Justice Breyer and Scalia Talk About Learning Property At Harvard Law School

January 14th, 2014

Oral arguments in Marvin M. Brandt Revocable Trust v. United States were something only a property nerd could possibly enjoy. There were discussions of easements, fee simples, divestments, shifting executory interests, and a host of other topics you no doubt have erased from your memory. You and Justice Breyer both.

During arguments, Justice Breyer was quite candid how he did not remember stuff from his first year property class at HLS, which we waxed somewhat  nostalgically about.

If I try to remember my property class, it vaguely was — which was a great class, A. James Casner, real expert.

Here is Casner’s 1990 obituary in the New York Times. He was on the faculty from 1938 till 1976!

And later, Justice Scalia (in criticizing Mr. Lechner again) notes that James Casner never taught him about the “limited fee.”

JUSTICE KENNEDY: Is there any doctrine in property law that if a right of access is granted and its to the exclusion of all other uses, it’s — it looks for all purposes like absolute control, that it ceases to be an easement and becomes a limited fee? I mean is there some magic that takes place in property law so that if there’s a grant that conveys such total control, is it construed not to be an easement?

MR. LECHNER: I don’t know of any.

JUSTICE KENNEDY: I’ve never seen it.

MR. LECHNER: Roads, highways are conveyed -­

JUSTICE SCALIA: Have you even heard of the term “limited fee” until this case? I never heard it.

MR. LECHNER: Well, I read these -­

JUSTICE SCALIA: James Casner didn’t talk to me about limited fee.

Lechner, who went to the University of Colorado Law School, had heard of it.

MR. LECHNER: I read these cases in law school so I was aware of the term. Thank you.

Good thing the Justices didn’t go to Yale. They don’t even require property!

Here, Justice Breyer struggles with distinguishing between shifting interests, divestitures, and condition subsequents:

JUSTICE BREYER: What they are saying, I think the government’s point is — the other side is saying, and I don’t remember the term of my property law. What’s the right term? It’s — you grant to A, black acre to A and his heirs; it’s a fee simple. But it’s subject to a shifting; it’s subject to divestiture, subject to a condition subsequent. What’s the right term?

MR. LECHNER: Well -­

JUSTICE BREYER: It shifts the — it shifts it back.

MR. LECHNER: A defeasible fee? Or implied conditional -­

JUSTICE BREYER: It could be. There was a technical term they used to have. But anyway, that’s what they’re saying.

I swear I’ve had this same conversation with a student trying to identify the relevant present and future interests in a case.

And this (near) Breyer Page stream of consciousness with references to Bracton is priceless (season should be seizin):