1-30-17 National Croissant Day & National Bubble Wrap Appreciation Day PROPERTY A SLIDES 1-30-17 National Croissant Day & National Bubble Wrap Appreciation Day

More Music to Accompany Shack: Rolling Stones, Sticky Fingers (1971) Dean’s Fellow Starting Tomorrow I’ll Post More Specific Coverage Info after Class Today Tuesday 9:30-10:20 a.m. (Room E265) (New Room) Thursday 9:30-10:20 a.m. (Room F309 - February Only) Lunch Today Meet on Bricks @ 11:55 Braun * Gray * Hollis Karian * McGlashen Mermell * Strong

LOGISTICS: Thursday: Panels Begin Panels Listed on Course Page (National Parks) I expect high level of preparation Transition: Alphabetical Division Today & Tomorrow Slides: Alerts () & Headers (Be Ready to Go!!) Noise In/Noise Out EVERGLADES: EGRET IN MANGROVE SWAMP

MONday Pop Culture Moment Mary Tyler Moore (1936-2017) A Brief Tribute

Recap (Every Monday) Previously 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 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 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 in announcing 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 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: Description of Tedesco as “Employer” (rather than “Farmer” or “Landowner”) suggests that employment relationship may be basis of Shack limits.

SHACK: What the Case Says Theory of the Case (DQ1.08-1.09) “Rules” (DQ1.10) Protecting Owners (DQ1.11 & 1.13) (cont’d) DQ1.13 = Last Names F-L Shack & Jacque (DQ1.12)

SHACK: WHAT THE CASE DOES DQ1.11 & 1.13: Protections of O’s Interests Limits on Shack’s Right of Access (Recap): As noted above, 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

SHACK: WHAT THE CASE DOES DQ1.11 & 1.13: Protections of O’s Interests Nice Contrasting Points from Last Time re Lack of Specificity: Chinchilla: Owners Would Like More Specific Authorizations. E.g., Time Limits # of Visitors at at One Time Mermell: Recognition of O’s Interests in Privacy, Security, Business Operation Allows Court to Permit Appropriate Restrictions Further Examples of O’s Concerns (per Monteiro) Liability Concerns  Look at Insurance Trade Secrets  Limits on Location

SHACK: WHAT THE CASE DOES DQ1.11 & 1.13: Protections of O’s Interests 1.13. You represent the NJ Apple-Growers Assn. Members approach you to express their unhappiness with Shack. (Last Names F-L) 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. Because tied to invitation of MWs on land Even less likely in 1971 What Other Steps Can You Take?

SHACK: WHAT THE CASE DOES DQ1.11 & 1.13: Protections of O’s Interests 1.13. Possible Steps for Trade Association Include … Lobby state or fed’l legislators to pass statute to change or eliminate Shack 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 = one actual response) Explore leaving jurisd. (hard for apple-growers)

SHACK: WHAT THE CASE DOES DQ1.11 & 1.13: Protections of O’s Interests Common 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.

SHACK: 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) Last Names M-N

SHACK: WHAT THE CASE DOES DQ1.12: Shack & Jacque (Last Names M-N) Is Shack inconsistent with Jacque? Articulate two different characterizations of the cases: One highlighting their inconsistency One suggesting they really are consistent. Examples of Each?

Application of Shack Fact Comparisons Generally E.g., DQ1.14: The Press (Last Names M-N) Application to New Situations Generally (Intro to XQII) DQ1.15: Extension to New Situations Review Problems

Comparing Facts of a Case to New Situations Any time you are comparing facts of a case to a new situation, you need to: Identify both similarities and differences (Examples among you)

Comparing Facts of a Case to New Situations Any time you are comparing facts of a case to a new situation, you need to: Identify both similarities and differences AND 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.

APPLYING SHACK TO NEW SITUATIONS DQ1.14: Comparing Facts (The 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

APPLYING SHACK TO NEW SITUATIONS DQ1.14: Comparing Facts (The Press) Compare press & other groups to whom the NJSCt gives access (Last Names M-N) Identify Similarities Identify Differences

DQ1.14: Comparing Facts (The Press) (Last Names M-N) What Do Lists Suggest re How to Treat Press? Similarities Include … Differences 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) 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

Application of Shack Application to New Situations Fact Comparisons Application to New Situations Generally/Intro to XQII 2015 Problem IIB DQ1.15: Extension to New Situations Review Problems

Applying Shack: DQ1.15(a)/(b) & Rev. Problems 1A/1B Could do each of these at length, going through: Application of Key Language Factual Comparisons to Shack Ds & Press Relevance of Key Policies Like Protecting O’s Interests [Possible Alternatives to Allowing Entry] Overall Best Result In class & DF, we’ll do selected Qs to highlight particular techniques I’ll give you more extensive write-ups of each in Info Memo for Chapter 1

FINAL EXAM QUESTION 2 SHORT ANSWERS (Choose 3 of 4) E.g., Review Problems 1A-1G Tightly Focused Problems (Generally One Subject) Time Allotment for Each: ~5 Minutes to Read/Outline ~20 Minutes to Write

FINAL EXAM QUESTION 2 SHORT ANSWERS (Choose 3 of 4) Relevant Skills Reading Carefully/Following Directions (Isolation) Strong Understanding of Relevant Authority Identifying Best Arguments for Each Party (Won’t Be Clear Winner) Recognizing Significance of Facts Provided in Problem (& Possible Missing Facts)

APPLYING SHACK: Rev Probs 1A & 1B Review Problem 1A (S8) Tomorrow Last Names S-Z:   (Arguments for Landowner) Last Names O-R:  (Arguments for MWs/LON) Review Problem 1B (S8) Thursday EVERGLADES: (Arguments for Landowner) OLYMPIC:   (Arguments for MWs/Pizza) Prepare in Light of Today’s Discussions

APPLYING SHACK: Rev Probs 1A & 1B A few points to think about (from 2015 Problem IID): Overall Guide: Do the Challenge (My Question) Stay within Scope of Shack & Know the Case (Don’t Need Necessity or Fundamental Right) Common Sense in Reading (Point of Problem = Very Good Dog) Don’t Look for Easy Ways Out (E.g., Allergies) Choose Language that One Side Might Actually Rely On (Not “Dominion Over Destiny” or “Privacy”) Address Ways Problem is Different Than What You’ve Seen (Animal!!) Be Careful of Strong Gut Reactions (Your Beloved Dog v. Junk Yard Dogs)