PROPERTY A SLIDES

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PROPERTY A SLIDES

• 1-23-15

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Friday Jan 23 Music Carole King, Tapestry
(1971)

• Deans Fellow Sessions Start Next Week
• Tuesday _at_ 930 am in Room F402
• Friday _at_ 930 am in Room F209 (Here)
• On Course Page by Noon Tomorrow
• Panel Assignments
• Class Assignments for Next Week

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Special Bonus for On-Time Arrivals

• Two DISAPPOINTING REVELATIONS ABOUT CHILDHOOD
  FAVORITES ?

FRIday Pop Culture Moment
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PROPERTY A 1/23

• (1) ALL FROOT LOOPS TASTE THE SAME REGARDLESS OF
  COLOR
• (Same For TRIX FRUITY PEBBLES)

FRIday Pop Culture Moment
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PROPERTY A 1/23

• (2) The Alphabet Song Twinkle Twinkle Little
  Star Have the Same Melody

FRIday Pop Culture Moment
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PROPERTY A (1/23)

• Shack The Roads Not Taken
• Necessity (DQ1.06 contd) (Yesterday)
• Bargaining (DQ1.07)
• Constitutional Law (DQ1.08)
• Context of the Case
• What the Case Says
• Application

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SHACK ROADS NOT TAKENDQ1.07 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 govt at identifying articulating
  their own interests

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SHACK ROADS NOT TAKENDQ1.07 Bargaining
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, wouldnt they insist on
making provisions for them in their employment
contracts? Clearly we could interesting Q is
should we?
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SHACK ROADS NOT TAKENDQ1.07 Bargaining

• Are there reasons we might not want to rely on
  bargaining?
• Are these reasons strong enough to outweigh
  reasons we like bargaining?
• Start with Q1 Ideas from You or from Case

Should we rely on bargaining to protect MWs
interests? Can break down into two Qs
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SHACK ROADS NOT TAKENDQ1.07 Bargaining

• 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

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SHACK ROADS NOT TAKEN DQ1.07 Bargaining

• Importance of Needs of MWs Relative Power of
  Parties
• The 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)

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SHACK ROADS NOT TAKENDQ1.07 Bargaining

• Parties Relative Access to Information
• (See top para. on S5)
• MWs unaware of rights of available
  opportunities/services.
• Can be reached only by positive efforts.

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SHACK ROADS NOT TAKENDQ1.07 Bargaining

• Are these reasons strong enough to outweigh
  reasons we like bargaining?
• NJ SCt obviously thinks so you could disagree.
• Recurring Qs in course re state intervention v.
  private decision-making can use Shack arguments
  re relative need, power, and information.

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PROPERTY A (1/23)

• Shack The Roads Not Taken
• Necessity (DQ1.06 contd) (Yesterday)
• Bargaining (DQ1.07)
• Constitutional Law (DQ1.08)
• Context of the Case
• What the Case Says
• Application

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SHACK ROADS NOT TAKENDQ1.08 Constitutional Law

• Ds US as Amicus make several uncertain
  Constitutional Arguments. Most importantly
• Supremacy Clause Exclusion sanctioned by state
  would interfere w operation of fedl statutes
  providing services to MWs
• 1st Amdt Under Marsh, resident MWs have right to
  access to speech/information
• 6th Amdt MWs have right to access to lawyers.

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SHACK ROADS NOT TAKENDQ1.08 Constitutional Law
Prior students often have incorrectly stated that
Shack turns on the MWs constitutional or
fundamental rights. However, the NJ SCt makes
clear this is wrong by saying that deciding the
case without relying on the state or federal
constitution is more satisfactory.
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SHACK ROADS NOT TAKENDQ1.08 Constitutional Law
(2d para. on S4) A decision in
nonconstitutional terms is more satisfactory, b/c
the interests of MWs are more expansively served
in that way than they would be if they had no
more freedom than these constitutional concepts
could be found to mandate if indeed they apply at
all. Meaning of more expansively served?
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SHACK ROADS NOT TAKEN DQ1.08 Constitutional
Law

• (2d para. on S4) A decision in
  nonconstitutional terms is more satisfactory, b/c
  the interests of MWs are more expansively served
  in that way than they would be if they had no
  more freedom than these constitutional concepts
  could be found to mandate if indeed they apply at
  all.
• Meaning of more expansively served?
• Can protect MWs more broadly while addressing
  same concerns. E.g
• If based in right to counsel, doesnt help w Drs
  or social workers
• If based on Supremacy Clause, limited to fedl
  programs

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SHACK ROADS NOT TAKEN DQ1.08 Constitutional
Law

• (2d para. on S4) A decision in
  nonconstitutional terms is more satisfactory, b/c
  the interests of MWs are more expansively served
  in that way than they would be if they had no
  more freedom than these constitutional concepts
  could be found to mandate if indeed they apply at
  all.
• Hard Constitutional Qs here.
• Implicit Common judicial principle Try not to
  decide Constitutional Qs if don't need to
• Also Note Unlikely subject to USSCt review if
  relying on state law rather than interpreting US
  Constitution

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PROPERTY A (1/23)

• Shack The Roads Not Taken
• Context of the Case 1971
• What the Case Says
• Application

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Context of Shack 1971

• 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

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Context of Shack 1971 Deaths

• Nikita Kruschev Papa Doc Duvalier Thomas Dewey
• Louis Armstrong Jim Morrison Igor Stravinsky
• Coco Chanel Ogden Nash Crew of Soyuz 11

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Context of Shack 1971 Births

• Shannon Doherty Ewan McGregor Winona Ryder
• Lance Armstrong Jeff Gordon Pedro Martinez
  Kristi Yamaguchi
• Mary J Blige Snoop Dogg Ricky Martin Tupac
  Shakur

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Context of Shack 1971 Headlines

• Apollo 14 4th Successful Moon Landing
• USSCt upholds busing of schoolchildren to achieve
  racial balance
• Nixon Administration (Not Todays Republicans)
• In 1970 Gets Clean Air Water Acts Enacted
• Freezes Wages Prices for 90 Days to Fight
  Inflation
• Wall Street approves of this intervention in
  market
• Responds w biggest one-day gain in Dow Jones to
  date, 32.93 pts
• Record volume of 31.7 million shares.
• Amicus Brief in Shack Favoring Workers on
  Anti-Federalist Theory
• Focus Rights of people trying to implement
  federal projects
• Reliance on federal anti-poverty legislation

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Context of Shack 1971

• Near the End of Long Post-depression Period of
  Great Faith/Belief In Govt
• E.g., Deaths of Ex-Presidents (Ford v. Truman/
  Johnson/Eisenhower)
• 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/rhetoric re Os
  Property Rights

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Context of Shack 1971 Seeds of Change

• 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 old enough to vote)
• Perceived fiasco in Vietnam (and evidence that
  both Johnson Nixon administrations misled
  public) lowers confidence in Govt

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Context of Shack 1971 Seeds of Change

• 2. Concerns About War Made Nixons Reelection
  Seem Problematic
• 1971 White House staffers assemble key people to
  deal w election CREEP
• Yields Watergate break-in following spring
• Scandal greatly undermines authority of govt

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Context of Shack 1971 Seeds of Change

• 3. Pres. Nixon appoints William Rehnquist to US
  Supreme Court
• Shack court in 1971 almost certainly sees itself
  as part of tradition of courts protecting rights
  of minority groups disadvantaged folks (cf.
  Shelley Burton)
• Appointment foreshadows change in this
  self-perception of courts (cf. Moose Lodge
  Jackson)

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PROPERTY A (1/23)

• Shack The Roads Not Taken
• Context of the Case
• What the Case Says
• Theory of the Case (DQ1.08-1.09)
• Rules (DQ1.10)
• Protecting Owners (DQ1.11 1.13)
• Shack Jacque (DQ1.12)
• Application

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SHACK WHAT THE CASE DOESDQ1.08-1.09 Theory
of Case

• NJ SCts characterization of legal issue
• Not focused on rights of Ds, but on scope of
  right to exclude
• Under our state law, the ownership of real
  property does not include the right to bar access
  to govtal services to migrant workers (2d para.
  on S4)
• Source of this assertion? I.e., on what
  non-constitutional legal theory does the court
  rest its decision?

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SHACK WHAT THE CASE DOESDQ1.08-1.09 Theory
of Case

• NJ SCts Source of Law
• Court says explicitly not relying on state
  Constitution
• No specific statute cited
• Court rejects reliance on Landlord-Tenant law
• Again, no profit in forcing into conventional
  category
• Note huge impact to give MWs full tenant rights,
  especially in NJ

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SHACK WHAT THE CASE DOESDQ1.08-1.09 Theory
of Case

• NJ SCts Source of Law has to be its own
  interpretation of Common Law of Property
• Tort of trespass general right to exclude
  themselves are judge-made law
• Prominent exceptions like necessity are
  judge-made law
• Thus NJ SCt has power to define nature of right
  to exclude

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SHACK WHAT THE CASE DOESDQ1.08-1.09 Theory
of Case
What does the N.J. Supreme Court mean when it
says, Property rights serve human values.
(Start of Part II)?
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SHACK WHAT THE CASE DOESDQ1.08-1.09 Theory
of Case
Why does the NJ SCt include the (LONG) quote from
Powell on Real Property (bottom of S5)?
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PROPERTY A (1/23)

• Shack The Roads Not Taken
• Context of the Case
• What the Case Says
• Theory of the Case (DQ1.08-1.09)
• Rules (DQ1.10)
• Protecting Owners (DQ1.11 1.13)
• Shack Jacque (DQ1.12)
• Application

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SHACK WHAT THE CASE DOESDQ1.10 Rules
Identify passages in the case that could be used
in future cases as a rule to help decide the
scope of the right to exclude in future similar
cases. Focus on language that might be used to
define circumstances in which the owner cannot
exclude (as opposed to language explaining the
limits that the owners can place on visitors they
are forced to allow).
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SHACK WHAT THE CASE DOES (DQ1.10 Rules)

• Passages that could be used as a rule to help
  decide the scope of the right to exclude in
  future similar cases
• Specific Instructions
• Employer cant exclude fedl state or local
  services or recognized charitable groups
  seeking to assist MWs (3d para. on S6). (This
  would include Wheeler suggestion Under our
  State law the ownership of real property does not
  include the right a bar access to governmental
  services available to MWs (2d para. on S4).
• The MW must be allowed to receive visitors
  of his own choice, so long as there is no
  behavior hurtful to others (3d para. on S6)

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SHACK WHAT THE CASE DOES (DQ1.10 Rules)

• Passages that could be used as a rule to help
  decide the scope of the right to exclude in
  future similar cases Specific Instructions
• Employer may exclude solicitors or peddlers at
  least if the employer's purpose is not to gain a
  commercial advantage for himself. (4th para. on
  S6) (cf. Grapes of Wrath)

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SHACK WHAT THE CASE DOES (DQ1.10 Rules)

• Passages that could be used as a rule to help
  decide the scope of the right to exclude in
  future similar cases General Instructions
  (Overlapping)
• Employer cant isolate the MW in any respect
  significant for workers well-being. (3d para.
  on S6)
• Employer cant deprive the MW of practical
  access to things he needs. (4th para. on S6)

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SHACK WHAT THE CASE DOES (DQ1.10 Rules)

• Passages that could be used as a rule to help
  decide the scope of the right to exclude in
  future similar cases Very General Instructions
• Employer may not deny the worker his privacy
  or interfere with his opportunity to live with
  dignity and to enjoy assns customarily enjoyed
  among our citizens. (5th para. on S6)
• Title to real property cannot include dominion
  over the destiny of persons the owner permits to
  come upon the premises. (3d para. of S4)

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SHACK WHAT THE CASE DOES (DQ1.10 Rules)
Passages that could be used as a rule to help
decide the scope of the right to exclude in
future similar cases Other Passages You
Identified?
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PROPERTY A (1/23)

• Shack The Roads Not Taken
• Context of the Case
• What the Case Says
• Theory of the Case (DQ1.08-1.09)
• Rules (DQ1.10)
• Protecting Owners (DQ1.11 1.13)
• Shack Jacque (DQ1.12)
• Application

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SHACK WHAT THE CASE DOESDQ1.11 1.13
Protections of Os Interests

• Limits on Shacks Right of Access
• O can exclude solicitors/peddlers if
• doesnt 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

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SHACK WHAT THE CASE DOESDQ1.11 1.13
Protections of Os Interests

• Are Limits on Shacks Right of Access Sufficient
  to Protect Os Interests? (Well Get a Few Ideas
  from You)
• O can exclude solicitors/peddlers if
• doesnt 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

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SHACK WHAT THE CASE DOESDQ1.11 1.13
Protections of Os Interests

• Are Limits on Shacks Right of Access Sufficient
  to Protect Os Interests? (Three Standard
  Approaches)
• Identify key interests and discuss whether rules
  adequately address. E.g.,
• Security
• Privacy
• Smooth Operation of Business

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SHACK WHAT THE CASE DOESDQ1.11 1.13
Protections of Os Interests

• Are Limits on Shacks Right of Access Sufficient
  to Protect Os Interests? (Three Standard
  Approaches)
• Identify key interests do rules address?
• Identify alternative/additional rules that might
  work better. E.g.,
• Limit times of access
• Limit of people allowed on land
• Limit frequency of visits

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SHACK WHAT THE CASE DOESDQ1.11 1.13
Protections of Os Interests

• Are Limits on Shacks Right of Access Sufficient
  to Protect Os Interests? (Three Standard
  Approaches)
• Identify key interests do rules address?
• Identify alternative/additional rules
• 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

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SHACK WHAT THE CASE DOESDQ1.11 1.13
Protections of Os Interests

• 1.13. 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