PROPERTY A SLIDES
1-23-15
Friday Jan 23: Music
Carole King, Tapestry (1971)
• Dean’s Fellow Sessions Start Next Week
• Tuesday @ 9:30 am in Room F402
• Friday @ 9:30 am in Room F209 (Here)
• On Course Page by Noon Tomorrow
Panel Assignments
• Class Assignments for Next Week
•
Special Bonus for On-Time Arrivals
Two DISAPPOINTING
REVELATIONS ABOUT
CHILDHOOD FAVORITES 
PROPERTY A: 1/23
(1) ALL FROOT LOOPS TASTE THE SAME
REGARDLESS OF COLOR
(Same For TRIX & FRUITY PEBBLES)
PROPERTY A: 1/23
(2) The Alphabet Song &
Twinkle Twinkle Little Star
Have the Same Melody
PROPERTY A (1/23)
I. Shack: The Roads Not Taken
A.
Necessity (DQ1.06 cont’d) (Yesterday)
B. Bargaining (DQ1.07)
C.
Constitutional Law (DQ1.08)
II.
Context of the Case
III.
What the Case Says
IV. Application
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
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?
SHACK: ROADS NOT TAKEN
DQ1.07: Bargaining
Should we rely on bargaining to protect MWs’ interests?
Can break down into two Qs:
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
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
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.” (5th para. on S6)
• NOTE: “fundamental” here is general description of importance
(v. “Fundamental Right” as Constitutional Term of Art)
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….”
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.
• Recurring Qs in course re state intervention v.
private decision-making; can use Shack arguments
re relative need, power, and information.
PROPERTY A (1/23)
I. Shack: The Roads Not Taken
A.
Necessity (DQ1.06 cont’d) (Yesterday)
B.
Bargaining (DQ1.07)
C. Constitutional Law (DQ1.08)
II.
Context of the Case
III.
What the Case Says
IV. Application
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
• 1st Amdt: Under Marsh, resident MWs have right to access to
speech/information
• 6th Amdt: MWs have right to access to lawyers.
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.”
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”?
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”?
• 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
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 subject to USSCt review if relying on state law
rather than interpreting US Constitution
PROPERTY A (1/23)
I.
Shack: The Roads Not Taken
II. Context of the Case: 1971
III.
What the Case Says
IV. Application
• 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
Nikita Kruschev; Papa Doc Duvalier; Thomas Dewey
Louis Armstrong; Jim Morrison; Igor Stravinsky
Coco Chanel; Ogden Nash; Crew of Soyuz 11
Shannon Doherty; Ewan McGregor; Winona Ryder
Lance Armstrong; Jeff Gordon; Pedro Martinez; Kristi Yamaguchi
Mary J Blige; Snoop Dogg; Ricky Martin; Tupac Shakur
• 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, 32.93 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
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 Os Property Rights
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 = old enough to vote)
• Perceived fiasco in Vietnam (and evidence that
both Johnson & Nixon administrations misled
public) lowers confidence in Gov’t
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
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 (cf. Shelley & Burton)
• Appointment foreshadows change in this self-perception of
courts (cf. Moose Lodge & Jackson)
PROPERTY A (1/23)
I.
Shack: The Roads Not Taken
II.
Context of the Case
III. 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)
IV. Application
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? I.e., on what non-constitutional
legal theory does the court rest its decision?
SHACK: WHAT THE CASE DOES
DQ1.08-1.09: Theory of Case
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
• Note: huge impact to give MWs full tenant rights,
especially in NJ
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
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)?
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)?
PROPERTY A (1/23)
I.
Shack: The Roads Not Taken
II.
Context of the Case
III. 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)
IV. Application
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).
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 Wheeler suggestion: “[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)
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 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)
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:
General Instructions (Overlapping)
• Employer can’t “isolate the MW in any respect
significant for workers’ well-being.” (3d para. on S6)
• Employer can’t “deprive the MW of practical access to
things he needs.” (4th para. on S6)
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:
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)
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
Other Passages You Identified?
PROPERTY A (1/23)
I.
Shack: The Roads Not Taken
II.
Context of the Case
III. 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)
IV. Application
SHACK: WHAT THE CASE DOES
DQ1.11 & 1.13: Protections of O’s Interests
Limits on Shack’s Right of Access:
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
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
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
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
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 …
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
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