1. PROPERTY D SLIDES 1-14-16 Hot Pastrami Sandwich Day

2. Music: Savage Garden (Self-Titled 1997) No Class Tomorrow Course Page Assignment for Next Tuesday Posted I’ll Update by Sunday @ Noon for Rest of Next Week

3. 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)

4. 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?

5. 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?

6. 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)

7. Logic of Jacque: Approach w/o Binding Precedent Policy Behind “No Pain, No Gain” Stated in Last Sentence in 2d to last para on P54 (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)

8. 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?

9. 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?

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

11. 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.

12. 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

13. 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.

14. 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.)

15. 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?

16. 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.

17. 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)

18. 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

19. DQ1.04: How Persuasive is… PUNITIVE DAMAGES: CHOICES & POLICY DQ1.04: How Persuasive is… (c) As Note 3 (P57) 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?

20. 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 especially helpful unless overwhelming: “Every common law jurisd to consider the issue has said X except California & Tasmania” (both presumptively very strange)

21. 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)

22. 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

23. 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

24. TRANSITION TO SHACK A.Overview of the Case B.Context of Case: 1971 C.Rights v. Interests D.Why So Much Time on Shack? E.Necessity & Other Limits on Right to Exclude (DQs 1.05-1.06)

25. TRANSITION TO SHACK: Overview of Case A. Land in Q is in Deerfield Township: agricultural area 30 miles due south of Philadelphia. (NJ is “Garden State”)

26. TRANSITION TO SHACK: Overview of Case B. Tedesco (O) owns farm on land; hires migrant workers (MWs) & houses them on land during employment. C. Legal servs. lawyer & health services worker (Ds) enter land (uninvited by O) to help particular MWs they know have problems 1. O asks Ds to leave; they refuse. 2. Ds arrested & convicted of criminal trespass – a. Statute as described in Note 4 after Jacque b. NJ statute requires refusal to leave when asked

27. TRANSITION TO SHACK: Overview of Case D. Novel case, so attorneys tried many theories (S3-4, S6) E.Bottom Line : NJSCt decides Ds (and others) are allowed on Tedesco’s land without his permission (with some restrictions) F.Our Approach: 1. Look at possible theories not relied on by NJSCt 2. Then look at what court actually did 3. Then apply case to new situations

28. Album of Year: Tapestry Best Picture: The French Connection Introduced to American Public: Soft Contact Lenses & Amtrak All Things Considered & Masterpiece Theatre All in the Family & Jesus Christ Superstar The Electric Company & Columbo

29. Nikita Kruschev; Papa Doc Duvalier; Thomas Dewey Louis Armstrong ; Jim Morrison; Igor Stravinsky Coco Chanel ; Ogden Nash; Crew of Soyuz 11

30. Shannon Doherty ; Ewan McGregor; Winona Ryder Lance Armstrong; Jeff Gordon; Pedro Martinez ; Kristi Yamaguchi Mary J Blige ; Snoop Dogg; Ricky Martin; Tupac Shakur

31. Apollo 14: 4th Successful Moon Landing USSCt upholds busing of schoolchildren to achieve racial balance Nixon Administration (Not Today’s Republicans) In 1970 Gets Clean Air & Water Acts Enacted Freezes Wages & Prices for 90 Days to Fight Inflation Wall Street approves of this intervention in market Responds w biggest one-day gain in Dow Jones to date, 32.93 pts Record volume of 31.7 million shares. Amicus Brief in Shack Favoring Workers on Anti-Federalist Theory Focus: Rights of people trying to implement federal projects Reliance on federal anti-poverty legislation

32. Near the End of Long Post-depression Period of Great Faith/Belief In Gov’t E.g., Deaths of Ex-Presidents (Ford v. Truman/ Johnson/Eisenhower) Shack: Example of strong confidence by courts & legislatures that they can determine what is in best interests of public Might get same result now, but often much less sure of selves Likely to be much more concern/rhetoric re O’s Property Rights

33. 1.Vietnam War: Troops reduced by about 200,000 but still 184,000 troops in SE Asia YE1971 US Voting Age lowered to 18 from 21 (old enough to die = old enough to vote) Perceived fiasco in Vietnam (and evidence that both Johnson & Nixon administrations misled public) lowers confidence in Gov’t

34. 2. Concerns About War Made Nixon’s Reelection Seem Problematic 1971: White House staffers assemble key people to deal w election: CREEP Yields Watergate break-in following spring Scandal greatly undermines authority of govt

35. 3. Pres. Nixon appoints William Rehnquist to US Supreme Court Shack court in 1971 almost certainly sees itself as part of tradition of courts protecting rights of minority groups & disadvantaged folks Appointment foreshadows change in this self-perception of courts