“ RIGHTS ” v. “ INTERESTS ”

“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.




decided?– Owners have the right to exclude all.– Owners should have the right to exclude

all.




decided?– Owners should have the right to exclude

all because …



• Can’t use “right” to argue what legal result 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


DQ5: Are Shack limits sufficient to protect the owners’ interests? (3 Approaches)



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

• 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



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 …


DQ6: Suppose you represent the NJ Apple-Growers Ass’n. Members of the association approach you to express their unhappiness with Shack. What steps can you take?


DQ6: 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



– 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



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

Property Rights w/o Just Compensation– Lobby state or fed’l legislators to pass

statute to change or eliminate Shack

Roles of State Legislatures v. State Supreme Courts

• Cutting-edge common law court decisions like Shack not dangerous; state legislature can always overrule.

Roles of State Legislatures v. State Supreme Courts

• 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.

• 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 War

2. 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 War

2. Road to Watergate

3. Pres. Nixon appoints William Rehnquist to US Supreme Court

“ RIGHTS ” v. “ INTERESTS ”

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