Syllabus

Course Meeting Times

Lectures: Two sessions / week, 1.5 hours / session

Course Description

This course is designed to offer an advanced introduction to key legal issues that arise in the area of property and land-use in American law, with a comparative focus on the laws of India and South Africa. The focus of the course is not on law itself, but on the policy implications of various rules, doctrines and practices which are covered in great detail. Legal rules regulating property are among the most fundamental to American, and most other economies and societies. They figure prominently in city and local governance and economic development, in areas as diverse as housing, zoning, environmental policy, and international development. Virtually every public policy issue has a 'property angle' to it, which makes it essential to know how it works.

The main focus is on American property and land use law due to its prominence in international development policy and practice as a model, though substantial comparative legal materials are also introduced from selected non-western countries such as India and South Africa. In these legal settings, it is commonly believed that under American law, property is absolute. One question we will ask throughout the course is how well-founded this notion of absolute property is, under American law. Connected to this idea of absolute property is the notion of property as the ownership of 'things'. We will examine multiple strands in the law of property that equally emphasize social relations between individuals, community and other actors. Another theme running through the course is the extent to which judges and legal decision-makers refer to non-legal justifications to reach their decisions and the way these justifications construct and are constructed by conceptions of culture, democracy, gender and race that inform human interactions. Supplemental readings from feminist theory, critical race theory, critical legal theory, law and society and law and economics will be used to illuminate these issues.

In planning law and practice, property and land use law is often narrowly construed to mean only public law regulation such as zoning. We will critically examine this approach by expanding the focus on how private individuals and entities use law to regulate land use, and how courts influence these supposedly private agreements through their decisions. A critique of this public-private divide is also one of the themes running through this course.

The course is divided into five parts. In the first part, we will consider the meaning of property in law, the various justifications for property and the motives behind those justifications. In the second part, we will examine a number of legal doctrines that qualify absolute property by introducing notions of fair access and fair use, and ask questions about the policy basis of those notions. In the third part, we will discuss the legal doctrines behind public planning of land-use, such as zoning and the relationship between private property and sovereignty. In the fourth part, we will focus on the various private restrictions over land-use in the public interest, in both residential and commercial sectors. The final part will focus on the current trends in comparative property and land use law in India and South Africa as well as the current international policy and legal developments that have an impact on how many developing countries regulate property and land-use.

Required Casebook

The course will use the following casebook and a set of supplementary materials.

Singer, Joseph William. Property Law: Rules, Policies and Practices. 3rd ed. New York, NY: Aspen Law & Business, 2002. ISBN: 0735524920.

Grading

Discussions will focus on cases most of the time, not for the law as such, but for the policy justifications. Students are encouraged to link up the principles and policies to their own graduate research during class participation.

Grading for this course will be based mainly on one final analytical paper not exceeding 20 pages (double-spaced) and three 3-page papers (double spaced) on topics selected by the students. The topics for short papers may be of a general nature or be on specific cases, but in either case the papers must show a mastery of the themes covered and draw upon the materials in this course. The due dates are noted in the calendar section and late submissions will not be accepted under any circumstances. The final paper topic must be chosen well in advance by the students in consultation with the instructor, and the paper is due on the last day of the exam period without fail. The 3-page papers may be submitted by email or hardcopy, but the final paper is due only by hardcopy. Failure to submit more than one 3-page paper will result in a fail grade. Vigorous class participation is expected and encouraged.