PROPERTY A SLIDES

Tues Jan 27 Music: Rolling Stones, Sticky Fingers (1971) Lunch Today (Meet on 11:55): Aleman; Crosby; Foote; Ghomeshi; Kalil; Patel; Stone First DF Session Today 9:30-10:20 Room F402 General Intro & Additional Work with DQ1.15

Recap (Every Tuesday) 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 to announce 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 that description of Tedesco as “Employer” (rather than “Farmer” or “Landowner”) suggests that employment relationship is basis of Shack limits

PROPERTY A (1/27) I.What the Case Says A.Theory of the Case (DQ ) (Friday) B.“Rules” (DQ1.10) (Friday) C.ProtectingOwners (DQ1.11 & 1.13) (Cont’d) C.Protecting Owners (DQ1.11 & 1.13) (Cont’d) DQ1.13 (Last Names A-F)DQ1.13 (Last Names A-F) D.Shack & Jacque (DQ1.12) (Last Names G-M) II.Application A.DQ1.14 (Last Names A-F) B.DQ1.15(a) (Last Names G-M) C.DQ1.15(b) (Last Names O-Y)

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

SHACK: WHAT THE CASE DOES DQ1.11 & 1.13: Protections of O’s Interests 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 (& even less likely in 1971) What Other Steps Can You Take? (Last Names A-F)

SHACK: WHAT THE CASE DOES DQ1.11 & 1.13: Protections of O’s Interests Possible Steps for Trade Association Include … 1.Lobby state or fed’l legislators to pass statute to change or eliminate Shack 2.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; a real 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.

PROPERTY A (1/27) I.What the Case Says A.Theory of the Case (DQ ) (Friday) B.“Rules” (DQ1.10) (Friday) C.Protecting Owners (DQ1.11 & 1.13) (Cont’d) D.Shack & Jacque (DQ1.12) (Last Names G-M) II.Application A.DQ1.14 (Last Names A-F) B.DQ1.15(a) (Last Names G-M) C.DQ1.15(b) (Last Names O-Y)

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.

PROPERTY A (1/27) I.What the Case Says II.Application A.DQ1.14 (Last Names A-F) B.DQ1.15(a) (Last Names G-M) C.DQ1.15(b) (Last Names O-Y)

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

Comparing Facts of a Case to New Situations Any time you are comparing facts of a case to a new situation, you need to: 1.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: 1.Identify both similarities and differences AND 2.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) 1.Compare press & other groups to whom the NJSCt gives access (Last Names A-F) Identify Similarities Identify Differences

DQ1.14: Comparing Facts (The Press) (Last Names A-F) What Do Lists Suggest re How to Treat Press? Similarities Include … Could help MWs Can provide info (press report in one place  info to others) Serving public interest (w specific textual mandate (1 st Amdt)) Specialized training (v. stopping by to see if you need anything) See Harvest of Shame (CBS 1960) Differences Include … 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

Applying Shack: DQ1.15 & 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 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 future Info Memo

APPLYING SHACK: Rev Probs 1A & 1B Thursday: Four Panels on-call for 1A & 1B. Look at in light of today’s discussions. A few points to think about (from 1B) : Common Sense in Reading: “To ensure that she never comes into contact with pork products, Alyssa stopped serving them in her dining hall and forbade all employees from bringing food from outside the farm (drinks are allowed).” Them = pork products not MWs. Don’t Look for Easy Ways Out: E.g., Don’t rest whole answer on MWs with medical or religious need for pork or pizza ( not very likely ). Look for Ways That Problem is Different Than What You’ve Seen Before: E.g., O’s primary interest is probably not privacy or security, b/c she allowed pizza delivery in past, so focus on religious interest.

PROPERTY A (1/27) I.What the Case Says II.Application A.DQ1.14 (Last Names A-F) B.DQ1.15(a) (Last Names G-M) C.DQ1.15(b) (Last Names O-Y)

APPLYING SHACK: DQ1.15a (Last Names A-F): A worker wishes to have a spouse or long- term partner stay overnight on the premises. In DF Today & Friday: Factual Comparison with Shack Ds & Press

APPLYING SHACK: DQ1.15a (Last Names A-F): A worker wishes to have a spouse or long- term partner stay overnight on the premises. MW “must be allowed to receive visitors … of his own choice, so long as there is no behavior hurtful to others.” Possible harm to others? How Serious?