AALS sections provide opportunities for law school faculty and staff to connect on issues of shared interest. Each of the associations 104 sections is focused on a different academic discipline, affinity group, or administrative area. For a full list of sections and information on how to join, please visit aals.org/sections.
As part of the ongoing “Spotlight on Sections” series, AALS sat down with the leadership of the Section on Property Law for a Q&A.
Chair: Rashmi Dyal-Chand, Northeastern University School of Law
Chair-Elect: John J. Infranca, Suffolk University Law School
Rashmi Dyal-Chand: I went to the New Law Teachers conference, which was one of the best conferences I’ve attended. That along with a midyear meeting on property law got me interested in participating in AALS events. I got involved in the section’s leadership because some great colleagues asked me to participate.
John Infranca: The New Law Teachers conference was helpful initial exposure to AALS, and then I started attending the Annual Meeting regularly after that. I benefited early on from presenting twice at the Property section’s Junior Works-In-Progress Panel, which made me want to get involved in the leadership. People I had started to get to know were involved in the leadership. The opportunities to work with them on the programming and to give something back to the section were motivators.
JI: People move up from treasurer, to secretary, to chair-elect, to chair. We have a very large executive committee that is engaged in feedback and planning sessions for upcoming meetings. Our current secretary and some members of the executive committee have been spearheading efforts for online programming related to COVID and issues of racial justice. They’re also developing an online format for people to have panels and present works given that we cannot meet in person.
RDC: The executive committee has 24 people now. We’ve been very open in the last few years about inviting anybody who wants to join. Both the officers and the executive committee have included junior and senior law teachers. There’s a lot of interaction and mentoring, both formal and informal, through the leadership structure. When AALS offered us the opportunity to work on some webinars, the executive committee organized themselves with the leadership of our secretary, Andrea Boyack, to create a webinar series, which will hopefully continue into the fall.
RDC: There are so many resources on that topic from other AALS sections that we haven’t been focused on it in particular, although it is relevant to the programming that we’ve been talking about for the webinars and the Annual Meeting.
JI: The listserv has been more active in the last few months than I’ve ever seen. It’s a great resource of people sharing ideas, asking questions, and talking about curricular changes and materials related to issues of racial justice. The listserv has been the primary resource related to teaching and pedagogy.
RDC: The best way to get involved is through the executive committee. Over the last several years most of the chairs have engaged the executive committee on a regular basis. It’s a great way to get to know what the section leadership does and what are the practices, formal and informal, of the section.
JI: Every month I send out a welcome email to the people who have newly joined the listserv. In the email, I tell them about what we’re planning and then encourage them to be involved with the section going forward. We have an informal section meeting after our session at the Annual Meeting every year, and we have a conversation about who wants to join the executive committee or be an officer. Anyone is welcome. If there are multiple people who want a position, we talk about that and have a vote. It’s a fairly informal and open process.
RDC: We will have a main program and a junior works-in-progress session. The main program is jointly sponsored with the sections on Clinical Legal Education and Community Economic Development. It is titled “A Right to Housing! Law & Activism to Eradicate Homelessness.” We’re planning to have speakers who are activists, practitioners, and legal scholars in this area, so that these three different constituencies can have a conversation with each other about homelessness and housing in an age of crisis. We also want to incorporate both new and well-established voices in legal scholarship.
We want to include as many junior scholars as possible in our junior works-in-progress session. We structure the session flexibly, so that those who submit an abstract to participate in the session get a chance to do it. We’ve been quite successful in involving many junior scholars presenting their works-in-progress. We also involve the senior scholars, who commit to reading drafts in advance and sharing comments, typically both at the session itself as well as in writing.
JI: The junior sessions have taken different formats. The last couple of years, it’s been more formal. A junior scholar has a paper drafted; they circulate to respondents; they present; then the respondent provides some comments. Then it is opened up to the audience for a formal presentation.
At the 2021 meeting, we would have had a field trip with a group known as the Tenderloin Housing Clinic. They’ve been around for about 20 or 30 years, and they do work related to housing and homelessness in the Tenderloin area in San Francisco—near where the Annual Meeting hotel is. Their director’s most recent book touches on issues of housing displacement, zoning, and other issues that were of relevance to the policy issues that exacerbate homelessness, both in the Bay Area and more generally. He was going to show us some of the facilities they run, talk a little about the history of that area, and then talk more generally about issues of housing insecurity and homelessness in the Bay Area.
I’ll be chair next year, and the 2022 Annual Meeting will be in New York. I used to work at the Furman Center for Real Estate and Urban Policy, at New York University. My hope is to work with some connections at the Furman Center and elsewhere in New York to develop a field trip and build off of whatever the executive committee decides we should do for our programming.
RDC: My goal this year is not necessarily focused on a big, new programmatic initiative, but rather on encouraging the kinds of conversations that have been happening on the listserv and the connections that continue to be made as a result of both meeting at the Annual Meeting and the interim opportunities to interact on the listserv. I nurture participation in the conversations that are happening by actively responding offline to people when they participate on the listserv, soliciting participation for the Annual Meeting programs, and reaching out and trying to solicit diverse participation on the executive committee. If I had more than a year as chair of the section, I would try to formalize mentoring opportunities.
JI: The section has also considered creating a database of casebooks. Josh Blackman (South Texas College of Law) had been doing this as an independent project. A new faculty member picking the casebook they will use or someone changing casebooks could easily get in touch with someone who already uses that book to ask about its benefits.
The section has talked about doing a monthly works-in-progress as a way to maintain connection through the year. It would be like a faculty colloquium, where someone would present a work via webinar. I think people’s bandwidth is somewhat narrow at this point because of all the other things going on personally and professionally. For this reason, we haven’t launched that, but I would like to create a groundwork for that in the coming year. It would be a way to continue to foster the community, while also giving people substantive feedback on their scholarship.
RDC: I had practiced in several different fields of property law, and my school asked me to teach the subject. In my scholarship, I discovered that the things I wanted to write about greatly implicated property law issues. I realized it is such a rich course to teach to first-year students because the way to teach it effectively is by drawing on major policy issues of the day to frame the doctrine. That process generates so many interesting ideas for scholarship.
JI: My interest in the subject matter came about during law school. In the years before law school, I had worked with homeless services organizations and on housing issues more generally. I learned in the course of law school that property touched on a lot of interests of mine, including issues related to homelessness and housing insecurity. I also have a background in theological ethics, so issues of community formation and community identity were tangentially of interest to me, and property is pivotal for that. When I decided after law school that I wanted to go in the teaching market, I worked for a number of years at a place called the Furman Center at NYU, which focuses on land use and urban policy issues in New York and nationally. That fostered my interest, particularly in the land use and zoning area of property, but in the subject matter more generally. I think that property is in some ways the most interesting of the first-year classes because it touches on so many things that are crucial to human existence and how we think about the structure of society.
JI: Doctrinally, the material does not change dramatically. Some of other subjects heavy in Constitutional law, for example, may have a rapid shift in doctrine if you don’t teach for a couple years. That’s less true in property, but the way we think about these issues does change over time.
RDC: Over the last decade, there’s been an active conversation in scholarship about the basic function of property regulation in American society. I would argue it’s been represented by, but by no means limited to, two strands of property law scholarship. On one side is the progressive property strand that argues that the role of property regulation is not just limited, for example, to wealth optimization or some of the principles that ground the economic analysis of the law. The other strand argues that the role of property regulation is to support the ease of resource acquisition and use, so that, for example, the right of exclusion should take primacy in order to signal ownership rights. The way that people are framing and organizing their courses has been meaningfully impacted by the positions they take on this set of issues. The doctrine is relatively stable in most casebooks. The way that the doctrine is framed, including by means of doctrinal additions, has changed over time. Those who teach from the progressive property perspective may put meaningfully more doctrinal discussion into their courses about public accommodations, social welfare law, or issues of addressing homelessness, etc., whereas those who adhere to the law and economics perspective may put in more doctrine about property rights over objects, over chattel, etc.
JI: There has been one dominant casebook for many years, the Dukeminier casebook, which has a strong emphasis on the historical development of doctrines. In other casebooks, the doctrine is still the same, but there are differences in how you frame it, what you prioritize, the threads that connect material. You’re trying to get students to think about and understand the legal doctrine, but also start thinking as lawyers about how doctrine evolves. You’re trying to give them framing devices.
More colleagues are using practice-oriented tasks in class, not just in the form of a formative assessment, but also in the course of doing something representative of legal work. It’s hard to do that in a large first-year lecture course. I’m limited in what I do because I have about 90 students, but I have students do a title search to understand that process and understand how mortgages relate and deeds relate. I want them to get a sense of the nitty-gritty of dealing with the actual documents that people are filing and that lawyers are drafting.
JI: The biggest areas that have been affected are landlord-tenant law, mortgage law, and foreclosures, given the moratoriums that have been put in place on evictions for tenants and foreclosure for homeowners. There have been some attempts to challenge these measures, but those have largely been unsuccessful. They’re not sound arguments. It’s also foregrounded, for some, the issue of small landlords, many of whom are of moderate income. If they’re not able to collect rent, they’re facing challenges.
Many of these challenges raise a spotlight on wealth distribution among different communities, as COVID-19 disproportionately affects them. In addition to low-income tenants and low- and moderate-income homeowners, the pandemic is also affecting moderate-income small landlords, which includes a surprising amount of property owners, particularly in low- and moderate-income communities. That’s raised a host of different issues at the intersection of landlord-tenant law. I don’t know that it’s changed the doctrine yet, but it’s highlighting the importance of housing and the importance of tenancies for individuals.
JI: There have been many conversations about this on our listserv as members develop their syllabi for the coming year. We are talking more about how structural racism affects the areas of housing ownership, mortgages, redlining, and the disinvestment in our communities, as well as in terms of present-day zoning. Addressing suburban exclusionary zoning practices at the national level has not been enough of a conversation. It is one of the most significant causes and symptoms of structural racism in our landscape. It exacerbates educational inequities. It exacerbates disparities in asset-building and long-term generational wealth. It also exacerbates, as we saw particularly in St. Louis, issues of policing. That’s something we haven’t grappled with as a society.
Affluent communities are talking about Black Lives Matter, but aren’t necessarily looking in the mirror about the ways in which their communities have excluded people of color over time. There is room for that conversation moving forward and a real need for people to bring it to the fore. One of the more powerful and challenging ways in which we can address these problems is by changing the way we exclude people from property ownership through our property and land use laws.
RDC: One example of John’s point is happening in my own town. I’m involved in moderating a series of virtual community conversations about the imperative of affordable housing in the town where I live. These conversations have often returned to the connections between housing inaccessibility and structural racism. These and other conversations that I’ve had with law students and practitioners highlights the reality that structural racism and the killings of George Floyd, Breonna Taylor, and others is also impacting property. Conversations about segregation, racial and income inequality, and the relevance of texts like The Color of Law have been enlivened and much more impassioned as a result of recent events. The health pandemic is prominent, but equally, if not more prominent, are conversations and actions around structural racism.
I am planning to use that issue as the starting point of the conversation in my property law class this year, and probably the policy backbone for the organization of the course. I think it’s time to restructure my course in response to the conversation that’s happening right now about structural racism.
