The Contemporary Property Course: A Study of Syllabi

DePaul University From the SelectedWorks of Roberta R Kwall 1997 The Contemporary Property Course: A Study of Syllabi Roberta R Kwall Jerome M. Organ Available at: https://works.bepress.com/roberta_kwall/40/

Journal of Legal Education June, 1997 *205 THE CONTEMPORARY PROPERTY LAW COURSE: A STUDY OF SYLLABI Roberta Rosenthal Kwall [FNa1] Jerome M. Organ Copyright 1997 by the Association of American Law Schools; Roberta Rosenthal Kwall, Jerome M. Organ WESTLAW LAWPRAC INDEX LED -- Law School & Continuing Legal Education Property, perhaps more than any other first-year course, comprises a variety of distinct subject areas. To put the matter more colorfully, Property frequently offers students a plate of appetizers rather than a full meal. [FN1] Property really is the introductory vehicle to a multitude of upper-level courses, including estates or wills and trusts, real estate transactions, land use and zoning, and housing law. In addition, teachers often weave into Property significant strands of other subjects, such as jurisprudence, intellectual property, environmental law, family law, torts, and constitutional law. Because Property can include such a range of material, planning the syllabus can be a daunting task, even for a seasoned teacher. The Property Section of the AALS holds a major conference every five years. In preparation for the 1997 conference, we thought it would be useful to make a study of Property syllabi. Accordingly, we asked the then chair of the Property Section, Dorothy Glancy, to include in the quarterly section newsletter a request for syllabi. We received 40 syllabi from 37 schools. [FN2] The participating schools represented all the tiers in the infamous U.S News and World Report rankings. [FN3] Although we make no claim to scientific accuracy and have no assurance that our small sampling was truly representative, we believe our findings are nonetheless instructive. *206 The purpose of this article is twofold. First, it documents the findings about the syllabi that we reported at the conference, particularly in comparing coverage reflected in the syllabi with coverage reflected in a 1976 survey of Property teachers. [FN4] Second, it suggests some broader issues of coverage in first-year Property which grew not only out of our presentation specifically, but also out of the conference generally. For comparison purposes, we broke down the coverage of the basic course into eight major areas: adverse possession; present and future estates; concurrent estates; landlord-tenant; real estate transactions; servitudes; land use and takings; and a miscellaneous category that included personal property, economic and ownership theory, body parts, intellectual property, and other nontraditional topics. We tried to be methodical in counting the courses that covered each different area, but the syllabi we received ranged from ample descriptions to scanty outlines whose coverage was nearly impossible to determine without reviewing the page numbers in the relevant casebooks (and we had insufficient time for that). [FN5] Moreover, as several conference participants noted, a syllabus represents what the instructor hopes to cover in class; the actual 1

coverage may be different. To determine the number of class hours spent on a given topic, we resorted to equating fifteen pages of reading to one class hour if the syllabus did not indicate coverage more precisely. So our statistics are best interpreted as relative estimates. Perhaps their most useful aspect is that they illustrate current trends, especially as compared with the pattern in 1976. One notable trend appears to be a reduction in the number of hours allocated to Property. Although the 1976 survey did not have any indication of the number of credit hours allocated to Property, it suggested that most schools had a six-credit-hour course: the average time spent on all subjects totaled approximately 90 classes. [FN6] By contrast, fourteen of the schools from *207 which we received syllabi allot four credit hours to Property, nine schools give it five, and fourteen maintain six credit hours. [FN7] Findings on the Scope of Coverage Adverse Possession In 1976, nearly everyone was covering adverse possession, devoting on average about three class hours to it. Today nearly everyone is still covering the subject, but the time given it may have declined a bit: the average number of class hours seems to be between two and three. Many of the syllabi showed coverage of this material very early in the semester, often in the first week or two. Estates and Future Interests Not surprisingly, coverage of estates and future interests appears to have declined since 1976. Approximately 51 percent of the 1976 respondents spent five or more class hours on the estate system. [FN8] In addition, about 73 percent spent one to three classes on life estates; more than 62 percent spent three or more classes on future interests (other than in the grantor); almost 29 percent spent one to three classes on the fee tail; over 62 percent spent one to five classes covering the history of common law conveyancing (feoffment, springing and shifting interests, Rule in Shelley's Case, Worthier Title); and almost 41 percent spent one to five classes on the Rule Against Perpetuities. Only 19 percent of the respondents were not doing the RAP at all. On average, the respondents appear to have spent about fifteen classes covering the whole range of estate material. In our survey, nearly everyone is incorporating some coverage of present and future estates into Property, and the coverage of most respondents actually is quite substantial. Twenty-six of our 40 respondents appear to cover both future interests and the RAP. Eight of these 26 syllabi are from schools where Property is taught as a four-credit course (recall that in our study there are fourteen schools with four-credit Property). So eight of the fourteen *208 schools with four-credit courses are doing the RAP. These findings also suggest, however, that about 35 percent (14/40) of the respondents are not covering the RAP at all or at least not in great detail. Those respondents who do both future interests and the RAP give this material seven to twelve classes, with the average toward the higher end of this spectrum. The vast majority of the respondents who do not cover the RAP appear to be covering at least the classification of future interests and spending several classes on this topic. Only one participant's syllabus shows very minimal coverage of this entire area. Overall, it appears that our respondents on average are spending about nine classes on the estates material--a notable reduction since 1976--with fewer people covering the RAP. Concurrent Estates Our study suggests that concurrent estates, particularly marital property, are receiving slightly more coverage now than in 1976. Then, almost 62 percent of the participants were spending two or more classes on concurrent estates, but only 19 percent were spending two or more classes on marital property. On average, the 1976 respondents appeared to be spending between five and six classes covering concurrent ownership, community property, the effects of the marital relation on property, and cooperatives and condominiums. All our participants are covering concurrent estates. The average number of classes appears to be between three and four. When coverage of community property, marital property, and cooperatives and condominiums is included, the average number of classes jumps to between five and seven. At least 21 respondents (over half) are spending two to three classes on marital property, compared with only 19 percent who spent two or more classes on such material in the 1976 survey. In addition, five of the syllabi in our study list coverage of unmarried people and condominiums separately, although we suspect that more may cover this without specifying it on their syllabi. 2

Landlord-Tenant Law It appears that coverage of landlord-tenant material has declined since the 1976 survey. Over 75 percent of those respondents spent eight or more classes on landlord-tenant law, with almost 30 percent spending fifteen or more classes on it; only about 4 percent did not cover landlord-tenant at all. Of our 1997 respondents, 10 percent are not covering landlord-tenant at all, and no one is spending fifteen or more classes on the subject. The average coverage in 1976 appears to have been about ten to eleven classes; today the average coverage is between seven and eight classes. Real Estate Transactions The area we identify as real estate transactions includes a broad sweep of material, beginning with the listing of the property with the broker, and including the earnest money contract, the closing, and the array of methods to assure title, including deed covenants, recording systems, and title insurance. *209 Our study suggests that coverage of real estate transactions also has declined significantly since 1976. In 1976, nearly 25 percent of the respondents spent eight or more classes on "conveyancing" alone, and 10 percent spent more than fifteen classes on the subject. On average, conveyancing received about six hours of class coverage. In addition, the respondents indicated that they spent, on average, some ten additional classes on material such as marketable title, equitable conversion, the remedies of vendor and purchaser, mortgages, and the recording statutes and title insurance. Somewhere between 14 and 24 percent indicated no coverage of conveyancing or any of the other material associated with real estate transactions. The 1976 survey respondents appeared to be spending about sixteen classes on all the transactions material combined. In 1997, a quarter of the respondents (10/40) are not covering transactional material at all, while about a third (13/40) are covering all the transactional material in five or fewer classes. The rest appear to be covering the material in anywhere from seven to twelve classes. Although we found it difficult to project an average amount of time spent on the transactions material, it appears that teachers on average are spending seven to eight classes--half as many as in 1976. Easements, Covenants, and Equitable Servitudes Although more people are covering servitudes, the coverage of this material seems to have declined slightly. In the 1976 survey about 6 percent of respondents failed to cover easements, covenants, and equitable servitudes, and on average respondents spent ten classes on these topics. Our survey shows all respondents covering easements, covenants, and equitable servitudes, but the average coverage today appears to be seven or eight classes, with about 27 percent of our respondents spending five or fewer classes on the material, and about 30 percent spending ten or more. Land Use and Takings Perhaps the most significant increase in coverage has occurred in the regulatory takings area. Nearly a fourth of the 1976 respondents were not covering public land use controls at all, and the topic of regulatory takings did not even appear on the survey. [FN9] On average, however, the respondents appeared to be spending between five and six classes on land use controls. Today it appears that the same percentage of respondents (10/40) are not covering public land use controls at all. But nearly half (18/40) now cover regulatory takings in some manner (from rather briefly to quite extensively). The average number of classes devoted to land use and regulatory takings *210 appears to have grown slightly to six or seven, largely because of increased coverage of regulatory takings. Miscellaneous Topics Many of our respondents are covering forms of property other than real estate. Our study of the "miscellaneous" category was intended to reveal the degree to which courses still cover the staples of Property--bailments, finders, chattels, wild animals, gifts--as well as the less conventional areas like body parts, intellectual property, personhood, dispute resolution, Indian law, economic theory, and ownership theory. All but two of the syllabi we reviewed cover some form of personal property. We were somewhat surprised that about three-fourths still cover the wild animals/bailments/finders/chattels material. This is fairly consistent with the 3

1976 findings. [FN10] One of the emerging areas in this miscellaneous category is body parts: twelve of our syllabi reflect coverage of this material. Another growing area is intellectual property, with seven of the syllabi reflecting some specific coverage, usually in the form of the right of publicity. The following areas are also represented (each appearing specifically in fewer than five of the syllabi): economic theory, Indian law, personhood, and alternative dispute resolution. At least ten syllabi reflect coverage of theories of ownership. (We suspect that more teachers cover this subject even though it is not specified on their syllabi.) Aside from personal property, economic theory and theories of ownership are the only components of our miscellaneous category that the 1976 survey recognized as being part of the property curriculum. Thoughts on Future Directions Notably, while several components of Property show significant reductions (real estate transactions, estates and future interests, and landlord-tenant), very few areas show gains. Only concurrent ownership and zoning and regulatory takings reflect an increase in coverage, and in both instances the increase is modest. Of course, these results are not surprising given that since 1976 many Property courses have been compressed to four or five credit hours. Indeed, for all eight of our categories the number of classes seems to have decreased by about fifteen--which would be roughly consistent with the loss of one credit hour. In sum, one simple way to evaluate the syllabi we received is to focus on what is and what is not covered. Virtually every syllabus appears to cover at least some components of the miscellaneous material, adverse possession, estates and future interests, concurrent ownership, and servitudes. Although the depth of coverage may vary, these areas appear to be vital in the sense that no one has eliminated them in order to pare down a course or to make room for other material. The areas that apparently are not seen as critical are real *211 estate transactions and zoning and regulatory takings, each of which fails to appear in 25 percent of the syllabi, and to a lesser extent the landlordtenant area, which 10 percent of the respondents are not teaching. We held our roundtable discussion of the syllabi on the first evening of the conference, before most of the substantive plenary sessions. About 40 teachers attended. We raised a number of issues pertinent to the scope of coverage of Property. Given our survey findings, one significant area we explored was whether the course should be viewed primarily as a vehicle for covering specific subject matter, or rather as a vehicle for educating students about legal analysis and reasoning. Both views had their adherents. But the question presents something of a false dichotomy: many people indicated that by covering specific subject matter they are teaching legal analysis and reasoning. The more pertinent question that may merit further exploration involves the balance between these potentially competing interests in the selection of coverage. Is there some material that we feel we must teach because exposure to it is critical? Is there some material we feel we must teach because law students are unlikely to get it in any other course? Is there some material we choose to teach because we like it and it serves as a good means for emphasizing aspects of legal analysis and reasoning? These appear to be the questions that teachers will have to grapple with, particularly as more and more schools allocate fewer credit hours to Property. Everyone present at the roundtable who expressed a view on the appropriate number of hours for the first-year course seemed to feel a sense of frustration from the need to cram too much material into the allotted class hours. Even those who teach six credit hours gave the impression that they would like more time. Based on a showing of hands, there was no one present at the roundtable currently teaching a four-credithour course who was happy with the scope of its coverage. Interestingly, the coverage issues continued to come up in many of the breakout sessions. For instance, the coverage of future interests and the RAP was a main point of discussion at our roundtable and again in the breakout session on teaching future interests. Participants at our roundtable confirmed our impression that many people are still doing a full treatment of future interests and the RAP, even if the number of hours allocated to this material has declined somewhat. Even so, many felt uncomfortable with the amount of time required for complete coverage of this area. Susan Looper-Friedman generated much interest with her observation that she had been able to reduce substantially the amount of class time spent on future interests and the RAP by requiring her students to spend four hours outside class on CALI exercises. Still, one of the main points of the plenary session on future interests, made by David English, was that a growing number of states have adopted the Uniform Statutory Rule Against Perpetuities. This trend, combined *212 with the passing of a law in at least one state allowing drafters of 4

instruments to opt out of the application of the RAP, [FN11] calls into question the utility of spending too much time on the RAP. Many participants at the conference adhered to the view that teaching the classification of future interests still is a good idea, given the need for understanding these concepts in basic drafting of trusts. [FN12] The possibility of coordinating this coverage with that of the estates or wills and trusts course was recommended as the ideal, although doubts were expressed as to whether this is the norm at most schools. Several participants expressed an interest in covering more housing and housing discrimination law, and a roundtable discussion led by Florence Wagman Roisman verified a high degree of interest in this area. Many participants left the conference feeling that they wanted to make more room for this coverage, particularly as a means of emphasizing that the "law" of property is not all common law, but also includes statutory components. During the breakout session on takings law, some participants said that they avoid the entire takings area, either because it is taught in Constitutional Law or because they just do not want to get into the quagmire. Many participants, however, expressed an interest in doing at least some takings materials, and discussed some of the pedagogical goals they try to accomplish through teaching takings. These goals include emphasizing the extent to which a landowner's rights to use the land are subject to change over time, and the extent to which efforts at formalism in the law can be somewhat illusory. A separate breakout session dealt with teaching servitudes. With the impending completion of the new Restatement of Servitudes, the subject will likely remain a staple of the first-year course, perhaps because it is one of the few topics not included in any upper-level course. The other area of coverage which received a good deal of attention was intellectual property. On the last day of the conference, Pamela Samuelson made a persuasive pitch for working more intellectual property into the first-year course, given its growing importance. In addition, she conducted a breakout session, along with Roberta Kwall, about specific ways of incorporating intellectual property. The respectable attendance at that session--though it was late in the conference--suggests a high level of interest in integrating coverage of intellectual property into the firstyear course. The more recent editions of the property casebooks are also beginning to reflect this interest. [FN13] *** Our relatively unscientific data suggest a consensus that certain material (estates and future interests, concurrent ownership, and servitudes) should be part of any first-year property course. In contrast, other material (landlord- *213 tenant, zoning and regulatory takings, real estate transactions) apparently is not viewed as essential. Still, the decision about what should or should not be covered remains difficult for many teachers, particularly those who are being asked to condense their course into four or five credit hours. If coverage decisions are based partly on whether students can get exposure to certain areas in upper-level elective courses (for example, landlord-tenant, zoning and regulatory takings, and real estate transactions), then removing those topics from first-year Property may make some sense. On the other hand, perhaps there is some base of common information about "the law of property" to which all students should be exposed through integration of such material into the first-year course. These questions remain to be answered, perhaps by a new survey instrument that would allow more detailed analysis of what areas teachers are choosing to cover and why. [FNa1]. Note 1. Roberta Rosenthal Kwall is Professor of Law at DePaul University; Jerome M. Organ is Associate Professor of Law at the University of Missouri--Columbia. They presented the data contained in this paper at the AALS Property Conference in June 1997 in Washington, D.C. They thank Lawrence Arendt and Mary Middleton, DePaul University College of Law, for their editorial assistance. [FN1]. We thank Susan E. Looper-Friedman for this apt description. [FN2]. The participating schools were Baltimore, Boston College, Capital, Chicago, Chicago-Kent, Cleveland State, Dayton, DePaul, Dickinson, Duke, Georgia, Golden Gate, Harvard, Hawaii, Hofstra, Kansas, Miami, Minnesota, Missouri--Columbia, Missouri--Kansas City, Nova, Pace, Pepperdine, Saint Louis, St. Mary's, Santa Clara, Southern Illinois, Southern Methodist, Syracuse, Tennessee, Toledo, Valparaiso, Western New England, West Virginia, Widener, William Mitchell, and Yale. Four of the Widener faculty responded, and one person from each of the other schools. 5

[FN3]. Law School Rankings, U.S. News & World Rep., March 17, 1997, at 6 (corrected version). [FN4]. What Is Taught in the First Year Property Course? Preliminary Report by John Humbach, Chairperson of the Committee on Curricular and Teaching Developments of the AALS Section on Property. The survey was sent to more than 500 Property teachers at more than 160 law schools on the basis of listings in the 1975 Law Teachers Directory Supplement of those currently teaching "real property." Responses were received from 211 teachers at 116 schools. The survey included a list of 39 subject areas believed to be common components of basic Property and asked respondents to indicate how much class time they spent on each area. [FN5]. The most popular casebook is Jesse Dukeminier & James E. Krier, Property, 3d ed. (Boston, 1993). Other casebooks used by our respondents are Olin L. Browder et al., Basic Property Law, 5th ed. (St. Paul, 1989) (superseded by Grant S. Nelson et al., Contemporary Property (St. Paul, 1996)); A. James Casner & W. Barton Leach, Cases and Text on Property, 3d ed. (Boston, 1984); John E. Cribbet et al., Property: Cases and Materials, 7th ed. (Westbury, 1996); Sandra H. Johnson et al., Property Law: Cases, Materials and Problems (St. Paul, 1992); Sheldon F. Kurtz & Herbert Hovenkamp, Cases and Materials on American Property Law, 2d ed. (St. Paul, 1993); Edward H. Rabin & Roberta Rosenthal Kwall, Fundamentals of Modern Real Property Law, 3d ed. (Westbury, 1992); Joseph William Singer, Property Law: Rules, Policies and Practices (Boston, 1993) (2d ed. New York, 1997). [FN6]. In calculating the average number of classes allocated to a given subject, we took the percentage response within a given category multiplied by the midpoint of the category. We then summed for each category and summed all categories. Obviously, this method has a large margin of error. Nonetheless, because the survey suggested that the average respondent taught about 90 hours of Property classes, we infer that virtually all respondents were teaching Property as a six-credit-hour course. (Six credits times 15 class meetings per credit equals 90 classes.) [FN7]. We tried to equalize credit hours by equating one credit hour to fourteen 50-minute class meetings. Once again, this is an art, not a science, and in a couple of cases we rounded to the nearest whole credit hour. Anecdotal evidence that fewer credits are being allocated to Property may be confirmed by the fact that two of the schools with six credit hours of Property--Capital and Washington and Lee--are reducing the credits as of the 1997-98 academic year. At Capital, Property will carry five credit hours; at Washington and Lee, four. As of fall 1997, 15 of the 37 schools participating in our study will have a four-hour course, 10 will have a five-hour course, and 12 will have a six-hour course. [FN8]. The estate system was described as "basic differentiation of estates, including rules [regarding] rights of entry, possibilities of reverter, etc." This did not include common law conveyancing history (e.g. springing and shifting interests and the Rule in Shelley's Case and Doctrine of Worthier Title), life estates, future interests in someone other than the grantor, the fee tail, or the Rule Against Perpetuities, all of which were dealt with in separate categories. [FN9]. This is not entirely surprising, given that the bulk of regulatory takings jurisprudence has arisen since the Supreme Court articulated the ad hoc balancing test in Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 123-24 (1978). See, e.g., First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987); Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). [FN10]. In 1976 about 16 percent of respondents failed to cover "original acquisition of title" (which should translate to the wild animal material), 34 percent failed to cover bailments, and 23 percent failed to cover finders. A rough average of these three areas is 25 percent. [FN11]. A bill passed by the Illinois legislature on May 22, 1997, allows a drafter to opt out of the RAP by inserting an express provision into the document to the effect that "the Rule Against Perpetuities shall not apply to this instrument." English believes this trend will continue in other states. [FN12]. In the plenary session on donative transfers, English also made the point that almost all modern future interest questions arise in connection with drafting trust documents. [FN13]. See, e.g., Curtis J. Berger & Joan C. Williams, Property: Land Ownership and Use, 4th ed., 77-85 (New York, 1997); Singer, supra note 5, at 1155-60 (2d ed.); Rabin & Kwall, supra note 6, at 340-56; id. at 11 6

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