PROPERTY B SLIDES

1. PROPERTY B SLIDES 2-4-19 National Create a Vacuum Day

2. Music to Accompany Brooks: Diane Schuur, Timeless (1986)Grammy for Best Female Jazz Vocalist Next Few DF Sessions: • Brendan: Rev. Prob. 1C • Today @ 9:40 Here • Lauren: Rev Prob. 1I • Wednesday @ 9:40 Here • Friday @9:40 Here Update on Course Page Postings Lunch Tomorrow Meet on Bricks @ 12:25 Burke * Eastman * Koskinen Kotoske* Mendez * Moreno Withee

3. MONdayPop Culture Moment The Most Performed Waltz in American Popular Music

4. Previously in Property B Right to Exclude & MWs Applied Shack to New Situations (DQ1.15; Rev. Probs 1A/1B) Introduced & worked with Florida Statutes on MWs including key distinction between “invited guests” and “other authorized visitors” and possible meanings of “reasonable” in Rev Prob 1H.

5. SEQUOIA: Review Problem 1N SEQUOIAS

6. Review Problem 1N: Info from Client • Client uses MWs living onsite to pick crops several wks/yr. • Large meeting hall next to MW barracks • MWs get Sundays off; invite MWs from nearby farms to hall for • Religious Service • Social Event after • Client seeks advice about whether he has to allow • I asked you to describe legal/factual research necessary to advise.

7. Review Problem 1N: Overall Framework (ME) • Legal Research Needed To Establish Legal Framework • Check if state roughly follows Shack by caselaw or statute. • Check for precise rules & permissible restrictions. • Look for possible caselaw/statutory language addressing specific issues that might arise, e.g., …

8. Review Problem 1N: Overall Framework (ME) • Legal Research Needed To Establish Legal Framework • Look for possible caselaw/statutory language addressing: • Possible Distinction between • People invited by MWs • Check if limited like FL to living quarters • Check if limited like Shack if “harm to others”? • ii) People who get access w/o invitation • Relevant tests used in Shack (e.g., customary assns.) • Genl info about MWs’ use of off-duty time

9. Review Problem 1N: List of Major Topics • Legal & Factual Research Relevant to the Following Aspects of the Problem … (Notes on my list of topics): • Lots of ways to approach/organize this problem • I’m not looking for any particular structure. • Any set of categories/headings (including mine) will overlap to some extent. • I tried to design this list to help you see issues; good answers would hit on most of these topics somewhere.

10. Review Problem 1N (Sequoia) • Legal & Factual Research Relevant to • The Religious Services • (We’ll Do in Most Detail) • Major Topics to Explore?

11. Review Problem 1N (Sequoia) • The Religious Services: Major Topics Include… • Nature of Services (incl. What Happens; Use of Clergy) • Possible Harms from Services (incl. C’s Specific Objections) • Benefits to MWs (incl. % of MWs Participating; Importance of Services) • Alternatives to Use of Hall on C’s Land • Follow-Up for Each Major Topic Includes … • Thorough/Detailed Development of Facts • Ghostbusters Q (“Who YaGonna Call?” = HFO) • Additional Legal Research

12. Review Problem 1N (Sequoia) • Legal & Factual Research Relevant to • The Social Events • Nature of Social Event? • Possible Harms Different/Separate from Those Caused By Religious Services? • Benefits/Significance to MWs? • Other?

13. Review Problem 1N (ME) • Legal & Factual Research Relevant to Client Having Allowed This Access in the Past • Generally raises legal issues re implied Ks or estoppel • Unlikely here because MWs hired each year for few weeks • Could check for written agreements by C or predecessor • Worst case: E.g., Prior O agreed to access b/c MWs helped build hall • Could check for legal significance of prior authorization (e.g., court then skeptical that harm is great?)

14. Review Problem 1N (Sequoia) I’ll Post Additional Slides re • The Neighboring Farms that Employ MWs • General Info to Help You Understand the Situation Plus Comments & Best Student Answers Available Soon

15. Review Problem 1N (Everglades): BONUS SLIDE Sample Qs re Neighboring Farms that Employ MWs • Do C or his employees know which farms other MWs come from? • Any Neighboring Farms hosting similar events or willing to? Willing to share costs? • Check if C interested in exploring. • Check if C has info or if he’s OK with you asking neighbors. • How Do Their MWs get to C’s farm? • If motorized, could transport work in reverse? • If walking, are MWs harming C’s or other neighbors’ land by crossing? • When on C’s Farm, Do Other MWs wander around C’s farm or otherwise create security issues?

16. Review Problem 1N (Everglades): BONUS SLIDE Sample Qs: Gen’l Info to Help You Understand Situation • How many weeks (or Sundays) are MWs on Cs land? • Client Priorities/Concerns (Biggest concerns for C?) • Specific trigger for coming to you? • Ok with stopping either relig. service or social event & keeping the other? • Willing to give MWs $$ or other benefits to stop? What/How Much? • Could/Would C change practice of Sunday as off-day? • Other uses for hall? • That C would prefer? • That would block MW use?

17. Property Open to the Public& the Right to Exclude Generally: Your Money’s No Good Here (Lecture Today) Range of Possible Approaches & DQs 1.20-1.21 Brooks & DQs 1.22-1.23 Free Speech Rights (JMB including Schmid) (Starting Wednesday with ACADIA/BADLANDS)

18. Right to Exclude: Parcels Open to the Public 1st Topic: When Do Private Businesses on Private Property Have the Right to Reject Particular Paying Customers : “Your Money’s No Good Here.”

19. Right to Exclude: Parcels Open to the Public Helpful to See Possible Rules as a Continuum • Can exclude anyone for any reason • Can exclude unless falls within specified forbidden reasons or circumstances. • Must accept anyone who shows up w $$ (unless specific prior harmful conduct or present danger).

20. Right to Exclude: Parcels Open to the Public Helpful to Think About Interests of Parties • Owners’ Interests = • Purposes for Exclusion or Harms from Inclusion • Can help us see viable less restrictive alternatives to complete exclusion (OK if purposes/harms addressed). • Interests of Customers & Public = • Purposes for Inclusion or Harms from Exclusion • Can help us see possible permissible limitations on inclusion (OK if purposes/harms addressed).

21. Right to Exclude: Parcels Open to the PublicCommon Law Approaches • Simple Version of Continuum Under Common Law • Can exclude anyone for any reason (Common Law re most businesses) • Must accept anyone who shows up w $$ unless specific prior harmful conduct. (Common Law Innkeeper). • Traditional exceptions to Right to Exclude for necessity & ordinary gov’t operations mostly non-controversial. • We’ll focus on specific rule triggered by nature of business: The Innkeeper Rule

22. Right to Exclude: Parcels Open to the PublicInnkeeper Rule & DQ1.20 Innkeeper Rule: Innkeepers and common carriers (transportation) had to accept virtually all paying customers. • Very Limited Exception for People with Specific History of Prior Harm at that Location

23. Right to Exclude: Parcels Open to the PublicInnkeeper Rule & DQ1.20 Innkeeper Rule: Innkeepers and common carriers had to accept virtually all paying customers. • Prof. Epstein’s Explanation: • Need to counteract monopoly power those businesses often had. • Else can charge extra to customers who are stuck • 11pm in York in 1700 • Cf. Looking for motel driving through West Texas or Montana • Especially if Gov’t grants limited # of rights to operate particular type of business, services should be available to all.

24. Right to Exclude: Parcels Open to the PublicInnkeeper Rule & DQ1.20 Innkeeper Rule: Innkeepers and common carriers had to accept virtually all paying customers. • Prof. Epstein’s Explanation: Counteracts Monopoly Power. • Other Possible Explanations Include: • Could View as Moral Duty (See Joseph & Mary) • These services important to state’s commerce & wealth even if no monopoly; want business people to have access to inns & common carriers to facilitate trade-related travel.

25. Right to Exclude: Parcels Open to the PublicInnkeeper Rule & DQ1.20 Innkeeper Rule: Innkeepers and common carriers had to accept virtually all paying customers. • Possible Costs of Innkeeper Rule Include: • Os lose discretion/personal freedom re customers; can’t exclude due to, e.g., politics or dislike. • Possible increased security costs; in theory, can’t turn away for subjective reasons (e.g., looks sleazy or “feels off”), so may need more protection (e.g., extra employees, weapons). • May raise prices to public (because of #1 and/or #2) Questions on Innkeeper Rule?

26. Right to Exclude: Parcels Open to the PublicCivil Rights Statutes Updated Continuum • Can exclude anyone for any reason (Common Law re most businesses) • Can exclude for any reason except limited list of forbidden characteristics (Civil Rights Statutes) • Must accept anyone who shows up w $$ unless specific prior harmful conduct. (Common Law Innkeeper Rule).

27. Right to Exclude: Parcels Open to the PublicCivil Rights Statutes: General Operation • They don’t protect specified groups of people, but everyone. • Prohibit certain types of decisions made on the basis of specified characteristics like race, sex, religion, disability. • E.g., Title II [of Civil Rights Act of 1964] (P85) • Covers decisions about access by listed types of businesses (hotels, restaurants, etc.) • “on the ground of” race, religion or national origin • State Statutes often broader in reach: covering more forbidden characteristics and more types of businesses or transactions.

28. Right to Exclude: Parcels Open to the PublicCivil Rights Statutes & DQ1.21 Justifications for Civil Rights statutes prohibiting discrimination regarding access to public accommodations: • Prot’n of tradlly excluded groups • Access to ordinary transactions. • Elimination of stigmatizing affect of segregation (Curt Flood story). • Morality • Sense that segregation/exclusion is wrong: • Sense that use of categories like race and religion is wrong when those categories don’t seem relevant in any legitimate way to Q of whether person should be allowed to use restaurant or motel.

29. Right to Exclude: Parcels Open to the Public DQ1.21 Private Club Exceptions to Civil Rights Statutes • Standard Explanation: • Entitled to some relatively private place to meet/assemble where you can exercise a greater right to exclude (e.g., IRA supporters & British; Holocaust survivors & Germans) • Avoiding forced association generally • Cynical Partial Explanation: Congress regularly exempts itself.

30. Right to Exclude: Parcels Open to the PublicDQ1.21 Private Club Exceptions to Civil Rights Statutes Should these exceptions exist? • For many commentators, answer turns on access to power • Economic; Political; maybe Social • Women gain access to JCs b/c business deals made there • Eating Clubs at Princeton: similar concerns re power Questions on Civil Rights Statutes & Exemptions? We’ll Return to Civil Rights Statutes (FHA) in Chapter 2

31. Property Open to the Public& the Right to Exclude Generally: Your Money’s No Good Here Range of Possible Approaches & DQs 1.20-1.21 Brooks(& DQs 1.22-1.23) = Example of Q: Where on Continuum Should This Problem Fall? Free Speech Rights (Next Week)

32. Right to Exclude: Parcels Open to the Public: Brooks Procedural Posture: • US Court of Appeals for 7th Cir (Wisc, Ill, Ind.) • Federal Court b/c Diversity Jurisdiction (P79) • Ps = Pennsylvania Citizens • D = Illinois Corporation • Under Erie, Federal Court applies state law: • Job is to determine what Illinois would do (not necessarily best result). • Court clearly not very sympathetic to D, but not operating on clean slate. Questions?

33. Right to Exclude: Parcels Open to the PublicBrooks & DQ1.22 Purpose of Exclusion & Less Restrictive Alternatives Possible Harms to O in Brooks Include: • Professional Gamblers = (Maybe) Organized Crime • Reputed presence might discourage others from betting • Actual presence increases risk of actual crime • Expertise + Access to Funds  Loss of $$ for O? Should we treat this potential loss as a significant concern?