1. PROPERTY A SLIDES 2-13-15

2. Music: Stevie Nicks: Bella Donna (1981) Extendo-Class Today (7:55-9:45) Break = ~8:45-8:55 DF Here 9:55-10:45

3. PROPERTY A: 2/13 The Most Performed Waltz in American Popular Music

4. ARCHES: Review Problem 1K(Part i) DELICATE ARCHES

5. Review Problem 1K (Part i): Part of Issue-Spotter (Arches) the extent to which MMS can limit Father Frank’s access Assume the state of Gaidian follows JMB and Schmid. Discuss the extent to which MMS can limit Father Frank’s access to its courtyard. Can MMS Exclude FF from the Courtyard Completely? Assuming MMS Must Allow FF Access, What Restrictions May the School Place on FF’s Activities? I will give you a fact from the problem & ask you to tell me how you would use the fact to support an argument about one or both of the two questions above.

6. Review Problem 1K (Part i): Part of Issue-Spotter (Arches) Legal Significance of Facts (Assume JMB & Schmid Apply) Courtyard at Issue (Center of One City Block) 1.MMS has set up benches and tables in the Courtyard & generally freely allows the public to use. 2.In the past, they have allowed speakers & musicians. 3.Medical Clinic & Two Small Restaurants open on to Courtyard 4.Signs posted that say “private property” and “reserve the right to exclude members of the public for any reason at any time.”

7. Review Problem 1K (Part i): Part of Issue-Spotter (Arches) Legal Significance of Facts (Assume JMB & Schmid Apply) The Players 1.Owner MMS is a private accredited Medical School. 2.Father Franks(FF) is a charismatic and controversial religious figure. 3.In his most famous presentations, FF holds up an iPhone or iPad, explains the evils that flow from it and smashes it onto the ground. 4.MMS is associated with a mainstream Protestant denomination.

8. Review Problem 2B Setting Up for Tuesday Review Problem 2B (S28) Setting Up for Tuesday SHENANDOAH: (Arguments for Plaintiffs/Landowners) YELLOWSTONE: (Arguments for Defendant/City) ARCHES: (Critique; See Instructions at Bottom of Assignment Sheet) Arches Submission Due Thursday 2/19 @ 10:00 a.m. Generally on Critiques Each Panel will do two. Judging strengths & weaknesses of Colleagues’ Arguments Informal Submission Read Instructions Carefully; E-Mail Me if Qs

9. Review Problem 2B Setting Up for Tuesday Review Problem 2B (S28) Setting Up for Tuesday SHENANDOAH: (Arguments for Plaintiffs/Landowners) YELLOWSTONE: (Arguments for Defendant/City) ARCHES: (Critique; See Instructions at Bottom of Assignment Sheet) Arches Submission Due Thursday 2/19 @ 10:00 a.m. (i)Identify facts in the problem that are different from those in Poletown and be prepared to argue whether those facts should affect the outcome. Shenandoah & Yellowstone: Choose facts helpful to your client’s position & be prepared to explain why particular facts make your case stronger. I’ll get a few examples from each side.

10. Review Problem 2B Setting Up for Tuesday Review Problem 2B (S28) Setting Up for Tuesday SHENANDOAH: (Arguments for Plaintiffs/Landowners) YELLOWSTONE: (Arguments for Defendant/City) ARCHES: (Critique; See Instructions at Bottom of Assignment Sheet) Arches Submission Due Thursday 2/19 @ 10:00 a.m. (ii) Apply the legal standards from Poletown described in DQ2.09 to the problem. Shenandoah & Yellowstone: Make arguments applying the legal standards helpful to your client’s position. Anticipate the other side’s likely arguments and be prepared to respond.

11. 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

12. Hawaii Housing Authority v. Midkiff 1.Background: Berman v. Parker (Last Time) 2.Challenged Hawaii Program (Cont’d) 3.Analysis: Adoption of Rational Basis Standard

13. Midkiff: Challenged Program Perceived Problem: Market for Land Skewed Immense landholding by few owners (S22) State Wants More Active Land Market Affects Labor Market State Prefers Owners to Renters Usually More Investment/Upkeep Usually Greater Ties to Community

14. Midkiff: Challenged Program & DQ2.04 Program Designed to Aid Land Market Forced Sale of Land: Landlords to Tenants In practice, funds come entirely from Tenants. Requirements/Limitations Sufficient # of tenants apply from same residential development. Public Hearing re furthering purpose of program. Eligibility Requirements for Buyers to prevent misuse by commercial developers.

15. Midkiff: Challenged Program & DQ2.04 Program = Forced Sale of Land (Landlords to Tenants) DQ2.04: Relation to Purposes of EmDom & Public Use? (1) Avoids Transaction Costs Breaks negotiation deadlock Allows sales that might take place if no tax consequences

16. Midkiff: Challenged Program & DQ2.04 Forced Sale of Land: Landlords to Tenants DQ2.04: Relation to Purposes of EmDom & Public Use? (1) Avoids Transaction Costs (2) How “Public Use”? End Users Private Individuals Not Everyone Eligible; Relatively Few Directly Benefit Public Can’t Actually Use Parcels in Q

17. Midkiff: Challenged Program & DQ2.04 Forced Sale of Land: Landlords to Tenants DQ2.04: Relation to Purposes of Eminent Domain & Public Use? (1) Avoids Transaction Costs (2) How “Public Use”? End Users Private Individuals Not Everyone Eligible; Relatively Few Directly Benefit Public Can’t Actually Use Parcels in Q BUT: Arguably All Hawaiians Benefit (Directly or Indirectly) from Improved Land Market BUT: Arguably All Hawaiians Benefit (Directly or Indirectly) from Improved Land Market

18. YELLOWSTONE (DQ2.06-2.07(a)) GIANT GEYSER

19. Midkiff: Challenged Program & DQ2.06 (Yellowstone) “After the American Revolution, the colonists in several States took steps to eradicate the feudal incidents with which large proprietors had encumbered land in the Colonies. Courts have never doubted that such statutes served a public purpose.” --FN5 (S24) DQ2.06: Assume Justice O’Connor (OCR) got this info from the briefs of the State of Hawaii [or of one of the Amicus Curiae supporting the state]. Why would the lawyers use valuable space in their briefs to give the Court a history lesson?

20. Midkiff: Challenged Program & DQ2.06 (Yellowstone) DQ2.06: Why would lawyers use valuable space in briefs to give the Court a history lesson? Meaning of “Land Reform” in 1984 Practice of Leftist Gov’ts in Latin America Redistributing Land Rights from Large Owners to Peasants/Small Farmers Generally Opposed by Reagan Administration

21. Midkiff: Challenged Program & DQ2.06 (Yellowstone) DQ2.06: Why would lawyers use valuable space in briefs to give the Court a history lesson? Cf. Latin American “Land Reform” in 1984 Lawyers Providing Another Way for SCt to See Program Evidence that OCR Buys Characterization (S21 2d para): “feudal land tenure system” (S24 middle para): “The people of Hawaii have attempted, much as the settlers of the original 13 Colonies did, to reduce the perceived social and economic evils of a land oligopoly traceable to their monarchs.”

22. Midkiff: Challenged Program & DQ2.06 (S24 middle para): “The people of Hawaii have attempted, much as the settlers of the original 13 Colonies did, to reduce the perceived social and economic evils of a land oligopoly traceable to their monarchs.” Statue of King Kamehameha

23. Hawaii Housing Authority v. Midkiff 1.Background: Berman v. Parker 2.Challenged Hawaii Program 3.Analysis: Adoption of Rational Basis Standard

24. Midkiff: Adoption of Rational Basis Test Benefit to Public Upholds Hawaii Program; Again Interprets “Public Use” to Simply Mean Benefit to Public Extends/Explains Berman v. Parker in Two Ways 1.Same deference given to states as feds 2.Govt never has to possess land itself No apparent limit to public use given for either 1 or 2 Makes very clear it doesn’t want to assess wisdom of program. Role for reviewing court is “extremely narrow” Clear use of Rational Basis test

25. Midkiff: Adoption of Rational Basis Test: Key Language “Court … will not substitute its judgment for a legislature’s judgment as to what constitutes a public use ‘unless the use be palpably without reasonable foundation.’” (S24: top para) “[W]here the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause.” (S24: first full para)

26. Midkiff: Adoption of Rational Basis Test: Key Language Rationally Related = Very Deferential Standard “Of course, this Act, like any other, may not be successful in achieving its intended goals. But ‘whether in fact the provision will accomplish its objectives is not the question: the [constitutional requirement] is satisfied if... the... [state] Legislature rationally could have believed that the [Act] would promote its objective.’” (S24: last para)

27. Midkiff: Adoption of Rational Basis Test BACK TO DQ2.05: Why shouldn’t the Supreme Court strike down a state exercise of Eminent Domain that is unlikely to achieve its stated ends? “[T]he weighty demand of just compensation has been met” (S26) Reasons for Deference We’ve Already Discussed: “[T]he legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation, whether it be Congress legislating concerning the District of Columbia... or the States legislating concerning local affairs.... This principle admits of no exception merely because the power of eminent domain is involved....” --(S23 first block quote from Berman)

28. (Yellowstone) Application of Rational Basis Test… DQ2.07(a): … to Facts of Midkiff Purpose of Program? Legitimate? (Connected to Health, Safety, Welfare, Morals) Program Rationally Related to Purpose?

29. BISCAYNE: DQs 2.07(b)-2.09 SUNRISE AT ADAMS KEY

30. (Biscayne) Application of Rational Basis Test… DQ2.07(b): … to Rev. Prob. 2A 2A: TX legislature creates Virtuous Texan Comm’n to choose three Texans each year who best embody the Texan Virtues (Courage, Forthrightness and Moral Strength). The chosen Texans can select private property in the state worth up to $500,000, which TX will purchase for them at FMV. Purpose of Program? Legitimate? (Connected to Health, Safety, Welfare, Morals) Program Rationally Related to Purpose?

31. Chapter 2: The Eminent Domain Power & the Public Use Requirement Federal Constitutional Background State Public Use Standards State Public Use Standards Poletown Hatchcock Review Problems 2B & 2C Kelo & Beyond

32. (Biscayne) Application of Rational Basis Test… DQ2.08: … to Facts of Poletown Remind us of key facts from Poletown Apply Rational Basis Test: Purpose of Program? Legitimate? (Connected to Health, Safety, Welfare, Morals) Program Rationally Related to Purpose?

33. Public Use Under State Constitutions States often have stricter tests than feds: States often have stricter tests than feds: Already seen in JMB/Pruneyard re 1 st Amdt Allows states to craft rules based on different balance of interests given forms of local govt, needs of state etc. As we’ll see, Kelo majority suggests that … As we’ll see, Kelo majority suggests that … stricter state rules may be appropriate given local concerns great federal deference makes sense given that states can do more

34. Poletown Tests Used if land ends up in private hands (1)Public must be “primary beneficiary” & private benefit merely “incidental” (2) Public benefit must be “clear and significant” Michigan SCt in Poletown repeatedly says these tests are met w/o much analysis

35. Significance of Poletown Tests Hatchcock overrules Poletown result & tests for Michigan We’ll go through new Michigan tests later BUT BUT Poletown tests still used by other states Can still use Poletown facts as example of how tests from case could be applied

36. Poletown Tests Used if land ends up in private hands (1)Public must be “primary beneficiary” & private benefit merely “incidental” Possible readings of “primary beneficiary” test: a.Quantitative weighing of public v. private benefit b.Primary purpose c.Who is driving the deal? (raised by Poletown dissent)

37. Poletown Tests Used if land ends up in private hands 2) Public benefit must be “clear and significant” Assume both words have meaning “Clear” as opposed to “speculative” “Significant” as opposed to “marginal”

38. Applying Legal Tests from Other Sources to the Facts of Decided Cases Generally, purpose is not to learn more about the decided case. Purpose is to learn more about how the test operates. Thus legal analysis within the decided case itself is usually not very relevant to this exercise.

39. DQ2.09 (Biscayne): Apply Poletown Tests to Facts of Midkiff (1)Public must be “primary beneficiary” & private benefit merely “incidental” Possible readings of “primary beneficiary” test: a.Quantitative weighing of public v. private benefit b.Primary purpose c.Who is driving the deal? (raised by Poletown dissent)

40. DQ2.09 (Biscayne): Apply Poletown Tests to Facts of Midkiff Public benefit must be “clear and significant” “Clear” as opposed to “speculative” “Significant” as opposed to “marginal”