Postcard from Giessen

The third annual U.S.- German Summer School in International and Comparative Law came to a successful conclusion with the program’s closing ceremony on August 12, in Giessen, Germany.  This year’s session of the program, sponsored jointly by Marquette University Law School, the University of Wisconsin-Madison, and the University of Giessen, featured 68 law students from 20 countries. Faculty members came from the University of Giessen; the University of Gottingen; the University of Wisconsin; and Marquette.

The program’s Marquette contingent for 2011 consisted of 24 law students and Professors Gordon Hylton and Alan Madry.  The session lasted from July 16 through August 13.

This year’s course offerings included International Human Rights (team-taught by a group of professors from Giessen and Gottingen including program co-director Thilo Marauhn of the University of Giessen); Comparative and International Sports Law (taught by Professor J. Gordon Hylton of Marquette); International Business Transactions (taught by Adjunct Professor Eric Ibele of the Univeristy of Wisconsin); and International Economic Law (taught by Sven Simon of the University of Giessen). Classes were held at the law and economics campus of the University of Giessen.  The program also included law-oriented field trips to Brussels and Berlin and a recreation tour of the Rhine Valley.

Also participating in the program in Giessen were co-directors Professor Alan Madry of Marquette and Professor Stephen Barkan of the University of Wisconsin.  (Professor Barkan is also a former Marquette law professor who served as Interim Dean of the Law School during the 1994-95 academic year.)  Students were expected to enroll in two of the courses, although a number of foreign students enrolled in three or four.

Students from Marquette included: Ryan Albregts, Andrea Austin, Margaret Barr, Justin Bertron, Tyler Brennan, Allison Ceille, Jason Cooper, Alexandra Dziamski, Matthew Galvin, Cody Garza, John Graham, Patricia Heise, Aneet Kaur, Patrick Kern, Derek Kulland, Stephen Laczniak, Adam Lopez, Patricia Mattingly, Jonathan Meulemans, Brad Meyer, Jessica Pfau, Lauren Raupp, Bryan Strand, and Ryan Truesdale.

In addition to the Marquette students, there were six law students from the University of Wisconsin as well as students from the law schools at Northern Kentucky University and the University of Southern California.  The 36 remaining students came from the following countries: Brazil, the Central African Republic, Croatia, the Czech Republic, Georgia, Germany, Greece, (South) Korea, Krygystan, Latvia, Montenegro, Poland, Romania, Russia, Singapore, South Africa, Spain, Turkey, and Ukraine.

An article on the program published earlier this week in the Giessener Anzeiger (a local newspaper) can be found at http://www.giessener-anzeiger.de/lokales/hochschule/11064040.htm.  Unfortunately, the article is in German, and the photo accompanying the article is of the class attending the University of Giessen’s International Summer School in Biodiversity and Law, rather than the students and faculty in the International and Comparative Law program.  (Both programs held commencement exercises in the same building on the same day.)  One of the students in the picture is Professor Hylton’s daughter Veronica.

A program description provided by the University of Giessen can be found at http://www.recht.uni-giessen.de/wps/fb01/home/summer_program_law/1002292/. The Marquette description is here.

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“We Can Be Better Than That”

Law school is hard.  Being a lawyer is harder.  But that difficulties and responsibilities come with entering the legal profession is not something to bemoan or a cause to run away.  Nor should the difficulty of legal education and practice be sought purely as a means to financial rewards, especially since these rewards are becoming all the more elusive in today’s world.  It is an opportunity for intellectual development and experience, all lifetime benefits to embrace.

The difficulty starts from the moment we study for the LSAT.  In our first years, we are tasked with reading and processing and cogently articulating concepts gleaned (or pulled like teeth) from ancient cases about barrels falling out of windows, churches burning down, and smoke balls that supposedly cured every minor ailment under the sun.  Come second year, we may find ourselves toiling in the law review cite-check room as staffers or coming out of our shells as we practice oral argument for Appellate Writing & Advocacy, along with even more copious amounts of reading, this time on topics like criminal process, agency and corporate law, taxation, postmortem property transfers, and intellectual property.  Then you will get the taste of working as an attorney, whether in a summer associate position at a large firm or clerking for a mid-size or smaller firm, in which your legal studies for the first time become “real.”  When third year arrives, you will have the chance to take workshops on pretrial practice and contract drafting among others, and (you guessed it) more reading.  In sum, as Justice Stephen Breyer was right to tell his children, “[I]f you do your homework really well, . . . you can do homework the rest of your life!”

Once you begin practicing in the real world, you will have even more difficult homework, and the stakes are even higher. 

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Hylton System for Identifying Freehold Estates and Future Interests

Should anyone be contemplating spending part of their summer break honing their skills at identifying estates in land and future interests, I offer the question-based system below which can be used to simplify the process of identifying estates in land and future interests.  The questions can also be easily diagrammed as a flow chart for even easier use.

One begins by identifying an interest that appears to be either a future interest or an estate in land.

QUESTION 1.  Does the interest holder have a right to present possession?  If yes, then the interest is an estate, so proceed to Question 2.  If no, then the interest is a future interest, so proceed to Question 7.

QUESTION 2.  Does the individual with the right of present possession have the right to control the property and the right to continuous possession until it expires by its own terms?  If the answer is no, then the individual is likely either a licensee (like a guest in a hotel room) and thus has no estate at all, or the holder of a tenancy at will, a periodic tenancy, or a tenancy at sufferance which are non-freehold estates.  If the answer is yes, then the interest is a freehold estate, so proceed to Question 3.

QUESTION 3.  Will the right of present possession automatically terminate at some point in the future based upon the passage of time or the death of an individual?  If yes, then the estate is a “particular” estate (Question 4); if no, then it is a form of Fee Simple estate (Question 5).

QUESTION 4.  If the estate will automatically terminate in the future, then it is a life estate if the termination occurs when an individual dies.  (If the measuring life is that of someone other than the estate holder, the estate is a life estate pur autre vie.)  If the termination occurs after the passage of a specified period of time (as in one day or 99 years), it is an estate for years.  If the termination point is the end of a line of bodily descent, then the estate is one of fee tail.

QUESTION 5.  If the estate will not automatically terminate based on the passage of time or an individual life, then it is some sort of fee simple estate.  If there are no restrictions whatsoever, then it is an estate of fee simple absolute.  If it is an estate that could result in a forfeiture, go to Question 6.

QUESTION 6.  If the estate is subject to a forfeiture clause but could go on forever, will it forfeit to a third party or will it revert back to the grantor or the grantor’s successors?  If to a third party, then the estate is one of fee simple subject to an executory limitation.  If it reverts back to the grantor, then it is an estate of fee simple determinable if the restriction is in the nature of a limitation; if the restriction is in the nature of a condition subsequent, then the estate is one of fee simple subject to a condition subsequent.  (if the estate that is subject to the potential forfeiture is not a fee simple estate, but a life estate, an estate for years, or a fee tail, the same terminology applies.  Any of these three estates could be determinable, subject to a condition subsequent, or subject to an executory limitation.)

QUESTION 7.  If the interest at issue is a future interest, the first question is whether or not it accompanies a particular estate, i.e., an estate for years, a life estate, or a fee tail.  If it does, go to Question 8.  If it accompanies some form of determinable or conditional estate (like fee simple subject to an executory limitation, fee simple determinable, or fee simple subject to a condition subsequent), go to Question 10.

QUESTION 8.  If the future interest accompanies a particular estate, then the question is whether it is retained by the grantor (or the grantor’s successors) or whether it has been created for the benefit of a third party (as in O to A for life, then to B).  If retained by the grantor, the interest is a reversion.  If created for a third party, then it is some form of remainder.  If it is a remainder, go to Question 9.

QUESTION 9.  To determine the type of remainder, one asks the following.  Are there unmet conditions precedent (as in “then to A, if he is 25, and A isn’t) or is it impossible to determine the identity of remainderman (as in the heir of O, when O is still alive)?  If the answer to either part is “yes,” then the remainder is a contingent remainder.  If the answer to both parts is no, then the remainder is vested.  However, there are three types of vested remainders.  If there are no unmet conditions either precedent or subsequent, the holder of the interest can be identified and is not a member of a class including individuals with contingent remainders, then the interest is vested remainder (sometimes referred to as an indefeasibly vested remainder).  If the remainder is vested, but could be divested by some subsequent event (as in O to A for life, then to B, unless C marries one of the Obama daughters, in which case to C), then the interest is a vested remainder subject to divestment (or a defeasible vested remainder).  If the remainder is vested, but part of a class that includes members with contingent remainders (as in O to A for life, then to the daughter of A who reach age 21, when A has some daughters who are 21 and others who are younger), the interest is a vested remainder subject to open.

QUESTION 10.  If the future interests accompanies a fee simple estate that is subject to a limitation or a condition, the first question is whether the interest is held by the grantor (or one of his or her successors) or by a third party.  If held by the grantor then the interest is a possibility of reverter if the restriction is in the nature of a limitation (as in a fee simple determinable), or else a right of entry/power of termination if the restriction is in the form of a condition subsequent.  If the interest is in a third party, then the interest is an executory interest, regardless of whether the restriction is a condition or a limitation.  However, there are two types of executory interests.  If the effect of the interest is to divest a grantee (as in O to A so long as beer is not sold on the premises, but if it is, to B), B’s interest is a shifting executory interest.  However, if the restriction divests the grantor (as in O to A in 5 years), then the interest is a springing executory interest.

By using these ten questions, one can readily identify any estate or future interest, no matter how puzzling its nature might at first appear.

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