property a slides 1-22-15. music: rod stewart, every picture tells a story (1971) lunch today (meet...

PROPERTY A SLIDES1-22-15

Music: Rod Stewart, Every Picture Tells A Story (1971)

Lunch Today (Meet on Bricks @ 11:55):

Gross, Murray, Pierre, YanizPop Culture Moment: Headline of the Week

Breast implant leak delays congressman's wife's bigamy trial

PROPERTY D (1/22)

I.I. APPROACHING SECOND APPROACHING SECOND SEMESTERSEMESTER

II. Transition to Shack (continued)

III.Shack: The Roads Not Taken

Approaching Second Semester

A.A. Where You Are at End of First Where You Are at End of First SemesterSemester

B. Special Difficulties of Second Semester

C. What To Do Now

Approaching Second Semester

A.A. Where You Are at End of First Where You Are at End of First SemesterSemester

““I Guess You’re Right.” I Guess You’re Right.” (!) (!)

Approaching Second Semester

A. Where You Are at End of First Semester

B.B. Special Difficulties of Second Special Difficulties of Second SemesterSemester

1.1. ScheduleSchedule2. Coping with Grades

C. What To Do Now

Approaching Second Semester

B. Special Difficulties of Second B. Special Difficulties of Second SemesterSemester

1.1. ScheduleSchedule

• L. Comm. Heavy in April

• Short Turnaround at End w/o Thanksiving

• Last Day of Class = Wed 4/22

• Property Exam = Mon 4/27 (a.m.)

• Need to Get More Exam Prep Done Earlier

Approaching Second Semester

A. Where You Are at End of First Semester

B.B. Special Difficulties of Second Special Difficulties of Second SemesterSemester

1. Schedule

2.2. Coping with GradesCoping with Grades

C. What To Do Now

Coping with GradesCoping with Grades

1.1.Motivation IssuesMotivation Issues

Coping with GradesCoping with Grades1. Motivation Issues

2.2. Meaning of GradesMeaning of Gradesa. Not Good Measure of You as a

Person

Which of The Following is the Most Annoying?Annoying?

A. Flo in Progressive ads B. Guys in Sonic ads

C. Dick Vitale

Which of The Following is the Most Annoying?Annoying?A. Flo in Progressive ads

B. Guys in Sonic adsC. Dick Vitale

D. Classmates Who Let Everyone Know About Their High Grades

Coping with GradesCoping with Grades1. Motivation Issues

2.2. Meaning of GradesMeaning of Gradesa. Not Good Measure of You as a Person

b. Not Good Measure of Your Potential as a Lawyer

Approaching Second Semester

A. Where You Are at End of First Semester

B. Special Difficulties of Second Semester

C.C. What To Do Starting Your What To Do Starting Your Second Term?Second Term?

Approaching Second Semester

A. Where You Are at End of First Semester

B. Special Difficulties of Second Semester

C.C. What To Do Now?What To Do Now?

Approaching Second Semester

A. Where You Are at End of First Semester

B. Special Difficulties of Second Semester

C.C. What To Do Now?What To Do Now?1.1. Own Your Grades/Work on Exam Own Your Grades/Work on Exam

TechniqueTechnique

Approaching Second Semester

A. Where You Are at End of First Semester

B. Special Difficulties of Second Semester

C.C. What To Do Now?What To Do Now?1. Own Your Grades/Work on Exam

Technique

2.2. Work on Lawyering SkillsWork on Lawyering Skills

FINAL EXAM QUESTIONSChoose Three of Four

• XQ1: LAWYERING

• XQ2: SHORT ANSWERS (Choose Three of Four)

• XQ3: OPINION/DISSENT

• XQ4: TRADITIONAL ISSUE-SPOTTER

Approaching Second SemesterFinal PointFinal Point

PROPERTY D (1/22)

I. APPROACHING SECOND SEMESTER

II.II.Transition to Transition to ShackShack (continued)(continued)

III.Shack: The Roads Not Taken

TRANSITION TO TRANSITION TO SHACKSHACK

•

A. Rights v. Interests (Tuesday)

B.B. Necessity & Limits on the Right to Necessity & Limits on the Right to Exclude (DQ1.05-1.06)Exclude (DQ1.05-1.06)

C. Chapter 1 in the Property Course

D. Overvew of the Case

E. Why So Much Time on Shack

TRANSITION TO TRANSITION TO SHACK: 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.

TRANSITION TO TRANSITION TO SHACK: 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

TRANSITION TO TRANSITION TO SHACK: 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.

TRANSITION TO TRANSITION TO SHACKSHACK

•

A. Rights v. Interests (Tuesday)

B. Necessity & Limits on the Right to Exclude (DQ1.05-1.06)

C.C. Chapter 1 in the Property CourseChapter 1 in the Property CourseD. Overvew of the Case

E. Why So Much Time on Shack

TRANSITION TO TRANSITION TO SHACK: SHACK: Limits on the Right to Exclude &

Structure of Course

•

A. Voluntary Transfers: Rights & LimitsB. Involuntary TransfersC. Chapter 1: Right to Exclude & Its Limits

Property A: Topics Covered

A. Voluntary Transfers: Rights & Limits• Chapter 3B: Wills• Chapter 4: Estates & Future Interests• Chapter 6: Leases• Chapter 7A: Express Easements

B. Involuntary TransfersC. Chapter 1: Right to Exclude & Its Limits

Property A: Topics Covered

A. Voluntary Transfers: Rights & LimitsB. Involuntary Transfers• Chapter 2: Eminent Domain• Chapter 3A: Intestacy• Chapter 5: Adverse Possession• Chapter 7B: Implied Easements

C. Chapter 1: Right to Exclude & Its Limits

Property A: Topics Covered

A. Voluntary Transfers: Rights & LimitsB. Involuntary TransfersC. Chapter 1: Right to Exclude & Its Limits• Owners voluntarilyvoluntarily allow some third parties to

enter their land• Sometimes this means they involuntarilyinvoluntarily lose the

right to exclude some other people as well

TRANSITION TO TRANSITION TO SHACKSHACK

•

A. Rights v. Interests (Tuesday)

B. Necessity & Limits on the Right to Exclude (DQ1.05-1.06)

C. Chapter 1 in the Property Course

D.D. Overvew of the CaseOvervew of the CaseE. Why So Much Time on Shack

TRANSITION TO TRANSITION TO SHACK: SHACK: Overview of CaseOverview of Case

A. Land in Q is in Deerfield Township: agricultural area 30 miles due south of Philadelphia.

(NJ is “Garden State”)

TRANSITION TO TRANSITION TO SHACK: SHACK: Overview of CaseOverview 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 problems1. 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

TRANSITION TO TRANSITION TO SHACK: SHACK: Overview of CaseOverview of Case

D. Novel case, so attorneys tried many theories (S3-4, S6)E.Bottom Line : NJSCt decides Ds (and others) are allowed on Tedesco’s land without his permission (with some restrictions)F.Our Approach:

1. Look at possible theories not relied on by NJSCt 2. Then look at what court actually did3. Then apply case to new situations

TRANSITION TO TRANSITION TO SHACKSHACK

•

A. Rights v. Interests (Tuesday)

B. Necessity & Limits on the Right to Exclude (DQ1.05-1.06)

C. Chapter 1 in the Property Course

D. Overvew of the Case

E.E. Why So Much Time on Why So Much Time on ShackShack

TRANSITION TO TRANSITION TO SHACK: SHACK: Overview of CaseOverview of Case

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 nterfere with right to exclude

TRANSITION TO TRANSITION TO SHACK: SHACK: Overview of CaseOverview of Case

Why Extensive Coverage of Shack?1. Subject Matter

2.Technique: Making Arguments from Cases • Three Common Sources (We’ll Use for Problems Mon Tue)

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)

FINAL EXAM QUESTION 2SHORT ANSWERS (3 of 4)

• E.g., Review Problems 1A-1F

• Tightly Focused Problems (Generally One Subject)

• Time Allotment for Each:

• ~5 Minutes to Read/Outline

• ~20 Minutes to Write

FINAL EXAM QUESTION 2SHORT ANSWERS (3 of 4)

Relevant Skills

•Reading Carefully/Following Directions

•Strong Understanding of Relevant Authority

•Identifying Best Arguments for Each Party (Won’t Be Clear Winner)

•Recognizing Significance of Facts in Problem

PROPERTY D (1/22)I. APPROACHING SECOND SEMESTER

II. Transition to Shack (continued)

III.III.ShackShack: The Roads Not Taken: The Roads Not Taken

A.A. Necessity (DQ1.06 cont’d) Necessity (DQ1.06 cont’d)

B. Bargaining (DQ1.07)

C. Constitutional Law (DQ1.08)

SHACK: SHACK: ROADS NOT TAKENROADS NOT TAKENDQ1.06: NecessityDQ1.06: 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?

Comparing Facts: Recurring Comparing Facts: Recurring IssuesIssues

1. Helpful to Articulate CharacterizationsCharacterizations that Facilitate Comparisons. E.g.,

• Examples of Necessity mostly address Immediate Threats to Persons or Property

• Shack Ds not addressing Immediate Threats

Comparing Facts: Recurring Comparing Facts: Recurring IssuesIssues

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”

SHACK: SHACK: ROADS NOT TAKENROADS NOT TAKENDQ1.06: NecessityDQ1.06: Necessity

Common error among past students:Saying necessity was basis of decision; it isn’t!

What evidence can you find in the What evidence can you find in the opinion that necessity was opinion that necessity was not not the the legal theory that formed the basis of legal theory that formed the basis of the court’s decision?the court’s decision?

SHACK: SHACK: ROADS NOT TAKEN: ROADS NOT TAKEN: DQ1.06: DQ1.06: NecessityNecessity

Evidence that necessity was notEvidence that necessity was not the legal theory the legal theory that formed the basis of the court’s decision that formed the basis of the court’s decision

includesincludes … …•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 How would opinion look different if necessity was basis?was basis?

SHACK: SHACK: ROADS NOT TAKEN: ROADS NOT TAKEN: DQ1.06: DQ1.06: NecessityNecessity

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 quite clear that facts don’t have to fit into doctrine of necessity to trigger Shack rights.

PROPERTY D (1/22)I. APPROACHING SECOND SEMESTER

II. Transition to Shack (continued)

III.III.ShackShack: The Roads Not Taken: The Roads Not TakenA. Necessity (DQ1.06 cont’d)

B.B. Bargaining (DQ1.07) Bargaining (DQ1.07)

C. Constitutional Law (DQ1.08)

SHACK: SHACK: ROADS NOT TAKENROADS NOT TAKENDQ1.07: BargainingDQ1.07: 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