PROPERTY D SLIDES NATIONAL ALMOND DAY

Tuesday Feb 16 Music to Accompany Kelo: Michael Bublé, It’s Time (2005) Lunch Today: Meet on 12:25 Dornfeld * Greenberg Kalbac * Khan * O’Brien Rattinger * Sauer On Course Page Chapter 3 Supplement Chapter 4 Supplement Updated Syllabus Updated Assignment Sheet Instructions for Submitting Sample Exam Answers

Previously in Property D Finished Work on Chapter 1 Finished Work on Chapter 1 Right to Exclude & Parcels Open to Public JMB & First Amendment Access to Malls Finished DQs Review Problems 1I & 1K(i) Intro to XQ4: Issue-Spotter Intro to XQ4: Issue-Spotter

Previously in Property D “Public Use” as a Limit on Eminent Domain 1.Federal Deference to State Legislation a. Berman and Midkiff b.Operation of the Rational Basis Test (& Rev. Prob. 2A): i.“Rationally Related” as Term of Art ii.Might Think of as “ASH”: Arguably Slightly Helpful 2.State Tests for Public Use a. Poletown b.Hatchcock 3. Kelo & Possible Additional Federal Limits (Started)

Previously in Property D Keep in Mind… “Public Use” as a Limit on Eminent Domain: Keep in Mind… 1.Federal Structure a.Every case has to pass federal test Very deferential under Midkiff/Berman Possible tighter scrutiny for some cases under Kelo b.Then check relevant state law (often more rigorous tests) 2.Skills emphasis for Chapter 2 is applying legal tests a.Need to know & understand all tests we work with b.Need to apply one factor or clause at a time

Chapter 2: The Eminent Domain Power & the Public Use Requirement Federal Constitutional Background State Public Use Standards State Public Use Standards Poletown Test: Review Problem 2B Poletown Test: Review Problem 2B Hatchcock Test: Review Problem 2C Kelo & Beyond

Review Problem 2B Review Problem 2B City losing $$$ b/c consumers prefer shopping at newer shopping centers outside city limits City program (TAFURI) allows developers to propose plans to replace older shopping w new shopping/residential If approved, city buys site w EmDom, then leases site to developer Under program, city approved plan to replace particular shopping center (OCSC)

Review Problem 2B Review Problem 2B (S28) EVERGLADES: (Arguments for Plaintiffs/Landowners) SEQUOIA: (Arguments for Defendant/City) BADLANDS: (Critique; See Instructions at Bottom of Assmt Sheet) Badlands Submission Due Thursday 10:00 a.m. (i)Identify facts in the problem that are different from those in Poletown and be prepared to argue whether those facts should affect the outcome. (ii)Apply the legal standards from Poletown described in DQ2.09 to the problem.

Critique of Review Problem 2B (Badlands) See General Bottom of Assignment Sheet Paragraphs 1 & 2: Address Arguments Favoring the Landowners (either about the significance of a particular fact or about the application of the Poletown tests) Paragraphs 3 & 4: Address Arguments Favoring the City (either about the significance of a particular fact or about the application of the Poletown tests) Written Submission Due by Thursday 10 a.m. me if Qs

Review Problem 2B Everglades (Landowners) v. Sequoia (City) Identify facts in the problem that are different from those in Poletown and argue that they help your client’s position.

Review Problem 2B Everglades (Landowners) v. Sequoia (City) (ii) Apply the legal standards from Poletown (1)Public must be “primary beneficiary” & private benefit merely “incidental.” Possible readings: a.Quantitative weighing of public v. private benefit b.Primary purpose c.Who is driving the deal? (raised by Poletown dissent)

Review Problem 2B Everglades (Landowners) v. Sequoia (City) (ii) Apply the legal standards from Poletown 2)Public benefit must be “clear and significant” “Clear” as opposed to “speculative” “Significant” as opposed to “marginal”

Review Problem 2B (ii) Apply the legal standards from Poletown NOTE: May depend on whether court looks at whole TAFURI program or just this project.

Chapter 2: The Eminent Domain Power & the Public Use Requirement Federal Constitutional Background State Public Use Standards Kelo & Beyond Kelo & Beyond Kelo Majority & Kennedy Concurrence Facts of Kelo & Application of Earlier Tests (cont’d) Legal Analysis Application to Poletown Review Problem2D Kelo Dissents & Merrill Review Problem 2G

Facts of Kelo Response to Run-Down Area/Econ. Difficulties in New London, CT Response to Run-Down Area/Econ. Difficulties in New London, CT Project = Multi-Use Integrated Economic Development Project = Multi-Use Integrated Economic Development 1.Incorporates Office Space, Residences, Retail, Parking, Park, Museum, Marina, Hotel/Conference Center 2.Next to Pfizer Site, but Pfizer not Part of Project (cf. Poletown) Plaintiffs = Homeowners Whose Lots are not Blighted Plaintiffs = Homeowners Whose Lots are not Blighted 1.Under plan, becoming retail, office or parking 2.Assisted by Non-Profit Organizations Favoring Strong Property Rights 3.Primary claim is that shouldn’t be able to transfer from 1 private party to another if only purpose is to achieve economic development

ACADIA: DQs 2.12(b)-2.13 Acadia Sunrise

DQ2.12(b) (Acadia) Legal Treatment of New London Project under Poletown Tests I’ll leave specifics for you, BUT New London probably a strong case to satisfy the tests b/c: Great size & scope of project Serious economic problems Comprehensive planning Kennedy references “Primary Beneficiary” test, so he presumably thinks Kelo facts meet test

DQ2.12(c) (Acadia) Legal Treatment of New London Project under Hatchcock 1.Public Necessity: Type of Project is important/vital & only way to do project is through Eminent Domain? 2.Accountability: Private entity remains responsible to public for its use 3.Selection: Particular parcel(s) chosen based on facts of independent public significance.

DQ2.12(c) (Acadia) Legal Treatment of New London Project under Hatchcock 1.Public Necessity: Type of Project is important/vital & only way to do project is through Eminent Domain Importance of Project easy to defend Only Way to Do? Hard to assemble Project this big w/o EmDom unless it could work with gaps. P172: Case says most of land already purchased directly so EmDom is being used only for “unwilling owners.” BUT: Hatchcock itself addressed a 1300-acre site and court said didn’t meet test. [Maybe OK to have gaps in industrial park?]

DQ2.12(c) (Acadia) Legal Treatment of New London Project under Hatchcock 1.Public Necessity: Type of Project is important/vital & only way to do project is through Eminent Domain 2.Accountability: Private entity remains responsible to public for its use. No evidence of this in case; seems unlikely. 3.Selection: Particular parcel(s) chosen based on facts of independent public significance?

DQ2.12(c) (Acadia) Legal Treatment of New London Project under Hatchcock 1.Public Necessity: Type of Project is important/vital & only way to do project is through Eminent Domain 2.Accountability: Private entity remains responsible to public for its use. 3.Selection: Particular parcel(s) chosen based on facts of independent public significance? OCR says not. A lot of land in Q wasn’t blighted and was chosen simply to put to a better economic use.

Chapter 2: The Eminent Domain Power & the Public Use Requirement Federal Constitutional Background State Public Use Standards Kelo & Beyond Kelo & Beyond Kelo Majority & Kennedy Concurrence Facts of Kelo & Application of Earlier Tests Legal Analysis Application to Poletown Review Problem2D Kelo Dissents & Merrill Review Problem 2G

Federal “Public Use” Standards: Kelo Recap: MIDKIFF  KELO Midkiff decided in 1984 Rational Basis = Test for “Public Use” in 5 th Amdt Means “Public Use” Provides Almost no Limit on Eminent Domain However, not very controversial at time Kelo decided in 2005: As noted, US more conservative & more concerned w Property Rts USSCt very different than in 1984

US SCt 1984  2005 & Introduction to US SCt Abbreviations Burger, CJ (1969) (BGR)*  Rehnquist CJ (1986) (RNQ)* Rehnquist (1972) (RNQ)*  Scalia (1986) (SCA)* Powell (1972) (PWL)*  Kennedy (1988) (KND)* Brennan (1956) (BNN)*  Souter (1990) (SOU)* Marshall (1965) (MSH)  Thomas (1991) (THS)* White (1962) (WHT)  Ginsberg (1993) (GIN) Blackmun (1970) (BMN)*  Breyer (1994) (BRY) Stevens (1975) (STV)* O’Connor (1981) (OCR)* * = Appointed by Republican President

Federal “Public Use” Standards: Kelo Recap: MIDKIFF  KELO Kelo essentially brought by Conservative NGOs [Non- Governmental Organizations] Focused on Property Rights NGOs represented homeowners (who can’t otherwise afford to take case to US SCt) Hoped that change in Justices & American politics would lead USSCt to overrule or limit Midkiff

Federal “Public Use” Standards: Kelo Majority Opinion NARROW HOLDING Upholds Specific New London Development Plan Rejects Plaintiffs’ Claim that There Should Be Blanket Exception to Public Use Deference when EmDom Used for Economic Development Rest is Dicta (Dicta, Schmicta)

Federal “Public Use” Standards: Kelo Majority Opinion Largely Reiterates Points from Earlier Cases Reaffirms Berman and Midkiff “Public Use” just means Public Purpose (P175) Assess plan as a whole; don’t look at individual parcels Ending up in private hands not bar to “Public Use” Private Ownership may be good way to accomplish public goals (P178) Actual use by public (e.g., RR) constitutes Public Use, but not required

Federal “Public Use” Standards: Kelo Majority Opinion DQ2.13 & Deference Kelo majority gives legislatures “broad latitude in determining what public needs justify the use of the takings power.” Arguments we’ve seen supporting deference include: Arguments we’ve seen supporting deference include: Democratic Theory Institutional Competence (See OCR P181-82: courts ill-equipped to evaluate efficiency of programs or necessity of using EmDom) Federalism/Local Control: States can choose to have stricter rules if they want/need to better control their own municipalities (P178; see also Federalism Discussion on P176-77)

Federal “Public Use” Standards: Kelo Majority Opinion DQ2.13 & Deference Kelo majority gives legislatures “broad latitude in determining what public needs justify the use of the takings power.” Dangers/concerns re broad deference include: Dangers/concerns re broad deference include: Corruption Power of $$$/Lobbyists/Special Interests/Politically Connected Arguably Renders Public Use Clause Meaningless OCR Dissent: “Hortatory Fluff”; Redundant w Due Process Clause THS Dissent: “Nullity”

Federal “Public Use” Standards: Kelo DQ2.14: Limits on Deference Kelo majority gives legislatures “broad latitude in determining what public needs justify the use of the takings power.” Today: Today: I’ll go through limits suggested by Majority and by Justice Kennedy, then show how they might apply to facts of Poletown. Friday: Analysis for Rev. Prob. 2D (OLYMPIC): Friday: Analysis for Rev. Prob. 2D (OLYMPIC): Identify Facts that Majority or Kennedy Might Say Suggest Rational Basis Inappropriate Discuss Whether, Overall, Enough Reasons for Concern to Forego Deference/Rational Basis

Federal “Public Use” Standards: Kelo Majority Opinion DQ2.14: Limits on Deference If sole purpose is private benefit, not OK (P174) If sole purpose is private benefit, not OK (P174) BUT OCR: Complicated determination; hard to tell (P182) Transfer from one citizen to another of one parcel b/c latter will put to more productive use: suspicious if outside of integrated development plan Transfer from one citizen to another of one parcel b/c latter will put to more productive use: suspicious if outside of integrated development plan (Middle para. P178) List of Helpful Facts List of Helpful Facts (P177) (maybe problematic if not there?): State Statute authorizing Local Gov’ts to Use EmDom for Economic Development Comprehensive Plan Thorough Deliberation

Federal “Public Use” Standards: Kelo Majority Opinion DQ2.14: Limits on Deference QUESTIONS ON MAJORITY OPINION?

Federal “Public Use” Standards: Kennedy Concurrence DQ2.14: Limits on Deference Overview of Concurrence KND seems to suggest more serious examination than ordinary deference: “meaningful rational basis review.” (P179) Long discussion on P of possible considerations. BUT refuses to articulate a specific set of rules or procedures, and OCR chides him for lack of guidance for future cases (P182).

Federal “Public Use” Standards: Kennedy Concurrence DQ2.14: Limits on Deference (Biscayne) Why is Kennedy Concurrence Especially Important?

Federal “Public Use” Standards: Kennedy Concurrence DQ2.14: Limits on Deference KND’s Articulated Concerns/Limits (1)No deference if clear showing that EmDom intended to favor a particular private party w only incidental or pretextual public benefit. (P179) Really arguing purpose is illegitimate b/c benefit to public is either: Incidental = Trivial OR Pretextual = False or Implausible both Like primary beneficiary test looking at both effects and purpose OCR argues that this test is not helpful because public and private benefits so intertwined in economic development cases (P183)

Federal “Public Use” Standards: Kennedy Concurrence DQ2.14: Limits on Deference KND’s Articulated Concerns/Limits (2) If plausible accusation of impermissible favoritism: Close review of record required Although presumption that govt acted reasonably remains Triggers O’Connor’s “stupid staffer” comment; she means savvy officials can manage/manipulate record to hide problems.

Federal “Public Use” Standards: Kennedy Concurrence DQ2.14: Limits on Deference KND’s Articulated Concerns/Limits Might be (3) Might be private transfers where risk of favoritism so high, need presumption of invalidity As opposed to (2), where he says even plausible accusation of favoritism doesn’t create this presumption. No specific examples given!! No specific examples given!! He follows this statement with list of facts on P180 that are protections ag. “favoritism”; if some or all of these are missing, could argue “presumption of invalidity” should apply.

Federal “Public Use” Standards: Kennedy Concurrence DQ2.14: Limits on Deference KND’s Articulated Concerns/Limits (4) Facts constituting protections against favoritism (P180) (4) Facts constituting protections against favoritism (P180) a. Comprehensive plan b. Serious city-wide economic crisis c. Real economic benefit d. Identity of beneficiaries mostly unknown (like Midkiff) e. Elaborate procedures to produce reviewable record

Federal “Public Use” Standards: Kennedy Concurrence DQ2.14: Limits on Deference KND’s Articulated Concerns/Limits No deference if clear showing that ED intended to benefit particular private party w only incidental or pretextual public benefit. Close review of record if plausible assertion of favoritism Private transfers where risk of favoritism so high, presume invalidity Facts from Kelo constituting protections a. Comprehensive plan b. Serious city-wide economic crisis c. Real economic benefit d. Identity of beneficiaries mostly unknown (like Midkiff) e. Elaborate procedures to produce reviewable record Qs on Concurrence?

Chapter 2: The Eminent Domain Power & the Public Use Requirement Federal Constitutional Background State Public Use Standards Kelo & Beyond Kelo & Beyond Kelo Majority & Kennedy Concurrence Facts of Kelo & Application of Earlier Tests Legal Analysis Application to Poletown (Setting Up Rev Prob 2D for Friday) Review Problem2D Kelo Dissents & Merrill Review Problem 2G

Federal “Public Use” Standards: Limits on Deference Applied to Facts of Poletown Majority’s Articulated Concerns/Limits P  If sole purpose is private benefit, not OK: P  P  Transfer from one citizen to another of one parcel b/c latter will put to more productive use: suspicious if outside of integrated development plan: P  List of Helpful Facts (maybe problematic if not there): P  State Statute authorizing EmDom for econ. development: P  P  Comprehensive Plan & Thorough Deliberation: P 

Federal “Public Use” Standards: Limits on Deference Applied to Facts of Poletown KND’s Articulated Concerns/Limits P  No deference if clear showing that ED intended to benefit particular private party w only incidental or pretextual public benefit. P  P  Close review of record if plausible assertion of favoritism P  P  ??? Risk of favoritism so high, presume invalidity: P  ???

Federal “Public Use” Standards: Limits on Deference Applied to Facts of Poletown KND’s Articulated Concerns/Limits Facts from Kelo constituting protections (P180) Facts from Kelo constituting protections (P180) Not P a. Comprehensive plan: Not P P b. Serious city-wide economic crisis: P P c. Real economic benefit: P Not P d. Identity of beneficiaries mostly unknown (like Midkiff): Not P Unclear e. Elaborate procedures to produce reviewable record: Unclear

Federal “Public Use” Standards: Limits on Deference Applied to Facts of Poletownm Hard Q re Poletown: Is acceding to GM’s specific demands “favoritism” or sensible way to achieve big economic benefit?

Chapter 2: The Eminent Domain Power & the Public Use Requirement Federal Constitutional Background State Public Use Standards Kelo & Beyond Kelo & Beyond Kelo Majority & Kennedy Concurrence Kelo Dissents & Merrill Review Problems Review Problems Setting Up Rev. Problem 2G for Friday Setting Up Rev. Problem 2G for Friday Rev. Problem 2D

FINAL EXAM QUESTIONS Choose Three of Four XQ1: LAWYERING XQ2: SHORT ANSWERS (Choose Three of Four) XQ3: OPINION/DISSENT XQ4: TRADITIONAL ISSUE-SPOTTER

FINAL EXAM QUESTION 3 OPINION/DISSENT Instructions Will Say (Roughly) … Based on the information presented here, draft the analysis sections of a majority opinion for the [U.S. or Name-of-State] Supreme Court and of a shorter concurrence or dissent, deciding [the legal question indicated].

FINAL EXAM QUESTION 3 OPINION/DISSENT Task: Choose & Defend Rules for a Specific Legal Issue Describe and Defend Two Positions Utilize Range of Relevant Arguments from Course. E.g., Policy from Relevant Area Ease of Application/Institutional Competence Likely Effects on Behavior of Relevant Parties Application to Facts & Resolution of Case Much Less Important Than Defense of Rule

FINAL EXAM QUESTION 3 OPINION/DISSENT Task: Choose & Defend Rules for a Specific Legal Issue Take on Role of US/State Supreme Court Take on Role of US/State Supreme Court Setting Rules for Lots of Cases While Deciding One Case Can Choose to Affirm or Modify Precedent; Must Defend Ideally Both Opinions Address Own Weaknesses Ideally Both Opinions Address Own Weaknesses Acknowledge & Address Problems w Own Position Address Other Side’s Best Points

FINAL EXAM QUESTION 3 OPINION/DISSENT Instructions for 2G (Spring 2013) Compose drafts of the analysis sections of both: (a) a majority opinion for the Court, determining the legal standards that should apply and defending your choice; and (b) a shorter opinion arguing that the Court should apply different legal standards than those adopted by the majority and defending this position. (If the result in this case under this test is the same as under the majority’s test, call this a concurrence; otherwise, call it a dissent.)

Review Problem 2G Friday On test, you could choose any two plausible rules to defend in your two opinions. For clarity Friday, we’ll look do the following (be ready for both sides): ACADIA: Pros & Cons of Hatchcock Public Necessity Test ACADIA: Pros & Cons of Hatchcock Public Necessity Test BADLANDS: Pros & Cons of Hatchcock AccountabilityTest BADLANDS: Pros & Cons of Hatchcock AccountabilityTest EVERGLADES: Pros & Cons of Hatchcock Selection Test EVERGLADES: Pros & Cons of Hatchcock Selection Test SEQUOIA: Pros & Cons of Pure Rational Basis Generally SEQUOIA: Pros & Cons of Pure Rational Basis Generally