• Selected
• Entire List

Abstract:
Professor Wendel begins by explaining that the teaching of Property to first-year law students is not the only way they learn to “think like a lawyer”; students develop such an ability throughout the three years of law school. He sees Property as a stepping stone to developing this thought process, however. Professor Wendel illustrates this by describing the process he uses to help his class analyze their first case in his first-year Property class - Pierson v. Post. In using the “benevolent Socratic Method,” which involves prompting students to discuss the case through gentle leading rather than scare tactics, Professor Wendel coaxes the discussion away from a purely fact-based analysis of the case (since the natural tendency of first-year law students is to focus on the facts), and toward a multi-faceted legal analysis, in which they discover that the real issue the Pierson court was addressing is not the fact-based “Who gets the fox?” but instead the rule-based “What constitutes occupancy?”. He makes it clear that this is an issue that needs addressing - not only to solve the dispute at hand, but also to develop new law that sufficiently reflects important public policy concepts. He helps the students arrive at this newly articulated issue by discussing the legal procedures that occurred up to the point that the Pierson court heard the case, pointing out that since Pierson is an appellate ruling, the court was not so much interested in analyzing the facts of the particular conflict as they were in determining what the law regarding occupancy should be. Professor Wendel’s main objective in teaching the first Property class of the year in this way is to help students realize that that they need to go through a particular process when analyzing cases; specifically, that they need to look at the “interaction between the factual, legal, and theoretical/public policy considerations.” He explains how he illustrates these concepts through a collection of multi-dimensional planes. In the end, Professor Wendel believes that teaching the students to analyze cases in such a multi-faceted way is critical, since this type of analysis is “inherent in the process of ‘thinking like a lawyer.’”

teaching law, think like a lawyer, benevolent Socratic method, first-year law student, legal process, case method

Abstract:
The evolution of the law concerning a trustee’s powers and a third party’s liability for participating in a breach of trust generally supports efficiency in the law. The standard of liability for third parties participating in a breach of trust, as set forth in the recently adopted Uniform Trust Code, however, does not. From an economic perspective, the standard of liability for participating in a breach of trust allocates the risk of harm associated with a breach of trust between the trust beneficiaries and the third party who participated in the breach. Efficiency is promoted when the total costs associated with the breach of trust (the costs of the precautions plus the costs of a breach plus the administrative costs) are minimized. Over time the purpose of the trust has changed from preserving the trust property to managing it. At common low, a third party who participated in a breach of trust was basically strictly liable. As applied to the modern trust, the common law standard of liability became cumbersome and inefficient. This article examines the different approaches to third party liability in a breach of trust from an economic perspective, looking specifically at the Uniform Trustees’ Powers Act (“UTPA”) and the Uniform Trust Code (“UTC”).

trustee, third party, liability, breach of trust, Uniform Trust Code, efficiency, Uniform Trustee's Powers Act, UTPA, UTC