PROPERTY A SLIDES1-27-15

Tues Jan 27 Music: Rolling Stones, Sticky Fingers

(1971)

Lunch Today (Meet on Bricks @ 11:55): Aleman; Crosby; Foote; Ghomeshi; Kalil; Patel; Stone

First DF Session Today 9:30-10:20 Room F402

General Intro & Additional Work with DQ1.15

Recap (Every Tuesday)Recap (Every Tuesday)Previously in Property APreviously in Property A

• 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

Previously in Property APreviously in Property A• Right to Exclude• Shack v. State Language & Reasoning• Court does not rely on• Traditional property categories like Necessity or Landlord-Tenant Law

• Constitutional theories raised by parties• Bargaining/Agreements between Employers & MWs

Previously in Property APreviously in Property A• 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

Previously in Property APreviously in Property A• 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

PROPERTY A (1/27)I.I. What the Case SaysWhat the Case Says

A. Theory of the Case (DQ1.08-1.09) (Friday)

B. “Rules” (DQ1.10) (Friday)

C.C. ProtectingProtecting Owners (DQ1.11 & 1.13) (Cont’d)Owners (DQ1.11 & 1.13) (Cont’d)

• DQ1.13 (Last Names A-F)DQ1.13 (Last Names A-F)

D. Shack & Jacque (DQ1.12) (Last Names G-M)

II. ApplicationA. DQ1.14 (Last Names A-F)

B. DQ1.15(a) (Last Names G-M)

C. DQ1.15(b) (Last Names O-Y)

SHACK: SHACK: WHAT THE CASE WHAT THE CASE DOESDOES

DQ1.11 & 1.13: Protections of DQ1.11 & 1.13: Protections of O’s InterestsO’s Interests1.13. 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

SHACK: SHACK: WHAT THE CASE WHAT THE CASE DOESDOES

DQ1.11 & 1.13: Protections of DQ1.11 & 1.13: Protections of O’s InterestsO’s Interests1.13. 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?(Last Names A-F)

SHACK: SHACK: WHAT THE CASE DOESWHAT THE CASE DOESDQ1.11 & 1.13: Protections of O’s DQ1.11 & 1.13: Protections of O’s

InterestsInterests1.13. Possible Steps for Trade Association Include …

1.Lobby state or fed’l legislators to pass statute to change or eliminate Shack2.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)

SHACK: SHACK: WHAT THE CASE DOESWHAT THE CASE DOESDQ1.11 & 1.13: Protections of O’s DQ1.11 & 1.13: Protections of O’s

InterestsInterestsCommon 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.

PROPERTY A (1/27)I.I. What the Case SaysWhat the Case Says

A. Theory of the Case (DQ1.08-1.09) (Friday)

B. “Rules” (DQ1.10) (Friday)

C. Protecting Owners (DQ1.11 & 1.13) (Cont’d)

D.D. Shack & Jacque Shack & Jacque (DQ1.12) (Last Names G-M)(DQ1.12) (Last Names G-M)

II. ApplicationA. DQ1.14 (Last Names A-F)

B. DQ1.15(a) (Last Names G-M)

C. DQ1.15(b) (Last Names O-Y)

SHACK: SHACK: WHAT THE CASE WHAT THE CASE DOESDOES

DQ1.12: Shack & JacqueDQ1.12: Shack & JacqueIs Is ShackShack inconsistent with inconsistent with JacqueJacque? ?

Articulate two different characterizations of the cases:

•One highlighting their inconsistency

•One suggesting they really are consistent.

PROPERTY A (1/27)I. What the Case Says

II.II. ApplicationApplicationA.A. DQ1.14 (Last Names A-F)DQ1.14 (Last Names A-F)B. DQ1.15(a) (Last Names G-M)

C. DQ1.15(b) (Last Names O-Y)

APPLYINGAPPLYING SHACK SHACK TO NEW TO NEW SITUATIONSSITUATIONS

DQ1.14: Comparing Facts (The DQ1.14: Comparing Facts (The Press)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: 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

Comparing Facts of a Case Comparing Facts of a Case to New Situationsto New Situations

Any time you are comparing facts of a case to a new situation, you need to:

1. Identify both similarities and differences

• (Examples among you)

Comparing Facts of a Case Comparing Facts of a Case to New Situationsto New Situations

Any time you are comparing facts of a case to a new situation, you need to:

1. Identify both similarities and differences AND

2. 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.

APPLYINGAPPLYING SHACK SHACK TO NEW TO NEW SITUATIONSSITUATIONS

DQ1.14: Comparing Facts (The DQ1.14: Comparing Facts (The Press)Press)1. Compare press & other groups to

whom the NJSCt gives access (Last Names A-F)• Identify Similarities

• Identify Differences

DQ1.14: Comparing Facts (The Press) DQ1.14: Comparing Facts (The Press) (Last Names A-F)(Last Names A-F)

What Do Lists Suggest re How to What Do Lists Suggest re How to Treat Press?Treat Press?Similarities Include …

• Could help MWs• Can provide info (press report in one place info to others)• Serving public interest (w specific textual mandate (1st Amdt))• Specialized training (v. stopping by to see if you need anything)• See Harvest of Shame (CBS 1960)

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

ApplyingApplying Shack: DQ1.15 & Shack: DQ1.15 & Problems 1A-1BProblems 1A-1B

Could do each of these at length, going Could do each of these at length, going through: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 & DF, we’ll do selected Qs to In class & DF, we’ll do selected Qs to highlight particular techniqueshighlight particular techniquesI’ll give you more extensive write-ups of I’ll give you more extensive write-ups of each in future Info Memoeach in future Info Memo

APPLYINGAPPLYING SHACK: Rev Probs SHACK: Rev Probs 1A & 1B1A & 1B

Thursday: Four Panels on-call for 1A & 1B. Look at in light of today’s discussions. A few points to think about (from 1B):•Common Sense in Reading: “To ensure that she never comes into contact with pork products, Alyssa stopped serving them in 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.

PROPERTY A (1/27)I. What the Case Says

II.II. ApplicationApplicationA. DQ1.14 (Last Names A-F)

B.B. DQ1.15(a) (Last Names G-M)DQ1.15(a) (Last Names G-M)C. DQ1.15(b) (Last Names O-Y)

APPLYINGAPPLYING SHACK: DQ1.15a (Last SHACK: DQ1.15a (Last Names A-F): Names A-F):

A worker wishes to have a spouse A worker wishes to have a spouse or long-term partner stay overnight or long-term partner stay overnight

on the premises.on the premises.

In DF Today & Friday:In DF Today & Friday:

Factual Comparison with Factual Comparison with Shack Shack Ds & Ds & PressPress

APPLYINGAPPLYING SHACK: DQ1.15a (Last SHACK: DQ1.15a (Last Names A-F): Names A-F):

A worker wishes to have a spouse A worker wishes to have a spouse or long-term partner stay overnight or long-term partner stay overnight

on the premises.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?