PROPERTY D SLIDES2-4-14

Tuesday Feb 4: Music Tina Turner, Private Dancer

(1984)Lunch Today (Meet on Bricks @ 12:25):

Gallagher, L; Greenberg; Munroe; Rostock

Thursday: Begin with Rev Prob 1H (Biscayne)Then Pick Up w Chapter 2 Wherever We Leave Off

PROPERTY D (2/4)1. Continue Review Problem 1I (Arches)2. JMB cont’d & Closing Up Ch. 1: DQ1.27-1.29

3. Intro to Chapter 2 & Midkiff & DQ2.01-2.06

ARCHES: Review Problem 1I

DELICATE ARCHES

Right to Exclude: Review Problem 1I Right to Exclude: Review Problem 1I (Arches)(Arches)

Legal & Factual Research Relevant to The Religious Services

•Last Time• Check Nature of Services/Use of Clergy • Check Importance of Services to MWs

•Today: 1. Explore Possible Harms Caused By Services2. Alternatives to Use of Hall on C’s Land3. Additional Legal Research

Right to Exclude: Review Problem 1I Right to Exclude: Review Problem 1I (Arches)(Arches)

Legal & Factual Research Relevant to The Social Events

1.Benefits/Significance to MWs2.Possible Harms Different Separate from Those Caused By Religious Services

Right to Exclude: Review Problem 1I Right to Exclude: Review Problem 1I (Arches)(Arches)

Legal & Factual Research Relevant to Client Having Allowed This Access in the Past

•Generally raises legal issues re implied contracts or estoppel

• Unlikely here because MWs hired each year for a few weeks

•Could check for written agreements by C or predecessor

• Worst case: Prior O agreed to access b/c MWs helped build hall

•Could check for legal significance of prior authorization (e.g., court then skeptical that harm is great)

Right to Exclude: Review Problem 1I Right to Exclude: Review Problem 1I (Arches)(Arches)

Legal & Factual Research Relevant to The Neighboring Farms that Employ MWs

Right to Exclude: Review Problem 1I Right to Exclude: Review Problem 1I (Arches)(Arches)

Legal & Factual Research Relevant to the Following Aspects of the Problem:

General Info to Help You Understand the Situation

PROPERTY D (2/4)1. Continue Review Problem 1I (Arches)

2. JMB cont’d & Closing Up Ch. 1: DQ1.27-1.29 (Yellowstone)

3. Intro to Chapter 2 & Midkiff & DQ2.01-2.06

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeWhat Kind of Problems Might You ExpectA.A.Assume Assume JMB JMB or or Pruneyard Pruneyard Applies: What Applies: What Specifically Can/Can’t Mall Owners Do to Address Specifically Can/Can’t Mall Owners Do to Address ProtestorsProtestorsB.Apply Schmid & JMB to Determine if Right to Exclude Should be Limited in Particular Context for Speech Rights or Other Public Policy ConsiderationsC.Discuss Appropriate Scope of Right to Exclude in New Situations Using All Materials in Chapter 1 as Persuasive Authority

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeA.Assume JMB or Pruneyard Applies: What

Specifically Can/Can’t Mall Owners Do to Address Protestors

1. We’ll explore in Rev Prob 1H Thurs; See also 1G2. DQ1.27: Suppose you represent the owners of a

relatively small mall in NJ. What would you tell your clients re the following Qs about J.M.B.?

• Assume no additional cases or regulations• Helpful to point to specific evidence from facts, language, logic of

case.• OK to use common sense (e.g., seems pretty unlikely that could

limit protestor access to top floor of parking garage)

YELLOWSTONE (DQ1.27-1.28)

GIANT GEYSER

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to Exclude

DQ1.27(a) (Yellowstone): Does case open up all malls in the

state to protestors or will its application be determined on a

case-by-case basis for each mall? (Evidence from JMB?)

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeDQ1.27(a) (Yellowstone): Will application of JMB be determined on a case-by-case basis? Evidence includes:•All malls in original case quite large• “Regional” or “Community” Shopping Centers• At least 71 stores & 27 acres (P86)• Ruling “limited to leafletting at such centers” (P85)

•Schmid analysis consistent with case-by-case• Public invitation could be less broad • Compatibility could be less • Cf. Princeton Univ. [or UM] v. small private residential college

• BUT: Likely no need to redo analysis for other large malls.

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeDQ1.27(b): Assuming the case governs, do all

political/protest groups have to be treated alike? Evidence includes:• Common Sense: Can exclude groups if significant

problems during past visits. • Otherwise: Basis in 1st Amdt • Might suggest treating all groups/messages the same• BUT (P91) refers to anti-war protest as “most substantial”

and “central to the purpose” of 1st Amdt interests; leaves room for argument about other issues

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeDQ1.27(b): Assuming the case governs, do all

political/protest groups have to be treated alike? • Common Sense: Can exclude if significant problems

during past visits. • Basis in 1st Amdt suggests treating all groups/messages

the sameHard Q not addressed in JMB or Pruneyard:

Should you treat differently if targeting particular stores in mall? (pros & cons)

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeHard Q not addressed in JMB or Pruneyard:

Should you treat differently if targeting particular stores in mall?

See Fashion Valley Mall v. NLRB, 172 P.3d 742 (Cal. 2007)California case noted in class (Warren)Forbids mall from excluding peaceful protestors because they are requesting that shoppers boycott a particular mall tenant.No specific info on whether mall is allowed to place special restrictions on these protestors re proximity to targeted business

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeDQ1.27(c) (Yellowstone): Under JMB, what kinds of

limits or requirements can the mall impose on protestors?

Most important phrase likely is … Malls have “full power to adopt … time, place & manner [restrictions] that will assure … that … leafletting does not interfere with the shopping center’s business while … preserving the effectiveness of plaintiff’s exercise of their constitutional right.” (P90)•Incorporates/balances both sides interests

Other Evidence from JMB?

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeDQ1.27(c): Permissible limits or requirements?

Other Evidence from JMB?•General standards• P85 “reasonable conditions” • P88 describing Scmid: “reasonable regulations”• P89 quoting Schmid: “suitable conditions”

•P86: conditions noted that presumably go too far• can’t approach shoppers• insurance coverage FOR $$1m+

•P85: case seems to be limited to passing out leaflets & related activity; suggests, e.g., no harassment or loud noises

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeDQ1.27(c): Permissible limits or requirements

might include: • Operate in Designated Areas• Limits on Shopper Interactions• Back away if shopper indicates leaflet unwanted• Limits re noise level, politeness, etc.

• Clean Up leaflets left around• Reasonable $$$ Deposits for Security/Maintenance?

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeWhat Kind of Problems Might You ExpectA.Assume JMB or Pruneyard Applies: What Specifically Can/Can’t Mall Owners Do to Address ProtestorsB.B.Apply Apply Schmid Schmid & & JMB JMB to Determine if Right to Exclude to Determine if Right to Exclude Should be Limited in Particular Context for Speech Rights Should be Limited in Particular Context for Speech Rights or Other Public Policy Considerationsor Other Public Policy ConsiderationsC.Discuss Appropriate Scope of Right to Exclude in New Situations Using All Materials in Chapter 1 as Persuasive Authority

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeApply Schmid & JMB to Determine if Right to Exclude Should be Limited in Particular Context for Speech Rights or Other Public Policy Considerations1. I’m not going to ask you to decide from scratch what scope of state’s 1st Amdt should be2. Might ask you to assume Schmid/JMB are good law & apply to different claims of free speech access (e.g., Rev. Probs 1J-1K)3. Might give you genl scope of rt to exclude Q & you could use Schmid/JMB as one way to analyze (e.g., Rev. Prob. 1L)

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeDQ 1.28 (Yellowstone): Apply Schmid & JMB to Issue in Shack

(1)Discussion of Schmid Test (P89)•Use to decide when 1st Amdt requires access to private property open (for some purposes) to public•Can use by analogy for other limits on Rt to Exclude•Once access allowed, test largely unhelpful for deciding what restrictions allowable; Schmid just says they must be “reasonable”

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeDQ 1.28 (Yellowstone): Apply Schmid & JMB to Issue in Shack

(1)Discussion of Schmid Test (P89)i.Normal Use of Private Propertyii.Extent & Nature of [Public] Invitation

iii.“[P]urpose of the expressional activity … in relation to both the public & private use of the property”

Right to Exclude: Parcels Open to the PublicRight to Exclude: Parcels Open to the PublicJMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to Exclude

DQ 1.28 (Yellowstone): Apply Schmid & JMB to Issue in Shack

(1)Discussion of Schmid Test (P89)iii.“[P]urpose of the expressional activity … in relation to both the public & private use of the property” •(P91) This test: “examines the compatibility of the free speech sought with the uses of the property.” Means?• McCarten argument yesterday: compatibility as subjective:

seeming to fit (like relationship) (reasonable interpretation of language)

• Discussion in JMB seems to focus more on whether speech causes objective harm to existing uses.

Right to Exclude: Parcels Open to the PublicRight to Exclude: Parcels Open to the PublicJMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to Exclude

DQ 1.28 (Yellowstone): Apply Schmid & JMB to Issue in Shack

(1)Discussion of Schmid Test (P89)iii.“[P]urpose of the expressional activity … in relation to both the public & private use of the property:” Look at compatibility.•Can use for non-speech access: “examines the compatibility of the [access] sought with the uses of the property”•Note that Schmid (& JMB that follows) allow reasonable restrictions to facilitate compatibility

Compatibility w Farm to Allow Shack Ds?

Right to Exclude: Parcels Open to the PublicRight to Exclude: Parcels Open to the PublicJMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to Exclude

DQ 1.28 (Yellowstone): Apply Schmid & JMB to Issue in Shack

(2) Comparison of facts of Shack to facts of JMB?

Right to Exclude: Parcels Open to the PublicRight to Exclude: Parcels Open to the PublicJMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to Exclude

DQ 1.28 (Yellowstone): Apply Schmid & JMB to Issue in Shack

(2) Comparison of facts of Shack to facts of JMB Include…

•Much less open to publ/smaller invite•BUT requested access also smaller (targeting)•Similar re need for balance of O’s interests•Similar re difficulty of speakers getting info across otherwise?•Importance of Info to recipients maybe greater in Shack• Note Alternate 1st Amdt Theory Focused on Recipients• Princeton & Marsh & Shack v. JMB

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeWhat Kind of Problems Might You ExpectA.Assume JMB or Pruneyard Applies: What Specifically Can/Can’t Mall Owners Do to Address ProtestorsB.Apply Schmid & JMB to Determine if Right to Exclude Should be Limited in Particular Context for Speech Rights or Other Public Policy ConsiderationsC.C.Discuss Appropriate Scope of Right to Exclude in Discuss Appropriate Scope of Right to Exclude in New Situations Using All Materials in Chapter 1 as New Situations Using All Materials in Chapter 1 as Persuasive AuthorityPersuasive Authority

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeScope of Right to Exclude in New Situations: Possible Scope of Right to Exclude in New Situations: Possible

Relevant Considerations (Could Try to Use for Non-1Relevant Considerations (Could Try to Use for Non-1stst Amdt Amdt Speech Access)Speech Access)

•Protection of disadvantaged groups. E.g., • Anti-Discrimination Law• Shack & MWs

•Relationship to Govt or Law• Implied K from Support of Govt for creation or operation of enterprise• B/c Rt to Excl derives from state common law in 1st instance, arguably can’t be used in

way that violates public policy (Shack)•Economic Concerns• Monopoly Concern w Innkeeper Rule• Furthering Commerce w Innkeeper Rule

PROPERTY D (2/4)1. Continue Review Problem 1I (Arches)2. JMB cont’d & Closing Up Ch. 1: DQ1.27-1.29

3. Intro to Chapter 2 & Midkiff & DQ2.01-2.06 (Redwood)

Chapter 2: The Eminent Domain Power Chapter 2: The Eminent Domain Power & the Public Use Requirement& the Public Use Requirement

•Federal Constitutional BackgroundFederal Constitutional Background•Deference, Rational Basis, Heightened Scrutiny• The Fifth Amdt, Eminent Domain & Public Use• Limited Federal Review Under Berman & Midkiff

•State Public Use Standards•Kelo & Beyond

Chapter 2 : Federal Chapter 2 : Federal ConstitutionalConstitutional BackgroundBackground

Federal Courts Determining if State Law Federal Courts Determining if State Law Violates US ConstitutionViolates US Constitution

•Often in Con Law I: “Procedural” Often in Con Law I: “Procedural” •Not Looking at Substance of Law• Looking at Authority (v. Feds) Over Subject Matter. E.g., • Pre-emption by Congress• Dormant Commerce Clause

Chapter 2 : Federal Chapter 2 : Federal ConstitutionalConstitutional BackgroundBackground

Fed’l Cts Determining if State Law Violates US Fed’l Cts Determining if State Law Violates US ConstitutionConstitution

•““Procedural” (Subject Matter/State v. Fed’l Authority)Procedural” (Subject Matter/State v. Fed’l Authority)•CompareCompare: Review of Substance Employed to Check : Review of Substance Employed to Check Validity Under 14th Amdt and Bill of RightsValidity Under 14th Amdt and Bill of Rights• Most people believe this should not include determining whether the statute is a good idea as a matter of policy.

DQ 2.05 (Me): Why shouldn’t a federal court strike down a state statute because it’s unlikely to do a good job achieving its purpose or because it’s simply stupid?

Chapter 2 : Federal Chapter 2 : Federal ConstitutionalConstitutional BackgroundBackground

Fed’l Cts Determining if State Law Violates US Fed’l Cts Determining if State Law Violates US ConstitutionConstitution

“Why shouldn’t a federal court strike down a state statute because it’s stupid?” Common Answers:•Democratic Theory:• State Legislature is Elected Body; Fed’l Court is Not• Remedy for Mistakes by Legislature is Elections

•Relative Expertise: • Legislature Can Do Better Fact-Finding Than Court• Local Officials May Have Better Handle on Local Problems