1. Music: Carole King Tapestry (1971) SECTION E1: LUNCH TOMORROW Meet on Bricks @ 12:05 Bryan  Navarrete  Nealon  Page Stern  Torgman  Velarde

2. Music: Carole King Tapestry (1971) SECTION C1: LUNCH TOMORROW Meet on Bricks @ 12:05 Catania  Habib  Lorentz  Parolie Perez  Preston  Sleiman

3. STATE v. SHACK (N.J. 1971) continued

4. DEATHS Nikita Kruschev Papa Doc Duvalier Thomas Dewey Louis Armstrong Jim Morrison Igor Stravinsky Coco Chanel Ogden Nash BIRTHS Shannon Dougherty Ewan McGregor Winona Ryder Lance Armstrong Jeff Gordon Pedro Martinez Kristi Yamaguchi Mary J Blige Snoop Dogg Ricky Martin Kid Rock Tupac Shakur

5. 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

6. Apollo 14: 4th Successful Moon Landing USSCt upholds busing of schoolchildren to achieve racial balance Nixon Administration – Gets Clean Air & Water Acts Enacted – Freezes Wages & Prices to Fight Inflation – Amicus Brief in Shack Favoring Workers on Anti- Federalist Theory

7. Near the end of long post-Depression period of great faith in Govt E.g., Deaths of Ex-Presidents 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 w Os P Rts

8. Seeds of Change: 1.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 …) Perceived fiasco in Vietnam lowers conf in Govt

9. Seeds of Change: 1.Vietnam War 2.Concerns about war made Nixon’s reelection seem problematic 1971: White House staffers assemble people to deal w election: CREEP Yields Watergate break-in following spring Scandal undermines authority of govt

10. Seeds of Change: 1.Vietnam War 2.Road to Watergate 3.Pres. Nixon appoints William Rehnquist to US Supreme Court

11. Shack Discussion Questions 17-20 featuring BARLEY (sporadically)

12. Possible Theories to Decide Shack: DQ17: Doctrine of Necessity 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.

13. Possible Theories to Decide Shack: DQ17: Doctrine of Necessity Traditionally, public and private necessity “justify entry upon the lands of another.” Identify at least three different kinds of situations to which you can imagine a court applying this rule.

14. Possible Theories to Decide Shack: DQ17: Doctrine of Necessity Traditionally, public and private necessity “justify entry upon the lands of another.” Identify at least three different kinds of situations to which you can imagine a court applying this rule. Most people would concede that at least some of these justify limiting right to exclude Once you concede that right is not absolute, have to argue over boundaries

15. Possible Theories to Decide Shack: DQ17: Doctrine of Necessity Traditionally, public and private necessity “justify entry upon the lands of another.” Identify at least three different kinds of situations to which you can imagine a court applying this rule. Are the facts in Shack similar enough to the situations you have identified that they should fall within this rule?

16. Possible Theories to Decide Shack: DQ17: Doctrine of Necessity Traditionally, public and private necessity “justify entry upon the lands of another.” What evidence can you find in the opinion that necessity was not the legal theory that formed the basis of the court’s decision?

17. Possible Theories to Decide Shack: DQ17: Doctrine of Necessity Evidence that necessity was not the basis of the court’s decision? Paragraph referencing necessity (top S10): Just refers to existence of doctrine & gives general cites What would the opinion look like if necessity was basis?

18. Possible Theories to Decide Shack: DQ17: Doctrine of Necessity Evidence that necessity was not the basis of the court’s decision? Paragraph referencing necessity (top S10): Just refers to existence of doctrine & gives general cites What would the opinion look like if necessity was basis? – List of specific examples – Discussion comparing facts here to those examples

19. Possible Theories to Decide Shack: DQ17: Doctrine of Necessity Evidence that necessity was not the basis of the court’s decision? “We see no profit in trying to decide upon a conventional category and then forcing the present subject into it.” (last para. S10) 2d paragraph on S10: “The subject is not static” doesn’t refer to necessity but to limitations on property rights generally Facts here & inclusion of press don’t look like necessity.

20. Possible Theories to Decide Shack: DQ17: Doctrine of Necessity Note that you can argue in a particular case that necessity for Migrant Workers (MWs) is a good reason to allow inclusion under Shack. BUT: don’t need to have necessity for Shack to apply. Qs?

21. Possible Theories to Decide Shack: DQ18: Bargaining Very important alternative almost always relevant in this course is private agreement (contracts) Let parties negotiate. State just intervenes to enforce voluntary agreements. Generally good reasons to rely on private bargaining – Usually less administrative costs than regulation – Autonomy/clarity of interest : people better than the state at identifying & articulating their own interests

22. Possible Theories to Decide Shack: DQ18: Bargaining Clearly we could rely on bargaining here, saying: “If it matters to them, let workers negotiate for right to access to Shack defendants.” Should we rely on bargaining? Can see as two separate Qs: 1.Reasons we might not rely? 2.Strong enough to outweigh reasons for bargaining?

23. Possible Theories to Decide Shack: DQ18: Bargaining Should we rely on bargaining? 1.Reasons we might not rely?

24. Possible Theories to Decide Shack: DQ18: Bargaining: Should we rely on? 1.Reasons we might not rely? a.Importance of Needs & Interests of MWs b.Relative Power of Parties c.Relative Access to Information

25. Possible Theories to Decide Shack: DQ18: Bargaining: Should we rely on? 1.Reasons we might not rely? a.Importance of Needs & Interests of MWs b.Relative Power of Parties c.Relative Access to Information [T]he needs of the occupants may be so imperative and their strength so weak, that the law will deny the occupants the power to contract away what is deemed essential to their health, welfare, or dignity.” (S9, end 1 st full para.)

26. Possible Theories to Decide Shack: DQ18: Bargaining: Should we rely on? 1.Reasons we might not rely? a.Importance of Needs & Interests of MWs b.Relative Power of Parties c.Relative Access to Information “These rights are too fundamental to be denied on the basis of an interest in real property and too fragile to be left to the unequal bargaining strength of the parties.” (S11: end 2d to last para.)

27. Possible Theories to Decide Shack: DQ18: Bargaining: Should we rely on? (S11) “These rights are too fundamental to be denied on the basis of an interest in real property and too fragile to be left to the unequal bargaining strength of the parties.” COMMON PROBLEM: BEWARE USING TECHNICAL TERM LIKE “FUNDAMENTAL RIGHT” OUT OF CONTEXT. COURT IS NOT SAYING THAT ENTRY ONLY ALLOWED TO FURTHER “FUNDAMENTAL RIGHTS.” E.G., MEDICAL CARE IS NOT FUNDAMENTAL RT.

28. Possible Theories to Decide Shack: DQ18: Bargaining: Should we rely on? 1.Reasons we might not rely? a.Importance of Needs & Interests of MWs b.Relative Power of Parties c.Relative Access to Information 2.Strong enough to outweigh reasons to bargain? a.NJ SCt thinks so; you could disagree b.Recurring Q: State intervention v. Private decisions c.Can use arguments re needs, power, information to help resolve

29. Possible Theories to Decide Shack: DQ19: Constitutional Arguments 1.Ds Make Several Constitutional Arguments, e.g., a.Supremacy Clause: Can’t interfere with operation of fed’l statutes providing services to MWs b.1 st Amdt (essentially a Marsh kind of claim) c.6 th Amdt (Right to Counsel) 2.NJ SCt says deciding case w/o relying on state or federal constitutions.

30. Possible Theories to Decide Shack: DQ19: Constitutional Arguments (S8-S9): “A decision in nonconstitutional terms is more satisfactory, because the interests of migrant workers are more expansively served in that way than they would be if they had no more freedom than these constitutional concepts could be found to mandate if indeed they apply at all. “More expansively served” means…?

31. Possible Theories to Decide Shack: DQ19: Constitutional Arguments “More expansively served” means … not limited to scope of Const. claim: Freedom of Speech & Right to Counsel don’t include medical aid Supremacy Clause limited to federally funded programs, so doesn’t include press or aid workers from state or local gov’t

32. Possible Theories to Decide Shack: DQ19: Constitutional Arguments (S8-S9): “A decision in nonconstitutional terms is more satisfactory, because the interests of migrant workers are more expansively served in that way than they would be if they had no more freedom than these constitutional concepts could be found to mandate if indeed they apply at all. Hard Constitutional Qs here; might not protect MWs Implicit: Try not to decide Const. Qs if don't need to Also Note: If not decided under fed’l const. not subject to USSCt review

33. Possible Theories to Decide Shack: DQ19: Actual Theory of the Case (S8 last para.): “… under our state law, the owner- ship of real property does not include the right to bar access to gov’tal services to migrant workers.” Not focused on rights of defendants to enter, but on the scope of the right to exclude.

34. Possible Theories to Decide Shack: DQ19: Actual Theory of the Case (S8 last para.): “… under our state law, the owner- ship of real property does not include the right to bar access to gov’tal services to migrant workers.” Cf. JMB: implicit that ownership includes right to exclude leafletters. Otherwise, no need to look to NJ Const, which JMB says gives public a right that trumps right to exclude.

35. Possible Theories to Decide Shack: DQ19: Actual Theory of the Case (S8 last para.): “… under our state law, the ownership of real property does not include the right to bar access to gov’tal services to migrant workers.” Source of this? Court explicitly says not relying on state Constitution No specific statute cited Court rejects reliance on Landlord-Tenant law – Again, “no profit” in forcing into conventional category – Note: huge impact to give MWs full rights as tenants

36. Possible Theories to Decide Shack: DQ19: Actual Theory of the Case (S8 last para.): “… under our state law, the ownership of real property does not include the right to bar access to gov’tal services to migrant workers.” Source of this? Source has to be common law of Property Tort of trespass itself is judge-made law Prominent exceptions like necessity are judge-made law Thus NJSCt believes it has power to define nature of rt to exclude

37. Possible Theories to Decide Shack: DQ19: Actual Theory of the Case (S8 last para.): “… under our state law, the ownership of real property does not include the right to bar access to gov’tal services to migrant workers.” Source of this? Source has to be common law of Property NJSCt sees itself as making policy decision regarding the scope of Property rights & not uncomfortable or apologetic about role.

38. “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. E.g.: – Migrant workers on land have right to access to certain outsiders. Shack. – Tedesco had no right to exclude Ds. Shack.

39. “RIGHTS” v. “INTERESTS” “Rights” = what legal system allows. Can’t use “right” to argue what legal result ought to be. – E.g., Why do you think Shack is wrongly decided? – Owners have the right to exclude all.

40. “RIGHTS” v. “INTERESTS” “Rights” = what legal system allows. Can’t use “right” to argue what legal result ought to be. – E.g., Why do you think Shack is wrongly decided? – Owners have the right to exclude all.  – Owners should have the right to exclude all.

41. “RIGHTS” v. “INTERESTS” “Rights” = what legal system allows. Can’t use “right” to argue what legal result ought to be. – E.g., Why do you think Shack is wrongly decided? – Owners should have the right to exclude all because …

42. “RIGHTS” v. “INTERESTS” “Rights” = what legal system allows. Can’t use “right” to argue what legal result ought to be. “Interests” = needs & desires of parties.

43. Protecting Owners’ Interests 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

44. Protecting Owners’ Interests DQ23: Are Shack limits sufficient to protect the owners’ interests? (3 Approaches)

45. Protecting Owners’ Interests DQ23: Are Shack limits sufficient to protect the owners’ interests? (3 Approaches) 1.Identify key interests & discuss whether rules succeed or fail to address. E.g., Security Smooth operation of business Privacy

46. Protecting Owners’ Interests DQ23: Are Shack limits sufficient to protect the owners’ interests? (3 Approaches) 1.Identify key interests; do rules address? 2.Identify alternative or additional rules that might work better Limit times of access Limit # of people allowed on land Limit frequency of visits

47. Protecting Owners’ Interests DQ23: Are Shack limits sufficient to protect the owners’ interests? (3 Approaches) 1.Identify key interests; do rules address? 2.Identify alternative/additional rules 3.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 …

48. Protecting Owners’ Interests DQ23: Are Shack limits sufficient to protect the owners’ interests? (3 Approaches) 1.Identify key interests; do rules address? 2.Identify alternative/additional rules 3.Discuss whether relevant interests are balanced properly. Leave this for you in this case; can do this kind of analysis in Shack Review Problems.

49. Protecting Owners’ Interests DQ24: Suppose you represent the NJ Apple- Growers Ass’n. Members of the ass’n approach you to express unhappiness with Shack. What steps can you take? 1.Treat Result in Shack as Given; Advise Clients re Responses 2.Try to get Result in Shack Changed

50. Protecting Owners’ Interests 1.Treat Result in Shack as Given; Advise Clients re Responses – Help draft standard rules for owners to employ (& litigate them) – Help reorganize industry (no housing onsite) – Explore leaving jurisd. (hard for apple-growers) 2.Try to get Result in Shack Changed

51. Protecting Owners’ Interests 1.Treat Result in Shack as Given; Advise Clients re Responses 2.Try to get Result in Shack Changed – Appeal to US Supreme Ct: Taking of Property Rights w/o Just Compensation (unlikely to win) – Lobby state or fed’l legislators to pass statute to change or eliminate Shack

52. Shack Discussion Questions 21 & 25 featuring CORN

53. DQ 21 : What arguments do you see about whether Shack is consistent with Jacque?

54. DQ 25 : Fact comparison between the press & other groups the court protects Court explicitly says that press allowed: Why discuss? Clearly dicta (no press in case). Could be arguing at later time about whether court should adhere to own dicta. Could be arguing in another jurisdiction about extending basic rule in Shack.

55. DQ 25 : Fact comparison between the press & other groups the court protects General structure of argument by fact comparison: 1.Identify similarities and differences 2.Explain why they are relevant to the result