PROPERTY D SLIDES1-27-14

Monday Jan 27: Music Carole King, Tapestry (1971)

• Dean’s Fellow Sessions Start This Week (On Course Page)• Tuesday @ 2:30 pm in Room E352• Wednesday @ 8:30 am in Room F209

• Circulating List Today for You to Provide Contact Info: • Please Write Clearly• E-Mail Addresses (not Phone #s) Will Be Provided to Class

• Panel Assignments Posted on Course Page• Panel Responsibilities Begin Tomorrow• E-Mail Me if Qs

PROPERTY D: MONDAYS

Special Bonuses for On-Time Special Bonuses for On-Time

ArrivalsArrivals

(2) Brief Recap of Prior Week(2) Brief Recap of Prior Week

PROPERTY D: 1/27

Two Two DISAPPOINTING DISAPPOINTING

REVELATIONS ABOUT REVELATIONS ABOUT

CHILDHOOD FAVORITES CHILDHOOD FAVORITES

PROPERTY D: 1/27

(1) (1) ALL ALL FROOTFROOT LOOPSLOOPS TASTETASTE THETHE

SAMESAME REGARDLESSREGARDLESS OFOF COLORCOLOR

(Same (Same ForFor TRIXTRIX && FRUITY FRUITY PEBBLESPEBBLES))

PROPERTY D: 1/27

(2) (2) The Alphabet Song & Twinkle Twinkle Little Star

Have the Same Melody

Previously in Property DPreviously in Property D• 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 DPreviously in Property D• Right to Exclude• Shack v. State Language & Reasoning• Court does not rely on• Traditional property categories like necessity & landlord-tenant law

• Constitutional theories raised by parties• Bargaining/Agreements between Employers & MWs

Previously in Property DPreviously in Property D• 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 DPreviously in Property D• 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 D (1/27)SHACK v. STATE cont’d

I.I.CONTEXT: 1971CONTEXT: 1971II.WHAT THE CASE SAYS cont’d

C. Protecting Owners cont’d (DQ1.13)

D. Reconciling Shack & Jacque (DQ1.12)

III.Applying the Case to New Situations

•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

Nikita Kruschev; Papa Doc Duvalier; Thomas Dewey

Louis Armstrong; Jim Morrison; Igor Stravinsky

Coco Chanel; Ogden Nash; Crew of Soyuz 11

Shannon Doherty; Ewan McGregor; Winona RyderLance Armstrong; Jeff Gordon; Pedro Martinez; Kristi Yamaguchi

Mary J Blige; Snoop Dogg; Ricky Martin; Tupac Shakur

•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

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 Os Property Rights

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

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

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 (cf. Shelley & Burton)

•Appointment foreshadows change in this self-perception of courts (cf. Moose Lodge & Jackson)

PROPERTY D (1/27)SHACK v. STATE cont’d

I.CONTEXT: 1971

II.II.WHAT THE CASE SAYS cont’dWHAT THE CASE SAYS cont’dC. Protecting Owners cont’d (DQ1.13) C. Protecting Owners cont’d (DQ1.13)

((featuring featuring Alvarez, McKain, Oña)Alvarez, McKain, Oña)

D. ReconcilingD. Reconciling Shack & Jacque Shack & Jacque (DQ1.12) (DQ1.12) ((featuring featuring Volunteers)Volunteers)

III.Applying the Case to New Situations

SHACK: SHACK: WHAT THE CASE WHAT THE CASE DOESDOES

DQ1.11 & 1.13: Protections of DQ1.11 & 1.13: Protections of O’s InterestsO’s Interests1.13. 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: SHACK: WHAT THE CASE WHAT THE CASE DOESDOES

DQ1.11 & 1.13: Protections of DQ1.11 & 1.13: Protections of O’s InterestsO’s Interests1.13. 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?

SHACK: SHACK: WHAT THE CASE DOESWHAT THE CASE DOESDQ1.11 & 1.13: Protections of O’s DQ1.11 & 1.13: Protections of O’s

InterestsInterests1.13. Possible Steps for Trade Association Include …

1.Lobby state or fed’l legislators to pass statute to change or eliminate Shack2.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: SHACK: WHAT THE CASE DOESWHAT THE CASE DOESDQ1.11 & 1.13: Protections of O’s DQ1.11 & 1.13: Protections of O’s

InterestsInterestsCommon 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.

SHACK: SHACK: WHAT THE CASE WHAT THE CASE DOESDOES

DQ1.12: Shack & JacqueDQ1.12: Shack & JacqueIs Is ShackShack inconsistent with inconsistent with JacqueJacque? ?

Articulate two different characterizations of the cases:

•One highlighting their inconsistency

•One suggesting they really are consistent.

PROPERTY D (1/27)SHACK v. STATE cont’dI.CONTEXT: 1971

II.WHAT THE CASE SAYS cont’d

III.III.APPLYING THE CASE TO NEW APPLYING THE CASE TO NEW SITUATIONSSITUATIONS• Comparing Facts: Inclusion of the Comparing Facts: Inclusion of the

Press (DQ1.14) (Press (DQ1.14) (featuring featuring Rostock, Rostock, Venkatesh, Block, Jarzabek)Venkatesh, Block, Jarzabek)

• Assigned Problems

APPLYINGAPPLYING SHACK SHACK TO NEW TO NEW SITUATIONSSITUATIONS

DQ1.14: Comparing Facts (The DQ1.14: Comparing Facts (The Press)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 again: 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

APPLYINGAPPLYING SHACK SHACK TO NEW TO NEW SITUATIONSSITUATIONS

DQ1.14: Comparing Facts (The DQ1.14: Comparing Facts (The Press)Press)Anytime you are comparing facts of a

case to a new situation, you need to: 1. Identify both similarities and differences

• (Examples among you)

APPLYINGAPPLYING SHACK SHACK TO NEW TO NEW SITUATIONSSITUATIONS

DQ1.14: Comparing Facts (The DQ1.14: Comparing Facts (The Press)Press)Anytime you are comparing facts of a case to

a new situation, you need to: 1. Identify both similarities and differences AND2. 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.

APPLYINGAPPLYING SHACK SHACK TO NEW TO NEW SITUATIONSSITUATIONS

DQ1.14: Comparing Facts (The DQ1.14: Comparing Facts (The Press)Press)1. Compare press & other groups to

whom the NJSCt gives access• Identify Similarities

• Identify Differences

DQ1.14: Comparing Facts (The Press)DQ1.14: Comparing Facts (The Press)What Do Lists Suggest re How to What Do Lists Suggest re How to

Treat Press?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 (1st 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

PROPERTY D (1/27)SHACK v. STATE cont’d

I.CONTEXT: 1971

II.WHAT THE CASE SAYS cont’d

III.III. APPLYING THE CASE TO NEW APPLYING THE CASE TO NEW

SITUATIONSSITUATIONS

• Comparing Facts: Inclusion of the Press (DQ1.14)• Last Names A-F: Discussion Question 1.15(a) (S7)

ApplyingApplying Shack: DQ1.15 & Shack: DQ1.15 & Problems 1A-1BProblems 1A-1B

Could do each of these at length, going Could do each of these at length, going through: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, we’ll do selected Qs to highlight In class, we’ll do selected Qs to highlight particular techniquesparticular techniquesI’ll give you more extensive write-ups of I’ll give you more extensive write-ups of each in future Info Memoeach in future Info Memo

APPLYINGAPPLYING SHACK: Problem 1B SHACK: Problem 1B (Last Names P-Z): (Last Names P-Z):

Tomorrow we’ll do 1B. Tonight look at again in light of today’s discussions. A few points to think about:•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.

APPLYINGAPPLYING SHACK: DQ1.15a (Last SHACK: DQ1.15a (Last Names A-F): Names A-F):

A worker wishes to have a spouse A worker wishes to have a spouse or long-term partner stay overnight or long-term partner stay overnight

on the premises.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?

APPLYINGAPPLYING SHACK: DQ1.15a (Last SHACK: DQ1.15a (Last Names A-F): Names A-F):

A worker wishes to have a spouse A worker wishes to have a spouse or long-term partner stay overnight or long-term partner stay overnight

on the premises.on the premises.•“can’t isolate in any aspect significant for workers’ well-being”

• How Significant for MWs’ Well-Being? • Isolating if Denying?