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Property II: Class 4 Wednesday 8/22/18 Power Point Presentation National Bao Day National Tooth Fairy Day. This Photo by Unknown Author is licensed under CC BY-NC-ND. This Photo by Unknown Author is licensed under CC BY-SA.

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  1. Property II: Class 4Wednesday 8/22/18Power Point PresentationNational Bao DayNational Tooth Fairy Day This Photo by Unknown Author is licensed under CC BY-NC-ND This Photo by Unknown Author is licensed under CC BY-SA

  2. More Music to Accompany Armory ParkSting, Dream of the Blue Turtles (1985)featuring “Children’s Crusade” Course Page Functional Again I’ll Post by Friday Noon: • Additional Materials/DQs for Monday • Written Submissions: Info & Instructions (in Overview Memo) • Look at Carefully Along with Rev. Prob. 1A (1st Submission) • I’ll Take Qs on Both Instructions and Substance • Write-Ups of Rev Probs 1E, 1F, M1A

  3. Using Restatement Balancing for InjunctionUtility of Relevant Conduct (828 factors) Armory Park Question M1A (a) Social Value: High (b) Suitability of Conduct to Locality -- Residential N-hood -- Use of Van Lift by Resident PWD -- Other Qs/Info? (c) Impracticality of avoiding/preventing the invasion (a) Social Value: High (b) Suitability of Conduct to Locality -- Residential N-hood --Soup Kitchen (on Edge) -- Other Qs/Info? (c) Impracticality of avoiding/ preventing the invasion

  4. Using Restatement Balancing for InjunctionUtility of Relevant Conduct (828 factors) Armory Park Question M1A (a) Social Value: High (b) Suitability of Conduct to Locality -- Residential N-hood -- Use of Van Lift by Resident PWD -- At 4:00 am (c) Impracticality of avoiding/preventing the invasion --80,000 van: Significance? (a) Social Value: High (b) Suitability of Conduct to Locality -- Residential N-hood --Soup Kitchen (on Edge) -- How close to patrons? (c) Impracticality of avoiding/ preventing the invasion --seems ineffective

  5. DQ1.19 & QM1AArguments to Fact-Finder e Relative Strength (Tie-Breakers) SOME KEY POINTS re Armory Park? Question M1A?

  6. Logistics: Off-Day Draft • Jimmy: Picks 3 & 8 • Mike: Picks 1 & 10 • Abby: Picks 2 & 9 • Robert: Picks 4 & 7 • Toni: Picks 5 & 6

  7. Pop Culture Moment: 2018 Political Correctness (?!) Under pressure from PETA, Nabisco frees its animal crackers from cages. What’s Next?

  8. Pop Culture Moment: 2018 Political Correctness (?!) What’s Next? Under pressure from the Daughters of the Confederacy, Nabisco changes the name of the product to “Barnum’s Animals of Southern Heritage” ??

  9. Public Nuisance: Spur & Armory ParkSpecial Concerns: DQ1.16 (Standing) • Usually state or local govt brings action (criminal or civil) • Armory Park (N27) : Special standing requirements for private individuals to bring public nuisance claims because* i) Public officials should have choice to enforce rights for general public and if govt has chosen not to enforce, shouldn’t allow just anyone to try to enjoin unless suffering particular damages . ii) Avoid multiple suits/recoveries for same activity. * (Riff on arguments from purpose of legal standard)

  10. Public Nuisance: Spur & Armory ParkSpecial Concerns: DQ1.16 (Standing) • Armory Park (N27): Private Ps must show “special damages” = injury to property interest in land different in kind or quality than general public. • E.g., if public concern is primarily health, harm to individual’s property value usually sufficient to constitute “special damages.“ See N27. • If private P asks for injunction and not damages, some states* still require “special damages” (apparently Arizona) but others do not. * (Riff on states having different legal standards)

  11. Public Nuisance: Spur & Armory ParkSpecial Concerns: DQ1.16 (Standing) Private Ps must show “special damages” = injury to property interest in land different in kind or quality than general public. • Webb Industries meets standard in Spur due to “lost sales” (N23) • Although Association in Armory Park owns no property at all, court holds it has standing. • Represents affected landowners on relevant concerns (common sense) • Not seeking damages so no issue of multiple recoveries and efficient to handle in one lawsuit. • Association standing key to Homeowners’ Assns (See Chapter 2) Qs on Standing?

  12. Zoning/First-in-Time DQs 1.17, 1.20-1.22Nuisance by Local Govt DQ1.24 I’ll Cover These Topics on Monday I had insight (!!) connecting these to Preclusive Issues we’ll address Monday This Photo by Unknown Author is licensed under CC BY-NC-ND

  13. Armory Park & Responsibility for Third Party Acts Holds that D’s “activity may be enjoined upon the showing of a causal connection between that activity and harm to another. The [Q] is not whether [D] directly caused each improper act, but whether [D’s] business operation frequently attracted patrons whose conduct violated the rights of residents to peacefully use and enjoy their property.” • Test looks pretty easy to meet BUT: • Presumably “foreseeability” not required b/c not “intentional” unlass D knows of harm & continues conduct. • “[F]requently attracted” b/c occasional harm won’t be nuisance.

  14. Armory Park & Responsibility for Third Party Acts [Did D’s] business operation frequently attract[ ] patrons whose conduct violated the rights of residents to peacefully use and enjoy their property.” • Assuming resulting harms could be Public Nuisances, should this rule apply to: • DQ1.25(a): Fancy restaurant attracting criminals to n-hood? • DQ1.25(b): Homeowner’s Xmas display attracting traffic?

  15. Armory Park & Responsibility for Third Party Acts [Did D’s] business operation frequently attract[ ] patrons whose conduct violated the rights of residents to peacefully use and enjoy their property.” • DQ1.23: Pros and cons of rule not yet mentioned?

  16. Responsibility for Third Party Acts:Next Time Wed Aug 29: Review Problem 1D (N19) Issues for Class Discussion • Should D be responsible for acts of the Press? • Apply 2d Prong of 2d Restatement • For Class, Assume Utility > Harm • Can Do Balancing Analysis for Practice on Your Own • Identify any reasons a court might wish to preclude or limit liability (consider readings for Monday)

  17. Review Problem 1F (N32): Is the Nuisance “Public” D makes contact lenses under a special patented process that makes them both cheaper and more com­fortable to wear than conventional lenses. However the process emits into the air small quantities of Silichlor IV, an odorless chemi­cal to which about 2% of the population is highly al­lergic. • Public Nuisance Suit • Brought by State So No Standing Issue • Uses 1stRestmt to Determine Liability • Assume No Relevant Statute

  18. Review Problem 1F (N32): Is the Nuisance “Public” [T]he process emits into the air small quantities of Silichlor IV, an odorless chemi­cal to which about 2% of the population is highly al­lergic. • Use facts you have plus possible unstated facts. • Fleming, Friedhoff: Best explanations why it is or could be “Public.” • Ramos, McLaughlin:  Best explanations why it isn’t or might not be “Public.” Relevant Arizona Tests • Activity affects “a considerable number of people” or “an entire community or neighborhood” • “[T]he conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience”

  19. Review Problem 1F (N32) Next Time, I’ll Go Through Part of Analysis of This Problem as if it were Lawyering Q • Relevant legal research for this and similar problems • Relationship between legal and factual research • Factual research focused on doing 1st Rstmt balancing • Setting Up Review Problem 1H for Next Wednesday • You Might Want to Try Some of This on Your Own to Compare to What I Do.

  20. Review Problem 1E, DQ1.14, Chart& Choosing Among Private Nuisance Rules Arguments re Relative Strength of Possible Private Nuisance Rules • 1st Restmt (Mandel) v. Common Law Strict Liability (Fleming) •  2d Restmt (Friedhoff) v. Common Law Strict Liability (Ramos) •  2d Restmt (McLaughlin) v. 1st Restmt (Mandel)

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