SEATTLE UNIVERSITY LAW REVIEWVolume 22, No. 4SPRING 1999
A Walk Through the Woods of the Property Course with Dukeminier and Krier's Casebook on Property
PROPERTY, 4th Edition. By Jesse Dukeminier(fn*) and James E. Krier.(fn**) New York, New York: Aspen Publishers, Inc., 1998. Pp. xiii, 1247
Reviewed by Charles I. Nelson(fn***)
The first edition of Property by Jesse Dukeminier and James E. Krier appeared in 1981.(fn1) At the time, I had been teaching the basic Property course for only three years and was well-satisfied with the book I was then using. When I received my review copy of the book, I put it aside for later review, thinking that it was probably just a rehash of other casebooks I had seen. Sometime later I picked it up, looked through it and was struck immediately by how clearly it expressed my own notions about how Property should be taught. As I read through the book, I knew almost immediately that I was going to adopt it for my course. Adopt it I did, and I have never looked back. Now in its fourth edition,(fn2) the casebook has shifted its focus on a number of occasions but has always remained true to the central themes of the first edition. In this essay, I hope to share with you what I find to be so engaging about the casebook and why I think it is such an outstanding pedagogical tool.
In choosing a casebook, it is important to me that I be able to articulate its themes so that students are able to know where they are going and how the steps along the way fit together. This casebook is organized along three main themes even though it has five major parts. The first two parts seem to me to focus on relative rights in property.(fn3) The third part discusses transfer of property interests and assurances of title and the fourth discusses regulation of land use by private and public means.(fn4) The majority of this essay will look at those themes and how they play out in the casebook and in my course. In the latter part of the essay, I will discuss some of the things I find most engaging about the book and why I continue to use it.
I. Themes of the Casebook
A. Relative Rights in Property-Herein of Possessors
The book begins with an examination of the ways in which we come to possess property, and what it means to "possess" something. The authors believe that while we all use the term "property" in our conversations, it is important for lawyers to understand how property comes to be.(fn5) It is that understanding which forms the basis for a discussion of the relative rights of one person as against those of another. The first case discussed is a fascinating one, Johnson v. M'Intosh,(fn6) in which persons claiming through purchase from Native Americans were suing persons claiming through a grant from the United States. Chief Justice Marshall expounds the principles of prior possession by the Native Americans, the discovery by Europeans, the assertion of sovereignty by the European countries and the restrictive impact that had upon the Native Americans' interests.(fn7) The opinion establishes once and for all that a person in lawful possession may be preempted by a successful assertion of sovereignty.(fn8) To the extent that the sovereign has granted title to private owners, the case also establishes that title is preeminent over possession.(fn9) Thus, in the hierarchy of property rights, sovereignty has been established as the preeminent right, with title being a secondary right, and possession being inferior to both. That does not extinguish the value of either title or possession, but it does place a restriction upon the concept of title and makes possession an inferior value to both. This is a theme that is echoed throughout the first part of the book.
Moving beyond the opening case, the authors look at the relative rights that are created by capture. Although there might well be cases that illustrate the more modern applications of the rule of capture, such as oil and gas cases or water appropriation cases, the authors choose to use that wonderful case of Pierson v. Post,(fn10) in which sportsmen who are "riding to the hounds" are foiled in their attempt to capture the fox by Pierson, who killed the fox and carried it off. Since neither party owned the fox, the question was whether anyone acquired any rights in the fox which could be enforced against the other party. This is a case which has delighted law students for years since, at bottom, the questions are why people choose to fight over the dead carcass of a fox and how should such a decision be made. The court decides the question on the basis of when possession first occurs and says that it occurs when the fox is "captured."(fn11) That raises a further question of how we know when something is captured. Does capture happen when we begin to make efforts to appropriate something; when we have asserted such dominion that it is certain to be appropriated; when we limit the ability of others to appropriate it; or when we have restricted it in such a way that no one else can appropriate it? The majority hold that capture occurs when the fox has been mortally wounded, and the hunter intends to continue the pursuit.(fn12) Why choose that principle? At this point, there is a wonderful opportunity to discuss jurisprudence and the reasons why we make judicial decisions. Should it be, as the majority suggests, to promote certainty? Should it be to promote fox hunting, as the minority suggests, to rid us of noxious beasts? Who decides what is noxious and what is a valuable resource? Should it be based upon investment in the enterprise to encourage economic ventures? All of these inquiries are important to challenging student thinking about how and why we make decisions. Frankly, I like to leave students without much in the way of answers to these questions but tell them that we will resume the discussion at the next class as I find it stimulates discussion among them and sharpens the debate at the subsequent class.
The opening section concludes with a discussion of property rights that arise from creation of the property. The case used is Cheney Brothers v. Doris Silk Corp.,(fn13) in which plaintiff sought to protect original designs for silk clothes. Since the designs were useful only for a limited period of time, plaintiff sought limited protection.(fn14) The designs could not be copyrighted and so plaintiff asked the court for an injunction to prevent defendant from copying its designs.(fn15) This provides an opportunity to discuss with students the concept that not all property interests are protectible. My experience is that it offends students' sense of justice that one can spend money, time, and effort in creating designs and then have them immediately appropriated by another; however, the court says that Congress has adopted a copyright law which does not allow room for common law copyright. It is a subject which tends to disturb students because of its patent injustice to the plaintiff, but is well worth the time in denning the limits of a court's power and introducing the doctrine of judicial restraint.
One of the concluding cases in the chapter is Moore v. Regents of the University of California.(fn16) This case involves an attempt to create property rights in tissue taken from the spleen of a leukemia patient at UCLA Medical Center.(fn17) Without his knowledge or consent, the tissue was used to make certain cell lines for research purposes which were then sold.(fn18) Moore sued to recover part of the profits from such sales on the ground that his "property" had been converted to the use and benefit of the defendants.(fn19) The court of appeals determined that the issue should be decided by dominion which involves rights of use, control, and disposition.(fn20) It found that the plaintiff had not abandoned his tissue nor given it to the hospital.(fn21) As such, it was still his.(fn22) On appeal, the state supreme court decided that, using the analysis of the court of appeals, the plaintiff could not use the tissue, nor could he control its disposition since that was precluded by law.(fn23) It then looked at the tort remedy of conversion and decided that it should not be extended to this type of situation because public policy dictated that such extension was best left to the legislature and that rights of privacy and informed consent provided adequate protection of any interest of the plaintiff.(fn24) Again, this case is at the frontier of thinking about property interests and provides a wonderful opportunity to explore the question of whether there is a difference between "personal rights" and "property rights."
Having come to the end of these cases where very challenging and far-reaching concepts of property have been discussed, one of the difficult tasks is to try to tie it together in some form of coherent whole. My experience is that it is this chapter, together with estates in land and future interests, which cause the greatest difficulty for students trying to grapple with the whole. My own summation focuses not on creating a coherent body of law from the chapter but rather recognizing that the discussion of property is a discussion of whether my rights are greater than yours and whether I have any rights which are worthy of protection. Understanding that distinction is the key to...
