1. ELEMENTS B POWER POINT SLIDES Class #35 Monday, November 23, 2015 National Espresso Day (“It’s OK to be Latte”)

2. F LEETWOOD M AC : G REATEST H ITS R ECORDINGS 1975-88 MONDAY 11/30: REVIEW SESSION 2:00 Here Optional but Strongly Recommended Optional but Strongly Recommended Will Tape and Post Slides & Link to Video Will Tape and Post Slides & Link to Video Mostly Exam Technique for Each Type of Q Mostly Exam Technique for Each Type of Q A Little Bit of Substance on Takings A Little Bit of Substance on Takings Helpful to Look at 2014 Exam Qs Beforehand Helpful to Look at 2014 Exam Qs Beforehand At End I’ll Take Qs on Technique, Then Substance At End I’ll Take Qs on Technique, Then Substance

3. Class #35: Final Class DQs Closing Up Unit III DQs Closing Up Unit III Review Problems 3A(ii) & 3C(ii) Review Problems 3A(ii) & 3C(ii) Final Lectures Final Lectures

4. 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?

5. 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)

6. Penn Central: Takings Analysis DQ3.42 What rules can you derive from the majority in Penn Central? results Implicit: Rules must be consistent with results of earlier cases (nothing overruled). meaning 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?

7. 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]

8. Penn Central: Takings Analysis DQ3.42 (Radium) What rules can you derive from the majority in Penn Central? results Implicit: Rules must be consistent with results of earlier cases (nothing overruled). Lots of Possibilities; I’ll Go Through Some

9. 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)

10. Penn Central: Takings Analysis DQ3.42: Possible Rules from Majority (Possible Reads) Not Taking if: Reasonably Related to Implementing Policy w Widespread Public Benefit No Significant Interference w DIBE

11. 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

12. 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.)

13. Penn Central: Takings Analysis DQ3.42 What rules can you derive from the majority in Penn Central? results Implicit: Rules must be consistent with results of earlier cases (nothing overruled). Lots of PossibilitiesQUESTIONS?

14. Relevant Considerations in Takings Cases Survey About What Facts Matter Ban on Intended Use (85%): Penn Central (Interference w DIBE) % Reduction in Value (88%): Mahon, Epstein & Penn Central $$$ Amount Reduction (59%): Purpose of Regulation (71%) = Hadacheck; Sax; Mahon; Epstein; Miller; Ackerman (2d Q) (BUT role of purpose unclear after Penn Central) $$$ Amount Left (49%) = Kelso; Mahon; Ackerman (1 st Q); Penn Central Return on Investment (32%): Penn Central (Interference w DIBE)

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

16. Class #38: Final Class DQs Closing Up Unit III DQs Closing Up Unit III Review Problem 3A(ii) Review Problem 3A(ii) Uranium for Landowner Bart Uranium for Landowner Bart Radium for State Radium for State Review Problem 3C(ii) Review Problem 3C(ii) Final Lectures Final Lectures

17. 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.]

18. FINAL EXAM QUESTION 3 Review Problem 3A(ii) 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. URANIUM: Why Compensate? How Value? RADIUM: Defend No Compensation

19. Review Problem 3A(ii) Gets at Hard Q from Penn Central: Why Treat Out-of-Pocket Loss Differently? Gov’t : No interference w DIBE (Penn Central) if no investment at all b/c acquired by gift or will. – Would Need to Defend This is a Good Idea in Terms of Takings Policy and/or Significance of DIBE Owner: Helpful to Defend Possible Alternatives in Some or All Cases. E.g., – Treat B’s Father’s investment as relevant amount. – Treat value when B Became owner as “investment.”

20. Class #38: Final Class DQs Closing Up Unit III DQs Closing Up Unit III Review Problem 3A(ii) Review Problem 3A(ii) Review Problem 3C(ii) Review Problem 3C(ii) Oxygen Separately Oxygen Separately Krypton Together Krypton Together Final Lectures Final Lectures

21. FINAL EXAM QUESTION 3 Rev. Prob. 3C(ii) (Oxygen/Krypton) 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) Analyze B & C together or separately?

22. FINAL EXAM QUESTION 3 Rev. Prob. 3C(ii) (Oxygen/Krypton) 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) Analyze B & C together or separately? Need to look at specific facts as well as law and policy to resolve. Possibly relevant facts include: Parcels purchased at different times Road separates the two parcels A intended to manage as single business New rules decreased value of C but increased value of B and of parcels together

23. Class #38: Final Class DQs Closing Up Unit III DQs Closing Up Unit III Review Problem 3A(ii) Review Problem 3A(ii) Review Problem 3C(ii) Review Problem 3C(ii) Final Lectures Final Lectures

24. 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 1 st Thesis)

25. 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

26. 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. Romania) Particular Constitutionally Protected Interests (Here, Property Rights)

27. 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 = Near total deference to legislators Means we basically trust/rely on the democratic process to protect the necessary interests. True for most economic interests

28. 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 Gov’t must show its regulation is drawn with precision to serve a very important purpose 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

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 Intermediate Scrutiny Penn Central: Reasonably Necessary to Substantial Public Purpose (though role of language unclear) Trying to protect from predictable dangers of democracy Arguably focused review, not necessarily replacing legislature’s ability to make policy judgments

30. Takings in Perspective 3 Ways to View Takings in Context of Tension between Democracy & Constitutional Protections 1.Strong Private Property 2.Strong Democracy 3.Intermediate View: – Identify Especially Problematic Situations – Use Heightened Scrutiny or Other Demanding Test

31. 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

32. Into the Woods

33. 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 For 27 years, I end 1L courses with Red Riding Hood in the Fall Jack and the Beanstalk in the Spring

34. I Know Things Now

35. Thoughts on Emerging from the Dark Slimy Path