property d slides 2-3-14. monday feb 3 music: cyndi lauper, twelve deadly sins: (1994) i’m trying...

PROPERTY D SLIDES2-3-14

Monday Feb 3 Music: Cyndi Lauper, Twelve Deadly Sins: (1994)

I’m trying to finalize contact list today• If you made a correction on the list that circulated

last Thursday, please check in with me to see if we fixed it properly.

• The following people apparently were not able to check their info and need to see me to do so: Hubbard, Rosendorf, Venkatesh

PROPERTY D: 2/3

As Valentine’s Day As Valentine’s Day Approaches: Approaches:

Too Much Too Much

Part OnePart One

Every kiss begins with Kay®

& Jane Seymour& Jane Seymour• Bond Girl

• Medicine Woman• Queen of TV Miniseries• Third Wife of Henry VIII

“Behind Every Open Heart is a Story”

~present~Jane Seymour’s

“Open Heart” Collection

Unfortunately, it’s usually a story about cholesterol.

Previously in Property DPreviously in Property D• Right to Exclude & MWs

• Shack v. State• Discussed Several Aspects of Context of Case:

• Historical (1971)• Doctrinal: Comparison to Jacque (DQ1.12)• Structural: Ways for Farmers to Deal With (DQ1.13)

• Practiced Applying Case to New Situations• Florida Statutes on MWs

• Looked at Content & Operation• Compared to Shack

Previously in Property DPreviously in Property D• Right to Exclude & Parcels Open to Public

• Common Law Innkeeper Rule: Brief Intro to Operation & Rationales

• Civil Rights Statutes: Brief Intro to Operation & Rationales

PROPERTY D (This Week)TodayToday

1.Brooks & DQ1.23-1.24 (Shenandoah)2.Intro to JMB &: DQ1.25-1.26 (Shenandoah)3.Start Rev. Prob. 1I (Arches)

TomorrowTomorrow1.Finish Rev Prob 1I (Arches)2. JMB cont’d & Closing Up Ch. 1: DQ1.27-1.29 (Yellowstone)3. Intro to Chapter 2 & Midkiff & DQ2.01-2.06 (Redwood)

Thursday: Rev Prob 1H (Biscayne) + More Ch. Thursday: Rev Prob 1H (Biscayne) + More Ch. 22

YELLOWSTONE Electronic Cold Call: YELLOWSTONE Electronic Cold Call: DQ1.29DQ1.29

E-Mail Your Response to Me by 9:00 pm TonightDQ1.29. Can you formulate a rule or a set of standards for

when a business generally open to the public should be prevented from excluding particular individuals or activities?

George * Giles * Halmoukos * Ireland * Khoury•Submit version of what you had prepared for this DQ

• Needs to be clear (not pretty)• Can include bullet points, abbreviations, etc.

•I’ll write up some comments & make available to you soon

PROPERTY D (2/3)

Right to Exclude cont’d 1.1.Brooks & Brooks & DQ1.23-1.24 DQ1.23-1.24 2.Intro to JMB & DQ1.25-1.26 3.Start Rev. Prob. 1I

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

Procedural Posture: •US Court of Appeals for 7th Cir (Wisc, Ill, Ind.)

•Federal Court b/c Diversity Jurisdiction (P80)• Ps = Pennsylvania Citizens

• D = Illinois Corporation

•Under Erie, Federal Court applies state law: • Job is to determine what Illinois would do

• Court clearly not very sympathetic to D, but not operating on clean slate

Questions?

SHENANDOAH (DQ1.23-1.24)

APPALACHIAN TRAIL

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

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

Alternatives

DQ1.23: If their right to exclude is limited, what are the possible harms to the

landowners in Brooks?



Alternatives

Possible Harms to O in Brooks Include: • Professional Gamblers = (Maybe) Organized CrimeProfessional Gamblers = (Maybe) Organized Crime

• Reputed presence might discourage others from betting

• Actual presence increases risk of actual crime

• Expertise + Access to Funds Expertise + Access to Funds Loss of $$ for O? Loss of $$ for O? • Should we treat this potential loss as a significant concern?


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

Expertise + Access to Funds Possible Loss of $$ for O: Significant Concern?

•Could Characterize as • Inevitable Risk of This Business (i.e. “Tough!) –OR-• Potential Catastrophic Loss O Should Be Able to Limit

•Fact on P80: Ps lost 110 out of 140 betting days: • Why does court include this fact?• Argument that this fact is not very significant?



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)



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


Purpose for Inclusion/Harms from Exclusive

Significant Public Interest in Allowing Access in Cases Like

This?


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 (P81): 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: DQ1.24Arguments 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. P81: Description of innkeeper & common carrier as “public callings”)


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

Racetracks Include:Racetracks Include:

•From the Court: • (P82-83) Suggestion that large open invitation might mean O should lose discretion. -BUT-

• (P83) Suggestion that market forces here 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


Closing PointsClosing Points•Other jurisdictions generally follow Brooks (even NJ)

•Only Exception I Know is California Civil Rights Act • Language (See P84-85) 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


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?


Transition Quote (P84)Transition Quote (P84)

“[T]he more private property is devoted to public use, the more it must accommodate the rights which inhere in individual members of the general public who use that property .”

--Uston quoting State v. Schmid.

PROPERTY D (2/3)

Right to Exclude cont’d 1.Brooks & DQ1.23-1.24

2.2.Intro to Intro to JMB & DQ1.25-1.26 JMB & DQ1.25-1.26 3.Start Rev. Prob. 1I


JMBJMB: Overview: Overview • NJSCT holds that large shopping centers must

permit protestors to have access to hand out leaflets on social issues.

• Our Coverage1. TODAY: Relevant Interests (DQ1.25-1.26)

2. TODAY: Logic of Opinion (Me)

3. TOMORROW: Permissible Regulation (DQ1. 27)

4. TOMORROW: Relation to Other Right to Exclude Problems (DQ1.28)

SHENANDOAH (DQ1.25-1.26)

APPALACHIAN TRAIL


JMBJMB: DQ1.25: O’s Interests (Shenandoah): DQ1.25: O’s Interests (Shenandoah)

Possible harms to the owners in JMB: 1.Forced Speech2.Psychic Harm3.Interference with Business


JMBJMB: DQ1.25: O’s Interests (Shenandoah): DQ1.25: O’s Interests (Shenandoah) Possible harms to the owners in JMB:

1.Forced Speech•1st Amdt Claim: Shoppers will assume leafletters speak for management, so Os effectively forced to say things they disagree with

Are shoppers likely to view protestor speech that way?


JMBJMB: DQ1.25: O’s Interests (Shenandoah): DQ1.25: O’s Interests (Shenandoah) Possible harms to the owners in JMB:

1.Forced Speech•1st Amdt Claim: Shoppers will assume leafletters speak for management, so Os effectively forced to say things they disagree with

•I’m skeptical that shoppers would view that way

• Court rejects this claim in portion of opinion not in book



Possible harms to the owners in JMB: 1.Forced Speech (claim rejected by NJSCt)

2.Psychic Harm• Feelings of Lack of Control Over Property

• Made Worse by Speech if Os Disagree

• NOTE: Genuine, but hard to Quantify

Likely to be Very Significant in this Context?



Possible harms to the owners in JMB: 1.Forced Speech (claim rejected by NJSCt)

2.Psychic Harm• Would have to convince court that would make significant

difference w lots of other people at mall & very broad public invitation

• No claims, e.g., re privacy.

• Plus can exclude completely when mall is closed

3.Interference with Business: Specific Concerns?

Likely to be Very Significant in this Context?


JMBJMB: DQ1.25: O’s Interests (Shenandoah): DQ1.25: O’s Interests (Shenandoah) Specific Business Concerns Include:

•Customers May Not Like Go Elsewhere

•Security/Monitoring

•Clean-Up

•Tort Liability/Insurance

•Interferes w Traffic Patterns/Access to Particular Tenants

How significant are these harms likely to be?

Right to Exclude: Parcels Open to the PublicRight to Exclude: Parcels Open to the PublicJMBJMB: DQ1.25: O’s Interests (Shenandoah): DQ1.25: O’s Interests (Shenandoah)

Points re Significance of Specific Business Concerns: •Customers may not like, BUT if at all malls, they’ll get used to & other malls won’t be better choices

•Average Daily Traffic = 28,750 People• Unlikely to Significantly Impact Security, Clean-Up, etc.

• Tort Liability Insurance Premiums (I bet near-zero effect)

•Interference w Traffic & Access Might Be Problem• BUT Probably Ways to Address without Complete Exclusion

• Not Like Foot Traffic Always Flows Smoothly!!

•Note Lack of Specificity re Harms to Malls

GARIBALDIS

LIBERATOR GIUSEPPE

JUSTICE MARIE, DISSENTING


JMBJMB: DQ1.26: Public Interest : DQ1.26: Public Interest (Shenandoah)(Shenandoah)

What benefits to society might there be to allowing political activists to hand out leaflets at privately-owned shopping

centers?



Interests of Public in Speech at Malls Include: •Speakers Get Access to Folks They Might Not Otherwise Reach

• Few Traditional Public Spaces in Suburbs

• Maybe Can Target Speech to People with Particular Interests (near specific stores, etc.)

How significant are these benefits likely to be?



Interests of Public in Speech at Malls: •Speakers Get Access to Folks They Might Not Otherwise Reach

•Significance is Fact Q: Likely varies greatly with locality

• J. Garibaldi suggests not very significant.

• BUT maybe most cost-effective way to reach public in suburbs when opinion decided in 1994.

Why Might 1994 Be Significant?



Interests of Public in Speech at Malls: Possible Significance of 1994

•Just Before Widespread Public Internet Access

•May Change Calculus of Relevant Interests• Maybe Os’ Interests : Shoppers Irritated by Political

Leafletters Shop Online Instead of at Malls

• Maybe Public Interest : Internet Means Less Need to Access Malls to Spread Points of View


Logic of Logic of JMB: JMB: Constitutional BackgroundConstitutional Background

• Federal Cases (Discussed in JMB P87-88): • Marsh: Company town: 1st Amdt applies

• Logan Valley extended Marsh to shopping centers

• Tanner & Hudgens overrule Logan Valley & hold shopping centers are private space not addressed by federal 1st Amdt


Logic of Logic of JMB: JMB: Constitutional BackgroundConstitutional Background• Federal v. State Constitutions

• Federal Constitution limits both state & federal govt power

• State Constitutions• Can’t permit what Feds prohibit

• BUT State can choose to restrict itself more than Feds do

• E.g., by forbidding its own police from doing some searches and seizures allowed by 4th Amdt

• E.g., by protecting speech more than Fedl 1st Amdt

• We’ll see again in Chapter 2

Right to Exclude: Parcels Open to the PublicRight to Exclude: Parcels Open to the PublicLogic of Logic of JMB: JMB: Constitutional BackgroundConstitutional Background

Pruneyard (Cal. 1979) aff’d (US 1980)•Calif SCt says its state 1st Amdt protects speech more than Fedl 1st Amdt and gives its citizens the right to free speech in Shopping Centers

•Shopping Center Os appeal claiming that Calif allowing this access interferes with property rights in violation of 5th and 14th Amdts of Fedl Constitution:

•USSCt says no violation of Fedl Constitution• Effectively leaves states with choice of whether to provide state

protection for speech at shopping centers:

• Federal 1st Amdt allows (but doesn’t require)

• Federal 5th/14th Amdts don’t forbid

Right to Exclude: Parcels Open to the PublicRight to Exclude: Parcels Open to the PublicLogic of Logic of JMB: JMB: Constitutional BackgroundConstitutional Background

• In JMB, NJ follows Calif & says its state 1st Amdt gives its citizens the right to free speech in Shopping Centers

• Calif & NJ only states to do this through state 1st Amdt

• Mass & Colo & Wash (limited) allow speech access to shopping centers on other theories

• Other states do not allow speech access to shopping centers; Minn & Oregon have reversed themselves since casebook was published and no longer allow

Right to Exclude: Parcels Open to the PublicRight to Exclude: Parcels Open to the PublicLogic of Logic of JMB: JMB: Reasoning (Reasoning (Schmid Schmid Analysis)Analysis)

JMB Follows & Applies Schmid (NJ 1980)•Schmid addressed Free Speech access to Princeton Univ.

• (Private property often open to public)• Case described in detail on P88-89• Note appeal dismissed in Schmid by USSCt (see cite on P88)

• - tried for fedl property rts claim as made unsuccessfully in Pruneyard & as I suggested might try in iShack


JMB Follows & Applies Schmid (NJ 1980)•Schmid allowed Free Speech access to Princeton Univ.

• = Private property often open to public• Case described in detail on P88-89• Note Princeton appealed to USSCt

• Same Fedl property rights claim made in Pruneyard• SCt refused to hear appeal (see cite on P88)


JMB Follows & Applies Schmid (NJ 1980)•Schmid allowed Free Speech access to Princeton Univ.•Uses Three-Part Balancing Test (P89); Can Use For …

• Access Claims re 1st Amdt Rights (Like JMB)

• Other Limits on Right to Exclude (Like Brooks)

• We’ll Look at in More Detail for DQ1.28

•Schmid allows O to put some restrictions on access, BUT doesn’t specify what restrictions OK


JMB Follows & Applies Schmid (NJ 1980)•Note importance of analogy to town square. •Note importance of very broad invitation by malls.•Court (P91) explicitly says it is drawing on common law as well as NJ 1st Amdt

• Cites/discusses Shack• Again suggests can use JMB/Schmid to support other kinds of

limits on rt excl besides 1st Amdt

Qs on JMB Reasoning?

PROPERTY D (2/3)

Right to Exclude cont’d 1.Brooks & DQ1.23-1.24 2.Intro to JMB & DQ1.25-1.26

3.3.Start Rev. Prob. 1IStart Rev. Prob. 1I

Right to Exclude: Review Problem 1IRight to Exclude: Review Problem 1I

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


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., …


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

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


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.

property d slides 2-3-14. monday feb 3 music: cyndi lauper, twelve deadly sins: (1994) i’m trying...

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