1. PROPERTY D SLIDES 1-21-16 National Squirrel Appreciation Day

2. Music: Carole King, Tapestry (1971 Music: Carole King, Tapestry (1971) Office Hours Office Hours (Starting Today) Also Posted on Course Page Tuesday 10:00-11:00 a.m. Wednesday 3:30-4:45 p.m. Thursday 10:00-11:00 a.m. & by Appointment

3. LOGISTICS (1/21/16) Lunch Sign-Up Circulating Turn In Panel Lists at Break or After Class For Tomorrow (on course page): Look at QII-Prob. B from 2015 Exam Alphabetical Assignments for DQs 1.14-1.15 I’ll also allocate unfinished Qs from today; check course page

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

5. SHACK: ROADS NOT TAKEN DQ1.07: Bargaining (Recap) 1.Are there reasons we might not want to rely on bargaining? 2.Are these reasons strong enough to outweigh reasons we like bargaining? a.Usually lower administrative costs than regulation. b.Autonomy/clarity of interest: people better than the gov’t at identifying & articulating their own interests. Should we rely on bargaining to protect MWs’ interests? Can break down into two Qs:

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

7. SHACK: ROADS NOT TAKEN DQ1.07: Bargaining Are these reasons strong enough to outweigh reasons we like bargaining? NJ SCt obviously thinks so; you could disagree. NJ SCt obviously thinks so; you could disagree. Recurring Qs in course re state intervention v. private decision-making; can use Shack arguments re relative need, power, and information. Recurring Qs in course re state intervention v. private decision-making; can use Shack arguments re relative need, power, and information.

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

9. SHACK: ROADS NOT TAKEN DQ1.08: Constitutional Law Ds & US as Amicus make several uncertain Constitutional Arguments. Most importantly: Supremacy Clause: Exclusion sanctioned by state would interfere w operation of fed’l statutes providing services to MWs 1 st Amdt: Under Marsh [company town case], resident MWs have right to access to speech/information 6 th Amdt: MWs have right to access to lawyers.

10. SHACK: ROADS NOT TAKEN DQ1.08: Constitutional Law Prior students often have incorrectly stated that Shack turns on the MW’s constitutional or fundamental rights. However, the NJ SCt makes clear this is wrong by saying that deciding the case without relying on the state or federal constitution is “more satisfactory.”

11. SHACK: ROADS NOT TAKEN DQ1.08: Constitutional Law (2d para. on S4): “A decision in nonconstitutional terms is more satisfactory, b/c the interests of MWs 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.” Meaning of “more expansively served”?

12. SHACK: ROADS NOT TAKEN DQ1.08: Constitutional Law “A decision in nonconstitutional terms is more satisfactory, b/c the interests of MWs 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.” (2d para. S4) Meaning of “more expansively served”? Can protect MWs more broadly while addressing same concerns. E.g., If based in right to counsel, doesn’t help w Drs or social workers If based on Supremacy Clause, limited to fed’l programs

13. SHACK: ROADS NOT TAKEN DQ1.08: Constitutional Law (2d para. on S4): “A decision in nonconstitutional terms is more satisfactory, b/c the interests of MWs 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. Implicit: Common judicial principle: Try not to decide Constitutional Qs if don't need to Also Note: Unlikely to be subject to USSCt review if relying on state law rather than interpreting US Constitution. Relevant consideration for active/cutting edge state S.Ct. like New Jersey.

14. SHACK: ROADS NOT TAKEN DQ1.08: Constitutional Law (2d para. on S4): “A decision in nonconstitutional terms is more satisfactory, b/c the interests of MWs 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.”Questions?

15. SHACK: What the Case Says A.Theory of the Case (DQ1.08-1.09) B.“Rules” (DQ1.10) C.Protecting Owners (DQ1.11 & 1.13) D.Shack & Jacque (DQ1.12)

16. SHACK: WHAT THE CASE DOES DQ1.08-1.09: Theory of Case NJ SCt’s characterization of legal issue: Not focused on rights of Ds, but on scope of right to exclude. “[U]nder our state law, the ownership of real property does not include the right to bar access to gov’tal services to migrant workers.” (2d para. on S4) Source of this assertion?

17. “[U]nder our state law, the ownership of real property does not include the right to bar access to gov’tal services to migrant workers.” (2d para. on S4) NJ SCt’s Source of Law: Court says explicitly not relying on state Constitution No specific statute cited Court rejects reliance on Landlord-Tenant law Again, “no profit” in forcing into conventional category As noted Tues., huge impact to give MWs full tenant rights, especially in NJ DQ1.08: On what non-constitutional legal theory does the court rest its decision?

18. SHACK: WHAT THE CASE DOES DQ1.08-1.09: Theory of Case NJ SCt’s Source of Law has to be its own interpretation of Common Law of Property: Tort of trespass & general right to exclude themselves are judge-made law Prominent exceptions like necessity are judge-made law Thus NJ SCt has power to define nature of right to exclude

19. SHACK: WHAT THE CASE DOES DQ1.08-1.09: Theory of Case What does the N.J. Supreme Court mean when it says, “Property rights serve human values.” (Start of Part II)?

20. SHACK: WHAT THE CASE DOES DQ1.08-1.09: Theory of Case Why does the NJ SCt include the (LONG) quote from Powell on Real Property (bottom of S5)?

21. SHACK: What the Case Says A.Theory of the Case (DQ1.08-1.09) B.“Rules” (DQ1.10) C.Protecting Owners (DQ1.11 & 1.13) D.Shack & Jacque (DQ1.12)

22. SHACK: WHAT THE CASE DOES DQ1.10 : “Rules” Identify passages in the case that could be used in future cases as a “rule” to help decide the scope of the right to exclude in future similar cases. Focus on language that might be used to define circumstances in which the owner cannot exclude (as opposed to language explaining the limits that the owners can place on visitors they are forced to allow).

23. SHACK: WHAT THE CASE DOES (DQ1.10 : “Rules”) Passages that could be used as a “rule” to help decide the scope of the right to exclude in future similar cases: Specific Instructions Employer can’t exclude “fed’l state or local services or … recognized charitable groups seeking to assist” MWs (3d para. on S6). (This would include related language: “[U]nder our State law the ownership of real property does not include the right a bar access to governmental services available to MWs” (2d para. on S4)). “[T]he MW must be allowed to receive visitors … of his own choice, so long as there is no behavior hurtful to others…” (3d para. on S6)

24. SHACK: WHAT THE CASE DOES (DQ1.10 : “Rules”) Specific Instructions Passages that could be used as a “rule” to help decide the scope of the right to exclude in future similar cases: Specific Instructions Employer may exclude “solicitors or peddlers … at least if the employer's purpose is not to gain a commercial advantage for himself….” (4th para. on S6) (cf. Grapes of Wrath)

25. SHACK: WHAT THE CASE DOES (DQ1.10 : “Rules”) General Instructions (Overlapping) Passages that could be used as a “rule” to help decide the scope of the right to exclude in future similar cases: General Instructions (Overlapping) Employer can’t “isolate the MW in any respect significant for the workers’ well-being.” (3d para. on S6) Employer can’t “deprive the MW of practical access to things he needs.” (4th para. on S6)

26. SHACK: WHAT THE CASE DOES (DQ1.10 : “Rules”) Very General Instructions Passages that could be used as a “rule” to help decide the scope of the right to exclude in future similar cases: Very General Instructions “[E]mployer may not deny the worker his privacy or interfere with his opportunity to live with dignity and to enjoy ass’ns customarily enjoyed among our citizens.” (5th para. on S6) “Title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises.” (3d para. of S4)

27. SHACK: WHAT THE CASE DOES (DQ1.10 : “Rules”) Passages that could be used as a “rule” to help decide the scope of the right to exclude in future similar cases. We’ll primarily work with those listed on preceding slides. Other Passages You Identified?

28. SHACK: What the Case Says A.Theory of the Case (DQ1.08-1.09) B.“Rules” (DQ1.10) C.Protecting Owners (DQ1.11 & 1.13) D.Shack & Jacque (DQ1.12)

29. SHACK: WHAT THE CASE DOES DQ1.11 & 1.13: Protections of O’s Interests Limits on Shack’s Right of Access: 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

30. SHACK: WHAT THE CASE DOES DQ1.11 & 1.13: Protections of O’s Interests Are Limits on Shack’s Right of Access Sufficient to Protect O’s Interests? (We’ll Get a Few Ideas from You) 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

31. SHACK: WHAT THE CASE DOES DQ1.11 & 1.13: Protections of O’s Interests Are Limits on Shack’s Right of Access Sufficient to Protect O’s Interests? (Three Standard Approaches) 1.Identify key interests and discuss whether rules adequately address. E.g., Security Privacy Smooth Operation of Business

32. SHACK: WHAT THE CASE DOES DQ1.11 & 1.13: Protections of O’s Interests Are Limits on Shack’s Right of Access Sufficient to Protect O’s Interests? (Three Standard Approaches) 1.Identify key interests; do rules address? 2.Identify alternative/additional rules that might work better. E.g., Limit times of access Limit # of people allowed on land Limit frequency of visits

33. SHACK: WHAT THE CASE DOES DQ1.11 & 1.13: Protections of O’s Interests Are Limits on Shack’s Right of Access Sufficient to Protect O’s Interests? (Three Standard 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 …

34. SHACK: WHAT THE CASE DOES DQ1.11 & 1.13: Protections of O’s Interests 1.13. You represent the NJ Apple-Growers Association. Trade Association = Common Type of Organization Representing Common Financial & Legal Interests of Group. E.g., Joint Advertising of Apple Products Consultation or Group Action re Issues Like Taxes, Labor, Safety, Packaging, Consumer Protection

35. SHACK: WHAT THE CASE DOES DQ1.11 & 1.13: Protections of O’s Interests 1.13. You represent the NJ Apple-Growers Association. Trade Association = Common Type of Organization Representing Common Financial & Legal Interests of Group. E.g., Joint Advertising of Apple Products Consultation or Group Action re Issues Like Taxes, Labor, Safety, Packaging, Consumer Protection

36. SHACK: WHAT THE CASE DOES DQ1.11 & 1.13: Protections of O’s Interests 1.13. You represent the NJ Apple-Growers Assn. Members approach you to express their unhappiness with Shack. 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 (& even less likely in 1971) What Other Steps Can You Take?

37. SHACK: WHAT THE CASE DOES DQ1.11 & 1.13: Protections of O’s Interests 1.13. Possible Steps for Trade Association Include … 1.Lobby state or fed’l legislators to pass statute to change or eliminate Shack 2.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; a real response) Explore leaving jurisd. (hard for apple-growers)

38. 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.