PROPERTY D SLIDES

1. PROPERTY D SLIDES 2-6-14

2. Thursday Feb 6: Music Billy Joel, Nylon Curtain (1982) Lunch Today (Meet on Bricks @ 12:25) Abeckjerr; Desir; Gaid; Hoffman; Iscowitz; Khoury

3. BISCAYNE: Rev. Prob. 1H SUNRISE AT ADAMS KEY

4. Right to Exclude: Review Problem 1H (Biscayne) • Client M owns Mall • Tenant ES = outlet store for co. accused of using sweatshop labor overseas • Prior O allowed protestors to hand out leaflets w these accusations near ES store • ES complains protestors drive away customers • M wants to know if she can “do more to satisfy” ES.

5. Right to Exclude: Review Problem 1H (Biscayne) • M wants to know if she can “do more to satisfy” ES. • Keep specific client request in mind • Two problems that occurred in exam answers: • Qs going to whether M should drop ES as a tenant • outside scope of request; • could be relevant to different Q • BUT really more business than legal

6. Right to Exclude: Review Problem 1H (Biscayne) • M wants to know if she can “do more to satisfy” ES. • Keep specific client request in mind • Two problems that occurred in exam answers: • Qs going to whether claims about ES are true • Legal relevance to your client’s concerns? • Factual: How find out?

7. Right to Exclude: Review Problem 1H (Biscayne) Legal Research to Establish the Overall Legal Framework?

8. Right to Exclude: Review Problem 1H (Biscayne) • Legal Research to Establish Overall Legal Framework • Basic rule for jurisd. if any; Possibilities? • No right to protest at malls (most states) • Specific right to protest at malls • Depends on mall (compare to facts re this mall) • Specific rules re size, etc. • Gen’lrule like Schmid • If right to protest, info on allowable restrictions

9. Right to Exclude: Review Problem 1H (Biscayne) • Legal & Factual Research Relevant to • How the Mall Normally Handles Free Speech Access

10. Right to Exclude: Review Problem 1H (Biscayne) • Legal & Factual Research Relevant to • How the Mall Normally Handles Free Speech Access • Should Include: • Existing Rules & Practices • Prior Experience/Difficulties • Comparison to What State Allows

11. Right to Exclude: Review Problem 1H (Biscayne) • Legal & Factual Research Relevant to • The Operation and Effects of These Protests • (Including Targeting a Business Operating in the Mall) • Relevant Info re Protest & Protestors? • Harm to ES? • Harm to Other Businesses? • Harms to Mall Operation? • Related Legal Research?

12. Right to Exclude: Review Problem 1H (Biscayne) • Legal & Factual Research Relevant to • The Mall Having Allowed These Protesters in the Past • & • General Information to Help Understand the Situation • I’ll Leave for You

13. Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Constitutional Background • Deference, Rational Basis, Heightened Scrutiny (cont’d) • The Fifth Amdt, Eminent Domain & Public Use • Limited Federal Review Under Berman & Midkiff • State Public Use Standards • Kelo & Beyond

14. Chapter 2 : Federal Constitutional Background Fed’lCts Determining if State Law Violates US Constitution “Why shouldn’t a federal court strike down a state statute because it’s stupid?” Common Answers: • Democratic Theory: • State Legislature is Elected Body; Fed’l Court is Not • Remedy for Mistakes by Legislature is Elections • Relative Expertise: • Legislature Can Do Better Fact-Finding Than Court • Local Officials May Have Better Handle on Local Problems

15. Chapter 2 : Federal Constitutional Background Upshot = Default Rule is Deferenceto State Legislation • Many Bad Laws are Constitutional • State Legislatures Mostly Allowed to do Stupid Things Unless Their Actions Implicate Particular Constitutional Concerns (Tolerant Parent Analogy)

16. Chapter 2 : Federal Constitutional Background Tolerant Parent Analogy • Generally good parents of teenagers allow their kids lots of leeway to do stupid things. • That is, up to a certain point …

17. Chapter 2 : Federal Constitutional Background Tolerant Parent Analogy “You Are Not Leaving the House in That!!”

18. Chapter 2 : Federal Constitutional Background Default is Deferenceto State Legislation • States Mostly Allowed Leeway to do Stupid Things Unless Their Actions Implicate Particular Constitutional Concerns • Otherwise, Deference Means Federal Court Does Only Minimal Review of State Legislation: “Rational Basis Scrutiny”

19. Chapter 2 : Federal Constitutional Background: Rational Basis Review • Legal Test: Is Challenged Law “Rationally Related to a Legitimate State Purpose”? • Minimal Test for Constitutionality Under Due Process & Equal Protection Clauses • Applies If No Claim Under Another More Specific Constitutional Provision • Very Deferential: Gov’t Virtually Always Wins

20. Chapter 2 : Federal Constitutional Background: Rational Basis Review Is Challenged Law “Rationally Related to a Legitimate State Purpose”? • Purpose is Legitimateif arises from State’s “Police Powers” • Basic Authority of State Gov’ts • Can regulate to protect/further “HSWM” • Health • Safety • Welfare [general well-being including economic success] • Morals

21. Chapter 2 : Federal Constitutional Background: Rational Basis Review Is Challenged Law “Rationally Related to a Legitimate State Purpose”? Purpose is Legitimateif arises from State’s “Police Powers” • Basic authority to protect/further Health, Safety, Welfare, Morals • Good lawyer can tie virtually any state law to one of these purposes • Usually purposes found illegitimate only if openly discriminatory or singling out individuals.

22. Chapter 2 : Federal Constitutional Background: Rational Basis Review Is Challenged Law “Rationally Related to a Legitimate State Purpose”? • Not asking if “rational” to a psychologist or economist • Term of art = a rational legislator could believe the state law will help further its purpose, at least a little bit • Doesn’t have to be best option or even particularly good. (Deference means states can experiment without having to convince federal court of desirability)

23. Chapter 2 : Federal Constitutional Background: Rational Basis Review “Rationally Related to a Legitimate State Purpose”: Application: • Identify Purpose of Law • Determine if Purpose is Legitimate • Arising under Police Power (HSWM) • Not Just to Harm Individuals or Group • Determine if Law “Rationally Related” to its Purpose Sample? Shenandoah: Will Do Later for DQ2.07-2.08

24. Chapter 2 : Federal Constitutional Background: Means/End Testing “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 Review is One Example

25. Chapter 2 : Federal Constitutional Background: 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 Review (or Scrutiny) : • Is State Law Rationally Related … • To a Legitimate State Interest

26. Chapter 2 : Federal Constitutional Background: Means/End Testing • Common Type of Constitutional Analysis • Rational Basis Review (or Scrutiny) : • Is State Law Rationally Related … • To a Legitimate State Interest • Used When Deferring to State Legislatures • Compare “Heightened Scrutiny”: Strictor Intermediate • Used when we don’t fully trust the democratic process • Not deference, but closer look = more scrutiny

27. Chapter 2 : Federal Constitutional Background: Means/End Testing Rational Basis 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 • Must be Rationally Related … • …to Legitimate State Interest • Used for Ordinary Legislation(where deferring to legislature) • Govt Almost Always Wins

28. Chapter 2 : Federal Constitutional Background: Means/End Testing Intermediate 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 • Must be Reasonably Necessary … • … to Substantial State Interest • Used for, e.g., Lines Drawn on Basis of Sex; Restrictions on Commercial Speech • GovtSometimes Wins

29. Chapter 2 : Federal Constitutional Background Thrust of Chapter 2 • Midkiff: US SCt uses Rational Basis Review as test for when state exercise of Eminent Domain power is for “Public Use”  • Debate: Is so much deference appropriate?  • Many States adopt less deferential tests • US SCt in Kelo reaffirms Midkiff(5-4) BUT some Justices suggest circumstances where they would use stricter test • Lawyering Focus of Chapter 2: Applying Legal Tests/Rules to Facts

30. Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Constitutional Background • Deference, Rational Basis, Heightened Scrutiny • The Fifth Amdt, Eminent Domain & Public Use • Limited Federal Review Under Berman & Midkiff • State Public Use Standards • Kelo & Beyond

31. Chapter 2 : Takings Clause of 5th Amdt Takings Clause of the Fifth Amdt of the U.S. Constitution “[N]or shall private property be taken for public use without just compensation” • Applies to States via 14thAmdt(incorporation) • Gives Rise to 1. Eminent Domain Cases 2. “Takings” Cases

32. Chapter 2 : Takings Clause of 5th Amdt Takings Clause: “[N]or shall private property be taken for public use without just compensation” • Eminent Domain Cases (Chapter 2) • Govt Deliberately Attempts to Purchase Private Property (“Condemnation” Action) • Takings Clause requires: • “For Public Use” (Midkiff, Kelo, etc.) • “Just Compensation” (= Fair Market Value)

33. Chapter 2 : Takings Clause of 5th Amdt Takings Clause : “[N]or shall private property be taken for public use without just compensation” • Eminent Domain Cases (Chapter 2) • Takings Cases (Along Edge of Course) • Govt Not Trying to Purchase, but to Regulate • Property Owner Claims Regulation Effectively “Takes” Property so Govt Must Cease or Pay (“Inverse Condemnation” Action) • Claim made to USSCt in Pruneyard & Schmid • Complex caselaw outside scope of this class

34. Chapter 2 : Eminent Domain: Some Policy Concerns • Involuntary Transfer • Like Adverse Possession & Intestacy • Eminent Domain (ED!) Very Common & Important Kind of Involuntary Transfer • Govt Can Force Owner to Sell • DQ2.01-2.03 Get At Underlying Issues

35. REDWOOD: DQ 2.01-2.02 REDWOODS & FERNS

36. Chapter 2 : Eminent Domain: Some Policy Concerns • DQ2.01 (Redwood): Why not require govt to bargain for land like other purchasers?

37. Chapter 2 : Eminent Domain: Some Policy Concerns • DQ2.01 (Redwood): Why not require govt to bargain for land like other purchasers? • Holdout Problems & Other Transaction Costs: Don’t Want to Block Important Projects or Drive Up Costs • Can View as “Tax” for Living in Society w Schools, Roads, Other Govt Buildings & Projects (cf. Chapter Title: “The Cost of Living in a Democratic Society”)

38. Chapter 2 : Eminent Domain: Some Policy Concerns Limits on Eminent Domain Power • Just Compensation • Democracy: Politics & $$$ • Public Use Requirement

39. Chapter 2 : Eminent Domain: Some Policy Concerns Limits on Eminent Domain Power • Just Compensation: • Must Pay Fair Market Value (FMV) • Addresses Concerns like • Ensuring Govt Has to Consider/Budget to Take Land • Protecting/Encouraging Investment in Land • Harder to Confiscate Property from Disfavored Persons • (Maybe) Harder to Redistribute Wealth

40. Chapter 2 : Eminent Domain: Some Policy Concerns Limits on Eminent Domain Power • Just Compensation: • Must Pay Fair Market Value (FMV) • Addresses Concerns like • Harder to Confiscate Property from Disfavored Persons • (Maybe) Harder to Redistribute Wealth c. Speculation re Madison & Slavery

41. Chapter 2 : Eminent Domain: Some Policy Concerns Limits on Eminent Domain Power • Just Compensation (FMV) • Democracy: Politics & $$$ • FMV also is big practical limit • State/Local Govts Usually Short of $$$ • Plus Too Much Forced Sale = Politically Unpopular

42. Chapter 2 : Eminent Domain: Some Policy Concerns • DQ2.02 (Redwood): Where Os Receive Fair Market Value & Democracy & Budgets Limit, Why Do We Need Other Limits on EmDom?

43. Chapter 2 : Eminent Domain: Some Policy Concerns • DQ2.02: Where Os Receive FMV & Democracy & Budgets Limit, Why Do We Need Other Limits on EmDom? • FMV Not Always Adequate Compensation • Problems with “Democracy & Budgets” as Limits on EmDom

44. Chapter 2 : Eminent Domain: Some Policy Concerns • Why FMV Not Adequate Compensation • Most people not interested in selling at time • Ignores personal value (sentiment; connection to n-hood) • Ignores investments by OO not worth as much to typical buyer (me & dog-proofed fence & owl shelving) • Ignores relocation & disruption; loss of stability, etc.

45. Chapter 2 : Eminent Domain: Some Policy Concerns • Problems with Democracy & Budgets as Limits on Eminent Domain • Tendency to Select Land of Politically Weak • Placement of Sewage Disposal/Hazardous Waste • Fedl Interstate Highway Exchanges in Cities • Situations When Budgets Not at Issue • E.g., Federal Funds • E.g., Cross-Bronx Expressway • E.g., $$$ Not Coming from Govt(Midkiff & Kelo)