Your Upcoming Property Exam

By Professor Matthew Festa

While I have the chance to talk with you on the Open Book blog, I figure that I should take the chance to discuss the subject matter that I teach (and test) in: Property. Open Book has a lot of good ideas for understanding Property, plus exam models by several leading teachers in the field.

Property is widely regarded as one of the more inaccessible, difficult, and boring fields of the first-year curriculum. But this is all wrong. Property is fascinating and hugely relevant. I sincerely want you to be interested in Property, and that’s what motivates me in the classroom.

But remember the Prime Directive. And even more than that, Property wouldn’t be in the 1L curriculum if it wasn’t something that you generally need to know as a lawyer. You are going to be tested on property, both in the Property Course and in related subjects. There are good reasons that it’s in the 1L curriculum. Property is basic to understanding law, it’s tested on the bar, and it comes up in practice all the time.

I could go on and on about it, but that’s part of the point: I am passionate about teaching property law, so as students you need to do your best to master it, and relate it to other experiences in your legal education. This is a perspective you can apply to your other classes: it is always good to get some mastery of a well-rounded range of legal subjects; and it is important to focus on what things your teachers think are important.

If the general advice that I gave above isn’t enough for you, as you approach your property exam, here’s a more specific takeaway: as hard as you need to work to learn all of the property rules, there really is an underlying logic to property law. In one short statement, here it is:

Property is a social institution that recognizes your rights against others to possess, use, exclude, and alienate things; you can share or divide those rights with others both now and in the future; you can convey an equal or lesser portion of your rights in time, space, or use. Property law generally allows you to put your property to its highest and best use, but your rights are subject to common law limitations designed to promote efficiency and fairness, including preventing unreasonable harm to others; to certain transactional rules; and ultimately to the government’s power to regulate for the common good.

Wow, I can’t believe that I just boiled down an entire year’s worth of teaching—in one of the foundational doctrinal areas of law—to one sentence (maybe it’s cheating with the semicolons, but I don’t think I’m able to distill it any more than that). It may not be perfect, but I think it’s a pretty good distillation of the essence of property law, and if you keep this in mind it will provide a good background for thinking about property issues and questions. But don’t take my word for it: test yourself and see if you can come up with a concise statement that embodies your professor’s articulation of the theory of property.

But here’s the thing: that’s the easy part. If you get anything out of reading Open Book, you should understand that law school exams—and legal practice—test you far beyond your ability to merely know the law. You have to spot the issues, then apply the correct rule from your toolbox, then apply it to the crazy facts your client gives you. And you have to practice doing all that. Nevertheless, it can be helpful to have a good understanding of a background theory of your subject, which might help you understand and frame the issues, find the appropriate rules, and reason your way to an intelligent conclusion.

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