[MUSIC] So let's move onto the second distinctive characteristic of American property law. And this is the reality that American property doctrine bears the indelible imprint of legal realism. Legal Realism is perhaps the single most uniquely American legal innovation. Legal Realism, simply put, refers to a broad movement that began to take shape in the first four decades of the 20th century across the United States,. Where scholars began arguing that legal rules and concepts, and devices and tests were on their own, insufficient to decide actual cases. The law and its internal devices or it's rules internally, its tests, were until then seen as largely autonomous and determinative in character. So if you had an actual dispute, the argument went, up until this point, apply the law and legal tests to it, and voila. You will get an actual answer, to your dispute. Now this old approach was termed, rather appropriately and of course pejoratively, as mechanical jurisprudence. Legal realism challenged this and argued that judging and deciding individual cases. Involved more than just applying the law. It involved, the legal realists argued, interpreting the law. Especially when the law wasn't clear. Which occurred rather frequently on the margins. And perhaps more importantly, it also involved choosing. Among multiple laws and legal rules to determine which one applied. You had to actually choose they said since as any good lawyer and perhaps any first year law student would know you can always find a rule to support your point of view. That's the essence of lawyering. So, legal realism argued, that in applying legal rules to an individual case, judges were making normative choices. They were actually choosing, and that this was especially true in common law disputes. Why? Because each decision rule, or the rule being applied by a judge to decide that case. Was also creating law, for future decisions. And judges knew this. And so began, the critique of legal realism, or bilegal realism. That judging in the common law, was a craft, not just a science. Where judges marshaled a wide variety of sources and ideas. Judges were, after all, human beings, they said. And these sources and ideas were often unspoken in the actual decision, when they were actually deciding individual cases and that's legal realism. And its forceful, and rather convincing critique of mechanical jurisprudence, wich was also known as a legal formalism. But here's what happened in due course, especially in relation to American property law, the legal realist critique, that I just described, generated a very crucial inflection point in the development of American Property Doctrine. So instead of simply continuing to insist, as judges do in many other common law countries, that deciding cases was very simply. Applying the law, as settled in past decisions, to the present dispute. American courts themselves, deciding property cases, internalized the learnings of legal realism and they began introspecting a good deal during their actual opinion. And so introspecting and internalizing these learnings, they embraced in many ways the legal realist critique that deciding cases was more than just applying the law mechanistically. They began accepting in varying degrees at first, but then rather openly. The idea that interpreting the rule, chosing which rule to apply and then interpreting the facts to then apply the rule to those facts all involved important choices. And these were choices among competing, normative values and ideals that the law could embrace, and that property law could choose to embrace. This could be the ideal of efficiency, economic efficiency, the ideal of autonomy, individual personal autonomy, distributive justice. Corrective justice between the parties, fairness and the like. It could be any of these but what was critical was a choice. So legal realism in other words left an important impact on the very way in which property law cases. Were and are today actually reasoned by judges deciding them. In other words, the inflection resulted in the legal realist critique coming to be internalized by judges who are deciding cases and in the process making property law for future cases. Let me give you a few very well known examples of this inflection so I can illustrate it. Let's start with the law of Landlord/Tenant Law or the Law of Residential Leases within this area which is a prime example of this phenomenon. So, as a historical matter. All leases as I mentioned before including residential leases were treated as property contracts. They were contracts or consensual agreements which related to a thing. And because they were contracts to begin with, courts interpreted them as contracts as such. So the pres, presumptive idea behind applying contract law to these leases was the belief that there was some basic parity or quality, in bargaining power between the parties. That's the basis of contract law, consent, consensual agreements. The parties were equal and they agreed to it. But, by the 1960's this was understood to be untrue in the context of residential leases.In various, and several parts of the country there was a severe housing shortage and certainly in urban areas which produced rather inhuman living conditions for many many people in the country. Yet, as a formal, as a structural matter, the law of leases continued to follow a model that remained premised on market freedom, the idea that you have two parties negotiating and agreeing on something through the principle of market freedom. So, landlords in this period. Grew to be extremely powerful, in terms of their market power. And so, they would have residential tenants, sign leases which includes clauses that said things like, premises leased as is or they would introduce clauses that said, the landlord has no repair obligations. All in order to minimize their continuing responsibility during the actual residential lease. And all of this why charging the tenants high, very high at times, rates of rent. And the reason they did this, of course, as with any market situation is because they knew they had significant power. So in other words, the demand for housing in the rental market was greater than the supply and they knew that they had the power and the ability to do this, to introduce these clauses, and charge rather exorbitant rates or rent, and courts deciding property cases came to recognize this. So began, in the 1950s and 1960s in the United States. What many have described as a revolution in the law of landlord tenant or in the area of, especially in the area of residential leases. And to bring about this change, this revolution, courts had to grapple with the basic reality that contract law was historically made for conditions of simple market freedom. In other words, contract law was premised on the idea of equality and bargaining position. Yet, in bringing about this change in each individual decision, what we see is courts and judges openly reasoning about the role of the law and legal roles in promoting certain social values. And so in other words, the revolution, in the law of residential leases and the law of landlord tenants will happen explicitly in the actual reasoning of individual property cases. A very good example, in fact, one would say the most prominent example, in this area is an opinion by Judge Skelly Wright in a case. Known as Javins versus First National Bank, a decision of the DC Circuit Court of Appeals for the United States. The facts of the case were relatively straightforward and tell of the situation that I just described. A residential tenant had leased an apartment from a landlord. And after a few months, stopped paying rent all together. When a claim was brought by the landlord, to force the tenant to pay rent, the tenant claimed that he hadn't paid, because the landlord had refused to make repairs to the apartments. And the tenant said, he could prove. That these failures amounted to about, believe it or not, 1,500 violations of the local housing code. So the tenant claimed, the apartment was basically unlivable. As a practical and as a legal matter he said, even though the contract, that is the lease, the residential lease. Obligated him to pay rent regardless and this is how the dispute reaches the court the question is: Should the tenant be forced to par rent even when the residence is for all intentive purposes is unlivable? So the court here Judge Scaley Wright recognizes. That is dealing with what we can describe as a bulletproof contract. The landlord had used a good lawyer to draft a good contract, and the contract basically, obligated the tenant to continue paying rent. Also recognized that the rules of contract law. Were premised on the basic ideal of market freedom and party autonomy, or that the parties were equal in nature. So a simple doctrinal or formal approach would have unquestionably resulted in a decision for the landlord, if it were interpreted as a simple contract. Premise to market freedom. Yet, the court recognizes that there is a major housing crisis in the country. The court says, to quote Judge Wright, it is overdue for courts to admit that these assumptions, referring to the traditional law of leases. Are no longer true with regard to all urban housing. And, he says, especially with regard to contemporary housing patterns. The court goes on to say further, our approach to the common law of landlord and tenants ought to be aided. By principles derived from the consumer protection cases. Recognizing that the tenant then needs protection as a consumer as the law had recognized in another area, namely consumer protection relating to products. So the court in Jennings then developed what is today known as. The implied warranty of habitability. The implied warranty of habitability or the I.W. H. Which obligates every residential landlord to warrant or promise that the premises are habitable or. If it isn't, to risk liability. So in other words, unstated in every residential lease is a promise from the landlord that the premises in question are livable. This is the idea of the IWH, or the implied warranty of habitability. It's a warranty, or a promise, that is implied. Into every residential lease. Further Judge Wright says, to make clear that the court's motivation was, indeed, protecting the tenant and that there was a disparity in market power, it sought to entrench the IWH or this warranty of habitability. As a mandatory rule, the, rather than as a default rule, which could be waived or contracted out of. So what the court says is, the IWH, this implied promise, is a rule that the parties cannot waive or get out of by a simple contract. Because otherwise, the landlord. Who has a disparate amount of market power would simply say to the tenant, please waive the IWH in this residential lease, maybe for a little extra money. And then the tenant would be without this protection. To prevent against that, the court says the IWH is a mandatory rule. It cannot be waived. It is basic, and you cannot contract out of it. Again, to protect the tenant. So what is important to appreciate in this case is how instead of just interpreting the doctrine, instead of just applying it mechanically to the facts of the case and saying this is what contract law demands,. Here's your answer. The opinion is extremely forthright and honest about the choices that are embedded within the doctrine and in choosing the right doctrine and, indeed, in applying it. It recognizes rather explicitly that the court making a choice among competing values. And choosing among them and deciding which one to apply the facts of this particular case, in order to do justice as it sees necessary. That's an example from the Law of Residential Leases. Now, let's consider another case which is a good example of this phenomenon that I'm describing. And to recap,. The phenomenon is that American property law bears the inflection or the imprint of legal realism. And the idea is that courts and judges reasoning property disputes recognized there to be a choice among competing values in constructing the law and then in applying it. To the facts of the case, and in the process making the law. So let's move to a case that is considered by many to be a staple of property law, and this time dealing with a doctrine that we've come across, namely, the doctrine of trespass upon land. This is a case that comes from the Supreme Court of New Jersey. The case in question is known as State versus Shack. And the facts were rather interesting. So here we have the owner of a large tract of farmland who employed hundreds of migrant workers on the land in each season in order to help. With the actual harvest. All of these migrant workers lived on the land, and the landlord, the owner of these farmlands, provided them with food and shelter as part of their employment. Now two individuals who worked for non profit corporations. One providing health services and another legal advice, so basically a lawyer and a health worker, wanted to visit these migrant workers to discuss their rights with them, to document the conditions that they were living in, and provide any help that they could. So they sought permission from the land owner. To go on to the land and meet with the migrant workers. And, he refused, he said no. Sort of disobeying his instructions, they non the less entered upon his property to meet the migrant workers and indeed did meet with them. When the landowner. When the owner of these farmlands heard about this he was naturally upset. They had disobeyed his instructions. He was the owner of the land. And he commenced an action of intentional trespass on land against the two individuals. Namely the person seeking to provide health services and the other seeking to provide legal advice. The matter eventually reaches The Supreme Court of New Jersey. Let's not worry about what the Intermediate Court said. And this is what the court begins it's analysis with. A statement that many regard as the starting point of a social value analysis in property law. The court says, rather importantly, property rights serve human values, they are recognized to that end and are limited by it. So, the court gives you an indication of how it's going to decide the case. Namely, that, property doctrine is infused with various social values. These social values expand property doctrine, sometimes they limit them but the court in deciding the case, it clearly says, must be sensitive to this reality. So the New Jersey Supreme Court engages in a rather detailed discussion of the conditions of migrant workers, especially in the state of New Jersey. And describes how very importantly the protection of their interests. While directly at stake as a factual matter in the case, finds no presence at all in the doctrinal posture of the case. Remember this was a case brought by the landowner against the lawyer and the health worker. The migrant workers weren't parties in the case, and their interest, however, was what was motivating the defendants. The lawyer and the health worker decided to go on to the land because of their interests, the migrant workers' interests. So the court says rather starkly. We see no profit in trying to decide upon a conventional category and then forcing the present subject into it. This was in response to an argument that the migrant workers were tenants and a formal category should be used, namely the Law of Tenants in order to decide the case. The court says no way, instead, the court finds that no trespass had occurred at all. Why? Because the court says there was no right to exclude, to begin with. The court concludes that the right to exclude, a central right that obviously the property owner has. Was not absolute in this case. The court says, while the property owner has a right to exclude, it is not an absolute right, but instead, it is contextual and needs to be balanced against competing interests. In the end, then, the court concludes that there was no invasion, and that the claim had no merit. It finds for the defendants. Both these cases, Javins and State versus Shack, illustrate the point I'm trying to make. Namely that American property doctrine, not just its structure but also its content, show us or indicate a imprint of legal realism. Judges deciding individual property disputes. In marshalling different doctrines, recognize that they're making a choice. A choice among competing doctrines. A choice in interpreting the doctrine. And a choice among competing normative values that are hidden underneath the doctrine. They're explicit about the fact that they are making these choices in deciding the case. And in the process formulating the law for future cases. Legal realism then in short is a characteristic feature of American property doctrine, and this is seen not just in its structure, but also very much in its underlying content. That is the second feature that is characteristic and distinctive of American Property Law. [MUSIC]
