Property II Class 6 Wednesday 82918 Power Point

Property II: Class #6 Wednesday 8/29/18 Power Point Presentation National Chop Suey Day

Music to Accompany Arlington Cty. Bd (II): Bee Gees Greatest (1979) • Help Yourself to Choc-Covered Ginger in Cup • Next Week • Monday: No Class (Labor Day) • Tuesday: Make-Up Class Room A 216 A (9: 30) • Wednesday: Regular Class Meeting • New Chapter 2 Materials for Next Week Posted by Saturday Afternoon

Last Major Nuisance Topic: Possibly Preclusive Issues Recap & Continuation • Looking at Legal Rather Than Factual Q: When Should Court Block Lawsuit (= No Balancing Happening) • Could Focus on Reasonableness of P Complaints (Stronger/Milder Versions of Oversensitive) • Could Focus on Protecting D’s Activity (Stronger/Milder Versions of “Policy Concern”) • DQ 1. 26 -1. 29 = 4 categories of problematic Cases: (not mutually exclusive) • My categories, not commonly used • No universal answers to any

1. 27(b). Questionable Concerns: (Irrational/Prejudicial/Unsupported) JONES MAJORITY? AFR-AM WHITE NEIGHBORHOOD AFR-AM CEMETERY NUISANCE ? ? ? WHITE CEMETERY ? ? ?

1. 27(b). Questionable Concerns: Jones • Interesting Race Problem where both Ps and Ds are Afr-Am. • Are the people using the cemetery the same class/kind of folks as the homeowners • Cf. Moore v, City of East Cleveland in Chapter 3 • Keep an eye out for race/ethnicity concerns floating around; can use as policy arguments where relevant. E. g. , • In Eminent Domain (as discussed Mon) tendency to less expensive land people w/o great political power • In zoning Chapter 3

1. 27(b). Questionable Concerns: Jones Tool for You: Definition of Nuisance in Jones (N 36) (Not Referenced in Beckham) "Anything which annoys or disturbs one in the free use, possession, or enjoyment of his property, or which renders its ordinary use or occupation physically uncomfortable, is a `nuisance' and may be restrained. " (quoting earlier Fla case) Questions on Jones?

1. 27(c). Questionable Concerns: (Irrational/Prejudicial/ Unsupported) Two Preclusion Issues Raised by 1. 27(c) & Rev Prob 1 B 1. Protect Group Homes for Recovering Addicts in Res N-hood • Fed’l Policy under FHAA (Chapter 4) if no current drug use, so might simply disallow nuis suit especially if facility not open yet. • Note that harm to PV or business because of dislike of protected group rarely helps D in anti-discrimination case • Point of anti-discrim is to allow access where some people don’t want • Assumption is universal access will lessen PV/biz affect over time.

1. 27(c). Questionable Concerns: (Irrational/Prejudicial/ Unsupported) Two Preclusion Issues Raised by 1. 27(c) & Rev Prob 1 B 1. Protect Group Homes for Recovering Addicts in Res N-hood 2. Allow lawsuit before evidence of harm (besides PV)? • Cases split generally on drop in PV w/o other evidence • In this problem, two possible sets of background facts • Evidence of significant harm by similar facilities elsewhere • Little or no evidence (might then treat as irrational prejudice & block) I’ll give you some write-up in Info Memo. Qs?

1. 28. Most/Reasonable/Normal People Wouldn’t Care (Traditional Oversesitivity) • - Generally: Can analyze: • Using Language & Facts of Beckman • By discussing more generally whether harm is of type reasonable people do/should just accept. • 1. 28(a): OK to treat concerns in Jones as oversensitivity? • Majority doesn’t think so; other courts might disagree. • Might try to argue oversensitivity as fact Q for practice

1. 28(b) Most/Reasonable/Normal People Wouldn’t Care (Traditional Oversesitivity In Rev Prob 1 C, should we treat key complaints as actionable, fact-sensitive oversensitivity, or per se oversensitive? 1. Mild allergy unlikely to affect PV unless lots of folks affected 2. Loss of Flower Bulbs? • On face of problem? • Unstated facts that might matter?

1. 28(c) (i) Most/Reasonable/Normal People Wouldn’t Care (Traditional Oversesitivity P operates drive-in movie theater. D opens amusement park on adjacent lot w bright lighting so nearly impossible for P’s movies to be visible on large outdoor screen. • Actionable, fact-sensitive oversensitivity, or per se oversensitive? • On face of problem? • Unstated facts that might matter? I’ll Give You Write-Ups of Both Light Sensitivity Problems

1. 29(a) Aesthetic Nuisance & Arlington Cty Bd • I included detailed facts as good examples for Lawyering Q • Strongest version possible of govt’s public nuisance claim ? • Convincing? • Recap re 1979 • Carter Administration pushing limits with theory of case • Triggers court’s concern re takings Qs on Arlington County Board?

1. 29(c) Aesthetic Nuisance • Shd we allow pvt nuisance claim based on aesthetics to proceed if the challenged land use caused a significant drop in property values? • If you would prevent some or all aesthetic nuisance lawsuits, do you see the reason as oversensitivity or as a policy concern? • Is this type of claim significantly different from, or does it raise different concerns than, those claims addressed in DQ 1. 26? I’ll Give You Write-Up of Aesthetic Nuisance Generally

1 st Written Submission = Review Probllem 1 A (N 18) Due Sun 9/2 @ 8 p. m • Get Aliases fron Tina by Noon Friday • Get Aliases for All Five Submissions Now • (So She Can Have 5 Interactions Rather than 25) • I will post today’s slides today • Until 5 pm tomorrow, I will continue to post supplemental information and comments/moeld for Rev. Probs. • Tomorrow, in addition to oiffice hours (9 -11), I should be in my office most of the day if you have Qs.

1 st Written Submission = Review Probllem 1 A (N 18) Due Sun 9/2 @ 8 p. m • Questions on Submissions? • Submission Procedures? • Formatting? • Approach to Short Priblems Generally? • Specifics of Rev. Prob. 1 A?

Review Problem 1 F (N 32) as Lawyerring Q Setting Up Review Problem 1 H for Next Tuesday Lawyering Qs Generally Work-Product = To Do List: Investigation Needed to Adviuse Client • Might Think of as Informal Outline to Run by Boss for Approval • Should NOT Attempt to Give Advice or Make Arguments (Q v. R) • Can Briefly Look at Possibly Settling (Especially If 2 Pvt Parties) Lots of Variation in Content & Form Even Among Models • Nobody sees everything, esp. particular factual details (U Can Do This) • As models appear & as we do problems:

Review Problem 1 F (N 32) as Lawyerring Q Setting Up Review Problem 1 H for Next Tuesday Lawyering Qs Generally Phase II Editing Really Useful Here (Basically Internal Document) • “The next thing I would need to look into is …” “Check” (GREAT VERB) • To organize your work and show me structure, can use • Headings/Subheadings -=OR • Different Levels of Outline • Can use lists of short questions clarifying/detailing main question: • E. g. , Check Test for Pvt Nuis: 1 st Rstmt? 2 d Rstmt? Str Liab? Other?

Review Problem 1 F (N 32) as Lawyerring Q Setting Up Review Problem 1 H for Next Tuesday Lawyering Qs : Legal Investigation Might think of as flow chart where you try to Identify all branches re possible legal standards raised by Q When You Study/Outline: Identify Places Where Different States Use Different Tests or Have Different Outcomes for Same Q When Writing • Use these differences to create branches in flow chart • Remember your state may have specific caselaw or

Review Problem 1 F (N 32) as Lawyerring Q Legal Investigation: Create Flow Chart Statute Directly Addressing Conduct? • • Defines as Publc? Creates Liability? Always ? Under Some Circs? Meaning of “Public”? (if no statute) Liability (if no statute, Restatement Balance) [I told you this] • Gravity of Harm: • Utility • Balance

Review Problem 1 F (N 32) as Lawyerring Q Legal Investigation: Create Flow Chart “Public”? Check Test for: AZ tests or similar? Other? • Check Cases Interpreting? w Similar Facts*? • If affects considerable # of people : Def. of “considerable”? • If affects entire community/n-hood: Any way to do w 2%? • If Signif interference w public health, safety, peace, comfort or convenience”? Def of signif? Of last 3 terms? * Might briefly say what you think relevant similar facts

Review Problem 1 F (N 32) as Lawyerring Q Legal Investigation: Create Flow Chart Liability? (if Restatement Balance) • Gravity of Harm: Use 827 factors or similar? Others? • Cases Explaining/Defining? . Cases w Similar Facts? • If 827 or Similar Used, Further Explanation of • Extent /character of harm? • Social value of P’s use? • Suitabiliy of P’s use for locality? • Burden on Ps of avoiding harm? • Utility [Same general framework]

Review Problem 1 F (N 32) as Lawyerring Q Legal Investigation: Create Flow Chart Liability? (if Restatement Balance) • Gravity of Harm … • Utility … • Balance. Cases doing or explaining? • Genl rules? Facts Carrying More Weight? • Cases weighing useful product ag. big harm to a few Qs on Legal Investigation?

Review Problem 1 F (N 32) as Lawyerring Q Relationship Between Legal & Factual Qs • Exam Q always asks for “legal and factual research” • Many students treat as two separate lists (BAD IDEA) • If Legal Qs become flow chart or outline of answer • Inegrate Fact Qs into Relevant Parts of Flow Chart/Outline • Avoid Repetition Through Cross-Referencing

Review Problem 1 F (N 32) as Lawyerring Q Relationship Between Legal & Factual Qs “Public”? Check Test for: AZ tests or similar? Other? • Check Cases Interpreting? w Similar Facts* • If affects considerable # of people : Def. of “considerable”? • Check facts [re # of people likely] affected] … • If Signif interference w public health, safety, peace, comfort or convenience”? Def of signif? Of last 3 terms? • Check facts [re health/safety problems] ……

Review Problem 1 F (N 32) as Lawyerring Q Lawyering Q: Fact Investigation Generally Need to do more than restate legal test as a Q E. g. NOT: “Were a considerabke number of people affected? BUT “How many affected? ’ [with follow-ups & HFO. ] HFO? = “How Find Out? = Indicate Possible Sources of Info Can do for single Q or group of Qs (see below) Can put in parentheticals (one or more sources) For this exercvise, assume client is County Govt Make sure I see rtelevance of your fact Qs Often clear from context Otherwise include in parenthetical

Review Problem 1 F (N 32) as Lawyerring Q Part of Fact Investigation of Harm If 827 or Similar Used, Further Explanation of • Extent /character of harm • Meaning of Highly Allergic? Death? Shock? Hives/Rash? Other? • Concentration of S 4 Needed to Trigger? • Only All at Once or Can Cumulate? • # of People Affected • Reported Allergic Reactions? Residents? Workers? Passing Through? • Likelihood of Additional Cases? Cumulation? New Workers? Tourists?

Review Problem 1 F (N 32) as Lawyerring Q Part of Fact Investigation of Harm If 827 or Similar Used, Further Explanation of • Extent /character of harm • Medical Info on S 4 (EPA/CDC websites & state equivalents; med advice websites; nsp/mag articles; med studies) • Meaning of Highly Allergic? Death? Shock? Hives/Rash? Other? • Amt of S 4 Needed to Trigger? Only All at Once or Can Cumulate? • # of People Affected • Reported Allergic Reactions? Residents? Workers? Passing Through? (State/Local Health Officials) • Likelihood of Additional Cases? Cumulation? New Workers? Tourists? (Client generally combines w med info above)

Review Problem 1 F (N 32) as Lawyerring Q 2 More slides on Fact investigation of utility will be added right after this slide QUESTIONS?

Review Problem 1 F (N 32) as Lawyerring Q Part of Fact Investigation of Utility If 828 or Similar Used, Further Explanation of. . • Social Value of Purpose of Conduct • # of People Wearing Contact Lenses (CL)? # Wearing J’s CL • Avg Price of J’s CL? Of all CL? Of 5 Biggest Brands? • Evidence of “More Comfortable” Empirical Measure? Studies? Consumer Accounts?

Review Problem 1 F (N 32) as Lawyerring Q Part of Fact Investigation of Utility If 828 or Similar Used, Further Explanation of. . • Social Value of Purpose of Conduct • Market Data: (Check internet info from J & competityors, trafe assn, eye institutes & med jnls; online sellers) • # of People Wearing Contact Lenses (CL)? # Wearing J’s CL • Avg Price of J’s CL? Of all CL? Of 5 Biggest Brands? • Evidence of “More Comfortable” Empirical Measure? Studies? Consumer Accounts? (J public dox; consumer journals; rating websites; other online posts)

Review Problem 1 D (N 19): Summary of Facts • MM = movie star • Acquitted of murdering 3 d husband, • Buys big house(H) in wealthy suburb • Has spent little time at H. • When at H little noise; few guests. • Sometimes rumors: MM coming to H • Reporters/camera crews go to n-hood • Press sometimes trespass on n-bors’ lawns [What do you call photographers who give celebs cookies or chicken soup to entice them to pose for pix? ]

Review Problem 1 D (N 19): Summary of Facts [MAMA-razzi!!] • MM = Movie star buys big house(H) in wealthy suburb • If rumors MM coming to H, press comes, some trespass • S has lived next door to H for many years; • Since M bought, S has tried to sell his house w/o success. Potential buyers unhappy re 1. Living next to possible murderer 2. Presence of the media.

Review Problem 1 D (N 19): Mandel & Ramos Application of 2 d Prong of Restatement: • Assume for this analysis: 1. Utility > Harm 2. M Responsible for Press 3. Court doesn’t treat Home Ownership or Acquittal as Preclusive For both Rstmt prongs, you could usefully separate analysis of harm re acts of press from harm re fear of murderer then aggregate them. This allows you to say what happens if court chooses to disallow either.

Review Problem 1 D (N 19): Mandel & Ramos Application of 2 d Prong of Restatement: • Seriousness of Harm • Evidence/Extent of Harm from Press • Evidence/Extent of Harm from Fear • Seious? (individually or Together? ) • Feasibility of Continuing Activity if M Pays Damages? • Restmt says Focus on Activity, not D’s Wealth

Review Problem 1 D (N 19): Applying Restatements Generally • Gravity/Seriousness of Harm: Note Uncertaities re S • Is S Selling b/c of M (v. e. g. , new job elsewhere) • Is S’s asking price reasonable (no sale b/c too expensive? ) • Pot’l buyers “express concern” but are these reasons for not buyimg • Feasibility and Utility: Very Hard in Practice • How measure utility of MM’s using as “home” when

Review Problem 1 D (N 19): We Essentially n. Covered These Possible Preclusive Issues: Reasons a court might wish to preclude or limit liability on these facts? At least: 1. Policy Concern Re Home Ownership: Can simply owning a house to use as a part-time home with no other acts by the owner ever constitute a nuisance? 2. Policy Concern re Meaning of Acquittal: Absent civil judgment of D responsibility, should treat acquittal as precluding claims based on assumption of D guilt