Pepperdine Law Review


Special Essay


Roger Bernhardt


This Article describes an alternative way of teaching the Property course so as to have students appreciate that the rules covered there are relevant to the everyday practice of law. It concentrates on the use lawyers make of those rules, rather than treating the rules as ends in themselves.

What I do here is approach the rules covered in Property from the position of attorneys who have to deal with them in the ordinary course of their practice-- not at a jurisprudential or appellate level, but at the earlier, simpler stages of questioning clients, drafting documents, negotiating with others, preparing for litigation, and when necessary, litigating.

The traditional case method does little to make a student appreciate what most class discussion has to do with actually being a lawyer. Rule learning appears to many students to be something to do in order to graduate law school but not very relevant to the activities of lawyering which they hope to engage in after graduating.

Most teaching innovations that go beyond the pure case method do so in a litigation context. But everyday real estate practice does not consist primarily of litigation. Clients with real estate matters more often consult their attorneys in order to make transactions terminate favorably rather than because transactions have already terminated unfavorably; they are clients who have not yet acted, or prepared their offers, or commenced their negotiating, and who have generally not yet started feeling antagonistic to the other side. Litigators and judges are stuck with facts that have already occurred, but transactional practice contains the extra dimension of creating the facts: telling clients what they can and cannot do or that their desires can be achieved if they go at it one way rather than another, inserting or deleting clauses in documents to avoid adverse consequences, or striking or not demanding clauses that merely duplicate what the legal system already provides. These creative possibilities are denied to those who merely litigate. [FN1]

Realistic coverage of the rules of Property need not be limited to hypotheticals involving disputes over facts that already exist and documents that have already been executed. Co-ownership issues can be raised in terms of advising two clients how to take title to land they are acquiring rather than in terms of resolving a disagreement as to the consequences of a deed they already have. Landlord-tenant coverage can revolve around consideration of what provisions to include (or omit) in a lease rather than as argument over the effect of the provisions in an already executed lease. Conveyancing is clearly better suited for asking what provisions to put in a listing, offer, deed, or escrow instruction than in analyzing the provisions of an executed agreement in order to determine whether to sue or not. Land use can be made significantly more realistic and believable to inexperienced students by having them consider what regulations they might wish to enact rather than considering the effect of those already in force. Adverse possession is less subject to such a planning approach, but even it has many aspects in which legal creativity about making use of the rules can play an important pedagogic role. [FN2]

The teaching proposals presented in this Article are procedural and not substantive. I do not seek to revise the corpus of the Property course [FN3] or to offer new insights into the cases, rules, or policies covered there; the teachers' manuals and law review articles already do that. I address myself instead to the more mundane attempt to introduce Property concepts to students in more pragmatic ways. [FN4] Professors may continue to address their favorite themes just as before, with only the background context for the class discussion of these themes being altered. [FN5]

Readers may note the absence of any systematic lawyering style in what follows. The teaching techniques appear almost random because the approach taken in each class is driven by the subject matter rather than by the technique; the course taught is Property rather than Legal Process. For instance, although it might be desirable to begin with the drafting of simple documents rather than with litigation, if the first topic covered is adverse possession, most scenarios would have to be wildly unrealistic to support drafting or planning questions. [FN6] The approach taken for each topic has been developed by trial and error rather than through a priori thinking.

There are also no large, complex questions, such as the problem method of teaching tends to emphasize. [FN7] What is presented here is more atomistic. Each rule or doctrine has a set of questions best suited to get to the practical application and understanding of just that rule or doctrine. Since the next rule to be covered might require switching sides, changing facts, or moving to a different setting, too much flexibility is lost if all issues on the day's agenda are integrated into one single, overarching problem. [FN8]

Most of this Article consists of the actual questions put to the students. I think that it will be more helpful to my fellow instructors, especially those new to the teaching of Property, for this Article to provide the literal text of questions one might ask in class, rather than with a conceptual but elusive theory that forces the reader to figure out how best to implement it. [FN9] I have put all questions to be addressed to the class in italics in order to clearly separate them from the pedagogical commentary accompanying them.

The questions put forth are generally addressed to those students who are asked to be lawyers for the day, "Laura" and "Larry" in this Article. [FN10] Other students are designated as the principles for the transaction and topic under examination. [FN11] By keeping their identities constant for the duration of the topic, [FN12] one less variable is introduced, situations are humanized, [FN13] and there is less of a need for cumbersome labels in the discussion. It is easier and more realistic to say in class, What about Sid? than to say What about Finder #2? [FN14] But this feature is hardly essential if your style is otherwise. ***