PROPERTY%20E%20SLIDES

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PROPERTY E SLIDES

• 02-11-13

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Review Problem 1G OLYMPICAstigarraga Little
Segall Green Stroman
SUNSET IN THE PARK
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Review Problem 1G OLYMPICClient 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

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Review Problem 1G OLYMPICAstigarraga Little
Segall Green Stroman

• Legal Research
• Where do You Start?
• Weve said rules vary by state, so start by
  getting basic rule (if any) for jurisdiction
• Possibilities?

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Review Problem 1G OLYMPICAstigarraga Little
Segall Green Stroman

• Legal Research
• Weve said rules vary by state get basic rule
  (if any) for jurisd. Possibilities include
• No right to protest at malls
• Specific right to protest at some/all malls
• Might be no rule re malls, but some general rule
  re 1st Amdt access (like Schmid)
• Assuming some right to protest at malls, what
  specific details re law might be helpful?

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Review Problem 1G OLYMPICAstigarraga Little
Segall Green Stroman

• Legal Research
• Relevant Specific Details re Law Might Include
• Rules re Which Malls Covered
• Specifics re Rules/Limits can Put on Protestors.
  E.g.,
• Location
• Manner of Protest
• Clean-Up, Deposit, etc.
• Special rules re targeting mall tenant

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Review Problem 1G OLYMPIC

• Factual Research?
• Re Ms Mall Generally?
• Re This Dispute?

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Review Problem 1G OLYMPIC

• Factual Research?
• Re Ms Mall Generally? Might Include
• Info re size (if relevant to coverage)
• Scope/nature of invitation
• General Rules re Protestors
• Physical Space Good Place for Protestors
• Maybe general info on maintenance/security/insuran
  ce
• Re This Dispute?

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Review Problem 1G OLYMPIC

• Factual Research?
• Re This Dispute Might Include
• Specifics re Protestors
• Number, Length of Time, Location
• Content of Pamphlets
• Behavior
• Prior Specific Agreement
• Specifics re Harms/Problems
• Evidence of Harm to ES?
• Complaints by Shoppers?
• Problems for Mall (Security, Clean-Up, Traffic
  Flow)
• Room for Detailed Qs re Most of These

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Right to Exclude Property Open to the
PublicEVERGLADES JMB DQ28
EGRET IN MANGROVE SWAMP
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DQ28 EVERGLADESArguments from JMB Schmid re
Issue in Shack

• Sequence Today
• Discussion/application of Schmid test
• Comparisons to facts of JMB
• A couple of other arguments from JMB

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DQ28 EVERGLADESArguments from JMB Schmid re
Issue in Shack

• Discussion of Schmid Test
• Use to decide when 1st Amdt requires access to
  private property open (for some purposes) to
  public
• Once access allowed, test largely unhelpful for
  deciding what restrictions allowable Schmid
  just says they must be reasonable
• Note Princeton appealed Schmid decision to US
  SCt
• Claim was interference with federal Const.
  Property Rights
• US SCt refused to hear case

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DQ28 EVERGLADESArguments from JMB Schmid re
Issue in Shack

• (1) Application of Schmid Test (P89)
• Normal Use of Private Property
• Extent Nature of Public Invitation
• Compatibility of Speech Entrance with Normal
  Use

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DQ28 EVERGLADESArguments from JMB Schmid re
Issue in Shack

• Discussion/application of Schmid test
• Comparisons to facts of JMB
• A couple of other arguments from JMB

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DQ28 EVERGLADESArguments from JMB Schmid re
Issue in Shack

• Discussion/application of Schmid test
• Comparisons to facts of JMB
• Nicely worded version from student submission
  In both cases there are groups that seek to
  provide citizens who are on private land with
  information that they believe the citizens need
  to know.
• A couple of other arguments from JMB

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DQ29 EVERGLADESElectronic Submission Last Week

• Write-Up Available on Course Page Ill also
  integrate into next Info Memo
• Includes Best points from Student Submissions (w
  Shout-Outs)
• Additional Points Comments from Me
• Obviously 3.5 page Write-Up for One DQ Much More
  Than I Expect for Ordinary Class Prep
• BUT Useful to Begin Thinking About Pushing
  Yourself to Keep Adding More to Initial Response
• for Class
• Especially for Exam Prep

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Review Problem 1K YOSEMITE ZION

• FD gated community of single-family homes
• Managed by Homeowners Association (FDHA)
• Includes common areas meeting/event room, gym,
  two pools, child care center, small general
  store.
• Full-time security guards non-residents cannot
  enter the community unless they are guests of a
  resident.
• Os unanimously enact by-law banning themselves
  from having reporters or photographers as guests.

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Review Problem 1K Os in gated community ban
reporters or photographers as guests.

• ZION
• (opposing ban)

• YOSEMITE
• (supporting ban)

• Balkin, Kelly
• Burts, Tracy
• Favro, Marc
• Scala, Laura

• Rosenbaum, Danny
• Silver, Stephen
• Crespo, Loisis
• Seppi, Shae

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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
• Federal Public Use Standards
• Midkiff
• Kelo
• State Public Use Standards
• Poletown
• Hatchcock

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Chapter 2 Federal Constitutional Background

• Federal Courts Determining if State Law Violates
  US Constitution
• Often in Con Law I Procedural
• Not Looking at Substance of Law
• Looking at Authority (v. Feds) Over Subject
  Matter
• Pre-emption by Congress
• Dormant Commerce Clause

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Chapter 2 Federal Constitutional Background

• Federal Courts Determining if State Law Violates
  US Constitution
• Procedural (Subject Matter/State v. Fedl
  Authority)
• Review of Substance Employed to Check Validity
  Under 14th Amdt and Bill of Rights
• Most people believe this should not include
  determining whether the statute is a good idea as
  a matter of policy.
• Why shouldnt a federal court strike down a state
  statute because its stupid?

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Chapter 2 Federal Constitutional Background

• Federal Courts Determining if State Law Violates
  US Constitution
• Why shouldnt a federal court strike down a
  state statute because its stupid? Common
  Answers
• Democratic Theory
• State Legislature is Elected Body Fedl 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

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Chapter 2 Federal Constitutional Background

• Upshot Default Rule is Deference to State
  Legislation
• Many Bad Laws are Constitutional
• State Legislatures Mostly Allowed to do Stupid
  Things Unless They Violate a Specific
  Constitutional Provision (Tolerant Parent
  Analogy)

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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

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Chapter 2 Federal Constitutional Background

• Tolerant Parent Analogy
• You Are Not Leaving the House in That!!

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Chapter 2 Federal Constitutional Background

• Default is Deference to State Legislation
• States Mostly Allowed to do Stupid Things Unless
  They Violate a Specific Constitutional Provision
• Relevant Provision Here is Takings Clause of 5th
  Amdt (Applicable to States through 14th Amdt)
• Otherwise, Deference Means Minimal Review of
  State Legislation Rational Basis Scrutiny

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Chapter 2 Federal Constitutional Background
Rational Basis Review

• Is Challenged Law Rationally Related to a
  Legitimate State Purpose?
• Minimal Test for Constitutionality Under Due
  Process Equal Protection Clauses
• Applies When No Specific Constitutional Provision
  is Violated
• Very Deferential Govt Virtually Always Wins

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Chapter 2 Federal Constitutional Background
Rational Basis Review

• Is Challenged Law Rationally Related to a
  Legitimate State Purpose?
• Purpose is Legitimate if stems from Police
  Power Basic Authority of State Govts
• Can regulate to protect/further HSWM
• Health
• Safety
• Welfare general well-being including economic
  success
• Morals

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Chapter 2 Federal Constitutional Background
Rational Basis Review

• Is Challenged Law Rationally Related to a
  Legitimate State Purpose?
• Purpose is Legitimate if stems from Police
  Power Basic Authority of State Govts
  furthering 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

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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
• Doesnt have to be best option or even
  particularly good. (Deference means states can
  experiment without having to convince federal
  court of desirability)

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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
• Doesnt have to be best option or even
  particularly good (deference means states can
  experiment without having to convince federal
  court of desirability)

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Chapter 2 Federal Constitutional Background
Rational Basis Review

• Rationally Related to Legitimate State Purpose
• What is Purpose?
• Is Purpose Legitimate
• Arising under Police Power (HSWM)
• Not Just to Harm Individuals or Group
• Is Law Rationally Related to Purpose?
• Sample?
• Example of Means/End Testing

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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

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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 Scrutiny
• Means Chosen Must Be Rationally Related to
• Legitimate State Interest

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Chapter 2 Federal Constitutional Background
Means/End Testing

• Common Type of Constitutional Analysis
• Rational Basis Scrutiny
• Means Chosen Must Be Rationally Related to
• Legitimate State Interest
• Used When Deferring to State Legislatures
• Compare Two Forms of Heightened Scrutiny
  Strict Intermediate
• Used when we dont fully trust the democratic
  process
• Not deference, but closer look more scrutiny

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Chapter 2 Federal Constitutional Background
Means/End Testing

• Rational Basis Scrutiny

• Strict Scrutiny

• Must be Rationally Related
• to Legitimate State Interest
• Used for Ordinary Legislation (where deferring to
  legislature)
• Govt Almost Always Wins

• 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

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Chapter 2 Federal Constitutional Background
Means/End Testing

• Intermediate Scrutiny

• Strict 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

• 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

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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 BUT some
  Justices suggest circumstances where they would
  use stricter test
• Lawyering Focus of Chapter 2 Applying Legal
  Tests to Facts

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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
• Federal Public Use Standards
• Midkiff
• Kelo
• State Public Use Standards
• Poletown
• Hatchcock

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Chapter 2 Takings Clause of 5th Amdt

• Takings Clause of the Fifth Amdt of the U.S.
  Constitution (Applies to States via 14th Amdt)
  Nor shall private property be taken for public
  use without just compensation
• Gives Rise to
• 1. Eminent Domain Cases
• 2. Takings Cases

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Chapter 2 Takings Clause of 5th Amdt

• Takings Clause Nor shall private property
  be taken for public use without just
  compensation
• Eminent Domain Cases (Chapterv2)
• Govt Deliberately Attempts to Purchase Private
  Property (Condemnation Action)
• Takings Clause requires
• For Public Use (Midkiff, Kelo, etc.)
• Just Compensation ( Fair Market Value)

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Chapter 2 Takings Clause of 5th Amdt

• Takings Clause Nor 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

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Chapter 2 Eminent Domain Some Policy Concerns

• Part of Unit One Involuntary Transfers
• Eminent Domain Very Common Important Kind of
  Involuntary Transfer
• Govt Can Force Owner to Sell
• DQ30-32 Get At Underlying Issues

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Chapter 2 Eminent Domain Some Policy Concerns

• DQ30 Why not require govt to bargain for land
  like other purchasers?
• Holdout Problems Other Transaction Costs
  Dont Want to Block Important Projects or Drive
  Up Costs
• Can View as Tax for Living in Society w
  Schools, Roads, Other Govt Buildings Projects

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Chapter 2 Eminent Domain Some Policy Concerns

• Limits on Eminent Domain Power
• Just Compensation
• Democracy Politics
• Public Use Requirement

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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

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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

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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

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Chapter 2 Eminent Domain Some Policy Concerns

• DQ31 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

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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
• Ignores relocation disruption loss of
  stability, etc.