Property I Final Exam Grades and Comments

June 14th, 2016

Hello everyone. I apologize for interrupting your summer break with this note. I have submitted grades for Constitutional Law. You can download the exam question, and the A+ paper (If this is yours, please drop me a line!).

This was an extremely difficult test, by design, because I had high expectations. For the most part, you met those expectations. Many of you far exceeded them. Here is the breakdown of the grades. On the whole, the grades were quite good, and I am very proud of the class. The mean was above a 3.0, which was a marked improvement from the midterm.



I would like to provide some high-level thoughts on these Star-Wars themed questions.

Question 1

Part I asked for you to apply the rule of capture to building a pipeline to transport water, which is considered a “fugitive” natural resource under the common law. The class did exceptionally well on this question. The average score was 8.03 out of 10, which I think was the highest single-question score I’ve ever had. Maybe I made the question too easy, or the class really understood the rule of capture. To give you a sense of how I graded the question, I was looking for three different themes. First, whether you can identify the relevant cases–Pierson v. Post and Ghen v. Rich. Second, whether you understand the natural law theorists in the majority and dissenting opinion in Pierson (Locke, Grotius, Pufendorf, Barbeyrac). Third, did you recall the different regimes for water (“riparian”) law: the English Rule, American Rule, and Western Rule. Most of you got at least two out of three. The best answers worked in all three of these themes, and included policy discussions of why the various rules were relevant. (There were twelve perfect 10s out of eighty students, again, I think the highest I’ve ever had).

Part II tripped students up a bit, as it asked for a discussion of the common-law misappropriation issues of Princess (Leia) making copies of the Death Star’s blueprints. A lot of you attempted to discuss copyright or patent issues, but as the question noted, “there are no statutory claims raised.” This was precisely the question in International News Service v. Associated Press, where the Supreme Court developed a common-law, quasi-property right in breaking news. The best answers developed the themes from INS, and worked in a discussion of labor theory, which rewards creativity, and countered with the need to promote the sharing of information. A few of you even cited Judge Hands’s decision in Cheney Brothers v. Doris Silk, Corp, which repudiated SCOTUS’s errant decision. Even under the regime of Swift v. Tyson, the Supreme Court lacked the authority to make such federal common law in an area where Congress had legislated (this was before Erie Railroad v. Tompkins). It was a featured case in previous editions of the casebook, but was only a note in your version. I mentioned it briefly. I hope that students paid attention in class, though you may be recycling old outlines from last year. Either way, you got the issue correct.

Part III imagined that a chunk of the destroyed-Death Star fell into Tatooine’s orbit, and became a new moon. This question merges combined three different approaches of acquiring property: Acquisition by creation (Darth built the Deathstar), acquisition by discovery (Luke landed on the satellite, and planted a flag), and acquisition by conquest (Luke killed Darth over it). The stronger answers discussed Johnson v. M’Intosh and the relevant precedents involved in that case. A number of you cited the cases about mislaid or lost property. These cases only concern personal property (a watch or ring), not real property (actual land). For acquiring land, you need to apply the acquisition doctrines. Several of you also discussed Macavoy and other related cases with respect to finding water; that was incorrect.

Part IV involved several competing present and future interests. Three decades ago, Darth gave Obi the lightsaber on his deathbed, and told him “on my death, give this lightsaber to my son.” Traditionally, this sort of testamentary gift is void because it violates the statute of wills (not written, doesn’t have two witnesses). However, because Darth was about to die, it would be considered a donatio causa mortis (gift in anticipation of death). If this interest was valid, then Luke would have the lightsaber in fee simple. However, because Darth didn’t die, and the gift–which was not delivered until much later–was revoked. During his battle with Luke, Darth said “I want you to have it during my life, and after my life it should go to your sister.” I was frankly shocked at how many people this tripped up. Luke had a life estate pur autre vie–that is a life estate measured by the life of Darth. Princess had a vested remainder in fee simple. Many, many students saw the word during and wrote there was a fee simple determinable, or some sort of shifting executory interest. It was far simpler than this–the condition on which it went from Luke to Princess was the death of Darth. That’s a life estate. Once Luke killed Darth, any interest he had in the lightsaber was extinguished, and his sister now owned it in fee simple. As for Obi, a number of you described his interest as a bailment, which was correct, although once Darth dies, that bailment is extinguished. The best answers also worked in Newman v. Bost and Gruen v. Gruen.

Part V was the policy question. Darth’s estate sued Luke for trespass, because he broke onto the Deathstar to rescue the kidnapped Princess. This required a discussion of the “right to exclude.” You should have discussed the competing precedents of State v. Shack and Jacque v. Steenberg Homes. The better answers included discussions of self-help, the importance of private property, and also the balance of “people over property.” For the most parts, students demonstrated that they have thought this issue through.

Question 2

The second question, much like Star Wars episodes 1-3, served as a prequel to the first question.

Part I considered a fairly complicated lease situation, that did not quite fit into any of the categories we studied in class. I was looking for a few different themes. First, I wanted you to classify the lease. I think it is best viewed as a tenancy at will, which under the common law, only the landlord had the power to terminate, without notice. Some of you wrote that it was a term of years, which I gave some credit for. Also, the fact that the lease began on January 1, and Padme gave notice on May 30, means she was 1 day shy of 6 months. The more important issue was whether you noted that the sublet was actually an assignment, the words of the instrument notwithstanding. The intent was to convey the entire interest. If it was an assignment, then Obi is on the hook for all the damages. You should have cited several of the cases, including Garner v. Gerrish, Ernst v. Conditt, and Kendall v. Earnest Pestana.

Part II tested your knowledge about joint tenancies in a community property state for married couples. As we discussed in class, special rules apply; namely the normal rules of survivorship do not apply because there are not separate interests. I referred to it as a quasi-joint tenancy, which many of you used on the exam. Many of you applied the conventional joint tenancy rules, and lost points. The answer is complicated because both Padme and Anakin die almost simultaneously, but the analysis is basically the same. Assuming Padme dies first, Anakin inherits half of Padme’s interest. He started with 50%, so now has 75%. What about the other 25%? The twins Luke and Princess split, it, 12.5% each. Several of you said that because Anakin was reborn as Darth, that severed the unities. Ultimately, both Padme and Anakin die, so the twins would split the property 50%-50%. (Several of you wrote about a “joint tenancy in common.” No matter how many times I warn you not to write that on the exam, students always disappoint).

Part III asked you compare Moore v. Regents of University of California with Darth stealing, and profiting from Obi’s use of the force. The best papers analyzed the competing opinions from Moore, and addressed the legal, ethical, and economical issues behind granting property rights to non-regenerative body parts.

Part IV was a straightforward classification of present and future interests. Darth had a present interest in life estate. Luke had a vested remainder in fee simple subject to an executory limitation (he was ascertained, and there was no condition precedent–note the condition came after the comma). Princess had a shifting executory interest.

Part V was a policy question where you had wide latitude to compare and contrast the community and common law property systems. Some of the biggest differences for migrating couples include the force elective share, and the quasi-joint tenancy.

On the whole, I was very proud. Well done.