1. PROPERTY A SLIDES 2-10-15

2. Tuesday Feb 10 Music: Michael Jackson, Thriller (1983) Jail Day #2: Class Ends @ 9:15

3. PROPERTY A (2/10) I.Free Speech Rights (Arches) (continued) II.Introduction to Eminent Domain (Yellowstone)

4. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude What Kind of Problems Might You Expect A.Assume JMB or Pruneyard Applies: What Specifically Can/Can’t Mall Owners Do to Address Protestors B.Use Schmid & JMB to Help Determine if Right to Exclude Should be Limited in Particular Context for Speech Rights or Other Public Policy Considerations

5. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude A.Assume JMB or Pruneyard Applies: What Specifically Can/Can’t Mall Owners Do to Address Protestors 1.Review Problems Addressing: a.Rev Prob 1G: DF This Week b.Rev Prob 1I : Thursday c.Part of Rev Prob 1K(Part i): Friday 2.Note Parallel to Allowable Regulations/Restrictions in MW Problems under Shack & FL Statute

6. ARCHES: DQ1.26 DELICATE ARCHES

7. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude A.Assume JMB or Pruneyard Applies: What Specifically Can/Can’t Mall Owners Do to Address Protestors DQ1.26: Suppose you represent the owners of a relatively small NJ mall. What would you tell your clients re the following Qs about J.M.B.? Assume no additional cases or regulations Helpful to point to specific evidence from facts, language, logic of case. OK to use common sense (e.g., seems pretty unlikely that could limit protestor access to top floor of parking garage).

8. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude DQ1.26(a) (Arches): Does case open up all malls in the state to protestors or will its application be determined on a case-by-case basis for each mall? (Evidence from JMB?)

9. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude DQ1.26(a) (Arches): Will application of JMB be determined on a case-by-case basis? Evidence includes: All malls in original case quite large “Regional” or “Community” Shopping Centers At least 71 stores & 27 acres (P87-88) Ruling “limited to leafletting at such centers” (1 st paragraph P86) BUT BUT: Likely no need to redo analysis for other large malls.

10. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude DQ1.26(a) (Arches): Will application of JMB be determined on a case-by-case basis? Evidence includes: Schmid analysis consistent with case-by-case Public invitation could be less broad Compatibility could be less Cf. Princeton [or UM] v. small private residential college (maybe Rev. Prob. 1H)

11. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude DQ1.26(b): Assuming the case governs, do all political/protest groups have to be treated alike? Evidence includes: Common Sense: Can exclude groups if significant problems during past visits. Otherwise: Basis in 1 st Amdt Might suggest treating all groups/messages the same BUT (P92) refers to anti-war protest as “most substantial” and “central to the purpose” of 1 st Amdt interests; leaves room for argument about other issues

12. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude DQ1.26(b): Assuming the case governs, do all political/protest groups have to be treated alike? Common Sense: Can exclude if significant problems during past visits. Basis in 1 st Amdt suggests treating all groups/messages the same Hard Q not addressed in JMB or Pruneyard: Should you treat differently if targeting particular stores in mall? (pros & cons)

13. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude Hard Q not addressed in JMB or Pruneyard: Should you treat differently if targeting particular stores in mall? See Fashion Valley Mall v. NLRB, 172 P.3d 742 (Cal. 2007)  Forbids mall from excluding peaceful protestors because they are requesting that shoppers boycott a particular mall tenant.  No specific info on whether mall is allowed to place special restrictions on these protestors re proximity to targeted business

14. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude DQ1.26(c) (Arches): Under JMB, what kinds of limits or requirements can the mall impose on protestors? Possible Examples: Must stay in designated area. Limit on # of protestors per group. Limits re noise level, politeness, etc. Must clean up leaflets left around Deposit to cover clean-up or security costs.

15. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude DQ1.26(c) (Arches): Under JMB, what kinds of limits or requirements can the mall impose on protestors? Most important phrase likely is … time, place & manner [restrictions] Malls have “full power to adopt … time, place & manner [restrictions] that will assure … that … leafletting does not interfere with the shopping center’s business while … preserving the effectiveness of plaintiff’s exercise of their constitutional right.” (P91 right before §C) Time, Place & Manner [“TPM”] Restrictions = Standard 1 st Amendment Category (in contrast to Subject Matter or Viewpoint Restrictions)

16. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude DQ1.26(c) (Arches): Under JMB, what kinds of limits or requirements can the mall impose on protestors? Most important phrase likely is … (P91): Malls have “full power to adopt … time, place & manner [restrictions] that will assure … that … leafletting does not interfere with the shopping center’s business leafletting does not interfere with the shopping center’s business while preserving the effectiveness of P’s exercise of their constitutional right preserving the effectiveness of P’s exercise of their constitutional right.” Incorporates/balances interests of both sides. Other Evidence from JMB?

17. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude DQ1.26(c): Permissible limits or requirements? Other Evidence from JMB? General standards P86 “reasonable conditions” P89 describing Schmid: “reasonable regulations” P90 quoting Schmid: “suitable restrictions” P87: conditions noted that presumably go too far can’t approach shoppers insurance coverage FOR $$1m+ P86: case seems to be limited to passing out leaflets & related activity; suggests, e.g., might be OK to ban harassment or loud noises

18. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude DQ1.26(c): Permissible limits or requirements? Additional Info from Green Party (NJ 2000) (Note 5@P94-95) General standards P95: Balance rights of both sides in evaluating regulations P95: Fairly allocated fee OK if “objectively related” to evidence of real costs stemming from leafletting [and presumably other speech activity] Conditions rejected insurance coverage for $$1million “requirement of “hold harmless clause” Limit on access to a “few days” per year

19. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude Qs on Permissible Requirements or JMB

20. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude What Kind of Problems Might You Expect A.Assume JMB or Pruneyard Applies: What Specifically Can/Can’t Mall Owners Do to Address Protestors B.Use Schmid & JMB to Help Determine if Right to Exclude Should be Limited in Particular Context for Speech Rights or Other Public Policy Considerations

21. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude UseSchmid & JMB to Help Determine if Right to Exclude Should be Limited in Particular Context for Speech Rights or Other Public Policy Considerations 1. I’m not going to ask you to decide from scratch what scope of state’s 1 st Amdt should be. 2. Might ask you to assume Schmid/JMB are good law & apply to different claims of free speech access (e.g., Rev. Prob 1K(Part i)). 3. Might give you more general Q on scope of right to exclude & you could use Schmid/JMB as one way to analyze (e.g., Rev. Prob. 1H).

22. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude Schmid Test (P90) Use to decide when 1 st Amdt requires access to private property open (for some purposes) to public Can use by analogy for other limits on Right to Exclude Once access allowed, test largely unhelpful for deciding what restrictions allowable; Schmid just says they must be “reasonable”

23. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude Schmid Test (P90) (1) Normal Use of Private Property (2) Extent & Nature of [Public] Invitation (3) “[P]urpose of the expressional activity … in relation to both the public & private use of the property” Meaning of 1 st Two Factors Relatively Clear

24. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude Schmid Test (P90) (3) “[P]urpose of the expressional activity … in relation to both the public & private use of the property” (P91) This factor: “examines the compatibility of the free speech sought with the uses of the property.” Means? 2014 student argument : compatibility as subjective: seeming to fit (like human relationship) (reasonable interpretation of language) BUT BUT Discussion in JMB seems to focus more on whether speech causes objective harm to existing uses.

25. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude DQ 1.27: Apply Schmid & JMB to Issue in Shack (1) Apply Schmid Test (2) Apply JMB Compare Shack to Facts of JMB Relevant Language & Policy Concerns from JMB I’ll Leave for You & DF & Provide Write-Up in Future Info Memo

26. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude Scope of Right to Exclude in New Situations: Possible Relevant Considerations (Could Also Use for Non-1 st Amdt Speech Access) Protection of Disadvantaged Groups. E.g., Anti-Discrimination Law Shack & MWs Relationship to Govt or Law Implied K from Support of Govt for creation or operation of enterprise B/c Rt to Excl derives from state common law in 1 st instance, arguably can’t be used in way that violates public policy (Shack) Economic Concerns Monopoly Concern w Innkeeper Rule Furthering Commerce w Innkeeper Rule Protecting O’s Economic Interests (Shack & JMB)

27. LOGISTICS Friday: 1st Extended Class (7:55-9:45) Friday: 1st Extended Class (7:55-9:45) DF to follow (9:55-10:45) DF to follow (9:55-10:45) New on Course Page: New on Course Page: Assignment Sheet Assignment Sheet Descriptions of Daily Slides Descriptions of Daily Slides Exam-Related Materials (at Bottom of Page) Exam-Related Materials (at Bottom of Page) Instructions for Submitting Sample Answers Instructions for Submitting Sample Answers Complete 2014 Exam Complete 2014 Exam My Exam-Tips Workshop (Slides & Old Podcast) My Exam-Tips Workshop (Slides & Old Podcast)

28. PROPERTY A (2/10) I.Free Speech Rights (Arches) (continued) II.Introduction to Eminent Domain (Yellowstone)

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

30. Chapter 2 : Federal Constitutional Background Federal Courts Determining if State Law Violates US Constitution Often in Con Law I: “Procedural” Often in Con Law I: “Procedural” Not Looking at Substance of Law Looking at Authority (v. Feds) Over Subject Matter. E.g., Pre-emption by Congress Dormant Commerce Clause

31. Chapter 2 : Federal Constitutional Background Fed’l Cts Determining if State Law Violates US Constitution Con Law I = Mostly “Procedural” (Compare Subject Matter to State v. Fed’l Authority or to Powers of Fed’l Branches) Con Law I = Mostly “Procedural” (Compare Subject Matter to State v. Fed’l Authority or to Powers of Fed’l Branches) Compare: Review of Substance Employed to Check Validity Under 14th Amdt and Bill of Rights Compare: 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. DQ 2.05: Why shouldn’t a federal court strike down a state statute because it’s unlikely to do a good job achieving its purpose or because it’s simply stupid?

32. Chapter 2 : Federal Constitutional Background Fed’l Cts 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

33. 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 Their Actions Implicate Particular Constitutional Concerns (Tolerant Parent Analogy)

34. 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 …

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

36. Chapter 2 : Federal Constitutional Background Default is Deference to 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”

37. 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

38. Chapter 2 : Federal Constitutional Background: Rational Basis Review Is Challenged Law “Rationally Related to a Legitimate State Purpose”? Purpose is Legitimate if 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

39. Chapter 2 : Federal Constitutional Background: Rational Basis Review Is Challenged Law “Rationally Related to a Legitimate State Purpose”? Purpose is Legitimate if arises from “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. (E.g., Persecute Palomo Act)

40. 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 a particularly good one. (Deference means states can experiment without having to convince federal court of desirability)

41. Chapter 2 : Federal Constitutional Background: Rational Basis Review “Rationally Related to a Legitimate State Purpose”: Application: 1.Identify Purpose of Law 2.Determine if Purpose is Legitimate Arising under Police Power (HSWM) Not Just to Harm Particular Individuals or Group 3.Determine if Law “Rationally Related” to its Purpose Will Do Samples Later in DQ2.07-2.08

42. 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

43. 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

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

45. Chapter 2 : Federal Constitutional Background: Means/End Testing Rational Basis Scrutiny Must be Rationally Related … …to Legitimate State Interest Used for Ordinary Legislation (where deferring to legislature) Gov’t Almost Always Wins 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 Gov’t Almost Never Wins

46. Chapter 2 : Federal Constitutional Background: Means/End Testing Intermediate 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 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

47. 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/use 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

48. Chapter 2: The Eminent Domain Power & the Public Use Requirement Federal Constitutional Background 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

49. 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 14 th Amdt (incorporation) Gives Rise to 1. Eminent Domain Cases 2. “Takings” Cases

50. Chapter 2 : Takings Clause of 5th Amdt Takings Clause: public usejust compensation Takings Clause: “[N]or shall private property be taken for public use without just compensation” 1.Eminent Domain Cases (Chapter 2) Govt Deliberately Attempts to Purchase Private Property (“Condemnation” Action) Takings Clause requires: “For Public Use” (Our Issue: Midkiff, Kelo, etc.) “Just Compensation” (= Fair Market Value)

51. Chapter 2 : Takings Clause of 5th Amdt Takings Clause : “[N]or shall private property be taken for public use without just compensation” 1.Eminent Domain Cases (Chapter 2) 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

52. Chapter 2 : Eminent Domain: Some Policy Concerns Eminent Domain = Involuntary Transfer Like Intestacy (in Chapter 3) & Adverse Possession (Chapter 5) Eminent Domain (ED!) Very Common & Important Kind of Involuntary Transfer Gov’t Can Force Owner to Sell DQ2.01-2.03 Get At Underlying Issues

53. YELLOWSTONE (DQ2.01-2.03) GIANT GEYSER

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

55. Chapter 2 : Eminent Domain: Some Policy Concerns DQ2.01 (Yellowstone): 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 Chapter Title: “The Cost of Living in a Democratic Society” Can View as “Tax” for Living in Society w Schools, Roads, Other Govt Buildings & Projects, Police, Military, etc. Can View as Slight Advantage Given to Democratic Gov’t (Compared with Private Developers) to Accomplish the People’s Purposes.