1. PROPERTY D SLIDES 1-21-14

2. Music: Savage Garden (Self-Titled 1997) No Office Hours Today 7:55 am Start Time Begins Next Class (Thursday)

3. PROPERTY D (1/21) I.LOGIC OF JACQUE (featuring Ireland, Lopez, Morey, Rasile) II.PUNITIVE DAMAGES : CHOICES & POLICY III.MAKING THE CLASSROOM EFFECTIVE IV.TRANSITION TO SHACK V.SHACK: ROADS NOT TAKEN

4. Logic of 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)

5. Logic of Jacque: Background 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)

6. 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?

7. 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)?

8. 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)?

9. 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 Unless Also Plays the Banjo

10. Scope of Rules: Broadening & Narrowing Holdings Old Rule from Prior Case but New Situation: Should You Extend Rule (Broadening)? Should You Create Exception (Narrowing)? How Address if No Binding Precedent? How Address if No Binding Precedent? Look to Non-Binding Precedent Look to Policy

11. Logic of Jacque: Approach w/o Binding Precedent Existing Related Precedent: McWilliams 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?

12. 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) Burton + Jackson + State Action

13. Logic of Jacque: Approach w/o Binding Precedent Policy Behind “No Pain, No Gain” Stated in Last Sentence on P55 (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)

14. 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?

15. 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?

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

17. PROPERTY D (1/21) I.LOGIC OF JACQUE II.PUNITIVE DAMAGES: CHOICES & POLICY (featuring Sigurani, Abeckjerr, Desir, Greenberg) III.MAKING THE CLASSROOM EFFECTIVE IV.TRANSITION TO SHACK V.SHACK: ROADS NOT TAKEN

18. 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.

19. 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

20. 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.

21. DQ1.04: How Persuasive is… 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.)

22. DQ1.04: How Persuasive is… 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. 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?

23. DQ1.04: How Persuasive is… 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.

24. DQ1.04: How Persuasive is… 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)

25. DQ1.04: How Persuasive is… 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

26. DQ1.04: How Persuasive is… PUNITIVE DAMAGES: CHOICES & POLICY DQ1.04: How Persuasive is… (c) As Note 3 (P58) 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?

27. DQ1.04: How Persuasive is… 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 especiaslly helpful unless overwhelming: “Every common law jurisd to consider the issue has said X except California & Tasmania” (both presumptively very strange)

28. DQ1.04: How Persuasive is… 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)

29. DQ1.04: How Persuasive is… 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

30. DQ1.04: How Persuasive is… 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

31. PROPERTY D (1/21) I.LOGIC OF JACQUE II.PUNITIVE DAMAGES : CHOICES & POLICY III.MAKING THE CLASSROOM EFFECTIVE IV.TRANSITION TO SHACK V.SHACK: ROADS NOT TAKEN

32. 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 Means Special Need for Courtesy: Avoid Distractions in the Room (My ADD & Yours)

33. 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.

34. 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.

35. 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 a.Rarely yes/no answers b.Try to be Specific (cf. 1.01 last time) iii) You’ll benefit from reviewing right before class

36. 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

37. LOGISTICS: Course Mechanics & Requirements Guidelines for Making Classroom Effective Panel System Starting Up (See Assignment Sheet) Starting Up (See Assignment Sheet) 1 st 3 classes all on call Class 4 (Monday): alphabetical assignments Starting w Class 5 (Next Tuesday), most material assigned to panels

38. 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

39. LOGISTICS: Course Mechanics & Requirements Guidelines for Making Classroom Effective Panel System: Essentially a Contract When I Call on You, “Being Prepared” Means: 1.You are paying attention (slides will tell you when your panel is at bat) 2. 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) 3.You can discuss the relevant points (as opposed to reciting a fully scripted answer)

40. LOGISTICS: Course Mechanics & Requirements Thursday (Class Starts @ 7:55) I’ll ask for lists indicating who (if anyone) you want on your same panel Not commitment, just an opportunity to work with people b/c responsible for same assmts Can do nothing or give me groups of two or more up to about 12 Check with people first, then hand in one list per group

41. LOGISTICS: Course Mechanics & Requirements Thursday: Lunches Begin Operation: Meet on Bricks After Con Law; We’ll Go to Food Court You Can Bring Food or Buy It There Schedule is Posted On Course Page I’ll Remind You in Class on the Day You’re Scheduled E-Mail Me if You Want to Add on or to Reschedule Courtesy: If you have to cancel at last minute or know you’ll be late, let my assistant or one of the other students know (I won’t see last minute e-mails)

42. PROPERTY D (1/21) I.LOGIC OF JACQUE II.PUNITIVE DAMAGES: CHOICES & POLICY III.MAKING THE CLASSROOM EFFECTIVE IV.TRANSITION TO SHACK (featuring Iscowitz, Martinez, Munroe, Romero) V.SHACK: ROADS NOT TAKEN

43. TRANSITION TO SHACK: TRANSITION TO SHACK: “RIGHTS” v. “INTERESTS” rights We’ll use “rights” to refer to what the legal system allows parties to do. right Need to point to specific authority for right asserted. Thus, might say after Shack was decided: right Migrant workers on land now have right to access to certain outsiders. Shack. right Tedesco now has no right to exclude Ds. Shack.

44. TRANSITION TO SHACK: TRANSITION TO SHACK: “RIGHTS” v. “INTERESTS” Rights “Rights” = what legal system allows parties to do. right Don’t use “right” to argue what legal result ought to be: Q: Why do you think Shack is wrongly decided? right A: Owners have the right to exclude all.  (But in NJ after Shack, they don’t have that “right.”)

45. TRANSITION TO SHACK: TRANSITION TO SHACK: “RIGHTS” v. “INTERESTS” Rights “Rights” = what legal system allows parties to do. Instead: Q: Why do you think Shack is wrongly decided? right A: Owners should have the right to exclude all. (Which raises Q of why!!)

46. TRANSITION TO SHACK: TRANSITION TO SHACK: “RIGHTS” v. “INTERESTS” Rights “Rights” = what legal system allows parties to do. right Owners should (or should not) have the right to exclude all, because … interests Then need to talk about what we’ll call “interests” (= needs & desires of parties & state) E.g., Owner interests in privacy, security, operation of farm MW interests in receiving helpful services & info

47. TRANSITION TO SHACK: TRANSITION TO SHACK: NECESSITY & Other Limits on the Right to Exclude (DQ1.05-1.06) DQ1.06. Doctrine of Necessity: The opinion in Shack correctly points out that traditionally, public and private necessity “justify entry upon the lands of another.” Defense to civil action for trespass. I sue you for “unauthorized entry” onto my land. You defend by saying, yes I entered, but my actions were justified by public or private necessity. Identify at least 3 different kinds of situations to which you can imagine a court applying this rule.

48. TRANSITION TO SHACK: TRANSITION TO SHACK: NECESSITY & Other Limits on the Right to Exclude (DQ1.05-1.06) DQ1.06: Doctrine of Necessity: The opinion in Shack correctly points out that traditionally, public and private necessity “justify entry upon the lands of another.” Common Examples: prevent harm to children/people/self; stop crime in progress; destroy diseased plants/animals; fight fires; avoid blocked road. Most people would concede some of these examples, thus conceding that right to exclude should not be absolute. Now we just have to haggle over boundaries

49. TRANSITION TO SHACK: TRANSITION TO SHACK: NECESSITY & Other Limits on the Right to Exclude (DQ1.05-1.06) 1.05. In what circumstances would be appropriate for a court or legislature to place limits on the right to exclude? Or, to put the question another way, in what circumstances should a person be allowed to enter someone else’s land without permission? Examples other than necessity & facts of Shack? For now, I’’m leaving this Q for you; we’ll return to this Q during the course.