FINAL EXAM

1. FINAL EXAM Choose/Write Three out of Four • Question I = Lawyering Question • Question II = Short Problems (Do 3/4) • Question III = Opinion/Dissent • Question IV = Issue-Spotter

2. FINAL EXAM QUESTION III Instructions Will Say … Based on the information presented below, draft the analysis sections of a majority opinion for the [U.S. or Name-of-State] Supreme Court and of a shorter dissent, deciding [the legal question indicated].

3. FINAL EXAM QUESTION III E.g., Review Problem 1K for Monday Based on the information presented below, draft the analysis sections of a majority opinion for the Brophy Supreme Court and of a shorter dissent, deciding whether the homeowners in Fairest Downs should have the right to exclude reporters and photographers as guests from the gated community.

4. FINAL EXAM QUESTION III OPINION/DISSENT FORMAT • Address & Resolve a Specific Focused Legal Issue • Describe and Defend Two Positions • Utilize Range of Relevant Arguments Arising from Course Materials • Take on Role of US/State Supreme Court • Setting Rules for Lots of Cases While Deciding One Case • Can Choose to Affirm or Modify Precedent; Must Defend • Ideally Both Opinions Address Own Weaknesses • Acknowledge & Address Problems w Own Position • Address Other Side’s Best Points

5. FINAL EXAM QUESTION III Review Problem 1K for Monday • We’ll Do Arguments re What Rule Should Be • Chapter One Materials as Non-Binding Precedent • Assume FDHA met all necessary procedural rules • Assume BrophySCt able to allow/disallow/modify

6. FINAL EXAM QUESTION III Review Problem 1K for Monday • We’ll Do Arguments re What Rule Should Be • Chapter One Materials as Non-Binding Precedent • Panels Y & Z Prepare Arguments for Your Side • Anticipate other side’s points; I’ll ask you to respond • Prepare compromise positions that mostly address your side’s concerns

7. FINAL EXAM QUESTION III Review Problem 1K for Monday • We’ll Do Arguments re What Rule Should Be • Chapter One Materials as Non-Binding Precedent • Panels Y & Z Prepare Arguments for Your Side • Anticipate other side’s points; I’ll ask you to respond • Prepare compromise positions that mostly address your side’s concerns QUESTIONS re REVIEW PROBLEM 1K?

8. Right to Exclude: Property Open to the PublicEVERGLADES: DQ29 (General Rules/Standards) EGRET IN MANGROVE SWAMP

9. EVERGLADES Electronic Cold Call: DQ29E-Mail to Me by 9:00 pm Tonight DQ29. Can you formulate a rule or a set of standards for when a business generally open to the public should be prevented from excluding particular individuals or activities? Axel * Berezin * Cook * Muschel * Sales • Submit version of what you had prepared for this DQ • Needs to be clear (not pretty) • Can include bullet points, abbreviations, etc. • I’ll write up some comments & put in this set of slides before posting; might look at for Rev. Prob. 1K for Monday

10. Right to Exclude: Property Open to the PublicGLACIER: JMB & DQ25-26 Glacier Mountain Lion

11. GLACIER: JMB & DQ25: Owners’ Interests Possible harms to the owners in JMB: • Forced Speech (claim rejected by NJSCt) • Psychic Harm (hard to treat as very serious given public invitation & large crowds) • Interference with Business: Specific Concerns?

12. GLACIER: JMB & DQ25: Owners’ Interests Specific Business Concerns Include: • Customers May Not Like  Go Elsewhere • Security/Monitoring • Clean-Up • Tort Liability/Insurance • Interferes w Traffic Patterns/Access to Particular Tenants How significant are these harms likely to be?

13. GLACIER: JMB & DQ25: Owners’ Interests Points re Significance of Specific Concerns: • Customers May Not Like, BUT if at all malls… • They’ll get used to/Other malls won’t be better choices • Average Daily Traffic = 28,750 People • Unlikely to Significantly Impact Security, Clean-Up, etc. • Tort Liability  Insurance Premiums (I bet near-zero effect) • Interference w Traffic & Access Might Be Problem • BUT Probably Ways to Address without Complete Exclusion

14. GARIBALDIS JUSTICE MARIE LIBERATOR GIUSEPPE

15. GLACIER: JMB & DQ26: Public Interest What benefits to society might there be to allowing political activists to hand out leaflets at privately-owned shopping centers?

16. GLACIER: JMB & DQ26: Public Interest Interests of Public in Speech at Malls Include: • Speakers Get Access to Folks They Might Not Otherwise Reach • Few Traditional Public Spaces in Suburbs • Maybe Can Target Speech to People with Particular Interests (near specific stores, etc.) How significant are these benefits likely to be?

17. GLACIER: JMB & DQ26: Public Interest Interest of Public: Speakers Get Access to Folks They Might Not Otherwise Reach. How Significant? • Fact Q: Likely varies greatly with locality • J. Garibaldi suggests not very significant • BUT maybe most cost-effective way to reach public in suburbswhen opinion decided in 1994 Why Might 1994 Be Significant?

18. JMB: Note re Interests Possible Significance of 1994 • Just Before Widespread Public Internet Access • May Change Calculus of Relevant Interests • Maybe Os’ Interests : Shoppers Irritated by Political Leafletters Shop Online Instead of at Malls • Maybe Public Interest : Internet Means Less Need to Access Malls to Spread Points of View

19. Logic of JMB Constitutional Background • Federal Cases: • Marsh: Company town: 1stAmdtapplies • Logan Valley extended to shopping centers • Tanner & Hudgensoverrule & hold shopping centers are private space not governed by federal 1st Amdt

20. Logic of JMB Constitutional Background • Federal v. State Constitutions • Federal Constitution limits both state & federal govt power • State Constitutions • Can’t permit what Feds prohibit • BUT State can choose to restrict itself more (by prohibiting more) than Feds do • [We’ll see again in Chapter 2 Next Week]

21. Logic of JMB Constitutional Background • Pruneyard • California says state 1stAmdt gives right to free speech in Shopping Centers (tho not true of Fedl 1stAmdt) • Shopping Center Os Claim Violation of Fedl Constitution: Interference w Property Rights • USSCt says no violation w Fedl Constitutional Rights • Leaves to states choice of whether to do this

22. Logic of JMB Free Speech at Shopping Centers after Pruneyard & JMB • Federal 1stAmdt (Speech) allows; doesn’t require • Federal 5th/14thAmdts (Property) don’t forbid • Some states follow California & NJ; Most do not • Mostly pretty liberal states follow: Oregon, Massachusetts, Minnesota • Plus Washington & Colorado (now Reefer States!!)

23. Logic of JMB JMB finds Free Speech Rights at Shopping Centers under State Constitution • Uses Analysis from Schmid(Earlier NJ SCt Case) • Free Speech access to Princeton University (private) • Uses Three-Part Balancing Test (P89) • We’ll Look at in More Detail for DQ28 • Note Importance of Repeated Analogy to Town Square (again might be weakened by internet) • QUESTIONS on LOGIC of JMB?

24. Logic of JMB JMB finds Free Speech Rights at Shopping Centers under State Constitution • Note Town Square Analogy focuses on 1stAmdt Rights of Speakers: How can they reach public? • Another Way to Think About: 1stAmdt Rights of Listeners: How can they hear important speech? • Concern that “captive” residents need speech access • Arguably issue in both Marsh & Schmid(also Shack) • By contrast, mall customers seem much less “captive”, so JMB distinguishable

25. Other Ways to Approach JMB Issue • In State that Rejects 1st Amdt Approach, Might Want to Argue Public Policy Limit on Right to Exclude (like Shack). Examples: • Implicit Condition of Gov’t Support (Stadium Argument I Made Last Time) • Monopoly like Innkeepers (Note 2) • Collective Action Problem (Note 3) • You can use as ways to help think about Right to Exclude in other contexts

26. Other Ways to Approach JMB Issue • Implicit Condition of Gov’t Support • Often Treat Gov’t Support as Creating Obligations • E.g., Liquor Licenses  Duty to Monitor Age • Malls Often Created with Help from Gov’t • Exceptions to Zoning/Environmental Regulations • Use of Eminent Doman Power • Where Applicable, Might Suggest Duties to Public • Monopoly like Innkeepers (Note 2) • Collective Action Problem (Note 3)

27. Other Ways to Approach JMB Issue • Implicit Condition of Gov’t Support • Monopoly like Innkeepers (Note 2) • Some Pre-Internet Malls Had Near Monopoly • But Many Did Not (especially in NJ) • Also, doesn’t look like taking advantage of economic power to extort $$ or exclude randomly • Collective Action Problem (Note 3)

28. Other Ways to Approach JMB Issue • Implicit Condition of Gov’t Support • Monopoly like Innkeepers (Note 2) • Collective Action Problem (Note 3) • Idea: Players want limits on right to exclude; transaction costs prevent agreeing on limits • Mall Owners would allow but for fear of competition (Prisoner’s Dilemma) • Shoppers want but no good way to bargain with Os • Probably important consideration for some Right to Exclude issues

29. Other Ways to Approach JMB Issue • Implicit Condition of Gov’t Support • Monopoly like Innkeepers (Note 2) • Collective Action Problem (Note 3) • Idea: Players want limits on right to exclude; transaction costs prevent agreeing on limits • BUT here I think not a collective action problem b/c most shoppers & Osdon’t want

30. Other Ways to Approach JMB Issue • Implicit Condition of Gov’t Support • Monopoly like Innkeepers (Note 2) • Collective Action Problem (Note 3): Players want limits on right to exclude; transaction costs prevent agreeing on limits • BUT here I think not a collective action problem b/c most shoppers & Osdon’t want • Note strength of 1stAmdt as theory here: • Protects speech even when majority wants to say “No” • Remember Bill of Rights is Counter-Majoritarian: Establishes Limits on Democratic Decision-Making

31. Other Ways to Approach JMB Issue • Implicit Condition of Gov’t Support • Monopoly like Innkeepers (Note 2) • Collective Action Problem (Note 3) Questions?

32. DQ27: Possible Future Applications of JMB • Your clients – Os of relatively small NJ mall – have Qs about J.M.B.that case doesn’t address explicitly. • Assuming no additional cases or regulations, how would you answer? • Use evidence from facts, language, logic of case. • OK to use common sense (e.g., seems pretty unlikely that could limit protestor access to top floor of parking garage)

33. Right to Exclude: Property Open to the PublicGLACIER: JMB & DQ27(a)-(b) Glacier Mountain Lion

34. Possible Future Applications of JMBDQ27(a): GLACIER Does case open up all malls in the state to protestors or will its application be determined on a case-by-case basis for each mall?

35. Possible Future Applications of JMBDQ27(a): GLACIER Does case open up all malls or will application be determined on a case-by-case basis? Evidence includes: • All malls in original case quite large • “Regional” or “Community” Shopping Centers • At least 71 stores & 27 acres (P86) • Ruling “limited to leafletting at such centers” (P85) (Noel) • Schmid analysis consistent with case-by-case • Public invitation could be less broad • Compatibility could be less • Cf. Princeton Univ. v. small private residential college

36. Possible Future Applications of JMBDQ27(b): GLACIER Assuming the case governs, do all political/protest groups have to be treated alike?

37. Possible Future Applications of JMBDQ27(b): GLACIER Do all political/protest groups have to be treated alike? Evidence includes: • Common Sense: Can exclude groups if significant problems during past visits. • Otherwise: Basis in 1stAmdt • Might suggest treating all groups/messages the same • BUT (P91) refers to anti-war protest as “most substantial” and “central to the purpose” of 1stAmdt interests; leaves room for argument about other issues

38. Right to Exclude: Property Open to the PublicEVERGLADES: JMB & DQ27(c)-28 EGRET IN MANGROVE SWAMP

39. Possible Future Applications of JMBDQ27(c): EVERGLADES Assuming the case governs, what kinds of limits or requirements can the mall impose on protestors? Let’s look at general evidence first, then specific examples. Most important phrase likely is …

40. Possible Future Applications of JMBDQ27(c): EVERGLADES Allowable Limits or Requirements? • Malls have “full power to adopt … time, place & manner [restrictions] that will assure … that … leafletting does not interfere with the shopping center’s business while … preserving the effectiveness of plaintiff’s exercise of their constitutional right.” (P90) • Incorporates both sides interests

41. Possible Future Applications of JMBDQ27(c): EVERGLADES Allowable Limits or Requirements? • Balance: Malls have “full power to adopt … time, place & manner [restrictions] that will assure … that … leafletting does not interfere with the shopping center’s business while … preserving the effectiveness of plaintiff’s exercise of their constitutional right.” • Other Evidence ?

42. Possible Future Applications of JMBDQ27(c): EVERGLADES Allowable Limits or Requirements? • Other Evidence Includes: • Repeated use of “reasonable” • List of conditions referenced on P86 presumably unacceptable • Not allowed to approach shoppers • Liability Insurance Policy w $1 Million Coverage • Specific “Reasonable” Possibilities?

43. Possible Future Applications of JMBDQ27(c): EVERGLADES Allowable Limits or Requirements? • Specific “Reasonable” Possibilities Include: • Operate in Designated Areas • Limits on Shopper Interactions • Back away if shopper indicates leaflet unwanted • Limits re noise level, politeness, etc. • Clean Up leaflets left around • $$$ Deposits for Security/Maintenance? • Limits re Targeting Particular Tenants?