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Right to Exclude: Property Open to the Public 1.Background Rules 2.Places of Public Amusement (Brooks/Uston) 3.Shopping Centers (JMB)

Right to Exclude: Property Open to the Public 1.Background Rules: Continuum a.Innkeepers/Common Carriers: Can’t Exclude w/o Specific Experience b.Civil Rights Statutes & Exceptions: Can’t Exclude for Listed Reasons unless w/in Exception c.Otherwise Complete Right to Common Law 2.Places of Public Amusement (Brooks/Uston) 3.Shopping Centers (JMB)

Right to Exclude: Property Open to the Public Things to Think About/Keep Track Of For Future Problems 1.Private Purpose behind Exclusion  Are There Less Restrictive Alternatives

Right to Exclude: Property Open to the Public Things to Think About/Keep Track Of For Future Problems 1.Private Purpose behind Exclusion 2.Public Purpose favoring Inclusion  What Limitations are Permissible

Right to Exclude: Property Open to the Public Things to Think About/Keep Track Of For Future Problems 1.Private Purpose behind Exclusion 2.Public Purpose favoring Inclusion 3.Comparison with Other Examples in Chapter  Where Does Case/Example Fit on Continuum

Right to Exclude: Property Open to the Public ACADIA: Exceptions to Civil Rights Laws (DQ22, 19) Acadia Sunrise

Right to Exclude: Property Open to the Public ACADIA: Exceptions to Civil Rights Laws (DQ22, 19) Federal Public Accommodations Civil Rights Statute includes exception for private clubs – Standard Explanation: Entitled to some relatively private place to meet/assemble where you can exercise a greater right to exclude (e.g., IRA supporters & British) – Cynical Partial Explanation: Congress exempts itself

Right to Exclude: Property Open to the Public ACADIA: Exceptions to Civil Rights Laws (DQ22, 19) Federal Public Accommodations Civil Rights Statute includes exception for private clubs – Standard Explanation: Entitled to some relatively private place to meet/assemble where you can exercise a greater right to exclude (e.g., IRA supporters & British) – Cynical Partial Explanation: Congress exempts itself DQ22: Do you think these exceptions should exist?

Right to Exclude: Property Open to the Public ACADIA: Exceptions to Civil Rights Laws (DQ22, 19) Federal Public Accommodations Civil Rights Statute includes exception for private clubs DQ22: Should these exceptions exist? – For many commentators, turns on access to power – Economic; Political; maybe Social Women gain access to JCs b/c business deals made there Eating Clubs at Princeton: similar concerns re power

Right to Exclude: Property Open to the Public ACADIA: Exceptions to Civil Rights Laws (DQ22, 19) Federal Public Accommodations Civil Rights Statute includes exception for private clubs Federal Fair Housing Act (FHA) has companion provision re overnight stays at private clubs (part of 3607(a)(S13)) We’ll go back to other FHA exemptions in DQ19 to see some reasons for allowing otherwise forbidden discrimination.

Right to Exclude: Property Open to the Public ACADIA: Exceptions to Civil Rights Laws (DQ22, 19) 3607(a) : Religious organizations. Nothing in this subchapter shall prohibit a religious organization, association, or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association, or society, from limiting the sale, rental or occupancy of dwellings which it owns or operates for other than a commercial purpose to persons of the same religion, or from giving preference to such persons, unless membership in such religion is restricted on account of race, color, or national origin.

Right to Exclude: Property Open to the Public ACADIA: Exceptions to Civil Rights Laws (DQ22, 19) 3607(a) : Religious organizations. Nothing in this subchapter shall prohibit a religious organization, association, or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association, or society, from limiting the sale, rental or occupancy of dwellings which it owns or operates for other than a commercial purpose to persons of the same religion, or from giving preference to such persons, unless membership in such religion is restricted on account of race, color, or national origin.

Right to Exclude: Property Open to the Public ACADIA: Exceptions to Civil Rights Laws (DQ22, 19) 3607(a) : Religious organizations. Nothing in this subchapter shall prohibit a religious organization, association, or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association, or society, from limiting the sale, rental or occupancy of dwellings which it owns or operates for other than a commercial purpose to persons of the same religion, or from giving preference to such persons, unless membership in such religion is restricted on account of race, color, or national origin. LIKELY PURPOSE(S)?

Right to Exclude: Property Open to the Public ACADIA: Exceptions to Civil Rights Laws (DQ22, 19) 3607(a) : Religious organizations: Likely Purposes Include: – Homes for Clergy & Religious Orders – Housing Operated by Religious Organizations E.g., Nursing Homes Shelters Universities (where FHA applies)

Right to Exclude: Property Open to the Public ACADIA: Exceptions to Civil Rights Laws (DQ22, 19) 3603(b)(2) (S11): Nothing in [§3604] (other than [limits on advertising]) shall apply to— (b) rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his residence. Called “Mrs. Murphy” Exception. Why?

Right to Exclude: Property Open to the Public ACADIA: Exceptions to Civil Rights Laws (DQ22, 19) 3603(b)(2) “Mrs. Murphy” Exception. – Stereotype of Widow running boarding house to make ends meet (cf. Mrs. O’Leary & her Cow) – Possible Purpose(s) of Exception?

Right to Exclude: Property Open to the Public ACADIA: Exceptions to Civil Rights Laws (DQ22, 19) 3603(b)(2) “Mrs. Murphy” Exception. Possible Purposes of Exception Include: – Privacy & control for owners sharing living space with renters/boarders – Maybe not worth cost of investigation/litigation if so few units involved

Right to Exclude: Property Open to the Public ACADIA: Exceptions to Civil Rights Laws (DQ22, 19) §3603(b)(1): Single Family House (SFH): Sale or rental of SFH by owner if owns less than four SFHs and no use of real estate professionals or of discriminatory advertising. If rental, similar to “Mrs. Murphy”: control of your own property & not too many units. If sale, why exempt? Whose interests are being protected here?

Right to Exclude: Property Open to the Public ACADIA: Exceptions to Civil Rights Laws (DQ22, 19) §3603(b)(1): Single Family House (SFH): Sale of SFH by owner if owns less than four SFHs and no use of real estate pros or of discriminatory ads. If sale, whose interests protected here? Continued relationship between sellers & neighbors? Sellers’ emotional connection to house? Congress again (DC + District +Summer House)

LOGISTICS (2-5-13) On Course Page – Lunch List ( me to Add or Change) – Syllabus & Supplemental Materials for Chapter 2 – Assignment Sheet Edited & Extended to 2/18 Note Changes re Assignments for Thurs/Mon – Review Problems Originally Scheduled for Thursday Moved to Monday (same panels) – Thursday we’ll finish JMB & start Chapter 2 I’ll take volunteers on DQs I’ll mainly lecture through Midkiff

Right to Exclude: Property Open to the Public DENALI: Brooks & DQ23-24 Denali Caribou

Right to Exclude: Property Open to the Public DENALI: Brooks & DQ23-24 Procedural Posture: US Court of Appeals for 7 th Cir (Wisc, Ill, Ind.) Federal Court b/c Diversity Jurisdiction (P80) – Ps = Pennsylvania Citizens – D = Illinois Corporation Under Erie, Federal Court applies state law: – Job is to determine what Illinois would do – Court clearly not very sympathetic to D, but not operating on clean slate

Right to Exclude: Property Open to the Public DENALI: Brooks & DQ23-24 DQ23. If their right to exclude is limited, what are the possible harms to the landowners in Brooks?

Right to Exclude: Property Open to the Public DENALI: Brooks & DQ23-24 Possible Harms to O in Brooks Include: Expertise + Access to Funds  Loss of $$? Prof. Gamblers = Org. Crime How Significant Are These?

Right to Exclude: Property Open to the Public DENALI: Brooks & DQ23-24 How Significant Are Possible Harms to O: Prof. Gamblers = Org. Crime (reputation might discourage other gamblers) Expertise + Access to Funds  Loss of $$? – Is this big concern? – Fact on p. 80: Ds lost 110 out of 140 betting days: Why does court include fact? Argument that this fact is not very significant?

Right to Exclude: Property Open to the Public DENALI: Brooks & DQ23-24 How Significant Are Possible Harms to O: Prof. Gamblers = Org. Crime Expertise + Access to Funds  Loss of $$? Less Restrictive Alternatives to Excluding Ds: Cap Amount One Person Can Bet? Pros & Cons? (Note: Part of Problem is Some Pros are Cons!!!)

Right to Exclude: Property Open to the Public DENALI: Brooks & DQ23-24 Less Restrictive Alternatives to Excluding Ds: Cap Amount One Person Can Bet? Easy to get around by hiring multiple bettors – Though also true if specific people excluded Tracks may not like. Good for business to have big losses and [occasional] big wins Note this is probably not kind of solution court can do; would need legislation or negotiation

Right to Exclude: Property Open to the Public DENALI: Brooks & DQ23-24 DQ23: Significant Public Interest in Allowing Access in Cases Like This?

Right to Exclude: Property Open to the Public DENALI: Brooks & DQ23-24 Public Interest in Allowing Access: – Probably not much in ensuring professionals can bet large amounts in person at track – BUT Concern with mistaken exclusion E.g., Federal No-Fly Lists E.g., NY case cited in Brooks: Coley Madden mistaken for Owney Madden

Right to Exclude: Property Open to the Public DENALI: Brooks & DQ23-24 Comparisons with Other Kinds of Businesses – Casinos (Uston) – Innkeepers/Common Carriers

Right to Exclude: Property Open to the Public DENALI: Brooks & DQ23-24 Comparisons with Other Kinds of Businesses Court in Brooks Asked to Apply Uston – Court Refuses NJ Case; Not Followed in Illinois NJ Doesn’t Extend to Racetracks Anyway – Could Distinguish on Facts Card Counting = Skill Accessible to All (v. Inside Info) Casinos Covered by Special Statutes/Licensing

Right to Exclude: Property Open to the Public DENALI: Brooks & DQ23-24 Comparisons with Other Kinds of Businesses Could Apply Innkeeper Rules DQ24: If you were going to apply Innkeeper Rules to some but not all businesses, should you apply them to racetracks & stadiums? Pros & Cons?

Right to Exclude: Property Open to the Public DENALI: Brooks & DQ23-24 Comparisons with Other Kinds of Businesses Pros & Cons of Innkeeper Rules for Stadiums & Racetracks Include: – Large open invitation means should lose discretion? – Monopoly theory? Heavy state regulation & relatively few racetracks – BUT arguably not crucial like inns & common carriers No extortion likely Less public interest in ensuring universal access

Right to Exclude: Property Open to the Public DENALI: Brooks & DQ23-24 Closing Points on Brooks Other jurisdictions listed follow Brooks (even NJ) Only Exception: California Public Accommodation statute interpreted to mean “no arbitrary discrimination” – Orloff (1951) can’t exclude people w reputations for immoral character from racetrack = prior off-track gambling conviction reputation as gambler/bookmaker Qs on Brooks?

Right to Exclude: Property Open to the Public JMB: GLACIER, EVERGLADES & ME NJSCT holds that large shopping centers must permit leafletting on social issues Our Coverage 1.Relevant Interests (DQ25-26) (GLACIER) 2.Logic of Opinion (Me) 3.Application in Future Shopping Center Cases (DQ27) (GLACIER  EVERGLADES) 4.Relation to Other Right to Exclude Problems (DQ28- 29) (EVERGLADES)

GLACIER: JMB & DQ25: Owners’ Interests Possible harms to the owners in JMB: 1.Forced Speech 2.Psychic Harm 3.Interference with Business

GLACIER: JMB & DQ25: Owners’ Interests Possible harms to the owners in JMB: 1.Forced Speech

GLACIER: JMB & DQ25: Owners’ Interests Possible harms to the owners in JMB: 1.Forced Speech Claim: Shoppers will assume leafletters speak for management, so Os effectively forced to say things they disagree with – Seems unlikely that shoppers would view that way – Court rejects claim in portion of opinion not in book

GLACIER: JMB & DQ25: Owners’ Interests Possible harms to the owners in JMB: 1.Forced Speech 2.Psychic Harm: – Feelings of Lack of Control Over Property – Made Worse by Speech if Os Disagree – NOTE: Genuine, but hard to Quantify