1-25-19 National Florida Day PROPERTY B SLIDES 1-25-19 National Florida Day

More Music to Accompany Shack: Rolling Stones, Sticky Fingers (1971) Lunch Logistics: Meet on Bricks after 11:00 class Bring lunch or purchase after checking in with me Notify other student attending or my assistant Tina if going to miss or be late We’ll end up in Law Room in Shalala Center Check online schedule to add or change your date Lunch Today Meet on Bricks @ 12:25 Bailkin * Blekht * Crawford Rothstein * Shayne

LOGISTICS: DFs & Attendance Sheets Dean’s Fellow Sessions MWF Starting Monday Mon = Brendan (After Class Here) Wed = Lauren (After Class TBA) Fri = Alternating (After Class TBA) Three Problems Every Two Weeks: Details Posted on Course Page Attendance Sheets: If you arrive after attendance sheet passes, check in with me at break to ensure you get marked “Late” rather than “Out”

LOGISTICS: Monday: Panels Begin Panels = National Parks Listed on Course Page Despite Gov’t Shutdown I expect continued high level of preparation Transition: Alphabetical Division Today & Monday Slides: Alerts () & Headers (Be Ready to Go!!) EVERGLADES: EGRET IN MANGROVE SWAMP

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

SHACK: WHAT THE CASE DOES DQ1.11 & 1.13: Protections of O’s Interests Are Limits on Shack’s Right of Access Sufficient to Protect O’s Interests? (Got Some Ideas Wednesday) 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 Are Limits on Shack’s Right of Access Sufficient to Protect O’s Interests? (Three Standard Approaches) Identify key interests and discuss whether rules adequately address. E.g., Security Privacy Smooth Operation of Business

SHACK: WHAT THE CASE DOES DQ1.11 & 1.13: Protections of O’s Interests Are Limits on Shack’s Right of Access Sufficient to Protect O’s Interests? (Three Standard Approaches) Identify key interests; do rules address? Identify alternative/additional rules that might better protect O’s interests E.g., Limit times of access Limit # of people allowed on land at one time Limit frequency of visits NOTE: These all probably are OK under Shack if reasonable

SHACK: WHAT THE CASE DOES DQ1.11 & 1.13: Protections of O’s Interests Are Limits on Shack’s Right of Access Sufficient to Protect O’s 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 …

SHACK: WHAT THE CASE DOES DQ1.11 & 1.13: Protections of O’s Interests Nice Points from 2017/19 re Lack of Specificity: Hoover: Os Would Like More Specific Authorizations. E.g., Time Limits # of Visitors at at One Time Recognition of O’s Interests in Privacy, Security, Business Operation Allows Court to Permit Appropriate Restrictions Further Examples of O’s Concerns 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. 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 state (OK if factories; hard for apple-growers).

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

SHACK: WHAT THE CASE DOES DQ1.12: Shack & Jacque 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 (last class) E.g., DQ1.14: The Press (Last Names M-P) Application to New Situations Generally (Intro to XQII) DQ1.15: Extension to New Situations Review Problems

APPLYING SHACK TO NEW SITUATIONS DQ1.14: Comparing Facts (The Press) Compare press & other groups to whom the NJSCt gives access (Last Names M-P) Identify Similarities Identify Differences What Do Lists Suggest About Best Result?

I’ll Add Slide with Lists DQ1.14: Comparing Facts (The Press) (Last Names M-P) What Do Lists Suggest re How to Treat Press? I’ll Add Slide with Lists

DQ1.14: Comparing Facts (The Press) (Last Names M-P) What Do Lists Suggest re How to Treat Press? Similarities Include … Differences Include … Not helping specific people Not necessarily helping when present Less need for face-to-face 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 Could help MWs (maybe much more than Shack Ds Can provide info (indirectly: 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) (Images on Intro slide from 1/23)

Application of Shack Application to New Situations Fact Comparisons Application to New Situations Generally/Intro to XQII Review Problem 1G 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-1J 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) Monday Last Names C-E:   (Arguments for Landowner) Last Names F-K:  (Arguments for MWs/LON) Review Problem 1B (S8) Wednesday BADLANDS: (Arguments for Landowner) EVERGLADES:   (Arguments for MWs/Pizza) Prepare in Light of Today’s Discussions

Overall Guide: Do the Challenge (My Question) APPLYING SHACK A few points to think about (from Rev Prob 1G = 2015 Problem IID): Overall Guide: Do the Challenge (My Question) Stay within Scope of Shack & Know the Case (NJSCt Didn’t Require 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” or Gov’t Workers) Address Ways Problem is Different Than What You’ve Seen (Animal!!) Be Careful of Strong Gut Reactions (Your Beloved Dog v. Junk Yard Dogs)