PROPERTY E SLIDES 2-5-13. Every kiss begins with Kay®

PROPERTY E SLIDES2-5-13

Every kiss begins with Kay®

I’ve seen those Kay Jewelers ads …

… but frankly, if I give someone a $5000 diamond bracelet, …

… I’m looking for a little more than a kiss. That’s why I shop

at …

Eff Eff JewelerJeweler

ssTaking Care Taking Care

of Your Family of Your Family Jewels Jewels

Right to Exclude: Property Open to the Public

1. Background Rules2. Places of Public Amusement (Brooks/Uston)3. Shopping Centers (JMB)


1. Background Rules: Continuuma. Innkeepers/Common Carriers: Can’t Exclude w/o

Specific Experienceb. Civil Rights Statutes & Exceptions: Can’t Exclude for

Listed Reasons unless w/in Exceptionc. Otherwise Complete Right to Exclude @ Common Law

2. Places of Public Amusement (Brooks/Uston)3. Shopping Centers (JMB)


Things to Think About/Keep Track Of

For Future Problems1.Private Purpose behind Exclusion Are There Less Restrictive Alternatives



For Future Problems1.Private Purpose behind Exclusion

2.Public Purpose favoring Inclusion What Limitations are Permissible



For Future Problems1.Private Purpose behind Exclusion 2.Public Purpose favoring Inclusion

3.Comparison with Other Examples in Chapter Where Does Case/Example Fit on Continuum

Right to Exclude: Property Open to the PublicACADIA: Exceptions to Civil Rights Laws (DQ22, 19)

Acadia Sunrise


• Federal Public Accommodations Civil Rights Statute includes exception for private clubs– Standard Explanation: Entitled to some relatively private

place to meet/assemble where you can exercise a greater right to exclude (e.g., IRA supporters & British)

– Cynical Partial Explanation: Congress exempts itself


• Federal Public Accommodations Civil Rights Statute includes exception for private clubs– Standard Explanation: Entitled to some relatively private

place to meet/assemble where you can exercise a greater right to exclude (e.g., IRA supporters & British)

– Cynical Partial Explanation: Congress exempts itself

DQ22: Do you think these exceptions should exist?


• Federal Public Accommodations Civil Rights Statute includes exception for private clubs

• DQ22: Should these exceptions exist?– For many commentators, turns on access to power– Economic; Political; maybe Social• Women gain access to JCs b/c business deals made there• Eating Clubs at Princeton: similar concerns re power


• Federal Public Accommodations Civil Rights Statute includes exception for private clubs

• Federal Fair Housing Act (FHA) has companion provision re overnight stays at private clubs (part of 3607(a)(S13))

• We’ll go back to other FHA exemptions in DQ19 to see some reasons for allowing otherwise forbidden discrimination.


• 3607(a) : Religious organizations. Nothing in this subchapter shall prohibit a religious organization, association, or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association, or society, from limiting the sale, rental or occupancy of dwellings which it owns or operates for other than a commercial purpose to persons of the same religion, or from giving preference to such persons, unless membership in such religion is restricted on account of race, color, or national origin.


• 3607(a) : Religious organizations. Nothing in this subchapter shall prohibit a religious organization, association, or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association, or society, from limiting the sale, rental or occupancy of dwellings which it owns or operates for other than a commercial purpose to persons of the same religion, or from giving preference to such persons, unless membership in such religion is restricted on account of race, color, or national origin.


• 3607(a) : Religious organizations. Nothing in this subchapter shall prohibit a religious organization, association, or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association, or society, from limiting the sale, rental or occupancy of dwellings which it owns or operates for other than a commercial purpose to persons of the same religion, or from giving preference to such persons, unless membership in such religion is restricted on account of race, color, or national origin. LIKELY PURPOSE(S)?


• 3607(a) : Religious organizations: • Likely Purposes Include:– Homes for Clergy & Religious Orders– Housing Operated by Religious Organizations E.g., • Nursing Homes• Shelters• Universities (where FHA applies)


• 3603(b)(2) (S11): Nothing in [§3604] (other than [limits on advertising]) shall apply to— (b) rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his residence.

Called “Mrs. Murphy” Exception. Why?


• 3603(b)(2) “Mrs. Murphy” Exception. – Stereotype of Widow running boarding house to make

ends meet (cf. Mrs. O’Leary & her Cow)

–Possible Purpose(s) of Exception?


• 3603(b)(2) “Mrs. Murphy” Exception. Possible Purposes of Exception Include:– Privacy & control for owners sharing living space with

renters/boarders– Maybe not worth cost of investigation/litigation if so

few units involved


• §3603(b)(1): Single Family House (SFH): Sale or rental of SFH by owner if owns less than four SFHs and no use of real estate professionals or of discriminatory advertising.

• If rental, similar to “Mrs. Murphy”: control of your own property & not too many units.

• If sale, why exempt? Whose interests are being protected here?


• §3603(b)(1): Single Family House (SFH): Sale of SFH by owner if owns less than four SFHs and no use of real estate pros or of discriminatory ads.

• If sale, whose interests protected here?• Continued relationship between sellers & neighbors?• Sellers’ emotional connection to house?• Congress again (DC + District +Summer House)

LOGISTICS (2-5-13)

• On Course Page– Lunch List (E-Mail me to Add or Change)– Syllabus & Supplemental Materials for Chapter 2– Assignment Sheet Edited & Extended to 2/18

• Note Changes re Assignments for Thurs/Mon– Review Problems Originally Scheduled for Thursday

Moved to Monday (same panels)– Thursday we’ll finish JMB & start Chapter 2• I’ll take volunteers on DQs• I’ll mainly lecture through Midkiff

Right to Exclude: Property Open to the PublicDENALI: Brooks & DQ23-24

Denali Caribou


Procedural Posture: •US Court of Appeals for 7th Cir (Wisc, Ill, Ind.)•Federal Court b/c Diversity Jurisdiction (P80)– Ps = Pennsylvania Citizens – D = Illinois Corporation

•Under Erie, Federal Court applies state law: – Job is to determine what Illinois would do– Court clearly not very sympathetic to D, but not

operating on clean slate


DQ23. If their right to exclude is limited, what are the possible harms to the

landowners in Brooks?


Possible Harms to O in Brooks Include: • Expertise + Access to Funds Loss of $$? • Prof. Gamblers = Org. Crime

How Significant Are These?


How Significant Are Possible Harms to O: • Prof. Gamblers = Org. Crime (reputation might discourage other gamblers)•Expertise + Access to Funds Loss of $$? – Is this big concern?– Fact on p. 80: Ds lost 110 out of 140 betting days: • Why does court include fact?• Argument that this fact is not very significant?


How Significant Are Possible Harms to O: •Prof. Gamblers = Org. Crime •Expertise + Access to Funds Loss of $$?

Less Restrictive Alternatives to Excluding Ds:Cap Amount One Person Can Bet?

Pros & Cons?(Note: Part of Problem is Some Pros are Cons!!!)


Less Restrictive Alternatives to Excluding Ds:Cap Amount One Person Can Bet?

•Easy to get around by hiring multiple bettors– Though also true if specific people excluded

•Tracks may not like. Good for business to have big losses and [occasional] big wins•Note this is probably not kind of solution court can do; would need legislation or negotiation


DQ23: Significant Public Interest in Allowing Access in Cases Like This?


• Public Interest in Allowing Access:– Probably not much in ensuring professionals can bet

large amounts in person at track– BUT Concern with mistaken exclusion• E.g., Federal No-Fly Lists• E.g., NY case cited in Brooks: Coley Madden mistaken for

Owney Madden


• Comparisons with Other Kinds of Businesses–Casinos (Uston)– Innkeepers/Common Carriers


Comparisons with Other Kinds of Businesses•Court in Brooks Asked to Apply Uston–Court Refuses• NJ Case; Not Followed in Illinois• NJ Doesn’t Extend to Racetracks Anyway

–Could Distinguish on Facts• Card Counting = Skill Accessible to All (v. Inside Info)• Casinos Covered by Special Statutes/Licensing


Comparisons with Other Kinds of Businesses•Could Apply Innkeeper RulesDQ24: If you were going to apply Innkeeper Rules to some but not all businesses, should you apply them

to racetracks & stadiums?

Pros & Cons?


Comparisons with Other Kinds of Businesses•Pros & Cons of Innkeeper Rules for Stadiums & Racetracks Include:– Large open invitation means should lose discretion?– Monopoly theory? Heavy state regulation & relatively

few racetracks– BUT arguably not crucial like inns & common carriers• No extortion likely• Less public interest in ensuring universal access


Closing Points on Brooks•Other jurisdictions listed follow Brooks (even NJ)•Only Exception: California Public Accommodation statute interpreted to mean “no arbitrary discrimination”– Orloff (1951) can’t exclude people w reputations for immoral

character from racetrack = • prior off-track gambling conviction • reputation as gambler/bookmaker

•Qs on Brooks?

Right to Exclude: Property Open to the PublicJMB: GLACIER, EVERGLADES & ME

• NJSCT holds that large shopping centers must permit leafletting on social issues

• Our Coverage– Relevant Interests (DQ25-26) (GLACIER)– Logic of Opinion (Me)– Application in Future Shopping Center Cases (DQ27)

(GLACIER EVERGLADES)– Relation to Other Right to Exclude Problems (DQ28-

29) (EVERGLADES)

GLACIER: JMB & DQ25: Owners’ Interests

Possible harms to the owners in JMB: 1.Forced Speech2.Psychic Harm3.Interference with Business


Possible harms to the owners in JMB: 1.Forced Speech


Possible harms to the owners in JMB: 1.Forced Speech

•Claim: Shoppers will assume leafletters speak for management, so Os effectively forced to say things they disagree with– Seems unlikely that shoppers would

view that way– Court rejects claim in portion of opinion

not in book


Possible harms to the owners in JMB: 1.Forced Speech2.Psychic Harm: – Feelings of Lack of Control Over

Property– Made Worse by Speech if Os Disagree– NOTE: Genuine, but hard to Quantify

PROPERTY E SLIDES 2-5-13. Every kiss begins with Kay®

Documents

public acadia

public purpose

public things

power slide

continuum slide

kay slide

permissible slide

civil rights laws dq22