property d slides 1-19-16 national popcorn day. music: rod stewart, every picture tells a story...

PROPERTY D SLIDES1-19-16

National Popcorn Day

Music: Music: Rod Stewart, Rod Stewart, Every Picture Tells A Story Every Picture Tells A Story

(1971(1971)Dean’s Fellow SessionsDean’s Fellow Sessions

Starting Next Week•Tuesday 9:30-10:20 a.m. (Room A110)•Friday 9:30-10:20 a.m. (Here)We’ll Post Coverage Info on Course PageWe’ll Post Coverage Info on Course Page

LOGISTICSSheet Asking for Contact Info

• Circulating Today & Thursday• Please write legibly!

Lunch Sign-Up Sheet Will Circulate Next Two Classes• Dates on Tues/Thurs/Fri (Might Avoid Your LComm Day)• Meet on Bricks after Your 11:00 class• We’ll Go to Food Court or SAC Law Room • You Can Bring Food or Buy It There/On the Way• I’ll Post Schedule & Remind You in Class That Day

LOGISTICS: Panel Selection (Thursday at Break)

• I’ll ask for lists indicating who (if anyone) you want me to put on same panel with you.

• Can do nothing & I will randomly assign you• Can give me groups of two or more students (up to about 15) & I will assemble into larger groups as needed

• Check with people first, then hand in one list per group• Not commitment, just an opportunityopportunity to work with people b/c responsible for same assignments

Approaching Second Semester

A.A. Where You Are at End of First Where You Are at End of First SemesterSemester

B. Special Difficulties of Second Semester

C. What To Do Now


A.A. Where You Are at End of First Where You Are at End of First SemesterSemester

““I Guess You’re Right.” I Guess You’re Right.” (!) (!)


A. Where You Are at End of First Semester

B.B. Special Difficulties of Second Special Difficulties of Second SemesterSemester

1.1. ScheduleSchedule• L. Comm. Heavy in April• Need to Get More Exam Prep Done

EarlierC. What To Do Now



B.B. Special Difficulties of Second Special Difficulties of Second SemesterSemester

1. Schedule2.2. Coping with GradesCoping with Grades

C. What To Do Now

Coping with GradesCoping with Grades1.1.Motivation IssuesMotivation Issues

Coping with GradesCoping with Grades1. Motivation Issues2.2. Meaning of GradesMeaning of Grades

a. Not Good Measure of You as a Person

Which of The Following is the Most Annoying?Annoying?

A. Flo in Progressive ads B. Guys in Sonic ads

C. Dick Vitale

Which of The Following is the Most Annoying?Annoying?A. Flo in Progressive ads

B. Guys in Sonic adsC. Dick Vitale

D. Classmates Who Let Everyone Know About Their High Grades

Coping with GradesCoping with Grades1. Motivation Issues2.2. Meaning of GradesMeaning of Grades

a. Not Good Measure of You as a Personb. Not Good Measure of Your

Potential as a Lawyer




C.C. What To Do Starting Your What To Do Starting Your Second Term?Second Term?

Approaching Second SemesterA. Where You Are at End of First

SemesterB. Special Difficulties of Second

SemesterC.C. What To Do Now?What To Do Now?




C.C. What To Do Now?What To Do Now?1.1. Own Your Grades/Work on Exam Own Your Grades/Work on Exam

TechniqueTechnique




C.C. What To Do Now?What To Do Now?1. Own Your Grades/Work on Exam

Technique2.2. Work on Lawyering SkillsWork on Lawyering Skills

FINAL EXAM QUESTIONSChoose Three of Four

• XQ1: LAWYERING• XQ2: SHORT ANSWERS (Choose

Three of Four)• XQ3: OPINION/DISSENT• XQ4: TRADITIONAL ISSUE-SPOTTER

Approaching Second SemesterFinal PointFinal Point

TRANSITION TO TRANSITION TO SHACKSHACK

•

A. Overview of the Case (Last Time)B. Context of Case: 1971 (Last Time)C.C. Rights v. Interests Rights v. Interests D.D. Why So Much Time on Why So Much Time on Shack?Shack?E.E. Necessity & Other Limits on Right Necessity & Other Limits on Right

to Exclude (DQs 1.05-1.06)to Exclude (DQs 1.05-1.06)

TRANSITION TO TRANSITION TO SHACK: SHACK: “RIGHTS” v. “INTERESTS”

•We’ll use “rightsrights” to refer to what the legal system allows parties to do.•Need to point to specific authority for rightright asserted.

•Thus, might say after Shack was decided:• Migrant workers on land now have rightright to access to certain outsiders. Shack.

• Tedesco now has no rightright to exclude Ds. Shack.


•“RightsRights” = what legal system allows parties to do.•Don’t use “rightright” to argue what legal result ought to be:

Q: Why do you think Shack is wrongly decided?

A: Owners have the rightright to exclude all.

(But in NJ after Shack, they don’t have that “right.”)


•“RightsRights” = what legal system allows parties to do.• Instead:

Q: Why do you think Shack is wrongly decided?

A: Owners should have the rightright to exclude all.

(Which raises Q of why!!)


•“RightsRights” = what legal system allows parties to do.

Owners should (or should not) have the rightright to exclude all, because …

•Then need to talk about what we’ll call “interestsinterests” (= needs & desires of parties & state) E.g., • Owner interests in privacy, security, operation of farm• MW interests in receiving helpful services & info

TRANSITION TO TRANSITION TO SHACKSHACKWhy Extensive Coverage of Shack?

1.1. Subject MatterSubject Matter• First example of a limit on the right to exclude in

particular circumstances• Unlike Materials later in Chapter 1, farm here not

generally open to public, so arguably bigger deal to interfere with right to exclude

TRANSITION TO TRANSITION TO SHACKSHACKWhy Extensive Coverage of Shack?

1. Subject Matter2.2.Technique: Making Arguments from Cases Technique: Making Arguments from Cases

• Three Common Sources (Use for Problems Friday & Next Week)i. Facts/Holdingii. Specific Languageiii. Underlying Policy

• Shack is good practice: lot of useful language & complex rationales

• Can usefully compare to statutory scheme (Florida)

TRANSITION TO TRANSITION TO SHACK: SHACK: NECESSITY & Other Limits on the Right to Exclude (DQ1.05-

1.06)DQ1.06. Doctrine of Necessity: The opinion in Shack correctly points out that traditionally, 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. Identify at least 3 different kinds of situations

to which you can imagine a court applying this rule.


1.06)DQ1.06: Doctrine of Necessity: The opinion in Shack correctly points out that traditionally, public and private necessity “justify entry upon the lands of another.” •Common Examples: prevent harm to children/people/self; stop crime in progress; destroy diseased plants/animals; fight fires; avoid blocked road.•Most people would concede some of these examples, thus conceding that right to exclude should not be absolute. Now we just have to haggle over boundaries.


1.06)•

1.05. In what circumstances would be appropriate for a court or legislature to place limits on the right to exclude? Or, to put the question another way, in what circumstances should a person be allowed to enter someone else’s land without permission?•Examples other than necessity & facts of Shack?

• We’ll return to this Q during the course.

Shack:Shack: The Roads Not The Roads Not TakenTaken

A.A.Necessity (DQ1.06 Necessity (DQ1.06 cont’d) cont’d)

B. Bargaining (DQ1.07) C. Constitutional Law (DQ1.08)

SHACK: SHACK: ROADS NOT TAKENROADS NOT TAKENDQ1.06: NecessityDQ1.06: Necessity

Ds going on the land here to: •Remove stitches•Discuss legal problem•Provide literature re fed’l assistance

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?

Comparing Facts: Recurring Comparing Facts: Recurring IssuesIssues

1. Helpful to Articulate CharacterizationsCharacterizations that Facilitate Comparisons. E.g.,

• Examples of Necessity mostly address Immediate Threats to Persons or Property

• Shack Ds not addressing Immediate Threats

Comparing Facts: Recurring Comparing Facts: Recurring IssuesIssues

1. Helpful to Articulate Characterizations that Facilitate Comparisons.

2. Level of Generality Affects Significance. E.g.,

• “Provide Medical Treatment” v. “Remove Stitches”

• “Provide Legal Advice” v. “Deliver Pamphlets”

SHACK: SHACK: ROADS NOT TAKENROADS NOT TAKENDQ1.06: NecessityDQ1.06: Necessity

Common error among past students:Saying necessity was basis of decision; it isn’t!

What evidence can you find in the What evidence can you find in the opinion that necessity was opinion that necessity was not not the the legal theory that formed the basis of legal theory that formed the basis of the court’s decision?the court’s decision?

DQ1.06: Evidence that necessity was DQ1.06: Evidence that necessity was notnot the basis of the court’s decision the basis of the court’s decision includesincludes … …• 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 How would opinion look different if necessity was basis?was basis?

SHACK: SHACK: ROADS NOT TAKEN: ROADS NOT TAKEN: DQ1.06: DQ1.06: NecessityNecessity

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 Shack probably apply, but case is clear that facts don’t have to fit into doctrine of necessity to trigger Shack rights.

Shack:Shack: The Roads Not The Roads Not TakenTaken

A. Necessity (DQ1.06 cont’d) B.B.Bargaining (DQ1.07) Bargaining (DQ1.07) C. Constitutional Law (DQ1.08)

SHACK: SHACK: ROADS NOT TAKENROADS NOT TAKENDQ1.07: BargainingDQ1.07: 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.


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?


1. Are there reasons we might not want to rely on bargaining?2. Are these reasons strong enough to outweigh reasons we

like bargaining?

Start with Q#1: Ideas from You or from Case

Should we rely on bargaining to protect MWs’ interests? Should we rely on bargaining to protect MWs’ interests? Can break down into two Qs:


Reasons we might not want to rely on bargaining? Court focuses on two sets of ideas:•Importance of Needs of MWs & Relative Power of Parties•Parties’ Relative Access to Information

SHACK: SHACK: ROADS NOT TAKEN ROADS NOT TAKEN DQ1.07: DQ1.07: BargainingBargaining

Importance of Needs of MWs & Relative Power of Parties•“[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.” (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)


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….”

property d slides 1-19-16 national popcorn day. music: rod stewart, every picture tells a story...

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