1. ELEMENTS B POWER POINT SLIDES Class #34 Friday, November 20, 2015 National Absurdity Day

2. BEST OF BLONDIE (Songs 1977-81) OFFICE HOURS – Tuesday: 9:30 -11:00 am – Then Not Until Sat 11/28 NOW ON COURSE PAGE – Comments & Best Answers for Q3 Exam Bank & 2000 Q3 RIGHT NOW Course Evaluations 9:25-9:37 Please Be Specific

3. CLASS #34: FINAL FRIDAY Review Problem 3C(i) (Oxygen) Completion of PC Analysis Ackerman

4. 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 garage on (C) Value of (C) drops: $350K  $100K (Signif. Intf. w DIBE) Value of B + C together increases from $1M to $1.5M (Almost certainly no Taking) Monday: Analyze B & C together or separately? Today: Assume We Are Just Looking at (C) “Right: Totally at (C)”

5. FINAL EXAM QUESTION 3 Review Problem 3C(i) (Oxygen) FROM EXAM QUESTION IIIF (2001) Assume We Are Just Looking at Garage (C) Taking if…? – State bans the current use of the land; – Property value reduced significantly (assume significant interference w DIBE); – BUT Targeted harm is misuse of land by third parties

6. FINAL EXAM QUESTION 3 Review Problem 3C(i) (Oxygen) FROM EXAM QUESTION IIIF (2001) Assume We Are Just Looking at Garage (C) Taking if…? Taking if…? – State bans the current use of the land & property value reduced significantly; BUT – Targeted harm is misuse of land by third parties Different from Rev. Prob. 3B re targeted harm: Different from Rev. Prob. 3B re targeted harm: – Harm would be located on regulated parcel itself. – BUT – BUT Doesn’t flow directly from O’s intended use. Arguments from Authorities & Takings Policy

7. FINAL EXAM QUESTION 3 Review Problem 3C(i) (Oxygen) FROM EXAM QUESTION IIIF (2001) Taking if…? Taking if…? – State bans the current use of the land & property value reduced significantly; BUT – Targeted harm is misuse of land by third parties Different from Rev. Prob. 3B re targeted harm: Different from Rev. Prob. 3B re targeted harm: (should help gov’t) – Located on regulated parcel itself (should help gov’t) (should help O) – Doesn’t flow directly from O’s intended use (should help O)

8. Monday (Class #35: Final Class) Last Unit III DQs Review Problems: 3A(ii) (Uranium & Radium) 3C(ii) (Krypton & Oxygen) Final Lectures: Takings in Perspective Elements in Perspective Thursday Dinner

9. CLASS #34: FINAL FRIDAY Review Problem 3C(i) Completion of Penn Central Analysis Completion of Penn Central Analysis Ackerman

10. Penn Central: Takings Analysis Structure of Penn Central Takings Analysis 1.Overview 2.Relatively Clear Instances of Takings 3.Arguments from Purpose 4.Arguments re Harm to Property O a.Distinct Investment-Backed Expectations b.Denominator Q 5.Means/End Testing

11. Penn Central: Takings Analysis Big Qs Left Open by Penn Central A.Noxious Use B.MEANING OF DISTINCT INVEST- BACKED EXPECTATIONS (DIBE) C.DIBE & Hadacheck D.Denominator Q E.Heightened Scrutiny for Takings?

12. Penn Central Takings Analysis: Arguments re Harm to Property Owner [DQ3.34]: My Read of DIBE (from last time) Expectations = O’s at time of investment (reasonable) Distinct: Specific v. Vague; Separate from Whole Investment-Backed? Specifically paid for Exam Note: – Owner generally had some DIBE at purchase (intended uses) – Check if right affected is specific part of DIBE – Check if interference w DIBE is significant (e.g., no RRR)

13. Penn Central Takings Analysis: Arguments re Harm to Property Owner If My Read of DIBE Correct (from last time) Significance: Protects ag. specific out-of-pocket losses – If O explicitly paid for specific use and state denied that use, may be Taking – If RRR on intended investment, not Taking Suggests different result in Penn Central IF: – O bought parcel last year at higher price b/c of intent re tower OR – O purchased air rights alone

14. Big Qs Left Open by Penn Central Penn Central: Takings Analysis Big Qs Left Open by Penn Central Meaning of DIBE: Difficulties Should gifts/inheritances count as zero investment? Should foregone opportunities count as DIBE: – PC pays $15 Million for Air Rights = DIBE – If PC turns down offer of $15 Million for Air Rights = Same? How prove distinct & investment-backed? – RR Station in PC built with capability to support tower. – Majority doesn’t see as evidence of DIBE in tower (but could)

15. Penn Central Takings Analysis: Arguments re Harm to Property Owner DQ3.41 (fn.13): Dissent: Sees Difficulties w RRR Must determine what rate of return is “reasonable” for different types of property Must determine which piece of property to look at (Denominator Q; we’ll return to in a moment) ME: Also turns Constitutional Q into Battle of Accountants (re Proving Rate of Return)

16. Penn Central Takings Analysis: Arguments re Harm to Property Owner DIBE & PRIOR CASES: Mahon [DQ3.35] Majority’s description of Mahon (p.142): Taking where Act made mining commercially impracticable Nearly same effect as destroying all of rights reserved Note: Doesn’t look at whole parcel (see Denominator Q below) As described, easy case for signif. interference w DIBE: Mineral & Support Rights both distinct & investment-backed Almost all gone (per Holmes) = significant interference Critical that majority accepts Holmes reading of facts

17. Penn Central Takings Analysis: Arguments re Harm to Property Owner DIBE & PRIOR CASES: Miller Probably no significant interference w DIBE Highly unlikely that purchaser would have distinct expectations related to cedar trees As I suggested, under Penn Central analysis, might require payment in rare case where big interference w related DIBE (10,000 Cedars)

18. Penn Central Takings Analysis: Arguments re Harm to Property Owner DIBE & PRIOR CASES: Hadacheck Invested money specifically to build brickworks – Expectations both distinct & investment-backed – Significant interference; investment in building now essentially destroyed (can’t go condo in 1915) Why is Hadacheck OK but Mahon not OK? Why is Hadacheck OK but Mahon not OK? Prior explanations re public nuisance/noxious use seem to be eliminated by majority’s fn30

19. Penn Central: Takings Analysis Big Qs Left Open by Penn Central A.Noxious Use B.Meaning of Distinct Invest-Backed Expectations (DIBE) C.DIBE & HADACHECK D.Denominator Q E.Heightened Scrutiny for Takings?

20. Big Qs Left Open by Penn Central Penn Central: Takings Analysis Big Qs Left Open by Penn Central DIBE & Hadacheck: After Penn Central, Why is Case Different from Mahon? I test this a lot; useful to think about possible answers. Some examples on next slide.

21. Big Qs Left Open by Penn Central Penn Central: Takings Analysis Big Qs Left Open by Penn Central DIBE & Hadacheck: After Penn Central, Why is Case Different from Mahon? Because many uses of parcel remain (v. Mahon: complete loss of mineral rights)? Because Hadacheck is a Miller case (unavoidable choice between brickworks & residential use)? Because unreasonable to expect to continue harming neighbors ? – Though looks like noxious use claim again – Also, could say same re Mahon: Unreasonable to cave in.

22. Penn Central: Takings Analysis Structure of Penn Central Takings Analysis 1.Overview 2.Relatively Clear Instances of Takings 3.Arguments from Purpose 4.Arguments re Harm to Property O a.Distinct Investment-Backed Expectations b.Denominator Q 5.Means/End Testing

23. Penn Central Takings Analysis: Arguments re Harm to Property Owner [DQ3.36] Pet’r: Ordinance = Taking b/c completely deprived us of “air rights.” Majority addresses this claim even though it says it isn’t clear that “air rights” totally deprived (see discussion of DQ3.34 & 3.37)

24. Penn Central Takings Analysis: Arguments re Harm to Property Owner [DQ3.36] Majority Response (p.143) to Pet’r claim: Taking b/c completely deprived usof “air rights.” Can’t establish a Taking simply by saying can’t exploit a property interest that they had believed they could use Elimination of one use of parcel not inherently interference w DIBE (see fn. 27) [MAF: would flow from my explanation of DIBE] Goes on to address Denominator Q

25. Penn Central Takings Analysis: Arguments re Harm to Property Owner Majority on Denominator Q (p.143) “‘Taking’ jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. …

26. Penn Central Takings Analysis: Arguments re Harm to Property Owner Majority on Denominator Q (p.143) “‘Taking’ jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. … [T]his Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole, [here, the city tax block designated as the ‘landmark site.’]” (bold passage in original; missing in my edit)

27. Penn Central Takings Analysis: Arguments re Harm to Property Owner Majority on Denominator Q: Language looks like BDS dissent in Mahon (parcel top to bottom) Don’t divide a single parcel into segments to determine if whole segment gone Look at all of parcel affected by regulation – Here whole block that was designated a landmark – NOTE majority doesn’t look at other nearby parcels owned by PC, so don’t look at all claimant owns

28. Penn Central Takings Analysis: Arguments re Harm to Property Owner Majority on Denominator Q BUT Comparing Treatment of Mahon suggests Majority is not just adopting BDS Dissent May turn on what claimant owns – Maybe looking at parcel in PC b/c Pet’r owned whole parcel – Where claimant in Mahon did not own whole parcel, discussion did not look at whole parcel, but only at rights reserved. Generally would seem possible to have DIBE in particular segment if pay for separately

29. Penn Central: Takings Analysis Big Qs Left Open by Penn Central A.Noxious Use B.Meaning of Distinct Invest-Backed Expectations (DIBE) C.DIBE & Hadacheck D.DENOMINATOR Q E.Heightened Scrutiny for Takings?

30. Big Qs Left Open by Penn Central Penn Central: Takings Analysis Big Qs Left Open by Penn Central Denominator Q Majority on Mahon v. PC  Denominator Q Uncertain Aspect of Denominator Q I’ve Tested a Lot: – Person separately buys two adjacent parcels and uses together – Challenged regulation affects one of the two – To Measure Reasonable Return/DIBE/Loss in Value, when should you look just at affected parcel and when at new combined parcel ?

31. Penn Central: Takings Analysis Structure of Penn Central Takings Analysis 1.Overview 2.Relatively Clear Instances of Takings 3.Arguments from Purpose 4.Arguments re Harm to Property Owner 5.Means/End Testing

32. Penn Central Takings Analysis: Means/End Testing Common Type of Constitutional Analysis Asks if – Means Chosen (Particular State Law) is Sufficiently Well-Designed to Achieve … – An End (State Interest) that is Sufficiently Important

33. Penn Central Takings Analysis: Means/End Testing Common Type of Constitutional Analysis Asks if – Means Chosen (Particular State Law) is Sufficiently Well-Designed to Achieve … – An End (State Interest) that is Sufficiently Important Rational Basis Scrutiny – Means Chosen Must Be Rationally Related to – Legitimate State Interest

34. Penn Central Takings Analysis: Means/End Testing Common Type of Constitutional Analysis Rational Basis Scrutiny – Means Chosen Must Be Rationally Related to – Legitimate State Interest Compare Two Forms of “Heightened Scrutiny”: Strict & Intermediate

35. Penn Central Takings Analysis: Means/End Testing Rational Basis Scrutiny Must be Rationally Related to Legitimate State Interest Used for Ordinary Legislation (where deferring to legislature) Govt Almost Always Wins Strict Scrutiny Strict Scrutiny Must be Narrowly Tailored to Compelling State Interest Used for, e.g., Lines Drawn on Basis of Race, Religion, Speakers’ Point of View Govt Almost Never Wins

36. Penn Central Takings Analysis: Means/End Testing: Heightened Scrutiny Intermediate Scrutiny Must be Reasonably Necessary to Substantial State Interest Used for, e.g., Lines Drawn on Basis of Sex; Restrictions on Commercial Speech Govt Sometimes Wins Strict Scrutiny Strict Scrutiny Must be Narrowly Tailored to Compelling State Interest Used for, e.g., Lines Drawn on Basis of Race, Religion, Speakers’ Point of View Govt Almost Never Wins

37. Penn Central Takings Analysis: Means/End Testing Majority Discussion of Zoning (p.141) US SCt had previously “upheld land-use regulations that destroyed or adversely affected recognized real property interests” where State gov’t “reasonably concluded” that forbidding particular land use would promote HSWM. – Looks like applying Rational Basis Scrutiny BUT

38. Penn Central Takings Analysis: Means/End Testing Majority (p.142): “It is, of course, implicit in Goldblatt that a use restriction on real property may constitute a ‘taking’ if not reasonably necessary to the effectuation of a substantial public purpose….” Looks like Intermediate Scrutiny test BUT majority never explicitly applies test to PC facts. BUT If majority thinks test applies, it must believe Miller, Hadacheck & Penn Central all pass test.

39. Penn Central: Takings Analysis Big Qs Left Open by Penn Central A.Noxious Use B.Meaning of Distinct Invest-Backed Expectations (DIBE) C.Denominator Q D.DIBE & Hadacheck E.HEIGHTENED SCRUTINY FOR TAKINGS?

40. Big Qs Left Open by Penn Central Penn Central: Takings Analysis Big Qs Left Open by Penn Central Heightened Scrutiny for Takings? Some Language in Majority Supporting Both Rational Basis and Intermediate Scrutiny I’ll Talk About Why It Matters in Final Lecture Can Use Intermediate Scrutiny Test on Exam – Can Cite to Passage in PC re Goldblatt – Should Try to Defend – Should Try to Defend That Use is a Good Idea for Some or All Takings Cases

41. CLASS #34: FINAL FRIDAY Review Problem 3C(i) Completion of PC Analysis Ackerman

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

43. Takings Theorists: Bruce Ackerman DQ3.44 (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)

44. Takings Theorists: Bruce Ackerman DQ3.44 (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”?

45. Takings Theorists: Bruce Ackerman DQ3.44 (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.Literally gone completely (like an ordinary enterpriser case).

46. Takings Theorists: Bruce Ackerman DQ3.44 (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.Literally gone completely (like an ordinary enterpriser case). b.What’s left is so trivial, “bad joke” to say you still have property. Examples of “bad joke” cases from those we’ve looked at?

47. Takings Theorists: Bruce Ackerman DQ3.44 (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) Kelso (if looking only at rock you can’t quarry)

48. Takings Theorists: Bruce Ackerman DQ3.44 (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 term of art what’s left – “Bad Joke” is term of art focused on what’s left – Not “Bad Joke” to Ackerman Just Because : undesirable Regulation seems undesirable to OO valuewhat’s left Lot of value lost (Check if what’s left is significant as in Hadacheck or Penn Central)

49. Takings Theorists: Bruce Ackerman DQ3.44 (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

50. Takings Theorists: Bruce Ackerman DQ3.44 (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

51. Ackerman Applied DQ3.45 (Krypton) 1.Is property in Q literally “taken”? Means: a.Gone completely (OR) b.What’s left is so trivial, “bad joke” to say you still have 2.Is gov’t stopping unduly harmful use of property? Apply to Hadacheck? Apply to Mahon?

52. Ackerman Applied DQ3.45 (Krypton) 1.Is property in Q literally “taken”? Means: a.Gone completely (OR) b.What’s left is so trivial, “bad joke” to say you still have 2.Is gov’t stopping unduly harmful use of property? Apply to Miller? Apply to Penn Central? Apply to Airspace Solution?