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1
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state v. shack utility arguments for right to exclude

(1) protecting strong exclusion rights incentivizes owners to provide housing for workers and others (if they fear forced intrusions, they may stop doing so), (2) bright exclusion rights prevent constant legal disputes over “good reasons” for trespassing, saving societal resources, (3) stable property rules foster economic growth and trust in land use systems

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state v. shack fairness arguments for right to exclude

(1) a core moral principle of ownership is the right to control your land; forcing someone to host unwanted visitors undermines personal freedom, (2) tedesco reasonably relied on established trespass laws protecting his right to exclude when deciding to house workers on his property, (3) treating tedesco differently from other landowners (forcing access because he houses workers) unfairly burdens him compared to landowners without tenants

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state v. shack institutional arguments for right to exclude

(1) legislatures can broadly balance worker protection vs. property rights through public hearings and broad input; courts shouldn’t create ad hoc exceptions, (2) landowners and worker advocacy groups can privately negotiate access rules (without needing judicial mandates), (3) labor laws could be amended to include access rights, not created judicially through property redefinition.

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state v. shack administrability arguments for right to exclude

clear rule preferred (no trespassing without consent) because it’s easy to apply and enforce, reduces disputes and ambiguity, and avoids case-by-case balancing that burdens courts and owners

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state v. shack utility arguments for right of entry

(1) enabling aid workers to reach migrants promotes societal values like public health, legal fairness, and labor protection, (2) outside access serves as a check on mistreatment, reducing long-term enforcement costs (fewer lawsuits, medical crises, etc.), (3) promoting inclusion and dignity for marginalized groups strengthens overall trust and reduces societal tensions

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state v. shack fairness arguments for right of entry

(1) migrant workers, though housed on private land, are individuals with rights who should not be isolated from legal or medical help, (2) denying outside access can trap vulnerable populations; fairness demands some protection for those who cannot defend themselves, (3) ownership is not absolute; when property use affects others' fundamental rights, the owner's moral obligations can outweigh exclusion rights

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state v. shack institutional arguments for right of entry

(1) courts historically step in to protect individual rights against unreasonable exercises of power; legislatures are slow to act, (2) courts must step in to prevent urgent injustices, (3) courts have long created exceptions to property rights

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state v. shack administrability arguments for right of entry

flexible standard preferred (entry allowed if reasonable and necessary) because it balances owner rights with worker protections, courts can restrict exceptions to specific situations, and it allows evolving social norms and circumstances to guide case outcomes

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rights vs. duties in state v. shack

tedesco has a right to exclude so others have a duty not to trespass. shack and tejeras argue that the workers’ rights to access legal aid impose duties on others (including Tedesco) to accommodate basic services

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privileges vs. no rights in state v. shack

tedesco has the privilege to use his land (e.g., to house workers), and others have no right to interfere with that use. shack and tejeras claim a privilege to enter the land for a socially protected purpose. tedesco would then have no right to stop essential, rights-based aid

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immunities vs. disabilities in state v. shack

tedesco would claim an immunity from having his exclusion rights altered unless by legislative action; courts should be disabled from changing them case-by-case. shack and tejeras argue that landowners like tedesco should not have immunity against public interest interventions. courts should be empowered to recognize new limits based on justice and public necessity

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powers vs. liabilities in state v. shack

tedesco has the power to consent to entry (offer private consultation on his terms); visitors are liable to have their legal position change if they violate that consent. shack and tejeras claim the government (or the courts) has the power to shift the legal landscape in favor of worker access, imposing a liability on landowners who interfere unreasonably.

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utility arguments in favor of jacques’ right to exclude

(1) strict enforcement (including punitive damages) deters not just steenberg but others from deciding for themselves when it’s “okay” to trespass. (2) allowing convenience-based trespass erodes the general security of property rights. over time, everyone’s property becomes vulnerable to others' cost-benefit calculations. (3) strict exclusion forces businesses and individuals to invest in lawful planning, infrastructure, and negotiation rather than relying on illegal shortcuts

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fairness arguments in favor of jacques’ right to exclude

(1) ownership would be meaningless if others could invade for their own convenience. the dignity and autonomy of ownership must be honored. (2) the law must protect even “small” landowners' rights as fiercely as large or powerful ones; otherwise, fairness collapses into favoritism toward those with practical needs or economic leverage. (3) respecting others' property is a basic social norm essential for community trust and cooperation. it’s morally wrong to override it for mere convenience.

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institutional arguments in favor of jacques’ right to exclude

(1) courts are the proper institution to safeguard property rights. the right to exclude is so central that judicial protection is appropriate without needing legislative action every time. (2) juries represent the community’s view of fairness and can be trusted to assess punitive damages when rights are knowingly disrespected. (3) property rules like exclusion are historically developed by courts, and maintaining judicial enforcement fits with the tradition of protecting foundational rights.

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administrative arguments in favor of jacques’ right to exclude

clear rule preferred (no trespass ever without consent) because it’s easy for landowners, courts, and businesses to understand, avoids case-by-case justifications based on supposed necessity or convenience, and prevents endless litigation over when trespass is "reasonable."

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fairness arguments in favor of steenberg homes’ right to enter

(1) when landowners refuse minor accommodations for no real harm, it may be unfair to completely prioritize formality over practicality. (2) if small, harmless crossings are punished severely, society becomes rigid and inflexible, disadvantaging businesses and individuals who face genuine logistical hurdles. (3) massive punitive damages for essentially harmless conduct (no physical harm) can feel unjust compared to the slightness of the intrusion.

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utility arguments in favor of steenberg homes’ right to enter

(1) allowing minor, harmless crossings (or punishing them lightly) minimizes transaction costs and speeds up economic activity like home delivery, services, and transportation. (2) if courts or legislatures allow reasonable, minimal incursions for serious needs, landowners and businesses will have stronger incentives to negotiate rather than litigate. (3) strict absolute exclusion, if applied too rigidly, can stifle necessary business functions and block commonsense logistics solutions.

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administrative arguments in favor of steenberg homes’ right to enter

flexible standard preferred ("no trespassing unless reasonable necessity exists") because it allows courts to recognize harmless trespasses where strict exclusion would cause disproportionate harm, provides flexibility to adjust remedies based on context, and reduces harsh, inefficient outcomes in cases of very minor intrusions

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institutional arguments in favor of steenberg homes’ right to enter

broader balancing between property rights and access for public services (like pipelines, utilities, deliveries) is better handled by legislatures after careful study, not one-off jury awards. property owners and companies could negotiate easements or compensation, avoiding the need for heavy punitive damages.

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rights vs. duties for jacque v. steenberg homes

jacques had a right to exclude so steenberg had a duty not to enter without consent. arguably, steenberg wants to weaken jacques’ right into a conditional privilege based on convenience.

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privileges vs. no rights for jacque v. steenberg homes

jacques had the privilege to deny all access without justification so others had no right to demand or force access. steenberg wanted a privilege to cross for delivery, claiming jacques had no right to block necessary conduct.

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immunities vs. disabilities for jacque v. steenberg homes

jacques had an immunity from having his exclusion right altered except through formal legal change (not by Steenberg’s decision). steenberg lacked any power to unilaterally change Jacques’ legal status.

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powers vs. liabilities for jacque v. steenberg homes

jacques had the power to grant or deny permission for entry so steenberg was liable to have their legal position change based on Jacques' decisions. steenberg’s unauthorized crossing triggered liability for trespass and punitive damages based on the misuse of jacques’ rights structure.

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landlord vs. girlfriend example: landlord’s right to limit occupancy utility arguments

(1) in small, owner-occupied buildings (like a three-unit), maintaining a predictable, controlled environment is important for harmony and safety. landlords should not be forced to accommodate changes they didn't agree to. (2) protecting landlord rights makes it more attractive for individuals to rent out portions of their own homes, expanding affordable housing stock. (3) more occupants strain utilities, parking, shared areas, etc., increasing maintenance and conflict risks in small rental settings.

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landlord vs. girlfriend example: landlord’s right to limit occupancy fairness arguments

(1) the landlord agreed to rent to the tenant alone; forcing her to accept an additional resident she didn’t agree to is unfair and violates the autonomy of contract. (2) the landlord made housing decisions based on who would occupy the space. adding another person without consent unfairly shifts the burdens onto her. (3) just as tenants expect their rights respected, landlords deserve equal respect for the control of their privately owned living spaces, especially when they live on-site

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landlord vs. girlfriend example: landlord’s right to limit occupancy institutional arguments

(1) occupancy rules should be set at the lease formation stage. allowing private parties to contract for terms they find acceptable. (2) if there needs to be a standard about when visitors become occupants, legislatures (not courts) should draw those lines clearly. (3) courts should hesitate before rewriting residential lease agreements based on evolving social norms.

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landlord vs. girlfriend example: landlord’s right to limit occupancy administrability arguments

clear rule preferred (only named tenants live there) because it is simple for landlords and tenants to understand and enforce and reduces disputes about when a "visitor" becomes an "occupant."

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landlord vs. girlfriend example: tenant’s right to intimate association/guests utility arguments

(1) supporting tenants' ability to maintain relationships leads to healthier households and communities. (2) if tenants face eviction just for living with significant others or family members, housing instability will rise, worsening broader social problems. (3) recognizing evolving family structures (unmarried couples, shared households) fits current societal norms better than rigid occupancy rules.

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landlord vs. girlfriend example: tenant’s right to intimate association/guests fairness arguments

(1) tenants have a deep interest in choosing whom they live with, especially for intimate partners and family members (basic human dignity demands it. (2) just as in shack, tenants must retain the ability to form and maintain key relationships in their homes without landlord interference. (3) once property is leased, the tenant, not the landlord, holds many day-to-day rights to control the space

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landlord vs. girlfriend example: tenant’s right to intimate association/guests institutional arguments

(1) where intimate human rights are implicated, courts are well-suited to recognize limits on landlord power. (2) legislatures are often slow to adapt rental laws to modern living realities; courts must step in when urgent interests (like home and family) are threatened. (3) common law traditionally evolves to recognize new rights through case-by-case adjudication (like how shack carved out limits to exclusion).

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landlord vs. girlfriend example: tenant’s right to intimate association/guests administrability arguments

flexible standard preferred ("reasonable co-occupants allowed") because courts can distinguish between meaningful intimate relationships (allowed) versus commercial subletting or overcrowding (restricted) and it recognizes that homes are about human lives, not just property management

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rights vs. duties in landlord vs. girlfriend example

landlord claims a right to control occupancy so tenant has a duty to honor lease terms. tenant asserts a right to private, intimate association so landlord would have a duty not to interfere without justification.

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privileges vs. no rights in landlord vs. girlfriend example

landlord argues a privilege to set initial occupancy limits so tenant has no right to unilaterally change occupancy. tenant claims a privilege to decide intimate guests so landlord has no right to interfere unless harm is shown.

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immunities vs. disabilities in landlord vs. girlfriend example

landlord wants an immunity from having her contractual occupancy rights altered judicially. tenant argues the landlord should have a disability from intruding into fundamental living decisions once the lease is granted

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powers vs. liabilities in landlord vs. girlfriend example

landlord claims the power to terminate the tenancy if the lease is breached (e.g., extra occupants). tenant says the courts have the power to limit landlord enforcement when fundamental rights are at stake, imposing liability on landlords who overreach

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store owner kicking gay couple out example: store owner’s right to exclude fairness arguments

(1) property ownership traditionally includes the right to control access; forcing someone to associate against their deeply held beliefs undermines their moral autonomy. (2) religious freedom is a fundamental value; fairness requires respecting religious owners’ right to act according to conscience, even in public-facing businesses. (3) treating store owners differently (forcing them to serve people against their beliefs) while others retain associational rights is unfair.

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store owner kicking gay couple out example: store owner’s right to exclude utility arguments

(1) allowing diverse belief systems among businesses might foster a richer, more pluralistic society. (2) if owners can clearly enforce their right to exclude, it could prevent disputes and public confrontations. (3) business owners might be discouraged from participating in commerce if they fear being compelled to serve in ways that violate their beliefs.

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store owner kicking gay couple out example: store owner’s right to exclude institutional arguments

(1) creating new nondiscrimination duties in places of public accommodation is a major policy shift that legislatures, not courts, should undertake after debate. (2) private market forces can discipline discriminatory businesses without legal intervention (3) courts should not impose public accommodation duties unless mandated by clear law — traditionally, common law allowed broad exclusion rights in private businesses.

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store owner kicking gay couple out example: store owner’s right to exclude administrability arguments

clear rule preferred (owners can exclude) because it’s easy to enforce (owner’s word is final). no need to investigate subjective motives for exclusion (religious vs. secular reasons). aoids complex judicial inquiries into sincerity of religious beliefs.

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store owner kicking gay couple out example: customer’s right to enter fairness arguments

(1) denying access to businesses based on sexual orientation treats some citizens as second-class and denies them equal participation in public life. (2) in modern pluralistic societies, fairness demands treating everyone with basic respect and ensuring access to public accommodations. (3) historical discrimination against LGBTQ+ individuals means fairness requires extra vigilance to prevent exclusion and marginalization.

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store owner kicking gay couple out example: customer’s right to enter utility arguments

(1) ensuring open access to businesses promotes integration, reduces societal divisions, and fosters public trust. (2) broader access to markets and services increases overall commerce and participation, benefitting businesses and consumers alike. (3) allowing discrimination imposes emotional and psychological harm on individuals and broader social costs (depression, lower productivity, social unrest).

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store owner kicking gay couple out example: customer’s right to enter institutional arguments

(1) courts have long played a role in enforcing public access to services and markets when vulnerable groups are denied full participation (e.g., racial desegregation cases). waiting for legislatures can leave vulnerable groups unprotected for years; courts can act to fill gaps where no laws currently address discrimination. when you open for business to the public, you accept obligations beyond private property rights — this is a judicially manageable distinction.

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store owner kicking gay couple out example: customer’s right to enter administrability arguments

flexible standard preferred ("no exclusion unless valid business reason") because courts can distinguish between legitimate refusals (e.g., safety concerns) and discriminatory ones. a standard allows context-sensitive judgments about when exclusion is permissible without endorsing discrimination. promotes a general norm of inclusion while allowing reasonable business judgment.

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store owner kicking gay couple out example: rights vs. duties

owner claims a right to exclude so others have a duty not to enter without permission. customers claim a right to nondiscriminatory access so owners would have a duty not to exclude based on protected traits.

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store owner kicking gay couple out example: privileges vs. no rights

owner asserts a privilege to exclude based on any grounds so customers would have no right to challenge that exclusion absent law. customers argue they have a privilege to enter open businesses so owners would have no right to arbitrarily refuse service.

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store owner kicking gay couple out example: immunities vs. disabilities

owner wants an immunity from judicially created nondiscrimination obligations so courts should be disabled from limiting their exclusion rights without legislation. customers argue owners should not have immunity from discrimination claims when operating public accommodations. courts can and should act.

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store owner kicking gay couple out example: powers vs. liabilities

owner claims power to invite or exclude whom they wish so customers are liable to removal if refused service. customers argue the government (courts or legislature) has the power to impose nondiscrimination rules, creating liability for wrongful exclusion.

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60 out of 100 lots with single-family residence restriction: utility arguments for building a gas station

(1) it is fundamentally unfair to bind someone to a restriction that was not in their deed or clearly recorded. property rights should not be secretly or ambiguously limited. (2) L relied on the public record showing no restriction on Lot 86. it’s unfair to impose a hidden burden after the fact. (3) land use restrictions should arise through clear mutual agreement — not through vague "implied" duties inferred from others' actions.

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60 out of 100 lots with single-family residence restriction: fairness arguments for building a gas station

(1) if servitudes must be written down to be enforceable, developers and buyers will be much more careful and transparent. (2) allowing each lot owner to freely use their property (absent clear restrictions) fosters more adaptive and economically productive land use. (3) buyers might hesitate to invest if hidden restrictions can pop up unpredictably.

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60 out of 100 lots with single-family residence restriction: institutional arguments for building a gas station

(1) if we want broad enforcement of common plans, legislatures should mandate clear, recorded declarations (as modern statutes already often require), rather than courts inventing implied restrictions. (2) neighbors can create actual, enforceable covenants through negotiation rather than asking courts to invent obligations post hoc. (3) courts should not expand servitudes based on ambiguous facts — property rights deserve strong protection under the common law.

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60 out of 100 lots with single-family residence restriction: administrability arguments for building a gas station

clear rule preferred (no servitude unless written or properly recorded) because it’s predictable and easy to enforce, avoids endless litigation over whether a "common plan" was sufficiently clear, and protects property markets from hidden obligations.

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60 out of 100 lots with single-family residence restriction: utility arguments for implying the servitude

(1) enforcing the implied plan maintains property values, community cohesion, and neighborhood predictability (2) without enforcement, future developers could easily "cherry-pick" unrestricted lots to disrupt carefully planned communities. (3) single-family residential areas provide important societal benefits (quiet, safety, environmental health) that a gas station would undermine.

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60 out of 100 lots with single-family residence restriction: fairness arguments for implying the servitude

(1) people who bought lots under the impression of a quiet residential neighborhood should have their expectations protected against disruptive uses. (2) even if L didn’t have the restriction written in, he benefits from the single-family character of the neighborhood — fairness demands that he share the burden too. (3) allowing L to escape the restriction gives him an unfair advantage over neighbors who paid for the promise of a consistent residential environment.

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60 out of 100 lots with single-family residence restriction: institutional arguments for implying the servitude

(1) courts have long recognized and protected implied covenants in common plan developments to uphold neighborhood expectations. (2) determining whether a common plan exists is a fact-sensitive inquiry that courts can competently perform. (3) rigidly requiring formalities ignores the real-world reliance that arises from observed uniform land use patterns.

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60 out of 100 lots with single-family residence restriction: adminsitability arguments for implying the servitude

flexible standard preferred (imply servitude if clear evidence of a common plan exists) because it allows courts to balance competing evidence and expectations, prevents unfair outcomes when technical defects in recording would otherwise defeat obvious common purposes, and encourages careful behavior while protecting community expectations.

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60 out of 100 lots with single-family residence restriction: rights vs. duties

L asserts a right to use his land freely; neighbors would have a duty not to interfere absent a clear covenant. N asserts a right to enforce the common residential scheme; L would have a duty to comply with the implied servitude.

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60 out of 100 lots with single-family residence restriction: privileges vs. no rights

L claims a privilege to build whatever he likes; neighbors have no right to impose unwritten limits. N claims a privilege to live in a residential-only community; L would have no right to disrupt that with commercial use.

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60 out of 100 lots with single-family residence restriction: immunities vs. disabilities

L seeks immunity from new restrictions unless they were properly recorded; others have a disability to retroactively impose burdens. N argues that community reliance creates no immunity for L; courts have the power to recognize binding servitudes.

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60 out of 100 lots with single-family residence restriction: powers vs. liabilities

L claims the power to develop his lot as he wishes; neighbors would be liable to suffer the effects unless they can prove an enforceable restriction. N asserts that the power to enforce common plan obligations creates a liability for L to conform to the neighborhood character.

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should a landlord be liable for nuisance when the landlord doesn’t stop tenants dealing drugs from their units: fairness arguments for landlord not liable

(1) once units are rented out, landlords have limited day-to-day control over tenant behavior. it's unfair to impose liability for independent third-party criminal actions. (2) imposing liability would unfairly force private landlords into becoming de facto police or surveillance agents, which is outside the moral expectations of property owners. (3) landlords shouldn’t be punished for bad tenants unless they were complicit or knowingly encouraged the illegal activity; moral blameworthiness matters.

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should a landlord be liable for nuisance when the landlord doesn’t stop tenants dealing drugs from their units: utility arguments for landlord not liable

(1) imposing heavy liability risks on landlords might discourage renting altogether, especially to lower-income tenants, shrinking affordable housing supply. (2) fear of nuisance liability could cause landlords to evict tenants preemptively or based on stereotypes rather than actual conduct, creating housing instability. (3) forcing landlords to actively monitor or police tenants would lead to higher rents and greater administrative burdens, reducing economic efficiency.

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should a landlord be liable for nuisance when the landlord doesn’t stop tenants dealing drugs from their units: institutional arguments for landlord not liable

(1) handling criminal drug activity should be the job of law enforcement and criminal courts, not private landlords managing leases. (2) if society wants landlords to play a bigger role in combating crime, legislatures should pass specific laws setting out clear duties, notice procedures, and protections. (3) neighbors harmed by tenant drug activity can sue the wrongdoer tenants directly for nuisance, rather than extending the duty to landlords.

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should a landlord be liable for nuisance when the landlord doesn’t stop tenants dealing drugs from their units: administrability arguments for landlord not liable

clear rule preferred (no landlord liability without direct complicity) because landlords would be liable only if they aid, abet, or knowingly profit. avoids endless litigation over what counts as "enough knowledge" or "enough effort to stop it." preserves traditional landlord-tenant roles without blurring into law enforcement.

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should a landlord be liable for nuisance when the landlord doesn’t stop tenants dealing drugs from their units: fairness arguments for landlord liable

(1) property rights come with obligations not to unreasonably interfere with others’ rights to use and enjoy their land. landlords who ignore ongoing nuisances allow serious harm. (2) once a landlord is aware of harmful illegal activity, fairness requires action. turning a blind eye is morally blameworthy. (3) lower-income neighborhoods often bear the brunt of drug-related nuisances. holding landlords accountable prevents exploitation and neglect of marginalized communities.

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should a landlord be liable for nuisance when the landlord doesn’t stop tenants dealing drugs from their units: utility arguments for landlord liable

(1) holding landlords liable incentivizes them to act promptly against illegal activity, improving quality of life and public safety. (2) landlords have the power to terminate leases, refuse renewals, or work with police — imposing liability encourages landlords to use these tools responsibly. (3) safer, more stable neighborhoods attract business, families, and investment, enhancing long-term property values and community welfare.

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should a landlord be liable for nuisance when the landlord doesn’t stop tenants dealing drugs from their units: institutional arguments for landlord liable

(1) courts routinely handle nuisance law and can apply flexible standards to distinguish between truly negligent landlords and those who are reasonably vigilant. (2) waiting for legislatures to act could leave communities unprotected; courts are well-suited to step in using existing nuisance law frameworks. (3) allowing neighbors and victims to sue complicit or negligent landlords provides private remedies when government enforcement is slow or inadequate.

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should a landlord be liable for nuisance when the landlord doesn’t stop tenants dealing drugs from their units: administrability arguments for landlord liable

(1) flexible standard preferred ("landlords liable when aware and fail to act reasonably"). allows courts to evaluate context: knowledge of the activity, ability to intervene, practicality of action. recognizes that not every landlord can prevent all misconduct, but gross negligence should not be tolerated. balances deterrence with reasonableness — not automatic liability, but responsibility when inaction is egregious.

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should a landlord be liable for nuisance when the landlord doesn’t stop tenants dealing drugs from their units: rights vs. duties

Landlord asserts a right to lease property without ongoing liability for tenant acts; others have a duty to respect landlord autonomy. Neighbors assert a right to quiet enjoyment and safety; landlord has a duty not to allow conditions that create nuisance.

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should a landlord be liable for nuisance when the landlord doesn’t stop tenants dealing drugs from their units: privileges vs. no rights

Landlord claims a privilege to rent property without active policing; others have no right to impose law enforcement obligations on them. Neighbors claim a privilege to live free from nuisances; landlord would have no right to ignore obvious, harmful illegal activity.

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should a landlord be liable for nuisance when the landlord doesn’t stop tenants dealing drugs from their units: immunities vs. disabilities

Landlord seeks immunity from nuisance liability unless directly involved; others have a disability from imposing liability without proof of complicity. Neighbors argue landlords should not have immunity where inaction creates harm; courts should have power to impose liability for serious neglect.

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should a landlord be liable for nuisance when the landlord doesn’t stop tenants dealing drugs from their units: powers vs. liabilities

landlord holds the power to lease and terminate leases; tenants are liable to lose their rights based on misconduct. courts/communities have the power to impose liability on landlords who fail to reasonably control illegal nuisance activities.

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landlord has trouble selling remaining 5 lots with restriction so sells them without it: fairness arguments for no enforceable restriction

(1) new buyers reasonably relied on their deeds, which contained no restrictions. it would be unfair to retroactively impose new limitations they didn’t expressly agree to. (2) property interests should be formalized. if neighbors wanted enforceable restrictions, they should have ensured proper recording and inclusion. (3) penalizing new buyers after they purchased and invested based on available information denies them the fruits of their legitimate bargains.

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landlord has trouble selling remaining 5 lots with restriction so sells them without it: utility arguments for no enforceable restriction

(1) requiring written covenants for enforceability incentivizes developers and buyers to carefully document land-use restrictions, increasing certainty in property markets. (2) allowing edge lots to be used differently (e.g., apartments, gas stations) might better reflect market needs and maximize land value. (3) fear of "hidden" obligations would discourage future buyers from investing in land near subdivided developments.

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landlord has trouble selling remaining 5 lots with restriction so sells them without it: institutional arguments for no enforceable restriction

(1) if implied restrictions are to be broadly binding, legislatures should regulate recording and notice requirements, not courts retrofitting covenants post-sale. (2) courts should enforce actual recorded covenants, not oral assurances or inferred obligations. (3) private parties had the chance to negotiate. courts should not rework bargains based on others’ expectations.

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landlord has trouble selling remaining 5 lots with restriction so sells them without it: administrability arguments for no enforceable restriction

clear rule preferred (only enforce written restrictions). easy to apply. prevents litigation over what was "intended" or "assured" orally. protects buyers’ ability to trust the land records

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landlord has trouble selling remaining 5 lots with restriction so sells them without it: fairness arguments for enforcing restriction

(1) buyers reasonably relied on the developer’s oral promises and the fact that 45 out of 50 lots were restricted and uniformly used for single-family homes. (2) all lot owners enjoyed the protected environment created by the covenants. new buyers should not be allowed to free-ride. (3) it is morally wrong for the developer to promise a residential-only environment and then sell edge lots for incompatible uses without restriction.

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landlord has trouble selling remaining 5 lots with restriction so sells them without it: utility arguments for enforcing restriction

(1) enforcing the common scheme ensures long-term residential stability, protects home values, and preserves the expectations of the majority. (2) apartments and gas stations introduce noise, traffic, and disruption inconsistent with single-family living, harming social cohesion and quality of life. (3) enforcing implied covenants deters developers from undermining neighborhoods after initial sales.

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landlord has trouble selling remaining 5 lots with restriction so sells them without it: institutional arguments for enforcing restriction

(1) courts are well-suited to protect expectations created by uniform development patterns and oral assurances. (2) legislatures are slow and rigid; courts can flexibly enforce fairness where it is obvious from surrounding circumstances. (3) strict formality would defeat obvious reliance interests that equitable doctrines like implied servitudes exist to protect.

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landlord has trouble selling remaining 5 lots with restriction so sells them without it: administrability arguments for enforcing restriction

flexible standard preferred (imply restrictions when common plan and reliance are clear). allows courts to assess patterns of use, buyer reliance, and developer assurances. avoids unjust outcomes when technicalities defeat legitimate neighborhood expectations.

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landlord has trouble selling remaining 5 lots with restriction so sells them without it: rights vs. duties

new buyers claim a right to develop their land freely; others have a duty not to interfere absent written restrictions. homeowners claim a right to a preserved single-family residential scheme; new buyers have a duty to conform.

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landlord has trouble selling remaining 5 lots with restriction so sells them without it: privileges vs. no rights

new buyers assert a privilege to use land without restriction since none were written; others have no right to complain. homeowners assert a privilege to enforce the original common plan; new buyers have no right to break from it.

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landlord has trouble selling remaining 5 lots with restriction so sells them without it: immunities vs. disabilities

new buyers seek an immunity from unwritten covenants being judicially imposed; homeowners are disabled from enforcing oral-only promises. homeowners argue new buyers have no immunity because equity allows courts to imply covenants from common plans and reliance.

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landlord has trouble selling remaining 5 lots with restriction so sells them without it: powers vs. liabilities

new buyers claim the power to modify their land use plans; homeowners would be liable to accept the consequences. homeowners claim the power to enforce the common plan; new buyers would be liable to injunctions or other equitable remedies.

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mall’s anti-loitering policy: utility arguments for excluding teenagers

The mall owners may argue that by excluding disruptive teenagers, they are ensuring the continued success of the mall, preserving the welfare of other customers and keeping businesses in operation. More customers will feel comfortable coming to the mall, potentially leading to increased profits and long-term sustainability of the mall as a whole. This economic benefit could have a wider social benefit, as it would preserve the space as a community hub for all users.

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mall’s anti-loitering policy: fairness arguments for excluding teenagers

One could argue that the mall owner’s right to maintain a safe and welcoming environment for all customers is a fair and equal treatment principle. The mall has a right to ensure that its paying customers are not disrupted by disruptive or obnoxious behavior. By excluding those whose actions negatively impact others, the mall is treating all customers (including teenagers who do behave appropriately) equally by protecting their right to enjoy the space. In this sense, it’s about balancing interests and ensuring fairness to the larger group.

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mall’s anti-loitering policy: institutional arguments for excluding teenagers

The mall is a private property, and the mall owner or manager has the right to make decisions about who can or cannot stay in the space, particularly in response to customer complaints or behaviors that interfere with the business. From an institutional perspective, it may be more appropriate for the mall owner to handle this issue internally, using their expertise to manage the space and maximize profitability.

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mall’s anti-loitering policy: administrability arguments for excluding teenagers

A no-loitering rule, like the one instituted by the mall manager, creates a clear standard that makes it easier for mall security to enforce. It's more administrable because it provides a concrete, objective standard (i.e., "no hanging out unless you’re shopping") to enforce consistently across all teenagers. This prevents subjective decision-making and potential accusations of bias.

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mall’s anti-loitering policy: fairness arguments for permitting teenagers

Teenagers, like all individuals, have a moral right to access public spaces, especially in a commercial context that serves the general public. By excluding teenagers based on behavior that is not inherently criminal (such as "obnoxious" but non-criminal behavior), the mall could be unfairly discriminating against an entire group, treating them as second-class citizens. A fairness argument could be made that the policy unfairly impacts a social group based on generalized stereotypes of teenagers, rather than on individual behavior. Teenagers may have fewer options for socialization, making public spaces like malls more crucial for them.

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mall’s anti-loitering policy: utility arguments for permitting teenagers

The exclusion of teenagers may harm the community in the long run. If the mall becomes a place where certain groups are excluded, this could lead to a societal segregation of young people from older generations, fostering resentment or alienation. This exclusion may also encourage more aggressive policing of public spaces and create a less inclusive community. It could be argued that fostering positive relationships between teenagers and other mall-goers could lead to a more socially cohesive and integrated society, and that allowing some space for harmless behavior might promote goodwill in the community.

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mall’s anti-loitering policy: institutional arguments for permitting teenagers

one could argue that the mall manager’s decision should be subject to judicial review to prevent arbitrary exclusion. a court or legislator could better ensure that exclusionary policies do not cross the line into unreasonable discrimination. this decision involves balancing competing interests (teenagers' rights to social space versus mall owners' business interests), which might be more appropriate for a court to resolve, given its focus on fairness and legal principles.

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mall’s anti-loitering policy: administrability arguments for permitting teenagers

a more flexible, case-by-case approach might be needed to avoid unfairly penalizing teenagers who are not engaging in disruptive behavior. In this case, the policy could be administratively burdensome, as mall staff would need to distinguish between those who are simply socializing in a non-disruptive manner and those whose actions are truly problematic. flexibility could allow for more nuanced decisions that better address the actual behavior rather than relying on a blanket exclusion.

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mall’s anti-loitering policy: rights vs. duties

the mall owner has a right to exclude individuals who disrupt business, which correlates to the teenagers’ duty not to trespass or disrupt the peace. however, teenagers may argue that their right to social space in a public area (the mall) is a countervailing right that should not be overridden based on vague or subjective terms like “obnoxious behavior.”

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mall’s anti-loitering policy: privileges vs. no rights

teenagers may have a privilege to enter the mall as a member of the public, but the mall owner’s right to exclude them (as a private business owner) may outweigh this privilege, especially if their presence interferes with the business’s operation or other patrons’ experience.

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mall’s anti-loitering policy: immunities vs. disabilities

the mall owner might claim immunity from having their legal right to exclude certain individuals being altered or challenged by external parties, including teenagers who might want to enter without purchasing anything. teenagers may face a disability in being excluded based on their group identity (teenager), rather than individual behavior.

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mall’s anti-loitering policy: powers vs. liabilities

the mall owner may have the power to establish rules for entry, which could impose a liability on teenagers who choose to stay despite the exclusionary policy. the teenagers’ liability in this case would be their duty to leave if not shopping, aligning with the mall owner’s legal authority to regulate access.

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fairness arguments for traditional ouster doctrine

(1) the ouster doctrine is rooted in fairness because it ensures that both spouses are entitled to a share of the property or any proceeds derived from it, particularly if one spouse is deliberately preventing the other from enjoying or using the property. This doctrine upholds the idea that both spouses should have the right to access the property or be compensated for its use or sale. (2) the principle behind this doctrine is that both parties should have the opportunity to benefit from property they jointly owned unless one spouse takes deliberate actions to exclude the other. Thus, the fairness of dividing the costs and proceeds equally is seen as moral justice in the case of an involuntary ouster.

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fairness arguments against the traditional ouster doctrine

A key criticism is that the ouster doctrine may unfairly penalize one spouse for failing to be physically present, especially when the absence is due to the personal circumstances of the divorce or separation. For instance, in the case of Olivas v. Olivas, Sam’s decision to move out and his subsequent behavior (moving in with a girlfriend) was seen as voluntary and not the result of Carolina forcing him out. In such cases, applying ouster principles may unfairly reward a spouse who left the home voluntarily, which may not be morally justified.

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fairness argument for fault-based ouster approach

the spouse who is at fault for the divorce (for example, due to infidelity or abusive behavior) might be required to bear a greater share of the costs or forgo a larger share of the proceeds from the property sale. This ensures that the party whose actions led to the dissolution of the marriage is held accountable for the financial consequences.

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fairness argument against fault-based ouster approach

Fault-based systems can be seen as unfair because they may introduce subjectivity into the process. What one party considers a justified reason for leaving may be viewed differently by the other party, leading to inconsistent decisions. Moreover, some argue that financial decisions should not be based on personal feelings or blame but rather on a neutral division of assets and liabilities.