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Please Sit in Center Section

Please Sit in Center Section. Into the Woods. DQ138: Bruce Ackerman (Criste Ercolani Newingham ). 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?

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Please Sit in Center Section

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  1. Please Sit in Center Section Into the Woods

  2. DQ138: Bruce Ackerman(Criste Ercolani Newingham) • 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 Hadacheck? Apply to Mahon?

  3. DQ138: Bruce Ackerman (Mena Biddle Binko) • 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?

  4. DQ139: Takings Theorists 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)

  5. EXAM QUESTION 3D (1998) • 1970: B Inherits Large Lot & Summer Home Worth $2.2M • 1979: Minimum-Security Prison Built Next Door • Findings of Fact (Must Accept!) • No threat to health/safety of residents of B’s lot • Market Value declines to $600K

  6. EXAM QUESTION 3D (1998) • 1970: B Inherits Lot /Summer Home worth $2.2M • 1979: Minimum-Security Prison Built Next Door • FoF: No threat to health/safety of residents of B’s lot • FoF: Market Value declines to $600K • Gov’t may argue: “Cannot be Taking because …” • B inherited property, so investment is zero (no DIBE) • No restriction at all on B’s use of parcel • When Govt purchases land to build necessary Gov’t facility, shouldn’t have to pay for neighbor’s loss of property value

  7. EXAM QUESTION 3D (1998) • 1970: B Inherits Lot /Summer Home worth $2.2M • 1979: Minimum-Security Prison Built Next Door • FoF: No threat to health/safety of residents of B’s lot • FoF: Market Value declines to $600K • Gov’t : “Cannot be Taking b/c B inherited property, so investment is zero (no DIBE)” Roberts * Webster-Jones * Bianchi Fasani

  8. EXAM QUESTION 3D (1998) • 1970: B Inherits Lot /Summer Home worth $2.2M • 1979: Minimum-Security Prison Built Next Door • FoF: No threat to health/safety of residents of B’s lot • FoF: Market Value declines to $600K • Gov’t : “Cannot be Taking where there’s no restriction at all on B’s use of his parcel.” KLOCK * FORMAN * VAN WART

  9. EXAM QUESTION 3D (1998) • 1970: B Inherits Lot /Summer Home worth $2.2M • 1979: Minimum-Security Prison Built Next Door • FoF: No threat to health/safety of residents of B’s lot • FoF: Market Value declines to $600K • Gov’t : “When Govt purchases land to build necessary Gov’t facility, shouldn’t have to pay for neighbor’s loss of property value” FAYNE * YANES * MARTIN

  10. EXAM QUESTION 3F (2001) • A owns adjacent garages BG & CG. • Post 9/11 Security rules shut down CG. • FoF: Value of BG + CG: $1M $1.5M • FoF: Value of CG: $350K $100K.

  11. EXAM QUESTION 3F (2001) • A owns adjacent garages BG & CG. • New Security rules shut down CG. • FoF: Value of BG + CG: $1M $1.5M • FoF: Value of CG: $350K $100K. • Gov’t may argue no Taking b/c … • Even looking at CG alone, strong gov’t purpose permits significant interference w DIBE (Note: should concede signif. interf. w DIBE re CG) • Court should analyze parcels together (means increase in value)

  12. EXAM QUESTION 3F (2001) • A owns adjacent garages BG & CG. • New rules shut down CG ($350K  $100K) • Gov’t may argue no Taking b/c strong gov’t purpose permits signif. interference w DIBE GONZALEZ * RAMLAL * ANDINO

  13. EXAM QUESTION 3F (2001) • Gov’t likely to argue court should analyze parcels together • 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 CG but increased value of BG and of parcels together

  14. EXAM QUESTION 3F (2001) • Gov’t likely to argue court should analyze parcels together. Possibly relevant facts: • Parcels purchased at different times • Road separates the two parcels • A intended to manage as single business • New rules decreased value of CG but increased value of BG and of parcels together DeOrchis* PHILLIPS * DOYLE

  15. LOGISTICS: Reading & Exam Period Key Pre-Exam Info on Course Page • Office Hours Listed for 11/30-12/13 • I’ll Take E-Mail Qs Sent Before 7pm on 12/13 • Additional Info Memos (& Updates to Syllabus) • Graded Assignments: When Ready for Pick-Up • Final Exam Instructions & Syllabus

  16. LOGISTICS: Reading & Exam Period Review Session • Wed. 12/12/12 @ 7:00 pm in Room F109 (Torts Room) • Presentation with Slides, Mostly About Exam Technique • How to Approach Each Type of Question • Then I’ll take Qs on Both Technique & Substance • Slides & Podcast posted on course page afterwards Old Exam Qs • If Limited Time, Work with Most Recent (esp. Q2 & Q3) • Skip XQ3C (1997); Missing Key Sentence or Two (Clancy!)

  17. LOGISTICS: After the Test • I’m on Bricks Immediately Afterward • Don’t Talk About Substance of Exam (with Anyone) • After Grades Posted, Packet for Each of You • Exam Questions, Comments & Best Answers • Information Sheet with Your Scores • Copy of Your Test • I’ll Review with You After You’ve Read Packet • Grades & Your Place in the Universe

  18. 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)

  19. 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

  20. Takings in Perspective Means/End Testing & Levels of Scrutiny • Choice among three tests: • Rational Basis • Scrict Scrutiny • Intermediate Scrutiny • At Stake: Relative Protection Given to • Democratic Process (US v. Romania) • Particular Constitutional Interests (Here, Property Rights)

  21. 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

  22. 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

  23. 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

  24. Takings in Perspective 3 Ways to View Takings • Strong Private Property • Strong Democracy • Intermediate View: • Identify Especially Problematic Situations • Use Heightened Scrutiny or Other Demanding Test

  25. 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

  26. 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 • For 25 years, I end 1L courses with • Red Riding Hood in the Fall • Jack and the Beanstalk in the Spring

  27. I Know Things Now

  28. Thoughts on Emerging from the Dark Slimy Path

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