PROPERTY D SLIDES

1. PROPERTY D SLIDES 1-27-14

2. Monday Jan 27: Music Carole King, Tapestry (1971) • Dean’s Fellow Sessions Start This Week(On Course Page) • Tuesday @ 2:30 pm in Room E352 • Wednesday @ 8:30 am in Room F209 • Circulating List Today for You to Provide Contact Info: • Please Write Clearly • E-Mail Addresses (not Phone #s) Will Be Provided to Class • Panel Assignments Posted on Course Page • Panel Responsibilities Begin Tomorrow • E-Mail Me if Qs

3. PROPERTY D: MONDAYS Special Bonuses for On-Time Arrivals (2) Brief Recap of Prior Week (1) Monday Pop Culture Moment

4. PROPERTY D: 1/27 Monday Pop Culture Moment Two DISAPPOINTING REVELATIONS ABOUT CHILDHOOD FAVORITES 

5. PROPERTY D: 1/27 Monday Pop Culture Moment (1) ALL FROOTLOOPSTASTETHESAMEREGARDLESSOFCOLOR (Same ForTRIX& FRUITY PEBBLES)

6. PROPERTY D: 1/27 Monday Pop Culture Moment (2) The Alphabet Song & Twinkle Twinkle Little Star Have the Same Melody

7. Previously in Property D Right to Exclude Significance Jacque allows punitives w/o compensatory damages to protect Necessity as one limit on right Shack as another limit on right

8. Previously in Property D Right to Exclude Shack v. State Language & Reasoning Court does notrely on Traditional property categories like necessity & landlord-tenant law Constitutional theories raised by parties Bargaining/Agreements between Employers & MWs

9. Previously in Property D Right to Exclude Shack v. State Language & Reasoning Court does not rely on Necessity, Constitution or Bargaining Relies on its own ability to determine common law of Property to announce limit on right to exclude in NJ Lot of useful language Re Limits on Employer Right to Exclude Re Protection of Employer Interests

10. Previously in Property D Right to Exclude Shack v. State Language & Reasoning Lot of useful language Re Limits on Employer Right to Exclude Re Protection of Employer Interests Note that description of Tedesco as “Employer” (rather than “Farmer” or “Landowner”) suggests that employment relationship is basis of Shack limits

11. PROPERTY D (1/27) SHACK v. STATE cont’d CONTEXT: 1971 WHAT THE CASE SAYS cont’d C. Protecting Owners cont’d (DQ1.13) D. Reconciling Shack & Jacque (DQ1.12) Applying the Case to New Situations

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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)

20. PROPERTY D (1/27) SHACK v. STATE cont’d CONTEXT: 1971 WHAT THE CASE SAYS cont’d C. Protecting Owners cont’d (DQ1.13) (featuring Alvarez, McKain, Oña) D. Reconciling Shack & Jacque (DQ1.12) (featuring Volunteers) Applying the Case to New Situations

21. 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

22. SHACK: WHAT THE CASE DOESDQ1.11 & 1.13: Protections of O’s Interests • 1.13. You represent the NJ Apple-Growers Assn. Members approach you to express their unhappiness with Shack. • Assume No Useful Litigation in Short Term • No way to challenge NJ SCt decision in state court • Federal Constitutional challenge based on property rights unlikely to succeed now (& even less likely in 1971) • What Other Steps Can You Take?

23. SHACK: WHAT THE CASE DOESDQ1.11 & 1.13: Protections of O’s Interests • 1.13. Possible Steps for Trade Association Include … • Lobby state or fed’l legislators to pass statute to change or eliminate Shack • Treat Result in Shack as Given; Advise Clients re Responses. E.g., • Help draft standard rules for owners to employ (& litigate them) • Help reorganize industry (no housing onsite; a real response) • Explore leaving jurisd. (hard for apple-growers)

24. SHACK: WHAT THE CASE DOESDQ1.11 & 1.13: Protections of O’s Interests • Common Dispute re Roles of State Supreme Courts v. State Legislatures • 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.

25. SHACK: WHAT THE CASE DOESDQ1.12: Shack & Jacque • Is Shack inconsistent with Jacque? • Articulate two different characterizations of the cases: • One highlighting their inconsistency • One suggesting they really are consistent.

26. PROPERTY D (1/27) SHACK v. STATE cont’d CONTEXT: 1971 WHAT THE CASE SAYS cont’d APPLYING THE CASE TO NEW SITUATIONS Comparing Facts: Inclusion of the Press (DQ1.14) (featuring Rostock, Venkatesh, Block, Jarzabek) Assigned Problems

27. APPLYING SHACK TO NEW SITUATIONSDQ1.14: Comparing Facts (The Press) NJSCt Explicitly Says Press Is Allowed: Why Discuss? • Clearly dicta (no press in case). • Could be arguing at later time about whether NJSCt should adhere to own dicta. (Note again: the more time that has passed, the easier it is to do this.) • Could be arguing in another state about extending basic rule in Shack

28. APPLYING SHACK TO NEW SITUATIONSDQ1.14: Comparing Facts (The Press) Anytime you are comparing facts of a case to a new situation, you need to: • Identify both similarities and differences • (Examples among you)

29. APPLYING SHACK TO NEW SITUATIONSDQ1.14: Comparing Facts (The Press) Anytime you are comparing facts of a case to a new situation, you need to: • Identify both similarities and differences AND • Explain why they should affect the result. • Why similarities suggest treatment should be the same –OR- • Why differences suggest different treatment –OR- • Why one side is more important than the other.

30. APPLYING SHACK TO NEW SITUATIONSDQ1.14: Comparing Facts (The Press) • Compare press & other groups to whom the NJSCt gives access • Identify Similarities • Identify Differences

31. DQ1.14: Comparing Facts (The Press)What Do Lists Suggest re How to Treat Press? Similarities Include … Differences Include … Not helping specific people Not necessarily helping when present Might not only focus on MWs Strong commercial interests Scope of trespass harder to determine/likely to want more intrusion O interests arguably stronger w press v. Medical: No interest in unhealthy MWs; v. Legal: State won't acknowledge O interest in uninformed MWs • Could help MWs • Can provide info (press report in one place  info to others) • Serving public interest (w specific textual mandate (1stAmdt)) • Specialized training (v. stopping by to see if you need anything) • See Harvest of Shame (CBS 1960)

32. PROPERTY D (1/27) SHACK v. STATE cont’d CONTEXT: 1971 WHAT THE CASE SAYS cont’d APPLYING THE CASE TO NEW SITUATIONS Comparing Facts: Inclusion of the Press (DQ1.14) Last Names A-F: Discussion Question 1.15(a) (S7)

33. Applying Shack: DQ1.15 & Problems 1A-1B Could do each of these at length, going through: • Application of Key Language • Factual Comparisons to Shack Ds & Press • Relevance of Key Policies Like Protecting O’s Interests • Overall Best Result In class, we’ll do selected Qs to highlight particular techniques I’ll give you more extensive write-ups of each in future Info Memo

34. APPLYING SHACK: Problem 1B (Last Names P-Z): Tomorrow we’ll do 1B. Tonight look at again in light of today’s discussions. A few points to think about: • Common Sense in Reading: “To ensure that she never comes into contact with pork products, Alyssa stopped serving themin her dining hall and forbade all employees from bringing food from outside the farm (drinks are allowed).” Them = pork products not MWs. • Don’t Look for Easy Ways Out: E.g., Don’t rest whole answer on MWs with medical or religious need for pork or pizza (not very likely). • Look for Ways That Problem is Different Than What You’ve Seen Before: E.g., O’s primary interest is probably not privacy or security, b/c she allowed pizza delivery in past, so focus on religious interest.

35. APPLYING SHACK: DQ1.15a (Last Names A-F): A worker wishes to have a spouse or long-term partner stay overnight on the premises. • MW “must be allowed to receive visitors … of his own choice, so long as there is no behavior hurtful to others.” • Possible harm to others? • How Serious?

36. APPLYING SHACK: DQ1.15a (Last Names A-F): A worker wishes to have a spouse or long-term partner stay overnight on the premises. • “can’t isolate in any aspect significant for workers’ well-being” • How Significant for MWs’ Well-Being? • Isolating if Denying?