TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Thursday, August 17, 2017

Grimmelmann on Blowing Up the Property Law Course

PropertyJames Grimmelmann (Cornell) has posted a lively and provocative essay, Real + Imaginary = Complex: Toward a Better Property Course (66 J. Leg. Educ. 930 (2017)), on SSRN.  Here is the abstract:

"Property” in most law schools means real property: the dense, illogical, and special-purpose body of land law. But this is wrong: property also comes in personal, intangible, and intellectual flavors—all of them more important to modern lawyers than land. Real property is deeply unrepresentative of property law, and focusing our teaching on it sells the subject short. A better property course would fully embrace these other forms of property as real property’s equals. Escaping the traditional but labyrinthine classifications of real property frees teachers to bring out the underlying conceptual coherence and unity of property law. The resulting course is easier to teach, more enjoyable for students, and more relevant to legal practice. There is no excuse not to switch.

Having just posted my own "burn down the mission" screed in which I suggest dismantling most law school courses not mandated by the Uniform Bar Examination (and several that are), I enjoyed reading James's critique of property.  We both quoted Holmes's famous dictum about doing things because that's the way they've always been done.

Only two somewhat related quibbles.  First, the title of the article suggests something about numbers - as real numbers combined with imaginary numbers make up the complex numbers.  The allusion never shows up in the text.  Inquiring minds want to know what it means!  

Second, I confess to being a skeptic about "underlying conceptual coherence and unity" of any area of the law.  The titular allusion to numbers made me think that James was promoting the actual or metaphoric similarity of legal systems to mathematical systems.  See this from the article:

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.

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 Perpetuities is often a rite of passage for students, so are binge drinking and fraternity hazing.

There's no doubt that complex formality of math offers a comforting coherence and consistency (but not completeness) to soothe the teleological soul.  I'm less inclined to give students the impression that law does the same thing.  But I loved that paragraph anyway!

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