F LEETWOOD M AC : G REATEST H ITS R ECORDINGS On Course Page Office Hours 11/27-12/13 Office Hours 11/27-12/13 XQ3: Comments & Best Answers XQ3: Comments & Best Answers Next (= Final) Class Meeting Both Sections: Thursday 11/19 Both Sections: Thursday 11/19 Room E352 8:00-9:20 am Room E352 8:00-9:20 am

P LAN FOR T ODAY OXYGENS: DQ135: Meaning of Penn Central DQ135: Meaning of Penn Central DQ136: Airspace Solution DQ136: Airspace Solution XQIIID & F: Hard Qs KRYPTON (as far as we get) DQ137-38: Ackerman DQ137-38: Ackerman DQ139: Cases & Theorists DQ139: Cases & Theorists Course Evaluations: Be Specific!

P LAN FOR T HURSDAY KRYPTON: Finish: DQ137-38: Ackerman DQ137-38: Ackerman DQ139: Cases & Theorists DQ139: Cases & Theorists More Detail on XQIIID & F Lecture Closing Up Takings Song & Lecture Closing Up Course

Penn Central: Takings Analysis OXYGEN DQ135: What rules can you derive from the majority in Penn Central? (Implicit: that are consistent with earlier cases) Lots of Possibilities; Let’s List Some

Penn Central: Takings Analysis DQ135: Possible Rules from Majority Taking 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.” (MAYBE) (Explicit) More Likely Taking if: Physical invasion of property by or because of Gov’t Significant Interference w DIBE

Penn Central: Takings Analysis DQ135: Possible Rules from Majority (Explicit) Not Necessarily Taking if: Significant diminution in value Elimination of one use of parcel (Possible Reads) Not Taking if: Reasonably Related to Implementing Policy w Widespread Public Benefit No significant interference w DIBE

Penn Central: Takings Analysis DQ135: 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)

Penn Central: Takings Analysis OXYGEN DQ135: How does Penn Central alter or limit the holdings of the earlier cases?

Penn Central: Takings Analysis 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]

Unit Three: Introduction DQ97: Airspace Solution Suppose Kentucky adopted a statute that (a) allowed the gas company to store its gas under Ms. Hammonds’s property without paying rent; and (b) prohibited her from extracting it. Suppose Ms. Hammonds then claims this is an unconstitutional taking of her property. Do you think this is the kind of harm the Takings Clause forbids? Why or Why Not?

Apply Cases and Theorists to New Problems: Structure Map Case/HypoGov’t ActAffected Landowner Affected 3d Parties HadacheckNo BrickyardsBrickyard OsNeighbors MahonNo UnderminingCoal Cos.Surface Os MillerVA Cedar Rust ActCedar Tree OsApple Tree Os Penn CentralNYC Historic Preservation Penn CentralTourist Biz; History Buffs Airspace Solution Hypo KY: No Rights to Depleted Gas Pools Surface Os (Hammonds) Gas Cos. Reinserting

DQ136: Airspace Solution (Oxygen) Suppose Kentucky adopted a statute that (a) allowed the gas company to store its gas under Ms. Hammonds’s property without paying rent; and (b) prohibited her from extracting it. Suppose Ms. Hammonds then claims this is an unconstitutional taking of her property. What arguments can you make about “the Airspace Solution” from looking at the four cases together?

DQ136: Airspace Solution (Oxygen) Arguments about “the Airspace Solution” from the four cases? At least: Reduction in value? – Likely trivial if look at whole parcel – 100% if look just at reservoirs Likely no DIBE in using depleted reservoirs Similar to Penn Central: – Significant public benefit – Limiting part of parcel not normally used Physical Invasion, So More Likely a Taking

DQ136: Airspace Solution (Oxygen) Arguments about “the Airspace Solution” from the four cases? Reasonably Necessary to Substantial Public Purpose (LaFalce-B1) – Substantial Public Purpose? Easy Easy (Safety; Energy Costs) – Reasonably Necessary? Probably Not Probably Not Where We Know That Other States Accomplish Same Goal (Through Eminent Domain) Without Completely Removing Surfave Os’ Property Rights

FINAL EXAM QUESTION 3 OPINION/DISSENT FORMAT Requires You to Describe and Defend Two Positions Must Show that You Understand Range of Relevant Arguments Arising from Line of Cases Must Understand Role of US Supreme Court Must Address Difficult Unresolved Qs

Big Qs Left Open by Penn Central Penn Central: Takings Analysis Big Qs Left Open by Penn Central A.Noxious Use Still Relevant? B.Meaning of Distinct Investment-Backed Expectations (DIBE)? C.DIBE & Hadacheck (cf. Mahon) D.Denominator Q E.Heightened Scrutiny for Takings?

FINAL EXAM QUESTION 3 EXAM QUESTION IIID (1998 ) Bart’s Vacant Lot – State Gov’t Builds Prison Next Door – Value Reduced by > 2/3 ($2.2M  $600K)

FINAL EXAM QUESTION 3 EXAM QUESTION IIID (1998 ) Bart’s Vacant Lot: Big Loss in Value due to Prison Next Door Should Big Loss in Value be Taking Where – Property inherited so investment arguably = 0 – No restriction at all on use of parcel – Not stopping any harmful use of O – Caused by proximity to necessary state facility

FINAL EXAM QUESTION 3 EXAM QUESTION IIID (1998 ) Bart’s Vacant Lot: Should Big Loss in Value be Taking Where – Property inherited so investment arguably = 0 – No restriction at all on use of parcel – Not stopping any harmful use of O – Caused by proximity to necessary state facility URANIUMS: We’ll Work Through Some of This in Final Class

FINAL EXAM QUESTION 3 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 new lot Value of (C) drops from $350K to $100K Value of B + C increases from $1M to $1.5M

FINAL EXAM QUESTION 3 EXAM QUESTION IIIF (2001) A owns adjacent garages B & C. New Security rules shut down C. Value of (C) drops from $350K to $100K. Value of B + C increases from $1M to $1.5M Analyze B & C together or separately? Just Looking at C (Signif. Interference w DIBE) – Does strong gov’t purpose justify loss in value? – Matter that harm being stopped not caused by O? – Should court use heightened scrutiny?

FINAL EXAM QUESTION 3 EXAM QUESTION IIIF (2001) Analyze Garages B & C together or separately? Just Looking at C (Signif. Interference w DIBE) – Does strong gov’t purpose justify loss in value? – Matter that harm being stopped not caused by O? – Should court use heightened scrutiny? RADIUMS: We’ll Work Through Some of This in Final Class

Takings Theorist #4: Bruce Ackerman (krypton)

Takings Theorists: Bruce Ackerman DQ137 (krypton) Ackerman Distinguishes Between: “Scientific Policymakers” use technical concepts; abstract principles (e.g., Michelman!!) His focus on “Ordinary Observers,” which asks how people in the culture tend to think about property. (Asks very specific Qs)

Takings Theorists: Bruce Ackerman DQ137 (krypton) Focus on “Ordinary Observers” Ackerman asks very specific Qs re how people in the culture (OOs) tend to think about property. 1 st Q: “Is property in Q literally ‘taken’?” – Source of this Q?

Takings Theorists: Bruce Ackerman DQ137 (krypton) Focus on “Ordinary Observers” Ackerman asks very specific Qs re how people in the culture (OOs) tend to think about property. 1 st Q: “Is property in Q literally ‘taken’?” – Source: Literal Language of 5 th Amdt. – Two situations where OO would answer “yes”?

Takings Theorists: Bruce Ackerman DQ137 (krypton) Ackerman asks very specific Qs re how people in the culture (OOs) tend to think about property. 1.Is property in Q literally “taken”? Means either: a.Gone completely (like an ordinary enterpriser case) b.What’s left is so trivial, “bad joke” to say you still have Examples of “bad joke” cases?

Takings Theorists: Bruce Ackerman DQ137 (krypton) Ackerman asks very specific Qs re how people in the culture (OOs) tend to think about property. 1.Is property in Q literally “taken”? Means either: a.Gone completely (like an ordinary enterpriser case) b.What’s left is so trivial, “bad joke” to say you still have Mahon (if Holmes correct about effect on mining) Nectow (zero value) Causby (hard to imagine way to use)

Takings Theorists: Bruce Ackerman DQ137 (krypton) Ackerman asks very specific Qs re how people in the culture (OOs) tend to think about property. 1.Is property in Q literally “taken”? (Very Specific Q) – Not asking OO if she “likes” the regulation – “Bad Joke” is term of art focused on what’s left – Not “Bad Joke” to Ackerman Just Because : Lot of value lost (check if what’s left is significant) Regulation seems undesirable

Takings Theorists: Bruce Ackerman DQ137 (krypton) Ackerman asks very specific Qs re how people in the culture (OOs) tend to think about property. 1.Is property in Q literally “taken”? What is Second Question?

Takings Theorists: Bruce Ackerman DQ137 (krypton) Ackerman asks very specific Qs re how people in the culture (OOs) tend to think about property. 1.Is property in Q literally “taken”? 2.Is gov’t stopping unduly harmful use of property? – Unduly” suggests some consideration of benefits of use – BUT looks like version of noxious use exception

Takings Theorists: Bruce Ackerman DQ137 (krypton) Ackerman asks very specific Qs re how people in the culture (OOs) tend to think about property. 1.Is property in Q literally “taken”? 2.Is gov’t stopping unduly harmful use of property? Note dual focus of test: First what’s left, then purpose

Relevant Considerations in Takings Cases §B Survey About What Facts Matter (68 Responses) Ban on Intended Use (61): Penn Central (Interference w DIBE) % Reduction in Value (61): Mahon, Epstein, Penn Central $$$ Amount Reduction (42): Purpose of Regulation (37) = Hadacheck; Sax; Mahon; Epstein; Miller; Ackerman (2d Q) (BUT role of purpose unclear after Penn Central) $$$ Amount Left (29) = Kelso; Mahon; Ackerman (1 st Q); Penn Central Return on Investment (18): Penn Central (Interference w DIBE)

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