DOCSLIB.ORG

The Public Trust As an Antimonopoly Doctrine, 44 B.C

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Public Trust As an Antimonopoly Doctrine, 44 B.C Boston College Environmental Affairs Law Review Volume 44 | Issue 1 Article 2 4-6-2017 The Public rT ust as an Antimonopoly Doctrine Michael C. Blumm Lewis & Clark Law School, [email protected] Aurora Paulsen Moses Vermont Law School Follow this and additional works at: http://lawdigitalcommons.bc.edu/ealr Part of the Antitrust and Trade Regulation Commons, Energy and Utilities Law Commons, Environmental Law Commons, Land Use Law Commons, Natural Resources Law Commons, Oil, Gas, and Mineral Law Commons, Property Law and Real Estate Commons, and the Water Law Commons Recommended Citation Michael C. Blumm & Aurora P. Moses, The Public Trust as an Antimonopoly Doctrine, 44 B.C. Envtl. Aff. L. Rev. 1 (2017), http://lawdigitalcommons.bc.edu/ealr/vol44/iss1/2 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Environmental Affairs Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. THE PUBLIC TRUST AS AN ANTIMONOPOLY DOCTRINE MICHAEL C. BLUMM* AURORA PAULSEN MOSES** INTRODUCTION ................................................................................................................................ 2 I. THE FOUNDATION OF THE AMERICAN PUBLIC TRUST DOCTRINE: ANTIMONOPOLIZATION OF PUBLIC RESOURCES ......................................................................................................................... 6 A. Prohibiting Landowner Monopolization of Public Water Resources ..................................... 8 1. Preventing Monopolization of Wildlife Resources in Tidal Waters .................................. 9 2. Extending Antimonopoly Protection to Inland Waters .................................................... 14 B. Restraining Privatization of Public Trust Resources............................................................ 15 1. Restraining Privatization of Water Resources ................................................................. 16 2. Restraining Privatization of Wildlife ............................................................................... 18 II. THE EVOLUTION OF THE PUBLIC TRUST: EXPANDING ANTIMONOPOLY PROTECTION ............ 19 A. Protecting Public Resource Uses Beyond Commerce, Navigation, and Fishing ................. 21 1. Recreation........................................................................................................................ 22 2. Ecological Preservation ................................................................................................... 25 B. Expanding Public Trust Resources ...................................................................................... 31 1. Non-Navigable-in-Fact Waters ........................................................................................ 32 2. Beaches ........................................................................................................................... 35 3. Parks ................................................................................................................................ 37 4. Wildlife ........................................................................................................................... 39 5. The Atmosphere .............................................................................................................. 41 C. Preventing Privatization of Public Trust Resources ............................................................ 43 1. Restraining Alienation of the Beds of Navigable Waters ................................................ 43 2. Restraints on Alienation in State Constitutions ............................................................... 48 CONCLUSION ................................................................................................................................. 52 POSTSCRIPT ................................................................................................................................... 53 Abstract: The public trust doctrine originated—and has persisted in American law—as antimonopoly protection. From the time of its recognition by American courts in the early nineteenth century, the doctrine has protected the public against private monopolization of natural resources, beginning with tidal waters and wild animals. Ensuing public trust case law has extended the scope of trust © 2017, Michael C. Blumm & Aurora Paulsen Moses. All rights reserved. * Jeffrey Bain Faculty Scholar & Professor of Law, Lewis & Clark Law School. ** Clinical Assistant Professor of Law, Food & Agriculture Clinic, Center for Agriculture & Food Systems, Vermont Law School. 1 2 Environmental Affairs [Vol. 44:1 protection to other important natural resources, including non-tidal and non- navigable waters, and land-based resources like parks. Courts are now consider- ing the trust doctrine’s application to the atmosphere. Although there is a con- siderable body of legal scholarship on the public trust, the doctrine’s antimo- nopoly core has not been explored. In this Article, we remedy that oversight by examining the public trust’s justification as an antimonopoly sentiment. Anti- monopoly policy is at least as old in American law as the public trust and cer- tainly more politically prominent. Viewing the public trust through the lens of antimonopoly helps to explain the history and evolution of this doctrine and its overriding goal of preventing irreversible commitments of natural resources to private monopolization. INTRODUCTION For nearly two hundred years, the public trust doctrine (“PTD”) has ensured that Americans have access to select natural resources, protecting those resources from privatization.1 At its core, the PTD prohibits sover- eigns from alienating these natural resources2 and requires sovereign pro- tection of trust resources for future public use and enjoyment.3 As this Arti- cle explains, antimonopoly is the essence of the PTD, preventing privatiza- tion of certain resources used by the public, such as tidal waters and wild- life. Without this limit on alienation many valuable natural resources would, by now, be privately owned and thus inaccessible to the public. The roots of the PTD lie in seventeenth-century English political thought, particularly the writings of John Locke. According to Locke, a per- son should only be able to acquire property that he could productively use, “whatever is beyond this, is more than his share, and belongs to others.”4 1 See Arnold v. Mundy, 6 N.J.L. 1, 76–77 (N.J. 1821) (rejecting an attempted landowner monopolization of tidal oyster beds). 2 See id. (protecting public access to tidal oyster beds); Joseph L. Sax, The Public Trust Doc- trine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 471, 477 (1970) (stating that public trust property “must not only be used for a public purpose, but it must be held available for use by the general public”). 3 See Michael C. Blumm & Aurora Paulsen, The Public Trust in Wildlife, 2013 UTAH L. REV. 1437, 1466 (asserting that “preservation of access to wildlife lies at the heart of the American public trust doctrine”); Michael C. Blumm & Lynn S. Schaffer, The Federal Public Trust Doc- trine: Misinterpreting Justice Kennedy and Illinois Central Railroad, 45 ENVTL. L. 399, 419 (2015) (asserting “a public trust claim inquires as to whether the sovereign is protecting trust as- sets sufficiently to safeguard the interest of present and future beneficiaries”). 4 JOHN LOCKE, SECOND TREATISE OF GOVERNMENT 14 (1690). Locke posited: Nature did well in setting limits to private property through limits to how much men can work and limits to how much they need. No man’s labour could tame or appro- priate all the land; no man’s enjoyment could consume more than a small part; so that it was impossible for any man in this way to infringe on the right of another, or acquire property to the disadvantage of his neighbor . Id. 2017] The Public Trust as an Antimonopoly Doctrine 3 This Lockean sentiment migrated to American political thought, most prom- inently through Thomas Jefferson’s advocacy of a republic of small land- holders and widespread distribution of resources.5 Preserving public rights to access natural resources, including navigable waters, served Jacksonian America’s aversion to concentrated wealth and special privileges for elites.6 Later in the nineteenth century, monopolization became a widespread public concern as corporations amassed economic and political power and threat- ened to assert exclusive use of natural resources.7 The rise of concentrated industrial power in the years following the Civil War led to reform move- ments like state efforts to regulate railroads and the federal enactment of the Interstate Commerce Commission and Sherman Antitrust Acts, which sought to protect the public from the adverse effects of monopolization.8 Promoting widespread public access to navigable waters—the essential arteries of commerce—developed as part of a larger effort in nineteenth- century America to resist monopoly power.9 Antimonopoly sentiment pro- duced limits on land acquisition in federal homestead and preemption laws10 and was at the center of the founding of western water law, which rejected common law riparian water rights because they gave monopoly rights to 5 See PAUL W. GATES, HISTORY OF PUBLIC LAND LAW DEVELOPMENT 62 (1968) (“The small landholders are the most precious part
Load more

Recommended publications
  • Rehabilitating Repugnancy? Preserving That Piece of Medieval Lumber
    REHABILITATING REPUGNANCY? PRESERVING THAT PIECE OF MEDIEVAL LUMBER SCOTT GRATTAN* This article examines restraints on alienation imposed by the grantor as a condition in the transfer of property to the grantee (rather than contractual restraints subsequently entered into by an owner). It considers whether the doctrine of repugnancy has any useful part to play in testing the validity of such restraints in light of Glanville Williams’ criticism of the doctrine as ‘pseudo-logical’ and lacking utility. Examining the numerus clausus principle and Australian, English and (certain) American cases in which the doctrine has been addressed, the article argues that a wholesale rejection of repugnancy is unwarranted. First, some version of the repugnancy doctrine is necessarily required as part and parcel of distinguishing between various forms of proprietary (and non- proprietary) interests. Second, the courts continue to apply the repugnancy doctrine in distinguishing between determinable interests and those defeasible by condition subs- equent when ascertaining the validity of a condition that operates upon a purported alienation or bankruptcy. Finally, it may be seen that testing restraints by reasonableness and policy alone, without recourse to repugnancy, can produce problematic results. The doctrine of repugnancy cannot, therefore, simply be dismissed as a mere historical relic. CONTENTS I Introduction .............................................................................................................. 922 II The Context: Restraints
    [Show full text]
  • The Law of Property
    THE LAW OF PROPERTY SUPPLEMENTAL READINGS Class 14 Professor Robert T. Farley, JD/LLM PROPERTY KEYED TO DUKEMINIER/KRIER/ALEXANDER/SCHILL SIXTH EDITION Calvin Massey Professor of Law, University of California, Hastings College of the Law The Emanuel Lo,w Outlines Series /\SPEN PUBLISHERS 76 Ninth Avenue, New York, NY 10011 http://lawschool.aspenpublishers.com 29 CHAPTER 2 FREEHOLD ESTATES ChapterScope -------------------­ This chapter examines the freehold estates - the various ways in which people can own land. Here are the most important points in this chapter. ■ The various freehold estates are contemporary adaptations of medieval ideas about land owner­ ship. Past notions, even when no longer relevant, persist but ought not do so. ■ Estates are rights to present possession of land. An estate in land is a legal construct, something apart fromthe land itself. Estates are abstract, figments of our legal imagination; land is real and tangible. An estate can, and does, travel from person to person, or change its nature or duration, while the landjust sits there, spinning calmly through space. ■ The fee simple absolute is the most important estate. The feesimple absolute is what we normally think of when we think of ownership. A fee simple absolute is capable of enduringforever though, obviously, no single owner of it will last so long. ■ Other estates endure for a lesser time than forever; they are either capable of expiring sooner or will definitely do so. ■ The life estate is a right to possession forthe life of some living person, usually (but not always) the owner of the life estate. It is sure to expire because none of us lives forever.
    [Show full text]
  • SECTION 1.0 Summary of California Water Rights
    SECTION 1.0 Summary of California Water Rights 1.1 Types of Water Rights In California, the different types of water rights include: 1.1.1 Prescriptive Water use rights gained by trespass or unauthorized taking that ripen into a title, on a par with rights to land gained through adverse possession.1 1.1.2 Pueblo A water right possessed by a municipality that, as a successor of a Spanish-law pueblo, is entitled to the beneficial use of all needed, naturally occurring surface and groundwater of the original pueblo watershed.2 1.1.3 Groundwater The Dictionary of Real Estate Appraisal, defines groundwater as “all water that has seeped down beneath the surface of the ground or into the subsoil; water from springs or wells.”3 This is an adequate working definition if the “springs or” is eliminated because once water issues out of a spring it becomes surface water, not groundwater. As is also indicated in the following text, it is not water flowing in an underground channel. Groundwater should be thought of as the water that occupies the space between soil particles beneath the surface of the land. Groundwater is extracted exclusively by means of wells. Whenever groundwater reaches the surface in a natural manner, whether through springs or seepage into a surface water stream channel or lake, it ceases to be groundwater and becomes surface water. The jurisdiction of the SWRCB [State Water Resources Control Board] to issue permits and licenses for appropriation of underground water is limited by section 1200 of the California Water Code to “subterranean streams flowing through known and definite channels.” If use of underground water on nonoverlying land is proposed and the source of the water is a subterranean stream flowing in a known and definite channel, an application pursuant to the California Water Code is required.
    [Show full text]
  • Property--Restraint on Alienation
    Volume 67 Issue 1 Article 12 December 1964 Property--Restraint on Alienation Charles Edward Barnett West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr Part of the Property Law and Real Estate Commons Recommended Citation Charles E. Barnett, Property--Restraint on Alienation, 67 W. Va. L. Rev. (1964). Available at: https://researchrepository.wvu.edu/wvlr/vol67/iss1/12 This Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact [email protected]. Barnett: Property--Restraint on Alienation 1964] CASE COMMENTS A contrary result may be reached where the elements of an estoppel are present. Simmons v. Simmons, 203 Ark. 566, 158 S.W.2d 42 (1942); Huffman v. Hatcher, 178 Ky. 8, 198 S.W. 236 (1917). The cases involving a change which increases the amount of prop- erty conveyed present few problems, and, as evidenced by the principal case, can be decided correctly without even considering other fact situations. However, a statement purporting to give the law concerning the effect of a change by the parties should be applicable to changes that propose to decrease as well as to those that increase the grantee's estate. In considering situations in which the parties to an excuted deed have changed its terms upon agree- ment, the following rule controls: The delivery of what is in effect a new deed can not reduce the size of a grant already completed.
    [Show full text]
  • Landowner's Guide to Washington Water Rights
    2019 / THIRD EDITION LANDOWNER’S GUIDE TO WASHINGTON WATER RIGHTS 2019 LANDOWNER'S GUIDE TO WASHINGTON WATER RIGHTS TABLE OF CONTENTS Chapter 1 – Introduction Chapter 6 – Valuing & Selling Your Water Right A Landowner’s Story, p. 3 Valuing Your Water Right, p. 29 Purpose, p. 4 Leasing or Selling Your Water Right, p. 29 Washington’s Water Challenge, p. 5 Chapter 7 – Water Rights Adjudications, p. 30-31 Chapter 2 – Water Right Basics What is a Water Right? p. 6-7 Chapter 8 – Instream Flows & Trust Water Rights Key Water Right Concepts , p. 8-15 Instream Flows and Instream Flow Rules, p. 32-33 How Is a Water Right Established? p. 16 Interruptible Rights, p. 32 Washington Trust Water Rights Program, p. 34-35 Chapter 3 – Understanding Your Water Right Learning About Your Water Right, p.18 Chapter 9 – Exempt Wells, p. 36-37 Evaluating a Water Right, p. 19-23 Buying Land, p. 24 Chapter 10 – Win-Win Water Solutions, p. 38-39 Chapter 4 – Managing Your Water Right Appendix A – Glossary, p. 40-43 How Do You Keep Your Water Right? p. 25-26 Metering Your Water Right, p. 27 Appendix B – Legal Descriptions, p. 44-45 Chapter 5 – Changing or Transferring Your Water Right Appendix C – Resources, p. 46 Changes and Transfers, p. 28 Water Conservancy Boards, p. 28 Acknowledgements, p. 47 Trout Unlimited – Washington Water Project is a nonprofit organization working to create solutions for instream flow, community, and agricultural water needs. We work with private landowners on voluntary projects, and we provide water expertise to NGOs, government agencies, and tribal entities.
    [Show full text]
  • Property: Restraints on Alienation Arthur M
    Hastings Law Journal Volume 5 | Issue 1 Article 9 1-1953 Property: Restraints on Alienation Arthur M. Schaffer Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Arthur M. Schaffer, Property: Restraints on Alienation, 5 Hastings L.J. 92 (1953). Available at: https://repository.uchastings.edu/hastings_law_journal/vol5/iss1/9 This Note is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. THE HASTINGS LAW JOURNAL On what then did the court in the principal case base its decision? The court mentioned nothing about the reasonableness of the officer's actions at the time of the search. It also mentioned nothing about whether the second search was executed under a void warrant. It stated merely that such a search was an unreasonable search and seizure in itself, regardless of the surrounding facts. It therefore may be assumed that the court decided the issue presented on the basis of general policy as the courts do with regard to invalid warrants; thus putting a general limitation on the power of officers to make second searches regardless of what reason such officers may have for so doing. Herbert Kessler. PROPERTY: RESTRAINTS ON ALIENATION.-A prohibition in a grant of real property that the land shall not be transferred was declared void in a recent California case." The title in fee simple to the property had been vested in William S.
    [Show full text]
  • A Genealogy of Vertical Restraints Doctrine Rudolph J
    Hastings Law Journal Volume 40 | Issue 3 Article 2 1-1989 A Genealogy of Vertical Restraints Doctrine Rudolph J. Peritz Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Rudolph J. Peritz, A Genealogy of Vertical Restraints Doctrine, 40 Hastings L.J. 511 (1989). Available at: https://repository.uchastings.edu/hastings_law_journal/vol40/iss3/2 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. A Genealogy of Vertical Restraints Doctrine by RUDOLPH J. PERITZ* Since the Dr. Miles Medical Co. v. John D. Park & Sons Co. case in 1911,1 the Supreme Court has viewed the Sherman Act as a congres- sional mandate to regulate the ways manufacturers may distribute their products. These vertical restraint cases have a simple, recurring plot. A terminated dealer or wholesaler, often a price cutter, complains that its manufacturer is in league with rival dealers or wholesalers who want to restrain competition in the product. In typical cases, the underlying re- straint alleged is a resale price maintenance agreement or a clause confin- ing dealer activities to a limited geographic area. The question in such cases is whether the Court should permit the manufacturer to terminate the complaining dealer or wholesaler. The Court has sought to answer the question of wrongful termina- tion by turning to section 2 of the Sherman Act and its requirement of an agreement in restraint of trade.
    [Show full text]
  • Instream Flows and the Public Trust
    Instream Flows and the Public Trust Timothy M. Mulvaney* I. INTRODUCTION ................................................................................. 316 II. A FRAMEWORK FOR INSTREAM FLOW MANAGEMENT .................... 321 A. Traditional Water Rights Systems .......................................... 322 1. Riparian Rights ............................................................... 322 2. Appropriative Rights ...................................................... 324 B. Conversion to Regulated Riparianism ................................... 327 1. An Initial Foray into Appropriation ............................... 327 2. The Existing Regulated Riparian System ..................... 328 a. Agency Structure for Managing Instream Flows ....................................................................... 329 b. The Water Permit System ...................................... 331 c. Water Management Planning ................................ 334 III. CURRENT USE OF THE 7Q10 METHOD FOR PRESERVING INSTREAM FLOWS ............................................................................. 336 A. Importance of Maintaining a Relatively Natural Flow ......... 337 B. Principles of Instream Flow Protection .................................. 338 C. Documented Failures of 7Q10 in Protecting Instream Flows ........................................................................................ 339 D. State Departures from 7Q10 ..................................................... 340 E. Contemporary Stresses on Surface Waters ...........................
    [Show full text]
  • The Death of the Rule Against Perpetuities, Or the Rap Has No Friends—An Essay
    THE DEATH OF THE RULE AGAINST PERPETUITIES, OR THE RAP HAS NO FRIENDS—AN ESSAY Joel C. Dobris* Editors’ Synopsis: This Article analyzes the Rule Against Perpetuities, which limits “dead hand” control of property to a reasonable period of time and chronicles its decline in recent years as public interest in creating perpetuities has increased. The author details society’s prevailing attitudes towards aggregations of wealth in trusts that facilitate the creation of perpetuities and undermine the Rule’s legitimacy in modern law. FOREWORD I. INTRODUCTION II. PERPETUITIES’ PERCEIVED HARM IS FADING A. We Do Not Mind Rich People These Days B. We Like Big Capital Pools and Do Not Wish to Break Them Up C. We See Virtue in Perpetual Existence D. We are Well-Disposed Towards Trusts E. Fighting About Perpetual Trusts May Be a Tempest in a Teapot * Professor of Law, University of California, Davis, School of Law. This Article was written while on sabbatical in London, England, where the author was associated with the London Goodenough Trust, The Institute of Advanced Legal Studies, and the Law Department of the London School of Economics. The author thanks all the preceding institutions for the direct and indirect support of his research. The author also thanks John D. “Jack” Ayer, Holly Doremus, Katy I. Filner, Matthew F. Filner, Michael Froomkin, James P. Garland, Robert H. “Tad” Jeffrey, Kevin R. Johnson, Colleen Kavanagh, Bill LaPiana, Jeff Pennell, Rex R. Perschbacher, David Schaengold, Bruce A. Wolk, Bella Wong, Jennifer Walker, and Richard C. Wydick. Finally, the author would like to thank attendees at a lecture given by the author at the Institute of Advanced Legal Studies held on February 7, 2000, including David Hayton, who sat as Chair, Malcolm Davies, Margaret Halliwell, Tony Oakley, and others.
    [Show full text]
  • Rule Against Perpetuities
    Sec. 2 ESTATES IN LAND AND FUTURE INTERESTS S229 3. The court mentions three possible constructions that could be placed on the “deed.” Under which one, if any, could Clarissa B. collect? Can you think of any other plausible constructions? Review the Note on the Words of Conveyance, supra, p. S167. 4. Once the court had decided that instrument was a deed and not a will, there are a number of possible constructions that could be placed on the interest which was given Clarissa B. The court distinguishes this conveyance from one granting a contingent remainder to Clarissa B., reserving a life estate in her husband. (Do you see how?) Yet ample authority exists for the proposition that an otherwise valid deed, stating that it is not to be effective until the death of the grantor, will be upheld, as reserving a life estate in the grantor and conveying a remainder in the grantee. 3 A.L.P. §§ 12.65, 12.95 n. 5. What interest does the court decide that Clarissa B. had? What are the possibilities? 4. The Rule Against Perpetuities At about the same time as the courts were reviving the doctrine of destructibility of contingent remainders, they also began to announce another doctrine which came to be known as the Rule Against Perpetuities. The first case in which the Rule was announced is generally thought to be the Duke of Norfolk’s Case, 3 Ch. Cas. 1, 22 Eng. Rep. 931 (1682). The reason for the origin of the Rule probably lies in the courts’ concern with the free alienability of land.
    [Show full text]
  • Landowner's Guide to Washington Water Rights
    2019 / THIRD EDITION LANDOWNER’S GUIDE TO WASHINGTON WATER RIGHTS 2019 LANDOWNER'S GUIDE TO WASHINGTON WATER RIGHTS TABLE OF CONTENTS Chapter 1 – Introduction Chapter 6 – Valuing & Selling Your Water Right A Landowner’s Story, p. 3 Valuing Your Water Right, p. 29 Purpose, p. 4 Leasing or Selling Your Water Right, p. 29 Washington’s Water Challenge, p. 5 Chapter 7 – Water Rights Adjudications, p. 30-31 Chapter 2 – Water Right Basics What is a Water Right? p. 6-7 Chapter 8 – Instream Flows & Trust Water Rights Key Water Right Concepts , p. 8-15 Instream Flows and Instream Flow Rules, p. 32-33 How Is a Water Right Established? p. 16 Interruptible Rights, p. 32 Washington Trust Water Rights Program, p. 34-35 Chapter 3 – Understanding Your Water Right Learning About Your Water Right, p.18 Chapter 9 – Exempt Wells, p. 36-37 Evaluating a Water Right, p. 19-23 Buying Land, p. 24 Chapter 10 – Win-Win Water Solutions, p. 38-39 Chapter 4 – Managing Your Water Right Appendix A – Glossary, p. 40-43 How Do You Keep Your Water Right? p. 25-26 Metering Your Water Right, p. 27 Appendix B – Legal Descriptions, p. 44-45 Chapter 5 – Changing or Transferring Your Water Right Appendix C – Resources, p. 46 Changes and Transfers, p. 28 Water Conservancy Boards, p. 28 Acknowledgements, p. 47 Trout Unlimited – Washington Water Project is a nonprofit organization working to create solutions for instream flow, community, and agricultural water needs. We work with private landowners on voluntary projects, and we provide water expertise to NGOs, government agencies, and tribal entities.
    [Show full text]
  • The Essence of Property Law
    Review: The Essence of Property Law FUNDAMENTALS OF MODERN REAL PROPERTY LAW, 3d Edition. By Edward H. Rabin and Roberta Rosenthal Kwall. New York, New York: Foundation Press, 1992. Pp. xvi, 1092. Reviewed by Vada Waters Lindsey* I. INTRODUCTION I have taught property law for four years and, after considering other casebooks, I have always used Rabin and Kwall's Fundamentals of Modern Real Property Law.1 My initial reason for selecting this casebook had much to do with my comfort level in contacting Professor Kwall to discuss her use of the casebook and course content. She graciously supplied me with several syllabi she had used through- out the years and helped alleviate the anxiety that accompanies new class preparation. In addition, I found Rabin and Kwall's Teacher's Manual to be a useful tool because of its level of detail, including a reference list to scholarly articles analyzing every subject covered in the casebook. When my former Academic Dean asked me to consider teaching Property Law, I agreed to teach the course without hesitation. I was extremely excited to teach a course in property law-not because I would gain a strong understanding of the archaic rule against perpetu- ities, but because of my desire to help the students establish a strong foundation in transactional law. I taught Wills and Estates during my first semester of law school teaching, which was when the dean approached me regarding teaching Property. I was more than a little frustrated that students lacked a basic understanding of some funda- mental property law concepts, such as the difference between joint tenancy and tenancy in common.
    [Show full text]