies. The history of detinue and
trover may not grab students’ attention. But the question of what you or the
prosecutor can do to the louse who stole your car may be more interesting. I
like to give my students a criminal statute on receiving stolen property, which
puts the traditional material on finders in a rather diﬀerent light.37 Remedies
here are also worth talking about, because students who have taken only the
33. Perhaps these teaching burdens should really be borne by the first-year contracts course,
which is of course the first-year course devoted to voluntary exchanges. A less exclusive
focus on promises might do some good for the subject. But for today I confine myself to
reforming one course at a time.
34. Haslem v. Lockwood, 37 Conn. 500 (1871). See, e.g., JOSEPH WILLIAM SINGER ET AL., PROPERTY
LAW: RULES, POLICIES, AND PRACTICES 329 (6th ed. 2014).
35. Eads v. Brazelton, 22 Ark. 499 (1861).
36. O’Keeﬀe v. Snyder , 416 A.2d 862 (N.J. 1980).
37. E.g., MD. CODE. ANN. CRIM. LAW § 7-104(c) (LEXIS through 2017 legislation).
Toward a Better Property Course 939

introductory torts course might be excused for thinking that a car thief owes
damages but can keep the car38

Possessors’ rights. Chimney sweeps, airplane mechanics, and loyal British
soldiers have earned their place in the canon, for good reason; Armory v.
Delamirie39 alone is good for an hour of class discussion, bringing out all
of the logical consequences of the decision to protect a finder’s possession
and all of the roads not taken. But there are other forms of possession by
a nonowner, and these relations are so common in real life (“Can I borrow
your casebook?” “Want to get a Zipcar for the afternoon?” “They gave $100
for one just like this on Pawn Stars!”) that students deserve to understand the
legal architecture on which they operate. Bailments, leases, and pledges are
important, personally and commercially. What happens if the UPS truck
carrying your new computer catches fire? How could a business get the use of
a shrinkwrapping machine without the full expense of buying one? The UCC
has useful answers to these and many other questions.

Security interests. Car loans are a thing. In some ways more complicated than
real-property mortgages (land doesn’t drive oﬀ to another state), in some ways
much simpler (with an order of magnitude less money at stake, lenders can be
a little less paranoid), they are just as suitable for teaching. UCC Article 940 is
not exactly light reading, but the details of priorities and perfection matter to
many lawyers. Students deserve at least to know that there are some rules on
this. What happens in case of default? What happens when multiple creditors
fight over the same assets? Is Repo Man41 true to life?

The golden thread running through all of these topics is possession,
that most malleable of legal concepts. It provides a unifying pedagogical
theme, as well as a powerfully concrete set of teaching examples. Indeed, it
is probably the unifying theoretical issue that drives all of personal property
law; everywhere else possession is less crucial (real property), necessarily
constructive (intangible property), or purely metaphorical (intellectual
property). Students who come out of a property course understanding the
back-and-forth between possession and ownership are in a position to make
excellent educated guesses on almost any personal-property issue.

2. Intellectual Property
Intellectual property, too, has made inroads into the course. But the typical
property casebook’s treatment of intellectual property is problematic. It is
hard to imagine a case better-calculated to give students the wrong impression
38. The regrettable deseutude of the course in remedies bears some of the blame here. But if
most students don’t study remedies, the property course needs to fill its share of the resulting
gap.
39. Armory v. Delamirie (1722) 93 Eng. Rep. 664; 1 Strange 505 (K.B.).
40. U.C.C. art. 9 (AM. LAW INST. & UNIF. LAW COMM’N 2014).
41. REPO MAN (Universal Studios 1984).
940 Journal of Legal Education

of intellectual property than the most common anchor for an intellectual-
property chapter, International News Service v. Associated Press.42 Students who
meet intellectual property through INS v. AP might be forgiven for thinking
that it is a common-law field (with a heavy dash of equity) that has been
developed primarily by judges with an open-ended warrant to create new
causes of action through analogical reasoning supported by policy arguments,
and that its principal concern is to deter free riding. None of this is the case.
The policy debate among the Justices is illuminating, but the case is deeply
unrepresentative. (Another property chestnut, Moore v. Regents of the University
of California, is also misleading, because the intellectual property whose value
dominates the case—the patent derived from Moore’s cell line—is not squarely
before the court.43)
Intellectual property lacks the structural unity of real or personal property;
the diﬀerent branches have diﬀerent bases of protections, diﬀerent tests for
similarity, and strikingly diﬀerent defenses. To be sure, there are important
commonalities among them—including some all-important transactional
features that clearly mark out intellectual property assets as property—but the
best thing that the first-year property course can do when covering intellectual
property is to give students an appreciation of its diverse varieties. The three
major federal regimes—patent, copyright, and trademark—are naturally the
core of that coverage. State rights of publicity are worth mentioning, and one
might include a casebook note or some classroom discussion of trade secrets
and common-law idea protection. Moral rights, because of their specificity to
particular objects in the American system, form an interesting case. Beyond
that, discretion is the better part of valor: Design patents, the state law of
trademarks, false advertising, and the various sui generis regimes (boat hulls!)
add complexity without corresponding payoﬀ. One thing that today’s property
books sometimes get right is that intellectual property’s “negative spaces” are
as important as its positive coverage. Cheney Brothers v. Doris Silk is an excellent
prompt for an engaging discussion about how the fashion industry functions
even in the absence of copyright protection.44 To understand an idea, it helps
to study near misses.
What should the course say about the diﬀerent fields of intellectual
property? The two topics that deserve substantial class time are subject matter
and infringement:

In patent, subject matter could easily be covered with one of the Supreme
Court’s recent (and surprisingly readable) cases on patentable subject matter,
particularly Association for Molecular Pathology v. Myriad Genetics45 (human DNA)
42. Int’l News Serv. v. Associated Press, 248 U.S. 215 (1918).
43. Moore v. Regents of Univ. of Cal., 793 P. 2d 479 (Cal. 1990).
44. Cheney Bros. v. Doris Silk Corp., 35 F.2d 279 (2d Cir. 1929).
45. Association for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107 (2013).
Toward a Better Property Course 941

or Alice Corp. v. CLS Bank46 (computer software). Infringement requires some
attention to an actual patent’s claims: either with a simple claim-construction
case or with a simple patent. The important idea here is that patent rights are
defined peripherally and explicitly: Claims attempt to draw the ‘metes and
bounds’ of the patent.47

In copyright, it is hard to beat the canonical phone book case, Feist Publications v.
Rural Telephone Service Co., for a clear explication of what copyright protects and
what it doesn’t.48 Many other good cases engage with originality, and many
engage with the idea-expression dichotomy, but Feist has a vivid simplicity
that makes the essence of copyright immediately graspable. Infringement
can, and probably should, be literally illustrated: Students can argue over
the similarities and diﬀerences between two images. Copyright is centrally
claimed by example; the contrast with patent’s textually defined test for
infringement could not be starker. In what sense is property with no explicit
boundaries really “property”? Debate.

Trademark has a slightly recursive character. Consumer understandings are
both the basis for protection and the test for infringement. It is probably not
necessary to get into the full multifactor tests for likelihood of confusion.
Instead, a case that raises the question of why distinctive marks are protectable
but generic ones are not gets at the heart of the field. I have had success with
one of the many cases brought over the years by the Coca-Cola Company:
COKE is a valid trademark but COLA is not.49 It is important to say a bit about
priority, which recalls first possession principles, but this can probably be
done in the context of an ordinary infringement case.

Right of publicity requires some delicacy. The Midler v. Ford Motor Co. case is
wonderful, but risks confusing students unless the professor and casebook are
crystal-clear on why Midler had no basis in copyright to stop Ford’s use of a
sound-alike.50 A case on the contested line between the right of publicity and
the First Amendment might be better.

The procedural and formal issues in intellectual property—term, formalities,
registration procedures, etc.—are interesting but are properly the subject of a
note, not major discussion. Defenses, on the other hand, require classroom
attention. Copyright is not fully explicable without fair use, and the degree to
which the First Amendment puts independent limits on intellectual property
rights is a major cross-cutting theme. A parody case, a news reporting case, or
both, would be illuminating on the qualified nature of these property rights.
(Compare the cases on access to real property for speech purposes, such as
46. Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014).
47. See Jeanne C. Fromer, Claiming Intellectual Property, 76 U. CHI. L. REV. 719, 731-43 (2009).
48. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).
49. E.g., Dixi-Cola Labs v. Coca-Cola Co., 117 F. 2d 352 (4th Cir. 1941).
50. Midler v. Ford Motor Co., 849 F. 2d 460 (9th Cir. 1988).
942 Journal of Legal Education

PruneYard Shopping Center et al. v. Robins,51 and the cases on access to the media,
such as Miami Herald Publishing Co. v. Tornillo52).
The other major conceptual issue to bring out is the diﬀerence between
the type and the token. Intellectual property rights are distinct from, overlap
with, and in some ways restrict personal property rights. A given tangible
item may be owned as personal property by one person but subject to the
intellectual property rights of others. Patent exhaustion or copyright first sale
is the most vivid illustration of this idea, but others would serve, including the
overlapping ownership of personal letters (the recipient owns the paper but
the sender owns the copyright), restrictive licensing, the problem of orphan
works, and rebranded reconditioned goods.
This may seem like a lot of material, but it needs to be. Most property courses
and casebooks treat intellectual property as the Other, an odd variation on
traditional (and implicitly normal) real property. As long as it receives short
shrift, the impression will endure. Only with the long shrift can it be properly
covered as a coequal form of property in its own right.

3. Intangible Property
Then there is intangible property, which is almost completely absent from
the property canon, even though it is central to the modern American legal
system. The traditional subjects in which it was taught—Bills of Exchange
and Promissory Notes, Corporations, Partnership, and Trusts53—were part of
the law school curriculum at a time when (real) property was its own equal
pillar with them. But as the course has receded into its first-year foundational
role, it has never systematically asked whether that foundation should support
financial and entity forms of property.
Intangible property is important. Tens of trillions of dollars are held as
financial assets, and artificial-property-owning entities are the dominant form
of business today. Lawyers play major roles in creating and transferring these
assets; essentially the entire business law curriculum is concerned with them.
That education could start in the first year, not the second. In some respects,
these intangibles look very much like real and personal property; in others,
they are radically diﬀerent. The details can wait, but students deserve the
general picture early and clearly.
Unlike real and personal property, but as with intellectual property,
intangible property is not one thing. Good coverage would embrace that
diversity and show students a healthy variety of diﬀerent forms, showing
both where they come from and how they are managed. Because the salient
features of diﬀerent types vary so much, it is probably not worth imposing too

51. PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980).
52. Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974).
53. HARVARD UNIVERSITY, LAW SCHOOL OF HARVARD UNIVERSITY: ANNOUNCEMENTS, 1900-01,
at 8-10 (1900), https://iiif.lib.harvard.edu/manifests/view/drs:427284368$3i (Harvard Law
School course catalog for 1900-1901).
Toward a Better Property Course 943

much common structure on them. Instead, an agenda for teaching intangible
property might cover the rudiments of the following:

The law of co-ownership naturally extends to partnerships. The problems of
coordination among co-owners are the same whether their arrangement is
called a tenancy in common or a partnership (although the law’s solutions
diﬀer). A little bit—not too much!—on partners’ fiduciary duties completes
the picture.

Corporations are more interesting and more complicated. The basic idea
that corporate shares are a distinct form of property from corporate assets is
conceptually crucial. Sorting out the relationship among them is a task for an
hour of class time or more. It doesn’t necessarily need extensive case coverage
(the chestnut of Walkovszky v. Carlton54 or another simple veil-piercing case
would suﬃce), but many subtly distinct points deserve attention. The ideas
of limited liability (shareholders’ personal assets are not available to satisfy
corporate debts) and asset partitioning (corporate assets are not available to
satisfy shareholders’ personal debts) are fundamental in property terms, once
one accepts that the ambit of “property law” includes creditors’ rights. So
are the basic separation of ownership and control, which together with a few
minutes on agency principles (the corporation acts through its employees, can
be bound by them, and is liable for their torts) enable students to see how the
corporation functions as a property-owning entity.

Trusts form the immediate and obvious contrast. The medieval origins of
trust law could make for a few minutes of background lecture, but otherwise
the less said about uses the better. Instead, the core here is trustees’ powers
and duties, as captured in the terminological distinction between “legal” and
“equitable” ownership, in the trustees’ subjection to settlors’ orders as defined
by the trust, and in the much more rigorous fiduciary obligations of trustees.
It is highly informative to say something about the rights of third parties
who deal with trustees—a wonderful illustration of good-faith purchaser and
notice principles—and it doesn’t hurt to say a bit about tracing remedies and
disgorgement.

Payment systems are not a traditional property topic, but they have much to
oﬀer. UCC Article 355 can be too terminologically dense for its own good,
but the basic ideas behind notes and drafts are deep. They take a promise to
pay—a contract right—and use transferability to synthesize property from it.
Add in negotiability, and the instrument becomes even more of a property
right once personal defenses are cut oﬀ. This basic model works for an
enormous range of financial instruments: Debtors’ obligations are property in
creditors’ hands. With this insight, further connections open up: Shady debt
54. Walkovszky v. Carlton, 223 N.E.2d 6 (N.Y. 1966).
55. U.C.C. art. 3 (Am. Law Inst. & Nat’l Conf. of Comm’r on Unif. St. Laws 2014).
944 Journal of Legal Education

collection practices, for example, are tied to the lack of safeguards on transfers
of consumer debt.56

Students who own cars have firsthand experience with title documents. Look
at the title certificate: What formalities are necessary to change ownership?
Delivery? Signature? What if the signature is forged? Who owns the car if
the seller delivers a title certificate to a buyer, but not the car itself? What if
the seller delivers the car but not the title certificate? Now generalize to a case
where there is no car—where the underlying asset itself is intangible. What
happens if someone steals a check? A signed check? A blank checkbook? The
legal principles that answer these questions are also at play with many other
kinds of financial property.

The rest of this material can be a bit of a miscellany, but it can lead to excellent
fundamental questions about what can (and cannot) be property, particularly
at the contested line where “natural” meets “artificial.” What is a corporate
franchise? Why are taxi medallions valuable assets? Electromagnetic spectrum
is a great example because it requires answering the first-order question of
what the property consists of, the second-order question of what rules govern
its acquisition and use, and the third-order question of what institutions make
and enforce those rules. And thoroughly modern examples like domain names
and Bitcoins allow for excellent discussions on exclusivity, possession, and
protecting innocent owners and buyers against fraud, mistake, and duress.

Covering intangible property well would have payoﬀs for the rest of the
course. The importance of possession for personal property is highlighted by
considering assets for which possession is harder to establish—or even define.
Complex real-property transactions are synergistic with complex corporate
transactions. And many of the important policy issues are synthetic. It is
impossible, for example, to give a good account of the mortgage crisis that
disrupted millions of Americans’ lives without foregrounding not just the
traditional real-property mortgage loan but also the negotiation, bundling,
and securitization of those mortgage loans into complex financial assets.

4. Real Property
This is a tall order. To fit these topics in a four-credit survey, others will need
to go. That’s fine. There is plenty of fat in the real-property canon. Few topics
can be dropped entirely, but many can be trimmed back substantially.

Most obviously, the freehold estates in land have long outlived their pedagogical
usefulness. Corporations and trusts have taken over much of the work that
they formerly performed. A practicing lawyer who uses a legal life estate—let
alone a fee simple defeasible—is flirting with malpractice. Many states have
56. Moreover, the double-collection problem—in which multiple parties pursue a consumer for
satisfaction of the same underlying debt—raises important issues about formalities (proof of
payment) and the nonexcludability issues lurking in the wings when the “property” being
sold to collection agencies consists purely of information about consumers.
Toward a Better Property Course 945

modified or abolished the more exotic animals in the traditional menagerie
for new instruments, or crafted laws to gradually remove some of them from
the books. As a result, the general property course can make do with far less.
Life estates are useful for introducing successive ownership interests, but
the defeasible fees are a mess of unilluminating complexity. Joint tenancies
and tenancies in common are better candidates for inclusion—indeed,
simultaneous ownership should be taught first, before successive ownership,
since is it both more relevant and easier to understand. On the other hand,
the doctrinal machinery needed to set up the Rule Against Perpetuities—e.g.,
classification of future interests, vesting, lives in being—is out of all proportion
to the payoﬀ, especially since the Rule itself is on life support in many states.57
And of the other traditional doctrines, the less said the better.

Leases are more familiar to students and more relevant to modern practice,
but again, their generality is open to question. The traditional fourfold
classification of tenancies is not worth extensive time. The implied warranty
of habitability is characteristic and important; it brings with it both some
historical background and some modern consequences. Landlords’ and
tenants’ remedies on breach are also illuminating. Although the distinction
between “property” and “contract” remedies is somewhat overblown, the
story of the rise of landlords’ duty to mitigate and the decline of landlords’
self-help are both relevant to the world today and illustrative of broader
issues in property. Rent-control laws are another common tenant protection;
assignment and sublease are worth knowing about. Beyond that, it is probably
best to move out.

Treating trespass and nuisance as torts makes clear that the main justification
for including them in a property course is to show what makes “property”
torts distinctive, if anything. Remedies can fall into that category, but should
not be overdone. Boomer v. Atlantic Cement Co.58 should, to be honest, be covered
in torts. Spur Industries v. Del E. Webb Development Co.59 was an experiment, not
since repeated, and should have been pensioned oﬀ long since. The teacher
who is inclined to do more with rights in land might more profitably look to
cases that try to draw actual boundaries around land—not always as easy as it
sounds. Lateral and subjacent support, overflights and caves, and boundary-
survey mistakes all call into question the idea that property in land is as crisp
and precise as one might think.

Servitudes are a topic on which the authority of tradition makes mountains out
of hills. Not every form of easement in the Restatement needs to be covered
in a first-year course. Students can certainly stand to know what an easement
is, but the eﬀort required to sort out easements by necessity and easements
by implication is far disproportionate to any general understanding gained
57. See Lynn Foster, Fifty-One Flowers: Post-Perpetuities War Law and Arkansas’s Adoption of USRAP, 29 U.
ARK. LITTLE ROCK L. REV. 411, 471–86 (2007) (state-by-state survey).
58. Boomer v. Atl. Cement Co., 257 N.E.2d 870 (N.Y. 1970).
59. Spur Indus. v. Del E. Webb Dev. Co., 494 P.2d 700 (Ariz. 1972).
946 Journal of Legal Education

thereby. Similarly, students could stand to know that there is a doctrinal and
policy problem in making covenants run with the land. The ins and outs of
two hundred years of jury-rigged solutions, much less so. A few judicious
examples of servitudes will do.

Zoning, on the other hand is important—indeed, the low drama of zoning
disputes is far more important on a day-to-day basis than the high drama of
takings. Euclid v. Ambler Realty Co.60 is usually taught for the major constitutional
issues, but it is surprisingly good at covering many of the basic mechanics of
zoning laws. Students also need to see something of the role that aggrieved
neighbors play in zoning fights. As for takings, Kelo v. New London61 and Penn
Central Transportation Co. v. New York City62 are enough for the first year: They more
than adequately set out the boundaries within which takings disputes play
out.

Finally, real-property financing and transactions are of great interest. But that is
just to say that property financing and transactions are of great interest, and the
coverage of issues unique to real property can be largely subsumed under the
coverage of financing and transactions in general. Equitable conversion, for
example, is an interesting special case of the risk of loss in a sale of property.
Warranties of title to real property are an interesting special case of warranties
of title for the sale of property. In each case, zooming out to consider other
kinds of property allows for the elision of time-consuming details in the real-
property case.

***
If the property course had room for only one coherent system of property
law, it ought to be personal property rather than real: The doctrines are fewer
and their connection tighter. But even personal property has no special claim
to be the paradigm case for property. There is no paradigm case. Property is
defined by a harmony among voices, not variations on a theme. Intellectual,
intangible, personal, and real property all add distinctive and important
perspectives. They all deserve coverage.

B. Unity of Concepts
These reforms of the coverage of the property course may seem to exacerbate
the problem. It has gone from a topical grab bag to a grab bag filled with
grab bags. But considering all the forms of property together allows for a
much simpler way of presenting them; it invites us to emphasize the shared
conceptual structure.
By a “concept,” I mean something more specific than an overarching theme
or policy problem: The tension between dead hand control and modern
60. Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
61. Kelo v. City of New London, 545 U.S. 469 (2005).
62. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978).
Toward a Better Property Course 947

needs, for example, while interesting, doesn’t decide cases. At the same time,
a concept generalizes from specific statutes and doctrines. UCC § 2-40363 is
not the same as a typical notice recording act; doctrinally they’re diﬀerent,
in scope and in application. But if you understand the general concept of a
good-faith purchaser, you have a decent idea of what to expect from both. A good
concept makes useful predictive claims about how property doctrines typically
decide a class of cases.
The following is a tentative list of the doctrinal concepts that should be
second nature to students finishing a course in property, just as “oﬀer and
acceptance” is second nature after contracts and “duty” is second nature after
torts (or should be). This is not to say that the course should be explicitly
structured around them, just that they provide a manageable intellectual
framework to collect and organize the topics gathered together in a property
course.

1. Things
Property is organized around identifiable things. Unless you can point
to the thing (metaphorically, if not always physically), it isn’t property. The
thing need not already exist; property law may well summon it into being
and give it a social identity by giving it a legal one. This is the reason for
the broad survey of subjects of property above: to acquaint students with the
range of things that can be property. A debt is property in the hands of a
creditor; students for whom this idea is intuitive are far better-prepared for
commercial law. Traditional corner cases in the penumbras of property—body
parts, professional degrees—are relevant because other fields of law (divorce
settlements, wills, bankruptcy) need to know whether something is a thing
capable of being property.

2. Owners
Things have owners, whose rights as against others are mediated through
the things, in their role as owners.64 This is the essence of the idea that property
rights are rights in rem: both in the sense that they are tied to a res and in the sense
that they have the formal structure of rights good against the world. Defining
owners’ rights through impersonal duties to respect a thing’s boundaries is a
distinctively propertarian way of slicing up the world. Conceptually, it also
means that property can be subject to in rem jurisdiction: Courts can issue
decisions about property rights in things without individually joining every
person in the world who will be bound to respect the results.

3. Boundaries
These things also have boundaries, and one who owns the thing is
protected against invasion of those boundaries by others. This is the place for
63. U.C.C. § 2-403 (AM. LAW INST. & UNIF. LAW COMM’N 2014).
64. To be more precise, interests in things have owners, as discussed below.
948 Journal of Legal Education

consideration of the various property torts, crimes, and self-help options, along
with their associated remedial options. Intel Corp. v. Hamidi65 is on point here,
but even more so is its contemporary Kremen v. Cohen,66 because the question of
how one converts an intangible is central to understanding what the owner of
one really owns. The point here is again to acquaint students with the rights
that their clients care about defending. These concepts draw on tort law, but
they show how “property” rights give tort law a distinctive inflection.

4. Interests
The interests that one can own in a thing are distinct from the thing itself.
This is why the estates in land will not completely vanish from the course: The
idea of a nonpossessory interest that is nevertheless “property” is profound
and pervasive. Indeed, it is so central to intellectual and intangible property
that it deserves extended, repeated emphasis. A lien is a property right
in a specific thing, but an unsecured debt is a mere personal claim. Trusts,
corporations, leases, cotenancies, and especially patents and copyrights give
rise to overlapping rights in the same things. Interestingly, so to speak, some
forms of property are more divisible than others: land and intellectual property
are typically more amenable to simultaneous use than personal and intangible
property.67

5. Specific Forms
Permissible property interests come only in specific forms. You can order
à la carte, but you have to order from the menu set before you. The numerus
clausus, though not always named as such, casts a long shadow over property
transactions. The problem of categorizing ambiguous conveyances is a classic
example. The underlying assumption is that the answer must be one or the
other: life estate or lease, not some novel tertium quid. But the same eﬀect
extends far beyond real property. Has a patent owner sold a patented item or
licensed the patent? The courts must choose. Can you structure the corporate
deal you want with the tools available to you, or will you have to live with the
unwanted consequences of the characterization the courts choose?

6. Initial Acquisition
Ownership is initially established only through a handful of mechanisms.
First possession is the most famous, but of much less importance today.
Accession principles (landowners’ rights, physical transformation) do a
good deal of work, but they are parasitic on already existing property claims.
Creation works for intellectual and intangible property precisely because
65. Intel Corp. v. Hamidi, 71 P.3d 296 (Cal. 2003).
66. Kremen v. Cohen, 337 F.3d 1024 (9th Cir. 2003).
67. Cf. Christopher M. Newman, A License Is Not a “Contract Not To Sue”: Disentangling Property and
Contract in the Law of Copyright Licenses, 98 IOWA L. REV. 1101 (2013) (exploring consequences of
divided interests in real and intellectual property).
Toward a Better Property Course 949

of their nonphysical character. Finally there is raw power, or at least the
legitimated form of power we call conquest: A government’s unchallenged
claim of sovereign authority enables it to hand out property rights that will be
recognized de facto and de jure within its jurisdiction.

7. Chain of Title
One making a property claim must be prepared to trace a chain of title.
Sometimes this involves rooting the chain in an act of initial ownership. But
more often it involves tracing one’s rights back in time to someone whose
ownership is undisputed, or at least superior to the other party’s. This is why
attention to transactional mechanisms in general belongs in a property course:
They are the links in a chain. And this is why an essential link connects finders,
adverse possession, and title protection: Each topic requires students to think
through the derivation of property rights. These topics draw on contract law,
to be sure, but they generalize from contracts to other mechanisms such as
gifts and wills and supplement it with deep ideas like the rejection of the jus
tertii. Lawyers in all branches of the law must worry about competing claims
to the same thing, and sorting them out means working with chain-of-title
reasoning.

8. Possession
The relationship of possession and ownership is subtle but important.
Possession can lead to ownership; possession can be evidence of ownership;
the law often protects possession independently of ownership; possession can
be a tort and a crime; confusion and trouble often follow when possession
and ownership are split, as often they must be. Grasping the ins and outs
of possession is the crucial task of an education in personal property; here,
it is real property that is parasitic on an understanding gained elsewhere.
Possession is also a malleable concept; it changes depending on the question
being asked. The “possession” that would suﬃce to make you an owner of an
abandoned suitcase doesn’t suﬃce to give you “possession” of the drugs inside.
Much of the conceptual challenge of intangible property consists in working
out good tests for what should count as possession. The act of broadcasting
during certain hours in a certain place using a transmitter tuned to a certain
frequency at a certain power? A database entry on a particular server mapping
a particular string of characters to a particular set of numbers?

9. Binding Third Parties
Property generically worries about making third parties participants in
property rights. In some respects, this is a matter for contract law’s doctrines
of assignment, delegation, and third-party beneficiaries—or would be, if most
contracts courses had not abdicated this part of the subject. But in other ways,
the attempt to synthesize rights and restrictions that will be usable by and
binding on successors is a central preoccupation of property law. It is visible in
950 Journal of Legal Education

subleases and assignments, security interests, trusts, servitudes, negotiability,
intellectual property licensing, and elsewhere.

10. Notice
Conversely, property systematically protects third parties who take without
notice of conflicting claims. The obvious—and woefully undertaught—example
is the good-faith purchaser of goods under UCC § 2-403. Other examples
include priorities among conflicting transferees of real property, priorities
among lienors, the various privity and notice requirements in servitudes, the
open and notorious prong of adverse possession, various tolling rules under
statutes of limitations, and notice formalities in intellectual property. Again,
there is a unity to these provisions that is lost when “property” is thought of
as “real property.”

11. Transactions
Property deal-makers must consistently worry about distinctively
propertarian concerns: quality of goods, title assurance, cross-cutting property
rights, financing, and the tension of substance and form. The beautifully
general machinery of “contract” law slights these property-specific issues,
and yet they are crucial to anyone doing a patent licensing deal, a corporate
asset purchase, or a real estate sale. Students need to be alert to warranties of
title and noninfringement; the timing and privity of warranties; the concerns
that arise in any extended transaction with a gap between agreement and
closing; contingency terms and due diligence; courts’ annoying tendency
to recharacterize transactions; multilateral deals; and the not always perfect
correspondence between transactions on paper and facts on the ground.

12. Recordation
The entire problem of recordation reflects concerns unique to property.
Here, real-property law does have something profound to teach: The basic
concepts of record title, constructive notice, races to record, title searches, and
nonrecord risks are all excellently on display in the real-property recording
systems. But again, one can do much, much more to show the essential unity
across forms of property. Intellectual property recording can be the stuﬀ of
high drama;68 the badly defective private recording system of MERS played
a substantial role in the mortgage crisis. Personal property recording systems
raise remarkable issues about mobility and jurisdiction; the domain-name
system and Bitcoin are modern twists on very old ideas.

13. Government as a Source of Property
Government is a constitutive source of property rights. The real-property
canon illustrates these themes quite well, from Johnson v. M’Intosh69 to zoning.
68. No kidding. See PAUL GOLDSTEIN, ERRORS AND OMISSIONS (2006).
69. Johnson v. M’Intosh, 21 U.S. 543 (1823).
Toward a Better Property Course 951

But again, other branches of property have much to teach. Government
can synthesize property literally from nothing; what else is a patent? It
can coordinate human activity in ways that establish potential subjects of
property, from spectrum to airport landing slots to dollar bills and trillion-
dollar platinum coins. On this theme, a topic that belongs in the course, even
if briefly, is conflict of laws. Jurisdiction, choice of law, and recognition of
judgments are all inflected diﬀerently when property is concerned, and thus the
question of where a thing is has particular importance. Land is fixed, personal
property is frustratingly mobile, and intellectual and intangible property raise
deep conceptual problems for any attempt to localize them.

14. Government Limited by Property
Government is correspondingly limited by property rights. Real-property
takings hold pride of place here, but should they? For one thing, other property
can be taken all the time, and is: Ruckelshaus v. Monsanto Co.70 shows even that
disclosure of information can be a taking. For another, other constitutional
and subconstitutional provisions have much to say here. Any realistic survey
would need to consider not just the Public Use clause and regulatory takings,
but the mechanics of eminent domain and just compensation, the public
trust doctrine, the Contracts Clause, traditional limits on the police power,
the Fourth Amendment’s link to trespass law, the Ex Post Facto Clause, the
canon against retroactivity, the rule against reopening judgments, the First
and Second Amendments (and possibly the Third), the Progress Clause, the
Equal Protection Clause, and of course the Commerce Clause—all of which
have hooks that can depend on the presence or absence of property. I am
not saying that one needs to teach cases on all of these, just that a modern
treatment of the subject would emphasize that takings are just one thread of a
much larger constitutional fabric.

15. Access
Individuals have access rights to property as nonowners as well as property
rights as owners. Here, too, casebook authors have done a fine job using real
property to make the point: State v. Shack71 is a common inclusion, and some
casebooks work beautifully with the theme. Yet again, the same story repeats
throughout property, and the narrow focus on real estate and physical places
conceals more than it illuminates. The defense of necessity works for personal
property as well as real. First Amendment-inflected rights of fair use and
parody in copyright and trademark are access rights; so is the (nearly extinct)
experimental-use defense in patent and the use of unlicensed spectrum bands.
70. Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984).
71. State v. Shack, 277 A.2d 369 (1971).
952 Journal of Legal Education

16. Fairness
Property rights across the board incorporate (if not always fully) concerns
about fairness for all. In real property, public accommodations and fair
housing law, of course, are about justice for the individual who is turned
away because of her race, but they are also about a broader commitment to a
just society. I will say it once again: This is not unique to real property, and discussing
these issues only with real property obscures them elsewhere. Many limits on what can
be owned derive directly from a general principle that certain resources—air,
drinking water, ideas—must be available in common to everyone, at least to
some degree. The policy questions here are especially rich when we move
beyond real property. Does copyright restrict the supply of books in minority
languages? Do wage garnishment orders disproportionately hurt the poor,
and asset protection trusts disproportionately benefit the rich? How does the
corporate form of property-holding promote (or inhibit) social responsibility?
And so on. These questions are just as rich when we look beyond land.

***
These concepts are not a complete account of property. I make no claim that
they are the only possible list, the most reasonable list, or even a particularly
good list.72 But they are a list of core property concepts, and they refute the
claim that there is nothing distinctive about property as a subject or a course.
A student who leaves the property course with a strong intuitive sense of how
these concepts work will be able to make sense of property questions, wherever
they arise in the law. The particular answers will vary; they will require further
study in law school and extensive research in practice. But a lawyer who
understands these concepts can get over the all-important first hurdle: framing
a precise enough question that she knows where to start looking for the answer.

III. Getting There from Here
The past generation has seen a remarkable outpouring of inventive
scholarship on the essence of property. Some of the work is conceptual:
Property is analytically defined by exclusion, or property is a law of things.
Other work is normative. Property should secure individual liberty against
state coercion; property should support a broadly democratic anti-feudal
society; property should enable human flourishing; property should promote
community self-governance; property should maximize social welfare;
property is a pluralist institution that touches on all of the above. The debates
72. Another version of the course might focus on property institutions as ways of mediating
human relationships among neighbors, communities, business partners, families, buyers
and sellers in impersonal markets, and so on. A third would look at property historically,
showing the continual adaptation of older doctrines to new problems in new domains. A
fourth would come at property in collective-action terms: holdouts, spillovers, tragedies
and comedies of the commons, information costs, government and public choice, and so
on. I hold up my version not as the ideal, but as a constructive proof that there is a viable
alternative to the traditional land-law ideal. There are other ways.
Toward a Better Property Course 953

among these camps have brought passion, insight, and depth to property
scholarship.
But these grand visions all too frequently run aground on the shoals of the
traditional property curriculum. It takes hard work to extract these themes
from the details of equitable conversion or possibilities of reverter: they are
thematically dead. A few casebooks try; it is no accident, I think, that they
tend to be among the wordiest books on the market. The sheer burden of
topics that “must” be covered is a check on the ambitions of any property
teacher, no matter how high-minded. Or low-minded, for that matter. The
property teacher who cares only about teaching students material that will be
useful to them all in practice has an equally hard row to hoe.
Some casebook authors have tried to go beyond real property. A chapter on
intellectual property is now nearly de rigueur, and a few books have genuinely
serious coverage of personal property.73 The most thoroughgoing attempt
in this direction is probably Thomas Merrill and Henry Smith’s Property:
Principles and Policies, which freely mixes real- and personal-property cases,
covers public employment rights and spectrum and other important forms
of property rarely spotted between the covers of casebooks, and (gasp!) even
has intellectual property cases outside of the section specifically devoted to
intellectual property.74 But even this innovative book is held back by the genre
of the property casebook. It dutifully ticks every box on the real-property
checklist, from the Doctrine of Worthier Title to the Restatement (Third) of
Property: Servitudes.75 By my count, it devotes eighty-nine out of one hundred
and thirty-seven cases to real property.76 How much more innovative might it
be if it gave not one-third of its coverage to other forms of property, but two-
thirds?
Teaching beyond real property does not entail a commitment to teaching
topics in any particular order. Professors who prefer to start with initial
acquisition still can; those who would rather begin with exclusion, or with
transactions, can do that instead. A substantial choice must be made between
grouping topics or grouping types of property. One could imagine teaching
personal property, then real, then intellectual, then intangible, in each case
touching on the diﬀerent topics. Or one could teach initial acquisition, then
exclusion, then shared ownership, and so on, in each case touching on all the
types of property. Both approaches are viable, as are any number of hybrids,
73. See BURKE, ET AL., supra note 32. This is partly the simple survival of traditional personal-
property topics: first possession, finders, bailments, liens, etc. It also partly reflects the
modern vogue for a few dramatic cases on controversial forms of property, particularly body
parts.
74. See THOMAS W. MERRILL & HENRY E. SMITH, PROPERTY: PRINCIPLES AND POLICIES (2d ed.
2012).
75. Id. at 593-94, 1001.
76. My counts were eighty-nine real-property cases, thirty-four personal-property cases,
eight intangible-property cases, and six intellectual-property cases. Even combined, the
intangible- and intellectual-property cases add up fourteen, a shade over ten percent.
954 Journal of Legal Education

e.g., teaching personal property in the first third of the semester, and then going
over the same territory again topic by topic for the other types of property
combined. Any approach that recognizes the equal dignity of other forms of
property besides land would be an improvement over the present quagmire.
Moreover, the Big Ideas in a property course should, and will, vary with
professors’ interests and expertise. A professor who embraces property’s
diversity of subjects and unity of concepts can still teach with other cross-
cutting themes firmly in mind. Nothing about a historical approach requires
teaching only the history of land law: American law has gone through other
important transformations as it moved from preindustrial to industrial to
postindustrial property. Environmental and ecological concerns arise far
beyond real property; what are tradable emissions permits or fisheries quotas
but new kinds of property, intangible but with important connections to the
physical world? Economic considerations are just as relevant for modern forms
of property—indeed, more so, as more and more wealth flows through these
other forms. And property’s role in a democratic society, or an egalitarian one,
is not just a matter of giving everyone a little land.
I recognize that this is a dramatic departure in the content of the property
course. Surprisingly few upper-level courses will be discomfited thereby.
Teachers of trusts and estates will need to say somewhat more about future
interests—but they may make up the time elsewhere as students will already
know what a trust is. Courses in real estate transactions will need to cover
more ground—but then again, students who have thought about the general
problems of property conveyancing may be better-prepared than students who
have spent their time beating their heads against the maddening classification
of easements. Law schools might even, heaven forfend, need to oﬀer an elective
course specifically in land law. But that is pretty much it: The teachers of other
upper-level courses are unlikely to notice the substitution.
Longtime property teachers might also reasonably object that a substantial
redefinition of the course will require a great deal of work on their part. I
do not believe this constitutes suﬃcient reason to continue teaching a course
that wastes students’ time. Nor have professors traditionally shied away from
learning new things: It is part of the great attraction of the profession. But at
any rate, there are ways to lessen the burden of the switch. New casebooks
will help, just as today’s casebooks help new professors learn the course the
first time.77 Expanding property’s ambit will help, too, by showing that other
77. For example, I and four other property professors have assembled Open Source Property, a
free downloadable casebook. Stephen Clowney, James Grimmelmann, Michael Grynberg,
Jeremy Sheﬀ & Rebecca Tushnet, OPEN SOURCE PROPERTY: A FREE CASEBOOK, https://
opensourceproperty.org (last visited May 10th, 2017). It is provided as s set of remixable
modules, which professors are encouraged to edit and assemble to build a custom casebook
that meets their own pedagogical needs. Diﬀerent professors have used the materials to
teach very diﬀerent courses; my own spring 2016 “build” of the casebook (available on the
book’s website) comes closest to the principles described in this essay. The materials are
all made available for free reuse under a Creative Commons Attribution-NonCommercial
license, and we also oﬀer teachers’ manuals and slides for most of the modules.
Toward a Better Property Course 955

members of the faculty are qualified to cover the course. This is not a change
that needs to happen all at once, either: A professor who cuts ten percent from
her real-property coverage each year does students a substantial service each
time she does, and will arrive at a perfectly healthy, modern property course
within a few years. And finally, at some point, professors simply need to bear
down and do the work. Good teaching is hard, and there is no honorable way
around that fact.
The bar exam is a bigger obstacle. Whatever else it does, the first-year
property course does at least introduce students to the terms and doctrines
they will desperately try to memorize in the summer after graduation. Giving
up on that mission, even if it makes for better law students and better lawyers,
does make the bar exam into a higher hurdle. Some schools, relying on
their students’ general cognitive capabilities and their overall program, have
already largely decided not to teach to the test. At these schools, excising real
property would be no great loss. Other law schools do not have the same
luxury. They must cover what the MBE covers, or their students’ ability to
find jobs as lawyers will suﬀer. That is why this essay is also ultimately a plea
to bar examiners. Stop testing on “real property.” Test on “property,” in all its
forms.78

Conclusion
Property beyond real property deserves more than a foot in the door of
the property course; it deserves an equal footing. The present focus on real
property is not just myopic, but astigmatic. It holds us back in everything we
want to do with the course. Whatever good you think we can do for students,
we can do it better if we teach about other kinds of property. Property today
is a jumble of ill-fitting pieces, and here I am proposing to add more. But
trying to solve a jigsaw puzzle with only a quarter of the pieces is an exercise
in masochism. Only when we find the rest of the box will we stand a chance of
reassembling the whole picture.

78. Many state bar examinations go well beyond real property, even if they don’t realize it.
Their “property” questions are embedded in sections on commercial law, corporations, wills,
family law, etc. In these states, a better property course could help students study for the bar
exam.