Property Outline Fall 2011

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Transcript of Property Outline Fall 2011

Property Outline Fall 2011 Painter-Thorne Got 96 in class Follows Book INTRODUCTION What is property? Bundle of rights: Right to use Right to exclude Right to transfer o These rights are not unitary and maybe shared due to social effects. o They are about human values. Interdependence of Property Rights: common law entitlements & ways in which limited by rights of others Property Theories: 1. First possession and labor theory- (John Locke) You have put the effort into the land therefore it is yours, but some must be saved for others Today looks at the outcomes of giving the rights opposed to who simply put in the labor (greater good). 2. Positivism/Sovereign says- (Bentham) sovereign defines the property rights, sovereign gives and the sovereign can take away, law and property go together. 3. Personality Theory- (Hegel) Property defines who we are and we need it to be complete. 4. Unitary Rule- You and only you have control over the property, tries to deny outside forces. 5. Social Relations Theory- we may own land, but must understand our rights are affected by those around us. 6. Economic Theory- Tragedy of the commons Moore v. Regents- answers the question of if a person has the right to their cells when they are harvested against their knowledge/will and used to make a profit. Yes, however conversion may not be claimed because the use of his cells are for the greater good. Court applied labor theory to the development of cell line, social relations theory for medical advancements, and sovereign theory for the state statute. Giant-sized values property rights affect: Freedom, equality, democracy, distributive justice ($$$)

CHAPTER 1: TRESPASS: RESOLVING CONFLICTS BETWEEN THE RIGHT TO EXCLUDE AND THE RIGHT OF ACCESS 1.1 Trespass Trespass: a. elements: i. unprivileged 1. lacking necessity to access property (or whether open to pubic access) a. private or open to public? 2. lacking consent (whether owner has opened ones property to visitor) 1

ii. iii.

volitional physical 1. if not physical, could be a nuisance iv. on anothers property v. added element for criminal trespass after being forbidden b. remedies: i. fair market value (FMV) (or similarly meaningful compensation): 1. loss of market value, or 2. actual cost of lost property (how much raw material cost?), or 3. cost of restoration ii. punitive damages iii. injunctive relief likely success on merits (or serious questions on merits) & possibility of irreparable injury (or balance of harms in favor)

1.1.1 Public Policy Limits on the Right to Exclude Limitations on Right to Exclude (Privilege to Enter): owners do not have despotic dominion over property so as to have absolute right to exclude I. Private Necessity (of the particular person & benefits that flow from it) a. State v. Shack owner employs & houses migrant workers on his property (who have medical/legal concerns), doctor/lawyer enter onto farm pursuant to Congressional mandate to help, owner says can only have access in his presence, they refuse & owner sues i. criminal trespass statute, common law trespass, Employment Opportunity Act, Bill of Rights (cannot infringe upon s First Amd rights to inform migrant workers of their rights) ii. s invaded no common law possessory right of s living on land 1. right to exclude is limited by duty not to use ones property in ways that harm others rights (public or private necessity) a. Policy Rationale: property ownership cannot include dominion over destiny of persons permitted on premises + personal well-being is highest concern within legal system disadvantaged occupants may be so dire that law not recognize their contracting away of rights to health/welfare/dignity 2. Policy Rationale: deferred to federal legislation & interpreted its protections broadly b/c cannot reasonably expect Congress to have been so specific as to explicitly protect each individuals rights Supremacy of federal statutes (that are also inherently products of compromise) a. in line w/ Constitutional Avoidance doctrine by reasoning around the Constitutional question by altering state law interpretation II. Consent (Actual or Inferred) a. Desnick v. American Broadcasting consent procured by fraud committed by news program secretly intending to write an expos i. fraud has no legal significance here b/c no evidence of interference w/ property ownership or possession or invasion of anyones private space/private life ii. property held open to general public subject to greater scope of inferred consent (as opposed to ones consent to private property) & cannot split up where there is & is not consent per individual entrant 1.1.2 Right of Reasonable Access to Property Open to the Public 2

A. Uston v. Resorts International Hotel Inc. excluded from casino b/c well-known for Blackjack card-counting system a. RULE: once establishment have thrown premises open to public, cannot assert absolute right to exclude people unreasonably (unless persons actions endanger other customers or act disorderly) b. counting cards had not been expressly forbidden by this casino i. a right cannot exist in name only, so cannot engage in practices that accomplish same as discrimination c. though considerable historical evidence in old common law, that was in fact a right of reasonable access for public purposes 1.2 Public Accommodations Statues 1.2.1 The Antidiscrimination Principle Federal Law- Race, Color, Religion, National Origin I. Civil Rights Act of 1964 -public areas iii. segregation iv. 1. hypo: Latino family that does not speak English refused service b/c restaurant didnt want do serve ppl who dont speak English language not covered by this statute a. current dispute over whether Latino counts as a race & what if family looks white but just does not speak English b. counterpoint: language can be a proxy for national origin discrimination v. enjoyment of goods, services, facilities, privilegesof any place of complaint has to say more to establish that place alleged in complaint is in fact place of public accommodation 1. shall not apply to a private club 2. if its operations affect commerce, or if discrimination or segregation by it is supported by State action II. Civil Rights Act of 1866 discrimination, originally only state-based a. 1981(a): the same rightto make and enforce contractsas is enjoyed by white citizens b. 1982(a): the same rightas enjoyed by white citizensto inherit, purchase, lease, sell, hold, and convey real and personal property i. Germans, blacks, Irish, etc as separate races State Laws- Sex, Sexual Orientation, Age, Marital Status III. a. sue under statutes b/c more concrete than vague old common law rules b. address question of whether statute coverage is exhaustive or suggestive? c. modern majority rule for amusement proprietors: no duty to provide reasonable access & consent to remain may be withheld, as long as consistent w/ state & federal civil rights laws IV. Discrimination Against Person with Disabilities a. Americans with Disabilities Act of 1990 1.3 Free Speech Rights of Access to Private Property Free speech rights are constitutionally protected against state action but not against private action Company Towns- Marsh v. Alabama a. Where a private corporation takes over all municipal functions and substitutes for the government, First Amendment freedoms cannot be denied to expression in a customary manner on a towns sidewalks and streets, even though the town is privately owned. 3

I. II.


b. The more an owner, for his advantage, opens up his property for the use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. c. Balance between freedom to speak and private property rights. Shopping Centers a. Federal Constitution (minimum level of protection) i. First Amendment protects picketing at a shopping center where it directly relates to the use to which the shopping center was being put and where there were no other reasonable opportunities to convey the message. Logan Valley Plaza ii. A privately owned shopping center may generally prohibit speech on its property when it is unrelated to the shopping centers operations. Lloyd v. Tanner iii. The shopping center had not been dedicated to public use. iv. First Amendment applies to state action, not actions by owners of private property used non-discriminatorily for private purposes only. v. May allow few wealthy property owners to stifle speech of the poor masses b. State Constitutions (may provide more rights than federal constitution) i. Majority: No free speech rights in privately owned shopping centers. ii. Minority: Regional and community shopping centers must permit the reasonable exercise of free speech and assembly by individuals, subject to reasonable restrictions. N.J. Coalition v. JMB Realty; PruneYard iii. Shopping malls have substantially displaced downtown business districts as centers of commercial and social activity (previously public speakers would be downtown) c. Test: to determine extent of free speech rights on private property, consider: i. Normal use of the property ii. Extent and nature of invitation to the public iii. Purpose of the expressive activity in relation to the private and public use of the property iv. General balancing of expressional rights and private property rights v. Granting rights of access for free speech purposes does not amount to a takingof the right of the owner PruneYard vi. Consider the landowners right not to speak (not decided in PruneYard) vii. Free speech access is neither required by the First Amendment (Lloyd) nor prohibited by the Fourteenth Amendment (PruneYard). d. National Labor Relations Act: May allow unions access to private property to organize or picket unless there is reasonably effective alternative means of communicating with employees. 1.4 Beach Access