PROPERTY B SLIDES

1. PROPERTY B SLIDES Class #2 (1-16-19) National Fig Newton Day

2. More Music to Accompany Jacque: Savage Garden (Self-Titled 1997) • Please See Me: • Lily Gonzales • Jose Rivero • Friday • Class Begins at 7:55 • Panel Selection at Break

3. LOGISTICS: Panel Selection (Friday at Break) • I’ll ask for lists indicating who (if anyone) you want me to put on same panel with you. • Can do nothing & I will randomly assign you • Can give me groups of two or more students (up to about 18) & I will assemble into larger groups as needed • Check with people first, then hand in one list per group • Not commitment, just an opportunity to work with people b/c responsible for same assignments

4. PROPERTY B (1/16/19) APPROACHING SECOND SEMESTER Intro to Shack Jacque Cont’d & DQ1.03-1.05

5. Approaching Second Semester Where You Are at End of First Semester Special Difficulties of Second Semester What To Do Now

6. Approaching Second Semester Where You Are at End of First Semester “I Guess You’re Right.” (!)

7. Approaching Second Semester Where You Are at End of First Semester Special Difficulties of Second Semester Schedule What To Do Now

8. Approaching Second Semester Where You Are at End of First Semester Special Difficulties of Second Semester Schedule L. Comm. Heavy in April Need to Do More Exam Prep Much Earlier Using Spring Break Wisely What To Do Now

9. Approaching Second Semester Where You Are at End of First Semester Special Difficulties of Second Semester Schedule Coping with Grades What To Do Now

10. Coping with Grades Motivation Issues

11. Coping with Grades Motivation Issues Meaning of Grades Not Good Measure of You as a Person

12. Which of The Following is the Most Annoying? • Flo in Progressive ads B. Guys in Sonic ads C. Dick Vitale

13. Which of The Following is the Most Annoying? • Flo in Progressive ads • Guys in Sonic ads • Dick Vitale D. Classmates Who Let Everyone Know About Their High Grades

14. Coping with Grades Motivation Issues Meaning of Grades Not Good Measure of You as a Person Not Good Measure of Your Potential as a Lawyer

15. Approaching Second Semester Where You Are at End of First Semester Special Difficulties of Second Semester What To Do Now (Life Lessons from the Eensy Weensy Spider)

16. Approaching Second Semester Where You Are at End of First Semester Special Difficulties of Second Semester What To Do Now? Own Your Grades/Work on Exam Technique

17. Approaching Second Semester Where You Are at End of First Semester Special Difficulties of Second Semester What To Do Now? Own Your Grades/Work on Exam Technique Work on Lawyering Skills

18. FINAL EXAM QUESTIONSChoose Three of Four • XQ1: LAWYERING • XQ2: SHORT ANSWERS (Choose Three of Four) • XQ3: OPINION/DISSENT • XQ4: TRADITIONAL ISSUE-SPOTTER

19. DEAN’S FELLOWS • Lauren Alvareez & Brendan Mehler • Job for Property: Work through Old Exam Qs with You • Advantages of Two DFs • Details on Sessions Posted Later in the Weeek

20. Approaching Second Semester Where You Are at End of First Semester Special Difficulties of Second Semester What To Do Now? Own Your Grades/Work on Exam Technique Work on Lawyering Skills Theme for Course: Hard Qs/Easy Qs

21. Approaching Second Semester Final Point

22. Approaching Second Semester Final Point

23. PROPERTY B (1/16/19) Approaching Second Semester Intro to Shack Overview of the Case Why So Much Time on Shack? Jacque Cont’d & DQ1.03-1.05

24. INTRO 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”)

25. INTRO 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

26. INTRO 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 (Friday: Intro to 1971)

27. INTRO 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

28. INTRO 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)

29. PROPERTY B (1/16/19) Approaching Second Semester Intro to Shack JacqueCont’d: Logic DQ1.03-1.05

30. Logic of Jacque: Scope of Existing Precedent WiscSCt Stated General “No Pain No Gain” Rule in Barnard (1917) BUT top P56: “Whether nominal damages can support a punitive damage award in the case of an intentional trespass has never been squarely addressed by this court.”

31. Logic of Jacque: Approach w/o Binding Precedent (Generally) What to do where no binding prec & have to decide to extend rule to new situation or create exception (looks like latter here)? a. Look to non-binding precedent b. Look to policy

32. Logic of Jacque: Approach w/o Binding Precedent Existing Related Precedent: McWilliams (1854) 1854 = Very early Wisc case (becomes state in 1848) Establishes availability of punitive damages in appropriate cases Quotes older English case: Uses int’l trespass as example of reason for punitives. Quote refers to situation w no compensatory damages Why isn’t this part of McWilliams binding?

33. Determining Scope of Rules: Looking to Underlying Policy Does underlying rationale apply to new situation? Very common approach to determining scope of existing rule. So need to know rationales behind rules (important exam thing)

34. Logic of Jacque: Approach w/o Binding Precedent Policy Behind “No Pain, No Gain” Stated in Last Sentence in 2d to last para on P54 (Also note “bare assertion” in prior sentence) Court spends rest of opinion arguing that this rationale doesn’t apply to int’l trespass List of non-monetizable harms from last class  Wisc has reasons to deter even w/o compensatory dmgs, Small Criminal fine insufficient to deter  so need punitives (legalv. factual support for punitives)

35. Logic of Jacque: DQ1.03 (Felix Cohen Quote) “[T]hat is property to which the following label can be attached: To the world: Keep off X unless you have my permission, which I may grant or withhold. Signed: Private Citizen Endorsed: The State” Means What?

36. Logic of Jacque: DQ1.03 (Felix Cohen Quote) “[T]hat is property to which the following label can be attached: To the world: Keep off X unless you have my permission, which I may grant or withhold. Signed: Private Citizen Endorsed: The State” How Fits Into Court’s Analysis?

37. Logic of Jacque Qs on Court’s Reasoning?

38. Players in System Have Choices Most states don’t allow punitive dmgs for int’l trespass if no compensatory dmgs. Wisc. S.Ct. had a choice: (i) follow majority of states; or (ii) allow punitives, which it did.

39. Players in System Have Choices Most states don’t allow punitive dmgs for int’l trespass if no compensatory dmgs. Wisc. S.Ct. rejected majority rule & allowed punitives[W/in understood crole of state S.Ct.] Wisc. legislature then has choice (See DQ 1.04): (i) allow WiscSCt decision to stand; or (ii) change law back to majority rule; or (iii) change law to something different

40. Players in System Have Choices  ImportantSkill: Arguments About Which Rule is Best Arguments Vary With Audience: Precedent Arguments (Prior Authority) Gen’ly for Court Policy Arguments (What’s Best for Society) for Both Courts & Legislature Need to Be Aware of Institutional Limits/Strengths: If arguing for detailed regulations or changes in criminal penalties, only Legislature can do. (Moore Spleen Case)

41. PUNITIVE DAMAGES: CHOICES & POLICY DQ1.04: How Persuasive is… (a) Landowners should not receive any sort of damages when they have not been harmed in a tangible way. (This is stated rationale for “no pain, no gain” rule.) Already have seen court’s counter-argument that there might be important non-tangible injuries Other reasons besides “no harm” that state might not want to award punitives? What are the costs of making punitives available?

42. PUNITIVE DAMAGES: CHOICES & POLICY DQ1.04: How Persuasive is… (a)Landowners should not receive any sort of damages when they have not been harmed in a tangible way. Other reasons state might not want to award punitives? Fear of too many (frivolous) lawsuits Need to prove intent; need to prove what $$$ amount needed for deterrence punitive (high administrative costs) [Not covered in class] WiscSCt clearly thinks deterring non-tangible harms is worth risking these costs. Legislature could disagree.