music: carole king tapestry (1971) section e1: lunch tomorrow meet on bricks @ 12:05 bryan ...

Music: Carole KingTapestry (1971)

SECTION E1: LUNCH TOMORROWMeet on Bricks @ 12:05

Bryan Navarrete Nealon Page Stern Torgman Velarde

Music: Carole KingTapestry (1971)

SECTION C1: LUNCH TOMORROWMeet on Bricks @ 12:05

Catania Habib Lorentz Parolie Perez Preston Sleiman

STATE v. SHACK

(N.J. 1971)continued

DEATHS• Nikita Kruschev• Papa Doc Duvalier• Thomas Dewey• Louis Armstrong• Jim Morrison• Igor Stravinsky• Coco Chanel• Ogden Nash

BIRTHS

• 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

• 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

Near the end of long post-Depression period of

great faith in Govt• E.g., Deaths of Ex-Presidents• Shack: Example of strong 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

Seeds of Change: 1. 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

Seeds of Change: 1. Vietnam War2. 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

Seeds of Change: 1. Vietnam War2. Road to Watergate3. Pres. Nixon appoints William Rehnquist

to US Supreme Court

Shack Discussion Questions 17-20

featuring BARLEY (sporadically)

Possible Theories to Decide Shack:

DQ17: Doctrine of NecessityTraditionally, public and private necessity “justify entry upon the

lands of another.”• Defense to civil action for trespass – I sue you for “unauthorized entry” onto

my land. –You defend by saying, yes I entered,

but my actions were justified by public or private necessity.



lands of another.” • Identify at least three different kinds

of situations to which you can imagine a court applying this rule.



lands of another.” • Identify at least three different kinds of situations to

which you can imagine a court applying this rule.

• Most people would concede that at least some of these justify limiting right to exclude

• Once you concede that right is not absolute, have to argue over boundaries



lands of another.” • Identify at least three different kinds of

situations to which you can imagine a court applying this rule.

• Are the facts in Shack similar enough to the situations you have identified that they should fall within this rule?



lands of another.” • What evidence can you find in the

opinion that necessity was not the legal theory that formed the basis of the court’s decision?


DQ17: Doctrine of NecessityEvidence that necessity was not the basis of the court’s decision?

• Paragraph referencing necessity (top S10): Just refers to existence of doctrine & gives general cites

• What would the opinion look like if necessity was basis?


DQ17: Doctrine of NecessityEvidence that necessity was not the

basis of the court’s decision?• Paragraph referencing necessity (top S10):

Just refers to existence of doctrine & gives general cites

• What would the opinion look like if necessity was basis?– List of specific examples–Discussion comparing facts here to those

examples


DQ17: Doctrine of NecessityEvidence that necessity was not the

basis of the court’s decision?• “We see no profit in trying to decide upon

a conventional category and then forcing the present subject into it.” (last para. S10)

• 2d paragraph on S10: “The subject is not static” doesn’t refer to necessity but to limitations on property rights generally

• Facts here & inclusion of press don’t look like necessity.


DQ17: Doctrine of Necessity• Note that you can argue in a

particular case that necessity for Migrant Workers (MWs) is a good reason to allow inclusion under Shack.• BUT: don’t need to have necessity

for Shack to apply. • Qs?


DQ18: Bargaining• Very important alternative almost always

relevant in this course is private agreement (contracts)

• Let parties negotiate. State just intervenes to enforce voluntary agreements.

• Generally good reasons to rely on private bargaining– Usually less administrative costs than

regulation– Autonomy/clarity of interest : people better

than the state at identifying & articulating their own interests


DQ18: Bargaining• Clearly we could rely on bargaining here,

saying: “If it matters to them, let workers negotiate for right to access to Shack defendants.”

• Should we rely on bargaining? Can see as two separate Qs:1. Reasons we might not rely?2. Strong enough to outweigh reasons for

bargaining?


DQ18: Bargaining• Should we rely on bargaining?

1. Reasons we might not rely?


DQ18: Bargaining: Should we rely on?1. Reasons we might not rely?

a. Importance of Needs & Interests of MWsb. Relative Power of Partiesc. Relative Access to Information




[T]he needs 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.” (S9, end 1st full para.)




“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.” (S11: end 2d to last para.)


DQ18: Bargaining: Should we rely on?(S11) “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.”

COMMON PROBLEM: BEWARE USING TECHNICAL TERM LIKE “FUNDAMENTAL RIGHT” OUT OF CONTEXT. COURT IS NOT SAYING THAT ENTRY ONLY ALLOWED TO FURTHER “FUNDAMENTAL RIGHTS.” E.G., MEDICAL CARE IS NOT FUNDAMENTAL RT.




2. Strong enough to outweigh reasons to bargain?a. NJ SCt thinks so; you could disagreeb. Recurring Q: State intervention v. Private decisionsc. Can use arguments re needs, power, information to

help resolve


DQ19: Constitutional Arguments1. Ds Make Several Constitutional

Arguments, e.g., a. Supremacy Clause: Can’t interfere with operation of

fed’l statutes providing services to MWsb. 1st Amdt (essentially a Marsh kind of claim)c. 6th Amdt (Right to Counsel)

2. NJ SCt says deciding case w/o relying on state or federal constitutions.


DQ19: Constitutional Arguments(S8-S9): “A decision in nonconstitutional terms is

more satisfactory, because the interests of migrant workers 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.

“More expansively served” means…?


DQ19: Constitutional Arguments“More expansively served” means … not

limited to scope of Const. claim:• Freedom of Speech & Right to Counsel don’t

include medical aid• Supremacy Clause limited to federally funded

programs, so doesn’t include press or aid workers from state or local gov’t


DQ19: Constitutional Arguments(S8-S9): “A decision in nonconstitutional terms is more satisfactory,

because the interests of migrant workers 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; might not protect MWs• Implicit: Try not to decide Const. Qs if don't need to• Also Note: If not decided under fed’l const. not subject to

USSCt review


DQ19: Actual Theory of the Case(S8 last para.): “… under our state law, the

owner-ship of real property does not include the right to bar access to gov’tal

services to migrant workers.”• Not focused on rights of defendants to enter, but

on the scope of the right to exclude.



owner-ship of real property does not include the right to bar access to gov’tal

services to migrant workers.”• Cf. JMB: implicit that ownership includes right to

exclude leafletters. Otherwise, no need to look to NJ Const, which JMB says gives public a right that trumps right to exclude.



ownership of real property does not include the right to bar access to gov’tal services to

migrant workers.” Source of this?• Court explicitly says 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 rights as tenants




migrant workers.” Source of this?

• Source has to be common law of Property• Tort of trespass itself is judge-made law• Prominent exceptions like necessity are judge-made law• Thus NJSCt believes it has power to define nature of rt to

exclude




migrant workers.” Source of this?

• Source has to be common law of Property• NJSCt sees itself as making policy decision

regarding the scope of Property rights & not uncomfortable or apologetic about role.

“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.


• “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.



ought to be. – E.g., Why do you think Shack is wrongly decided?– Owners should have the right to exclude all

because …



ought to be. • “Interests” = needs & desires of parties.

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

Protecting Owners’ Interests

DQ23: Are Shack limits sufficient to protect the owners’ interests? (3 Approaches)



1. Identify key interests & discuss whether rules succeed or fail to address. E.g.,

• Security• Smooth operation of business• Privacy



1. Identify key interests; do rules address? 2. Identify alternative or additional rules that

might work better • Limit times of access• Limit # of people allowed on land• Limit frequency of visits

Protecting Owners’ InterestsDQ23: Are Shack limits sufficient to protect the

owners’ interests? (3 Approaches)1. Identify key interests; do rules address? 2. Identify alternative/additional rules3. 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 …

Protecting Owners’ InterestsDQ23: Are Shack limits sufficient to protect the

owners’ interests? (3 Approaches)1. Identify key interests; do rules address? 2. Identify alternative/additional rules3. Discuss whether relevant interests are

balanced properly.Leave this for you in this case; can do this kind of

analysis in Shack Review Problems.


DQ24: 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?

1. Treat Result in Shack as Given; Advise Clients re Responses

2. Try to get Result in Shack Changed


1. 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)

2. Try to get Result in Shack Changed


1. Treat Result in Shack as Given; Advise Clients re Responses

2. Try to get Result in Shack Changed – Appeal to US Supreme Ct: Taking of Property

Rights w/o Just Compensation (unlikely to win)– Lobby state or fed’l legislators to pass statute to

change or eliminate Shack

Shack Discussion Questions 21 & 25

featuring CORN

DQ 21 : What arguments do you see about whether Shack is consistent with Jacque?

DQ 25 : Fact comparison between the press & other groups the court

protectsCourt explicitly says that press allowed:

Why discuss? • Clearly dicta (no press in case).• Could be arguing at later time about whether

court should adhere to own dicta.• Could be arguing in another jurisdiction about

extending basic rule in Shack.

DQ 25 : Fact comparison between the press & other groups the court

protectsGeneral structure of argument by fact comparison:1.Identify similarities and differences2.Explain why they are relevant to the result

music: carole king tapestry (1971) section e1: lunch tomorrow meet on bricks @ 12:05 bryan ...

Documents

private necessity

shack similar

american public

different kinds of situations

unauthorized entry

boundariespossible theories

vietnam warconcerns

vietnam warroad