PROPERTY B SLIDES

1. PROPERTY B SLIDES 1-25-19 National Florida Day

2. More Music to Accompany Shack: Rolling Stones, Sticky Fingers (1971) Lunch Logistics: • Meet on Bricks after 11:00 class • Bring lunch or purchase after checking in with me • Notify other student attending or my assistant Tina if going to miss or be late • We’ll end up in Law Room in Shalala Center • Check online schedule to add or change your date Lunch Today Meet on Bricks @ 12:25 Bailkin * Blekht * Crawford Rothstein * Shayne

3. LOGISTICS: DFs & Attendance Sheets Dean’s Fellow Sessions MWFStarting Monday Mon = Brendan (After Class Here) Wed = Lauren (After Class TBA) Fri = Alternating (After Class TBA) Three Problems Every Two Weeks: Details Posted on Course Page Attendance Sheets: If you arrive after attendance sheet passes, check in with me at break to ensure you get marked “Late” rather than “Out”

4. LOGISTICS: Monday: Panels Begin • Panels = National Parks • Listed on Course Page • Despite Gov’t Shutdown • I expect continued high level of preparation • Transition: Alphabetical Division Today & Monday • Slides: Alerts ()& Headers (Be Ready to Go!!) EVERGLADES: EGRET IN MANGROVE SWAMP

5. SHACK: What the Case Says Theory of the Case (DQ1.08-1.09) “Rules” (DQ1.10) Protecting Owners cont’d (DQ1.11 & 1.13) Shack & Jacque (DQ1.12)

6. SHACK: WHAT THE CASE DOESDQ1.11 & 1.13: Protections of O’s Interests Are Limits on Shack’s Right of Access Sufficient to Protect O’s Interests? (Got Some Ideas Wednesday) O can exclude solicitors/peddlers if … • doesn’t deprive MWs of practical access to things they need. • purpose is not to gain a commercial advantage Os can reasonably require visitors to identify selves and state purpose Visitors cannot … • interfere w farming activities • engage in behavior hurtful to others

7. SHACK: WHAT THE CASE DOESDQ1.11 & 1.13: Protections of O’s Interests • Are Limits on Shack’s Right of Access Sufficient to Protect O’s Interests? (Three Standard Approaches) • Identify key interests and discuss whether rules adequately address. E.g., • Security • Privacy • Smooth Operation of Business

8. SHACK: WHAT THE CASE DOESDQ1.11 & 1.13: Protections of O’s Interests • Are Limits on Shack’s Right of Access Sufficient to Protect O’s Interests? (Three Standard Approaches) • Identify key interests; do rules address? • Identify alternative/additional rules that might better protect O’s interests E.g., • Limit times of access • Limit # of people allowed on land at one time • Limit frequency of visits • NOTE: These all probably are OK under Shack if reasonable

9. SHACK: WHAT THE CASE DOESDQ1.11 & 1.13: Protections of O’s Interests • Are Limits on Shack’s Right of Access Sufficient to Protect O’s Interests? (Three Standard Approaches) • Identify key interests; do rules address? • Identify alternative/additional rules • Discuss whether relevant interests are balanced properly: • Workers’ minimal interest in possible benefits from media oversight is less significant than the owners’ interest in the smooth operation of their businesses because …

10. SHACK: WHAT THE CASE DOESDQ1.11 & 1.13: Protections of O’s Interests Nice Points from 2017/19 re Lack of Specificity: • Hoover: OsWould Like More Specific Authorizations. E.g., • Time Limits • # of Visitors at at One Time • Recognition of O’s Interests in Privacy, Security, Business Operation Allows Court to Permit Appropriate Restrictions • Further Examples of O’s Concerns • Liability Concerns  Look at Insurance • Trade Secrets  Limits on Location

11. SHACK: WHAT THE CASE DOESDQ1.11 & 1.13: Protections of O’s Interests • 1.13. 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. • Because tied to invitation of MWs on land • Even less likely in 1971 • What Other Steps Can You Take?

12. SHACK: WHAT THE CASE DOESDQ1.11 & 1.13: Protections of O’s Interests • 1.13. Possible Steps for Trade Association Include … • Lobby state or fed’l legislators to pass statute to change or eliminate Shack • 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 = one actual response) • Explore leaving state (OK if factories; hard for apple-growers).

13. SHACK: WHAT THE CASE DOESDQ1.11 & 1.13: Protections of O’s Interests • Recurring Issue: 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.

14. SHACK: What the Case Says Theory of the Case (DQ1.08-1.09) “Rules” (DQ1.10) Protecting Owners (DQ1.11 & 1.13) Shack & Jacque (DQ1.12)

15. SHACK: WHAT THE CASE DOESDQ1.12: Shack & Jacque • Is Shack inconsistent with Jacque? • Articulate two different characterizations of the cases: • One highlighting their inconsistency • One suggesting they really are consistent. • Examples of Each?

16. Application of Shack Fact Comparisons Generally (last class) E.g., DQ1.14: The Press (Last Names M-P) Application to New Situations Generally (Intro to XQII) DQ1.15: Extension to New Situations Review Problems

17. APPLYING SHACK TO NEW SITUATIONSDQ1.14: Comparing Facts (The Press) • Compare press & other groups to whom the NJSCt gives access (Last Names M-P) • Identify Similarities • Identify Differences • What Do Lists Suggest About Best Result?

18. DQ1.14: Comparing Facts (The Press) (Last Names M-P)What Do Lists Suggest re How to Treat Press? I’ll Add Slide with Lists

19. DQ1.14: Comparing Facts (The Press) (Last Names M-P)What Do Lists Suggest re How to Treat Press? Similarities Include … Differences Include … Not helping specific people Not necessarily helping when present Less need for face-to-face 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 • Could help MWs (maybe much more than Shack Ds • Can provide info (indirectly: press report in one place  info to others) • Serving public interest (w specific textual mandate (1stAmdt)) • Specialized training (v. stopping by to see if you need anything) • See Harvest of Shame (CBS 1960) (Images on Intro slide from 1/23)

20. Application of Shack Fact Comparisons Application to New Situations Generally/Intro to XQII Review Problem 1G DQ1.15: Extension to New Situations Review Problems

21. Applying Shack: DQ1.15(a)/(b) & Rev. Problems 1A/1B Could do each of these at length, going through: • Application of Key Language • Factual Comparisons to Shack Ds & Press • Relevance of Key Policies Like Protecting O’s Interests • [Possible Alternatives to Allowing Entry] • Overall Best Result In class & DF, we’ll do selected Qs to highlight particular techniques I’ll give you more extensive write-ups of each in Info Memo for Chapter 1

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

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

24. APPLYING SHACK: Rev Probs 1A & 1B • Review Problem 1A (S8) Monday • Last Names C-E:   (Arguments for Landowner) • Last Names F-K:  (Arguments for MWs/LON) • Review Problem 1B (S8) Wednesday • BADLANDS: (Arguments for Landowner) • EVERGLADES:   (Arguments for MWs/Pizza) Prepare in Light of Today’s Discussions

25. APPLYINGSHACKA few points to think about (from Rev Prob 1G = 2015 Problem IID): Overall Guide: Do the Challenge (My Question) • Stay within Scope of Shack & Know the Case (NJSCt Didn’t Require Necessity or Fundamental Right) • Common Sense in Reading (Point of Problem = Very Good Dog) • Don’t Look for Easy Ways Out (E.g., Allergies) • Choose Language that One Side Might Actually Rely On (Not “Dominion Over Destiny” or “Privacy” or Gov’t Workers) • Address Ways Problem is Different Than What You’ve Seen (Animal!!) • Be Careful of Strong Gut Reactions (Your Beloved Dog v. Junk Yard Dogs)