PROPERTY A SLIDES
1-22-15
Music: Rod Stewart,
Every Picture Tells A Story (1971)
Lunch Today (Meet on Bricks @ 11:55):
Gross, Murray, Pierre, Yaniz
Pop Culture Moment: Headline of the Week
Breast implant leak delays
congressman's wife's bigamy trial
PROPERTY D (1/22)
I. APPROACHING SECOND SEMESTER
II. Transition to Shack (continued)
III. Shack: The Roads Not Taken
Approaching Second Semester
A. Where You Are at End of First Semester
B. Special Difficulties of Second Semester
C. What To Do Now
Approaching Second Semester
A. Where You Are at End of First Semester
“I Guess You’re Right.” (!)
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
Approaching Second Semester
B. Special Difficulties of Second Semester
1. Schedule
•
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. Special Difficulties of Second Semester
1. Schedule
2. Coping with Grades
C. What To Do Now
Coping with Grades
1. Motivation Issues
Coping with Grades
1. Motivation Issues
2. Meaning of Grades
a. Not Good Measure of You as a Person
Which of The Following is the Most
Annoying?
A. Flo in Progressive ads
B. Guys in Sonic ads
C. Dick Vitale
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
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
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?
Approaching Second Semester
A. Where You Are at End of First Semester
B. Special Difficulties of Second Semester
C. What To Do Now?
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
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
FINAL EXAM QUESTIONS
Choose Three of Four
• XQ1: LAWYERING
• XQ2: SHORT ANSWERS (Choose Three
of Four)
• XQ3: OPINION/DISSENT
• XQ4: TRADITIONAL ISSUE-SPOTTER
Approaching Second Semester
Final Point
PROPERTY D (1/22)
I. APPROACHING SECOND SEMESTER
II. Transition to Shack (continued)
III. Shack: The Roads Not Taken
TRANSITION TO SHACK
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. Why So Much Time on 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.
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
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.
TRANSITION TO SHACK
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. Why So Much Time on Shack
TRANSITION TO SHACK: Limits on the Right
to Exclude & Structure of Course
A. Voluntary Transfers: Rights & Limits
B.• Involuntary Transfers
C. 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 Transfers
C. Chapter 1: Right to Exclude & Its Limits
Property A: Topics Covered
A. Voluntary Transfers: Rights & Limits
B. 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 & Limits
B. Involuntary Transfers
C. Chapter 1: Right to Exclude & Its Limits
• Owners voluntarily allow some third parties to
enter their land
• Sometimes this means they involuntarily lose the
right to exclude some other people as well
TRANSITION TO SHACK
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. Why So Much Time on Shack
TRANSITION TO SHACK: Overview of Case
A. Land in Q is in Deerfield Township: agricultural area 30 miles
due south of Philadelphia.
(NJ is “Garden State”)
TRANSITION TO SHACK: Overview 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 problems
1. 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 SHACK: Overview of Case
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 did
3. Then apply case to new situations
D.
TRANSITION TO SHACK
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. Why So Much Time on Shack
TRANSITION TO SHACK: Overview 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 SHACK: Overview 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 2
SHORT 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 2
SHORT 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. Shack: The Roads Not Taken
A. Necessity (DQ1.06 cont’d)
B.
Bargaining (DQ1.07)
C.
Constitutional Law (DQ1.08)
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?
Comparing Facts: Recurring Issues
1. Helpful to Articulate Characterizations that
Facilitate Comparisons. E.g.,
•
Examples of Necessity mostly address Immediate
•
Shack Ds not addressing Immediate Threats
Threats to Persons or Property
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”
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?
SHACK: ROADS NOT TAKEN: DQ1.06: Necessity
Evidence that necessity was not the legal theory that formed 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?
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 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. Shack: The Roads Not Taken
A.
Necessity (DQ1.06 cont’d)
B. Bargaining (DQ1.07)
C.
Constitutional Law (DQ1.08)
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