Cooperation and Diversity in Property Law

1. PROPERTY B SLIDES Class #3 (1-18-19) National Winnie-the-Pooh Day

2. Music: Carole King, Tapestry (1971) PANEL SELECTION TODAY AT BREAK • Give me 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 18) & I will assemble into larger groups as needed • Check with people first, then hand in one list per group during break or end of class On Course Page • Lunch Schedule • 2014-17 Final Exams (Posted Later Today)

3. Special Bonus for On-Time Arrivals [MONDAY] Pop Culture Moment Two DISAPPOINTING REVELATIONS ABOUT CHILDHOOD FAVORITES 

4. PROPERTY B: 1/18 Pop Culture Moment (1) ALL FROOTLOOPSTASTETHESAMEREGARDLESSOFCOLOR (Same ForTRIX& FRUITY PEBBLES)

5. PROPERTY B: 1/18 Pop Culture Moment (2) The Alphabet Song & Twinkle Twinkle Little Star Have the Same Melody

6. PROPERTY B: COOPERATION & DIVERSITY • I Highly Recommend Group Work on Class Preparation & Review Problems • Cooperation Benefits All Participants • Diversity (Broadly Understood) Means … • Different experiences • Different points of view • Multiple Ears/Eyes in class/doing readings • You know more collectively than individually

7. PROPERTY B: COOPERATION & DIVERSITY Show of Hands: How Many of You… • Are fluent in language other than English/Spanish/Portuguese? • Moved/changed schools during High School? • You or your family have been landlords of a building separate from your home (during your lifetime)? • You or your family have operated a farm (during your lifetime)? • Have taken a college-level Accounting course? • Are your mother’s second child (in your family’s eyes)? • Have played golf on a real golf course (not Mini-Golf)? • Have visited Asia and/or Africa?

8. PROPERTY B: COOPERATION & DIVERSITY • Some directly relevant to Property cases:,Ifyes to any of those Qs, different than me!! • In addition, you are diverse in other ways that aren’t appropriate for public shows of hands: • Experience w religion, sexuality, jobs • Experience w crime & criminal justice system • Disability/medical problems (yours or family member)  Yields additional diversity point

9. PROPERTY B: FINAL DIVERSITY POINT 96

10. PROPERTY B: FINAL DIVERSITY POINT If you have a disability, or suspect that you may have a disability, the Law School encourages you to contact the Office of Disability Services for information about available opportunities, resources, and services. The phone number is 305-284-9907, and the email address is disabilityservices@law.miami.edu . You may also visit the Office of Disability Services website at www.law.miami.edu/disability-services.

11. Closing UpJacque DQ1.04 continued (lecture)

12. 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) WiscSCt clearly thinks deterring non-tangible harms is worth risking these costs. Legislature could disagree.

13. 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 Baldecchi point made last class

14. 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

15. 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?

16. 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 jurisdiction to consider the issue has said X except California & Tasmania” (both presumptively very strange)

17. 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) Sometimes “leading” states more persuasive

18. 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

19. 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

20. Closing UpJacque Questions?

21. TRANSITION TO SHACK DQ1.06 & 1.05 Context of Case: 1971 Rights v. Interests

22. 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.

23. 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.

24. 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?

25. 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? • Examples include ordinary gov’t activities (inspections; non-emergency police business, etc.); anti-discrimination laws • We’ll return to this Q during the course.

26. TRANSITION TO SHACK DQ1.05-1.06 Context of Case: 1971 Rights v. Interests

27. Significance of History for Us • Background; Not Leading to Multiple Choice Test • Info I’ll give you periodically about beginnings and endings: often useful to be think about changes in society that occur around particular dates. E.g., 1492

28. EUROPE BEFORE 1492 Ireland without potatoes Italy without tomatoes France w/o chocolate or tobacco

29. AFTER 1492 New World  Europe Europe  New World Sugar Cane Cultivation SILVER

30. Significance of History in Law • Judges & Lawyers (& Some Law Profs) = Human • Necessarily influenced by ideas & events of own time • Can make arguments about meaning of case or other authority from historical context • E.g., old rules should not be followed because times have changed • E.g., nobody at time old case was decided would have thought about modern concerns (e.g., environment); we might act differently today

31. Context of Shack: 1971 • 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

32. Context of Shack: 1971: Deaths Nikita Kruschev; Thomas Dewey; Papa Doc Duvalier Louis Armstrong; Jim Morrison; Igor Stravinsky Ogden Nash; Crew of Soyuz 11; Coco Chanel

33. Context of Shack: 1971: Births Shannon Doherty; Ewan McGregor; Winona Ryder Jeff Gordon; Pedro Martinez; Kristi Yamaguchi Snoop Dogg; Ricky Martin; Tupac Shakur; Mary J Blige

34. Context of Shack: 1971: Headlines • 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 in 1971 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

35. Context of Shack: 1971 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 ofstrong 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

36. Context of Shack: 1971: Seeds of Change • 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

37. Context of Shack: 1971: Seeds of Change 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

38. Context of Shack: 1971: Seeds of Change 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 seen at the time as outside mainstream of legal thought • BUT foreshadows change in both this self-perception of courts and in range of acceptable conservative thought.

39. TRANSITION TO SHACK DQ1.05-1.06 Context of Case: 1971 Rights v. Interests

40. 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.

41. 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.”)

42. 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!!)

43. 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., • Ownerinterestsin privacy, security, operation of farm • MWinterestsin receiving helpful services & info Qs on rights/interests?

44. OUR COVERAGE of SHACK • 1. Look at possible theories not relied on by NJSCt (Roads Not Taken) • 2. Look at what court actually did. • Apply case to new situations.

45. Shack: The Roads Not Taken Necessity (DQ1.06 cont’d) Bargaining (DQ1.07) Constitutional Law (DQ1.08)

46. 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?

47. 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

48. 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”

49. 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?

50. DQ1.06: Evidence that necessity was notthe 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?