PROPERTY A SLIDES 1-23-17 National Pie Day

More Music to Accompany Jacque: Savage Garden (Self-Titled 1997) Lunch Sign-Up Sheet Will Circulate Next Two Classes Dates on Mon/Tues/Fri Meet on Bricks Mon 11:55 Tue/Fri after Your 11:00 class We’ll Go to Food Court or SAC Law Room You Can Bring Food or Buy It There/On the Way I’ll Post Schedule & Remind You in Class That Day

POP CULTURE MOMENT Logistics/Info Memo #1 Jacque Cont’d & DQ1.03-1.04 PROPERTY A (1/23/17) POP CULTURE MOMENT Logistics/Info Memo #1 Jacque Cont’d & DQ1.03-1.04

Special Bonus for On-Time Arrivals Two DISAPPOINTING REVELATIONS ABOUT CHILDHOOD FAVORITES  MONday Pop Culture Moment

PROPERTY A: 1/23 MONday Pop Culture Moment (1) ALL FROOT LOOPS TASTE THE SAME REGARDLESS OF COLOR (Same For TRIX & FRUITY PEBBLES) MONday Pop Culture Moment

Monday Pop Culture Moment PROPERTY A: 1/23 (2) The Alphabet Song & Twinkle Twinkle Little Star Have the Same Melody Monday Pop Culture Moment

Pop Culture Moment Logistics/Info Memo #1 Jacque Cont’d & DQ1.03-1.04 PROPERTY A (1/23/17) Pop Culture Moment Logistics/Info Memo #1 Jacque Cont’d & DQ1.03-1.04

LOGISTICS: Course Mechanics & Requirements Details in Info Memo #1; E-Mail if Qs Daily Assignments Short Term: On Face of Course Page, Updated after Each Class Longer Term: Assignment Sheet Posted on Course Page This Afternoon (Should be self-explanatory) Office Hours: Posted on Course Page No Apptmt Needed: First Come, First Served Or make separate appointment by e-mail Casebook: Prior Classes Have Liked

LOGISTICS: Course Mechanics & Requirements Guidelines for Making Classroom Effective Trying to get through lot of material  sometimes I need to cut people off & can’t take all Qs Large Room (w Q’able Acoustics) Means Special Need for Courtesy: Avoid Distractions in the Room (My ADD & Yours)

LOGISTICS: Course Mechanics & Requirements Guidelines for Making Classroom Effective Avoid Distractions in the Room: Entry & Exit On time at beginning & after break Stay in seat until break absent emergency If late or have to leave & return or have to leave early, minimize disrupt; enter & sit in back At end, wait till I’m done to start to pack up. (Good source of cranky!)

LOGISTICS: Course Mechanics & Requirements Guidelines for Making Classroom Effective Avoid Distractions in the Room: While We Work Please don’t talk to each other (pass notes). Don’t wave hands while I’m working w someone else; wait till I ask for volunteers. No games, movies, graphic displays on screens.

LOGISTICS: Course Mechanics & Requirements Guidelines for Making Classroom Effective Importance of Discussion Questions Heart of class discussion i) Give you sense of what I care about & will test on ii) Worth careful prep Rarely yes/no answers Try to be Specific iii) You’ll benefit from reviewing right before class

LOGISTICS: Course Mechanics & Requirements Guidelines for Making Classroom Effective Importance of Discussion Questions Heart of class discussion I will handle DQs in different ways i) Most: I will call on folks on relevant panel ii) Some: I’ll lecture through iii) Some: I’ll skip in class and write-up later

LOGISTICS: Course Mechanics & Requirements Guidelines for Making Classroom Effective Panel System Starting Up (See Assignment Sheet) This week all on call Parts of Next Mon/Tues: some alphabetical assignments Starting Thurs Feb 2, most material assigned to panels Thursday We’ll Set Panels

LOGISTICS: Panel Selection (Thursday at Break) I’ll ask for lists indicating who (if anyone) you want me to put on same panel with you. Can do nothing & I will randomly assign you Can give me groups of two or more students (up to about 15) & I will assemble into larger groups as needed Check with people first, then hand in one list per group Not commitment, just an opportunity to work with people b/c responsible for same assignments

LOGISTICS: Course Mechanics & Requirements Guidelines for Making Classroom Effective Panel System: Essentially a Contract For material for which you aren’t on-call: You have flex to decide when to read I won’t monitor or cold call BUT you’re ultimately responsible When on-call: Carefully prep assigned material to help class go smoothly Professional Responsibility to be prepared; others rely on you

LOGISTICS: Course Mechanics & Requirements Guidelines for Making Classroom Effective Panel System: Essentially a Contract When I Call on You, “Being Prepared” Means: You are paying attention (slides will tell you when your panel is at bat) You can respond without scrolling or fumbling through your notes (keep any notes you would like to use easily accessible; print out if need be) You can discuss the relevant points (as opposed to reciting a fully scripted answer)

Pop Culture Moment Logistics/Info Memo #1 Jacque Cont’d & DQ1.03-1.04 PROPERTY A (1/23/17) Pop Culture Moment Logistics/Info Memo #1 Jacque Cont’d & DQ1.03-1.04

Jacque: Background (Recap) Facts: D had to deliver mobile home Easiest way across Ps’ land Ps repeatedly denied permission to cross land D crosses anyway D pays small fine to county for criminal trespass

Jacque: Background Procedure: P brings tort suit: Intentional Trespass Note “Trespass” can be both tort & crime Here Ds paid fine for criminal action brought by govt. Still can be liable for civil damages in tort.

Jacque: Background (Recap) Procedure: P brings tort suit: Intentional Trespass Jury awards damages: Compensatory = Nominal (= finding of none) Punitives = $100K

Jacque: Background P wins Intentional Trespass Claim; Jury Awards: Nominal Compensatory Damages $100K Punitives Lower courts don’t allow punitives Follow Wisconsin tort precedents Ps can’t get punitives if no compensatory damages (“No Pain, No Gain” Rule)

Jacque: Background Wisc SCt Reverses P wins Intentional Trespass Claim; Jury Awards Nominal Compensatory & $100K Punitives Lower courts don’t allow punitives under “No Pain, No Gain” Rule Wisc SCt Reverses Holds punitives without compensatory damages allowed for Intentional Trespass. (Limits “No Pain, No Gain” Rule)

Logic of Jacque: Scope of Existing Precedent WiscSCt Stated General “No Pain No Gain” Rule in Barnard (1917) BUT top P56: “Whether nominal damages can support a punitive damage award in the case of an intentional trespass has never been squarely addressed by this court.” What does “squarely” mean here? Why isn’t issue “squarely” addressed by Barnard?

Scope of Rules: Broadening & Narrowing Holdings Wood Grain Headers Generally Old Rule from Prior Case but New Situation: Should You Extend Rule (Broadening)? Should You Create Exception (Narrowing)?

Scope of Rules: Broadening & Narrowing Holdings Old Rule from Prior Case but New Situation: Should You Extend Rule (Broadening)? Never Date a Violinist  Never Date a Musician Should You Create Exception (Narrowing)?

Scope of Rules: Broadening & Narrowing Holdings Old Rule from Prior Case but New Situation: Should You Extend Rule (Broadening)? Should You Create Exception (Narrowing)? Never Date a Violinist  Never Date a Violinist who is an Only Child

Logic of Jacque: Approach w/o Binding Precedent (Generally) What to do where no binding prec & have to decide to extend rule to new situation or create exception (looks like latter here)? a. Look to non-binding precedent b. Look to policy

Logic of Jacque: Approach w/o Binding Precedent Existing Related Precedent: McWilliams (1854) 1854 = Very early Wisc case (becomes state in 1848) Establishes availability of punitive damages in appropriate cases Quotes older English case: Uses int’l trespass as example of reason for punitives. Quote refers to situation w no compensatory damages Why isn’t this part of McWilliams binding?

Determining Scope of Rules: Looking to Underlying Policy Does underlying rationale apply to new situation? Very common approach to determining scope of existing rule. So need to know rationales behind rules (important exam thing)

Logic of Jacque: Approach w/o Binding Precedent Policy Behind “No Pain, No Gain” Stated in Last Sentence in 2d to last para on P54 (Also note “bare assertion” in prior sentence) Court spends rest of opinion arguing this rationale doesn’t apply to int’l trespass List of non-monetizable harms from last class  Wisc has reasons to deter even w/o compensatory dmgs, Small Criminal fine insufficient to deter  so need punitives (legal v. factual support for punitives)

Logic of Jacque: DQ1.03 (Felix Cohen Quote) “[T]hat is property to which the following label can be attached: To the world: Keep off X unless you have my permission, which I may grant or withhold. Signed: Private Citizen Endorsed: The State” Means What?

Logic of Jacque: DQ1.03 (Felix Cohen Quote) “[T]hat is property to which the following label can be attached: To the world: Keep off X unless you have my permission, which I may grant or withhold. Signed: Private Citizen Endorsed: The State” How Fits Into Court’s Analysis?

Qs on Court’s Reasoning? Logic of Jacque Qs on Court’s Reasoning?

Players in System Have Choices Most states don’t allow punitive dmgs for int’l trespass if no compensatory dmgs. Wisc. S.Ct. had a choice: (i) follow majority of states; or (ii) allow punitives, which it did.

Players in System Have Choices Most states don’t allow punitive dmgs for int’l trespass if no compensatory dmgs. Wisc. S.Ct. rejected majority rule & allowed punitives Wisc. legislature then has choice (See DQ 1.04): (i) allow Wisc SCt decision to stand; or (ii) change law back to majority rule; or (iii) change law to something different

Arguments Vary With Audience: Players in System Have Choices  Important Skill: Arguments About Which Rule is Best Arguments Vary With Audience: Precedent Arguments (Prior Authority) Gen’ly for Court Policy Arguments (What’s Best for Society) for Both Courts & Legislature Need to Be Aware of Institutional Limits/Strengths: If arguing for detailed regulations or changes in criminal penalties, only Legislature can do.

PUNITIVE DAMAGES: CHOICES & POLICY DQ1.04: How Persuasive is… (a) Landowners should not receive any sort of damages when they have not been harmed in a tangible way. (This is stated rationale for “no pain, no gain” rule.) Already have seen court’s counter-argument that there might be important non-tangible injuries Other reasons besides “no harm” that state might not want to award punitives? What are the costs of making punitives available?

PUNITIVE DAMAGES: CHOICES & POLICY DQ1.04: How Persuasive is… (a) Landowners should not receive any sort of damages when they have not been harmed in a tangible way. Other reasons state might not want to award punitives? Fear of too many (frivolous) lawsuits Need to prove intent; need to prove what $$$ amount needed for deterrence punitive (high administrative costs) Wisc SCt clearly thinks deterring non-tangible harms is worth risking these costs. Legislature could disagree.

PUNITIVE DAMAGES: CHOICES & POLICY DQ1.04: How Persuasive is… (b) In Jacque, the cost to the Ds of taking the road around the Ps’ land almost certainly was much greater than the harm to the Ps’ land caused by the unauthorized crossing. It would thus be cost- efficient for society to allow the truck to cross without subjecting the truckers to punitive damages so long as they pay for any actual damage they cause. (“Efficient Trespass”: Parallel to idea of Efficient Breach from Contracts)

PUNITIVE DAMAGES: CHOICES & POLICY DQ1.04: How Persuasive is… (b) An “Efficient Trespass” Argument Ct must believe that the benefits of a strong right to exclude (preventing intangible harms) outweighs any efficiency gains from allowing trespass. Major difference between rights we call “property” and most rights arising out of K: For “Property Rights” Compensatory Damages Usually Seen as Insufficient Can Get Injunctions/Can Force People to Undo Xactions

PUNITIVE DAMAGES: CHOICES & POLICY DQ1.04: How Persuasive is… (c) As Note 3 (P57) indicates, most states do not award punitive damages for intentional trespass if there were no actual damages awarded. Wisconsin should follow the majority rule. How persuasive is following majority (v. minority) rule?

PUNITIVE DAMAGES: CHOICES & POLICY DQ1.04: How Persuasive is… (c) Wisconsin should follow the majority rule. Not especially persuasive. Non-binding precedent most useful as example of good reasoning/policy #s alone not especially helpful unless overwhelming: “Every common law jurisd to consider the issue has said X except California & Tasmania” (both presumptively very strange)

PUNITIVE DAMAGES: CHOICES & POLICY DQ1.04: How Persuasive is… (c) Wisconsin should follow the majority rule. State more likely to follow another state it views as similar in relevant ways: Case here re private farmland in rural Wisc (so arguably like Iowa, Minn, Upper Peninsula of Mich) v. Connecticut or NJ (very urban/suburban) v. Hawaii or Nevada (lot of govt land) Sometimes “leading” states more persuasive

PUNITIVE DAMAGES: CHOICES & POLICY DQ1.04: How Persuasive is… (c) Wisconsin should follow the majority rule. For our purposes, which rule is “majority” less important than being aware that there is more than one possible rule on this issue Need to keep track of places in course this is true (many). E.g., rules re access to migrant workers NJ = Shack (a common law rule) FL = statute I’ll explain later how to handle on test

PUNITIVE DAMAGES: CHOICES & POLICY DQ1.04: How Persuasive is… (d) Wisconsin has following statute making trespass a crime: Any person who trespasses on any privately-owned lands after being forbidden so to trespass by the owner shall be guilty of a misdemeanor and punished by a fine… . In cases like Jacque, the possibility of criminal charges is a sufficient deterrent to intentional trespass. Court doesn’t think $30 fine is sufficient deterrent Empirical Q: Legislature could believe/show Court is wrong Useful to remember jury thought amount needed to deter this D was $100K