PROPERTY A SLIDES

PROPERTY A SLIDES 1-22-15

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PROPERTY D (1/22) APPROACHING SECOND SEMESTER Transition to Shack (continued) Shack: The Roads Not Taken

Approaching Second Semester Where You Are at End of First Semester Special Difficulties of Second Semester What To Do Now

Approaching Second Semester Where You Are at End of First Semester “I Guess You’re Right.” (!)

Approaching Second Semester Where You Are at End of First Semester Special Difficulties of Second Semester Schedule Coping with Grades What To Do Now

Approaching Second Semester B. Special Difficulties of Second Semester Schedule L. Comm. Heavy in April Short Turnaround at End w/o Thanksiving Last Day of Class = Wed 4/22 Property Exam = Mon 4/27 (a.m.) Need to Get More Exam Prep Done Earlier

Approaching Second Semester Where You Are at End of First Semester Special Difficulties of Second Semester Schedule Coping with Grades What To Do Now

Coping with Grades Motivation Issues

Coping with Grades Motivation Issues Meaning of Grades Not Good Measure of You as a Person

Which of The Following is the Most Annoying? • Flo in Progressive ads B. Guys in Sonic ads C. Dick Vitale

Which of The Following is the Most Annoying? • Flo in Progressive ads • Guys in Sonic ads • Dick Vitale D. Classmates Who Let Everyone Know About Their High Grades

Coping with Grades Motivation Issues Meaning of Grades Not Good Measure of You as a Person Not Good Measure of Your Potential as a Lawyer

Approaching Second Semester Where You Are at End of First Semester Special Difficulties of Second Semester What To Do Starting Your Second Term?

Approaching Second Semester Where You Are at End of First Semester Special Difficulties of Second Semester What To Do Now?

Approaching Second Semester Where You Are at End of First Semester Special Difficulties of Second Semester What To Do Now? Own Your Grades/Work on Exam Technique

Approaching Second Semester Where You Are at End of First Semester Special Difficulties of Second Semester What To Do Now? Own Your Grades/Work on Exam Technique Work on Lawyering Skills

FINAL EXAM QUESTIONSChoose Three of Four • XQ1: LAWYERING • XQ2: SHORT ANSWERS (Choose Three of Four) • XQ3: OPINION/DISSENT • XQ4: TRADITIONAL ISSUE-SPOTTER

Approaching Second Semester Final Point

PROPERTY D (1/22) APPROACHING SECOND SEMESTER Transition to Shack (continued) Shack: The Roads Not Taken

TRANSITION TO SHACK Rights v. Interests (Tuesday) Necessity & Limits on the Right to Exclude (DQ1.05-1.06) Chapter 1 in the Property Course Overvew of the Case Why So Much Time on 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.

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

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? • We’ll return to this Q during the course.

TRANSITION TO SHACK: Limits on the Right to Exclude & Structure of Course • Voluntary Transfers: Rights & Limits • Involuntary Transfers • Chapter 1: Right to Exclude & Its Limits

Property A: Topics Covered Voluntary Transfers: Rights & Limits Chapter 3B: Wills Chapter 4: Estates & Future Interests Chapter 6: Leases Chapter 7A: Express Easements Involuntary Transfers Chapter 1: Right to Exclude & Its Limits

Property A: Topics Covered Voluntary Transfers: Rights & Limits Involuntary Transfers Chapter 2: Eminent Domain Chapter 3A: Intestacy Chapter 5: Adverse Possession Chapter 7B: Implied Easements Chapter 1: Right to Exclude & Its Limits

Property A: Topics Covered Voluntary Transfers: Rights & Limits Involuntary Transfers Chapter 1: Right to Exclude & Its Limits Owners voluntarilyallow some third parties to enter their land Sometimes this means they involuntarilylose the right to exclude some other people as well

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”)

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

TRANSITION TO SHACK: Overview of Case • D. Novel case, so attorneys tried many theories (S3-4, S6) • Bottom Line : NJSCt decides Ds (and others) are allowed on Tedesco’s land without his permission (with some restrictions) • 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

TRANSITION TO SHACK: Overview of Case • Why Extensive Coverage of Shack? • Subject Matter • First example of a limit on the right to exclude in particular circumstances • Unlike Materials later in Chapter 1, farm here not generally open to public, so arguably bigger deal to nterfere with right to exclude

TRANSITION TO SHACK: Overview of Case • Why Extensive Coverage of Shack? • Subject Matter • Technique: Making Arguments from Cases • Three Common Sources (We’ll Use for Problems Mon  Tue) • Facts/Holding • Specific Language • Underlying Policy • Shack is good practice: lot of useful language & complex rationales • Can usefully compare to statutory scheme (Florida)

FINAL EXAM QUESTION 2SHORT ANSWERS (3 of 4) • E.g., Review Problems 1A-1F • Tightly Focused Problems (Generally One Subject) • Time Allotment for Each: • ~5 Minutes to Read/Outline • ~20 Minutes to Write

FINAL EXAM QUESTION 2SHORT ANSWERS (3 of 4) Relevant Skills • Reading Carefully/Following Directions • Strong Understanding of Relevant Authority • Identifying Best Arguments for Each Party (Won’t Be Clear Winner) • Recognizing Significance of Facts in Problem

PROPERTY D (1/22) APPROACHING SECOND SEMESTER Transition to Shack (continued) Shack: The Roads Not Taken Necessity (DQ1.06 cont’d) Bargaining (DQ1.07) Constitutional Law (DQ1.08)

SHACK: ROADS NOT TAKENDQ1.06: Necessity • Ds going on the land here to: • Remove stitches • Discuss legal problem • Provide literature re fed’l assistance • Are these facts similar enough to situations you have identified [as likely to constitute “necessity”] that they should fall within this rule? Why or Why Not?

Comparing Facts: Recurring Issues Helpful to Articulate Characterizationsthat Facilitate Comparisons. E.g., Examples of Necessity mostly address Immediate Threats to Persons or Property ShackDs not addressing Immediate Threats

Comparing Facts: Recurring Issues Helpful to Articulate Characterizations that Facilitate Comparisons. Level of Generality Affects Significance. E.g., “Provide Medical Treatment” v. “Remove Stitches” “Provide Legal Advice” v. “Deliver Pamphlets”

SHACK: ROADS NOT TAKENDQ1.06: Necessity Common error among past students: Saying necessity was basis of decision; it isn’t! What evidence can you find in the opinion that necessity was not the legal theory that formed the basis of the court’s decision?

SHACK: ROADS NOT TAKEN: DQ1.06: Necessity • Evidence that necessity was notthe legal theory that formed the basis of the court’s decision includes … • Generally: “We see no profit in trying to decide upon a conventional category and then forcing the present subject into it.” (2d para. on S6) • Discussion of necessity (2d para. on S5) only refers to the existence of the doctrine and provides general cites • “The subject is not static.” (following para.) doesn’t refer to necessity but to limitations on property rights generally • Facts here & inclusion of press don’t look like necessity • How would opinion look different if necessity was basis?

SHACK: ROADS NOT TAKEN: DQ1.06: Necessity If necessity were the basis of its decision, Court would almost certainly: • List/characterize examples of circumstances that had constituted legal necessity in NJ • Compare circumstances here to those examples Note: If a service really is necessary to MWs, rights under Shackprobably apply, but case is quite clear that facts don’t have to fit into doctrine of necessity to trigger Shack rights.

PROPERTY D (1/22) APPROACHING SECOND SEMESTER Transition to Shack (continued) Shack: The Roads Not Taken Necessity (DQ1.06 cont’d) Bargaining (DQ1.07) Constitutional Law (DQ1.08)

SHACK: ROADS NOT TAKENDQ1.07: Bargaining • Very important alternative almost always relevant in this course is bargaining (private agreement). • Let parties negotiate contracts; state just intervenes to enforce • Generally good reasons to rely on private bargaining: • i) usually lower administrative costs than regulation • ii) autonomy/clarity of interest: people better than the gov’t at identifying & articulating their own interests

PROPERTY A SLIDES