1. PROPERTY D SLIDES 2-17-14

2. Monday Feb 17 Music: The Magic Time Travelers: 1964 Greatest Hits Reminder: Whole class (divided alphabetically) on call for problems on Intestacy Statutes (DQs 3.01-3.06) that we’ll start tomorrow.

3. PROPERTY D: 2/17 A Brief 50 th Anniversary Tribute to the Year in Music : 1964 Deaths : Eddie Cantor, Harpo Marx, Cole Porter Births : Tracy Chapman, Wynona Judd, Diana Krall, Lenny Kravitz, Eddie Vedder

4. The Year in Music : 1964 The Beatles The Supremes

5. The Year in Music : 1964 Singles Released (not Beatles or Supremes) Include: Oh, Pretty Woman The Way You Do the Things You Do Little Old Lady from Pasadena Dancing in the Streets I’m Into Something Good House of the Rising Sun

6. The Year in Music : 1964 1 st Albums: Rolling Stones, Simon & Garfunkel Groups Formed: The Byrds; The Who; Three Dog Night; The Moody Blues; Lynyrd Skynyrd; Velvet Underground; Caesar & Cleo

7. The Year in Music : 1964 Musical Films: My Fair Lady; Mary Poppins; Hard Days Night Famous Movie Themes: Pink Panther; Goldfinger Pink Panther; Goldfinger Musical Theater: Funny Girl; Fiddler on the Roof; Hello, Dolly

8. 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) 2.State Tests for Public Use a. Poletown (& Rev. Prob. 2B) b.City Of Seattle c.Hatchcock

9. Previously in Property D “Public Use” as a Limit on Eminent Domain 1.Federal Deference to State Legislation 2.State Tests for Public Use 3. Kelo: Clarification or Change in Direction? a.Majority Opinion b.Kennedy Concurrence c.O’Connor Dissent

10. 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 (continued) Review Problems

11. Kelo Dissents OCR Dissent joined by RNQ SCA THS Justice O’Connor in her dissent in Kelo distinguishes Midkiff: Govt Purpose/ Public Benefit… Was Purchase Itself in Midkiff (& Berman) Was Resulting Private Ownership in Kelo Test implicitly is Hatchcock Situation #3

12. ARCHES: DQs 2.17-2.18 DELICATE ARCHES

13. Kelo Dissents: DQ2.17 (Arches) THS Dissent His alone (pretty common) Rests on his sense of original understanding (probably correct but see delegation examples in Note 7 (P197)) Would adopt rule: Gov’t Must Own -OR- Public Must Have A Right to Use Probably includes privately owned railroads, public utilities, stadiums (See OCR Dissent, which THS joined)

14. Kelo Dissents: DQ2.17 (Arches) THS Dissent Would adopt rule : Govt Must Own -OR- Public Must Have A Right to Use Rests on his sense of original understanding Looks Like City of Seattle Strengths of that approach? Weaknesses of that approach?

15. Kelo Dissents: DQ2.17 (Arches) Why does Justice Thomas believe that the interests of poorer citizens and people of color are particularly threatened by the majority’s approach? Convincing?

16. Kelo Dissents: DQ2.17 (Arches) (P192) THS refers to Carolene Products FN4 “discrete & insular minorities” Suggests less deference appropriate Not clear how he would apply in practice To get Heightened Scrutiny because of these concerns, normally would need very strong evidence of discriminatory purpose by govt (hard to do ) Qs on Kelo Dissents?

17. Other Approaches: DQ2.18 (Arches) Professor Merrill’s Approach (Note 5 P196) Use of EmDom Must Be Necessary to Accomplish Project Hatchcock Situation #1, Applied to ALL EmDom (Not Just Cases Where Private Party Gets Land) Might be met in cases like Kelo where you need to assemble a very larger parcel Fact Q in case like Poletown (but Mich SCt thinks not met)

18. Other Approaches: DQ2.18 (Arches) Professor Merrill’s Approach (Note 5 P196) Use of EmDom Must Be Necessary to Accomplish Project What are the strengths and weakness of this approach compared to those used by the cases in this chapter?

19. 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 Setting Up Rev. Problem 2G for Tomorrow Rev. Problem 2C

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

21. 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].

22. 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 Arising 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

23. FINAL EXAM QUESTION 3 OPINION/DISSENT Task: Choose & Defend Rules for a Specific Legal Issue 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 Acknowledge & Address Problems w Own Position Address Other Side’s Best Points

24. 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.)

25. Review Problem 2G Tomorrow On test, you would choose rules you’d like to defend, but for clarity tomorrow: Redwood will defend Hatchcock Rule Yellowstone will defend pure Rational Basis For critique, Shenandoah will treat Redwood/Hatchcock as Plaintiff Yellowstone/Ratl. Basis as Defendant

26. Review Problem 2G Tomorrow Redwood will defend Hatchcock Rule Yellowstone will defend pure Rational Basis Sequence of Qs Addressed: Why Each Particular Hatchcock Situation is/isn’t a Useful Test for Public Use Why Rational Basis is/isn’t a Useful Test for Public Use Why the Rule You Are Defending is Preferable to the Primary Beneficiary Test from Poletown

27. Review Problem 2G Tomorrow Keep in Mind: Cases treat government as equivalent to public for purposes of Public Use tests Cases do not consider extent of harm to owners whose land will be purchased or value to public of uses lost You can use facts of particular case as an example to illustrate a particular argument for or against a rule. Useful to try to address arguments raised by lower courts Qs on Review Problem 2G?

28. Review Problem 2C City developing Museum on own land next to OG OG = Slightly rundown neighborhood w shabby but occupied apt complexes, warehouses, and a few small businesses (incl. pawnshop & XXX bookstore). Developer D wants to develop 24-sq-block part of OG into mixed-use project containing residences, offices, stores and restaurants. City uses EmDom to purchase area & resell to D contingent on her building proposed project.

29. REVIEW PROBLEM 2C Under Rational Basis Test Purpose of Program? Upgrade N-Hood; Improve Museum prospects Legitimate? (Connected to Health, Safety, Welfare, Morals) Legit: Both are welfare Program Rationally Related to Purpose? Plausible that Successful Developer Can Upgrade Neighborhood? YES Plausible that Better Neighborhood Helps Increase Visits to Museum? YES EASY CASE UNDER RATIONAL BASIS

30. REVIEW PROBLEM 2C EASY CASE UNDER RATIONAL BASIS Q under Kelo Majority & KND Concurrence: Does the Situation Here Warrant Greater Scrutiny or is Pure Rational Basis the Appropriate Test

31. YELLOWSTONE (Rev. Prob. 2C: Critique) GIANT GEYSER

32. Critique of Review Problem 2C (Yellowstone) For General Instructions See Info Memo #1 @ IM10 Plaintiffs = Arguments Favoring Greater Scrutiny Defendants = Arguments Favoring Pure Rational Basis Written Submission Due by E-Mail Wednesday 2/19 @ 10 am E-Mail me if Qs

33. SHENANDOAH (REVIEW PROBLEM 2C) APPALACHIAN TRAIL

34. Shenandoah: REVIEW PROBLEM 2C Favoring Greater Scrutiny (Plaintiffs) Lehtinen, Doug Block, Jordan Sattler, Brian McCarten, Andrew Alternate: Raijman, Gina Favoring Pure Rational Basis (Defendants) Schindler, Andrew Rostock, Patrick Oña, Katerina Shawn, Michael Alternate: Perez, Priscilla

35. Shenandoah: REVIEW PROBLEM 2C Favoring Greater Scrutiny (Ps) Lehtinen, Doug Block, Jordan Sattler, Brian McCarten, Andrew Alternate: Raijman, Gina Facts/Aspects Of Problem That Might Point To Greater Scrutiny Under Kelo Majority or KND? Favoring Pure Rational Basis (Ds) Schindler, Andrew Rostock, Patrick Oña, Katerina Shawn, Michael Alternate: Perez, Priscilla Counter-Arguments re Same Facts?

36. Shenandoah: REVIEW PROBLEM 2C Favoring Greater Scrutiny (Ps) Lehtinen, Doug Block, Jordan Sattler, Brian McCarten, Andrew Alternate: Raijman, Gina Counter-Arguments re Same Facts? Favoring Pure Rational Basis (Ds) Schindler, Andrew Rostock, Patrick Oña, Katerina Shawn, Michael Alternate: Perez, Priscilla Facts/Aspects Of Problem That Might Point To Rational Basis Under Kelo Majority or KND?

37. Shenandoah: REVIEW PROBLEM 2C Favoring Greater Scrutiny (Ps) Lehtinen, Doug Block, Jordan Sattler, Brian McCarten, Andrew Alternate: Raijman, Gina Arguments Looking at Problem as a Whole Favoring Pure Rational Basis (Ds) Schindler, Andrew Rostock, Patrick Oña, Katerina Shawn, Michael Alternate: Perez, Priscilla Arguments Looking at Problem as a Whole

38. Chapter 3: Where There’s a Will … and Where There Isn’t: Property Transfer at Death General Introduction General Introduction Intestate Succession Generally Working with Specific State Statutes Wills Generally Will Formalities Substantial Compliance State of Mind Requirements

39. Past, Present & Future: Property Rights & Time

40. Time Three Ways Chapter 3: Transfer of Property at Death Intestacy & Wills  Inevitable Part of Passing of Time Chapter 4: Estates & Future Interests Division of Interests in Land by Time  Some Leftover Ideas from Early Renaissance England Chapter 5: Adverse Possession Operation of Statute of Limitations to Trespass Claims  Property Rights Lost & Gained Through Passage of Time

41. Chapter 3: Key Technique Issues Close Work w Statutory Language, Especially re Intestacy Bright-Line Rules v. Flexible Standards Will Formalities: Rigid rules re how to to create valid will v. Doctrine of Substantial Compliance v. Fuzzy doctrines re needed state of mind

42. Chapter 3: Where There’s a Will … and Where There Isn’t: Property Transfer at Death General Introduction Intestate Succession Intestate Succession Generally Generally Working with Specific State Statutes Wills Generally Will Formalities Substantial Compliance State of Mind Requirements

43. Intestate Succession: Generally Transition from Chapters 1 & 2: Important form of Involuntary Transfer What state does if you die without leaving valid instructions (proper will) as to disposition of some or all of your property Every State has detailed statute governing Gen’l Info: Overview in Supplement & My Intro Today Then we’ll go through three examples in detail (FL + HI + VT) DQ3.01-3.06 Allocated Alphabetically We’ll start after Review Problem 2G Tomorrow Be ready with answers & cites to relevant provisions Find definitions in materials & elsewhere as needed

44. Intestate Succession: Generally Generally on Disposition of Property Statutes All Provide Sequence of Ifs Unsurprisingly, strong bias to immediate family Most people would prefer State interest in resources going to care for dependents Takers are generally spouses and blood relatives EXCEPT: Some states as last resort, to step-children or other relatives of deceased spouse EXCEPT: A few states recognize certain spouse-equivalents See Hawaii (S40-42: Reciprocal Beneficiaries) See Vermont (S44: Parties to Civil Union)

45. Intestate Succession: Generally Generally on Disposition of Property Property & Spouses Spousal Share Seems Small in Some States BUT Spouse often co-owner of key assets, so gets all In Community Property States, everything earned during marriage is essentially co-owned Often separate provisions re household goods & car Escheat: If no Qualified Taker Under Statute, Goes to State Every state does this (E.g., Florida (S38) & Hawaii (S41)) Note special Hawaii provision for land granted from Hawaiian Royal Family (cf. Midkiff)

46. Intestate Succession: Generally Other Typical Provisions Who Counts as Relative (Adoption/Illegitimacy) E.g., Fl.Stat. § 732.108 (S39) Simultaneous Death E.g., Fl.Stat. § 732.601 (S39); Haw. Stat. §360.2- 104 (S41); 14 V.S. §337 (S44) General Qs on Intestacy?