1. PROPERTY D SLIDES 2-2-16 GROUNDHOG DAY

2. Grammy for Best Female Jazz Vocalist Tuesday Feb 2 Music: Diane Schur, Timeless (1986) Grammy for Best Female Jazz Vocalist Lunch Today Meet on Bricks @ 12:25 Brar * Gonzalez * Guerrero * Weiss

3. Previously in Property D Right to Exclude & MWs Applied Shack to New Situations Florida Statutes on MWs Looked at Content & Operation Compared to Shack Right to Exclude & Land Open to Public Intro to Continuum of Possibilities Common Law: Maximum Rts v. Innkeepers

4. Property Open to the Public & the Right to Exclude I.Generally: Your Money’s No Good Here A.Range of Possible Approaches & DQs 1.20-1.21 (Continued) B.Brooks & DQs 1.22-1.23 (BADLANDS) II.Free Speech Rights (Thursday  )

5. Right to Exclude: Parcels Open to the Public Common Law Approaches (RECAP) Simple Version of Continuum Under Common Law Can exclude anyone for any reason (Common Law re most businesses) Common Law Innkeeper Must accept anyone who shows up w $$ unless specific prior harmful conduct. (Common Law Innkeeper).

6. Right to Exclude: Parcels Open to the Public Innkeeper Rule & DQ1.20 (RECAP) Professor Epstein: Rule Counteracts Monopoly Power. Professor Epstein: Rule Counteracts Monopoly Power. Other Possible Explanations Include: Other Possible Explanations Include: Could View as Moral Duty (See Joseph & Mary) Could View as Moral Duty (See Joseph & Mary) These services important to state’s commerce & wealth even if no monopoly; want business people to have access to inns & common carriers to facilitate trade-related travel. These services important to state’s commerce & wealth even if no monopoly; want business people to have access to inns & common carriers to facilitate trade-related travel.

7. Right to Exclude: Parcels Open to the Public Innkeeper Rule & DQ1.20 Possible Costs of Innkeeper Rule Include: Os lose discretion/personal freedom re customers; can’t exclude due to, e.g., politics or dislike. Possible increased security costs; in theory, can’t turn away for subjective reasons (e.g., looks sleazy or “feels off”), so may need more protection (e.g., extra employees, weapons). Possible increased security costs; in theory, can’t turn away for subjective reasons (e.g., looks sleazy or “feels off”), so may need more protection (e.g., extra employees, weapons). (Therefore) May raise prices to public (Therefore) May raise prices to public Questions on Innkeeper Rule?

8. Right to Exclude: Parcels Open to the Public Civil Rights Statutes Updated Continuum Can exclude anyone for any reason (Common Law re most businesses) Can exclude for any reason except limited list of forbidden characteristics (Civil Rights Statutes) Can exclude for any reason except limited list of forbidden characteristics (Civil Rights Statutes) Must accept anyone who shows up w $$ unless specific prior harmful conduct. (Common Law Innkeeper Rule).

9. Right to Exclude: Parcels Open to the Public Civil Rights Statutes: General Operation everyone They don’t protect specified groups of people, but everyone. Prohibit decisions made on the basis of specified characteristics Prohibit certain types of decisions made on the basis of specified characteristics like race, sex, religion, disability. E.g., Title II [of Civil Rights Act of 1964] (P85) Covers decisions about access by listed types of businesses (hotels, restaurants, etc.) “on the ground of” race, religion or national origin State Statutes often broader in reach: covering more forbidden characteristics and more types of businesses or transactions.

10. Right to Exclude: Parcels Open to the Public Civil Rights Statutes & DQ1.21 Justifications for Civil Rights statutes prohibiting discrimination regarding access to public accommodations: Prot’n of tradlly excluded groups Access to ordinary transactions. Elimination of stigmatizing affect of segregation (Curt Flood story). Morality Sense that segregation/exclusion is wrong: Sense that use of categories like race and religion is wrong when those categories don’t seem relevant in any legitimate way to Q of whether person can use restaurant or motel.

11. Right to Exclude: Parcels Open to the Public DQ1.21 Private Club Exceptions to Civil Rights Statutes 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; Holocaust survivors & Germans) Avoiding forced association generally Cynical Partial Explanation: Congress regularly exempts itself.

12. Right to Exclude: Parcels Open to the Public DQ1.21 Private Club Exceptions to Civil Rights Statutes Should these exceptions exist? For many commentators, answer 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 Questions on Civil Rights Statutes & Exemptions?

13. Property Open to the Public & the Right to Exclude I.Generally: Your Money’s No Good Here A.Range of Possible Approaches & DQs 1.20-1.21 B.Brooks & DQs 1.22-1.23 (BADLANDS) (1/29- 2/2) Brooks as Example of Q: Where on Continuum Should This Problem Fall II.Free Speech Rights (Thursday  )

14. Right to Exclude: Parcels Open to the Public: Brooks Procedural Posture: US Court of Appeals for 7 th Cir (Wisc, Ill, Ind.) Federal Court b/c Diversity Jurisdiction (P79) Ps = Pennsylvania Citizens D = Illinois Corporation Under Erie, Federal Court applies state law: Illinois Job is to determine what Illinois would do (not necessarily best result). Court clearly not very sympathetic to D, but not operating on clean slate. Questions?

15. BADLANDS (DQ1.22-1.23) BADLANDS: NORBECK PASS

16. Right to Exclude: Parcels Open to the Public Brooks & DQ1.22 (Badlands) Purpose of Exclusion & Less Restrictive Alternatives DQ1.22: If their right to exclude is limited, what are the possible harms to the landowners in Brooks?

17. Right to Exclude: Parcels Open to the Public Brooks & DQ1.22 (Badlands) Purpose of Exclusion & Less Restrictive Alternatives Possible Harms to O in Brooks Include: Professional Gamblers = (Maybe) Organized Crime Professional Gamblers = (Maybe) Organized Crime Reputed presence might discourage others from betting Actual presence increases risk of actual crime Expertise + Access to Funds  Loss of $$ for O? Expertise + Access to Funds  Loss of $$ for O? Should we treat this potential loss as a significant concern?

18. Right to Exclude: Parcels Open to the Public Brooks & DQ1.23 (Badlands) Purpose of Exclusion & Less Restrictive Alternatives Expertise + Access to Funds  Possible Loss of $$ for O: Significant Concern? Could Characterize as Inevitable Risk of This Business (i.e. “Tough!) –OR- Potential Catastrophic Loss O Should Be Able to Limit Fact on P79: Ps lost 110 out of 140 betting days: Why does court include this fact? Argument that this fact is not very significant?

19. Right to Exclude: Parcels Open to the Public Brooks & DQ1.22 (Badlands) Purpose of Exclusion & Less Restrictive Alternatives Expertise + Access to Funds  Possible Loss of $$ for O Possible less restrictive alternative to address this concern: Limit on amount one person can bet. Pros & Cons? (Worry: Some Pros ARE Cons)

20. Right to Exclude: Parcels Open to the Public Brooks & DQ1.22 (Badlands) Purpose of Exclusion & Less Restrictive Alternatives Possible less restrictive alternative: Limit on amount one person can bet. Good idea? Treating all patrons alike; less chance of mistake BUT Easy to get around by hiring multiple bettors Though that’s also true if you try to exclude specific people 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

21. Right to Exclude: Parcels Open to the Public: Brooks Purpose for Inclusion/Harms from Exclusive Significant Public Interest in Allowing Access in Cases Like This?

22. Right to Exclude: Parcels Open to the Public: Brooks Purpose for Inclusion/Harms from Exclusive Signif. Publ. Interest in Allowing Access in Cases Like This? Probably not much in ensuring professionals can bet large amounts in person at track Concerns: Exclusion b/c mistake re identity or facts E.g., Federal No-Fly Lists E.g., NY case cited in Brooks (P80): Coley Madden mistaken for Owney Madden Cf. Jillians & Panel Assignments

23. Right to Exclude: Parcels Open to the Public: Brooks Comparisons with Other Kinds of Businesses: Casinos Ps Asked Court in Brooks to Apply Uston In Uston, NJ SCt seems to apply Innkeeper Rule to casinos 7 th Cir. Refuses to Apply NJ Case; Not Followed in Illinois NJ Doesn’t Extend to Racetracks Anyway Could Also Distinguish on Facts Card Counting = Skill Accessible to All (v. Inside Info on Horses/Jockeys) Casinos Covered by Special Statutes/Licensing (so explicit regulatory power in state govt)

24. Right to Exclude: Parcels Open to the Public: Brooks: Right to Exclude: Parcels Open to the Public: Brooks: Comparisons with Other Businesses: DQ1.23 (Badlands) Arguments re Extending Innkeeper Rules to Cover Stadiums & Racetracks?

25. Right to Exclude: Parcels Open to the Public: Brooks: Right to Exclude: Parcels Open to the Public: Brooks: Comparisons with Other Businesses: DQ1.23 (Badlands) Arguments re Extending Innkeeper Rules to Cover Stadiums & Racetracks Include: Comparisons to Inns & Common Carriers (& Monopoly Theory) Heavy state regulation & relatively few racetracks, so like monopoly But arguably less important than inns & common carriers Not crucial at time of arrival; extortion of patrons unlikely Less public interest in ensuring universal access. (Cf. Bottom of P80: Description of innkeeper & common carrier as “public callings”)

26. Right to Exclude: Parcels Open to the Public: Brooks: Right to Exclude: Parcels Open to the Public: Brooks: Comparisons with Other Businesses: DQ1.23 (Badlands) Arguments re Innkeeper Rules for Stadiums & Racetracks Include: From the Court: (P82) Suggestion that large open invitation might mean O should lose discretion. -BUT- (P83) Suggestion that market forces here [& bad publicity] likely to discourage many types of arbitrary exclusions. Not Noted in Readings: Often Significant Public Funding & Gov’t Support for Stadium Construction (Marlins); Could View as Implied Contract w Public for Access.

27. Right to Exclude: Parcels Open to the Public: Brooks: Closing Points Other jurisdictions generally follow Brooks (even NJ) Only Exception I Know is California Civil Rights Act Language (2d para P85) looks like ordinary civil rights statute Cal. SCt reads it to ban “arbitrary discrimination” of any kind E.g., Orloff (1951) (racetrack case) Can’t exclude people w reputations for immoral character. Person in Q had prior off-track gambling conviction & reputation as gambler/bookmaker.

28. Right to Exclude: Parcels Open to the Public: Brooks: Closing Points: Final Continuum Can exclude anyone for any reason (Common Law re most businesses) Can exclude for any reason except limited list of forbidden characteristics (Typical Civil Rights Statutes) No “arbitrary discrimination.” (California Civil Rights Act) Must accept anyone who shows up w $$ unless specific prior harmful conduct. (Common Law Innkeeper Rule & maybe casinos under Uston). Qs on Brooks?

29. EVERGLADES: Review Problem 1K (Part ii) EGRET IN MANGROVE SWAMP

30. Review Problem 1K(ii) (EVERGLADES) Rev. Prob. 1K is Issue-Spotter from 2014 Exam Two parts weighted roughly equally Requires you to use statutes from fictional state (Gaidian) Taken from statutes studied in course Edited for space /clarity (e.g., I removed lawyers from list) 1K(i) involves Free Speech Access to a college courtyard; we’ll do at very end of chapter. 1K(ii) is MW problem where Gaidian Statutes = FL

31. Review Problem 1K(ii) (Everglades) Huntsman Farm (HF) uses MWs living onsite to pick crops about 5 wks/yr. Large open “Assembly Area” (AA) Several Rows of Barracks Buildings (BB) (Pvt Living Qtrs) Father Franks = charismatic/controversial religious figure FF wishes to visit HF (speak at AA; visit followers at BB) Some of HF MWs = followers of FF Some of HF MWs strenuously object

32. Review Problem 1K(ii) (Everglades) Needs to be “Other Authorized Visitor”: L88(A)(5) Which lettered paragraphs ((a) –(d) ) of L88(A)(5) might apply? Can FF Access “Assembly Area”?

33. Review Problem 1K(ii) (Everglades) “Other Authorized Visitor”: L88(A)(5)(c) A representative of a bona fide religious organization … who, during the visit, is engaged in the vocation or occupation of a religious professional or worker such as a minister, priest, or nun; Can FF Access “Assembly Area”?

34. Review Problem 1K(ii) (Everglades) “Other Authorized Visitor”: L88(A)(5)(d) Any other person who provides services for farmworkers which are funded in whole or in part by local, state, or federal funds but who does not conduct or attempt to conduct solicitations. Can FF Access “Assembly Area”?

35. Review Problem 1K(ii) (Everglades) Given Facts, Should Assume FF Will Be “Invited Guest” L88(B) … Any invited guest must leave the private living quarters upon the reasonable request of a resident residing within the same private living quarters. Means What Here? FF Access “to Pvt Living Qtrs”

36. Review Problem 1K(ii) (Everglades) L88(C): Reasonable rules re hours L88(D): Check in Before Entry; Present Picture I.D. Correct but Trivial Won’t Address Real Problems Attys Won’t Fight About So Not Worth Much Time/Space What Rules re Access Can S Set ?

37. Review Problem 1K(ii) (Everglades) reasonably related to the purpose of promoting the safety, welfare, or security of residents, visitors, farmworkers, or the owner’s or operator’s business. L88(D): Migrant labor camp owners or operators may adopt other rules regulating access … if the rules are reasonably related to the purpose of promoting the safety, welfare, or security of residents, visitors, farmworkers, or the owner’s or operator’s business. What Might Qualify Here? What Might Qualify Here? What Rules re Access Can S Set ?