property a slides 1-20-15. music: savage garden (self-titled 1997) no office hours today after class...

PROPERTY A SLIDES1-20-15

Music: Savage Garden (Self-Titled 1997)

•No Office Hours Today

•After Class I’ll Update Course Page

•Slides from Last Fri & Today

•Assignments for This Thurs & Fri

PROPERTY A (1/20)I. LOGISTICS: LUNCHES,

PANELS, CONTACT INFO

II. LOGIC OF JACQUE

III. PUNITIVE DAMAGES: CHOICES & POLICY

IV. TRANSITION TO SHACK

V. SHACK: ROADS NOT TAKEN

LOGISTICS: Panel Selection (Thursday After Break)

• I’ll ask for lists indicating who (if anyone) you want me to put on same panel with you. • Can do nothing & I will randomly assign you

• Can give me groups of two or more students (up to about 12) & I will assemble into larger groups as needed

• Check with people first, then hand in one list per group

•Not commitment, just an opportunityopportunity to work with people b/c responsible for same assignments

PROPERTY A (1/20)I. LOGISTICS: LUNCHES, PANELS, CONTACT

INFO

II.LOGIC OF JACQUEIII. PUNITIVE DAMAGES: CHOICES & POLICY



Logic of Jacque: Background

• P wins Intentional Trespass Claim; Jury Awards: • Nominal Compensatory Damages • $100K Punitives

• Lower courts don’t allow punitives • Follow Wisconsin tort precedents• Ps can’t get punitives if no compensatory damages

(“No Pain, No Gain” Rule)

Logic of Jacque: Background

• P wins Intentional Trespass Claim; Jury Awards Nominal Compensatory & $100K Punitives

• Lower courts don’t allow punitives under “No Pain, No Gain” Rule

• Wisc SCt Reverses• Holds punitives without compensatory damages

allowed for intentional trespass.• (Limits “No Pain, No Gain” Rule)

Logic of Jacque: Scope of Existing Precedent

• WiscSCt Stated General “No Pain No Gain” Rule in Barnard (1917)

• BUT bottom para P56: “Whether nominal damages can support a punitive damage award in the case of an intentional trespass has never been squarely addressed by this court.”

What does “squarely” mean here?Why isn’t issue “squarely” addressed by Barnard?

Scope of Rules: Scope of Rules: Broadening & Narrowing Broadening & Narrowing

HoldingsHoldings• Wood Grain Headers Generally

• Old Rule from Prior Case but New Situation:

• Should You Extend Rule (Broadening)?

• Should You Create Exception (Narrowing)?


HoldingsHoldings• Old Rule from Prior Case but New

Situation:


• Never Date a Violinist

• Never Date a Musician



HoldingsHoldings• Old Rule from Prior Case but New

Situation:



• Never Date a Violinist

• Never Date a Violinist Unless Also Plays the Banjo

Scope of Rules: Scope of Rules: Broadening & Narrowing HoldingsBroadening & Narrowing Holdings• Old Rule from Prior Case but New

Situation:



• How Address if No Binding Precedent?How Address if No Binding Precedent?

• Look to Non-Binding Precedent

• Look to Policy

Logic of Logic of Jacque: Jacque: Approach w/o Binding PrecedentApproach w/o Binding Precedent

Existing Related Precedent: McWilliams•1854 = Very early Wisc case (becomes state in 1848)•Establishes availability of punitive damages in appropriate cases•Quotes older English case: • Uses int’l trespass as example of reason for punitives.• Quote refers to situation w no compensatory damages

Why isn’t this part of McWilliams binding?

Determining Scope of Rules: Determining Scope of Rules: Looking to Underlying PolicyLooking to Underlying Policy

Does underlying rationale apply to new situation?

•Very common approach to determining scope of existing rule.•So need to know rationales behind rules (important exam thing)•Burton + Jackson + State Action

Logic of Logic of Jacque: Jacque: Approach w/o Binding PrecedentApproach w/o Binding Precedent

• Policy Behind “No Pain, No Gain” Stated in Last Sentence in 2d to last para on P54 (Also note “bare assertion” in prior sentence)

• Court spends rest of opinion arguing this rationale doesn’t apply to int’l trespass• List of non-monetizable harms from last class Wisc has

reasons to deter even w/o compensatory dmgs, • Small Criminal fine insufficient to deter so need

punitives (legal v. factual support for punitives)

Logic of Logic of Jacque: Jacque: DQ1.03 (Felix DQ1.03 (Felix Cohen Quote)Cohen Quote)

“[T]hat is property to which the following label can be attached:

To the world: Keep off X unless you have my permission, which I may grant or withhold.

Signed: Private Citizen

Endorsed: The State”

Means What?

Logic of Logic of Jacque: Jacque: DQ1.03 (Felix DQ1.03 (Felix Cohen Quote)Cohen Quote)

“[T]hat is property to which the following label can be attached:

To the world: Keep off X unless you have my permission, which I may grant or withhold.

Signed: Private Citizen

Endorsed: The State”

How Fits Into Court’s Analysis?

Logic of Logic of JacqueJacque

Qs on Court’s Reasoning?


INFO

II. LOGIC OF JACQUE

III.PUNITIVE DAMAGES: CHOICES & POLICY



Players in System Have Players in System Have ChoicesChoices

• Most states don’t allow punitive dmgs for int’l trespass if no compensatory dmgs.

• Wisc. S.Ct. had a choice: (i) follow majority of states; or

(ii) allow punitives, which it did.

Players in System Have Players in System Have ChoicesChoices

• Most states don’t allow punitive dmgs for int’l trespass if no compensatory dmgs.

• Wisc. S.Ct. rejected majority rule & allowed punitives

• Wisc. legislature then has choice (See DQ 1.04):

(i) allow Wisc SCt decision to stand; or (ii) change law back to majority rule; or (iii) change law to something different

Players in System Have Choices Players in System Have Choices ImportantImportant

Skill: Arguments About Which Skill: Arguments About Which Rule is BestRule is Best

Arguments Vary With Audience:

•Precedent Arguments (Prior Authority) Gen’ly for Court

•Policy Arguments (What’s Best for Society) for Both Courts & Legislature

•Need to Be Aware of Institutional Limits/Strengths: If arguing for detailed regulations or changes in criminal penalties, only Legislature can do.

PUNITIVE DAMAGES: CHOICES & POLICY DQ1.04: How Persuasive DQ1.04: How Persuasive

is…is…(a) Landowners should not receive any sort of damages when they have not been harmed in a

tangible way. (This is stated rationale for “no pain, no

gain” rule.) (cf. Constitutional concern raised last

time & multiplier acting on Zero)


is…is…(a) Landowners should not receive any sort of damages

when they have not been harmed in a tangible way. •Already have seen court’s counter-argument that there might be important non-tangible injuries

Other reasons besides “no harm” that state might not want to award punitives? What are

the costs of making punitives available?


is…is…(a) Landowners should not receive any sort of damages when they

have not been harmed in a tangible way. •Other reasons state might not want to award punitives?• Fear of too many (frivolous) lawsuits• Need to prove intent; need to prove what $$$

amount needed for deterrence punitive (high administrative costs)

•Wisc SCt clearly thinks deterring non-tangible harms is worth risking these costs. Legislature could disagree.


is…is…(b) In Jacque, the cost to the Ds of taking the road around the Ps’ land almost certainly was much greater than the harm to the Ps’ land caused by the unauthorized crossing. It would thus be cost-efficient for society to allow the truck to cross without subjecting the truckers to punitive damages so long as they pay for any actual damage they cause.

(“Efficient Trespass”: Parallel to idea of Efficient Breach from Contracts)


is…is…(b) An “Efficient Trespass” Argument•Ct must believe that the benefits of a strong right to exclude (preventing intangible harms) outweighs any efficiency gains from allowing trespass.

•Major difference between rights we call “property” and most rights arising out of K: For “Property Rights”• Compensatory Damages Usually Seen as

Insufficient

• Can Get Injunctions/Can Force People to Undo Xactions


is…is… (c) As Note 3 (P57) indicates, most states do not award punitive damages for intentional trespass if there were no actual damages awarded. Wisconsin should follow the majority rule. How persuasive is following majority (v. minority) rule?


is…is… (c) Wisconsin should follow the majority rule. • Not especially persuasive. Non-binding

precedent most useful as example of good reasoning/policy

• #s alone not especially helpful unless overwhelming: “Every common law jurisd to consider the issue has said X except California & Tasmania” (both presumptively very strange)


is…is… (c) Wisconsin should follow the majority rule. •State more likely to follow another state it views as similar in relevant ways:

• Case here re private farmland in rural Wisc (so arguably like Iowa, Minn, Upper Peninsula of Mich)• v. Connecticut or NJ (very urban/suburban)• v. Hawaii or Nevada (lot of govt land)


is…is… (c) Wisconsin should follow the majority rule. •For our purposes, which rule is “majority” less important than being aware that there is more than one possible rule on this issue•Need to keep track of places in course this is true (many). • E.g., rules re access to migrant workers• NJ = Shack (a common law rule)• Fl = statute

• I’ll explain later how to handle on test


is…is… (d) Wisconsin has following statute making trespass a crime:

Any person who trespasses on any privately-owned lands after being forbidden so to trespass by the owner shall be guilty of a misdemeanor and punished by a fine… .

In cases like Jacque, the possibility of criminal charges is a sufficient deterrent to intentional trespass.

•Court doesn’t think $30 fine is sufficient deterrent•Empirical Q: Legislature could believe/show Court is wrong•Useful to remember jury thought amount needed to deter this D was $100K


INFO

II. LOGIC OF JACQUE

III. PUNITIVE DAMAGES: CHOICES & POLICY

IV.TRANSITION TO SHACK V. SHACK: ROADS NOT TAKEN

TRANSITION TO TRANSITION TO SHACK: SHACK: “RIGHTS” v. “INTERESTS”

•We’ll use “rightsrights” to refer to what the legal system allows parties to do.•Need to point to specific authority for rightright asserted.

•Thus, might say after Shack was decided:•Migrant workers on land now have rightright to access to certain outsiders. Shack.

• Tedesco now has no rightright to exclude Ds. Shack.


•“RightsRights” = what legal system allows parties to do.•Don’t use “rightright” to argue what legal result ought to be:

Q: Why do you think Shack is wrongly decided?

A: Owners have the rightright to exclude all.

(But in NJ after Shack, they don’t have that “right.”)


•“RightsRights” = what legal system allows parties to do.• Instead:

Q: Why do you think Shack is wrongly decided?

A: Owners should have the rightright to exclude all.

(Which raises Q of why!!)


•“RightsRights” = what legal system allows parties to do.

Owners should (or should not) have the rightright to exclude all, because …

•Then need to talk about what we’ll call “interestsinterests” (= needs & desires of parties & state) E.g., •Owner interests in privacy, security, operation of farm•MW interests in receiving helpful services & info

property a slides 1-20-15. music: savage garden (self-titled 1997) no office hours today after class...

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