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Property Class and Learning to Think Like a Lawyer

Is there a purpose to Property class beyond learning a bunch of boring rules? Professor Donald Kochan posits that the property course serves a much broader purpose. Students are learning how the law regulates property but they are also forced to consider multiple “right” answers because of the nature of the subject. Carefully examining an argument from both sides is a key skill for a successful lawyer. https://youtube.com/watch?v=Nd0fHj687-o


So the property class serves two purposes. One is that you learn about property and you are going to learn how to understand property and property concepts, you are going to understand how the law looks at property and how the law regulates property. And so in that sense, this is very much a subject-specific course. But at the same time, the property subject is a wonderful one for learning to think like a lawyer. One of the reasons why is because property is really about principles, foundations, policies, paradigms, and ideas. If you understand why the rules are generated the way they are, you're going to learn how to advocate for an application of those rules that's beneficial for your client. But if you lose sight of those underlying reasons for the rules, you're not going to be very effective at trying to understand how the rules should be applied in any particular case. One of the misconceptions that students sometimes have is that they're going to come in and they're going to learn black letter rules, and those black letter rules I'm going to be able to plug into a black box and it's going to spit out an answer. Property is a class that doesn't have many clear rules and the reason why is because it really is about the application of these higher level principles through a set of doctrines which are developed based on those principles that have fact-intensive and fact-specific, context-specific application. So what you really learn in property is the basic rules which are going to govern the dispute, but these rules don't necessarily decide the dispute. What decides the dispute is figuring out how the facts fit into these rules, how those rules should apply to the particular facts. And property is a wonderful class for learning the key lawyering skill of cross-argumentation. And what I mean by this is that a lot of students come in and they think, "We're going to learn rules and then we're going to apply the rules and we're going to find right answers." What the law school course allows you to do is learn the fundamental principles that underlie the rules, then you're going to learn the rules, and then you're going to learn that there is no single right answer, but instead, you're going to have the tools to develop arguments on both sides. The best students are those who learn how to argue one side, then argue the other side, and maybe a third side or a fourth side as well, and then explain why one is better than the other. Property is a wonderful vehicle for doing that because of the fact it doesn't give you precise clear answers. And in that sense, you learn very much the lawyering skill by learning the kind of argumentation that's necessary to be persuasive in property because you're not going to be given a lot of correct answers. The best lawyers are able to zealously argue the opposite side as well, trying to make the best case for the opposite side, which will make sure you're not blindsided in defending your client. And then, only then, should you weigh and decide which side has the better argument. And property gives you a great opportunity to do those things.

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