An Introduction to American Law

本文是 https://www.coursera.org/programs/career-training-for-nevadans-k7yhc/learn/american-law 这门课的学习笔记。

Instructors

Anita Allen, Henry R. Silverman Professor of Law and Professor of Philosophy, Penn Law, University of Pennsylvania

Shyam Balganesh, Professor of Law, Penn Law, University of Pennsylvania

Stephen Morse, Ferdinand Wakeman Hubbell Professor of Law; Professor of Psychology and Law in Psychiatry; Associate Director, Center for Neuroscience & Society, Penn Law, University of Pennsylvania

Theodore Ruger, Dean and Bernard G. Segal Professor of Law, Penn Law, University of Pennsylvania

Tess Wilkinson-Ryan, Assistant Professor of Law and Psychology, Penn Law, University of Pennsylvania

Tobias Barrington Wolff, Professor of Law, Penn Law, University of Pennsylvania

Week 03: Property Law

Property law governs the relationship between individuals and things, known as property. In this module, Professor Balganesh will explore the differences between property and tort and contract law and about several specific examples of property law in action: adverse possession, landlord/tenant, and licenses. You will learn about what makes U.S. property law distinct - its origins in common law, imprint of legal realism, and pragmatism.

财产法规范个人与被称为财产的事物之间的关系。在本单元中，巴尔加内什教授将探讨财产法与侵权法和合同法之间的区别，以及财产法的几个具体实例：逆向占有、业主/租户和许可证。您将了解美国财产法的独特之处–其起源于普通法、法律现实主义和实用主义的印记。

Key Property Law Terms

Property

Anything (physical or intangible) that can be owned by a person or entity (http://www.law.cornell.edu/wex/property). Property law represents the legal rules governing human interactions as they relate to various identifiable things (property).

Key Terms:

adverse possession

A doctrine under which a person in possession of land owned by someone else may acquire valid title to it, so long as certain common law requirements are met, and the adverse possessor is in possession for a sufficient period of time. For more, click here: http://www.law.cornell.edu/wex/adverse_possession

chattel

A catch-all category of property mostly associated with movable goods. At common law, chattel included all property that was not real estate and not attached to real estate. Examples included everything from leases, to cows, to clothes. In modern usage, chattel often merely refers to tangible movable personal property. (http://www.law.cornell.edu/wex/chattel)

intangible property

Property without a physical existence. Some intangible property might have a paper embodiment (such as stocks, bonds, or certificates), but other intangible property does not (goodwill, intellectual property, reputation). (http://www.law.cornell.edu/wex/intangible_property)

landlord- tenant law

Governs the rental of commercial and residential property…The basis of the legal relationship between a landlord and tenant is grounded in both contract and property law. The tenant has a property interest in the land for a given period of time. For more, click here: http://www.law.cornell.edu/wex/landlord-tenant_law

ownership

Having the legal right to use, possess, and give away property. (http://www.nolo.com/dictionary/ownership-term.html)

real property

The term “real property” refers to land and is differentiated from personal property. Land, in its general usage, includes not only the face of the earth but everything of a permanent nature over or under it. This includes structures and minerals.(http://www.law.cornell.edu/wex/real_property)

title

Ownership of real estate or personal property. (http://www.law.cornell.edu/wex/title)

trespass

Trespass is defined by the act of knowingly entering another person’s property without permission. Such action is held to infringe upon a property owner’s legal right to enjoy the benefits of ownership. (http://www.law.cornell.edu/wex/trespass)

Supplemental Reading

• “Property Law” (Encyclopedia Britannica)
• “Property and Ownership” (a philosophical perspective)
• “U.S. Landlord-Tenant Law”
• Excerpt from Westlaw’s Black Letter Law Outline: Property

Property Law: Part 1

Hello, and welcome. My name is Shyma Balganesh, and
I’m a professor at the University of Pennsylvania Law School
where I research and write in the areas of property and
intellectual property law. I’m trained in the legal systems of three
different countries of India, the UK, and the United States. And in the next one hour segment, I will attempt to answer a relatively
straightforward questions. Mainly, what is American property law? Now, while this seems like
a relatively straightforward question. In reality,
it involves two separate sub questions. Each of which I will attempt
to answer independently. The first of which is,
what is property law? And the second is what is distinctive
about American property law? These are the two questions I will
attempt to answer in the next one hour.

So let’s start with the first of these. What is property law? So I define property law in rather broad
and simple terms in the following way. Property law represents the legal rules governing human interactions as they
relate to various identifiable things.

Now as you will see from this
rather straightforward but abstract definition it involves three
separate but related components. So what are the three
components of this definition? First, property law is
about human interactions. So to put it very simply, it is about
the dealings, the various dealings, the rights, the duties, the privileges and the immunities that people have because
of each other and their interactions. It is not about the relationship
that humans have to external or outside objects. This is a common misnomer. In some countries and in some legal systems, property might
indeed be considered in such terms as entailing the relationship between
a human being and an outside object. But this is not so in the American
common law system of property. So that’s the first aspect
that the definition captures. The second element of the definition
is that the interaction, the human interaction,
must relate to a thing. This is perhaps the most important
component of the definition. Now, the nature of this
relating to a thing, namely that the interaction must
relate to a thing, can of course vary. The most ordinary and
basic form entails the thing in question mediating the human interaction,
or the relationship. What does this mean?

Here’s an example. Let’s say you’re walking
through a public parking lot filled with cars of various kinds. Now while you don’t ever know the exact
identity of the owners of each car, you know that they are indeed
owned by distinct individuals. But in dealing with the part cars,
say by kicking it, by colliding with it, by trying to pry open a door,
legally speaking, you are dealing indirectly with each owner even though
you don’t know their actual identity. But in dealing with each individual owner,
you are doing so through the thing in question,
namely the car. So the thing, the car, is mediating your relationship indirectly
to the owner of the object in question. Now mediation need not be the only form
in which the relating can take place. The thing can also be
the subject of a transaction. For example, a sale. A transaction to buy and
sell a car is a contractual agreement, but the subject of that transaction
involves a thing, namely the car. When this happens, property law now
begins to interface with contract law. And what we begin to see, is that ideas, devices, concepts, from both areas,
begin to intermingle.

A very good example is the law of leases. Now, a lease is a contract, a contractual
arrangement between individuals. But it is imbued with ideas from
property law for the simple, undeniable reality that it always relates
to a land, building, or other object. So the thing in question, since it’s
a transaction that involves a thing in question, it takes a different shape and starts getting imbued with ideas
from both contract and property law. So that’s the second element, and perhaps the most important
component of the definition. Namely, that the interaction in
question must relate to a thing, and the nature of this relating can,
of course, vary. It can be simple mediation,
or it can be in the form of the thing forming the subject
of the interaction in question.

Let’s move to the third
component of the definition. Namely that the thing in
question can be of various kinds. It can be immovable, it can be movable,
it can be intangible or better still it can be notional.

So as long as we have some minimal level
of identifiability, identification is critical, the precise level of such
identifiability can, of course, vary. So, as long as we have the minimal level,
that’s all the law cares about. Immovable property involves land and
other things permanently attached or affixed to the land. Movable property is just the opposite. It involves what we call in the law
chattel, or things that are not permanently attached to land in any way or
form, and that can be freely moved. Intangible property is
a separate category, and this would cover things that
are more ephemeral in nature. Like information, expression, or
names brand names for example. So these are the three principal
categories, immovable, movable, and intangible. However, property law,
especially American property law, recognizes another category,
which I will call notional property. Notional property in American property law
is a reference to the idea that sometimes legal roles, themselves, create
a fictional asset, or a fictional object, within a particular context,
and attach consequences to it. So, in other words, the legal rules themselves mimic the
working of an ordinary tangible object.

Here’s a very good example. What we call the right of sepulcher. The right of sepulcher is
the right that the next of kin have to control the disposition or the way in which something is treated,
namely a dead human body. So what’s the right the next of kin
have to control the treatment of a dead human body. Now since the right in reality is said
to originate, to quote an old decision, in the mystery and sorrow of death,
rather morbid of course. The law hesitates to characterize
the dead human body as a usual, movable, tangible property. However, to a detailed set of rights and
an elaborate set of rules, it nonetheless confers control on the next
of kin over that very human body. It dictates what they can and
cannot do over the body. What kinds of actions they
can prevent in relation to interferences with the human body,
and so effectively these legal rules create a property regime
functionally over the human body without ever explicitly describing
the human body as a form of property. So this is the third
component of the definition. Namely that the thing can
be of various kinds but nonetheless going back to the second
component, there must be a thing and going back to the first component the thing must
form the basis of the human interaction.

So these three components of
the definition I just laid out, and its emphasis on the human
aspect of the interaction begin to make sense when we start studying
property law and see that in reality about 75% of our property law
interfaces with the area of tort law, or the law of civil liability,
which provides for certain kinds of civil causes of
action in relation to the object. And another 25% of what we call property
law, interfaces with contract law or the law of consensual agreements
relating to these objects in question.

But the object is the key focal point for
what defines property law. So in other words, what makes the subject
of property law distinct from these other areas, despite this tremendous
overlap is its continuous emphasis on the thing in question at all times,
which, in other words, simply put,
injects nuances into those other areas. We saw how this works, as I mentioned
before in relation to the law of leases, which combines the law of contracts and
the law of property.

Let me illustrate this
now with another example. So consider the tort of trespass upon
land, the civil claim that allows an owner of land or other immovable
property, to commence an action against anyone who intentionally enters upon his
or her land without prior authorization. So, there must be an intentional entering
upon the land without prior authorization, and this is the civil action
of trespass upon land.

We’ve all come across the word trespass,
it normally relates to this civil action. However, unlike a vast,
vast majority of other types of torts, the law of trespass upon land doesn’t care
one bit whatsoever about the plaintiff, that is, the, the land owner, or
the owner of the immovable property, showing that he or she sustained
any actual harm from the invasion. So, a simple 30 second boundary crossing
is enough to trigger the action. Just cross over the fence with your
foot and technically there is an action. Also, the law doesn’t care at
all whether the trespasser, that is the person crossing onto the land,
did so maliciously or mistakenly. As long as the act was intentional in
the sense of being volitional, where the actor knows the physical consequences,
not the legal consequences of the action. The action of trespass
upon land can be brought.

So, the law doesn’t care about actual
tangible harm, nor does it care about the state of mind of the person
actually crossing on to the land. Why is this so, you might ask? Why is that trespass upon land as a tort
varies from other tortious actions. The answer is simple, because it
relates to land, and land is a thing. So here’s a little bit of history which
explains this anomaly so to speak. The action of trespass upon land emerged
historically as the principle or primary way by which owners could
have the boundaries of their property determined authoritatively. So in other words to figure out what
the actual contours of one’s land was, was in many ways dependent on bringing
the action of trespass upon land.

The action came to perform a function
known in the law as the vindication of ownership, where the dispute forms
the basis for determining the boundaries of the property owners’ land or the
boundaries of the ownership, so to speak. And for this to work, and for it to
work effectively, tort law’s otherwise extensive emphasis on fault, or the state
of mind of the actor, and the harm, tangible or actual, suffered by the owner,
had to be thrown out, or jettisoned.

And so it’s because trespass
upon land relates to a thing, the land, or the other immovable
property that American property law, in trespass upon land actions,
got rid of effectively, both fault and harm, as requirements for
the cause of action. So despite its reliance then on tort law,
the law of civil liability, and contract law or
the law of consensual agreements for its formal structure,
American property law has never once suffered from what we might
describe as a coherence anxiety. It’s always known what its fundamental
precepts and underlying foundations were. And the reason for this, is because
it’s analytical or architectural, so to speak, connection to the thing. The thing in question as the lens through
which to approach human interactions in various contexts and
various ways has always and at all times seemed intuitive,
simple and undisputed. That in a sense is what property law is. [MUSIC]

Property Law: Part 2

[MUSIC] All right, now let’s move on to the second
question that I said I would answer. Namely, what is distinctive
about American Property Law? So to be sure, there are several distinctive
features about American Property Law. But here I will focus on
what I see as the three most distinctive characteristics
of American Property Law. So, of course,
you will see exceptions to these, generalizations which I’m making
in various specific areas. But I do believe that as a whole
they represent the rule rather than the exception. So these three distinctive
features are one, that American Property Law is
principally common law in origin. Two, that American Property Law
bears the imprint of legal realism. And three, that American Property Law is excessively
pragmatic in structure and content.

So, let’s go to the first of these,
namely that American Property Law is principally or
primarily common law in origin. So, much like its English counterpart, American Property Law is almost
entirely the creation of courts. That’s what one means when they
say it is common law in origin. The law developed through
the formulations of rules created within the context of individual
disputes between parties. And that these rules had
the chance to develop incrementally over
extended periods of time. In the process, adapting to
various changing various contexts, circumstances, and
demands from society and around. Now to be sure when I’m saying
that American Property Law is principally common law in origin. There are indeed areas where the
legislature, either at the Federal-level or at the State-level, has stepped in to
either codify, crystallize, supplement or modify Court-Made Property Law or
Court-Made Common Law of Property. But for the most part, it remains true,
that American Property Law is judgment.

So you may wonder, based on what I just
said, namely that American Property Law like it’s English Common Law counter part,
is common law in origin, what is so American about this Common Law Method in
Property, if it exists in England as well? Well, the answer to that
question lies in recognizing, that the American version of
common law is uniquely different. Which in turn has important
implications for Property Law. Let me explain. Unlike in England, here in America,
we do not have a common law. Instead we have multiple-common laws. Since the common law in the United States
is for the most part State Law. In other words, it’s a creation of
individual states, of which we have many. As a result, we have the Common Law of Property developing in each
individual state over time. And through the individual
decisions of state courts. So we have a plural set of common laws,
so to speak. Now this multiplicity of Common Laws for
Property certainly provides us, for the most part, I would say,
with a common minimum denominator of law. Which of course makes it easy to study for
students. And the variations are fairly minor across
the states when viewed on the whole, when taken as a whole. Yet this multiplicity allows
different common laws to experiment with different
property rules and ideas before settling on one and
choosing to remain with that one. And in the process,
this provides other states with a menu, so to speak, to choose from of property
rules, whenever there exists a variation. And this, believe it or not, was a central idea behind
the American System of Federalism. Where states are,
to paraphrase Judge Brandeis, seen as laboratories of
experimentation in the law.

And that’s the reason we have
different State Common Laws and different State Common Laws of Property.

So let’s, let’s take an example. Namely, the Law of Adverse Possession. Which is a fairly well-known
Common Law of Property Doctrine. The Law of Adverse Possession is
concerned principally with insuring the optimal use of land. And it works by seeking to
reallocate land whenever it is incumbered or
burdened by stale and old claims. So Adverse Possession, when this happens,
requires a plaintiff, a person who is in possession of the land, what
we would colloquially call a squatter. To show that his or her possession
of the land was actual, exclusive, continuous, open and notorious,
and additionally and perhaps most importantly, adverse or
hostile to the true owner for the entire period of what we
call a Statute of Limitations. So in other words,
when a squatter can show that his or her possession of the land meets
these different elements for a particular period, either 10 or 20 or
30 years, that varies from state to state, the law says that,
that squatter can go to court and upon showing these elements
become the owner of the land. The land then gets transferred from
the previous owner who wasn’t in possession to the squatter or
the adverse possessor, so to speak. So Adverse Possession is, put very simply,
a doctrine that redistributes land.

Now the big debate in
Adverse Possession Law has been, what exactly the element of adverse or hostile means in terms of the plaintiff
possessor’s state of mind. Right, so what does the plaintiff or
possessor have to think? Does the plaintiff, possessor,
have to occupy the land knowing that it wasn’t his or hers, that is,
we might say, an actual bad faith? Or should he or she have merely mistakenly believed
that it was indeed his or her land? So in other words, in good faith. Or should the subjective
state of mind matter at all. Should we just deem it irrelevant? Now, very importantly, you’ll see, each
permutation correlates with what the Law of Adverse Possession chooses to emphasize
as its principle stated purpose. Could it be incentivizing innocent but
efficient use by the possessor? Or should we be deterring
non-use by the original owner, who slept on his or her rights? Or should be deterring intentional
squatting because that behavior is bad faith? And guess what? To be sure, different states
developed different approaches.

One set of states,
developed a rule that the plaintiff or the possessor, the adverse possessor so to speak, needed to show an intent
to possess the land of another. For it to satisfy the adverse or
hostile element. This rule came to be
known as the Maine Rule, since it originated in the state of Maine.

Another state, set of states developed
the idea around the same time or a little after that the intent
idea was all together meaningless. And that what the law should be
focusing on and the only thing that was relevant to determine this
element was the Absence of Permission. So as long as the adverse possessor,
the plaintiff, didn’t go and seek permission from the true owner. That’s all that was necessary
to satisfy the adverse element. Now this rule was developed by
the State of Connecticut and is today called the Connecticut Rule.

And some others developed
the all together different idea, that a mistake was fine, but
an intentional trespass was problematic. So if the possessor acted knowing
that that he property wasn’t his or hers, that was problematic. So in other words good faith
behavior needed to be shown. Now to date their remains a plurality or
multiplicity of views on the question. With however the Connecticut approach
being the most dominant one today. Now this plurality of views or
the multiplicity of positions and rules can, of course,
be seen as confusing at first blush. But on further reflection, you’ll see
that it allows different values and ideals to be debated during
the conversation about the law, and perhaps more importantly, for an actual
empirical examination of the effects of different rules before selecting one. This, in turn, allows change in the law,
in American Property Law, to have a credible basis as courts,
and occasionally legislators, in one state borrow from the experience
and learning of courts in another state. And through this process
American Property Law becomes richer and more dynamic in nature and content. So going back to our example of
the Law of Adverse Possession. The State of Maine has itself now come to
abandon what we called the Maine rule. So in summary, this is the first
distinctive characteristic of American Property Law. Namely that it is principally and
primarily common law in origin. And when I say common law in origin
it’s not just a structural question that courts have for the most part
created American Property Law but that the very common law method
has certain values and virtues. Because of the way in which it
works in the United States. It is allowed for a plurality
of American Property Laws with, of course,
in minimum common denominator but for extensive variation and experimentation
on the margins whenever necessary. [MUSIC]

Property Law: Part 3

[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 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 intents and 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.

The implied warrant of habitability is an example of legal realism at work, because instead of just applying the law to the case, the court explicitly created a new rule that it thought best fit the overall circumstances of landlord/tenant law.

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]

Property Law: Part 4

[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]

Property Law Quiz

Which branch of government has been primarily responsible for the development of American property law?

A. The legislature

B. The executive

C. The judiciary

哪个政府部门对美国财产法的发展负有主要责任？

A.立法机关

B.行政部门

C.司法机构

选C

法律英语

dealings：交易

misnomer：美 [mɪsˈnoʊmər] 用词不当

mediate：美 [ˈmiːdieɪt] 调节，调停

So the thing, the car, is mediating your relationship indirectly to the owner of the object in question. 所以这个东西，汽车，间接地调解了你和这个物体的主人的关系。

lease：美 [liːs] 租约，出租

the law of leases 租赁法

notional：概念上的

in question：被提及的，正在讨论的

Namely that the thing in question can be of various kinds. It can be immovable, it can be movable, it can be intangible or better still it can be notional. 即所讨论的事物可以是各种各样的。它可以是不可移动的，可以是可移动的，可以是无形的，或者更好的是可以是概念上的。

identifiability：美 [aɪ’dentɪfaɪə’bɪlətɪ] 可识别性；可辨认性

chattel：美 [ˈtʃædl] 个人财产，动产

Chattel property: Things not permanently attached to the land and that can be freely moved.

sepulcher：美 ['sepəlkə] 石墓，坟墓。动词：埋葬，掩埋

the right of sepulcher：坟墓的权利

disposition：处置，处分权

the next of kin：近亲

The right of sepulcher is the right that the next of kin have to control the disposition or the way in which something is treated, namely a dead human body. 埋葬权是近亲有权控制对某物的处置或处理方式，即尸体。

elaborate：复杂的，详尽的

confer：授予

However, to a detailed set of rights and an elaborate set of rules, it nonetheless confers control on the next of kin over that very human body. 然而，对于一套详细的权利和一套精心制定的规则，它仍然授予近亲对人体的控制权。

regime：美 [reɪˈʒiːm] 政权，体制，政治制度 注意发音

volitional：美 [və’lɪʃnəl] 意志的，凭意志的

“in the sense of being volitional” 意思是指行为是经过主观意愿做出的，是出于自愿的意志而非被动或无意识的。

As long as the act was intentional in the sense of being volitional, where the actor knows the physical consequences, not the legal consequences of the action. 只要该行为是故意的，行为人知道该行为的物理后果，而不是法律后果。

vindication：美 [ˌvɪndɪˈkeʃən] 辩护，证实

vindication of ownership：所有权的证明

jettison：美 [ˈdʒɛdəsən] 抛弃，丢弃

imprint：在…上印下；铭刻；使…牢记。名词：印记

American Property Law bears the imprint of legal realism：美国财产法带有法律现实主义的印记

legislature：美 [ˈledʒɪsleɪtʃər] 立法机构

codify：美 [ˈkɑdəˌfaɪ] ：编纂，把（法律；条例）编成法典；有计划地安排；筹划；

crystallize：美 [ˈkrɪstəlaɪz] 成形

codify, crystallize, supplement or modify Court-Made Property Law：编纂、明确、补充或修改法院制定的财产法

multiplicity：美 [ˌməltəˈplɪsədi] 许多，大量， 多样性

multiplicity of Common Laws for Property

adverse possession: 违法占有

the Law of Adverse Possession

Adverse Possession Law是一种法律原则，规定了在特定条件下，某人未经所有权者同意但持续占有土地一段时间后，有权获得该土地所有权的情况。通常情况下，Adverse Possession Law要求占有者在持续占有土地一定时期后，具备特定的条件，例如持续、明确、非法、开放性和排他性使用土地。如果这些条件得到满足，占有者就有可能通过法律程序获得对土地的所有权，即使原所有者没有同意或知晓此占有行为。

这种法律原则的目的是确保土地得到有效利用，防止土地无人占有而荒废。Adverse Possession Law在不同的司法管辖区可能会有所不同，具体的要求和条件也可能会有所调整。

stale:美 [steɪl] 陈旧的

incumber：美 [ɪn’kʌmbə] 妨碍，阻碍

And it works by seeking to reallocate land whenever it is incumbered or burdened by stale and old claims:当土地被陈旧的、老旧的权利要求所拖累或负担时，它的作用是寻求重新分配土地。

Statute of Limitations：“Statute of Limitations”（时效法规）是法律规定的一种时间期限，规定了在一定时间内对某些法律诉讼或索赔提出的限制。超过了这个规定的时间期限，一般情况下，原告将无法再通过法律途径来起诉或索赔。

squatter：美 [ˈskwɑːtər] 非法占地者；非法定居者；

So Adverse Possession, when this happens, requires a plaintiff, a person who is in possession of the land, what we would colloquially call a squatter.To show that his or her possession of the land was actual, exclusive, continuous, open and notorious, and additionally and perhaps most importantly, adverse or hostile to the true owner for the entire period of what we call a Statute of Limitations.

因此，当这种情况发生时，逆向占有需要一个原告，一个拥有土地的人，也就是我们俗称的擅自占地者。证明他或她对土地的占有是实际的、排他性的、持续的、公开的和众所周知的，此外，也许最重要的是，在我们称之为诉讼时效的整个期间，对真正的所有者是不利的或敌对的。

pejoratively：美 [pi’dʒɔrətivli] 轻蔑地，贬损地，贬低地

Now this old approach was termed, rather appropriately and of course pejoratively, as mechanical jurisprudence. 现在，这种旧方法被恰当地称为机械法学，当然带有贬义。

Legal Realism

Legal Realism是一种法学理论，强调法律判断和司法决定实际上是由法官的社会、经济和政治背景所影响的。这种理论认为，法律并非严格的逻辑推理，而是受到法官的主观看法和外部因素的影响。Legal Realism的支持者认为，法律应该根据现实社会的需要和情况进行解释和适用，而不是仅仅遵循传统的法律规则或法条。这种理论强调了法官的自由裁量权和法律的动态性，因此对于法律变革和司法决策的理解具有重要意义。

mechanical jurisprudence

机械司法学是一种法学理论，强调法律的解释和应用应该像机械一样机械地执行法律规则，而不考虑法官的个人见解、社会因素或案件的具体情况。这种理论认为，法律应该是一种固定、确定的体系，法官的主观看法应该被排除在外，以确保法律的一致性和稳定性。机械司法学的支持者认为，法官应该严格遵循已有的法律规则和先例，不应该在司法决策中引入个人喜好或判断。然而，这种理论在现代法学中已经被批评，并被认为是对法律的过于简化和机械化的看法。

judges:美 [ˈdʒədʒəz] 法官，注意发音

marshal：美 [ˈmɑːrʃl] 整理，汇集

judges marshaled a wide variety of sources and ideas. 法官们汇集了各种各样的资料和想法。

legal formalism

法律形式主义（Legal Formalism）是一种法学理论，强调法律的解释和应用应该基于明确的法律规则和逻辑推理，而不考虑司法者的个人看法、社会因素或案件的具体情况。在法律形式主义的视角下，法律应该被视为一种严格的、固定的体系，法官的主观看法应该被尽可能地排除，以确保法律的一致性、可预测性和稳定性。法律形式主义的支持者认为，法官应该严格遵循法律文字的意义和法律规则的字面解释，而不应该在司法决策中引入个人喜好或判断。然而，法律形式主义也受到了批评，因为它可能忽视了法律背后的公平正义原则以及社会变革的需要。

landlord: 美 [ˈlændlɔːrd] 地主，房东

tenant：美 [ˈtenənt] 租户，佃户

residential：美 [ˌrezɪˈdenʃl] 作住所用的；私人住宅的；提供寄宿的；

Landlord/Tenant Law or the Law of Residential Leases 房东/房客法或住宅租赁法

premised：美 [ˈpremɪst] 假设；作出前提； 注意发音

contract law was premised on the idea of equality and bargaining position. 合同法是以平等和谈判地位的理念为前提的。

warranty：美 [ˈwɔːrənti] 保单，保证，保修单

The implied warranty of habitability 可居住性的隐含保证

mandatory rule：强制性规则

partake：美 [pɑːrˈteɪk] 参与 参加

partake of：分享

it partakes of what we might say a genuine amount of value pluralism 它分享了我们所说的真正的价值多元化

plurality：美 [plʊˈrælədi] 多种，众多，诸多

normative：美 [ˈnɔːrmətɪv] 标准化的

American property law embraces a plurality of intellectual and normative ideals, no one of which characterizes or dominates the entire realm. 美国财产法包含多种知识和规范理念，其中没有一种能够代表或主导整个领域。

impediment：美 [ɪmˈpedɪmənt] 妨碍，阻碍

dispossession：剥夺，强占不动产；驱逐；

inebriated：美 [ɪnˈibriˌetɪd] 酒醉的，陶醉的

abjure：美 [æbˈdʒʊr] 郑重放弃

the law is deeply pragmatic and consciously abjures the rigid categories and reasoning of the traditional common law 该法非常务实，有意识地摒弃传统普通法的严格分类和推理

granted：美 [ˈɡræntɪd] 准予，授予

incur any liability：招致法律责任

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 许可证是财产所有人授予某人的许可，允许他在不承担任何责任的情况下做与该财产和资源相关的事情

revoke：撤回；撤销；废除；

bizarre：美 [bɪˈzɑːr] 古怪的，奇怪的

amount to：相当于

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 法律规定，如果给予肯定的许可去做某件事，这种肯定许可的给予相当于土地所有权利益的转移

conveyance：美 [kənˈveɪəns] 产权转让

the ticket was not a conveyance of any grant or interest in the land. 该票不是土地的任何授予或权益的转让。

purport to

**“Porport to” 是一个短语，表示某事物似乎或声称具有某种性质、特征或效果，但并不一定确实如此。**这个短语通常用于描述某种声明或行为，暗示其中可能存在误导或不准确之处。

例如：

• 这份文件声称提供了解决方案，但实际上却并未解决任何问题。
• 这种药物号称可以治愈感冒，但实际上它的功效并不明显。

因此，“porport to” 表示所描述的情况或声明可能不尽准确或真实。

by common understanding, it did not purport to have that effect：按照通常的理解，它并不确实产生这种效果

后记

2024年4月25日21点46分完成week 3 的学习：美国财产法（Property Law）介绍。2024年4月25日21点54分上传到CSDN博客。