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Property I
Temple University School of Law
Baron, Jane B.


FOCUS: What power does ownership give people?
FOCUS: When courts talk about property, what do they say? Why courts talk more about classifications and consequences then power and people?
FOCUS: Type of arguments being made, recognizing patterns in those arguments

I. Property as Power: Trespass and the (non-absolute) Right to Exclude
A. Private Property: Public Policy Limits on the Right to Exclude
1. Rule: Property owners have a right to exclude except where they have provided reasonable access to the public.
2. In some case, non-owners have a right to access.
3. State v. Shack, NJ, 1971
a. Social workers entered farmer’s land to give medical attention to one migrant worker and talk to another about his rights.
b. Farmer allowed the one to get medical help; but only allowed the one who wanted to discuss the workers rights with the worker on the condition that he could be present. Social worker refused. Farmer charged him with criminal trespass in the municipal court.
c. Issue: Does the right to bar access extend to social workers entering to discuss migrant worker’s rights?
d. No. social workers cannot be barred. Must weigh property right of the farmer with the dignity, destiny, and well being of the migrant worker.
i. legislation has spoken on the issue
e. Reasoning: Ownership does not trump more fundamental right of well-being.
f. Therefore, an owner cannot isolate people on his property from those seeking to protect their well-being.
g. Maxim: one should use his/her land so as not to harm others.
h. Balancing: right to exclude v. right to access to needed things
i. seclusion principle at play here

From Class:

Zero-sum: if migrants get what they need through gov’t workers right to access, owner doesn’t get his right to exclude; if he excludes, they don’t get the info – the rights aren’t so much balanced as in conflict

PROPERTY AS POWER – owner exercising power in a way that affects migrant’s ‘dignity and destiny’, those interests greater than owner’s interest in using property as wants

Bottom line: this case complicates easy rule that ownership comes with absolute right to exclude, which is fundamental right which property law conveys.

Desnick v. ABC 7th Cir. 1995
Facts: ABC did an undercover investigation into some shady eye doctors who were ripping off old people and Medicare with unnecessary cataracts surgery.
Issue: Did the journalists trespass?
Decision: No.
1. There is no general journalist’s right to trespass even when doing a public interest story. There can be no implied consent when express consent is procured through fraud (ABC reporters acted like they needed cataract surgery).

No invasion of any of the specific interests the tort of trespass seeks to protect. (did not disrupt activity or invade privacy; no interference with ownership or possession of land
Social good of exposing this kind of fraud


trespass – unprivileged intentional intrusion on property possessed by another

privileges: a. consented to by owner (not valid if obtained by fraud)

encouraged by public policy

Remedy to trespass – a. nominal d

t to exclude? – in most places yes, in NJ, no
However, casino retains right to expel patrons who disrupt casino operations
We won’t have to argue about what constitutes a disruption of casino operations b/c we leave it to the Commission to form those rules

Spirit-Murdering the Messenger: The Discourse of Fingerpointing as the Law’s Response to Racism – Patricia Williams
-Discussion of stores in NY using buzzers to let people in, and their exclusion of African-Americans
Intelligent Bayesian
-claims excluding people by race and sex is just playing the statistics


Uston filed similar suit in NV, they found no innkeeper duty for a casino.
Most states retain right to exclude, only innkeepers and common carriers still need be totally open to public. In Madden, racetrack excluded a guy who they thought was a well known bookie. Ct upheld their right to exclude, saying amusement places have “an absolute right to serve who they please”. NY only bars exclusion on basis of race, creed, color, or national origin at the time.

Justifications for common carriers and inn keeper exceptions: a) more likely to be monopolies, so denial of service equals denial of travel or place to sleep. B) these businesses provide necessities C) they hold themselves out as open to