Week 6 Flashcards
Goals of anti-discrim laws
(1) expand housing opportunities
(2) prevent dignitary and emotional harm
(3) eliminate social message of inferiority/subordination
Anti-discrimination is a big ___
exception to the right to exclude
Private parties maintain the right to exclude because __
equal protection applies only to the government
Equity acts ___
in personam
Shelley holds that asking ___
court to enforce covenant via injunction is state action so violates the 14th
Well established that __ is state action
discrimination in jury selection
One problem with the Shelley covenant is that normally ____ BUT ___
unanimity required for covenants but not achieved, Missouri SC says not required
Merrill problem with Shelley
no limiting principle
Merrill says Shelley is troubling because we don’t want ___
all judicial enforcement of private rights to collapse into constitutional questions
Merrill says we think of courts as standing ready to enforce K and property rights without ___
regard to purpose/objective
____ is compromised if any form of state action subject to same constitutional limits as the govt
Individual autonomy in the common law
One limiting principle to Shelley was closed off by Burrow which was ___
injunction vs. damages
You could say Shelley covenant like zoning but ___
because not unanimous seems like a stretch and not used in later cases
If Shelley just limited to the facts then ___
have to explain why just to facts (Al v Gore)
Judicial non-enforcement is not enough to erase from the books ___
need leg and admin action
Merrill thinks one possible minimalist approach to Shelley is to say 14th should be ___
interpreted as disapproving of judicial inquiry into classifying persons by race (covenant requires Govt looking into race to decide whether to enforce or not)
Problem with Merrill minimalist approach
commits to color neutral regime
Merrill says currently only defensible position about Shelley is ___
judicial action is state action
What keeps Constitution from swallowing the CL?
interpretation of Constitution as narrower body of law`
What are things that are not state action
(1) self help
(2) covenants or voluntary agreements that don’t rely on govt action
The Fair Housing Act (FHA) only covers ___
residential
The FHA covers a dwelling ___
or portion thereof by one or more families
There is no exception for ____ under the FHA because ___
advertising, contains social messages
Plaintiffs under FHA need not show ____, ___ is enough
discriminatory intent, impact
Exceptions to FHA prohibitions on discrimination
(1) sale of single family home by owner without any ad or real estate agent
(2) Mrs. Murphy rentals
what is mrs.murphy rental
four or fewer dwellings + L occupies one unit
The FHA suggests that the prohibition is limited to ___
those renting or selling (offerors)
Web postings seeking preferences are technically ___
illegal under broadly written FHA BUT prosecution unlikely
Communications Decency Act says no liability for ___
user generated content
7th circuit says the CDA makes websites ___
immune from FHA liability
Roommate.com holds that there was ___
no violation of the FHA and roommate selection is excluded from its reach
Roommate.com, unlike Craigslist could at least __-
be sued because it elicited preferences
Roommate.com does not read dwelling to mean ___
subdivisions between one house or apartment unit
Roommate.com says that freedom to _____ is fundamental part of liberty and this implies a right ___
enter into certain intimate/private relationships, not to enter or associate
Roommate says that statutes should be __
interpreted to avoid “serious” constitutional questions
Roommate says roommate selection implicates ___
significant privacy and safety considerations
Roommate court is worried about ___
women having to accept male OR religious being forced to associate with non-religious
Roommate court looks to congressional intent of ___
1960s Congress
Criticism of Roommates.com: In 1960s, it was common ___
for units to share bathrooms/kitchens with other units
Criticism of Roommates.com: Same result if ___
color/national origin problem
Criticism of Roomate.com: ________ seems to suggest ___
language of statute, roommates covered
Repeated equitable enforcement can morph into ___
property modification
You no longer ___ to invoke equity
need property
Criteria for injunction
(1) reasonable possibility of irreparable injury
(2) action at law not adequate remedy
(3) threatened injury > whatever damage injunction causes to opposing
(4) injunction wouldn’t be adverse to public interest
characteristic defenses to equity
(1) unclean hands
(2) estoppel
(3) laches
what is unclean hands
no equity to anyone who acted unfairly/in bad faith in the transaction
what is estoppel
prevents party from taking inconsistent positions that would unfairly harm someone who relied on earlier position
what is laches
equitable equivalent to SOL
Can’t sue for unjust enrichment if ___ OR ___
severe misfortune of P that doesn’t enrich D, blind luck by D with no harm to P
Baker says that since there are __
repeated trespasses only injunction will ensure property rights
How is Baker P able to show irreparable injury
(1) unique use of property (rabbit research)
(2) disturbed peace of chicken coop
(3) future trespasses likely because hunt club no plans to control intrusions
Other reasons Baker gets injunction
(1) extra oompf of contempt
(2) punitive damages rare at the time
(3) Hunt Club may not have much money
(4) can tailor injunction to direct future conduct
Why does laches defense not work in Baker?
Bakers trying to give hunt club opportunity to fix it
Why unclean hands not work in Baker
P only shot dogs in heat of moment, not lying in wait
Allowing a ___ dog to roam is not trespass
reputable
Owner must know dog is __ OR ___ otherwise presume ___
dangerous/in actual control of the dog, harmless
If a dog is ____ OR ___ then it entering is a trespass
known to cause injury when loose, brought with humans
Thin skull rule ____ to trespass
does not apply
Rogers says no liability in nuisance to P who has ___
convulsions when church bells ring
One criticism of Baker: Should they be required to ___
fence as defensive self-help (like out West)
Olwell holds that the P gets ___
unjust enrichment that D received from savings in labor
Issue in Olwell - Does P get __
conversion damages (FMV) OR unjust enrichment (FMV + profits)
Olwell reasoning
(1) thinks bad faith conversion
(2) hostile to take and pay
(3) wants to deter disrespect of property rights
Olwell is like Jacques in that ___
property rights protected even when no injury to property itself
Olwell D could impose constructive trust on proceeds of sale meaning ___
if sold for 500 and bet all that and won 10k then D entitled to 10K (all damages as long as associated with original wrongdoing)
There is no brightline rule that encroachments are ___
not actionable trespass
If de minimis encroachment not trepass might encourage __
sloppy surveying
If encroachment is (3) then courts will deny injunction and require only damages
(1) unintentional/good faith
(2) cause only slight damage to P interest
(3) grave hardship to D to remove
For encroachments, bad faith trespass will ___
always lead to an injunction
Pile says that you have no right to __
occupy land that doesn’t belong to you no matter how minor the encroachment or whether it was an accident
Pile holds that the D must ___ BUT P must __
remove wall in reasonable time, pay the costs
Pile implies that good faith still if __
hire worst surveyor of all time
Pile imposes draconian punishment to __
incentivize care
Only ___ does de minimus over good faith/bad faith
Massachusetts
Golden Press says that _____ are sufficient
damages (not tearing down the wall)
Golden Press reasoning
(1) very little benefit to P and large burden on D
(2) Laches –> P doesn’t sue until D suffer most inconvenience
(3) if injunction probably would just settle and overbenefit P
Golden Press says that balancing here is NOT ___
CBA (most be gross imbalance in hardship) nor is it type of restatement balancing for nuisance
Edwards says that court acknowledges ___ BUT ___
nuisance and maybe even trespass, denies injunction and leaves jury to assess damages
Edwards reasoning
D came with unclean hands and illegit motives (bought land just to resell to the mine)
Edwards court says the purchase’s __
timing is sus and no apparent use beyond the suit
Edwards says an injunction could impose __
undue hardship on the P
Edwards would maybe come out differently if the injunction would ___
increase land value of multiple LOs
Edwards shows that Courts will deny equity if ___
believe P in bad faith or extortive motive
American law has no ___ so equity way of invoking that idea
explicit “abuse of right doctrine”
Edwards notes that for action at law damages would be ___
awarded without regard to motivation of owner in complaining
what is a license
temporary and revocable waiver of owner’s exclusion right
Someone who _____ license does trespass
exceeds the scope of a
Licenses are always revocable unless ___
estoppel
Licenses are ____ legally and theoretically
underdeveloped
Licenses are usually (3) but must give licensee ___
oral/temporary/revocable at will, reasonable time to exit the premises
Licenses are often __ but can be ___
gratuitous, K
What is a bailment
owner temporarily transfers custody of the property to another under implied or express K
Bailments are usually for ___
a particular purpose
Bailments cannot be used for ___
land or intellectual property
Some of the bailor’s property rights are transferred to the bailee like ___
right to exclude, rights against a third party
Bailments are only available with ___
personal property
Examples of bailments
loan bike to a friend, coat check, car left at garage for repair
There is a debate over whether bailments require ___
K or can it be gratuitous
Bailees must ___
indicate acceptance
R4p suggests _____ for bailments
property over Ks
Wood says that a license ___
to enter land is revocable
Wood assumes that licenses are ____ and that people should ___
revocable, push for more permanent right if they want it (easement)
Wood says that ____ does not make it revocable
payment for a license
Wood makes an exception for __
licenses with a grant but not grant here (unlike deer hunting)
Should it make a difference that the license in Wood ___
is created by K rather than gratuitous
Three models of licenses
(1) License purely property
(2) License waiver of exclusion but can enter into K for a license
(3) License is K so whether revocable depends on K
If licenses are purely property than always ___
revocable, if grant because equity intervenes
____ support license as property model
Gratuitous
Under second model, if a license is breached __
subject to K remedies
Under second model, Wood outcome determined on __
whether SP ordered`
Marrone holds that a license creates ___
obligation merely between owner/licensee not against the world
