Property I Outline
Property is a bundle of limited rights with respect to a valued resource
· We focus on these rights and their limitations
· Goals of property – efficiency, distributive justice
o Property must be widely dispersed, widely available easily alienable
Theories
1. Social Utility: maximizes social utility to get investment and development of private property (e.g. parcel community garden)
2. Labor Theory: a moral claim over that with which you mix your labor (e.g. Locke, adverse possession, IP)
3. Individual Rights / Fairness: granting / limiting property rights for greater social utility (e.g. wide access, anti-discrimination)
Rights and Limitations
1. Relational: property law is more about relationships between owners and/or others than between an owner & her property
2. Bundle of Rights: extends to whole world (unlike parties to a K) (To the world, keep off. Signed individual. Endorsed, the State).
3. Safeguarding Property: state’s enforcement protects property from mere taking by brute force
Bundle of Real Property Rights (and limitations) –
· Right to Exclude Others
o With a warrant, law enforcement can’t be excluded
o Public Accommodations – For a public store, can’t exclude based on race
o Broader right to exclude from home
· Right to Use/Enjoy
o Zoning Laws
o Nuisance Law – Can’t use your property in a way that substantially interferes with someone else’s enjoyment of their property
· Right to Transfer/Alienate – Issue of Property being freely alienable
o Right is limited if you want to rent, sell
· Right to Maintain Ownership
o Eminent Domain
Bundle of Rights are Different for Intellectual Property
I. The Bundle of Property Rights
Trespass Law – Right to Exclude vs. Right of Access
Trespass = unprivileged intentional/volitional intrusion upon property possessed by another
· Non-miniscule infringement. Miniscule stuff like odors, vibrations, is under nuisance law
· Right is NOT absolute
o Defense of necessity
o Shack privilege (for welfare of people who wouldn’t get info/service any other way)
o Supremacy Clause
o 1st Amendment (Free Speech – Marsh, etc.)
o Consent – implied, express (by fraud?)
o Public Policy grounds
o Public Accommodations Law
§ Common Law (majority – innkeepers/common carriers; minority – all places open to public)
§ Statutory Law (Federal and State)
· Trespass to Chattels (Personal Property) – Sometimes requires more – a showing of harm/damage
Public Policy Limits
State v. Shack (N.J. 1971)
· Tedesco is a farmer who employs migrant workers on his property. Shack is a staff attorney who provides legal advice to migrant workers. He wants to go on Tedesco’s land to aid migrant workers
o Right to exclude vs. right of access to help migrant workers
· They’re arrested for criminal trespass under NJ State law
o NJ Court overturns conviction because ownership of real property does not include right to bar access to governmental services available to migrant workers
· Based on their interpretation of NJ Statute, there’s no need to discuss the Constitutional argument that since Shack’s group is created under federal law, supremacy clause trumps the state law
· Limitation where health/safety of people on land are at stake (necessity)
o Tedesco said they could meet with workers, but in his present. But there’s a necessity for a lawyer to meet with his clients privately (1st Amendment)
o Migrant workers are outside the mainstream communities – this is the only way for them to get information
· Decision does NOT open farmer’s property to general public – Tedesco can reasonably require a visitor to identify himself and state his purpose
Follow Up – If Planned Parenthood seeks to use Shack to enter a women’s shelter to give abortion info
· Both women here and workers in Shack might not be seeking the services
· Services may be more necessary in Shack than in here
· No way for workers tog et information; in 2011, the women could more easily get it
Desnick v. ABC (7th Cir. 1995)
· Primetime live tells Desnick they want to do a show about cataracts. He permits crew to come to Chicago office but unbeknownst to him, undercover camera crews go to his other eye centers and they wound up defaming him
· Consent procured by fraud that is meaningful (no tort) vs. non-meaningful consent (fraud)
o Meaningful - Restaurant Critic (restaurant open to public), seducer giving fake promise of love
o Non-meaningful – A guy says he’s a meter reader to gain access to your home
· Distinguishing characteristic had to do with the interest that the rots in question protect – the inviolability of the person/person’s property
o The Restaurant owner wants to have customers
o Similarly, ABC didn’t enter Desnick’s office in a manner infringing the kinds of interests that trespass law seeks to protect (exclusive possession of land) – they entered as patients open to anyone
· Courts are SPLIT on where consent procured by fraud is good and where it’s invalid and trespass occurs – advocacy is important
· Issue of scope – In Food Lion case, initial entry wasn’t trespass but they went beyond the scope of consent by filming it
Right of Reasonable Access to Property Open to the Public (Common Law)
Majority Rule – Only two types of property constitute places of public accommodation for which there is a right of reasonable access (no absolute right to exclude): Inns and common carriers
· Viewed as more essential services – denial would place individuals at risk
· Those businesses were more likely to be monopolies than other businesses
· They hold themselves out as ready to serve the public, to which the public relies
· Madden v. Queens County Jockey Club
Minority Rule – Public Accommodations to ALL Public Places (Uston)
Uston v. Resorts International (N.J. 1982) – Minority Rule
· Resorts kicked out Uston because he was a card counter. He sues saying Resorts has no common law or statutory right to exclude him because of his blackjack strategy
o His argument expands the list of reasonable access beyond inns and common carriers to places of entertainment
· Casino’s argument – let the market decide! People who run these businesses are rational. There’s also good reason for exclusion, as Uston’s acts conflict with their business model
o Even if right was extended to entertainment, he still would be rightly discriminated
o Must be able to control admission without risk of lawsuit or having to prove that every person would engage in unlawful activity
· Court uses rule from State v Schmid – when property owners open their premises to public in pursuit of their own property interests, they have no right to exclude people unreasonably – duty not to discriminate
o Applies not just to common carriers/innkeepers but to all owners
o Court expands public accommodations to ALL public places. Uston was denied a right of reasonable access
Note – Uston also sues in Vegas and there the court upheld casino’s right to exclude because they’re not a common carrier/innkeeper
· Must be able to control admission without risk of lawsuit or having to prove that every person would engage in unlawful activity -
Right of Reasonable Access to Property Open to the Public (Statutory Law)
Statutory Law of Public Accommodations
· Federal Civil Rights Statutes (Title II) and State Statutes
Federal - Civil Rights Act of 1964
· Defendant must have committed discrimination or segregation
· On the grounds of race, color, religion, or national origin (NOT Sex/Sexual Orientation)
· In a place of public accommodation
o Within list of facilities named by statute or implied AND
§ Hotels, Restaurants, Gas Stations, Places of Entertainment
§ NOT private clubs or establishments that are not open to public
§ What about a retail store with a buzzer system? Not listed in statute but is the list illustrative or exhaustive?
ú Maybe it’s in a building where there are other public establishments?
ú Does the buzzer alone not make it public?
o Serves the public, not a private establishment AND
o Either affects commerce or supported by state action
State Public Accommodations Law
· Note – When the Federal Government legislates something, it can’t be undercut by state law, but state law can go further
· NJ – All persons shall be able to use public accommodation without discrimination on the basis of sex, sexual orientation, marital status [EXPANDS FEDERAL LAW]
o Public accommodation includes retail ships, meeting place, public school
o Does NOT apply to private club, institution, place of accommodation
Membership Organizations and Public Accommodations Law
Dale v. Boy Scouts of America
· Jim Dale was a scoutmaster kicked out because he was gay. Sues BSA under state public accommodations statute
· Is Boy Scouts a “place”
o Dale – Yes – similar to a summer camp enumerated in NJ statute
o BSA – No – it’s a club which is private
Noah v. AOL Time Warner
· Is an AOL chat room a place of public accommodation?
-States are divided on this but courts generally look to see whether an organization is selective in its membership and has limits on the number of people who can join
· If selection criteria track a statutory category, it’s unlikely to be a private club
· A group limited to men with no other selection criteria and unlimited in size is likely to be held to be a public accommodation that is violating the law
Free Speech Rights of Access to Private Property
· 1st Amendment – Congress shall make no law…abridging the freedom of speech
o Incorporated to the States through 14th Amendment – neither Congress nor the States, not municipalities shall make no law…
o But how far does this go? Large private entities (malls)? Gated communities? Facebook?
· This is someone’s speech – if a question of someone’s presence, look to public accommodations law
Marsh v. Alabama (1946)
· Marsh was convicted of handing out religious flyers in the business area (open to public) of a company owned town (Chickasaw, AL) which had a sign saying it was private property
· Chickasaw had all the characteristics of an ordinary municipality, except title to it belonged to company
· Ownership doesn’t always mean absolute domination. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the rights of those who use it
o If Chickasaw was a municipality, it would be clear that Marsh was free to hand out her flyers
o Since facilities are built/operated to benefit public and since it’s essential to public function, it’s subject to state regulation
· Can those people who come/live in Chickasaw be denied freedoms because the town is company owned? No!
· Balancing – Rights of Property Owners vs. People’s First Amendment Rights, 1st Amend always wins
· Dissent says Marsh could have distributed information on public highways, without becoming a trespasser on company’s property
Does holding depend on isolation of Chickasaw inhabitants? What if they live in Chickasaw but work in Mobile?
· Marsh still controls – this is where the people are found. The company has opened it up to public use which doesn’t mean absolute dominion
Modern examples – GW buildings; Ave Maria, FL (Catholic town) – No adult material, pharmacies don’t sell contraceptives
· Might be OK because people choose to live there (nothing to do with working there) and could be more will of the people
· Does Marsh carry weight in the information age? If you want information, Google it!
Amalgamated Food v. Logan Valley (1968)
· Grocery store and Sears in shopping center. Grocery store is non-unionized and union pickets in shopping center parking lot
· Picketers could spread their message on the public roads outside the private shopping center. In Marsh, the people live/work/ship in Chickasaw; there’s nowhere to go
· Issue – Whether peaceful picketing of a business located within a shopping center can be enjoined?
· Because shopping center serves the community business block and is accessible to public, state cannot delegate the power to exclude those members of the public wishing to exercise their 1st Amendment rights on premises in a manner consistent with purpose of shopping center
o Logan Valley is functional equivalent of a business block and for 1st Amendment purposes, must be treated in same manner
o Holding is limited to picking directly related to shopping center’s purpose!!!
§ Supported by growth of shopping centers because that’s where public is located
Hypo – What if Grace Marsh wants to distribute religious info at Logan Valley?
· Marsh argument – Marsh stands for the principle that any time a business block serves public at large, it can’t deny free speech rights of access; Logan stands for the principle that any speech regardless of content, in a public place, individuals have a free speech right of access
· Shopping Center argument – Shopping center isn’t the only place for people to buy their things (option not necessity); it’s more exclusive than the entire company town in Chickasaw. Regarding Logan Valley, the subject of their protest isn’t related to the shopping center’s purpose. She could distribute on the roads outside of the shopping center
Lloyd v. Tanner (1972) – Where the line is drawn
· Lloyd Center is huge shopping mall in Oregon. People handed out anti-Vietnam flyers there, despite signs saying mall is for Lloyd Center tenants and public doing business with them
o Guards told the people to leave. They did then sued for injunctive/declaratory relief
· Issue – Can a privately owned shopping center prohibit distribution of flyers on its property when flyers were unrelated to mall’s operations and contrary to owner’s wishes?
o Marsh was about a company town (private interests substituting for government function), Logan Valley was about activity related to shopping center’s operation – this is different
· Logan Argument – Court should adopt a limiting construction because otherwise people can protest whatever they want on their private property; they need to have property rights somewhere. Logan Valley should be limited to circumstances where there’s a nexus to the purpose/function of the property
o Lloyd Center is a place of public accommodation within OR statute but Statute is there to let people be there and shop, not to be a public forum – difference between being let in and being let in to be used as a sounding board
· Protestors’ argument – Lloyd Center looks and acts like business district/company town
o But a mall is different from the company town in Chickasaw that provides ALL services for the town – there’s other forums to hand out information
· Holding – An uninvited guest doesn’t have a free speech right of access to speech unrelated to the purpose/function of the property