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INTRODUCTION

    COMMON LAW CASES

Property law is largely state law. Each of our states, territories, and the District of Columbia, with the exception of Louisiana, adopted for its legal system the common law of England in all of the jurisdictional, decisional, and analytical senses in which that phrase is used. So property law is typically state law, as opposed to federal law. As in the law of torts or contracts, courts often speak of the New York, the Pennsylvania, or the California rule. Such references make the point that, technically, it is too facile to speak of a law of property—instead, each state in our country has its own law. Even when a federal court decides a case involving property, it uses the law of the state whose law applies and, in the absence of a federal constitutional or statutory issue, must follow state court precedent.

  A party who feels the trial court erred as to matter of law or finding of fact can appeal to an appeals or appellate court to review the challenged matter. Most cases reproduced in casebooks are appellate cases. Usually seven to nine judges sit together on a state’s intermediate or highest appellate court, the latter typically called the state’s supreme court or court of appeals.

  An appellate opinion has four parts. First, there is a statement of the facts of the case. These are facts found as such by the jury or, in a nonjury matter, by the judge sitting as a fact-finder in the trial court, and accepted as such by the appellate court. In an appeal from the trial court’s decision, the facts are not retried, unless they are so unreasonable that the record of the case in the trial court does not provide any basis for them. So facts recited in an appellate opinion typically accept the factual determinations of the trial court.

  Second, there is a statement of the legal issues involved in the case, followed, third, by a statement of the rule(s) resolving the issues and applying the rules to the facts. This third portion may be brief, but sometimes is lengthy. There the judge articulates a rationale for the rule—perhaps a public policy underlying it and an explanation as to why it is fair to apply it to the case at hand; how it promotes ethical behavior in attorneys, litigants, or the public at large; or how it might be efficiently administered or used in the future. Articulating a rationale usually involves the application (or not) of cases with precedential value for the court. The judge may explain what facts are particularly important to the decision or what is not being decided (see dicta in “Case Analysis” below). In the fourth part of the opinion, the judge gives the holding and the decision in the case.

  The cases in casebooks are selected for their facts and details, their analysis, their influence, or their widespread acceptance. They may have more than one opinion—they may produce (1) a majority opinion, in which most of the judges on the court agree on the statement of the law, the analysis, and the result—the judgment or other remedy given in the case; (2) a dissenting opinion, with which some but not most of the judges agree; or (3) a concurring opinion, in which some judges agree with the majority’s result, but not with some other aspect of their opinion. If there is more than one, the comparisons and contrasts between them may produce interesting statements as to the law, analysis, or remedies involved.

  The cases studied may not represent the law of the state in which you eventually will practice law. The precedential rules of authority—looking first to a judge’s own state or jurisdiction, then for similar cases in other jurisdictions, then to secondary (or non-case) authorities such as law reviews and legal treatises—produce a tendency to make the law of many jurisdictions into one uniform body of law, and many opinions into works of considerable scholarship.

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