[MUSIC] And this brings us to the third distinctive characteristic of American property law. This is the reality that American property law is extremely pragmatic in structure and in content. Perhaps American property law's most distinctive attribute is the one I just described, namely its fundamentally pragmatic orientation. So, to begin with, let me be clear about what I mean by pragmatic. By pragmatic, I am not referring to any particular philosophical orientation or indeed to a broad theoretical school of thought. I'm referring to something much more simple. I'm referring to the law's ability to fit itself into the svelte needs and requirements of different circumstances and contexts. So, its adaptability as demanded by the facts of any given situation. And in this process of adapting itself, the law comes to embrace different normative ideals and values. So, it partakes of what we might say a genuine amount of value pluralism because it embraces different values over time and from different contexts from the practical necessities of different disputes. So, American property law embraces a plurality of intellectual and normative ideals, no one of which characterizes or dominates the entire realm. Though of course, in each different area, different values tend to dominate. So, in different areas different values dominate, but no one value dominates across the board in the entirety of American property doctrine. So, in a sense, then, the concept of pragmatism that I'm talking about here is a simple rendition of the idea that American property law is heavily practical and acutely aware internally of the needs of society at different points in time. Judges developing property law to individual cases are as a result quite willing to change and adapt the law to fit their conceptions of what justice demands in any given case and what other values might demand in those cases. And at the same time, just as importantly, they are very willing to abandon formal categories, not just work with them, altogether abandon formal categories and distinctions when those categories work as impediments to the realization of their conception of justice in an individual case. So, pragmatism, as I describe it here as an attribute of American property law, entails two different things, though they are connected. One, common sense, and two, pluralism. And both of them go under the statement that I made that American property law in content and structure is acutely pragmatic. Once again, let's look at some examples to illustrate this point. So, let's first consider a doctrine known as trespass to chattels in American law. Trespass to chattels, and remember chattels mean movable property, this is an action that allows the owner of a chattel, or movable property, to bring a claim against someone who interferes with that chattel. Now, unlike a connected tort, that is known as a tort of conversion, trespass to chattels doesn't involve the owner asking for the entire replacement value of the chattel in question, but rather, compensation for the harm sustained. Okay? This is important. The tort of conversion would be an action that the owner of a chattel brings, seeking full replacement value of the chattel. In a trespass to chattels action, the owner is seeking compensation for harm sustained. Now, in most common law countries, a simple physical interference with the chattel is sufficient and enough to trigger the action. In these countries, just like it is with trespass upon land, where if you cross a boundary and step on another person's land, you invite liability. So too in these other countries, if you touch someone else's movable property without permission, you invite liability. So, for example, if you go to the National Gallery of Art in London, hypothetically, and without the curator's permission or without anybody's permission, you move one of the exhibits slightly. Let's say you think you have a better aesthetic sense of how they should be positioned. You could be sued for trespass to chattels under UK law. Well, not so under American property law. Why? Because under American property law, for a trespass to chattels claim to even be brought, the plaintiff, namely the owner, needs to show either a dispossession, that he or she was dispossessed of the use of it, or alternatively, some actual physical harm to the chattel itself. Mere notional harms, like touching, are not enough under American law for a claim even of nominal damages of $1 or even a claim to be brought. No action lies, period. Here's the most striking example of this for you to understand and digest the implications. Let's say you park your car on a street overnight. You forget to lock it. You think it's a safe neighborhood, you don't lock the car, or you don't double-check. In the middle of the night, an individual who is, let's say, inebriated, is looking for a warm and comfortable place to spend the night before heading home the next day in the morning. This individual walks by your car, looks inside, sees comfortable seats, and tries opening the door. And realizes, and is pleasantly surprised, that the door is unlocked. And finds that your back seat in the car is empty and as comfortable as it gets. It's as comfortable as his sofa bed at home. And therefore, that night, he decides to spend the night in the car, and sleeps in there, and leaves in the morning when the effects of whatever he was inebriated with wear off. The next day in the morning, you notice no signs at all of that person's entry into the car. You have no signs to see on the seat in the car at all, no smell, nothing. But when you happen to look at a nearby building's CCTV camera, let's say, you see that person's actions. You see that that person got into your car and spent several hours in it. You're angry. You can even identify this person. American law says you are out of luck. You are not dispossessed because you were not using the car. It did not interfere with your enjoyment in any way. You'd just parked it there. And the chattel, the car, suffered no harm, no strat, no scratch, no smell, nothing at all. So, American law assumes that there are better ways of dealing with this than promoting litigation and recognizing an action to be brought. Instead of allowing an action for every tactile or touch-based interference and then hoping that people are sensible enough not to sue, the law says, let's just incorporate a basic idea of live and let live into the law. So, instead of worrying that we have a law and that everyone who bumps into the other person's luggage in the New York subway might indeed bring an action and we have to filter it out later, let's just now ensure that these actions don't lie to begin with. If you want to ensure additional protection, say, because you really value your chattel or car, you, as the owner, ought to bear the burden of actual additional protection via self help. Park it in a garage, buy a more expensive lock, or monitor it in better ways. Let's not live with the idea that you have an action and people might not bring them, the law says. So, to digress for a moment, this position in American law has a very interesting origin. It actually dates back to a 19th century, actually 1843, case before the Supreme Court of Illinois, known as Johnson versus Weedman. And in this case, a rather bright, in fact very bright, and young 34-year-old lawyer for the defendant convinced the court, the Supreme Court, that a defendant's, or his client's, riding around on the plaintiff's horse for 15 miles without any visible damage to the horse. So, the plaintiff had handed over the horse to the defendant and the defendant rode around on the horse for 15 miles. There was no dispossession because the plaintiff had handed over the horse and the horse seemed to enjoy it. There was no visible damage. He convinced the court that the defendant's riding around was not actionable. And that was the basis for today's law, trespass to chattels, that eventually now provides that in the absence of actual harm to the chattel, no action will lie. You can't even get nominal damages. You can't even get an injunction, the law says in some extreme positions. This young lawyer, believe it or not, would go on to become the 16th president of the United States, Abraham Lincoln. So, he's responsible not just for the 13th Amendment, but also for the law of trespass to chattels. Let's now go to another example which stands for this same proposition that I'm trying to explain, namely that American property doctrine is extremely pragmatic. This is the American law of licenses. It's another area where the law is deeply pragmatic and consciously abjures the rigid categories and reasoning of the traditional common law, which you see continuing in other common law countries. So, let's start with the basics. At its simplest, a license is a permission granted by the owner of property, to someone to do something in relation to that property and resource without incurring any liability. Okay? So, in other words, it's a form of immunity granted by a property owner to some strangers, saying, I will not sue you when you do something in relation to my property. The question that soon emerged was whether a license that is granted by a property owner to someone else could indeed be revoked, whether it was indeed revokable at any point in time, and what are the conditions, courts began asking, under which it could be unilaterally revoked. So, could a property owner who grants a license to someone unilaterally change his or her mind after allowing someone onto the property? And should it make a difference at all if the person who had been granted this permission paid good money for the permission? So, under what circumstances could this permission be revoked? In other words, when was the license revocable? Now, this began to assume importance in relation to tickets that began emerging where members of the public paid money to go onto someone else's property to do something or to see something on that other person's property. So, the question more concretely that emerged was whether the owner of the premises could unilaterally throw someone he or she didn't like off the premises. And did it matter at all that that person had paid money for the ticket? Now, to answer this question about whether the owner could unilaterally revoke the license, English common law, English common law, drew a what can only be described as bizarre distinction between a mere license and a license coupled with a grant. English common law said that if the license did no more than promise not to sue, if it simply said, I will not sue you and no more, it could be revoked at any time. But English common law said that if it also granted affirmative permission to do something, rather than simply said, saying, I will not sue you, it would operate as a grant of an interest in the land, and it then couldn't be revoked until that interest had ended. So, in other words, the law said that if it granted affirmative permission to do something, that grant of affirmative permission amounted to a transfer of an ownership interest in the land. And because it transferred an ownership interest until that ownership interest, which was determined by what the permission related to, ended, it could not be revoked. And believe it or not, courts spent all their time and energy figuring out whether tickets were mere licenses or licenses coupled with a grant, and engaged in all sorts of convoluted logic to draw out this distinction. Some English courts, for example, even said that when you get a ticket to watch a movie, you get a property interest, temporarily as it may be, in the movie theater until the movie ends. Imaging the implications of that. Each time you buy a ticket to a movie, you get a temporary ownership stake in the premises itself such that you can't be thrown out. It is a grant, some English court said. American law, on the other hand, saw problems with this absurdity rather early on. So, we have this case in 1913 known as Marrone versus Washington Jockey Club, a decision of the United States Supreme Court. And in this case, the plaintiff had bought a ticket for money to see a horse race. The owners of the club didn't like the plaintiff personally. And it turns out that in previous occasions, they'd accused him of doping and drugging horses to rig the races, so they were deeply suspicious of him and didn't want him on the premises. So, once he dropped his ticket into a box. They had a little box by the entrance. So, as he walked onto the premises, he dropped his ticket into the box. They then accused him of not buying a ticket at all and had him ejected from the premises. They threw him out, unceremoniously out of the club. He then sued the club, saying that their reasons were wrong and that he had indeed bought a ticket. And he claimed that his ticket granted him an irrevocable license for the duration of the race that he had come to witness. So, he said, when he bought this ticket for a race, he got a property interest in the land for the duration of the race, and until the race ended, he couldn't be thrown out. So, he claimed it granted him a property right in the race track for the race. The matter reached the U.S. Supreme Court, and in a, in an opinion by the famous Justice Oliver Wendell Holmes, Junior, the court says no to his argument. Justice Holmes see the absurdity of the position that the ticket holder is trying to make, and also recognizes what the implications would be if the law came to recognize every ticket holder to be a property owner with an irrevocable license. The court, through Justice Holmes in a rather short but interestingly worded opinion, concludes that the ticket was not a conveyance of any grant or interest in the land. Why? Because Justice Holmes says rather starkly, because by common understanding, it did not purport to have that effect. Common understanding. So, he then says, as I pointed out, there would be obvious inconveniences if the ticket, or it, were construed otherwise. So, common sense, coupled with the long term effects, were what was motivating him as his primary guide. In half-page opinion, he concludes that the ticket did not grant its holder an irrevocable license, but was a mere license, in contrast to English decisions on the same question that span 15 or 20 pages parsing out the logic of a mere license, and in the process, come to draw artificial distinctions. Justice Homes, representative of American property law, says that common sense and the avoidance of inconveniences were his primary guide. These two examples, one drawn from the law of trespass to chattels and the other from the law of licenses, together illustrate the proposition that I began with, namely that American property law is extremely pragmatic. In deciding individual property cases and in crafting law for the future, courts are driven by a commitment to common sense and the need to adapt the law to the circumstances of the case and the needs of society even if that means abandoning formal categories in the pursuit of justice. In conclusion, the three characteristics that I just identified represent, to my mind, the three most distinctive features of American property law. One, the idea that American property law is primarily common law in origin. Two, that American property doctrine bears the imprint of legal realism. And three, that American property law in both structure and content is extremely pragmatic. In conclusion then, I would say, putting this all together, that American property law represents the best, the very best, of everything that is uniquely American about our legal system. Between its commitments to plural values, common sense, and realism, it is rich, textured, complex, and at the very same time, sensitive to changes in the socioeconomic sphere. It is an area of law, very importantly, where simply knowing what the law is is never enough. If you are a lawyer, student, scholar, or judge, understanding and appreciating what goes into it and how it works is perhaps as important, if not more important than knowing the exact black letter doctrine of law and of the subject. So, in closing, I would add that it is probably an area which places the most acute importance on the virtue of thinking like a lawyer, so much so that in my humble view, to graduate from law school without having ever taken property law would amount to intellectual malpractice even if you are otherwise qualified and passed the bar. Thank you very much. [MUSIC]
