1. Property II Professor Donald J. Kochan Spring 2009 Class 50 1 April 2009

2. Today’s Materials More Introduction to Public Use More Introduction to Public Use Please download, read, and be prepared to discuss. Be sure you read the footnotes: Please download, read, and be prepared to discuss. Be sure you read the footnotes: http://papers.ssrn.com/sol3/papers.cfm?abstract%5Fid=907689 Berman Berman Midkiff Midkiff Poletown & Hathcock Poletown & Hathcock Kelo Kelo Deference to Legislature Issues Deference to Legislature Issues Redevelopment Issues Redevelopment Issues Planning Issues Planning Issues Blight Blight Redistribution Redistribution

3. Discussion Issues Definition of Public Use and Deference (whereas...) Definition of Public Use and Deference (whereas...) Redevelopment, Revitalization, Blight, and Planning Issues Redevelopment, Revitalization, Blight, and Planning Issues Tax Revenue Issues, economic growth, employment Tax Revenue Issues, economic growth, employment Options: Private Market Acquisition (free exchange) or Eminent Domain (coercion) Options: Private Market Acquisition (free exchange) or Eminent Domain (coercion) Holdouts as a justification for using eminent domain to advance certain projects Holdouts as a justification for using eminent domain to advance certain projects Public Choice/Interest Group/Capture Theories Issues Public Choice/Interest Group/Capture Theories Issues Rent-Seeking, buyers and sellers, commodity Rent-Seeking, buyers and sellers, commodity Redistribution Issues – (“I can do better than you can”) Redistribution Issues – (“I can do better than you can”) Property Rule Issues/Right to Exclude v. Liability Issues Property Rule Issues/Right to Exclude v. Liability Issues Effects on Incentives, Predictability, Certainty, Stability Effects on Incentives, Predictability, Certainty, Stability

4. Public Responses to Kelo “Stop Eminent Domain Abuse” community activism: See, e.g., http://www.castlecoalition.org/ “Stop Eminent Domain Abuse” community activism: See, e.g., http://www.castlecoalition.org/http://www.castlecoalition.org/ Supplemental reading: A short discussion of redevelopment and urban renewal: Supplemental reading: A short discussion of redevelopment and urban renewal: http://lawreview.wustl.edu/slip-opinions/kelos-lessons-for- urban-redevelopment-history-forgotten/ http://lawreview.wustl.edu/slip-opinions/kelos-lessons-for- urban-redevelopment-history-forgotten/ Legislative Responses Legislative Responses Limiting legislation Limiting legislation “Look Before You Leap” Analysis legislation “Look Before You Leap” Analysis legislation Compensation legislation Compensation legislation “Public Use” Jurisprudential and Legislative Predictions “Public Use” Jurisprudential and Legislative Predictions Options Options Outcome-oriented changes unlikely Outcome-oriented changes unlikely

5. From the Archives: Chapman Post-Kelo Program on Props 98 and 99 Eminent Domain, Property Rights, and Ballot Proposals: Where Do the Government Powers End and the Citizens' Rights Begin? – A Post-Kelo Discussion on California Proposals 98 and 99 April 14, 2008 5:30 p.m. Chapman University School of Law Donald P. Kennedy Hall, One University Drive, Orange, California Food Will Be Served? / MCLE Credit Available Sponsored by: Sponsored by: The Chapman University School of Law Federalist Society Chapter The Orange County Federalist Society Lawyers Chapter? The Federalist Society Environmental Law & Property Rights Practice Group After Kelo, there has been a heightened debate over the appropriate use of eminent domain, or condemnation, power, particularly when the ultimate beneficiaries are private parties and special interests. There has been a grassroots and citizen-based uproar as a result of the belief that the government is abusing its power through certain exercises of eminent domain. Some have stormed the legislative halls, courts, and newsrooms demanding a more just appreciation of property rights. This panel will discuss these issues in relation California Proposals 98 and 99. After Kelo, there has been a heightened debate over the appropriate use of eminent domain, or condemnation, power, particularly when the ultimate beneficiaries are private parties and special interests. There has been a grassroots and citizen-based uproar as a result of the belief that the government is abusing its power through certain exercises of eminent domain. Some have stormed the legislative halls, courts, and newsrooms demanding a more just appreciation of property rights. This panel will discuss these issues in relation California Proposals 98 and 99.Panelists: Professor Donald J. Kochan Chapman University School of Law Professor Donald J. Kochan Chapman University School of Law Mr. Christopher Koontz City Planning Associate, City of Los Angeles Mr. Christopher Koontz City Planning Associate, City of Los Angeles Mr. Kendall MacVey, Esq. Best Best & Krieger Mr. Kendall MacVey, Esq. Best Best & Krieger Professor Lawrence Rosenthal Chapman University School of Law Professor Lawrence Rosenthal Chapman University School of Law Mr. Timothy Sandefur, Esq, Pacific Legal Foundation Mr. Timothy Sandefur, Esq, Pacific Legal Foundation

6. California’s Proposition 98 (June 2008 – Failed to Pass) “EMINENT DOMAIN. LIMITS ON GOVERNMENT AUTHORITY. INITIATIVE CONSTITUTIONAL AMENDMENT. “EMINENT DOMAIN. LIMITS ON GOVERNMENT AUTHORITY. INITIATIVE CONSTITUTIONAL AMENDMENT. Bars state and local governments from taking or damaging private property for private uses. Bars state and local governments from taking or damaging private property for private uses. Prohibits rent control and similar measures. Prohibits rent control and similar measures. Prohibits deference to government in takings cases. Prohibits deference to government in takings cases. Defines “just compensation.” Defines “just compensation.” Requires an award of attorneys fees and costs if a property owner obtains a judgment for more than the amount offered by the government. Requires an award of attorneys fees and costs if a property owner obtains a judgment for more than the amount offered by the government. Requires government to offer to original owner of condemned property the right to repurchase property at condemned price when property is put to substantially different use than was publicly stated.” Requires government to offer to original owner of condemned property the right to repurchase property at condemned price when property is put to substantially different use than was publicly stated.” For full text and other information, see: http://june2008.sos.ca.gov/voterguide/title_sum/prop_98_title_sum.shtml

7. California Prop 99 (June 2008 – passed) “EMINENT DOMAIN. LIMITS ON GOVERNMENT ACQUISITION OF OWNER-OCCUPIED RESIDENCE. INITIATIVE CONSTITUTIONAL AMENDMENT. “EMINENT DOMAIN. LIMITS ON GOVERNMENT ACQUISITION OF OWNER-OCCUPIED RESIDENCE. INITIATIVE CONSTITUTIONAL AMENDMENT. Bars state and local governments from using eminent domain to acquire an owner-occupied residence, as defined, for conveyance to a private person or business entity. Bars state and local governments from using eminent domain to acquire an owner-occupied residence, as defined, for conveyance to a private person or business entity. Creates exceptions for public work or improvement, public health and safety protection, and crime prevention.” Creates exceptions for public work or improvement, public health and safety protection, and crime prevention.” For full text and other information, see: http://june2008.sos.ca.gov/voterguide/title_sum/prop_99_title_sum.sht ml http://june2008.sos.ca.gov/voterguide/title_sum/prop_99_title_sum.sht ml

8. Supplemental Reading: The Detroit News Summary on Poletown http://apps.detnews.com/apps/history/ind ex.php?id=18&CFID=13523949&CFTOKEN =10118560 http://apps.detnews.com/apps/history/ind ex.php?id=18&CFID=13523949&CFTOKEN =10118560 http://apps.detnews.com/apps/history/ind ex.php?id=18&CFID=13523949&CFTOKEN =10118560 http://apps.detnews.com/apps/history/ind ex.php?id=18&CFID=13523949&CFTOKEN =10118560 The City of Wayne v. Hathcock update – judicial reform The City of Wayne v. Hathcock update – judicial reform

9. Supplemental Reading: Chapman Law Graduate Tim Sandefur on Eminent Domain Supplemental Reading: Chapman Law Graduate Tim Sandefur on Eminent Domain http://www.castlecoalition.org/index.php? option=com_content&task=view&id=46&I temid=146 http://www.castlecoalition.org/index.php? option=com_content&task=view&id=46&I temid=146 http://www.castlecoalition.org/index.php? option=com_content&task=view&id=46&I temid=146 http://www.castlecoalition.org/index.php? option=com_content&task=view&id=46&I temid=146

10. Other Highly Recommended Supplemental Reading Richard A. Epstein, Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (1985)

11. Concluding Remarks Relate the use of eminent domain to the general regulatory structure Relate the use of eminent domain to the general regulatory structure Remember to consider separation of powers issues, including competency of the judiciary and the reasons for deferential standards Remember to consider separation of powers issues, including competency of the judiciary and the reasons for deferential standards Consider whether human values/societal values trump the autonomy model Consider whether human values/societal values trump the autonomy model Reflect back on property rules and liability rules Reflect back on property rules and liability rules