1. State Tests for Public Use Michigan tests as examples ROYAL PALM: DQ84 FICUS: DQ85-87

2. POLETOWN & ALLENTOWN

3. ROYAL PALM: DQ84 APPLICATION OF PRIOR TESTS TO POLETOWN FACTS Midkiff: Rational Basis Test Identify Purpose Is Purpose Legitimate? Are Means Rationally Related to Purpose?

4. ROYAL PALM: DQ84 APPLICATION OF PRIOR TESTS TO POLETOWN FACTS Kelo Majority?

5. ROYAL PALM: DQ84 APPLICATION OF PRIOR TESTS TO POLETOWN FACTS Kelo Majority: Partial Analysis Not OK if purpose is purely private benefit. (Not true in Poletown) Suspicious if transferring from one citizen to another b/c will put to better use. (Arguably true in Poletown) Different from Kelo b/c no comprehensive plan or thorough deliberation

6. ROYAL PALM: DQ84 APPLICATION OF PRIOR TESTS TO POLETOWN FACTS Kelo Kennedy Concurrence?

7. ROYAL PALM: DQ84 APPLICATION OF PRIOR TESTS TO POLETOWN FACTS KND Concurrence: Partial Analysis Pro: serious economic crisis; public benefit significant & arguably not incidental Con: known beneficiary; lack of comprehensive planning Hard Q: Is acceding to GM’s specific demands “favoritism” or sensible way to achieve big economic benefit?

8. FICUS: DQ85 APPLICATION OF POLETOWN TESTS TO KELO FACTS 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”

9. FICUS: DQ85 APPLICATION OF POLETOWN TESTS TO KELO FACTS (1)Public must be “primary beneficiary” & private benefit merely “incidental” APPLY TO KELO

10. FICUS: DQ85 APPLICATION OF POLETOWN TESTS TO KELO FACTS (1)Possible readings of “primary beneficiary” test: Quantitative weighing of public v. private benefit Primary purpose (see KND CCR) Who is driving the deal?

11. FICUS: DQ85 APPLICATION OF POLETOWN TESTS TO KELO FACTS (2) Public benefit must be “clear and significant” APPLY TO KELO

12. FICUS: DQ85 APPLICATION OF POLETOWN TESTS TO KELO FACTS (2) Public benefit must be “clear and significant” (possible meanings) Assume both words have meaning Clear (as opposed to “speculative”) Significant (as opposed to “marginal”)

13. Significance of Poletown Tests Poletown overruled by Hatchcock Poletown tests still used by other states (like Restatement 2d & Carpenter I) Can still use Poletown facts as example of how the tests could be applied

14. FICUS: DQ86-87 In Hatchcock, the Michigan Supreme Court articulates three “situations” where property acquired through Eminent Domain can legitimately end up in private hands.

15. FICUS: DQ86-87 Hatchcock’s three “situations” (1)Public Necessity: Only way to do project is through Eminent Domain (RRs, highways, etc.) Justification: overcome high transaction costs OCR P189: Hard to determine if really necessary DQ87: Merrill would apply in all Eminent Domain cases (not just private recipients)

16. FICUS: DQ86-87 Hatchcock’s three “situations” (1)Public Necessity: Only way to do project is through Eminent Domain (RRs, highways, etc.) DQ86-87:Apply to facts of Kelo

17. FICUS: DQ86-87 Hatchcock’s three “situations” (1)Public Necessity: Only way to do project is through Eminent Domain (RRs, highways, etc.) DQ87:Apply to facts of Poletown

18. FICUS: DQ86-87 Hatchcock’s three “situations” NOTE: Hatchcock overruled Poletown & struck down use of ED to create 1300- acre business & technology park. So must have believed that both would fail all three tests.

19. FICUS: DQ86-87 Hatchcock’s three “situations” (2) Private entity remains accountable to public for its use Could make private ownership contingent on particulars Govt could retain say in management Justification?

20. FICUS: DQ86-87 Hatchcock’s three “situations” (2) Private entity remains accountable to public for its use Could make private ownership contingent on particulars Govt could retain say in management Justification: Not entirely private use if some public control

21. FICUS: DQ86-87 Hatchcock’s three “situations” (3) Selection of land based on public concern Justification: “Public” part is the taking of the land itself, not who ends up with it. O’Connor position in Kelo True in Berman and (arguably) Midkiff Not true in Kelo & Poletown

22. CHAPTER FOUR REVIEW Federal Standards –Midkiff facts & Rational Basis Test –Kelo facts & positions in all 4 opinions State Standards –Poletown facts & tests (apply in other states) –Hatchcock tests (apply in Michigan) Underlying Policy Concerns –Re Eminent Domain in general –Re Public Use