PROPERTY D SLIDES
2-3-14
Monday Feb 3 Music: Cyndi Lauper,
Twelve Deadly Sins: (1994)
I’m trying to finalize contact list today
• If you made a correction on the list that circulated last Thursday,
please check in with me to see if we fixed it properly.
• The following people apparently were not able to check their info
and need to see me to do so: Hubbard, Rosendorf, Venkatesh
PROPERTY D: 2/3
As Valentine’s Day Approaches:
Too Much
Part One
Every kiss begins with Kay®
& Jane Seymour
• Bond Girl
• Medicine Woman
• Queen of TV Miniseries
• Third Wife of Henry VIII
~present~
Jane Seymour’s
“Open Heart” Collection
“Behind Every Open Heart is a Story”
Unfortunately, it’s usually a story
about cholesterol.
Previously in Property D
• Right to Exclude & MWs
• Shack v. State
• Discussed Several Aspects of Context of Case:
• Historical (1971)
• Doctrinal: Comparison to Jacque (DQ1.12)
• Structural: Ways for Farmers to Deal With
(DQ1.13)
• Practiced Applying Case to New Situations
• Florida Statutes on MWs
• Looked at Content & Operation
• Compared to Shack
Previously in Property D
• Right to Exclude & Parcels Open to
Public
• Common Law Innkeeper Rule: Brief Intro to
Operation & Rationales
• Civil Rights Statutes: Brief Intro to
Operation & Rationales
PROPERTY D (This Week)
Today
1.
2.
3.
Brooks & DQ1.23-1.24 (Shenandoah)
Intro to JMB &: DQ1.25-1.26 (Shenandoah)
Start Rev. Prob. 1I (Arches)
Tomorrow
1.
2.
3.
Finish Rev Prob 1I (Arches)
JMB cont’d & Closing Up Ch. 1: DQ1.27-1.29 (Yellowstone)
Intro to Chapter 2 & Midkiff & DQ2.01-2.06 (Redwood)
Thursday: Rev Prob 1H (Biscayne) + More Ch. 2
YELLOWSTONE Electronic Cold Call: DQ1.29
E-Mail Your Response to Me by 9:00 pm Tonight
DQ1.29. Can you formulate a rule or a set of standards for
when a business generally open to the public should be
prevented from excluding particular individuals or activities?
George * Giles * Halmoukos * Ireland * Khoury
• Submit version of what you had prepared for this DQ
• Needs to be clear (not pretty)
• Can include bullet points, abbreviations, etc.
• I’ll write up some comments & make available to you soon
PROPERTY D (2/3)
Right to Exclude cont’d
1. Brooks & DQ1.23-1.24
2. Intro to JMB & DQ1.25-1.26
3. Start Rev. Prob. 1I
Right to Exclude: Parcels Open to the Public: Brooks
Procedural Posture:
• US Court of Appeals for 7th Cir (Wisc, Ill, Ind.)
• Federal Court b/c Diversity Jurisdiction (P80)
• Ps = Pennsylvania Citizens
• D = Illinois Corporation
• Under Erie, Federal Court applies state law:
• Job is to determine what Illinois would do
• Court clearly not very sympathetic to D, but not operating on clean slate
Questions?
SHENANDOAH (DQ1.23-1.24)
APPALACHIAN TRAIL
Right to Exclude: Parcels Open to the Public
Brooks & DQ1.23 (Shenandoah)
Purpose of Exclusion & Less Restrictive Alternatives
DQ1.23: If their right to exclude is
limited, what are the possible harms to
the landowners in Brooks?
Right to Exclude: Parcels Open to the Public
Brooks & DQ1.23 (Shenandoah)
Purpose of Exclusion & Less Restrictive Alternatives
Possible Harms to O in Brooks Include:
• Professional Gamblers = (Maybe) Organized Crime
• Reputed presence might discourage others from betting
• Actual presence increases risk of actual crime
• Expertise + Access to Funds  Loss of $$ for O?
• Should we treat this potential loss as a significant concern?
Right to Exclude: Parcels Open to the Public
Brooks & DQ1.23 (Shenandoah)
Purpose of Exclusion & Less Restrictive Alternatives
Expertise + Access to Funds  Possible Loss of $$ for O:
Significant Concern?
• Could Characterize as
• Inevitable Risk of This Business (i.e. “Tough!) –OR• Potential Catastrophic Loss O Should Be Able to Limit
• Fact on P80: Ps lost 110 out of 140 betting days:
• Why does court include this fact?
• Argument that this fact is not very significant?
Right to Exclude: Parcels Open to the Public
Brooks & DQ1.23 (Shenandoah)
Purpose of Exclusion & Less Restrictive Alternatives
Expertise + Access to Funds  Possible Loss of $$ for O
Possible less restrictive alternative to address this concern:
Limit on amount one person can bet.
Pros & Cons?
(Worry: Some Pros ARE Cons)
Right to Exclude: Parcels Open to the Public
Brooks & DQ1.23 (Shenandoah)
Purpose of Exclusion & Less Restrictive Alternatives
Possible less restrictive alternative: Limit on amount one person
can bet. Good idea?
• Treating all patrons alike; less chance of mistake BUT
• Easy to get around by hiring multiple bettors
• Though that’s also true if you try to exclude specific people
• Tracks may not like. Good for business to have big losses and
[occasional] big wins
• Note this is probably not kind of solution court can do; would need
legislation or negotiation
Right to Exclude: Parcels Open to the Public: Brooks
Purpose for Inclusion/Harms from Exclusive
Significant Public Interest in Allowing
Access in Cases Like This?
Right to Exclude: Parcels Open to the Public: Brooks
Purpose for Inclusion/Harms from Exclusive
Significant Public Interest in Allowing Access in
Cases Like This?
• Probably not much in ensuring professionals can bet large
amounts in person at track
• Concerns: Exclusion b/c mistake re identity or facts
• E.g., Federal No-Fly Lists
• E.g., NY case cited in Brooks (P81): Coley Madden mistaken for
Owney Madden
Right to Exclude: Parcels Open to the Public: Brooks
Comparisons with Other Kinds of Businesses: Casinos
Ps Asked Court in Brooks to Apply Uston
• In Uston, NJ SCt seems to apply Innkeeper Rule to casinos
• 7th Cir. Refuses to Apply
• NJ Case; Not Followed in Illinois
• NJ Doesn’t Extend to Racetracks Anyway
• Could Also Distinguish on Facts
• Card Counting = Skill Accessible to All (v. Inside Info on
Horses/Jockeys)
• Casinos Covered by Special Statutes/Licensing (so explicit
regulatory power in state govt)
Right to Exclude: Parcels Open to the Public: Brooks:
Comparisons with Other Businesses: DQ1.24
Arguments re Extending Innkeeper Rules to Cover Stadiums &
Racetracks Include:
• Comparisons to Inns & Common Carriers (& Monopoly Theory)
• Heavy state regulation & relatively few racetracks, so like monopoly
• But arguably less important than inns & common carriers
• Not crucial at time of arrival; extortion of patrons unlikely
• Less public interest in ensuring universal access. (Cf. P81:
Description of innkeeper & common carrier as “public callings”)
Right to Exclude: Parcels Open to the Public: Brooks:
Comparisons with Other Businesses: DQ1.24 (Shenandoah)
Arguments re Innkeeper Rules for Stadiums & Racetracks Include:
• From the Court:
• (P82-83) Suggestion that large open invitation might mean O
should lose discretion. -BUT• (P83) Suggestion that market forces here likely to discourage
many types of arbitrary exclusions.
• Not Mentioned in Readings: Often Significant Public
Funding & Gov’t Support for Stadium Construction; Could
View as Implied Contract w Public for Access
Right to Exclude: Parcels Open to the Public: Brooks:
Closing Points
• Other jurisdictions generally follow Brooks (even NJ)
• Only Exception I Know is California Civil Rights Act
• Language (See P84-85) looks like ordinary civil rights statute
• Cal. SCt reads it to ban “arbitrary discrimination” of any kind
• E.g., Orloff (1951) (racetrack case)
• Can’t exclude people w reputations for immoral character
• Person in Q had prior off-track gambling conviction & reputation as
gambler/bookmaker
Right to Exclude: Parcels Open to the Public: Brooks:
Closing Points: Final Continuum
• Can exclude anyone for any reason (Common Law re most businesses)
• Can exclude for any reason except limited list of forbidden
characteristics (Typical Civil Rights Statutes)
• No “arbitrary discrimination.” (California Civil Rights Act)
• Must accept anyone who shows up w $$ unless specific prior harmful
conduct. (Common Law Innkeeper Rule & maybe casinos under Uston).
Qs on Brooks?
Right to Exclude: Parcels Open to the Public
Transition Quote (P84)
“[T]he more private property is devoted to public
use, the more it must accommodate the rights
which inhere in individual members of the
general public who use that property .”
--Uston quoting State v. Schmid.
PROPERTY D (2/3)
Right to Exclude cont’d
1. Brooks & DQ1.23-1.24
2. Intro to JMB & DQ1.25-1.26
3. Start Rev. Prob. 1I
Right to Exclude: Parcels Open to the Public
JMB: Overview
•
NJSCT holds that large shopping centers must permit
protestors to have access to hand out leaflets on social issues.
•
Our Coverage
1. TODAY: Relevant Interests (DQ1.25-1.26)
2. TODAY: Logic of Opinion (Me)
3. TOMORROW: Permissible Regulation (DQ1. 27)
4. TOMORROW: Relation to Other Right to Exclude Problems (DQ1.28)
SHENANDOAH (DQ1.25-1.26)
APPALACHIAN TRAIL
Right to Exclude: Parcels Open to the Public
JMB: DQ1.25: O’s Interests (Shenandoah)
Possible harms to the owners in JMB:
1. Forced Speech
2. Psychic Harm
3. Interference with Business
Right to Exclude: Parcels Open to the Public
JMB: DQ1.25: O’s Interests (Shenandoah)
Possible harms to the owners in JMB:
1. Forced Speech
• 1st Amdt Claim: Shoppers will assume leafletters speak for
management, so Os effectively forced to say things they disagree with
Are shoppers likely to view protestor speech that way?
Right to Exclude: Parcels Open to the Public
JMB: DQ1.25: O’s Interests (Shenandoah)
Possible harms to the owners in JMB:
1. Forced Speech
• 1st Amdt Claim: Shoppers will assume leafletters speak for
management, so Os effectively forced to say things they disagree with
• I’m skeptical that shoppers would view that way
• Court rejects this claim in portion of opinion not in book
Right to Exclude: Parcels Open to the Public
JMB: DQ1.25: O’s Interests (Shenandoah)
Possible harms to the owners in JMB:
1. Forced Speech (claim rejected by NJSCt)
2. Psychic Harm
•
Feelings of Lack of Control Over Property
•
Made Worse by Speech if Os Disagree
•
NOTE: Genuine, but hard to Quantify
Likely to be Very Significant in this Context?
Right to Exclude: Parcels Open to the Public
JMB: DQ1.25: O’s Interests (Shenandoah)
Possible harms to the owners in JMB:
1. Forced Speech (claim rejected by NJSCt)
2. Psychic Harm
•
Would have to convince court that would make significant difference w lots of
other people at mall & very broad public invitation
•
No claims, e.g., re privacy.
•
Plus can exclude completely when mall is closed
3. Interference with Business: Specific Concerns?
Right to Exclude: Parcels Open to the Public
JMB: DQ1.25: O’s Interests (Shenandoah)
Specific Business Concerns Include:
•
Customers May Not Like  Go Elsewhere
•
Security/Monitoring
•
Clean-Up
•
Tort Liability/Insurance
•
Interferes w Traffic Patterns/Access to Particular Tenants
How significant are these harms likely to be?
Right to Exclude: Parcels Open to the Public
JMB: DQ1.25: O’s Interests (Shenandoah)
Points re Significance of Specific Business Concerns:
• Customers may not like, BUT if at all malls, they’ll get used to & other
malls won’t be better choices
• Average Daily Traffic = 28,750 People
• Unlikely to Significantly Impact Security, Clean-Up, etc.
• Tort Liability  Insurance Premiums (I bet near-zero effect)
• Interference w Traffic & Access Might Be Problem
• BUT Probably Ways to Address without Complete Exclusion
• Not Like Foot Traffic Always Flows Smoothly!!
• Note Lack of Specificity re Harms to Malls
GARIBALDIS
LIBERATOR
GIUSEPPE
JUSTICE MARIE,
DISSENTING
Right to Exclude: Parcels Open to the Public
JMB: DQ1.26: Public Interest (Shenandoah)
What benefits to society might there be to allowing political
activists to hand out leaflets at privately-owned shopping
centers?
Right to Exclude: Parcels Open to the Public
JMB: DQ1.26: Public Interest (Shenandoah)
Interests of Public in Speech at Malls Include:
• Speakers Get Access to Folks They Might Not Otherwise Reach
• Few Traditional Public Spaces in Suburbs
• Maybe Can Target Speech to People with Particular Interests (near specific
stores, etc.)
How significant are these benefits likely to be?
Right to Exclude: Parcels Open to the Public
JMB: DQ1.26: Public Interest (Shenandoah)
Interests of Public in Speech at Malls:
• Speakers Get Access to Folks They Might Not Otherwise Reach
• Significance is Fact Q: Likely varies greatly with locality
• J. Garibaldi suggests not very significant.
• BUT maybe most cost-effective way to reach public in suburbs when
opinion decided in 1994.
Why Might 1994 Be Significant?
Right to Exclude: Parcels Open to the Public
JMB: DQ1.26: Public Interest (Shenandoah)
Interests of Public in Speech at Malls:
Possible Significance of 1994
• Just Before Widespread Public Internet Access
• May Change Calculus of Relevant Interests
• Maybe Os’ Interests : Shoppers Irritated by Political Leafletters Shop
Online Instead of at Malls
• Maybe Public Interest : Internet Means Less Need to Access Malls
to Spread Points of View
Right to Exclude: Parcels Open to the Public
Logic of JMB: Constitutional Background
• Federal Cases (Discussed in JMB P87-88):
• Marsh: Company town: 1st Amdt applies
• Logan Valley extended Marsh to shopping centers
• Tanner & Hudgens overrule Logan Valley & hold shopping
centers are private space not addressed by federal 1st
Amdt
Right to Exclude: Parcels Open to the Public
Logic of JMB: Constitutional Background
• Federal v. State Constitutions
• Federal Constitution limits both state & federal govt power
• State Constitutions
• Can’t permit what Feds prohibit
• BUT State can choose to restrict itself more than Feds do
• E.g., by forbidding its own police from doing some searches and
seizures allowed by 4th Amdt
• E.g., by protecting speech more than Fedl 1st Amdt
• We’ll see again in Chapter 2
Right to Exclude: Parcels Open to the Public
Logic of JMB: Constitutional Background
Pruneyard (Cal. 1979) aff’d (US 1980)
• Calif SCt says its state 1st Amdt protects speech more than Fedl 1st Amdt
and gives its citizens the right to free speech in Shopping Centers
• Shopping Center Os appeal claiming that Calif allowing this access
interferes with property rights in violation of 5 th and 14th Amdts of Fedl
Constitution:
• USSCt says no violation of Fedl Constitution
• Effectively leaves states with choice of whether to provide state protection for
speech at shopping centers:
• Federal 1st Amdt allows (but doesn’t require)
• Federal 5th/14th Amdts don’t forbid
Right to Exclude: Parcels Open to the Public
Logic of JMB: Constitutional Background
• In JMB, NJ follows Calif & says its state 1st Amdt gives its
citizens the right to free speech in Shopping Centers
• Calif & NJ only states to do this through state 1st Amdt
• Mass & Colo & Wash (limited) allow speech access to
shopping centers on other theories
• Other states do not allow speech access to shopping centers;
Minn & Oregon have reversed themselves since casebook
was published and no longer allow
Right to Exclude: Parcels Open to the Public
Logic of JMB: Reasoning (Schmid Analysis)
JMB Follows & Applies Schmid (NJ 1980)
• Schmid addressed Free Speech access to Princeton Univ.
• (Private property often open to public)
• Case described in detail on P88-89
• Note appeal dismissed in Schmid by USSCt (see cite on
P88)
• - tried for fedl property rts claim as made unsuccessfully in
Pruneyard & as I suggested might try in iShack
Right to Exclude: Parcels Open to the Public
Logic of JMB: Reasoning (Schmid Analysis)
JMB Follows & Applies Schmid (NJ 1980)
• Schmid allowed Free Speech access to Princeton Univ.
• = Private property often open to public
• Case described in detail on P88-89
• Note Princeton appealed to USSCt
• Same Fedl property rights claim made in Pruneyard
• SCt refused to hear appeal (see cite on P88)
Right to Exclude: Parcels Open to the Public
Logic of JMB: Reasoning (Schmid Analysis)
JMB Follows & Applies Schmid (NJ 1980)
• Schmid allowed Free Speech access to Princeton Univ.
• Uses Three-Part Balancing Test (P89); Can Use For …
•
Access Claims re 1st Amdt Rights (Like JMB)
•
Other Limits on Right to Exclude (Like Brooks)
•
We’ll Look at in More Detail for DQ1.28
• Schmid allows O to put some restrictions on access, BUT
doesn’t specify what restrictions OK
Right to Exclude: Parcels Open to the Public
Logic of JMB: Reasoning (Schmid Analysis)
JMB Follows & Applies Schmid (NJ 1980)
• Note importance of analogy to town square.
• Note importance of very broad invitation by malls.
• Court (P91) explicitly says it is drawing on common law as well
as NJ 1st Amdt
• Cites/discusses Shack
• Again suggests can use JMB/Schmid to support other kinds of limits
on rt excl besides 1st Amdt
Qs on JMB Reasoning?
PROPERTY D (2/3)
Right to Exclude cont’d
1. Brooks & DQ1.23-1.24
2. Intro to JMB & DQ1.25-1.26
3. Start Rev. Prob. 1I
Right to Exclude: Review Problem 1I
Client uses MWs living onsite to pick crops several wks/yr.
• Large meeting hall next to MW barracks
• MWs get Sundays off; invite MWs from nearby farms to hall for
•
Religious Service
•
Social Event after
•
Client seeks advice about whether he has to allow
•
Asked to describe legal/factual research necessary to advise
Right to Exclude: Review Problem 1I
Legal Research Needed To Establish Legal Framework
1. Check if state roughly follows Shack by caselaw or statute.
2. Check for precise rules & permissible restrictions.
3. Look for possible caselaw/statutory language addressing
specific issues that might arise, e.g., …
Right to Exclude: Review Problem 1I
Legal Research Needed To Establish Legal Framework
3. Look for possible caselaw/statutory language addressing:
a. Possible Distinction between
i)
People invited by MWs
•
Check if limited like FL to living quarters
•
Check if limited like Shack if “harm to others”?
ii) People who get access w/o invitation
b. Relevant tests used in Shack (e.g., customary assns.)
c. Genl info about MWs’ use of off-duty time
Right to Exclude: Review Problem 1I
Legal & Factual Research Relevant to the Following
Aspects of the Problem … (Notes on my list of topics):
•
Lots of ways to approach/organize this problem
•
•
•
I’m not looking for any particular structure.
Any set of categories/headings (including mine) will overlap to some
extent.
I tried to design this list to help you see issues; good answers
would hit on most of these topics somewhere.