Back in 2010, I wrote a piece for the Martin Center entitled Bad Sociology, Not Law bemoaning the marginalization of common law doctrine in the American law school curriculum. My point then was that, increasingly, law students were just learning about legal doctrine in their classes rather than being called upon to master the prevailing legal doctrine itself in all its complexities. Why being a lawyer is the best job.
Put differently, law teachers are devoting more classroom time to policy (what should be) and less to the prevailing law’s basic anatomy (what is). At Harvard Law School, for example, Agency, Trusts, Evidence, Business Associations, and Family Law are no longer required classes and have not been for some time.
Competently addressing the nuts-and-bolts needs of the middle class when it comes to the rendering of legal services has not been a serious pedagogical goal for quite some time now in most of the prestige law schools.
On the other hand, students in the first year at Harvard are required to participate in “ungraded reading groups” that “allow students to explore an intellectual interest outside the scope of the foundational first-year curriculum.” The course catalog informs us that “topics” are as “diverse” as “legal responses to terrorism, regulation of climate change, Biblical law, detective fiction, conservative jurisprudence, artificial intelligence, and bioethics.”
Over the last nine years, as one can see, the problem I lamented has gotten worse.
This drift from “the law” to “about the law” has an unfortunate political component to it that Northwestern University law professor John O. McGinnis exposed in his article The Embedded Left-Liberal Assumptions of the Legal Academy. His concerns are big picture and fully justified: “Universities should have as their objective the production of knowledge, not activism…And activism interferes with the university’s production of knowledge, because it leads directly to ideological discrimination and the erection of roadblocks of orthodoxy that impede truth seeking.”
In the legal academy, McGinnis continues, “[p]rofessors are overwhelmingly left liberal and there is substantial evidence that conservatives and libertarians suffer discrimination.”
That’s important, but my focus is less philosophical, more practical: This drift means that newly minted lawyers are less prepared than were their predecessors to represent the interests of their middle-class clients. This is true particularly in the non-criminal context, whether it be conveying a parcel of real estate, drafting a trust, or negotiating an employment contract.
Casebooks are being assigned in the required Property course, for example, that are different from the casebooks of a generation ago; some are very different in not a good way.
Since time immemorial, law schools had required a course in our law’s prevailing property doctrine. That doctrine, the product of centuries of evolution, is multi-faceted, complex, and hyper-technical.
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There are shared property interests. Future property interests. Equitable property interests. The dreaded rule against perpetuities applicable to both legal and equitable property interests. Limitations on the right to exclude and limitations on the right to transfer. One can go on and on. A course in prevailing property doctrine posed many challenges for professor and student alike, and still does.
When it came to teaching prevailing property doctrine, there was little time for extensive musings on what the law ought to look like. Discussing the problem of “wealth inequality,” for example, was fine in the dorm room, but not in a traditional Property class.
Moreover, how can a student intelligently discuss what property law ought to look like if he or she hasn’t a clue what the law currently is, and how it came to be?
Or, how can a student grasp what a trust is, a trust being a fiduciary relationship with respect to property, if the student hasn’t a clue what a property interest is? No longer can I assume that the students who enroll in my Trusts courses have internalized basic property doctrine, a sine qua non to understanding the fundamentals of the trust relationship. The “modern” Property text shares some of the blame.
What did Property casebooks used to look like? Consider Casner and Leach, Cases and Text on Property. When one thinks of a “traditional” Property casebook, one thinks “Casner and Leach.”
Let’s let the authors, World War II veterans both of them, speak for themselves:
This case-and-text book has the following objective: (1) to give the first-year law student basic training [my emphasis] in property law, (2) to provide him with material that will enable him to make a judgment as to the adequacy of property law to cope with significant modern social problems, (3) to start the student along the road to becoming a lawyer and then to move onward with some celerity.
The reference to “coping with significant modern social problems” should not be construed as debating inequality, the merits of socialism, or what have you. Take gifting doctrine. The authors’ pedagogical philosophy is that
the first-year course in property should give the student a basic understanding of the transmission of wealth by donative transactions so that he can make an evaluation of the advantages and disadvantages of what has emerged.
Doctrine, not indoctrination. True, 60 pages are devoted to the “indigent tenant,” but the focus is on the nuts and bolts of how the law has been coping with the societal problem.
At all times, the authors’ focus is on the client as an individual. In their introduction, they assert that “social consciousness” is not a sine qua non of being a good lawyer. True, a good lawyer should make his or her client aware of any “consequences to the community” of, say, placing a particular type of restriction on a parcel of land. “On the other hand, if he draws a will for a Rockefeller, or cross-examines a lying witness in a tort case while reflecting on the inequalities of the distribution of wealth, he is not likely to do the best job of which he is capable.”
So now let’s have a look at a Property text that is the antithesis of Casner and Leach, namely Singer’s Property Law: Rule, Policies, and Practices . The book’s introductory quotation, from Chief Justice Joseph Weintraub of the New Jersey Supreme Court, sets the stage: “Property rights serve human values. They are recognized to that end, and are limited by it.” Note that the focus is on “human values,” not on the individual and his rights under the law.
How can a student intelligently discuss what property law ought to look like if he or she hasn’t a clue what the law currently is, and how it came to be?
Singer comes right out and says that he and his co-authors “seek to present a contemporary introduction to the law of property, focusing on various pressing issues of current concern as well as the basic rules governing the property system.” The current concerns of whom one might ask. Suffice it to say they are not the current concerns of the conservative or libertarian.
Singer declares that “distributive justice” is a recurring theme in the book. Pages are devoted to his concerns as to how well property is “dispersed” in the United States. It is no wonder that few students nowadays who enroll in my Trusts course have mastered the critical details of prevailing property doctrine.
The practical problems with the Singer casebook relate to coverage and emphasis.
First, coverage. Take the law of gifts. Gifting is a common activity of the middle class. Moreover, equitable property interests in irrevocable trusts in the non-commercial context are generally created via donative transfer. Casner and Leach devoted almost 60 pages to gifts of personal property. Singer devotes essentially two pages to the subject.
Or take the law of bailment. A bailment arises when one person is temporarily in possession of another’s property. Tossing the car keys to the parking attendant can raise bailment issues. Bailment was threaded throughout Casner and Leach, but appears nowhere in the Singer index. Few newly minted lawyers nowadays could provide a coherent explanation of why a bailment is not a trust.
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Now to emphasis. The fee simple, the life estate, the tenancy in common, the joint tenancy—these are core categories of property ownership that lawyers servicing middle-class clients need to know a lot about. Casner and Leach get right to those arrangements. In Singer, a student has to slog through pages of politically correct clutter before he or she gets to the fee simple, which is around page 748.
Up to page 748, the student has been expending critical time and energy and laptop capacity considering “discrimination and access to ‘place of public accommodation,’” “the right to be somewhere and the problem of homelessness,” “competing justifications of property rights,” and what have you.
Too many law students are not receiving basic training in prevailing property doctrine that would set them on the road to being in a position to competently service the legal needs of the middle class. Precious time and energy is being squandered on ideological tangents. That your son’s Property text may well not be your father’s Property text is not helping the situation.
Charles Rounds, Jr. is a professor of law at Suffolk University Law School.