Property and planning.

• Author: McDougal, Luther L., III
• Position: Testimonial to late Yale Law School Professor Myres McDougal

In his famous article with Harold Lasswell on legal education and public policy, Myres McDougal hinted that his first major book might be a property casebook. At one point the article states:

[T]he organizing foci of the "property" courses are such concepts as "easement," "profit," "license," "covenant," "servitude" or "land contract," "deed," "delivery," "covenant of title" or "reversion," "possibility of reverter," "right of entry," "remainder," and "executory interest," and not such goals as the provision of healthful housing, in well-planned communities, for all citizens at prices that they can afford to pay or the promotion of the cheap, secure, and speedy transfer of land, without adventitious restraints having no basis in policy, or the appraisal of doctrines and practices about the transmission of wealth from generation to generation in terms of their effects on a balanced distribution of claims in society.(1) He expands on these ideas later in the article. I say "he" because Lasswell knew relatively little about property law. Five years later, in 1948, McDougal and David Haber published Property, Wealth, Land: Allocation, Planning and Development,(2) which incorporates his thoughts in the article plus much more. This casebook represented a radical departure from the traditional mold both in terms of organization and content. It contained both original writings and excerpts from other works putting property law in its economic and social context. The casebook changed not only property law and the organization and content of future property casebooks but also the content of most future law school casebooks. Casebooks with social science materials are probably the norm today.

The law of property that the young Myres McDougal studied was still largely based on English common law and the focus, for the most part, was individualistic, the law being concerned with protecting the rights of property holders and, through the complexities of future interests, enhancing the individual's power to control his property from the grave. Considerations of public policy, to the limited extent they were acknowledged, were largely concerned with protection of the individual's right to private property. This notion of relevant public policy probably resonated with the young Myres McDougal's own experience while growing up in rural Mississippi. His father, a doctor, acquired a good deal of land, and, in general, land was viewed as the most important form of wealth and the basis for enhanced status in society. The casebooks that were used at Ole Miss, where Myres McDougal first studied property, reflected these basic ideas. Although I don't know which casebook was used in his property course, a look at casebooks generally in use throughout the country at that time shows that they were primarily a collection of cases, many of them old English cases, with an occasional note that contained a list of supporting authority or a brief doctrinal statement expanding on what the court discussed in the principal case. Although Myres studied property again at Oxford...