Property I Outline

 
PROPERTY DEUTSCH FALL 2013
 
 
 
Right to INCLUDE / EXCLUDE   p88-96
1.      Property contains a right to Include (permit) and exclude (deny)
a.       Both are necessary
b.      Free transferability of property rights
c.       Basic understand of what it means to own things
d.      Henry VIII revolutionized law system (almost same as today)
2.      RIGHT TO EXCLUDE
a.       Is the starting point (cornerstone of property ownership); almost all else is an exception.
b.      Right to exclude
c.       Jacques v. Steenberg Homes ; p89 (mobile home across property) right to exclude
i.        Don’t need a good reason to keep someone off, Jacques win.
ii.      Start with US Supreme Court -> essential stick in the bundle of rights.
iii.    Society has a strong interest in excluding trespassers from his or her land.
iv.    Confidence in Legal system to prevent ‘self-help’ remedies.
v.      Facts:  Mobile home to deliver. Steenberg Homes (D) had to cut-through the Jacques home.
vi.    Analysis: Society has a strong interest in excluding trespassers from his or her land
3.      LIMIT ON the RIGHT TO EXCLUDE
a.       State v. Shack ; p90 (NJ case Man entered farm to help Migrant workers) ; limit right to exclude
i.        NOTE: This is an appeal of a criminal conviction.
ii.      Property rights serve human values; but the owner can not have dominion over the destiny of people on their property (There is a HUMAN BEING on your property).  COURT is setting up the importance of Human rights OVER Property rights (set up subordinate relationship). (LIBERAL), but
iii.    Supreme Court said that HUMAN RIGHTs and PROPERTY RIGHTs are equal (5-4 decision).
iv.    Man’s right to his property is NOT absolute -> rights are relative.
b.      In Illinois (Campbell soup) case, Property = Human, so the migrant workers did not win.
i.        Outside of communities -> they must be able to communicate with them.
ii.      Shack & Tejeras have a right to go onto the property (if they want to).
c.       Immigrant workers are a highly disadvantaged member of society.
i.        3 questions by the prof;
1.      Invite a drug dealer – (legal-> can come on property or illegal-> can’t come on property)
2.      Invite a faith healer – (after a cut on leg) – Farmer wants to provide farmer, but worker wants faith healer;
3.      Party on the farm – ok? Perhaps to invite people over (perhaps not too many?)  Unsure, since still about access?
4.      Brother to stay on farm for a bit (visitor, works) – No, can’t come on property (this case was about access).
5.      What if the context WAS Shopping center / stadium ?
6.      What if it were someone’s home ?
d.      Important paragraph he read; “and we are mindful of the employers’ interest and security, their visitor and general purpose. Employer may not deny worker his rights to visits, can’t deny those rights, and can’t leave it up to the farmer primarily due to “unequal bargaining strength” of the bargainers.
e.       Not our purpose to open public to general property.
f.       Can’t deny practical access to things they need.
g.      Farmers started insisting on ‘notification in advance’. 
i.        Is that a reasonable interpretation? 
h.      How would we advise the farmers;
i.        NJ Coalition against war v. JMB Realty ; PDF (Allow group to leaflet in a mall) ; more limits on right to exclude
i.        From class; the Schmidt test (will, methinks be on test) – Princeton trespasser (?)
1.      ‘Normal use’ nature of the use of the property (malls let people just come)
2.      Extent of public invitation (open to everyone, even non-shoppers)
3.      Purpose of the speech “expressional activity” in relation to the property. (not like a univ. but open).
ii.      Facts:  Not allowed to leaflet insider certain NJ Malls
1.      Veteran’s Day weekend might be issue, and not advance notice.
2.      Trial work, and processor case handled by law school.
iii.    History:  Trial court went with the defendants; commercial use is inconsistent with free speech.  Appellate division agreed that Schmidt was not met. (extent and nature to use property
iv.    Issue:  By using Schmidt (Princeton, private college, someone in to protest event)
1.      Malls serve as their own communities
2.      No scope on the invitation to come
3.      Purpose of the expressional activity and use of property
v.      From class; the Schmidt test (will, methinks be on test)
a.       ‘Normal use’ nature of the use of the property -They do let people just come in.
b.      Create a community space – Extent of public invitation
c.       ‘come and just hang out’. What they allow to happen -> “implied invitation” to the world.
d.      Interesting jump…
e.       Purpose of the speech “expressional activity” in relation to the property.
f.       Kind of assumes in its nature that there is a public use implied.
g.      This element lets the majority tie in the public use of spaces (since this is quasi-public).
h.      The USE is commercial (one use); but another is to hang out (community image) !
i.        Hang out, walking, etc… (much beyond commercial terms), have community booth.
j.        Is a large shopping center like ‘downtown’.
k.      With Great Success comes great constitutional responsibility.
l.        Per a Calif. Trial; State can make Constitutional issues stronger.
m.    21 states BAN the right; 6 OK the right of free speech (or basis of right to petition).
n.      Even in states that don’t require; there are many that do allow it; they say its good for business. (some are indeed against – like KKK protest)
1.      Holding:  Subject to reasonable conditions” be allowed.
2.      Analysis:  Judicial notice of the decline in small town America
3.      This is NOT BEING decided on the first amendment of the constitution.
                                                        i.            Does not create any rights against private property.
                                                      ii.            NJ has different interpretation; not just gov. action, but also private action.
                                                    iii.            With great success, comes great constitutional responsibility
                                                    iv.            Also, they are deciding ONLY FOR THIS GROUP of MALLS, not all.
                                                      v.            Colorado went with free speech to distribute information.
                                                    vi.            We do not interfere lightly with property rights. (so, limited use, within reasonable rules, no selling, certain hours, etc..)
b.      Disposition:  Judicial notice of the decline in small town America
                                                        i.            Garibaldi dissenting (p20);
1.      Jerk, but made some good points;
2.      Unrestricted expressional activities
3.      Rudderless standard
4.      Fight of conflicting point.
                                                      ii.            BOTTOM LINE -> purpose is commerce.
                                                    iii.            Court says: reasonable time, place and manner… (Leafleting only, no soapbox, limit the time they can operate, etc…)
                                                    iv.            How does the mall draft the regulation: put in section, limited access to shoppers, create a community section … all within reason, # of days per