1. 1-30-17 National Croissant Day & National Bubble Wrap Appreciation Day
PROPERTY A SLIDES
National Croissant Day &
National Bubble Wrap Appreciation Day

2. More Music to Accompany Shack: Rolling Stones, Sticky Fingers (1971)
Dean’s Fellow
Starting Tomorrow
I’ll Post More Specific Coverage Info after Class Today
Tuesday 9:30-10:20 a.m. (Room E265) (New Room)
Thursday 9:30-10:20 a.m. (Room F February Only)
Lunch Today
Meet on 11:55
Braun * Gray * Hollis
Karian * McGlashen
Mermell * Strong

3. LOGISTICS: Thursday: Panels Begin
Panels Listed on Course Page (National Parks)
I expect high level of preparation
Transition: Alphabetical Division Today & Tomorrow
Slides: Alerts () & Headers (Be Ready to Go!!)
Noise In/Noise Out
EVERGLADES:
EGRET IN
MANGROVE SWAMP

4. MONday Pop Culture Moment
Mary Tyler Moore ( )
A Brief Tribute

5. Recap (Every Monday) Previously in Property A
Right to Exclude
Significance
Jacque allows punitives w/o compensatory damages to protect
Necessity as one limit on right
Shack as another limit on right

6. Previously in Property A
Right to Exclude
Shack v. State Language & Reasoning
Court does not rely on
Traditional property categories like Necessity or Landlord-Tenant Law
Constitutional theories raised by parties
Bargaining/Agreements between Employers & MWs

7. Previously in Property A
Right to Exclude
Shack v. State Language & Reasoning
Court does not rely on Necessity, Constitution or Bargaining
Relies on its own ability to determine common law of Property in announcing limit on right to exclude in NJ
Lot of useful language
Re Limits on Employer Right to Exclude
Re Protection of Employer Interests

8. Previously in Property A
Right to Exclude
Shack v. State Language & Reasoning
Lot of useful language
Re Limits on Employer Right to Exclude
Re Protection of Employer Interests
Note: Description of Tedesco as “Employer” (rather than “Farmer” or “Landowner”) suggests that employment relationship may be basis of Shack limits.

9. SHACK: What the Case Says
Theory of the Case (DQ )
“Rules” (DQ1.10)
Protecting Owners (DQ1.11 & 1.13) (cont’d)
DQ1.13 = Last Names F-L
Shack & Jacque (DQ1.12)

10. SHACK: WHAT THE CASE DOES DQ1.11 & 1.13: Protections of O’s Interests
Limits on Shack’s Right of Access (Recap):
As noted above, 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

11. SHACK: WHAT THE CASE DOES DQ1.11 & 1.13: Protections of O’s Interests
Nice Contrasting Points from Last Time re Lack of Specificity:
Chinchilla: Owners Would Like More Specific Authorizations. E.g.,
Time Limits
# of Visitors at at One Time
Mermell: Recognition of O’s Interests in Privacy, Security, Business Operation Allows Court to Permit Appropriate Restrictions
Further Examples of O’s Concerns (per Monteiro)
Liability Concerns  Look at Insurance
Trade Secrets  Limits on Location

12. SHACK: WHAT THE CASE DOES DQ1.11 & 1.13: Protections of O’s Interests
You represent the NJ Apple-Growers Assn. Members approach you to express their unhappiness with Shack. (Last Names F-L)
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?

13. SHACK: WHAT THE CASE DOES DQ1.11 & 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 jurisd. (hard for apple-growers)

14. SHACK: WHAT THE CASE DOES DQ1.11 & 1.13: Protections of O’s Interests
Common 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.

15. SHACK: What the Case Says
Theory of the Case (DQ )
“Rules” (DQ1.10)
Protecting Owners (DQ1.11 & 1.13)
Shack & Jacque (DQ1.12)
Last Names M-N

16. SHACK: WHAT THE CASE DOES DQ1.12: Shack & Jacque (Last Names M-N)
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?

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

18. Comparing Facts of a Case to New Situations
Any time you are comparing facts of a case to a new situation, you need to:
Identify both similarities and differences
(Examples among you)

19. Comparing Facts of a Case to New Situations
Any time you are comparing facts of a case to a new situation, you need to:
Identify both similarities and differences AND
Explain why they should affect the result.
Why similarities suggest treatment should be the same –OR-
Why differences suggest different treatment –OR-
Why one side is more important than the other.

20. APPLYING SHACK TO NEW SITUATIONS DQ1.14: Comparing Facts (The Press)
NJSCt Explicitly Says Press Is Allowed: Why Discuss?
Clearly dicta (no press in case).
Could be arguing at later time about whether NJSCt should adhere to own dicta. (Note: the more time that has passed, the easier it is to do this.)
Could be arguing in another state about extending basic rule in Shack

21. APPLYING SHACK TO NEW SITUATIONS DQ1.14: Comparing Facts (The Press)
Compare press & other groups to whom the NJSCt gives access (Last Names M-N)
Identify Similarities
Identify Differences

22. DQ1.14: Comparing Facts (The Press) (Last Names M-N) What Do Lists Suggest re How to Treat Press?
Similarities Include …
Differences Include …
Could help MWs
Can provide info (press report in one place  info to others)
Serving public interest (w specific textual mandate (1st Amdt))
Specialized training (v. stopping by to see if you need anything)
See Harvest of Shame (CBS 1960)
Not helping specific people
Not necessarily helping when present
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

23. Application of Shack Application to New Situations
Fact Comparisons
Application to New Situations
Generally/Intro to XQII
2015 Problem IIB
DQ1.15: Extension to New Situations
Review Problems

24. 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

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

26. FINAL EXAM QUESTION 2 SHORT 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)

27. APPLYING SHACK: Rev Probs 1A & 1B
Review Problem 1A (S8) Tomorrow
Last Names S-Z:   (Arguments for Landowner)
Last Names O-R:  (Arguments for MWs/LON)
Review Problem 1B (S8) Thursday
EVERGLADES: (Arguments for Landowner)
OLYMPIC:   (Arguments for MWs/Pizza)
Prepare in Light of Today’s Discussions

28. APPLYING SHACK: Rev Probs 1A & 1B
A few points to think about (from 2015 Problem IID):
Overall Guide: Do the Challenge (My Question)
Stay within Scope of Shack & Know the Case (Don’t Need 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”)
Address Ways Problem is Different Than What You’ve Seen (Animal!!)
Be Careful of Strong Gut Reactions (Your Beloved Dog v. Junk Yard Dogs)