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  1. PROPERTY A SLIDES 1-20-15

  2. Music: Savage Garden (Self-Titled 1997) • No Office Hours Today • After Class I’ll Update Course Page • Slides from Last Fri & Today • Assignments for This Thurs & Fri

  3. PROPERTY A (1/20) LOGISTICS: LUNCHES, PANELS, CONTACT INFO LOGIC OF JACQUE PUNITIVE DAMAGES: CHOICES & POLICY TRANSITION TO SHACK SHACK: ROADS NOT TAKEN

  4. LOGISTICS: Panel Selection (Thursday After Break) • I’ll ask for lists indicating who (if anyone) you want me to put on same panel with you. • Can do nothing & I will randomly assign you • Can give me groups of two or more students (up to about 12) & I will assemble into larger groups as needed • Check with people first, then hand in one list per group • Not commitment, just an opportunityto work with people b/c responsible for same assignments

  5. PROPERTY A (1/20) LOGISTICS: LUNCHES, PANELS, CONTACT INFO LOGIC OF JACQUE PUNITIVE DAMAGES: CHOICES & POLICY TRANSITION TO SHACK SHACK: ROADS NOT TAKEN

  6. Logic of Jacque: Background P wins Intentional Trespass Claim; Jury Awards: Nominal Compensatory Damages $100KPunitives Lower courts don’t allow punitives Follow Wisconsin tort precedents Ps can’t get punitives if no compensatory damages (“No Pain, No Gain” Rule)

  7. Logic of Jacque: Background P wins Intentional Trespass Claim;Jury Awards Nominal Compensatory & $100KPunitives Lower courts don’t allow punitivesunder “No Pain, No Gain” Rule WiscSCtReverses Holds punitives without compensatory damages allowed for intentional trespass. (Limits “No Pain, No Gain” Rule)

  8. Logic of Jacque: Scope of Existing Precedent WiscSCt Stated General “No Pain No Gain” Rule in Barnard (1917) BUT bottom para P56: “Whether nominal damages can support a punitive damage award in the case of an intentional trespass has never been squarelyaddressed by this court.” What does “squarely” mean here? Why isn’t issue “squarely” addressed by Barnard?

  9. 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)?

  10. 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)?

  11. 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

  12. 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? Look to Non-Binding Precedent Look to Policy

  13. Logic of Jacque: Approach w/o Binding Precedent Existing Related Precedent: McWilliams 1854 = Very early Wisccase (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?

  14. 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

  15. 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-monetizableharms from last class  Wischas reasons to deter even w/o compensatory dmgs, Small Criminal fine insufficient to deter  so need punitives(legalv. factual support for punitives)

  16. 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?

  17. 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?

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

  19. PROPERTY A (1/20) LOGISTICS: LUNCHES, PANELS, CONTACT INFO LOGIC OF JACQUE PUNITIVE DAMAGES: CHOICES & POLICY TRANSITION TO SHACK SHACK: ROADS NOT TAKEN

  20. 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.

  21. 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 WiscSCtdecision to stand; or (ii) change law back to majority rule; or (iii) change law to something different

  22. Players in System Have Choices  ImportantSkill: 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.

  23. 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.) (cf. Constitutional concern raised last time & multiplier acting on Zero)

  24. 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?

  25. 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) WiscSCtclearly thinks deterring non-tangible harms is worth risking these costs. Legislature could disagree.

  26. 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)

  27. 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

  28. PUNITIVE DAMAGES: CHOICES & POLICY DQ1.04: How Persuasive is… (c) AsNote 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?

  29. 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)

  30. 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)

  31. 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

  32. 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

  33. PROPERTY A (1/20) LOGISTICS: LUNCHES, PANELS, CONTACT INFO LOGIC OF JACQUE PUNITIVE DAMAGES: CHOICES & POLICY TRANSITION TO SHACK SHACK: ROADS NOT TAKEN

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

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

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

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