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Property I
University of California, Hastings School of Law
Leshy, John D.

 U.C. Hastings College of the Law
Professor Leshy
Fall Semester 2010
Handout # 1
A California statute enacted in 1872, and still in effect (Civil Code, § 654), defines “property” as follows:
The ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others. In this Code, the thing of which there may be ownership is called property.
(This statute and many others in California were derived from the famous “Field Code,” adopted around the middle of the nineteenth century in New York. Its crafter, David Dudley Field, was the brother of Stephen J. Field, a Gold Rush ‘49er, and who, after serving as a justice of the California Supreme Court, was appointed by Lincoln to the U.S. Supreme Court in 1863, where he served until 1897.)
Jacque v. Steenberg, p. 89
1. Was Jacque materially injured in fact by Steenberg’s action?
2. Why does the court uphold the punitive damages verdict? How do punitive damages differ from compensatory damages? What policy is the court serving by upholding the punitive damages?
3. Is the court saying that the property owner’s right to exclude is absolute and can never be abridged or limited?
4. One of the important economic arguments for creating and protecting private property rights is that it promotes economic efficiency. Is the result in this case economically efficient? That is, is there a net measurable economic benefit to society from preventing Steenberg from crossing Jacque’s land? If not, does that undermine the economic efficiency argument for property rights?
State v. Shack, p. 9022
1. The defendants raised several constitutional issues – first amendment rights of freedom of speech and association, right to counsel, etc. Did the court address these?
In fact, the court here had a choice to decide the case either on non-constitutional grounds (common law or statutory property law) or on constitutional grounds. When faced with that choice, what should a court do? Should it turn to constitutional issues first? Or should it decide the constitutional issue(s) only if it cannot dispose of the case on non-constitutional grounds? Why?
2. Is it legally significant to the outcome of this case that the U.S. Congress had enacted laws providing various forms of assistance to migrant workers? In those laws did Congress, so far as you can tell, address whether those assistance programs should preempt state property law and diminish property rights otherwise recognized under state law? If not, what is their significance here?
3. Is the result here economically inefficient? Does it provide a disincentive to farm with migrant labor? Is that relevant to the property issue? Should it be? Can we trust the private labor market to address these kinds of problems, as Professor Epstein seems to suggest, in paragraph 4 on p. 95?
4. Does the Court here pay sufficient attention to Mr. Tedesco’s interest in privacy and liberty, including the right to select his employees? It may be, in fact, that farmer Tedesco would not be allowed to sit in on the lawyer’s meeting with the migrant worker on Tedesco’s property, because of the evidentiary privilege that protects the confidentiality of communications between attorney and client. That is, the law might here operate to exclude the farmer from occupying (temporarily) a piece of his own property!
5. Is the court here in effect redefining the nature of Mr. Tedesco’s property right? Did he have the right to exclude everyone from his property before this decision, but not after? (We’ll take up so-called regulatory “takings” of private property issues toward the end of the course, addressing whether and when, for example, the property owner must be compensated for diminishment of his or her property rights from governmental regulation.)
6. Noted property law scholar Thomas W. Merrill said, in Property and the Right to Exclude, 77 Neb. L.Rev. 730, 730 (1998), “[g]ive someone the right to exclude others from a valued resource * * * and you give them property. Deny someone the exclusion right and they do not have property.” Does Mr. Tedesco still have property after this decision?
7. Is the court here “activist,” in the sense that it is “making law” rather than “interpreting” or “applying” it? What institution of government gets to decide what property is in New Jersey? The State Supreme Court? The legislature? Who has the final word?
8. Is Shack consistent with Jacque? Is there a general principle that reconciles and explains 33
them both? What is it?
9. Look at the list of limitations on the right to exclude that have been recognized in the law; paragraph #2, p. 93. There is (and always will be) fierce debate over how many exceptions there should be. Consider where to draw the line in the following situations:
Suppose Rhonda, who is now living in the mobile home that was moved in across Jacque’s land, is struck down with a life-threatening illness and needs to go to the hospital, and a big storm renders impassable the road that avoids Jacque’s land. To get to Rhonda, the ambulance goes across Jacque’s land, over his objection. No actual damage results. May Jacque recover punitive damages from Rhonda or the ambulance company?
Suppose the mobile home in Jacque had been supplied under a government housing program for the poor? Is a government housing program as persuasive a justification for limiting the right to exclude as government programs providing health care and legal advice to migrant workers?
Suppose the farmworkers in Shack did not live on Tedesco’s land, but in an apartment house somewhere away from his property. Would that change the result?
Suppose the Environmental Protection Agency, a unit of the federal government, is trying to contain a toxic chemical that has found its way into a large groundwater aquifer (a pool or deposit of water underground) that underlies several different parcels of land owned by different people. The pollution is threatening to contaminate the entire aquifer. Can the government enter onto private property over the aquifer to drill a monitoring well to gauge the extent of the contamination, over the objection of the landowner, and without compensating him or her? Cf. Hendler v. United States, 952 F.2d 1364, 1375–78 (Fed. Cir. 1991) (wells installed on private land by government regulators to monitor groundwater pollution from a nearby hazardous waste site held to be a governmental “taking” of the private landowners property right, requiring compensation to the landowner);
In connection with the material on free speech cases on the top of p. 93, read the following decision of the California Supreme Court:
42 Cal. 4th 850, 172 P.3d 742 (Cal. 2007), cert. denied 129 S. Ct. 94 (2008).44
We granted the request of the United States Court of Appeals for the District of Columbia Circuit to decide whether, under California law, a shopping mall may enforce a rule prohibiting persons from urging customers to boycott a store in the mall. For the reasons that follow, we hold that the right to free speech granted by article I, section 2 of the California Constitution includes the right to urge customers in a shopping mall to boycott one of the stores in the mall.
[In October 1998, a labor union representing employees at a San Diego newspaper distributed leaflets to customers entering a Robinsons-May store on private property owned by the owners of the Fashion Valley Mall (Mall) in San Diego. The leaflets pointed out that the store advertised in the newspaper, described several ways the newspaper allegedly treated its employees unfairly, and implicitly urged potential customers not to patronize the store. The leafletting was peaceable and the union members did not hinder anyone from entering or leaving the store. The Mall does not flatly forbid people from engaging in expressive activity at the Mall, but requires them to apply for a permit, and its rules prohibit anyone from “encouraging in any manner, customers not to purchase the merchandise or services offered by any one or more of the stores or merchants in the shopping center.”] Within 15 or 20 minutes, Mall officials “arrived on the scene to stop the leafletting,” notifying the Union members th

expression, holding that protesters had the right to express their opposition to the war in Vietnam by distributing leaflets in Union Station in Los Angeles, “a spacious area open to the community as a center for rail transportation” that was owned by three railroad companies. * * * 6
In In re Lane (1969) 71 Cal.2d 872, we applied our earlier holding in Schwartz-Torrance to conclude that a union had a right to distribute handbills on a privately owned sidewalk outside a business. * * *
During the interim between our decisions in Schwartz-Torrance and Lane, the United States Supreme Court adopted a similar position, holding in Food Employees v. Logan Plaza (1968) 391 U.S. 308 (disapproved in Hudgens v. NLRB (1976) 424 U.S. 507, 518) that peaceful picketing by union members of a business in a shopping center that employed nonunion workers was protected by the First Amendment. The high court observed that the shopping center in Logan Plaza “is clearly the functional equivalent of the business district” in Marsh. * * *
In Diamond v. Bland (1970) 3 Cal.3d 653, (Diamond I), we went one step further than the decision in Logan Plaza. . . [and held that] a privately owned shopping center must permit not only peaceful picketing of businesses in the center, but further must permit free speech activity that is unrelated to the business of the shopping center.
Two years later, the United States Supreme Court in Lloyd Corp. v. Tanner (1972) 407 U.S. 551, took a different course and disagreed with our decision in Diamond I, holding to the contrary that a privately owned shopping center could prohibit First Amendment activity that was unrelated to the business of the center. * * *
In light of the high court’s decision in Lloyd, we reconsidered our decision in Diamond I and, in Diamond v. Bland (1974) 11 Cal.3d 331, 332 (Diamond II ), held that a privately owned shopping center could prohibit free speech activity that was unrelated to the operation of the shopping center. Justice Mosk, joined by Justice Tobriner and, in part, by Justice Sullivan, filed a lengthy and impassioned dissent, urging the court to adhere to its decision in Diamond I on the basis of the California Constitution. * * *
The United States Supreme Court then abandoned its holding in Logan Plaza that a shopping center could not prohibit a union from peacefully picketing one of the stores in the center by holding in Hudgens v. NLRB (1976) 424 U.S. 507, 518, that “the reasoning of the Court’s opinion in Lloyd cannot be squared with the reasoning of the Court’s opinion in Logan [Plaza ].” The United States Supreme Court thus held that the First Amendment did not guarantee the right to free speech in a shopping mall. This court, however, did not follow the lead of the high court. Rather, we heeded the wisdom of Justice Mosk’s dissent in Diamond II and held in Pruneyard that the California Constitution granted a right to free speech in a privately owned shopping center. (Pruneyard, supra, 23 Cal.3d 899, 902.)
Our decision that the California Constitution protects the right to free speech in a shopping mall, even though the federal Constitution does not, stems from the differences between the First Amendment to the federal Constitution and article I, section 2 of the California Constitution. We observed in Gerawan Farming, Inc. v. Lyons (2000) [24 Cal.4th 468, 486] that the free speech 7