PROPERTY D SLIDES2-4-16

NATIONAL HOMEMADE SOUP DAY

Thursday Feb 4 Music to Accompany JMB:

Cyndi Lauper, Twelve Deadly Sins (1994)

Review Problem 1K(ii) (Tuesday)Review Problem 1K(ii) (Tuesday)Thoughts on Use of FL MW StatutesThoughts on Use of FL MW StatutesUsing Statutes in Issue-Spotter or Short

Problems• Assume Comprehensive Statute Pre-empts Common Law• Application Often Very Literal (1): Need to Discuss Whether Facts Fit into Specific Statutory Provisions. E.g.,

• Press Not Explicitly Listed, So Only Can Get In (If at All) Through Listed Categories of “Other Authorized Visitors”

• Clever Clifton Idea: Is “Assembly Area” Necessarily “Common Area” if Only Used for Dean’s Chats?

Review Problem 1K(ii) (Tuesday)Review Problem 1K(ii) (Tuesday)Thoughts on Use of FL MW StatutesThoughts on Use of FL MW StatutesUsing Statutes in Issue-Spotter or Short

Problems• Application Often Very Literal (2): Assume When Legislature Uses Different Language, It Intends Different Results. E.g., Definition of “Other Authorized Visitors”:

• Provision re Gov’t Funded Services Bans Solicitation• Provision re Reps of Religious Groups Does Not

• Like Other Problems, Give More Time to Issues that Lawyers Will Fight About and are Central to Overall Resolution

Review Problem 1K(ii) (Tuesday)Review Problem 1K(ii) (Tuesday)Thoughts on Use of FL MW StatutesThoughts on Use of FL MW Statutes

Test Prep: Become Familiar w Statutes We Cover• Want Ability to Quickly Recognize Language I Provide• Know Similarities & Differences from Other Authorities• Understand Where Statute is Relatively Clear/Restrictive (Set # of Types of “Other Authorized Visitors”) v. Less Clear/More Room to Argue (“Reasonable”)

Qs on Rev. Prob.1K(ii) or Using Statutes?

Save The Date: Save The Date: Monday Monday March 21 March 21 Test on Chapter 4 @ 8 a.m.Test on Chapter 4 @ 8 a.m.

LogisticsLogistics•70 Minutes (8-9:10 a.m.)•24 Multiple Choice Qs•Closed Book (w Attached Syllabus)•This Room (F209)•Will Be on Assignment Sheet Starting Next Week as Reminder

Your ResponsibilitiesYour Responsibilities•On-Time Arrival•Bring #2 Pencils•Get Midterm Anonymous Grading Number in Week after Spring Break•Arrange Disability Accommodations (if needed)•Address Any Conflicts/Problems w Dean of Students Office (Not Me)

SEQUOIA: REVIEW SEQUOIA: REVIEW PROBLEM 1JPROBLEM 1J

SEQUOIAS

Review Problem 1J: Info from ClientReview Problem 1J: Info from Client

Client uses MWs living onsite to pick crops several wks/yr.

• Large meeting hall next to MW barracks• MWs get Sundays off; invite MWs from nearby

farms to hall for• Religious Service• Social Event after

• Client seeks advice about whether he has to allow

• Asked to describe legal/factual research necessary to advise

Review Problem 1J: Overall Framework Review Problem 1J: Overall Framework (ME)(ME)

Legal Research Needed To Establish Legal Framework

1.Check if state roughly follows Shack by caselaw or statute.2.Check for precise rules & permissible restrictions.3.Look for possible caselaw/statutory language addressing specific issues that might arise, e.g., …

Review Problem 1J: Overall Framework Review Problem 1J: Overall Framework (ME)(ME)

Legal Research Needed To Establish Legal Framework

3.Look for possible caselaw/statutory language addressing:

a. Possible Distinction betweeni) People invited by MWs

• Check if limited like FL to living quarters• Check if limited like Shack if “harm to others”?

ii) People who get access w/o invitationb. Relevant tests used in Shack (e.g., customary assns.)c. Genl info about MWs’ use of off-duty time

Review Problem 1J: List of Major TopicsReview Problem 1J: List of Major Topics

Legal & Factual Research Relevant to the Following Aspects of the Problem … (Notes on

my list of topics):•Lots of ways to approach/organize this problem

• I’m not looking for any particular structure. • Any set of categories/headings (including mine) will

overlap to some extent. •I tried to design this list to help you see issues; good answers would hit on most of these topics somewhere.

Review Problem 1J (SEQUOIA)Review Problem 1J (SEQUOIA)

Legal & Factual Research Relevant to

The Religious Services(We’ll Do in Most Detail)

Major Topics to Explore?

Review Problem 1J (SEQUOIA)Review Problem 1J (SEQUOIA)

The Religious ServicesThe Religious Services: : Major Topics Include…Major Topics Include…• Nature of Services (incl. What Happens; Use of

Clergy)• Possible Harms from Services (incl. C’s Specific

Objections)• Benefits to MWs (incl. % of MWs Participating;

Importance of Services) • Alternatives to Use of Hall on C’s Land

Follow-Up for Each Major Topic Includes …Follow-Up for Each Major Topic Includes …• Thorough/Detailed Development of Facts• Ghostbusters Q (“Who Ya Gonna Call?” = HFO) • Additional Legal Research

Review Problem 1J (SEQUOIA)Review Problem 1J (SEQUOIA)

Legal & Factual Research Relevant to The Social Events

1.Nature of Social Event?2.Possible Harms Different/Separate from Those Caused By Religious Services?3.Benefits/Significance to MWs?4.Other?

Review Problem 1J (ME)Review Problem 1J (ME)

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

•Generally raises legal issues re implied Ks or estoppel

• Unlikely here because MWs hired each year for few weeks

•Could check for written agreements by C or predecessor

• Worst case: E.g., 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)

Review Problem 1J (SEQUOIA)Review Problem 1J (SEQUOIA)

I’ll Post Additional Slides re•The Neighboring Farms that Employ MWs•General Info to Help You Understand the Situation

Plus Comments & Best Student Answers Available at End of

Chapter

Review Problem 1J (SEQUOIA): BONUS Review Problem 1J (SEQUOIA): BONUS SLIDESLIDE

Sample Qs re Neighboring Farms that Employ MWs

• Do C or his employees know which farms other MWs come from?• Any Neighboring Farms hosting similar events or willing to?

Willing to share costs?• Check if C interested in exploring.• Check if C has info or if he’s OK with you asking neighbors.

• How Do Their MWs get to C’s farm? • If motorized, could transport work in reverse? • If walking, are MWs harming C’s or other neighbors’ land by crossing?

• When on C’s Farm, Do Other MWs wander around C’s farm or otherwise create security issues?

Review Problem 1J (SEQUOIA): BONUS Review Problem 1J (SEQUOIA): BONUS SLIDESLIDE

Sample Qs: Gen’l Info to Help You Understand Situation

•How many weeks (or Sundays) are MWs on Cs land?•Client Priorities/Concerns (Biggest concerns for C?)

• Specific trigger for coming to you?• Ok with stopping either relig. service or social event & keeping the other?• Willing to give MWs $$ or other benefits to stop? What/How Much?• Could/Would C change practice of Sunday as off-day?

• Other uses for hall? • That C would prefer? • That would block MW use?

Property Open to the PublicProperty Open to the Public& the Right to Exclude & the Right to Exclude

I. Generally: Your Money’s No Good Here

II.II. Free Speech RightsFree Speech RightsA.A. JMBJMB (including (including SchmidSchmid) & DQ 1.24-1.28 ) & DQ 1.24-1.28

(OLYMPIC) (OLYMPIC) B. Review Problem 1I (BADLANDS) (2/9)C. Review Problem 1K(i) (OLYMPIC) (2/11)

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

Transition Quote (N3 on P84)Transition Quote (N3 on P84)

“[T]he more private property is devoted to public use, the more it must accommodate the rights which inhere in individual members of the general public who use that property .”

--Uston quoting State v. Schmid.

OLYMPIC: DQs 1.24-OLYMPIC: DQs 1.24-1.281.28

EEL GLACIER

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

JMBJMB: Overview: Overview • NJSCT holds that large shopping centers must

permit protestors to have access to hand out leaflets on social issues.

• Our Coverage1. Relevant Interests (DQ1.24-1.25) 2. Logic of Opinion (Me) 3. Application in Future Problems

a. Permissible Regulation (DQ1. 26) b. Relation to Other Right to Exclude Problems (Me & DQ1.27)

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

JMBJMB: DQ1.24: O’s Interests (Olympic): DQ1.24: O’s Interests (Olympic) Possible harms to the owners in JMB:

1.Forced Speech2.Psychic Harm3.Interference with Business

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

JMBJMB: DQ1.24: O’s Interests (Olympic): DQ1.24: O’s Interests (Olympic) Possible harms to the owners in JMB:

1.Forced Speech•1st Amdt Claim: Shoppers will assume leafletters speak for management, so Os effectively forced to say things they disagree with

Are shoppers likely to view protestor speech that way?

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

JMBJMB: DQ1.24 O’s Interests (Olympic): DQ1.24 O’s Interests (Olympic) Possible harms to the owners in JMB:

1.Forced Speech•1st Amdt Claim: Shoppers will assume leafletters speak for management, so Os effectively forced to say things they disagree with•I’m skeptical that shoppers would view that way• Court rejects this claim in portion of opinion not in book

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

JMBJMB: DQ1.24: O’s Interests (Olympic): DQ1.24: O’s Interests (Olympic) Possible harms to the owners in JMB:

1.Forced Speech (claim rejected by NJSCt)2.Psychic Harm

• Feelings of Lack of Control Over Property• Made Worse by Speech if Os Disagree• NOTE: Genuine, but hard to Quantify

Likely to be Very Significant in this Context?

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

JMBJMB: DQ1.24: O’s Interests (Olympic): DQ1.24: O’s Interests (Olympic) Possible harms to the owners in JMB:

1.Forced Speech (claim rejected by NJSCt)2.Psychic Harm

• Would have to convince court that would make significant difference w lots of other people at mall & very broad public invitation

• No claims, e.g., re privacy.• Plus can exclude completely when mall is closed

3.Interference with Business: • Specific Concerns?

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

JMBJMB: DQ1.24: O’s Interests (Olympic): DQ1.24: O’s Interests (Olympic) Specific Business Concerns Include:

•Customers May Not Like Go Elsewhere•Interference w Traffic Patterns/Access to Particular Tenants•Clean-Up•Security/Monitoring•Tort Liability/Insurance

How significant are these harms likely to be?

Right to Exclude: Parcels Open to the PublicRight to Exclude: Parcels Open to the PublicJMBJMB: DQ1.24: O’s Interests (Olympic): DQ1.24: O’s Interests (Olympic)

Points re Significance of Specific Business Concerns: •Customers may not like, BUT if at all malls, they’ll get used to & other malls won’t be better choices•Interference w Traffic & Access Might Be Problem

• BUT Probably Ways to Address without Complete Exclusion• Not Like Foot Traffic Always Flows Smoothly!!

•Average Daily Traffic = 28,750 People• Unlikely to Significantly Impact Clean-Up, Security, etc.• Tort Liability Insurance Premiums (I bet near-zero effect)

•Note Lack of Specificity in Case re Harms to Malls

Right to Exclude: Parcels Open to the PublicRight to Exclude: Parcels Open to the PublicJMBJMB: DQ1.24: O’s Interests (Olympic): DQ1.24: O’s Interests (Olympic)

Business Concerns Articulated in Dissent by Garibaldi, J. (Note 3 incorrect; “her” not “him”)

Anyone Know Historical Irony of a Garibaldi Taking This Position?

GARIBALDIS

LIBERATOR GIUSEPPE

JUSTICE MARIE, DISSENTING