1. PROPERTY A SLIDES 2-20-15

2. Feb 20 Music: Jason Mraz, Mr. A-Z (2005) Shenandoah Reminder: Critique of Rev. Prob. 2C Due Tomorrow @ 10am Critique of Rev. Prob. 2C Due Tomorrow @ 10am Name the Musical Group: 1 st Billboard #1 Hit in 1958 Won 5 Grammys; Nominated for 8 More Featured in Major Studio Motion Picture in 2011

3. Name the Musical Group: 1 st Billboard #1 Hit in 1958 Won 5 Grammys; Nominated for 8 More Featured in Major Studio Motion Picture in 2011

4. Name the Musical Group: 1 st Billboard #1 Hit in 1958 Won 5 Grammys; Nominated for 8 More Featured in Motion Picture in 2011

5. Closing Up REVIEW PROBLEM 2C Need to Understand Specific Definitions “Public Necessity” Does NOT Mean Project must be Necessary to Public Instead: 1.Project is Important -AND- 2.EmDom must be Necessary to Do Project Independent In “Selection”: Independent means reasons to select location unconnected to success of intended Project Questions? Questions?

6. Chapter 2: The Eminent Domain Power & the Public Use Requirement Federal Constitutional Background State Public Use Standards Kelo & Beyond Kelo & Beyond Kelo Majority & Kennedy Concurrence Kelo Dissents & Merrill Kelo Dissents & Merrill Review Problems Setting Up Rev. Problem 2G for Tuesday Rev. Problem 2D

7. YELLOWSTONE (DQ2.15-2.17) GIANT GEYSER

8. Kelo Dissents: DQ2.15 (Yellowstone) OCR Dissent joined by RNQ SCA THS Justice O’Connor wrote the majority opinion in Midkiff. In her dissent in Kelo, how does she distinguish Midkiff from Kelo?

9. Kelo Dissents: DQ2.15 (Yellowstone) OCR Dissent joined by RNQ SCA THS Justice O’Connor wrote the majority opinion in Midkiff. How does she distinguish that case in her dissent in Kelo? Govt Purpose/ Public Benefit… Was Purchase Itself in Midkiff (& Berman). Was Resulting Private Ownership in Kelo. Convincing? NOTE: OCR Test implicitly is Hatchcock Situation #3

10. Kelo Dissents: DQ2.15 (Yellowstone) OCR Dissent joined by RNQ SCA THS (P183) If economic development counts as a public use, “[n]othing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory ….” How would majority likely respond?

11. Kelo Dissents: DQ2.16 (Yellowstone) THS Dissent Dissenting alone (pretty common) Rests on his sense of original understanding (probably correct but see delegation examples in Note 7 (P189)) Would adopt rule: Gov’t Must Own -OR- Public Must Have Right to Use Probably includes privately owned railroads, public utilities, stadiums (See OCR Dissent, which THS joined)

12. Kelo Dissents: DQ2.16 (Yellowstone) THS Dissent Would adopt rule : Govt Must Own -OR- Public Must Have A Right to Use Rests on his sense of original understanding Similar to Wash. State’s approach in City of Seattle Strengths of that approach? Weaknesses of that approach?

13. Kelo Dissents: DQ2.16 (Yellowstone) Why does Justice Thomas believe that the interests of poorer citizens and people of color are particularly threatened by the majority’s approach? Convincing?

14. Kelo Dissents: DQ2.16 (Yellowstone) (P184) THS refers to Carolene Products FN4 “discrete & insular minorities” Suggests less deference appropriate Not clear how he would apply in practice To get Heightened Scrutiny because of these concerns, normally would need very strong evidence of discriminatory purpose by govt (hard to do generally & even more so where big economic benefit ) Qs on Kelo Dissents?

15. Other Approaches: DQ2.17 (Yellowstone) Professor Merrill’s Approach (Note 5 P188) Use of EmDom Must Be Necessary to Accomplish Project Hatchcock Situation #1, Applied to ALL EmDom (Not Just Cases Where Private Party Gets Land) Might be met in cases like Kelo where you need to assemble a very large parcel Fact Q in case like Poletown BUT Mich SCt thinks not met either in Poletown or in Hatchcock itself (1300 acres)

16. Other Approaches: DQ2.17 (Yellowstone) Professor Merrill’s Approach (Note 5 P196) Use of EmDom Must Be Necessary to Accomplish Project What are some strengths and weakness of this approach compared to those used by the cases in this chapter?

17. Chapter 2: The Eminent Domain Power & the Public Use Requirement Federal Constitutional Background State Public Use Standards Kelo & Beyond Kelo & Beyond Kelo Majority & Kennedy Concurrence Kelo Dissents & Merrill Review Problems Review Problems Setting Up Rev. Problem 2G for Tuesday Setting Up Rev. Problem 2G for Tuesday Rev. Problem 2D

18. FINAL EXAM QUESTIONS Choose Three of Four XQ1: LAWYERING XQ2: SHORT ANSWERS (Choose Three of Four) XQ3: OPINION/DISSENT XQ4: TRADITIONAL ISSUE-SPOTTER

19. FINAL EXAM QUESTION 3 OPINION/DISSENT Instructions Will Say (Roughly) … Based on the information presented here, draft the analysis sections of a majority opinion for the [U.S. or Name-of-State] Supreme Court and of a shorter concurrence or dissent, deciding [the legal question indicated].

20. FINAL EXAM QUESTION 3 OPINION/DISSENT Task: Choose & Defend Rules for a Specific Legal Issue Describe and Defend Two Positions Utilize Range of Relevant Arguments from Course. E.g., Policy from Relevant Area Ease of Application/Institutional Competence Likely Effects on Behavior of Relevant Parties Application to Facts & Resolution of Case Much Less Important Than Defense of Rule

21. FINAL EXAM QUESTION 3 OPINION/DISSENT Task: Choose & Defend Rules for a Specific Legal Issue Take on Role of US/State Supreme Court Take on Role of US/State Supreme Court Setting Rules for Lots of Cases While Deciding One Case Can Choose to Affirm or Modify Precedent; Must Defend Ideally Both Opinions Address Own Weaknesses Ideally Both Opinions Address Own Weaknesses Acknowledge & Address Problems w Own Position Address Other Side’s Best Points

22. FINAL EXAM QUESTION 3 OPINION/DISSENT Instructions for 2G (Spring 2013) Compose drafts of the analysis sections of both: (a) a majority opinion for the Court, determining the legal standards that should apply and defending your choice; and (b) a shorter opinion arguing that the Court should apply different legal standards than those adopted by the majority and defending this position. (If the result in this case under this test is the same as under the majority’s test, call this a concurrence; otherwise, call it a dissent.)

23. Review Problem 2G Tuesday On test, you could choose any two plausible rules to defend in your two opinions. For clarity Tuesday: Yellowstone will defend Hatchcock Rule Yellowstone will defend Hatchcock Rule Shenandoah will defend pure Rational Basis For critique, Redwood will treat Yellowstone/Hatchcock as Plaintiff Shenandoah/Ratl. Basis as Defendant

24. Review Problem 2G Tuesday Yellowstone will defend Hatchcock Rule Yellowstone will defend Hatchcock Rule Shenandoah will defend pure Rational Basis Sequence of Qs Addressed: Why Each Particular Hatchcock Situation is/isn’t a Useful Test for Public Use Why Rational Basis is/isn’t a Useful Test for Public Use Why the Rule You Are Defending is Preferable to the Primary Beneficiary Test from Poletown

25. Review Problem 2G Tuesday Keep in Mind: Cases treat government as equivalent to public for purposes of Public Use tests Cases do not consider extent of harm to owners whose land will be purchased or value to public of uses lost You can use facts of particular case as an example to illustrate a particular argument for or against a rule. Useful to try to address arguments raised by “lower courts.” Qs on Review Problem 2G?

26. Chapter 2: The Eminent Domain Power & the Public Use Requirement Federal Constitutional Background State Public Use Standards Kelo & Beyond Kelo & Beyond Kelo Majority & Kennedy Concurrence Kelo Dissents & Merrill Review Problems Review Problems Setting Up Rev. Problem 2G for Tuesday Rev. Problem 2D Rev. Problem 2D

27. BISCAYNE: Rev. Prob. 2D SUNRISE AT ADAMS KEY

28. Review Problem 2D City developing Museum on own land next to Old Grantham OG = Slightly rundown neighborhood w shabby but occupied apt complexes, warehouses, and a few small businesses (incl. pawnshop & XXX bookstore). Developer D wants to develop 24-sq-block part of OG into mixed-use project containing residences, offices, stores and restaurants. City uses EmDom to purchase area & resell to D contingent on her building proposed project.

29. REVIEW PROBLEM 2D Under Rational Basis Test Purpose of Program? Upgrade N-Hood; Improve Museum Prospects Legitimate? (Connected to Health, Safety, Welfare, Morals) YES. Both are Welfare Program Rationally Related to Purpose? Plausible Successful Developer Can Upgrade Neighborhood? YES Plausible Better Neighborhood Helps Increase Visits to Museum? YES EASY CASE UNDER RATIONAL BASIS

30. REVIEW PROBLEM 2D EASY CASE UNDER RATIONAL BASIS TODAY: Q under Kelo Majority & KND Concurrence: Does the Situation Here Warrant Greater Scrutiny or is Pure Rational Basis the Appropriate Test NEXT WEEK IN DF: Do as Lawyering Q Take into Account Both Federal Standards and Possible Stricter State Standards

31. Biscayne: REVIEW PROBLEM 2D Facts/Aspects Of Problem That Might Point To Greater Scrutiny Under Kelo Majority or KND?

32. Biscayne: REVIEW PROBLEM 2D Facts/Aspects Of Problem That Tend to Support Rational Basis/Deference?

33. Biscayne: REVIEW PROBLEM 2D Overall: Enough Reasons for Concern to Forego Deference/Rational Basis?