PROPERTY A SLIDES

1. PROPERTY A SLIDES 1-24-17 National Peanut Butter Day

2. Music: Carole King, Tapestry (1971) Now on Course Page • Syllabus & Assignment Sheet • Lunch Schedule • Office Hours • Slides from My Exam Tips Workshop • 2014, 2015, 2016 Final Exams

3. TRANSITION TO SHACK (1/24) DQ1.05-1.06 Why So Much Time on Shack? Overview of the Case Context of Case: 1971 Rights v. Interests

4. NECESSITY & Other Limits on the Right to Exclude (DQ1.05-1.06) • DQ1.06. Doctrine of Necessity: The opinion in Shack correctly points out that traditionally, public and private necessity “justify entry upon the lands of another.” • Defense to civil action for trespass. • I sue you for “unauthorized entry” onto my land. • You defend by saying, yes I entered, but my actions were justified by public or private necessity. • Identify at least 3 different kinds of situations to which you can imagine a court applying this rule.

5. NECESSITY & Other Limits on the Right to Exclude (DQ1.05-1.06) • DQ1.06: Doctrine of Necessity: The opinion in Shack correctly points out that traditionally, public and private necessity “justify entry upon the lands of another.” • Common Examples: prevent harm to children/people/self; stop crime in progress; destroy diseased plants/animals; fight fires; avoid blocked road. • Most people would concede some of these examples, thus conceding that right to exclude should not be absolute. Now we just have to haggle over boundaries.

6. NECESSITY & Other Limits on the Right to Exclude (DQ1.05-1.06) • 1.05. In what circumstances would be appropriate for a court or legislature to place limits on the right to exclude? Or, to put the question another way, in what circumstances should a person be allowed to enter someone else’s land without permission? • Examples other than necessity & facts of Shack? • Examples include ordinary gov’t activities (inspections; non-emergency police business, etc.); anti-discrimination laws • We’ll return to this Q during the course.

7. TRANSITION TO SHACK (1/24) DQ1.05-1.06 Why So Much Time on Shack? Overview of the Case Context of Case: 1971 Rights v. Interests

8. TRANSITION TO SHACK • Why Extensive Coverage of Shack? • Subject Matter • First example of a limit on the right to exclude in particular circumstances • Unlike materials later in Chapter 1, farm here not generally open to public, so arguably bigger deal to interfere with right to exclude

9. TRANSITION TO SHACK • Why Extensive Coverage of Shack? • Subject Matter • Technique: Making Arguments from Cases • Three Common Sources (Use for Problems Next Week) • Facts/Holding • Specific Language • Underlying Policy • Shack is good practice: lot of useful language & complex rationales (NOT Tweetable) • Can usefully compare to statutory scheme (Florida)

10. TRANSITION TO SHACK (1/24) DQ1.05-1.06 Why So Much Time on Shack? Overview of the Case Context of Case: 1971 Rights v. Interests

11. TRANSITION TO SHACK: Overview of Case A. Land in Q is in Deerfield Township: Agricultural area 30 miles due south of Philadelphia. (NJ is “Garden State”)

12. TRANSITION TO SHACK: Overview of Case B. Tedesco (O) owns farm on land; hires migrant workers (MWs) & houses them on land during employment. C. Legal servs. lawyer & health services worker (Ds) enter land (uninvited by O) to help particular MWs they know have problems 1. O asks Ds to leave; they refuse. 2. Ds arrested & convicted of criminal trespass – a. Statute as described in Note 4 after Jacque b. NJ statute requires refusal to leave when asked

13. TRANSITION TO SHACK: Overview of Case • D. Novel case, so attorneys tried many theories (S3-4, S6) • Bottom Line : • NJSCt decides Ds (and others) are allowed on Tedesco’s land without his permission (with some restrictions) • To understand opinion, helpful to view in conext of time (1971)

14. TRANSITION TO SHACK (1/24) DQ1.05-1.06 Why So Much Time on Shack? Overview of the Case Context of Case: 1971 Rights v. Interests

15. Context of Shack: 1971 • Album of Year: Tapestry • Best Picture: The French Connection • Introduced to American Public: • Soft Contact Lenses & Amtrak • All Things Considered & Masterpiece Theatre • All in the Family & Jesus Christ Superstar • The Electric Company & Columbo

16. Context of Shack: 1971: Deaths Nikita Kruschev; Thomas Dewey; Papa Doc Duvalier Louis Armstrong; Jim Morrison; Igor Stravinsky Ogden Nash; Crew of Soyuz 11; Coco Chanel

17. Context of Shack: 1971: Births Shannon Doherty; Ewan McGregor; Winona Ryder Jeff Gordon; Pedro Martinez; Kristi Yamaguchi Snoop Dogg; Ricky Martin; Tupac Shakur; Mary J Blige

18. Context of Shack: 1971: Headlines • Apollo 14: 4th Successful Moon Landing • USSCt upholds busing of schoolchildren to achieve racial balance • Nixon Administration (Not Today’s Republicans) • In 1970 Gets Clean Air & Water Acts Enacted • Freezes Wages & Prices for 90 Days to Fight Inflation • Wall Street approves of this intervention in market • Responds w biggest one-day gain in Dow Jones to date, 32.93 pts • Record volume of 31.7 million shares. • Amicus Brief in Shack Favoring Workers on Anti-Federalist Theory • Focus: Rights of people trying to implement federal projects • Reliance on federal anti-poverty legislation

19. Context of Shack: 1971 Near the End of Long Post-Depression Period of Great Faith/Belief In Gov’t • E.g., Deaths of Ex-Presidents (Ford v. Truman/ Johnson/Eisenhower) • Shack: Example ofstrong confidence by courts & legislatures that they can determine what is in best interests of public • Might get same result now, but often much less sure of selves • Likely to be much more concern/rhetoric re O’s Property Rights

20. Context of Shack: 1971: Seeds of Change • Vietnam War: • Troops reduced by about 200,000 but still 184,000 troops in SE Asia YE1971 • US Voting Age lowered to 18 from 21 (old enough to die = old enough to vote) • Perceived fiasco in Vietnam (and evidence that both Johnson & Nixon administrations misled public) lowers confidence in Gov’t

21. Context of Shack: 1971: Seeds of Change 2. Concerns About War Made Nixon’s Reelection Seem Problematic • 1971: White House staffers assemble key people to deal w election: CREEP • Yields Watergate break-in following spring • Scandal greatly undermines authority of govt

22. Context of Shack: 1971: Seeds of Change 3. Pres. Nixon appoints William Rehnquist to US Supreme Court • Shack court in 1971 almost certainly sees itself as part of tradition of courts protecting rights of minority groups & disadvantaged folks • Appointment seen as outside mainstream of legal thought • BUT foreshadows change in both this self-perception of courts and in range of acceptable conservative thought.

23. TRANSITION TO SHACK (1/24) DQ1.05-1.06 Why So Much Time on Shack? Overview of the Case Context of Case: 1971 Rights v. Interests

24. TRANSITION TO SHACK: “RIGHTS” v. “INTERESTS” • We’ll use “rights” to refer to what the legal system allows parties to do. • Need to point to specific authority forrightasserted. • Thus, might say after Shack was decided: • Migrant workers on land now have rightto access to certain outsiders. Shack. • Tedesco now has no rightto exclude Ds. Shack.

25. TRANSITION TO SHACK: “RIGHTS” v. “INTERESTS” • “Rights” = what legal system allows parties to do. • Don’t use “right” to argue what legal result ought to be: Q: Why do you think Shack is wrongly decided? A: Owners have the rightto exclude all.  (But in NJ after Shack, they don’t have that “right.”)

26. TRANSITION TO SHACK: “RIGHTS” v. “INTERESTS” • “Rights” = what legal system allows parties to do. • Instead: Q: Why do you think Shack is wrongly decided? A: Owners should have the rightto exclude all. (Which raises Q of why!!)

27. TRANSITION TO SHACK: “RIGHTS” v. “INTERESTS” • “Rights” = what legal system allows parties to do. Owners should (or should not) have the rightto exclude all, because … • Then need to talk about what we’ll call “interests” (= needs & desires of parties & state) E.g., • Ownerinterestsin privacy, security, operation of farm • MWinterestsin receiving helpful services & info

28. OUR COVERAGE of SHACK 1. Look at possible theories not relied on by NJSCt (Roads Not Taken) 2. Look at what court actually did. 3. Apply case to new situations.

29. Shack: The Roads Not Taken Necessity (DQ1.06 cont’d) Bargaining (DQ1.07) Constitutional Law (DQ1.08)

30. SHACK: ROADS NOT TAKENDQ1.06: Necessity • Ds going on the land here to: • Remove stitches • Discuss legal problem • Provide literature re fed’l assistance • Are these facts similar enough to situations you have identified [as likely to constitute “necessity”] that they should fall within this rule? Why or Why Not?

31. Comparing Facts: Recurring Issues Helpful to Articulate Characterizationsthat Facilitate Comparisons. E.g., Examples of Necessity mostly address Immediate Threats to Persons or Property ShackDs not addressing Immediate Threats

32. Comparing Facts: Recurring Issues Helpful to Articulate Characterizations that Facilitate Comparisons. Level of Generality Affects Significance. E.g., “Provide Medical Treatment” v. “Remove Stitches” “Provide Legal Advice” v. “Deliver Pamphlets”

33. SHACK: ROADS NOT TAKENDQ1.06: Necessity Common error among past students: Saying necessity was basis of decision; it isn’t! What evidence can you find in the opinion that necessity was not the legal theory that formed the basis of the court’s decision?

34. DQ1.06: Evidence that necessity was notthe basis of the court’s decision includes … • Generally: “We see no profit in trying to decide upon a conventional category and then forcing the present subject into it.” (2d para. on S6) • Discussion of necessity (2d para. on S5) only refers to the existence of the doctrine and provides general cites. • “The subject is not static.” (following para.) doesn’t refer to necessity but to limitations on property rights generally. • Facts here & inclusion of press don’t look like necessity. • How would opinion look different if necessity was basis?

35. SHACK: ROADS NOT TAKEN: DQ1.06: Necessity If necessity were the basis of its decision, Court would almost certainly: • List/characterize examples of circumstances that had constituted legal necessity in NJ. • Compare circumstances here to those examples. “Necessity” is Helpful, Not Required: If a service really is necessaryto MWs, rights under Shackprobably apply, but case is clear that facts don’t have to fit into doctrine of necessity to trigger Shack rights.

36. Shack: The Roads Not Taken Necessity (DQ1.06 cont’d) Bargaining (DQ1.07) Constitutional Law (DQ1.08)

37. SHACK: ROADS NOT TAKENDQ1.07: Bargaining • Very important alternative almost always relevant in this course is bargaining (private agreement). • Let parties negotiate contracts; state just intervenes to enforce. • Generally good reasons to rely on private bargaining: • i) Usually lower administrative costs than regulation. • ii) Autonomy/clarity of interest: people better than the gov’t at identifying & articulating their own interests.

38. SHACK: ROADS NOT TAKENDQ1.07: Bargaining 1.07: Could we rely on bargaining to protect the interests of the workers in Shack? In other words, if these interests were sufficiently important to the workers, wouldn’t they insist on making provisions for them in their employment contracts? Clearly we could; interesting Q is should we?

39. SHACK: ROADS NOT TAKENDQ1.07: Bargaining Should we rely on bargaining to protect MWs’ interests? Can break down into two Qs: • Are there reasons we might not want to rely on bargaining? • Are these reasons strong enough to outweigh reasons we like bargaining? Start with Q#1: Ideas from You or from Case