To access this feature, please Log In or Register for your Casebriefs Account.

Add to Library





  Amid the secondary authorities, some of the more formal organized methods of legal expression, backed by large sectors of the legal profession, also re-enforce this tendency to uniformity. First, there are the American Law Institute’s Restatements of the Law. Its first Restatement of the Law, Property, was published in 1944. Restatements of the Law (Second), Property, and Restatement (Third), Property, have been published more recently: for Landlord and Tenant in 1977, for Security (Mortgages) in 1996, for Servitudes (Easements and Covenants) in 1998, and for Wills and Other Donative Transfers (2012). Other property subjects are in draft. Restatements are secondary authorities publishing their drafters’ versions of the rules of law taken from decided cases, although not always the rule settled by a majority of cases deciding a particular issue. Sometimes drafters prefer what they see as a trend in the decided cases and extract their rule from the cases they see as representing that trend, rather than a rule representing the law established in a majority of states. Sometimes there is no majority; sometimes the law is unsettled or open. Whatever approach the Restatement takes, its decision is influential and its text will disclose the reasons and the authorities behind its choice.

  Second, the Commissioners on Uniform State Laws have published Model Laws for adoption by American jurisdictions. The Uniform Commercial Code that you study in contracts class is the most successful of these laws. The Uniform Landlord Tenant Act, the Uniform Land Transactions Act, and the Uniform Probate Code are examples that have been influential, if not widely or completely adopted, in the law of property. Such laws may codify, modify, or repeal common law rules and, like the Restatements, may be cited by judges deciding common law cases as embodying a legal rule.

  Third, there are treatises with discussions of the law attempting to make sense of disparate decisions and statutes. The American Law of Property (1952) is a collection of essays by (mostly) law professors specializing in the law of property. Thompson on Real Property (2d ed. 1998) is a more recent collection of such essays. Roger Cunningham, William Stoebuck & Dale Whitman, The Law of Property (3d ed. 2000), is an excellent one-volume treatise. More specialized treatises, such as Raymond Brown, Personal Property (3d ed. 1975), and Jon Bruce & James Ely, Easements and Licenses in Land (rev. ed. 2011), perform the same function within narrower limits. Although there are many excellent treatments on common law estates and interests in the previously mentioned works, John Makdisi & Daniel Bogart, Estates in Land and Future Interests (5th ed. 2007), is an excellent workbook on a subject some students find challenging.


Much law is gleaned from the analysis of cases. Case analysis is an essential skill for attorneys. If the case is concerned with the substantive law of property, the case is probably one involving a common law rule—i.e., a rule formulated by judges for cases that they heard and decided. Case law or common law rules are established by court decisions, as opposed to those made by legislatures enacting a statute. A judge deciding a case tries to resolve the issues in the case by following or drawing from prior decisions by judges in his or her jurisdiction. This doctrine of precedent is unique to the common law as opposed to civil law or code systems of law used in other countries.

  The doctrine of precedent (or stare decisis) is fundamental to case analysis. It rests on the idea that people in similar situations should receive similar treatment at the hands of a court. Similar cases should be decided in a similar way so that people are treated as equally and fairly as possible, and so that people not in court who find themselves in a situation similar to one that a court has decided may predict what the law will be if and when they go to court. A judicial decision, published or reported in an opinion, not only binds the parties to the litigation that produced it, but also has predictive value for others.

Create New Group

Casebriefs is concerned with your security, please complete the following