PROPERTY A SLIDES2-5-15

Thursday Feb 5 Music: Indigo Girls, Swamp Ohelia (1994)

Lunch Today (Meet on Bricks @ 11:55): Dahle; De la Pedraja; Lievano; C. Melendez; Palomo; Sandler

Jail Day #1: Class Ends @ 9:15

PROPERTY A (2/5)I.I. Property Open to the Public Property Open to the Public

(Yellowstone)(Yellowstone)A. Generally

B.B. Brooks (cont’d)Brooks (cont’d)

II. Review Problem 1K (Part ii) (Biscayne)

III. Review Problem 1J (Redwood)

IV. Free Speech Rights (Arches)

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

Brooks & DQ1.22 (Yellowstone)Brooks & DQ1.22 (Yellowstone)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.Limit on amount one person can bet.

Pros & Cons? (Worry: Some Pros ARE Cons)

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

Brooks & DQ1.23 (Yellowstone)Brooks & DQ1.23 (Yellowstone)Purpose of Exclusion & Less Restrictive

Alternatives

Possible less restrictive alternative: Limit on Possible less restrictive alternative: Limit on amount one person can bet. Good idea?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

YELLOWSTONE (DQ1.22-1.23)

GIANT GEYSER

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the Public: Public: BrooksBrooks

Purpose for Inclusion/Harms from Exclusive

Significant Public Interest in Allowing Access in Cases Like

This?

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the Public: Public: BrooksBrooks

Purpose for Inclusion/Harms from Exclusive

Significant Public 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

Right to Exclude: Parcels Open to the Public: Right to Exclude: Parcels Open to the Public: BrooksBrooks

Comparisons with Other Kinds of Businesses: Comparisons with Other Kinds of Businesses: CasinosCasinosPs Asked Court in Brooks to 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)

Right to Exclude: Parcels Open to the Public: Right to Exclude: Parcels Open to the Public: Brooks: Brooks:

Comparisons with Other Businesses: DQ1.23Arguments re Extending Innkeeper Rules to Cover Arguments re Extending Innkeeper Rules to Cover

Stadiums & Racetracks Include: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

• 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”)

Right to Exclude: Parcels Open to the Public: Right to Exclude: Parcels Open to the Public: Brooks: Brooks:

Comparisons with Other Businesses: DQ1.24 (Yellowstone)Arguments re Innkeeper Rules for Stadiums & Racetracks Arguments re Innkeeper Rules for Stadiums & Racetracks

Include: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 Mentioned in Readings: Often Significant Public Funding & Gov’t Support for Stadium Construction; Could View as Implied Contract w Public for Access

Right to Exclude: Parcels Open to the Public: Right to Exclude: Parcels Open to the Public: Brooks: Brooks:

Closing PointsClosing 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

• 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.

Right to Exclude: Parcels Open to the Public: Right to Exclude: Parcels Open to the Public: Brooks: Brooks:

Closing Points: Final ContinuumClosing 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?

PROPERTY A (2/5)I. Property Open to the Public (Yellowstone)

II.II. Review Problem 1K (Part ii) Review Problem 1K (Part ii) (Biscayne)(Biscayne)

III. Review Problem 1J (Redwood)

IV. Free Speech Rights (Arches)

SUNRISE AT ADAMS KEY

Gaidian (FL) MW Statutes: Review Gaidian (FL) MW Statutes: Review Problem 1K(ii)Problem 1K(ii)

HF uses MWs living onsite to pick crops about 5 wks/yr.• Large open “Assembly Area”

• Several Rows of Barracks Buildings (Pvt Living Qtrs)

FF = charismatic/controversial religious figure •FF wishes to visit HF

•Some of HF MWs = followers of FF

•Some of HF MWs strenuously object

Review Problem 1K(ii) (Biscayne)Review Problem 1K(ii) (Biscayne)

• Needs to be “Other Authorized Vistitor”: L88(5)

• (c) A representative of a bona fide religious organization who, during the visit, is engaged in the vocation or occupation of a religious professional or worker such as a minister, priest, or nun; or• (d) Any other person who provides services for farmworkers

which are funded in whole or in part by local, state, or federal funds but who does not conduct or attempt to conduct solicitations.

Can FF Access “Assembly Area”?

Review Problem 1K(ii) (Biscayne)Review Problem 1K(ii) (Biscayne)

• Given Facts, Should Assume FF Will Be “Invited Guest”

•L88(B) … Any invited guest must leave the private living quarters upon the reasonable request of a resident residing within the same private living quarters.

FF Access “to Pvt Living Qtrs”

Review Problem 1K(ii) (Biscayne)Review Problem 1K(ii) (Biscayne)

• L88(C): Reasonable rules re hours

• L88(D): Check in Before Entry; Present Picture I.D.

Correct but TrivialNot Worth Much Time/Space

What Rules re Access Can S Set ?

Review Problem 1K(ii) (Biscayne)Review Problem 1K(ii) (Biscayne)

•L88(D): Migrant labor camp owners or operators may adopt other rules regulating access … if the rules are reasonably related reasonably related to the purpose of promoting the safety, to the purpose of promoting the safety, welfare, or security of residents, visitors, welfare, or security of residents, visitors, farmworkers, or the owner’s or operator’s farmworkers, or the owner’s or operator’s business.business.

What Rules re Access Can S Set ?

PROPERTY A (2/5)I. Property Open to the Public (Yellowstone)

II. Review Problem 1K (Part ii) (Biscayne)

III.III.Review Problem 1J (Redwood) Review Problem 1J (Redwood) IV. Free Speech Rights (Arches)

Redwoods & Ferns

Right to Exclude: Review Problem 1JRight to Exclude: Review Problem 1J

Client uses MWs living onsite to pick crops several wks/yr.• Large meeting hall next to MW barracks

• MWs get Sundays off; invite MWs from nearby farms to hall for

• Religious Service

• Social Event after

• Client seeks advice about whether he has to allow

• Asked to describe legal/factual research necessary to advise

Right to Exclude: Review Problem 1JRight to Exclude: Review Problem 1J

Legal Research Needed To Establish Legal Framework

1.Check if state roughly follows Shack by caselaw or statute.

2.Check for precise rules & permissible restrictions.

3.Look for possible caselaw/statutory language addressing specific issues that might arise, e.g., …

Right to Exclude: Review Problem 1JRight to Exclude: Review Problem 1J

Legal Research Needed To Establish Legal Framework

3.Look for possible caselaw/statutory language addressing:

a. Possible Distinction betweeni) People invited by MWs • Check if limited like FL to living quarters

• Check if limited like Shack if “harm to others”?

ii) People who get access w/o invitation

b. Relevant tests used in Shack (e.g., customary assns.)c. Genl info about MWs’ use of off-duty time

Right to Exclude: Review Problem 1JRight to Exclude: Review Problem 1J

Legal & Factual Research Relevant to the Following Aspects of the Problem … (Notes on

my list of topics):•Lots of ways to approach/organize this problem• I’m not looking for any particular structure. • Any set of categories/headings (including mine) will

overlap to some extent.

•I tried to design this list to help you see issues; good answers would hit on most of these topics somewhere.

Right to Exclude: Review Problem 1J Right to Exclude: Review Problem 1J (Redwood)(Redwood)

Legal & Factual Research Relevant to

The Religious Services

Major Topics to Explore?

Right to Exclude: Review Problem 1J Right to Exclude: Review Problem 1J (Redwood)(Redwood)

Legal & Factual Research Relevant to The Religious

Services: Major Topics Include…

• Check Nature of Services/Use of Clergy • Check Importance of Services to MWs• Explore Possible Harms Caused By Services• Alternatives to Use of Hall on C’s Land• Additional Legal Research