Week 5 (2) Flashcards
Necessity occurs when ___
ex ante negotiations not worth it (danger or stakes too low)
Necessity applies with special force to ___
preservation of human life
The circumstance that causes necessity cannot be __
caused by the intruder
Necessity applies to ___
real and personal property
Conditions of necessity shift the right to exclude __
from LO to person entering (can use self help)
Under necessity, LO still has ___ but can only vindicate ___
right to exclude, seeking damages for harm caused by intruder
Ploof says that __
one can enter another’s land if necessary to save one’s life or property
About 50% of states permit anyone to hunt on rural land unless _ but the other half say __
no hunting or no trespassing signs prominently posted, consent always required
Western states typically have ____ while eastern states have __ for regulating livestock
fencing out laws, fencing-in laws
Right to roam laws mean __
implied license to walk up to the door of a house (UK and other commonwealth)
4th amendment prevents police from walking up to front door with drug sniffing dog because ___
not custom to bring drug sniffing dog on a walk
Jardines said that the ____ didn’t give police implied right to enter
absence of a gate
McConico says that hunters have ___
right established by custom to hunt on unenclosed, uncultivated lands even against owner’s wishes when there is no posting of the right to exclude
In McConico, the defendant was allowed to ___
carry on as a matter of tradition as long as do no harm to plaintiff’s land
In Fisher, the court did not allow ___
proof of custom to determine ownership of the bees
In Fisher, the court ruled that the plaintiff-finder was ___
a trespasser and so LO owned the bees
It is unclear that in Fisher it would have mattered if ___
land there was uncultivated and unenclosed
Public accommodations have a much more -__
limited right to exclude
If public accomodation, owner cannot __ and must ___
discriminate (first come, first serve), give a fair price
Why are public accomodations limited in right to exclude
(1) local monopoly power
(2) Burdick says quid pro quo for eminent domain
Owner sovereignty should sometimes give way to ____
considerations of public policy
Public policy defense transforms right to exclude from ___
a rule to a standard
_____ where State v. Shack applies
NJ is the only place
States other than NJ treat owner right of exclusion ___
as a rule subject to exceptions
Shack says that rights are ____
relative and must be an adjustment when LO’s property rights conflict with another’s right to privacy and dignity
Shack holds that the defendants ____ because ___
committed no trespass, land ownership does not include the right to bar access to govt services available to migrant workers
Shack reasoning
Fed legislation to help farm workers useless if farm workers insulated from efforts to reach them
In Maine, DeCoster holds that farm workers are ____
tenants so have a right to quiet enjoyment meaning right to receive visitors in their homes
Uston is about __
card counting Blackjack player kicked out
Uston says the common law right to exclude is ___
limited by competing CL right of reasonable access to public places
Uston can be read as a __
public accomodations case
Uston says the D did not have ___
authority to exclude patrons based on their strategies (although the Commission does)
Uston says P right of reasonable access because he did not ___ OR ___
threaten security of any other patrons, disrupt the functioning of operations
Marzocca suggests _____ because ___
pullback from NJ rule, right to exclude horse from racetrack for any or no reason upheld
Custom and ___ closely linked
implied licenses
Fisher suggests that the hive ___ so maybe ___
has a high value, low value rationale for implied license doesn’t apply
Maybe Fisher rejects custom argument because ___
time for LO and finder to negotiate
Title II doesn’t include ___ but many states___
retail, expanded public accomodations to include it
NJ line of cases shows dislike of ___
owner sovereignty
Merrill says the NJ approach __
takes too many resources to be effective
