Assignments for the Week of August 17: Monday, August 17: Please read Section I.A.1 of the Assignment Sheet. In addition to discussing Shack and Steenberg, be prepared to discuss whether the following would have access to a migrant farm and under what conditions: Individuals seeking to enter for the same reasons as Shack and Tejeras A person selling TVs A nun handing out union literature With regard to the material at Supp. 4-8, be prepared to discuss whether the CRoW Act of 2000 (England) is consistent with Article 8 of the European Convention on Human Rights and Article 1 of the Protocol. Wednesday, August 19: We will complete our discussion of Section I.A.1 of the Assignment Sheet. In addition, please read Section I.A.2 of the Assignment Sheet. These are some of the questions we asked about the holding in Shack: Would a representative of a private charity giving free medical assistance have access to a migrant farm in New Jersey? Would someone selling TVs have access to a migrant farm in New Jersey? Would reporters have access to a migrant farm in New Jersey? What restrictions might be placed on those who do have access? Could Tedesco require that all employees waive any rights they might have under State v. Shack as a condition of working there? These are some of the questions about the Florida statute that we covered: What would be the result in State v. Shack in Florida? Would Shack and Tejeras have access to the farm? Under what conditions? How would you answer the questions above about charities and the like in Florida? If the statute would grant access to Shack and Tejeras, but Tedesco were to deny it, could they file a complaint with the Department of Health? If not, where could they seek relief? Suppose that after a resident of a migrant labor camp complained to a reporter that the owner was not permitting health care providers and legal services attorneys to visit him at the labor camp, the owner fired him and told him to leave. Would the farm-worker have any recourse? Would it matter if the farmworker had been drinking in his room in violation of a rule (one that was routinely violated without consequence?)

Assignments for the Week of August 24: Monday, August 24: We covered the material in I.B.1. Consider: What was the court’s ruling on the claim for breach of fiduciary duty? What kind of damages might Moore recover under this claim, and how would they be calculated? Suppose a surgeon performs necessary surgery on a patient using a new technique being developed by the surgeon. The surgeon is still perfecting the technique, which is less invasive than conventional surgery. He hopes to make lots of money, once it’s perfected, from teaching other surgeons how to perform it. Suppose, further, that the procedure, in its current developmental stage, entails significant extra risk to the patient (though also some major benefits in terms of a quicker recuperation). Suppose the surgeon does not disclose his financial interest in the development of the technique, explaining to the patient only the risks and benefits. The patient gives her consent and the surgeon performs the surgery with the new technique. Consider the two following scenarios: Unexpected problems develop during the surgery on account of the new technique. The patient almost dies; while the surgery achieves its purpose, she is also left with some permanent damage. Everything turns out fine. The surgery goes smoothly and achieves its purpose; the patient recovers quickly. In each case, suppose the patient finds out after the surgery about the surgeon’s financial interest. She sues the doctor for breach of fiduciary duty. Would she have a cause of action under Moore? What would the injury or injuries be in each case? If there was a cause of action, how would one measure the damages? What was the court’s ruling on the claim for conversion? Who has the more persuasive argument on this point -- the majority or the dissent? What is the relevance of the stautes cited in the opinions (at CB 73, 74, 78, 79)? Why is the Fish & Game code relevant to whether you own your spleen? What exactly was at issue in the Moore case -- the spleen itself; the “ Mo cell line” created from the spleen; the substances produced by the cell line (the majority mentions lymphokines at CB 74; the patent at CB 71 mentions others); the patent (CB 71)? Did Moore abandon his spleen? Could he have taken it home with him after the surgery? Suppose you own a cow and your neighbor steals it. Before you get the cow back, the cow gives birth to a calf and also produces milk which your neighbor sells. Who owns the calf? Who is entitled to the profits from the milk? Is this relevant to the issue in Moore? Given the court’s ruling in Moore, which of these options would someone in Moore’s position have if a surgeon/researcher (Doctor X) disclosed his interest in using excised tissue to develop profitable pharmaceutical drugs: Ask Doctor X to perform the surgery, on the condition that Doctor X discard the tissue rather than perform research on it; Seek another surgeon, Doctor Y, to perform the surgery, on the understanding that Doctor Y will discard the tissue; Tell Doctor X she will have the surgery performed by Doctor Y, who will dispose of the tissue, but that she will have Doctor X perform the surgery if he agrees to dispose of the tissue rather than perform research on it; Tell Doctor X she will have the surgery performed by Doctor Y, who will dispose of the tissue, but that she will have Doctor X perform the surgery if he agrees to give her a share of the profits. Suppose the patient tells Doctor X that she is going to have Doctor Y perform the surgery. Would Doctor X be legally entitled to go to Doctor Y and strike a deal to purchase the excised tissue for further research? Would Doctor Y have to disclose that deal to the patient? Would Doctor X? What outcome in Moore would best stimulate medical research and the development of new pharmaceutical drugs? Who, in fairness, in your view, is entitled to the profits from the medical research? Which body -- the court or the legislature -- is best suited to decide these questions? Wednesday, August 26: We will discuss the material in I.B.2. We will also begin discussing the material in I.C. With respect to the material in I.B.2, consider: What statute governed the decision in Graham? Did it define what “property” is? Had the Colorado Supreme Court addressed this question in a prior case? What are the reasons the Graham court gives as to why the MBA could not constitute “property”? For each of those reasons, give the best counter-argument you can think of. You may want to focus on the final paragraph of Section I of the opinion (CB 324) for this purpose. Do you agree with the court that Greer v. Greer is distinguishable? Is the question, “is an MBA property?” the right question to ask in Graham? Why or why not? Would the court’s answer have been different if the legislature had used the phrase “marital assets” instead? Would the court’s answer have been different if it had asked, not whether a degree can be “property”, but whether the husband’s increased earnings potential was “property”? Who has the better argument in Graham -- the majority or the dissent? Was the outcome fair to the wife? Would a different outcome have saddled the husband with the requirement of earning money (suppose he decided after a few years in business he’d rather be an artist?) Is Graham correct that the spouse in such cases is adequately protected by (a) taking the value of the degree into account in dividing other assets recognized as “property,” such as a house or stocks, and (b) the possible award of maintenance? What is your response to the casebook editors’ question in CB 323 note 22 about the trial court’s valuation method in Graham? Consider the question of interest, and also whether the 60-40 split made sense. In Graham, the trial court determined the present discounted value of the husband’s lifetime earnings, and based the division between husband and wife on that figure. If something like half of all marriages end in divorce, is it reasonable for someone supporting a spouse through graduate school to count on some portion of the spouse’s lifetime earnings? Should the figure ($82,836 in Graham) have also been discounted for the chance that any given marriage may end in divorce? Did O’Brien and Elkus come out differently from Graham because a different statute was at issue or because the New York Court of Appeals views property differently from the Colorado Supreme Court? If you represented Frederica von Stade, what arguments would make in light of O’Brien? What should the result be in a case like this? What alternatives might there be to dividing a license or diploma or other asset in half, or leaving one spouse with nothing? Consider: Reimbursement of contributions Alimony “Reimbursement alimony” “Rehabilitative alimony” Promoting private planning (e.g., prenuptial agreements) With respect to the material in I.C, make sure you brief Tapscott. The way the opinion is written makes it very difficult to understand exactly what happened, but you should be able to figure out much more than you might think from a first read. So try your best to figure out the events as well as understanding the court’s holding, because doing the former is crucial to the latter.

Assignments for the Week of August 31: Monday, August 31: We will continue our discussion of the material in I.C, focusing on the questions at Supp. 23. In addition, please read the material in II.A.1. Our main focus will be on the material at CB 95-105, but you should be familiar with the material at CB 106-112 as well. Consider: In reviewing Armory v. Delamirie, consider the following alternative scenarios as to how the chimney sweep came into possession of the jewel, which he then took the goldsmith, who refused to give it back to the chimney sweep: Same facts as Armory v. Delamirie except that the owner of the jewel had thrown the jewel away and the chimney sweep found it; Same facts as Armory v. Delamirie except that the chimney sweep had mugged the owner of the jewel; The chimney sweep found it as in Armory v. Delamirie, but lost it on the way to the goldsmith; Joe found the jewel; the chimney sweep demanded it back. Suppose you took a Picasso to a restorer, who skipped town with it. An art dealer then stole the Picasso from the restorer. Then a fire destroyed the painting. The restorer sues the art dealer for the value of the painting. Who should win? You, the true owner, finally track down the art dealer, and demand payment. Who wins? What does Winkfield (CB 97) say? What if, after the judgment, the goldsmith chose not to give the jewel back but to pay its value to the chimney sweep; and subsequently the true owner went to the jeweler and demanded the jewel back? For Hannah v. Peel, make sure you understand each of the cases the court discusses and why it thought the cases were similar or distinguishable. How much does the court’s analysis of these prior cases tell you about why the court resolved the case as it did? How would you explain the court’s decision to give the brooch to the corporal rather than the home owner? What if a guest were to find an old jewel in your house -- who should get it, you or the guest? What if an intruder found the old jewel -- who should get it? What is the significance of the distinction courts draw between lost property and mislaid property? If you had a free hand to write the law in this area, which if any of the following factors would you consider relevant -- and which would matter the most: What best promotes finding lost, mislaid, or abandoned property; What best promotes security of possession; What best promotes getting lost or mislaid property back to the owner; What best honors peoples’ expectations; The relationship among some of the parties -- e.g., employer-employee; The place where an item is found. Wednesday, September 2: We will complete our discussion of the material in II.A.1. In addition, please read the material in II.A.2. With regard to the material in II.A.2., consider: How is just compensation determined? Why have a just compensation requirement in the case of the exercise of eminent domain? Is it necessary in terms of fairness or social utility to have such a requirement? Given that there is a just compensation requirement, why should there be a power of eminent domain at all? Why can’t the government just buy property it wants? What problems might arise in acquiring land to construct a highway? A large military base in an area where there are a number of small farms? In Kelo, give some thought to the differing ways you would present the facts as an advocate for Kelo or as an advocate for New London. What is the constitutional standard for the exercise of eminent domain? What does “public use” mean, according to the Supreme Court? Do you think the Court has correctly interpreted this phrase? Is it appropriate for state and local governments to seek to promote economic development?

Assignments for the Week of September 7: Monday, September 7: No class. Labor Day. Wednesday, September 9: We will complete our discussion of the material in II.A.2. In addition, please read the material in II.A.3.a. With regard to the material in II.A.2, consider: Does the majority in Kelo argue that the development at issue there is a good idea and will accomplish its intended purposes? Does it defer to the state and local government’s determination? Who is in the better position to determine whether the project will work? If there is uncertainty, who should make that decision -- the Supreme Court or New London? What alternative tests did the lawyers for Kelo propose? Would they have been consistent with Berman and Midkiff? What test did Justice O’Connor propose in her dissent? Would it have been consistent with Berman and Midkiff? What tests did Hathcock (CB 954) propose? Would it have been consistent with Berman and Midkiff? With regard to the material in II.A.3.a, consider: Imagine you are the attorney the Lutzes hired when they were sued in April 1948. You want to explore the possibility of mounting the defense of adverse possession. What elements would you need to show? What facts would you need to establish -- what questions would you need to ask your clients to help gather the facts? You should be familiar with the details of the facts and be prepared to marshal them in favor of the various elements of adverse possession, while being aware of the arguments opposing counsel could make. The court doesn’t address the question whether the 1947 tax sale extinguished any adverse possession claim the Lutzes may have had. Should the tax sale have had that effect, in your view?

Assignments for the Week of September 14: Monday, September 14: We will complete our discussion of the material in II.A.3.a Consider Imagine you are the attorney the Lutzes hired when they were sued in April 1948. You want to explore the possibility of mounting the defense of adverse possession. What elements would you need to show? What facts would you need to establish -- what questions would you need to ask your clients to help gather the facts? You should be familiar with the details of the facts and be prepared to marshal them in favor of the various elements of adverse possession, while being aware of the arguments opposing counsel could make. The court doesn’t address the question whether the 1947 tax sale extinguished any adverse possession claim the Lutzes may have had. Should the tax sale have had that effect, in your view? Should the admission by the Lutzes in their 1947 lawsuit that they didn’t own the property (though they claimed to have an easement) have precluded the subsequent invocation of the defense of adverse possession in the April 1948 lawsuit? We will discuss Manillo v. Gorski in light of the “improving trespasser” doctrines described at CB 135-136. We will also discuss some hypotheticals relating to tacking and disability: Consider the following sets of events in a state with a 12-year adverse possession statute of limitations: First set: 1996: A occupies Blackacre, land belonging to T. 2006: A conveys “all my interest in Blackacre” to B 2009: T sues to eject B. Second set: 1996: A occupies Blackacre, land belonging to T. 2006: B ejects A. 2009: T sues to eject B. Third set: 1996: A occupies Blackacre, land belonging to T. 2006: T sells Blackacre to T1. 2009: T1 sues to eject A. Was the Kuntos’ use of the property in Howard v. Kunto “continuous”? What about the camping hypothetical at CB 141? How did the Court of Appeals of Washington deal with the fact that the Kuntos, who claimed adverse possession, had been there only a year? Why did the trial court not count towards the required 10 year period the time that the McCalls, Millers, and other previous occupants had lived on the lot? Consider the following events. How they come out under the statute at CB 142-143? First Scenario: 1970: T is sentenced to 30 year years in prison. 1971: AP occupies land belonging to T. 2000: T is released from prison. 2009: T sues to eject AP. Second Scenario: 1970: AP occupies land belonging to T. 1971: T is sentenced to 30 year years in prison. 2001: T is released from prison. 2009: T sues to eject AP. Should there be a disability exception in an adverse possession statute? Wednesday, September 16: Please read the material in II.A.3.b. (the Florida statute). With regard to the statute, consider: Imagine a set of facts in Florida in which the would-be adverse possessor did everything the Lutzes did on the triangular parcel of property, and the original title holder to that parcel brought suit to eject the Lutzes in 1946. How would you analyze those facts under the Florida Statute? How would you analyze the facts of Howard v. Kunto under the Florida statute? Be prepared to discuss the questions in the readings at Supp. 28-33.

Assignments for the Week of September 21: Monday, September 21: We will complete our discussion of the material in II.A.3.b. (the Florida statute), focusing on disputes over border strips. Make sure you’ve taken another look at the readings at Supp. 25-36 before Monday’s class. In addition, please read the material in II.B.1. With regard to the material in II.B.1, consider: Please be prepared to discuss the questions at CB 158 (first three paragraphs of note 1). Be prepared to discuss Gruen v. Gruen in terms of the requirements of a gift and whether they were satisfied there. Also, consider how the arrangement there was different from, and similar to, a will. Be prepared to discuss Question 1 at CB 172. Finally, do you think the conduct of the tax lawyer in Gruen was ethical? Was Michael Gruen’s conduct in his divorce ethical? If your answer to either is “no,” should that have any bearing on how the gift issue is decided? With respect to Newman v. Bost, what alternative ways did Van Pelt have for leaving property to Newman besides attempting a gift causa mortis? Be prepared to discuss what did satisfy the elements of a gift causa mortis in the court’s view and what did not, and why? (Consider the bureau in his bedroom, the furniture in Newman’s bedroom, the rest of the furniture in the house, the insurance policy, and the piano.) How does an inter vivos gift differ from a gift causa mortis? Wednesday, September 23: Please read the material in II.B.2.a, and II.B.2.b.i. (the Duty to Disclose). You can skim the contract in II.B.2.a for now, but you’ll need to be familiar with it for later material. With regard to the material in II.B.2.b.i, consider: Consider the following hypotheticals taking place in New York (where Stambovsky was decided). In each, would the seller be liable to the buyer? A buyer purchases a house and, after moving in, discovers that there are termites and that the house has extensive termite damage. The seller said nothing to the buyer about termites before the sale even though the seller in fact had known about them. Before the buyer purchases a house she asks the seller whether there are any termite problems. There are, and the seller knows it, but he says no. After moving in, discovers that there are termites and that the house has extensive termite damage. Before the buyer purchases a house with a small tool shed out in the back, she asks the seller whether there are any termite problems. Knowing that both the house and tool shed have extensive termite infestations and damages, the seller says, “there’s a pretty bad termite infestation in the tool shed, I’m afraid.” After moving in, discovers that there are termites in the house and that it has extensive termite damage. A buyer looks at a house, and the seller says, “I love this house - it’s a great place to live, so snug and peaceful. I love these older houses with all their rich history. And we’ve got some great neighbors. The woman next door watches after my kids all the time - she’s great.” The buyer moves in and then finds out that -- every night at midnight, freight trains go by and sound horns. The buyer didn’t realize this because a hedge in the back made it hard to see the train tracks, but if you went in the back yard you could see them by peering through the hedges. a multiple murder took place in the home ten years ago. there’s a convicted sex offender living three houses away. The buyer moves into a house and is told by a neighbor that the seller’s partner died of AIDS. The buyer is upset by the revelation. We will also discuss the facts of Stambovsky itself. Consider the same hypotheticals as above, but taking place in Florida. In addition, consider this: A buyer is looking at a house before the sale. It is pouring rain outside. If the buyer looked inside the hall closet, he would see water dripping through the ceiling -- the result of a bad leak in the roof. The buyer is in a hurry and doesn’t look in that closet. The seller knows about the leak but says nothing. The buyer moves in and discovers the leak. Is the seller liable? Is the “duty to disclose” a duty to disclose material defects the seller knew about, or a duty to disclose material defects the seller knew or should have known about? What are the implications of deciding this one way or the other? Which legal standard makes more sense, in your view -- caveat emptor or duty to disclose?

Assignments for the Week of September 28: Monday, September 28: No class. Wednesday, September 30: Please read the material in II.B.2.b.ii (The Warranty of Habitability or Quality), II.B.2.b.iii (Florida Bar Question), and II.B.2.c (Equitable Conversion). With regard to the material in II.B.2.b.i, we will discuss the Lempke case; in addition, consider more generally what the arguments for and against having any warranty of habitability or quality is -- and how it differs from a duty to disclose. We will then discuss the Florida Bar Exam question. Next we will discuss Equitable Conversion, focusing on the questions at Supp. 44-45.

Assignments for the Week of October 5: Monday, October 5: Please read the material in II.B.2.d (Deeds), and II.B.2.e (mortgages). With respect to the material in II.B.2.d (Deeds), make sure you are familiar with the distinctions among the three types of deeds (general warranty, special warranty, and quitclaim), and are generally familiar with the distinction between present covenants and future covenants. Consider also the following scenarios: Olga, who is 82 and retired, lives in her house on Blackacre, which is a 10-acre heavily wooded plot. Andrea, Olga’s nearest neighbor, becomes friendly with her and takes care of her house whenever Olga is away. “You remind me so much of my wonderful daughter, ” Olga tells Andrea one day. “She worked very closely with Bernie Madoff, you know. I just wish I could see her more often, but the prison they put her in is so far away.” When Olga leaves for vacation, Andrea decides to make a fast buck. Pretending to be the owner, she agrees to sell Blackacre to Barry for $200,000, which Barry thinks is a great price. When Olga returns, Andrea tells her she can lend her $5,000 at no interest to fix the house up. Olga is delighted. When Andrea gives her the check, she asks Olga to sign “some papers for the lawyers.” Included in the documents she signs is in fact a deed from Olga to Barry conveying full title to Blackacre, though it’s all gobbledygook to Olga, who figures the papers are for the loan. The next day Andrea delivers the deed to Barry and he gives her $200,000. Right after closing Andrea takes her dream vacation in Las Vegas and gambles away the entire $200,000. Also right after closing, Barry loses his job and decides to move to another state; his cousin Chantal happens to be looking for a home in the area, and she buys Blackacre from Barry for $375,000. When Chantal tries to move in, Olga yells “Get off my property!” and calls the local police, who tell Chantal to leave. Frustrated, Chantal hires a private detective who uncovers the whole story. “Well, that’s Olga’s problem,” Chantal says when she hears what Andrea did. “I paid good money for that house.” She sues to eject Olga. What result would you expect? What factors relating to Andrea’s, Olga’s, Barry’s, and Chantal’s actions would be important? What should be the result, in your view? Same facts as (1), but Andrea just forges Olga’s signature on the deed to Barry. What result would you expect? What factors relating to Andrea’s, Olga’s, Barry’s, and Chantal’s actions would be important? What should be the result, in your view? With respect to II.B.2.3 (Mortgages), consider: What, according to Murphy, is the duty of the lender in the case of a foreclosure sale? How is a fair and reasonable price determined? Is it the same thing as fair market value? If not, why not require all lenders to sell the house only at fair market value? If you were an attorney for a lender conducting such a sale, what steps would you advise the client to take to show that the price achieved was a fair and reasonable price? Make sure you understand why the court found that mortgage law applied in Bean. Also, does the court hold that forfeiture would always be inappropriate in the case of a sale of a home by installment contract? What relief did the Minnesota statute at issue in Blaisdell provide to homeowners? If you had been in the legislature, would you have supported the statute? Some other approach? How did the Court reconcile the statute with Article I § 10 cl. 1 of the Constitution? What factors did the Court cite in support of its holding? Is the holding consistent with the Framers’ intent? Does it matter whether it is? Wednesday, October 8: We will begin our discussion of the material in II.B.3 (Recording Statutes and the Chain of Title). For this class, focus on the material at Supp. 70-71 (Problems 1-5), Supp. 72-74, CB 559-565, 580-583, 603-604 (Notes 1 & 2), and CB 532.

Assignments for the Week of October 12: Monday, October 12: We will complete our discussion of the material in II.B.3 (Recording Statutes and the Chain of Title). After this class, I will post comments on the all the recording statute questions. Note: you may treat Problem 11 at Supp. 71 as optional. Wednesday, October 14: Please read the material in III.A and III.B.1, III.B.2, and III.B.3.

Assignments for the Week of October 19: Monday, October 19: We will complete our discussion of the material in III.B.3 (Life Estates). In addition, please read the material in III.B.4 & 5, and III.C.1. Wednesday, October 21: We will continue our discussion of the material in III.C.1. In addition, please read the material in III.C.2.

Assignments for the Week of October 26: Monday, October 26: We will complete our discussion of the material in III.C.2, focusing especially on the material at Supp. 106-112. In addition, please read the material in III.D.1. You may also want to print out the Comments on the Grants at Supp. 75-76. Wednesday, October 28: Please read the material in III.D.2 and III.E.1&2. Note: please add the following to the assignment in III.E.2: Supp. 88-89 (Fla. Stat. § 689.11).

Assignments for the Week of November 2: Monday, November 2: We will complete our discussion of the material in III.D.2. Note: please add the following to the assignment in III.D.2: Supp. 88-89 (Fla. Stat. § 689.11). You may also want to print out the Comments on the Perpetuities Problems at Supp. 113, and a chart and some questions on Options and Preemptive Rights. In addition, please read the material in III.E.1 and III.E.2. Wednesday, November 4: Please read the material in IV.A; IV.B.1; IV.B.2; and IV.B.3. Note: There is a typo in the Assignment Sheet. Section IV (Residential Landlord-Tenant Law) is marked “II” instead of “IV.” In IV.B.2, please delete CB 410-421. Make sure you print out the Revised Assignment Sheet.