1. 1-24-17 National Peanut Butter Day
PROPERTY A SLIDES
National Peanut Butter Day

2. Music: Carole King, Tapestry (1971)
Now on Course Page
Syllabus & Assignment Sheet
Lunch Schedule
Office Hours
Slides from My Exam Tips Workshop
2014, 2015, 2016 Final Exams

3. TRANSITION TO SHACK (1/24)DQ
Why So Much Time on Shack?
Overview of the Case
Context of Case: 1971
Rights v. Interests

4. 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.

5. 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.

6. NECESSITY & Other Limits on the Right to Exclude (DQ1.05-1.06)
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.

7. TRANSITION TO SHACK (1/24)DQ
Why So Much Time on Shack?
Overview of the Case
Context of Case: 1971
Rights v. Interests

8. Why Extensive Coverage of Shack?
TRANSITION TO SHACK
Why Extensive Coverage of Shack?
Subject Matter
First example of a limit on the right to exclude in particular circumstances
Unlike materials later in Chapter 1, farm here not generally open to public, so arguably bigger deal to interfere with right to exclude

9. Why Extensive Coverage of Shack?
TRANSITION TO SHACK
Why Extensive Coverage of Shack?
Subject Matter
Technique: Making Arguments from Cases
Three Common Sources (Use for Problems Next Week)
Facts/Holding
Specific Language
Underlying Policy
Shack is good practice: lot of useful language & complex rationales (NOT Tweetable)
Can usefully compare to statutory scheme (Florida)

10. TRANSITION TO SHACK (1/24)DQ
Why So Much Time on Shack?
Overview of the Case
Context of Case: 1971
Rights v. Interests

11. TRANSITION TO SHACK: Overview of Case
A. Land in Q is in Deerfield Township: Agricultural area 30 miles due south of Philadelphia.
(NJ is “Garden State”)

12. TRANSITION TO SHACK: Overview of Case
B. Tedesco (O) owns farm on land; hires migrant workers (MWs) & houses them on land during employment.
C. Legal servs. lawyer & health services worker (Ds) enter land (uninvited by O) to help particular MWs they know have problems
1. O asks Ds to leave; they refuse.
2. Ds arrested & convicted of criminal trespass –
a. Statute as described in Note 4 after Jacque
b. NJ statute requires refusal to leave when asked

13. TRANSITION TO SHACK: Overview of Case
D. Novel case, so attorneys tried many theories (S3-4, S6)
Bottom Line :
NJSCt decides Ds (and others) are allowed on Tedesco’s land without his permission (with some restrictions)
To understand opinion, helpful to view in conext of time (1971)

14. TRANSITION TO SHACK (1/24)DQ
Why So Much Time on Shack?
Overview of the Case
Context of Case: 1971
Rights v. Interests

15. Album of Year: Tapestry Best Picture: The French Connection
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

16. Nikita Kruschev; Thomas Dewey; Papa Doc Duvalier
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

17. Shannon Doherty; Ewan McGregor; Winona Ryder
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

18. 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 to Fight Inflation
Wall Street approves of this intervention in market
Responds w biggest one-day gain in Dow Jones to date, 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

19. E.g., Deaths of Ex-Presidents (Ford v. Truman/ Johnson/Eisenhower)
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 of strong 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

20. 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

21. 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

22. 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 as outside mainstream of legal thought
BUT foreshadows change in both this self-perception of courts and in range of acceptable conservative thought.

23. TRANSITION TO SHACK (1/24)DQ
Why So Much Time on Shack?
Overview of the Case
Context of Case: 1971
Rights v. Interests

24. 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 for right asserted.
Thus, might say after Shack was decided:
Migrant workers on land now have right to access to certain outsiders. Shack.
Tedesco now has no right to exclude Ds. Shack.

25. 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 right to exclude all. 
(But in NJ after Shack, they don’t have that “right.”)

26. 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 right to exclude all.
(Which raises Q of why!!)

27. TRANSITION TO SHACK: “RIGHTS” v. “INTERESTS”
“Rights” = what legal system allows parties to do.
Owners should (or should not) have the right to exclude all, because …
Then need to talk about what we’ll call “interests” (= needs & desires of parties & state) E.g.,
Owner interests in privacy, security, operation of farm
MW interests in receiving helpful services & info

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

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

30. SHACK: ROADS NOT TAKEN DQ1.06: 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?

31. Comparing Facts: Recurring Issues
Helpful to Articulate Characterizations that Facilitate Comparisons. E.g.,
Examples of Necessity mostly address Immediate Threats to Persons or Property
Shack Ds not addressing Immediate Threats

32. 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”

33. SHACK: ROADS NOT TAKEN DQ1.06: 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?

34. How would opinion look different if necessity was basis?
DQ1.06: Evidence that necessity was not the 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?

35. SHACK: ROADS NOT TAKEN: DQ1.06: Necessity
If necessity were the basis of its decision, Court would almost certainly:
List/characterize examples of circumstances that had constituted legal necessity in NJ.
Compare circumstances here to those examples.
“Necessity” is Helpful, Not Required: If a service really is necessary to MWs, rights under Shack probably apply, but case is clear that facts don’t have to fit into doctrine of necessity to trigger Shack rights.

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

37. SHACK: ROADS NOT TAKEN DQ1.07: Bargaining
Very important alternative almost always relevant in this course is bargaining (private agreement).
Let parties negotiate contracts; state just intervenes to enforce.
Generally good reasons to rely on private bargaining:
i) Usually lower administrative costs than regulation.
ii) Autonomy/clarity of interest: people better than the gov’t at identifying & articulating their own interests.

38. SHACK: ROADS NOT TAKEN DQ1.07: Bargaining
1.07: Could we rely on bargaining to protect the interests of the workers in Shack? In other words, if these interests were sufficiently important to the workers, wouldn’t they insist on making provisions for them in their employment contracts?
Clearly we could; interesting Q is should we?

39. SHACK: ROADS NOT TAKEN DQ1.07: Bargaining
Should we rely on bargaining to protect MWs’ interests?
Can break down into two Qs:
Are there reasons we might not want to rely on bargaining?
Are these reasons strong enough to outweigh reasons we like bargaining?
Start with Q#1: Ideas from You or from Case