PROPERTY D SLIDES
1-27-14
Monday Jan 27: Music
Carole King, Tapestry (1971)
• Dean’s Fellow Sessions Start This Week (On Course Page)
• Tuesday @ 2:30 pm in Room E352
• Wednesday @ 8:30 am in Room F209
• Circulating List Today for You to Provide Contact Info:
• Please Write Clearly
• E-Mail Addresses (not Phone #s) Will Be Provided to Class
• Panel Assignments Posted on Course Page
Panel Responsibilities Begin Tomorrow
• E-Mail Me if Qs
•
PROPERTY D: MONDAYS
Special Bonuses for On-Time Arrivals
(2) Brief Recap of Prior Week
PROPERTY D: 1/27
Two DISAPPOINTING
REVELATIONS ABOUT
CHILDHOOD FAVORITES 
PROPERTY D: 1/27
(1) ALL FROOT LOOPS TASTE THE SAME
REGARDLESS OF COLOR
(Same For TRIX & FRUITY PEBBLES)
PROPERTY D: 1/27
(2) The Alphabet Song &
Twinkle Twinkle Little Star
Have the Same Melody
Previously in Property D
• Right to Exclude
• Significance
• Jacque allows punitives w/o compensatory
damages to protect
• Necessity as one limit on right
• Shack as another limit on right
Previously in Property D
• Right to Exclude
• Shack v. State Language & Reasoning
• Court does not rely on
• Traditional property categories like
necessity & landlord-tenant law
• Constitutional theories raised by parties
• Bargaining/Agreements between Employers &
MWs
Previously in Property D
• Right to Exclude
• Shack v. State Language & Reasoning
• Court does not rely on Necessity,
Constitution or Bargaining
• Relies on its own ability to determine
common law of Property to announce limit
on right to exclude in NJ
• Lot of useful language
• Re Limits on Employer Right to Exclude
• Re Protection of Employer Interests
Previously in Property D
• Right to Exclude
• Shack v. State Language & Reasoning
• Lot of useful language
• Re Limits on Employer Right to Exclude
• Re Protection of Employer Interests
• Note that description of Tedesco as
“Employer” (rather than “Farmer” or
“Landowner”) suggests that employment
relationship is basis of Shack limits
PROPERTY D (1/27)
SHACK v. STATE cont’d
I. CONTEXT: 1971
II. WHAT THE CASE SAYS cont’d
C. Protecting Owners cont’d (DQ1.13)
D. Reconciling Shack & Jacque (DQ1.12)
III. Applying the Case to New Situations
• 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 D (1/27)
SHACK v. STATE cont’d
I. CONTEXT: 1971
II. WHAT THE CASE SAYS cont’d
C. Protecting Owners cont’d (DQ1.13) (featuring Alvarez,
McKain, Oña)
D. Reconciling Shack & Jacque (DQ1.12) (featuring Volunteers)
III. Applying the Case to New Situations
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
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?
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)
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.
-ORResolution of complex balancing of interests is best left to
the legislature.
SHACK: WHAT THE CASE DOES
DQ1.12: Shack & Jacque
Is Shack inconsistent with Jacque?
Articulate two different characterizations of the cases:
• One highlighting their inconsistency
• One suggesting they really are consistent.
PROPERTY D (1/27)
SHACK v. STATE cont’d
I. CONTEXT: 1971
II. WHAT THE CASE SAYS cont’d
III. APPLYING THE CASE TO NEW SITUATIONS
• Comparing Facts: Inclusion of the Press (DQ1.14)
(featuring Rostock, Venkatesh, Block, Jarzabek)
• Assigned Problems
APPLYING SHACK TO NEW SITUATIONS
DQ1.14: Comparing Facts (The Press)
NJSCt Explicitly Says Press Is Allowed:
Why Discuss?
• Clearly dicta (no press in case).
• Could be arguing at later time about whether NJSCt
should adhere to own dicta. (Note again: the more time
that has passed, the easier it is to do this.)
• Could be arguing in another state about extending basic
rule in Shack
APPLYING SHACK TO NEW SITUATIONS
DQ1.14: Comparing Facts (The Press)
Anytime you are comparing facts of a case to a
new situation, you need to:
1. Identify both similarities and differences
•
(Examples among you)
APPLYING SHACK TO NEW SITUATIONS
DQ1.14: Comparing Facts (The Press)
Anytime you are comparing facts of a case to a
new situation, you need to:
1. Identify both similarities and differences AND
2. Explain why they should affect the result.
•
•
•
Why similarities suggest treatment should be the
same –ORWhy differences suggest different treatment –ORWhy one side is more important than the other.
APPLYING SHACK TO NEW SITUATIONS
DQ1.14: Comparing Facts (The Press)
1. Compare press & other groups to whom
the NJSCt gives access
•
Identify Similarities
•
Identify Differences
DQ1.14: Comparing Facts (The Press)
What Do Lists Suggest re How to Treat Press?
Similarities Include …
• Could help MWs
• Can provide info (press report in
one place  info to others)
• Serving public interest (w specific
textual mandate (1st Amdt))
• Specialized training (v. stopping
by to see if you need anything)
• See Harvest of Shame (CBS
1960)
Differences Include …
Not helping specific people
Not necessarily helping when present
Might not only focus on MWs
Strong commercial interests
Scope of trespass harder to
determine/likely to want more intrusion
• O interests arguably stronger w press
•
•
•
•
•
• v. Medical: No interest in unhealthy MWs;
• v. Legal: State won't acknowledge O
interest in uninformed MWs
PROPERTY D (1/27)
SHACK v. STATE cont’d
I. CONTEXT: 1971
II. WHAT THE CASE SAYS cont’d
III. APPLYING THE CASE TO NEW SITUATIONS
•
Comparing Facts: Inclusion of the Press (DQ1.14)
•
Last Names A-F: Discussion Question 1.15(a) (S7)
Applying Shack: DQ1.15 & Problems 1A-1B
Could do each of these at length, going through:
•
•
•
•
Application of Key Language
Factual Comparisons to Shack Ds & Press
Relevance of Key Policies Like Protecting O’s Interests
Overall Best Result
In class, we’ll do selected Qs to highlight particular
techniques
I’ll give you more extensive write-ups of each in
future Info Memo
APPLYING SHACK: Problem 1B (Last Names P-Z):
Tomorrow we’ll do 1B. Tonight look at again in light of today’s discussions.
A few points to think about:
• Common Sense in Reading: “To ensure that she never comes into contact
with pork products, Alyssa stopped serving them in her dining hall and
forbade all employees from bringing food from outside the farm (drinks
are allowed).” Them = pork products not MWs.
• Don’t Look for Easy Ways Out: E.g., Don’t rest whole answer on MWs with
medical or religious need for pork or pizza (not very likely).
• Look for Ways That Problem is Different Than What You’ve Seen Before:
E.g., O’s primary interest is probably not privacy or security, b/c she
allowed pizza delivery in past, so focus on religious interest.
APPLYING SHACK: DQ1.15a (Last Names A-F):
A worker wishes to have a spouse or longterm partner stay overnight on the premises.
• MW “must be allowed to receive visitors … of his own
choice, so long as there is no behavior hurtful to others.”
• Possible harm to others?
• How Serious?
APPLYING SHACK: DQ1.15a (Last Names A-F):
A worker wishes to have a spouse or longterm partner stay overnight on the premises.
• “can’t isolate in any aspect significant for workers’ wellbeing”
• How Significant for MWs’ Well-Being?
• Isolating if Denying?