PROPERTY D SLIDES

1. PROPERTY D SLIDES 1-23-14

2. Music: Rod Stewart, Every Picture Tells A Story (1971) Disability Services Office Needs Note-Taking Volunteer(s) Turn in Lists of Names for Panels at Break Today Lunch Today (Meet on Bricks @ 12:25): Hunter; Lehtinen; Lopez; Nelson; Verley; Wheeler

3. PROPERTY D (1/23) SHACK v. STATE TRANSITION TO SHACK Cont’d ROADS NOT TAKEN (DQ 1.06-1.08) WHAT THE CASE DOES (DQ1.08-1.13)

4. TRANSITION 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”)

5. TRANSITION 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

6. TRANSITION 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) • Our Approach: • 1. Look at possible theories not relied on by NJSCt • 2. Then look at what court actually did • 3. Then apply case to new situations

7. TRANSITION TO SHACK: Overview of Case • Why Extensive Coverage of Shack? • Subject Matter • First example of a limit on the right to exclude in particcirc • Unlike Materials later in Chapter 1, farm here not generally open to public, so arguably bigger deal to nterfere with right to exclude

8. TRANSITION TO SHACK: Overview of Case • Why Extensive Coverage of Shack? • Subject Matter • Technique: Making Arguments from Cases • Three Common Sources (We’ll Use for Problems Mon  Tue) • Facts/Holding • Specific Language • Underlying Policy • Shack is good practice: lot of useful language & complex rationales • Can usefully compare to statutory scheme (Florida)

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

10. FINAL EXAM QUESTION 2SHORT ANSWERS (3 of 4) • E.g., Review Problems 1A-1F • Tightly Focused Problems (Generally One Subject) • Time Allotment for Each: • ~5 Minutes to Read/Outline • ~20 Minutes to Write

11. FINAL EXAM QUESTION 2SHORT ANSWERS (3 of 4) Relevant Skills • Reading Carefully/Following Directions • Strong Understanding of Relevant Authority • Identifying Best Arguments for Each Party (Won’t Be Clear Winner) • Recognizing Significance of Facts in Problem

12. PROPERTY D (1/23) SHACK v. STATE TRANSITION TO SHACK Cont’d ROADS NOT TAKEN Necessity (DQ1.06) (featuringTarafa, Altman, Falk, Grossman) Bargaining (DQ1.07) Constitutional Law (DQ1.08) WHAT THE CASE SAYS (DQ1.08-1.13)

13. SHACK: ROADS NOT TAKENDQ1.06: Necessity • Ds going on the land here to: • Remove stitches • Discuss legal problem • Provide literature re fed’lassistance • Are these facts similar enough to situations you have identified [as likely to constitute “necessity”] that they should fall within this rule? Why or Why Not?

14. Comparing Facts: Recurring Issues Helpful to Articulate Characterizations that Facilitate Comparisons. E.g., Examples of Necessity mostly address Immediate Threats to Persons or Property ShackDs not addressing Immediate Threats

15. Comparing Facts: Recurring Issues Helpful to Articulate Characterizations that Facilitate Comparisons. Level of Generality Affects Significance. E.g., “Provide Medical Treatment” v. “Remove Stitches” “Provide Legal Advice” v. “Deliver Pamphlets”

16. SHACK: ROADS NOT TAKENDQ1.06: Necessity Common error among past students: Saying necessity was basis of decision; it isn’t! What evidence can you find in the opinion that necessity was not the legal theory that formed the basis of the court’s decision?

17. SHACK: ROADS NOT TAKEN: DQ1.06: Necessity • Evidence that necessity was notthe legal theory that formed the basis of the court’s decision includes … • Generally: “We see no profit in trying to decide upon a conventional category and then forcing the present subject into it.” (2d para. on S6) • Discussion of necessity (2d para. on S5) only refers to the existence of the doctrine and provides general cites • “The subject is not static.” (following para.) doesn’t refer to necessity but to limitations on property rights generally • Facts here & inclusion of press don’t look like necessity • How would opinion look different if necessity was basis?

18. SHACK: ROADS NOT TAKEN: DQ1.06: Necessity If necessity were the basis of its decision, Court would almost certainly: • List/characterize examples of circumstances that had constituted legal necessity in NJ • Compare circumstances here to those examples Note: If a service really is necessary to MWs, rights under Shackprobably apply, but case is quite clear that facts don’t have to fit into doctrine of necessity to trigger Shack rights.

19. PROPERTY D (1/23) SHACK v. STATE TRANSITION TO SHACK Cont’d ROADS NOT TAKEN Necessity (DQ1.06) Bargaining (DQ1.07) Constitutional Law (DQ1.08) (both featuring Jarzabek, McCarten, Nelson, Rosendorf) WHAT THE CASE SAYS (DQ1.08-1.13)

20. 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

21. 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?

22. 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

23. 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

24. 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)

25. 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….”

26. 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.

27. 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’lstatutes providing services to MWs • 1stAmdt: Under Marsh, residentMWs have right to access to speech/information • 6thAmdt: MWs have right to access to lawyers.

28. 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.”

29. 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”?

30. 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

31. 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

32. PROPERTY D (1/23) SHACK v. STATE TRANSITION TO SHACK Cont’d ROADS NOT TAKEN (DQ1.06-1.08) WHAT THE CASE SAYS Theory of the Case (DQ1.08-1.09) (featuring Alvarez, Fata, Halmoukos, Khoury) “Rules” (DQ1.10) Protecting Owners (DQ1.11 & 1.13)

33. 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]nderour 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 S5) • Source of this assertion? I.e., on what non-constitutional legal theory does the court rest its decision?

34. 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

35. 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 SCthas power to define nature of right to exclude

36. 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)?

37. 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)?

38. PROPERTY D (1/23) SHACK v. STATE TRANSITION TO SHACK Cont’d ROADS NOT TAKEN (DQ1.06-1.08) WHAT THE CASE SAYS Theory of the Case (DQ1.08-1.09) “Rules” (DQ1.10) (featuring Fajer) Protecting Owners (DQ1.11 & 1.13)

39. 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).

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: • 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]nderour 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)

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: 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)

42. 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)

43. 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’nscustomarily 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)

44. 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?

45. PROPERTY D (1/23) SHACK v. STATE TRANSITION TO SHACK Cont’d ROADS NOT TAKEN (DQ1.06-1.08) WHAT THE CASE SAYS Theory of the Case (DQ1.08-1.09) “Rules” (DQ1.10) Protecting Owners (DQ1.11 & 1.13)

46. 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

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? (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

48. 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

49. 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

50. 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 …