1. PROPERTY D SLIDES 1-19-16 National Popcorn Day

2. Music: Rod Stewart, Every Picture Tells A Story (1971 Music: Rod Stewart, Every Picture Tells A Story (1971) Dean’s Fellow Sessions Starting Next Week Tuesday 9:30-10:20 a.m. (Room A110) Friday 9:30-10:20 a.m. (Here) We’ll Post Coverage Info on Course Page

3. LOGISTICS Sheet Asking for Contact Info Circulating Today & Thursday Please write legibly! Lunch Sign-Up Sheet Will Circulate Next Two Classes Dates on Tues/Thurs/Fri (Might Avoid Your LComm Day) Meet on Bricks after Your 11:00 class We’ll Go to Food Court or SAC Law Room You Can Bring Food or Buy It There/On the Way I’ll Post Schedule & Remind You in Class That Day

4. LOGISTICS: Panel Selection (Thursday at Break) I’ll ask for lists indicating who (if anyone) you want me to put on same panel with you. Can do nothing & I will randomly assign you Can give me groups of two or more students (up to about 15) & I will assemble into larger groups as needed Check with people first, then hand in one list per group opportunity Not commitment, just an opportunity to work with people b/c responsible for same assignments

5. Approaching Second Semester A.Where You Are at End of First Semester B.Special Difficulties of Second Semester C.What To Do Now

6. Approaching Second Semester A.Where You Are at End of First Semester “I Guess You’re Right.” (!) “I Guess You’re Right.” (!)

7. Approaching Second Semester A.Where You Are at End of First Semester B.Special Difficulties of Second Semester 1.Schedule L. Comm. Heavy in April Need to Get More Exam Prep Done Earlier C.What To Do Now

8. Approaching Second Semester A.Where You Are at End of First Semester B.Special Difficulties of Second Semester 1.Schedule 2.Coping with Grades C.What To Do Now

9. Coping with Grades 1.Motivation Issues

10. Coping with Grades 1.Motivation Issues 2.Meaning of Grades a.Not Good Measure of You as a Person

11. Annoying? Which of The Following is the Most Annoying? A.Flo in Progressive ads B. Guys in Sonic ads C. Dick Vitale

12. Annoying? Which of The Following is the Most Annoying? A.Flo in Progressive ads B.Guys in Sonic ads C.Dick Vitale D. Classmates Who Let Everyone Know About Their High Grades

13. Coping with Grades 1.Motivation Issues 2.Meaning of Grades a.Not Good Measure of You as a Person b.Not Good Measure of Your Potential as a Lawyer

14. Approaching Second Semester A.Where You Are at End of First Semester B.Special Difficulties of Second Semester C.What To Do Starting Your Second Term?

15. Approaching Second Semester A.Where You Are at End of First Semester B.Special Difficulties of Second Semester C.What To Do Now?

16. Approaching Second Semester A.Where You Are at End of First Semester B.Special Difficulties of Second Semester C.What To Do Now? 1.Own Your Grades/Work on Exam Technique

17. Approaching Second Semester A.Where You Are at End of First Semester B.Special Difficulties of Second Semester C.What To Do Now? 1.Own Your Grades/Work on Exam Technique 2.Work on Lawyering Skills

18. FINAL EXAM QUESTIONS Choose Three of Four XQ1: LAWYERING XQ2: SHORT ANSWERS (Choose Three of Four) XQ3: OPINION/DISSENT XQ4: TRADITIONAL ISSUE-SPOTTER

19. Approaching Second Semester Final Point

20. TRANSITION TO SHACK A.Overview of the Case (Last Time) B.Context of Case: 1971 (Last Time) C.Rights v. Interests D.Why So Much Time on Shack? E.Necessity & Other Limits on Right to Exclude (DQs 1.05-1.06)

21. TRANSITION TO SHACK: TRANSITION TO SHACK: “RIGHTS” v. “INTERESTS” rights We’ll use “rights” to refer to what the legal system allows parties to do. right Need to point to specific authority for right asserted. Thus, might say after Shack was decided: right Migrant workers on land now have right to access to certain outsiders. Shack. right Tedesco now has no right to exclude Ds. Shack.

22. TRANSITION TO SHACK: TRANSITION TO SHACK: “RIGHTS” v. “INTERESTS” Rights “Rights” = what legal system allows parties to do. right Don’t use “right” to argue what legal result ought to be: Q: Why do you think Shack is wrongly decided? right A: Owners have the right to exclude all.  (But in NJ after Shack, they don’t have that “right.”)

23. TRANSITION TO SHACK: TRANSITION TO SHACK: “RIGHTS” v. “INTERESTS” Rights “Rights” = what legal system allows parties to do. Instead: Q: Why do you think Shack is wrongly decided? right A: Owners should have the right to exclude all. (Which raises Q of why!!)

24. TRANSITION TO SHACK: TRANSITION TO SHACK: “RIGHTS” v. “INTERESTS” Rights “Rights” = what legal system allows parties to do. right Owners should (or should not) have the right to exclude all, because … interests 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

25. TRANSITION TO SHACK Why Extensive Coverage of Shack? 1. 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

26. TRANSITION TO SHACK Why Extensive Coverage of Shack? 1. Subject Matter 2.Technique: Making Arguments from Cases Three Common Sources (Use for Problems Friday & Next Week) i.Facts/Holding ii.Specific Language iii.Underlying Policy Shack is good practice: lot of useful language & complex rationales Can usefully compare to statutory scheme (Florida)

27. TRANSITION TO SHACK: TRANSITION TO SHACK: 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.

28. TRANSITION TO SHACK: TRANSITION TO SHACK: 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.

29. TRANSITION TO SHACK: TRANSITION TO SHACK: NECESSITY & Other Limits on the Right to Exclude (DQ1.05-1.06) 1.05. 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? We’ll return to this Q during the course.

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

31. 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?

32. Comparing Facts: Recurring Issues Characterizations 1.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

33. Comparing Facts: Recurring Issues 1.Helpful to Articulate Characterizations that Facilitate Comparisons. 2.Level of Generality Affects Significance. E.g., “Provide Medical Treatment” v. “Remove Stitches” “Provide Legal Advice” v. “Deliver Pamphlets”

34. 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?

35. 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?

36. 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. Note: 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.

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

38. 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.

39. 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?

40. SHACK: ROADS NOT TAKEN DQ1.07: Bargaining 1.Are there reasons we might not want to rely on bargaining? 2.Are these reasons strong enough to outweigh reasons we like bargaining? Start with Q#1: Ideas from You or from Case Should we rely on bargaining to protect MWs’ interests? Can break down into two Qs:

41. SHACK: ROADS NOT TAKEN DQ1.07: Bargaining Reasons we might not want to rely on bargaining? Court focuses on two sets of ideas: Importance of Needs of MWs & Relative Power of Parties Parties’ Relative Access to Information

42. SHACK: ROADS NOT TAKEN DQ1.07: Bargaining Importance of Needs of MWs & Relative Power of Parties “[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.” (3d para. on S4) “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.” (5 th para. on S6) NOTE: “fundamental” here is general description of importance (v. “Fundamental Right” as Constitutional Term of Art)

43. SHACK: ROADS NOT TAKEN DQ1.07: Bargaining Parties’ Relative Access to Information (See top para. on S5) MWs “unaware” of rights & of available opportunities/services. “[C]an be reached only by positive efforts….”