PROPERTY A SLIDES

1. PROPERTY A SLIDES 1-23-15

2. Friday Jan 23: Music Carole King, Tapestry (1971) • Dean’s Fellow Sessions Start Next Week • Tuesday @ 9:30 am in Room F402 • Friday @ 9:30 am in Room F209 (Here) • On Course Page by Noon Tomorrow • Panel Assignments • Class Assignments for Next Week

3. Special Bonus for On-Time Arrivals FRIday Pop Culture Moment Two DISAPPOINTING REVELATIONS ABOUT CHILDHOOD FAVORITES 

4. PROPERTY A: 1/23 FRIday Pop Culture Moment (1) ALL FROOTLOOPSTASTETHESAMEREGARDLESSOFCOLOR (Same ForTRIX& FRUITY PEBBLES)

5. PROPERTY A: 1/23 FRIday Pop Culture Moment (2) The Alphabet Song & Twinkle Twinkle Little Star Have the Same Melody

6. PROPERTY A (1/23) Shack: The Roads Not Taken Necessity (DQ1.06 cont’d) (Yesterday) Bargaining (DQ1.07) Constitutional Law (DQ1.08) Context of the Case What the Case Says Application

7. 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

8. 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?

9. 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

10. SHACK: ROADS NOT TAKENDQ1.07: Bargaining Reasons we might not want to rely on bargaining? Court focuses on two sets of ideas: • Importance of Needsof MWs & Relative Power of Parties • Parties’ Relative Access to Information

11. SHACK: ROADS NOT TAKEN DQ1.07: Bargaining Importance of Needsof MWs & Relative Power of Parties • “[T]heneeds of the occupants may be so imperative and their strength so weak, that the law will deny the occupants the power to contract away what is deemed essential to their health, welfare, or dignity.” (3d para. on S4) • “These rights are too fundamental to be denied on the basis of an interest in real property and too fragile to be left to the unequal bargaining strength of the parties.” (5th para. on S6) • NOTE: “fundamental” here is general description of importance (v. “Fundamental Right” as Constitutional Term of Art)

12. SHACK: ROADS NOT TAKENDQ1.07: Bargaining Parties’ Relative Access to Information (See top para. on S5) • MWs “unaware” of rights & of available opportunities/services. • “[C]an be reached only by positive efforts….”

13. SHACK: ROADS NOT TAKENDQ1.07: Bargaining Are these reasons strong enough to outweigh reasons we like bargaining? • NJ SCtobviously thinks so; you could disagree. • Recurring Qs in course re state intervention v. private decision-making; can use Shack arguments re relative need, power, and information.

14. PROPERTY A (1/23) Shack: The Roads Not Taken Necessity (DQ1.06 cont’d) (Yesterday) Bargaining (DQ1.07) Constitutional Law (DQ1.08) Context of the Case What the Case Says Application

15. SHACK: ROADS NOT TAKENDQ1.08: Constitutional Law • Ds & US as Amicus make several uncertain Constitutional Arguments. Most importantly: • Supremacy Clause: Exclusion sanctioned by state would interfere w operation of fed’l statutes providing services to MWs • 1stAmdt: Under Marsh, residentMWs have right to access to speech/information • 6thAmdt: MWs have right to access to lawyers.

16. SHACK: ROADS NOT TAKENDQ1.08: Constitutional Law Prior students often have incorrectly stated that Shack turns on the MW’s constitutional or fundamental rights. However, the NJ SCt makes clear this is wrong by saying that deciding the case without relying on the state or federal constitution is “more satisfactory.”

17. SHACK: ROADS NOT TAKENDQ1.08: Constitutional Law (2d para. on S4): “A decision in nonconstitutional terms is more satisfactory, b/c the interests of MWs are more expansively served in that way than they would be if they had no more freedom than these constitutional concepts could be found to mandate if indeed they apply at all.” Meaning of “more expansively served”?

18. SHACK: ROADS NOT TAKEN DQ1.08: Constitutional Law • (2d para. on S4): “A decision in nonconstitutional terms is more satisfactory, b/c the interests of MWs are more expansively served in that way than they would be if they had no more freedom than these constitutional concepts could be found to mandate if indeed they apply at all.” • Meaning of “more expansively served”? • Can protect MWs more broadly while addressing same concerns. E.g • If based in right to counsel, doesn’t help w Drs or social workers • If based on Supremacy Clause, limited to fed’l programs

19. SHACK: ROADS NOT TAKEN DQ1.08: Constitutional Law • (2d para. on S4): “A decision in nonconstitutional terms is more satisfactory, b/c the interests of MWs are more expansively served in that way than they would be if they had no more freedom than these constitutional concepts could be found to mandate if indeed they apply at all.” • Hard Constitutional Qs here. • Implicit: Common judicial principle: Try not to decide Constitutional Qs if don't need to • Also Note: Unlikely subject to USSCt review if relying on state law rather than interpreting US Constitution

20. PROPERTY A (1/23) Shack: The Roads Not Taken Context of the Case: 1971 What the Case Says Application

21. 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

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

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

24. 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

25. 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 Os Property Rights

26. 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

27. 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

28. 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 (cf. Shelley & Burton) • Appointment foreshadows change in this self-perception of courts (cf. Moose Lodge & Jackson)

29. PROPERTY A (1/23) Shack: The Roads Not Taken Context of the Case What the Case Says Theory of the Case (DQ1.08-1.09) “Rules” (DQ1.10) Protecting Owners (DQ1.11 & 1.13) Shack & Jacque (DQ1.12) Application

30. SHACK: WHAT THE CASE DOESDQ1.08-1.09: Theory of Case • NJ SCt’s characterization of legal issue: • Not focused on rights of Ds, but on scope of right to exclude • “[U]nder our state law, the ownership of real property does not include the right to bar access to gov’tal services to migrant workers” (2d para. on S4) • Source of this assertion? I.e., on what non-constitutional legal theory does the court rest its decision?

31. SHACK: WHAT THE CASE DOESDQ1.08-1.09: Theory of Case • NJ SCt’s Source of Law: • Court says explicitly not relying on state Constitution • No specific statute cited • Court rejects reliance on Landlord-Tenant law • Again, “no profit” in forcing into conventional category • Note: huge impact to give MWs full tenant rights, especially in NJ

32. SHACK: WHAT THE CASE DOESDQ1.08-1.09: Theory of Case • NJ SCt’s Source of Law has to be its own interpretation of Common Law of Property: • Tort of trespass & general right to exclude themselves are judge-made law • Prominent exceptions like necessity are judge-made law • Thus NJ SCt has power to define nature of right to exclude

33. SHACK: WHAT THE CASE DOESDQ1.08-1.09: Theory of Case What does the N.J. Supreme Court mean when it says, “Property rights serve human values.” (Start of Part II)?

34. SHACK: WHAT THE CASE DOESDQ1.08-1.09: Theory of Case Why does the NJ SCt include the (LONG) quote from Powell on Real Property (bottom of S5)?

35. PROPERTY A (1/23) Shack: The Roads Not Taken Context of the Case What the Case Says Theory of the Case (DQ1.08-1.09) “Rules” (DQ1.10) Protecting Owners (DQ1.11 & 1.13) Shack & Jacque (DQ1.12) Application

36. SHACK: WHAT THE CASE DOESDQ1.10 : “Rules” Identify passages in the case that could be used in future cases as a “rule” to help decide the scope of the right to exclude in future similar cases. Focus on language that might be used to define circumstances in which the owner cannot exclude (as opposed to language explaining the limits that the owners can place on visitors they are forced to allow).

37. SHACK: WHAT THE CASE DOES (DQ1.10 : “Rules”) • Passages that could be used as a “rule” to help decide the scope of the right to exclude in future similar cases: • Specific Instructions • Employer can’t exclude “fed’l state or local services or … recognized charitable groups seeking to assist” MWs (3d para. on S6). (This would include Wheeler suggestion: “[U]nder our State law the ownership of real property does not include the right a bar access to governmental services available to MWs” (2d para. on S4). • “[T]he MW must be allowed to receive visitors … of his own choice, so long as there is no behavior hurtful to others…” (3d para. on S6)

38. SHACK: WHAT THE CASE DOES (DQ1.10 : “Rules”) • Passages that could be used as a “rule” to help decide the scope of the right to exclude in future similar cases: Specific Instructions • Employer may exclude “solicitors or peddlers … at least if the employer's purpose is not to gain a commercial advantage for himself….” (4th para. on S6) (cf. Grapes of Wrath)

39. SHACK: WHAT THE CASE DOES (DQ1.10 : “Rules”) • Passages that could be used as a “rule” to help decide the scope of the right to exclude in future similar cases: General Instructions (Overlapping) • Employer can’t “isolate the MW in any respect significant for workers’ well-being.” (3d para. on S6) • Employer can’t “deprive the MW of practical access to things he needs.” (4th para. on S6)

40. SHACK: WHAT THE CASE DOES (DQ1.10 : “Rules”) • Passages that could be used as a “rule” to help decide the scope of the right to exclude in future similar cases: Very General Instructions • “[E]mployer may not deny the worker his privacy or interfere with his opportunity to live with dignity and to enjoy ass’ns customarily enjoyed among our citizens.” (5th para. on S6) • “Title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises.” (3d para. of S4)

41. SHACK: WHAT THE CASE DOES (DQ1.10 : “Rules”) Passages that could be used as a “rule” to help decide the scope of the right to exclude in future similar cases Other Passages You Identified?

42. PROPERTY A (1/23) Shack: The Roads Not Taken Context of the Case What the Case Says Theory of the Case (DQ1.08-1.09) “Rules” (DQ1.10) ProtectingOwners (DQ1.11 & 1.13) Shack & Jacque (DQ1.12) Application

43. SHACK: WHAT THE CASE DOESDQ1.11 & 1.13: Protections of O’s Interests Limits on Shack’sRight of Access: O can exclude solicitors/peddlers if … • doesn’t deprive MWs of practical access to things they need. • purpose is not to gain a commercial advantage Os can reasonably require visitors to identify selves and state purpose Visitors cannot … • interfere w farming activities • engage in behavior hurtful to others

44. SHACK: WHAT THE CASE DOESDQ1.11 & 1.13: Protections of O’s Interests Are Limits on Shack’s Right of Access Sufficient to Protect O’s Interests? (We’ll Get a Few Ideas from You) O can exclude solicitors/peddlers if … • doesn’t deprive MWs of practical access to things they need. • purpose is not to gain a commercial advantage Os can reasonably require visitors to identify selves and state purpose Visitors cannot … • interfere w farming activities • engage in behavior hurtful to others

45. SHACK: WHAT THE CASE DOESDQ1.11 & 1.13: Protections of O’s Interests • Are Limits on Shack’s Right of Access Sufficient to Protect O’s Interests? (Three Standard Approaches) • Identify key interests and discuss whether rules adequately address. E.g., • Security • Privacy • Smooth Operation of Business

46. SHACK: WHAT THE CASE DOESDQ1.11 & 1.13: Protections of O’s Interests • Are Limits on Shack’s Right of Access Sufficient to Protect O’s Interests? (Three Standard Approaches) • Identify key interests; do rules address? • Identify alternative/additional rules that might work better. E.g., • Limit times of access • Limit # of people allowed on land • Limit frequency of visits

47. SHACK: WHAT THE CASE DOESDQ1.11 & 1.13: Protections of O’s Interests • Are Limits on Shack’s Right of Access Sufficient to Protect O’s Interests? (Three Standard Approaches) • Identify key interests; do rules address? • Identify alternative/additional rules • Discuss whether relevant interests are balanced properly: • Workers’ minimal interest in possible benefits from media oversight is less significant than the owners’ interest in the smooth operation of their businesses because …

48. SHACK: WHAT THE CASE DOESDQ1.11 & 1.13: Protections of O’s Interests 1.13. You represent the NJ Apple-Growers Association . • Trade Association = Common Type of Organization Representing Common Financial & Legal Interests of Group. E.g., • Joint Advertising of Apple Products • Consultation or Group Action re Issues Like Taxes, Labor, Safety, Packaging, Consumer Protection