_ Property in Context

• Publication year: 1999
• Citation: Vol. 22 No. 03

SEATTLE UNIVERSITY LAW REVIEWVolume 22, No. 4SPRING 1999

REVIEWS

Property in Context

Property Law and the Public Interest. By J. Gordon Hylton et al. Charlottesville, Virginia: Lexis Law Publishing, 1998. Pp. v, 778.

Reviewed by Craig J. Albert(fn*)

"[I]t is my expectation that [the casebook on contracts] will be followed by other volumes of the same plan; but I have as yet formed no definite opinion as to how far the design will be carried."

-C.C. Langdell

So began Christopher Columbus Langdell in the very first casebook for use in an American law school,(fn1) and the deluge of casebooks has not stopped. The first Property casebook, known popularly as "Gray's Cases,"(fn2) was introduced to the Harvard Law School in 1888 by Langdell's colleague John Chipman Gray. Gray had one-upped Langdell, at least in terms of weight, for while Langdell(fn3) condensed his comprehensive treatment of contracts into a single volume, Gray's efforts spanned six volumes. All of that paper was not wasted, for Harvard's law students studied Property two hours per week, every week, for all six semesters of law school. Now, as Property has shrunk in most law schools to a single semester of three or four credit hours, Professors J. Gordon Hylton, David L. Callies, Daniel R. Mandelker, and my colleague, Paula A. Franzese, offer a new casebook, Property Law and the Public Interest,(fn4) to respond to the new environment.

The authors have two objectives. First, they sought to create a casebook that could be more easily adapted to the shrinking role of Property in the curriculum, for "the typical casebook . . . forc[es] the instructor to leapfrog through the book covering parts of chapters and omitting others altogether."(fn5) Second, they sought to present the subject matter in a way that eschews a traditional dichotomy between public and private sources of law and instead focuses on the underlying resources that are allocated by law.

In my view, the second goal is worthwhile because it places Property in context and, therefore, aids understanding; the goal is laudable, even in the absence of a shortened text. But here, where the primary goal is to create teaching materials that can be covered in a single semester, the need to put property in context is absolutely essential. Happily, the authors achieved both of their objectives.

Aside from the authors' stated goals, we might ask independently where the need for another casebook lies. The need is apparent to me each time I open the discussion of a case in which the unstated introduction could easily be: "This may not be interesting to you, but . . . ." Why shouldn't the cases be interesting? Why shouldn't the matter be presented in a way that piques the average reader's interest rather than that of the instructor? This is no idle speculation. With over one hundred years' worth of experience since Gray, Property casebooks ought to be fairly evolved by now. Still, there may be new ways to present the materials in this most essential, but to many students incomprehensible, of first-year offerings. Rather than rationalize about why Property continues to be one of the least favorite subjects for law students to learn and for law professors to teach, perhaps it is sufficient to ask what changes we can make in the way we teach the subject so as to make it more accessible.(fn6) Considering some of the reasons often advanced-such as Property's arcane language and its history based on long-dead social structures-it makes more sense to put Property into context and demote the unpleasant aspects to the side-order status that they deserve. Let the law professors order the odd-flavored appetizers; the students will be ordering the main course.

BACKGROUND: OF PROPERTY CASEBOOKS AND THE CASE METHOD

When the editors of this law review asked me to contribute my thoughts on Property Law and the Public Interest, I puzzled over what was new that I could say about a subject so old. Indeed, what could anyone say that was new, and why does the world need another Property casebook? The answer lies in understanding how Property casebooks became the way that they are.

My clue came from Professor Farnsworth's history of American casebooks.(fn7) Langdell's era was (in Farnsworth's terms) the "Age of Anthology," meaning that the cases were arranged chronologically, without comment, to show the historical development of the law. That Age gave way in the 1940s to a new type of casebook filled with editorial opinion and secondary materials.(fn8) The path from the old to the new was illuminated by such innovations as a detailed table of contents (contrasted with sparse chapter and section headings), footnotes to other authorities, and (finally) extensive explanatory notes, questions, and problems.

Before Langdell arrived, the small minority of law students who attended law schools heard professors lecturing on their synthesis of law; students' preparations consisted of reading from treatises. Most would-be lawyers either trained as clerks, learning the practical aspects of the trade from an experienced practitioner, or simply commenced practice without any training.(fn9) In developing the case method, Langdell necessarily had to consider the advantage of students attending law school rather than their traveling the usual road.

Given the fact that the case method of instruction had supplanted a lecture method in which instructors synthesized the law for their students after the students had prepared for class by reading treatises, was it not the case that the evolution of the modern casebook was really a devolution to the pre-Langdell method? Quite possible. Consider, for example, the fact that as soon as it was introduced, Langdell's method had its critics, engendering in turn a criticism of the teaching materials designed for the case method. Take, for example, the review of Selected Cases on the Law of Property in Land, an 1898 offering reviewed in the Harvard Law Review, in which the student reviewer wrote,To give the student some idea of the growth of the law, to make him more ready to feel its tendencies and to solve its new problems-all this is no part of Mr. Finch's purpose in the present volume. Presumably he has left it to the instruction accompanying the study. His sole aim seems to be to show what are the prevailing rules of the law of property in America to-day. His method is to make a comprehensive scheme of the law, dividing and subdividing it into a multitude of minor topics which, speaking roughly, include all that is usually given in a course on real property in one of our law schools. These sub-topics are treated as units, a group of cases-or more often a single case-shows the generally accepted rule of law in regard to each of them, constant cross-references show its relation to the rest of the subject. The cases selected are always modern, to the point, and illustrative-though not leading. The requirements of space which cut the collection down to a single volume forced the compiler always to leave out the pleadings and the statements of fact-yet these are the data of the legal problems. To the student of this volume the law of property must appear only a succession of fairly definite rules that stand ready to be applied to every need. No notes guide him to further research, his cases give him no idea of the conflict of authorities, he must rely solely on the acumen and judgment of the compiler. The book points constantly to a complete knowledge of the law rather than a thorough understanding of it.(fn10) In other words, this student of the Gray tradition wrote, the Langdell -style casebook is too sparse; it provides no context.

At Yale, on the other hand, the law students wanted some kind of a commercial outline; forget the notes to the cases and the synthesis. There simply wasn't enough time in the day for the reading that the case method demanded:After reading a mass of details, rules and exceptions, after going through the cases in point, the really essential thing still remains to be done, namely to reduce this mass of raw material to its proper proportions in the form of general principles. This process of mental digestion is the hardest part of the work, and, owing to the unfortunate fact that there are but twenty-four hours in a day, is seldom well attended to. The difficulty is perhaps more marked in the "case" system than in the text-book system, but it is sufficiently bad in either. . . . Accordingly there is a growing need, particularly in those branches of law where the reasons for the rule are less obvious, for a condensed "practical philosophy" for each branch; and as decisions multiply and details accumulate, this need will become more imperative, until it is met by independent books dealing with the respective subjects from this point of view.(fn11)

But wasn't the sparse casebook form necessary for the case method? Not really. Langdell created the casebook form as an afterthought to aid him in the case method in a mechanical way. The instruction is separate from the materials. Langdell explained in the preface to the first casebook that his task at Harvard was to teach a large class and that he perceived three things that had to be accomplished. First, the study of the students was to be "with direct reference to [Langdell's] instruction."(fn12) Second, the students' studies should generate "the greatest and...