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

2. 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

3. 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

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

5. 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

6. 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)

7. 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?

8. 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)

9. 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?

10. 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]

11. 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

12. 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)

13. 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

14. 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

15. 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.)

16. 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?

17. 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)

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

19. 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

20. 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.]

21. 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)?

22. 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

23. 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.

24. 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?

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

26. 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)

27. 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

28. 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)

29. 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

30. 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

31. 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

32. 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

33. 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

34. Into the Woods (1986)

35. 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)

36. I Know Things Now (p.155)

37. Thoughts on Emerging from the Dark Slimy Path