“ RIGHTS ” v. “ INTERESTS ”

1. “RIGHTS” v. “INTERESTS” • We’ll use “rights” to refer to what the legal system allows parties to do. • Need to point to specific authority for right asserted. E.g.: • Migrant workers on land have right to access to certain outsiders. Shack. • Tedesco had no right to exclude Ds. Shack.

2. “RIGHTS” v. “INTERESTS” • “Rights” = what legal system allows. • Can’t use “right” to argue what legal result ought to be. • E.g., Why do you think Shack is wrongly decided? • Owners have the right to exclude all.

3. “RIGHTS” v. “INTERESTS” • “Rights” = what legal system allows. • Can’t use “right” to argue what legal result ought to be. • E.g., Why do you think Shack is wrongly decided? • Owners have the right to exclude all. • Owners should have the right to exclude all.

4. “RIGHTS” v. “INTERESTS” • “Rights” = what legal system allows. • Can’t use “right” to argue what legal result ought to be. • E.g., Why do you think Shack is wrongly decided? • Owners should have the right to exclude all because …

5. “RIGHTS” v. “INTERESTS” • “Rights” = what legal system allows. • Can’t use “right” to argue what legal result ought to be. • “Interests” = needs & desires of parties.

6. Protecting Owners’ Interests • 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

7. Protecting Owners’ Interests DQ5: Are Shack limits sufficient to protect the owners’ interests? (3 Approaches)

8. Protecting Owners’ Interests DQ5: Are Shack limits sufficient to protect the owners’ interests? (3 Approaches) • Identify key interests & discuss whether rules succeed or fail to address • Security • Smooth operation of business • Privacy

9. Protecting Owners’ Interests DQ5: Are Shack limits sufficient to protect the owners’ interests? (3 Approaches) • Identify key interests; do rules address? • Identify alternative or additional rules that might work better • Limit times of access • Limit # of people allowed on land • Limit frequency of visits

10. Protecting Owners’ Interests DQ5: Are Shack limits sufficient to protect the owners’ interests? (3 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 …

11. Protecting Owners’ Interests DQ6: Suppose you represent the NJ Apple-Growers Ass’n. Members of the association approach you to express their unhappiness with Shack. What steps can you take?

12. Protecting Owners’ Interests DQ6: Suppose you represent the NJ Apple-Growers Ass’n. Members of the ass’n approach you to express unhappiness with Shack. What steps can you take? • Treat Result in Shack as Given; Advise Clients re Responses • Try to get Result in Shack Changed

13. Protecting Owners’ Interests • Treat Result in Shack as Given; Advise Clients re Responses • Help draft standard rules for owners to employ (& litigate them) • Help reorganize industry (no housing onsite) • Explore leaving jurisd. (hard for apple-growers) • Try to get Result in Shack Changed

14. Protecting Owners’ Interests • Treat Result in Shack as Given; Advise Clients re Responses • Try to get Result in Shack Changed • Appeal to US Supreme Ct: Taking of Property Rights w/o Just Compensation • Lobby state or fed’l legislators to pass statute to change or eliminate Shack

15. Roles of State Legislatures v. State Supreme Courts • Cutting-edge common law court decisions like Shack not dangerous; state legislature can always overrule.

16. Roles of State Legislatures v. State Supreme Courts • Cutting-edge common law court decisions like Shack not dangerous; state legislature can always overrule.-OR- • Resolution of complex balancing of interests is best left to the legislature.

17. 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

18. Context of Shack: 1971 • Apollo 14: 4th Successful Moon Landing • USSCt upholds busing of schoolchildren to achieve racial balance • Nixon Administration • Gets Clean Air & Water Acts Enacted • Freezes Wages & Prices to Fight Inflation • Amicus Brief in Shack Favoring Workers on Anti-Federalist Theory

19. Context of Shack: 1971 Near the end of long post-Depression period of great faith in Govt • E.g., Deaths of Ex-Presidents • 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 w Os P Rts

20. 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 …) • Perceived fiasco in Vietnam lowers conf in Govt

21. Context of Shack: 1971 Seeds of Change: • Vietnam War • Concerns about war made Nixon’s reelection seem problematic • 1971: White House staffers assemble people to deal w election: CREEP • Yields Watergate break-in following spring • Scandal undermines authority of govt

22. Context of Shack: 1971 Seeds of Change: • Vietnam War • Road to Watergate • Pres. Nixon appoints William Rehnquist to US Supreme Court