PROPERTY D SLIDES

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PROPERTY D SLIDES

• 2-4-14

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Tuesday Feb 4 Music Tina Turner, Private
Dancer (1984)

• Lunch Today (Meet on Bricks _at_ 1225)
• Gallagher, L Greenberg Munroe Rostock
• Thursday Begin with Rev Prob 1H (Biscayne)
• Then Pick Up w Chapter 2 Wherever We Leave Off

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PROPERTY D (2/4)

• Continue Review Problem 1I (Arches)
• JMB contd Closing Up Ch. 1 DQ1.27-1.29
• Intro to Chapter 2 Midkiff DQ2.01-2.06

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ARCHES Review Problem 1I
DELICATE ARCHES
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Right to Exclude Review Problem 1I (Arches)

• Legal Factual Research Relevant to The
  Religious Services
• Last Time
• Check Nature of Services/Use of Clergy
• Check Importance of Services to MWs
• Today
• Explore Possible Harms Caused By Services
• Alternatives to Use of Hall on Cs Land
• Additional Legal Research

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Right to Exclude Review Problem 1I (Arches)

• Legal Factual Research Relevant to The Social
  Events
• Benefits/Significance to MWs
• Possible Harms Different Separate from Those
  Caused By Religious Services

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Right to Exclude Review Problem 1I (Arches)

• Legal Factual Research Relevant to Client
  Having Allowed This Access in the Past
• Generally raises legal issues re implied
  contracts or estoppel
• Unlikely here because MWs hired each year for a
  few weeks
• Could check for written agreements by C or
  predecessor
• Worst case Prior O agreed to access b/c MWs
  helped build hall
• Could check for legal significance of prior
  authorization (e.g., court then skeptical that
  harm is great)

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Right to Exclude Review Problem 1I (Arches)
Legal Factual Research Relevant to The
Neighboring Farms that Employ MWs

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Right to Exclude Review Problem 1I (Arches)
Legal Factual Research Relevant to the
Following Aspects of the Problem General Info
to Help You Understand the Situation

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PROPERTY D (2/4)

• Continue Review Problem 1I (Arches)
• JMB contd Closing Up Ch. 1 DQ1.27-1.29
  (Yellowstone)
• 3. Intro to Chapter 2 Midkiff DQ2.01-2.06

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Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude

• What Kind of Problems Might You Expect
• Assume JMB or Pruneyard Applies What
  Specifically Can/Cant Mall Owners Do to Address
  Protestors
• Apply Schmid JMB to Determine if Right to
  Exclude Should be Limited in Particular Context
  for Speech Rights or Other Public Policy
  Considerations
• Discuss Appropriate Scope of Right to Exclude in
  New Situations Using All Materials in Chapter 1
  as Persuasive Authority

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Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude

• Assume JMB or Pruneyard Applies What
  Specifically Can/Cant Mall Owners Do to Address
  Protestors
• Well explore in Rev Prob 1H Thurs See also 1G
• DQ1.27 Suppose you represent the owners of a
  relatively small mall in NJ. What would you tell
  your clients re the following Qs about J.M.B.?
• Assume no additional cases or regulations
• Helpful to point to specific evidence from facts,
  language, logic of case.
• OK to use common sense (e.g., seems pretty
  unlikely that could limit protestor access to top
  floor of parking garage)

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YELLOWSTONE (DQ1.27-1.28)
GIANT GEYSER
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Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude
DQ1.27(a) (Yellowstone) Does case open up all
malls in the state to protestors or will its
application be determined on a case-by-case basis
for each mall? (Evidence from JMB?)
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Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude

• DQ1.27(a) (Yellowstone) Will application of JMB
  be determined on a case-by-case basis? Evidence
  includes
• All malls in original case quite large
• Regional or Community Shopping Centers
• At least 71 stores 27 acres (P86)
• Ruling limited to leafletting at such centers
  (P85)
• Schmid analysis consistent with case-by-case
• Public invitation could be less broad
• Compatibility could be less
• Cf. Princeton Univ. or UM v. small private
  residential college
• BUT Likely no need to redo analysis for other
  large malls.

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Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude

• DQ1.27(b) Assuming the case governs, do all
  political/protest groups have to be treated
  alike?
• Evidence includes
• Common Sense Can exclude groups if significant
  problems during past visits.
• Otherwise Basis in 1st Amdt
• Might suggest treating all groups/messages the
  same
• BUT (P91) refers to anti-war protest as most
  substantial and central to the purpose of 1st
  Amdt interests leaves room for argument about
  other issues

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Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude

• DQ1.27(b) Assuming the case governs, do all
  political/protest groups have to be treated
  alike?
• Common Sense Can exclude if significant problems
  during past visits.
• Basis in 1st Amdt suggests treating all
  groups/messages the same
• Hard Q not addressed in JMB or Pruneyard
• Should you treat differently if targeting
  particular stores in mall? (pros cons)

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Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude

• Hard Q not addressed in JMB or Pruneyard
• Should you treat differently if targeting
  particular stores in mall?
• See Fashion Valley Mall v. NLRB, 172 P.3d 742
  (Cal. 2007)
• California case noted in class (Warren)
• Forbids mall from excluding peaceful protestors
  because they are requesting that shoppers boycott
  a particular mall tenant.
• No specific info on whether mall is allowed to
  place special restrictions on these protestors re
  proximity to targeted business

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Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude

• DQ1.27(c) (Yellowstone) Under JMB, what kinds
  of limits or requirements can the mall impose on
  protestors?
• Most important phrase likely is
• Malls have full power to adopt time, place
  manner restrictions that will assure that
  leafletting does not interfere with the shopping
  centers business while preserving the
  effectiveness of plaintiffs exercise of their
  constitutional right. (P90)
• Incorporates/balances both sides interests
• Other Evidence from JMB?

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Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude

• DQ1.27(c) Permissible limits or requirements?
• Other Evidence from JMB?
• General standards
• P85 reasonable conditions
• P88 describing Scmid reasonable regulations
• P89 quoting Schmid suitable conditions
• P86 conditions noted that presumably go too far
• cant approach shoppers
• insurance coverage FOR 1m
• P85 case seems to be limited to passing out
  leaflets related activity suggests, e.g., no
  harassment or loud noises

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Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude

• DQ1.27(c) Permissible limits or requirements
  might include
• Operate in Designated Areas
• Limits on Shopper Interactions
• Back away if shopper indicates leaflet unwanted
• Limits re noise level, politeness, etc.
• Clean Up leaflets left around
• Reasonable Deposits for Security/Maintenance?

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Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude

• What Kind of Problems Might You Expect
• Assume JMB or Pruneyard Applies What
  Specifically Can/Cant Mall Owners Do to Address
  Protestors
• Apply Schmid JMB to Determine if Right to
  Exclude Should be Limited in Particular Context
  for Speech Rights or Other Public Policy
  Considerations
• Discuss Appropriate Scope of Right to Exclude in
  New Situations Using All Materials in Chapter 1
  as Persuasive Authority

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Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude

• Apply Schmid JMB to Determine if Right to
  Exclude Should be Limited in Particular Context
  for Speech Rights or Other Public Policy
  Considerations
• 1. Im not going to ask you to decide from
  scratch what scope of states 1st Amdt should be
• 2. Might ask you to assume Schmid/JMB are good
  law apply to different claims of free speech
  access (e.g., Rev. Probs 1J-1K)
• 3. Might give you genl scope of rt to exclude Q
  you could use Schmid/JMB as one way to analyze
  (e.g., Rev. Prob. 1L)

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Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude

• DQ 1.28 (Yellowstone) Apply Schmid JMB to
  Issue in Shack
• Discussion of Schmid Test (P89)
• Use to decide when 1st Amdt requires access to
  private property open (for some purposes) to
  public
• Can use by analogy for other limits on Rt to
  Exclude
• Once access allowed, test largely unhelpful for
  deciding what restrictions allowable Schmid
  just says they must be reasonable

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Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude

• DQ 1.28 (Yellowstone) Apply Schmid JMB to
  Issue in Shack
• Discussion of Schmid Test (P89)
• Normal Use of Private Property
• Extent Nature of Public Invitation
• Purpose of the expressional activity in
  relation to both the public private use of the
  property

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Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude

• DQ 1.28 (Yellowstone) Apply Schmid JMB to
  Issue in Shack
• Discussion of Schmid Test (P89)
• Purpose of the expressional activity in
  relation to both the public private use of the
  property
• (P91) This test examines the compatibility of
  the free speech sought with the uses of the
  property. Means?
• McCarten argument yesterday compatibility as
  subjective seeming to fit (like relationship)
  (reasonable interpretation of language)
• Discussion in JMB seems to focus more on whether
  speech causes objective harm to existing uses.

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Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude

• DQ 1.28 (Yellowstone) Apply Schmid JMB to
  Issue in Shack
• Discussion of Schmid Test (P89)
• Purpose of the expressional activity in
  relation to both the public private use of the
  property Look at compatibility.
• Can use for non-speech access examines the
  compatibility of the access sought with the
  uses of the property
• Note that Schmid ( JMB that follows) allow
  reasonable restrictions to facilitate
  compatibility
• Compatibility w Farm to Allow Shack Ds?

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Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude

• DQ 1.28 (Yellowstone) Apply Schmid JMB to
  Issue in Shack
• (2) Comparison of facts of Shack to facts of JMB?

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Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude

• DQ 1.28 (Yellowstone) Apply Schmid JMB to
  Issue in Shack
• (2) Comparison of facts of Shack to facts of JMB
  Include
• Much less open to publ/smaller invite
• BUT requested access also smaller (targeting)
• Similar re need for balance of Os interests
• Similar re difficulty of speakers getting info
  across otherwise?
• Importance of Info to recipients maybe greater in
  Shack
• Note Alternate 1st Amdt Theory Focused on
  Recipients
• Princeton Marsh Shack v. JMB

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Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude

• What Kind of Problems Might You Expect
• Assume JMB or Pruneyard Applies What
  Specifically Can/Cant Mall Owners Do to Address
  Protestors
• Apply Schmid JMB to Determine if Right to
  Exclude Should be Limited in Particular Context
  for Speech Rights or Other Public Policy
  Considerations
• Discuss Appropriate Scope of Right to Exclude in
  New Situations Using All Materials in Chapter 1
  as Persuasive Authority

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Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude

• Scope of Right to Exclude in New Situations
  Possible Relevant Considerations (Could Try to
  Use for Non-1st Amdt Speech Access)
• Protection of disadvantaged groups. E.g.,
• Anti-Discrimination Law
• Shack MWs
• Relationship to Govt or Law
• Implied K from Support of Govt for creation or
  operation of enterprise
• B/c Rt to Excl derives from state common law in
  1st instance, arguably cant be used in way that
  violates public policy (Shack)
• Economic Concerns
• Monopoly Concern w Innkeeper Rule
• Furthering Commerce w Innkeeper Rule

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PROPERTY D (2/4)

1. Continue Review Problem 1I (Arches)
2. JMB contd Closing Up Ch. 1 DQ1.27-1.29
3. Intro to Chapter 2 Midkiff DQ2.01-2.06
   (Redwood)

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Chapter 2 The Eminent Domain Power the Public
Use Requirement

• Federal Constitutional Background
• Deference, Rational Basis, Heightened Scrutiny
• The Fifth Amdt, Eminent Domain Public Use
• Limited Federal Review Under Berman Midkiff
• State Public Use Standards
• Kelo Beyond

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Chapter 2 Federal Constitutional Background

• Federal Courts Determining if State Law Violates
  US Constitution
• Often in Con Law I Procedural
• Not Looking at Substance of Law
• Looking at Authority (v. Feds) Over Subject
  Matter. E.g.,
• Pre-emption by Congress
• Dormant Commerce Clause

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Chapter 2 Federal Constitutional Background

• Fedl Cts Determining if State Law Violates US
  Constitution
• Procedural (Subject Matter/State v. Fedl
  Authority)
• Compare Review of Substance Employed to Check
  Validity Under 14th Amdt and Bill of Rights
• Most people believe this should not include
  determining whether the statute is a good idea as
  a matter of policy.
• DQ 2.05 (Me) Why shouldnt a federal court
  strike down a state statute because its unlikely
  to do a good job achieving its purpose or because
  its simply stupid?

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Chapter 2 Federal Constitutional Background

• Fedl Cts Determining if State Law Violates US
  Constitution
• Why shouldnt a federal court strike down a
  state statute because its stupid? Common
  Answers
• Democratic Theory
• State Legislature is Elected Body Fedl Court is
  Not
• Remedy for Mistakes by Legislature is Elections
• Relative Expertise
• Legislature Can Do Better Fact-Finding Than Court
• Local Officials May Have Better Handle on Local
  Problems