ELEMENTS B1 & B2 POWER POINT SLIDES Class #39: Monday, November 28, 2016 National French Toast Day “SALUT!”

Fleetwood Mac: Greatest Hits Recordings 1975-88 Today Might Run A Little Long Tomorrow: Review Session 7:55 Here Optional (No Attendance) Strongly Recommended Will Post Slides After Mostly Exam Technique for Each Type of Q Helpful to Look at 2015 Exam Qs Beforehand Some Specific Info on Your Actual Qs A Little Bit of Substance on Takings At End I’ll Take Qs on Technique, Then Substance

DQs Closing Up Unit III Review Problems 3A(ii) & 3C(ii) Final Lectures Class #39: Final Class DQs Closing Up Unit III Review Problems 3A(ii) & 3C(ii) Final Lectures

Takings Theorist #4: Bruce Ackerman & DQ3.44-3.46 (Continued)

Takings Theorists: Bruce Ackerman DQ3.44 Ackerman asks very specific Qs re how people in the culture (OOs) tend to think about property. Is property in Q literally “taken”? Is gov’t stopping unduly harmful use of property? Note dual focus of test: First what’s left, then purpose

Apply to Airspace Solution? (for you) Ackerman Applied DQ3.45 Is property in Q literally “taken”? Means: Gone completely (OR) What’s left is so trivial, “bad joke” to say you still have Is gov’t stopping unduly harmful use of property? Apply to Miller? Apply to Penn Central? Apply to Airspace Solution? (for you)

Takings Theorists Recap DQ3.46: Krypton Which theorists we’ve studied seem to have been approved or adopted in whole or in part by the SCt?

Takings Theorists Recap DQ3.46: Krypton Which theorists seem to have been approved or adopted in whole or in part by the SCt? Sax: Enterpriser adopted in PC & Arbiter in Miller Epstein: View rejected with dissent in PC Michelman: Cited though not adopted (might be consistent with results) Ackerman: Not referenced (might be consistent with results)

Penn Central: Takings Analysis DQ3.42 What rules can you derive from the majority in Penn Central? Implicit: Rules must be consistent with results of earlier cases (nothing overruled). Can read PC to alter meaning of those cases as long as they’d come out the same way. How does Penn Central alter or limit the holdings of the earlier cases?

Penn Central: Takings Analysis DQ3.42 How does Penn Central alter or limit the holdings of the earlier cases? At least: Rejects distinction between preventing public harm & providing public benefit Reads Mahon: Kohler Act unconstitutional b/c interference w DIBE left no value to property Os [Adds a number of new ideas: e.g., importance of DIBE & physical invasion]

Penn Central: Takings Analysis DQ3.42 (Radium) What rules can you derive from the majority in Penn Central? Implicit: Rules must be consistent with results of earlier cases (nothing overruled). Lots of Possibilities; I’ll Go Through Some

Penn Central: Takings Analysis DQ3.42: Possible Rules from Majority Taking (= unconstitutional unless compensation paid) if: Gov’t actions “that may be characterized as acquisitions of resources to permit or facilitate uniquely public functions” (Sax Enterprisers) (EXPLICIT) “Not reasonably necessary to the effectuation of a substantial public purpose.” (Heightened Scrutiny; MAYBE)

Penn Central: Takings Analysis DQ3.42: Possible Rules from Majority (Possible Reads) Not Taking if: Reasonably Related to Implementing Policy w Widespread Public Benefit [Could play with applying this as a legal test.] No Significant Interference w DIBE

Penn Central: Takings Analysis DQ3.42: Possible Rules from Majority (Explicit) More Likely Taking if: Physical invasion of property by or because of Gov’t Significant Interference w DIBE (Explicit) Not Necessarily Taking if: Significant diminution in value Elimination of one use of parcel Burdens do not fall equally across landowners

Penn Central: Takings Analysis DQ3.42: Possible Rules from Majority Denominator Q Don’t divide a single parcel into segments to determine if whole segment gone Look at effect on all of parcel owned by claimant Whole parcel in Penn Central “Rights Reserved” in Mahon Don’t look at other unrelated property owned by claimant (other land in Manhattan owned by PC; other property owned by coal cos.)

Penn Central: Takings Analysis DQ3.42 What rules can you derive from the majority in Penn Central? Implicit: Rules must be consistent with results of earlier cases (nothing overruled). Lots of Possibilities QUESTIONS?

Relevant Considerations in Takings Cases Survey About What Facts Matter Ban on Intended Use (79%): Penn Central (Interference w DIBE) % Reduction in Value (86%): Mahon, Epstein & Penn Central $$$ Amount Reduction (46%): Purpose of Regulation (57%) = Hadacheck; Sax; Mahon; Epstein; Miller; Ackerman (2d Q) (BUT role of purpose unclear after Penn Central) $$$ Amount Left (43%) = Kelso; Mahon; Ackerman (1st Q); Penn Central Return on Investment (32%): Penn Central (Interference w DIBE)

Relevant Considerations in Takings Cases Other Possible Considerations Michaelman: Settlement & Demoralization Costs Penn Central: Physical Invasion Means/Ends Testing (Relationship betw. Purpose and Method)

Class #39: Final Class Review Problem 3A(ii) DQs Closing Up Unit III Krypton for Landowner Bart Uranium for State Review Problem 3C(ii) Final Lectures

FINAL EXAM QUESTION 3 Review Problem 3A(ii) XQIIID (1998): B took parcel under father’s will. Big loss in value to B’s parcel when state opened prison on neighboring lot. Hard Q: Should gov’t ever have to pay compensation to landowners whose property values are reduced significantly by gov’t activity but who paid nothing for their land (acquired by gift, inheritance or will)? Gov’t Argument: Presumably no interference w DIBE if no investment at all. [BUT Penn Central doesn’t address directly, so need more discussion.]

FINAL EXAM QUESTION 3 Review Problem 3A(ii) Krypton for Bart Uranium for Govt Gov’t : No interference w DIBE (Penn Central) if no investment at all b/c acquired by gift or will. Assume for purposes of this argument Gov’t would have to pay market value to B if purchasing through ordinary Eminent Domain. If B had purchased for market price at time of gift, he’d have a plausible Takings claim on same facts. If You Argue Investment > 0, What is Investment? Market Value at time B acquired parcel? Financial investment made by prior O (here B’s father)?

Review Problem 3C(ii) Class #39: Final Class DQs Closing Up Unit III Review Problem 3A(ii) Review Problem 3C(ii) Radium Separately Oxygen Together Final Lectures

FINAL EXAM QUESTION 3 Rev. Prob. 3C(ii) FROM EXAM QUESTION IIIF (2001) Parking Garages at Shreveport Airport A buys one (B) and builds one on adjacent lot (C) Post 9/11 Security Rules shut down garage on (C) Value of (C) drops from $350K to $100K (Significant Interference w DIBE as high-tech garage) Value of B + C together increases from $1M to $1.5M (Almost certainly no Taking) Important to decide whether to analyze B & C together or separately.

Analyze B & C together or separately? FINAL EXAM QUESTION 3 Rev. Prob. 3C(ii) Oxygen = View Together as One Parcel Radium = View as Two Separate Parcels A owns adjacent garages B & C. New Security rules shut down C. FoF: Value of BG + CG: $1M  $1.5M (Assume OK) FoF: Value of CG: $350K  $100K. (Signif Intfr w DIBE) Need to look at specific facts as well as law and policy to resolve. Analyze B & C together or separately?

Class #39: Final Class Final Lectures DQs Closing Up Unit III Review Problem 3A(ii) Review Problem 3C(ii) Final Lectures

Takings in Perspective Society continually becomes more complex & interrelated Greater externalities from use of private property. E.g.,: Environmental Impacts: More Impacts/More Awareness Need for open space in cities seen as more important History seen as more important More awareness that strong private right to exclude can creates significant social harms (e.g., race, handicap) Gov ’t, responding to popular will, changes rules to try to limit externalities (Demsetz 1st Thesis)

Takings in Perspective Takings Clause = Limit on democratic process of taking and regulating property Eminent Domain & other real “Enterpriser” cases: Gov’t wants to use and control private property Clearly must pay for it Most Non-Eminent Domain Takings cases: Gov’t trying to regulate (not to take over) Mostly attempts to get owners to use their land in ways that reduce negative effects on others

Takings in Perspective Means/End Testing & Levels of Scrutiny Choice among three common means/end tests: Rational Basis Scrict Scrutiny Intermediate Scrutiny At Stake: Relative Protection Given to Democratic Process (US v. Communist Romania) Particular Constitutionally Protected Interests (Here, Property Rights)

Takings in Perspective Means/End Testing & Levels of Scrutiny At stake in choice among three tests: Protection for Democratic Process versus Particular Constitutional Interests Rational Basis = Green Light to Gov’t Near total deference to legislators Means we basically trust/rely on the democratic process to protect the necessary interests. True for most economic interests

Takings in Perspective Means/End Testing & Levels of Scrutiny At stake in choice among three tests: Protection for Democratic Process versus Particular Constitutional Interests (Here, Property Rights) Strict Scrutiny = Red Light to Gov’t Gov’t must show its regulation is drawn with precision to serve a very important purpose (can run in an emergency) Used if we have observed or would expect that the majority will regularly disfavor particular segments of the population Classifications based on race, religion, political views

Takings in Perspective Means/End Testing & Levels of Scrutiny At stake in choice among three tests: Protection for Democratic Process versus Particular Constitutional Interests Intermediate Scrutiny (Yellow Light to Gov’t) Penn Central: Reasonably Necessary to Substantial Public Purpose (though role of language unclear b/c unapplied) Trying to protect from predictable dangers of democracy Arguably focused review, not necessarily replacing legislature’s ability to make policy judgments

Takings in Perspective 3 Ways to View Takings in Context of Tension between Democracy & Constitutional Protections Strong Private Property Strong Democracy Intermediate View: Identify Especially Problematic Situations Use Heightened Scrutiny or Other Demanding Test

Takings in Perspective What’s at Stake? How much we trust Democracy to sufficiently protect private property interests How much Gov’t regulation we have State & local Gov’ts & $$$ Mahon: “Gov’t couldn’t go on….” Strong Takings Clause protection of property means Much less Zoning & Environmental regulation More leeway for private land uses to harm others

Into the Woods (1986)

Into the Woods (1986) Stephen Sondheim & James Lapine Compilation of Several Fairy Tales Woods = metaphor for conquering childhood fears Characters discover recurring pattern in life No real “happily ever after” Must go into the woods to confront fears again & again This is 29th year I have ended 1L courses with Jack and the Beanstalk in the Spring Red Riding Hood in the Fall (Killing Off One More Wolf Before We’re Done)

I Know Things Now (p.155)

Thoughts on Emerging from the Dark Slimy Path