PROPERTY D SLIDES

PROPERTY D SLIDES 2-2-16 GROUNDHOG DAY

Tuesday Feb 2 Music: Diane Schur, Timeless (1986)Grammy for Best Female Jazz Vocalist Lunch Today Meet on Bricks @ 12:25 Brar * Gonzalez * Guerrero * Weiss

Previously in Property D Right to Exclude & MWs Applied Shack to New Situations Florida Statutes on MWs Looked at Content & Operation Compared to Shack Right to Exclude & Land Open to Public Intro to Continuum of Possibilities Common Law: Maximum Rts v. Innkeepers

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 (Continued) Brooks & DQs 1.22-1.23 (BADLANDS) Free Speech Rights (Thursday  )

Right to Exclude: Parcels Open to the PublicCommon Law Approaches (RECAP) 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).

Right to Exclude: Parcels Open to the PublicInnkeeper Rule & DQ1.20 (RECAP) • Professor Epstein: Rule Counteracts Monopoly Power. • Other Possible Explanations Include: • Could View as Moral Duty (SeeJoseph & 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.

Right to Exclude: Parcels Open to the PublicInnkeeper Rule & DQ1.20 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). • (Therefore) May raise prices to public Questions on Innkeeper Rule?

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).

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.

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 can use restaurant or motel.

Right to Exclude: Parcels Open to the PublicDQ1.21 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.

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?

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 (BADLANDS) (1/29-2/2) Brooks as Example of Q: Where on Continuum Should This Problem Fall Free Speech Rights (Thursday  )

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?

BADLANDS (DQ1.22-1.23) BADLANDS: NORBECK PASS

Right to Exclude: Parcels Open to the PublicBrooks & DQ1.22 (Badlands) Purpose of Exclusion & Less Restrictive Alternatives DQ1.22: If their right to exclude is limited, what are the possible harms to the landowners in Brooks?

Right to Exclude: Parcels Open to the PublicBrooks & DQ1.22 (Badlands) 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?

Right to Exclude: Parcels Open to the PublicBrooks & DQ1.23 (Badlands) Purpose of Exclusion & Less Restrictive Alternatives Expertise + Access to Funds  Possible Loss of $$ for O: Significant Concern? • Could Characterize as • Inevitable Risk of ThisBusiness (i.e. “Tough!) –OR- • Potential Catastrophic Loss O Should Be Able to Limit • Fact on P79: Ps lost 110 out of 140 betting days: • Why does court include this fact? • Argument that this fact is not very significant?

Right to Exclude: Parcels Open to the PublicBrooks & DQ1.22 (Badlands) Purpose of Exclusion & Less Restrictive Alternatives Expertise + Access to Funds  Possible Loss of $$ for O Possible less restrictive alternative to address this concern: Limit on amount one person can bet. Pros & Cons? (Worry: Some Pros ARE Cons)

Right to Exclude: Parcels Open to the PublicBrooks & DQ1.22 (Badlands) Purpose of Exclusion & Less Restrictive Alternatives Possible less restrictive alternative: Limit on amount one person can bet. Good idea? • Treating all patrons alike; less chance of mistake BUT • Easy to get around by hiring multiple bettors • Though that’s also true if you try to exclude specific people • Tracks may not like. Good for business to have big losses and [occasional] big wins • Note this is probably not kind of solution court can do; would need legislation or negotiation

Right to Exclude: Parcels Open to the Public: Brooks Purpose for Inclusion/Harms from Exclusive Significant Public Interest in Allowing Access in Cases Like This?

Right to Exclude: Parcels Open to the Public: Brooks Purpose for Inclusion/Harms from Exclusive Signif. Publ. Interest in Allowing Access in Cases Like This? • Probably not much in ensuring professionals can bet large amounts in person at track • Concerns: Exclusion b/c mistake re identity or facts • E.g., Federal No-Fly Lists • E.g., NY case cited in Brooks (P80):Coley Madden mistaken for Owney Madden • Cf. Jillians & Panel Assignments

Right to Exclude: Parcels Open to the Public: BrooksComparisons with Other Kinds of Businesses: Casinos Ps Asked Court in Brooksto Apply Uston • In Uston, NJ SCt seems to apply Innkeeper Rule to casinos • 7th Cir. Refuses to Apply • NJ Case; Not Followed in Illinois • NJ Doesn’t Extend to Racetracks Anyway • Could Also Distinguish on Facts • Card Counting = Skill Accessible to All (v. Inside Info on Horses/Jockeys) • Casinos Covered by Special Statutes/Licensing (so explicit regulatory power in state govt)

Right to Exclude: Parcels Open to the Public: Brooks: Comparisons with Other Businesses: DQ1.23 (Badlands) Arguments re Extending Innkeeper Rules to Cover Stadiums & Racetracks?

Right to Exclude: Parcels Open to the Public: Brooks: Comparisons with Other Businesses: DQ1.23 (Badlands) Arguments re Extending Innkeeper Rules to Cover Stadiums & Racetracks Include: • Comparisons to Inns & Common Carriers (& Monopoly Theory) • Heavy state regulation & relatively few racetracks, so like monopoly • But arguably less important than inns & common carriers • Not crucial at time of arrival; extortion of patrons unlikely • Less public interest in ensuring universal access. (Cf. Bottom of P80: Description of innkeeper & common carrier as “public callings”)

Right to Exclude: Parcels Open to the Public: Brooks: Comparisons with Other Businesses: DQ1.23 (Badlands) Arguments re Innkeeper Rules for Stadiums & Racetracks Include: • From the Court: • (P82) Suggestion that large open invitation might mean O should lose discretion. -BUT- • (P83) Suggestion that market forces here [& bad publicity] likely to discourage many types of arbitrary exclusions. • Not Noted in Readings: Often Significant Public Funding & Gov’t Support for Stadium Construction (Marlins); Could View as Implied Contract w Public for Access.

Right to Exclude: Parcels Open to the Public: Brooks: Closing Points • Other jurisdictions generally follow Brooks (even NJ) • Only Exception I Know is California Civil Rights Act • Language (2d para P85) looks like ordinary civil rights statute • Cal. SCt reads it to ban “arbitrary discrimination” of any kind • E.g., Orloff (1951) (racetrack case) • Can’t exclude people w reputations for immoral character. • Person in Q had prior off-track gambling conviction & reputation as gambler/bookmaker.

Right to Exclude: Parcels Open to the Public: Brooks: Closing Points: Final Continuum • Can exclude anyone for any reason (Common Law re most businesses) • Can exclude for any reason except limited list of forbidden characteristics (Typical Civil Rights Statutes) • No “arbitrary discrimination.” (California Civil Rights Act) • Must accept anyone who shows up w $$ unless specific prior harmful conduct. (Common Law Innkeeper Rule & maybe casinos under Uston). Qs on Brooks?

EVERGLADES: Review Problem 1K (Part ii) EGRET IN MANGROVE SWAMP

Review Problem 1K(ii) (EVERGLADES) • Rev. Prob. 1K is Issue-Spotter from 2014 Exam • Two parts weighted roughly equally • Requires you to use statutes from fictional state (Gaidian) • Taken from statutes studied in course • Edited for space /clarity (e.g., I removed lawyers from list) • 1K(i) involves Free Speech Access to a college courtyard; we’ll do at very end of chapter. • 1K(ii) is MW problem where Gaidian Statutes = FL

Review Problem 1K(ii) (Everglades) • Huntsman Farm (HF) uses MWs living onsite to pick crops about 5 wks/yr. • Large open “Assembly Area” (AA) • Several Rows of Barracks Buildings (BB) (Pvt Living Qtrs) • Father Franks = charismatic/controversial religious figure • FF wishes to visit HF (speak at AA; visit followers at BB) • Some of HF MWs = followers of FF • Some of HF MWs strenuously object

Review Problem 1K(ii) (Everglades) Can FF Access “Assembly Area”? • Needs to be “Other Authorized Visitor”: L88(A)(5) Which lettered paragraphs ((a) –(d) ) of L88(A)(5) might apply?

Review Problem 1K(ii) (Everglades) Can FF Access “Assembly Area”? • “Other Authorized Visitor”: L88(A)(5)(c) • A representative of a bona fide religious organization • … who, during the visit, is engaged in the vocation or occupation of a religious professional or worker such as a minister, priest, or nun;

Review Problem 1K(ii) (Everglades) Can FF Access “Assembly Area”? • “Other Authorized Visitor”: L88(A)(5)(d) • Any other person • who provides services for farmworkers • which are funded in whole or in part by local, state, or federal funds • but who does not conduct or attempt to conduct solicitations.

Review Problem 1K(ii) (Everglades) FF Access “to Pvt Living Qtrs” • Given Facts, Should Assume FF Will Be “Invited Guest” • L88(B) … Any invited guest must leave the private living quarters upon the reasonable request of a resident residing within the same private living quarters. • Means What Here?

Review Problem 1K(ii) (Everglades) What Rules re Access Can S Set ? • L88(C): Reasonable rules re hours • L88(D): Check in Before Entry; Present Picture I.D. Correct but Trivial • Won’t Address Real Problems • Attys Won’t Fight About • So Not Worth Much Time/Space

Review Problem 1K(ii) (Everglades) What Rules re Access Can S Set ? • L88(D): Migrant labor camp owners or operators may adopt other rules regulating access … if the rules are reasonably related to the purpose of promoting the safety, welfare, or security of residents, visitors, farmworkers, or the owner’s or operator’s business. • What Might Qualify Here?

PROPERTY D SLIDES