PROPERTY A SLIDES

1. PROPERTY A SLIDES 2-7-17 National Fettucine Alfredo Day National Periodic Table Day

2. Music to Accompany Brooks: Diane Schuur, Timeless (1986)Grammy for Best Female Jazz Vocalist Logistics: • Contact Sheet RE-Circulating; • Confirm Your Info with  • OR Correct in Margins • By Tomorrow on Course Page: • Ch.2 Supplemental Materials • Updated Syllabus • Updated Assignment Sheet Lunch Today Meet on Bricks @ 12:25 Cordell * Fleming * Malik Oswald * Palla * Pfeiffer Ptachik

3. Property Open to the Public& the Right to Exclude Generally: Your Money’s No Good Here (cont’d) Range of Possible Approaches & DQs 1.20-1.21 Brooks & DQs 1.22-1.23 Free Speech Rights (JMB including Schmid) (Starting Thursday with OLYMPIC)

4. Right to Exclude: Parcels Open to the Public (Recap) • Helpful to See Possible Rules as a Continuum • Can exclude anyone for any reason. • Can exclude unless falls within specified forbidden reasons or circumstances. • Must accept anyone who shows up w $$ (unless specific prior harmful conduct or present danger). • We’ll Focus on Interests of Parties • More Consideration of Reasons to Limit Right to Exclude • Look for Permissible Limits/Rules Short of Complete Exclusion

5. Right to Exclude: Parcels Open to the PublicCommon Law Approaches • 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). • Traditional exceptions to Right to Exclude for necessity & ordinary gov’t operations mostly non-controversial. • We’ll focus on specific rule triggered by nature of business: The Innkeeper Rule

6. Right to Exclude: Parcels Open to the PublicInnkeeper Rule & DQ1.20 Innkeeper Rule: Innkeepers and common carriers (transportation) had to accept virtually all paying customers. • Very Limited Exception for People with Specific History of Prior Harm at that Location

7. Right to Exclude: Parcels Open to the PublicInnkeeper Rule & DQ1.20 Innkeeper Rule: Innkeepers and common carriers had to accept virtually all paying customers. • Prof. Epstein’s Explanation: • Need to counteract monopoly power those businesses often had. • Else can charge extra to customers who are stuck • 11pm in York in 1700 • Cf. Looking for motel driving through West Texas or Montana • Especially if Gov’t grants limited # of rights to operate particular type of business, services should be available to all.

8. Right to Exclude: Parcels Open to the PublicInnkeeper Rule & DQ1.20 Innkeeper Rule: Innkeepers and common carriers had to accept virtually all paying customers. • Prof. Epstein’s Explanation: Counteracts Monopoly Power. • Other Possible Explanations Include: • Could View as Moral Duty (See Joseph & 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.

9. Right to Exclude: Parcels Open to the PublicInnkeeper Rule & DQ1.20 Innkeeper Rule: Innkeepers and common carriers had to accept virtually all paying customers. • 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). • May raise prices to public (because of #1 and/or #2) Questions on Innkeeper Rule?

10. 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).

11. 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.

12. 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 should be allowed to use restaurant or motel.

13. Right to Exclude: Parcels Open to the Public DQ1.21 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.

14. 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? We’ll Return to Civil Rights Statutes (FHA) in Chapter 2

15. 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) = Example of Q: Where on Continuum Should This Problem Fall? Free Speech Rights (Thursday  )

16. 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?

17. Right to Exclude: Parcels Open to the PublicBrooks & DQ1.22 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?

18. Right to Exclude: Parcels Open to the PublicBrooks & DQ1.23 Purpose of Exclusion & Less Restrictive Alternatives Expertise + Access to Funds  Possible Loss of $$ for O: Significant Concern? • Could Characterize as • Inevitable Risk of ThisBusiness (i.e. “Tough!) –OR – • Potential Catastrophic Loss O Should Be Able to Limit • Fact on P79: Ps lost 110 out of 140 betting days: • Court may include this fact to suggest Ds are not big $$$ threat • BUT depends on amounts on days in Q; Ps could be millions ahead (only using inside info where big payoff at stake)

19. Right to Exclude: Parcels Open to the PublicBrooks & DQ1.22 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. Good Idea?

20. Right to Exclude: Parcels Open to the Public (Brooks & DQ1.22 ) 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

21. 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. Recurring Sara[h] Concern Here

22. 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)

23. Right to Exclude: Parcels Open to the Public: Brooks: Comparisons with Other Businesses: DQ1.23 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 to individual freedom/autonomy and to general economy • 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”)

24. Right to Exclude: Parcels Open to the Public: Brooks: Comparisons with Other Businesses: DQ1.23 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.

25. 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 (list of protected characteristics is “inclusive” not exclusive) • 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.

26. 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 or the Continuum?

27. BADLANDS: Review Prob 1H NORBECK PASS

28. APPLYINGFL MW Statutes: Problem 1H (BADLANDS): • Short Problem from 2016 Exam Set in Florida • I provided language of §§381.00897(1) & (5). • I asked about both subsections, so should address both. • D hires MWs to live on farm and pick crops for several “stretches of time” each year. • D hires R for three weeks; R lives in 6-person cabin. • M (R’s 17-yr old son) visits R in cabin for a couple of hours after work each day (following posted rules).

29. Problem 1H (BADLANDS): SUBSECTION 1 (1) RIGHT OF ACCESS OF INVITED GUEST … Any invited guest must leave the private living quarters upon the reasonable request of a resident residing within the same private living quarters. • M, avid Donald Trump supporter, relays news of the presidential campaign and (politely and without raising his voice) engages R and the other residents of the cabin in political debate. • G, a resident in R’s cabin (sufficiently cranky that his co-workers call him “Sour George”), asked R and D to cut off M’s visits, saying the boy’s political discussions “are driving me crazy.” R refuses. • Presumably D can exclude M at G’s request if request is “reasonable.”

30. Problem 1H (BADLANDS): SUBSECTION 1 (1) RIGHT OF ACCESS OF INVITED GUEST … Any invited guest must leave the private living quarters upon the reasonable request of a resident residing within the same private living quarters. • M, avid Trump supporter, relays news of presidential campaign and (politely and without raising his voice) engages R and the other residents of the cabin in political debate. G, a resident in R’s cabin asked D to cut off M’s visits, saying the boy’s political discussions “are driving me crazy.” Presumably D can exclude M if G’s request is “reasonable.” • Articulate possible concerns of G. • Arguments G’s request to exclude is “reasonable.” • Arguments G’s request to exclude is not “reasonable.”