1. Music: Mozart Piano Concertos 26 & 27 (1788, 1791) Vienna Symphony (Recorded 2004) Rudolf Buchbinder, Piano/Conductor LAST EXAM-TIPS WORKSHOP TODAY @12:30 in F309

2. Unit Three : Constitutional Protection of Private Property State Regulations of Land Use Frequently Limit What Landowners Can Do With Their Land and/or Reduce Its Value. Our Issue : Under What Circumstances Does the U.S. Constitution Require that the State Compensate the Landowner for These Effects?

3. Unit Three : Introduction DQ95: Role of Fed’l Court (Oxygen) LAST TIME: Why shouldn’t a Federal Court strike down a state statute because it is stupid? Common Answers Include: Democratic Theory (State Legislature is Elected Body; Fed’l Court Isn’t) Relative Expertise (Legislatures Better at Fact- Finding than Courts)

4. Unit Three : Introduction DQ95: Role of Fed’l Court (Oxygen) Upshot = Default Rule is Deference to State Legislation Many Bad Laws are Constitutional State Legislatures Allowed to do Stupid Things Unless They Violate a Specific Constitutional Provision (Parent Analogy)

5. Unit Three : Introduction DQ95: Role of Fed’l Court (Oxygen) Parent Analogy “You Are Not Leaving the House in That!!”

6. Unit Three : Introduction DQ95: Role of Fed’l Court (Oxygen) Default is Deference to State Legislation States Allowed to do Stupid Things Unless They Violate a Specific Constitutional Provision Relevant Provision Here is Takings Clause of Fifth Amendment (Applicable to States through Fourteenth Amendment)

7. Unit Three : Introduction DQ96: Takings Clause (Oxygen) Takings Clause of the Fifth Amendment of the U.S. Constitution: “[N]or shall private property be taken for public use without just compensation” What sort of cases do you think the framers intended to prevent when they included this provision in the Constitution?

8. Unit Three : Introduction DQ96: Takings Clause (Oxygen) Takings Clause : “[N]or shall private property be taken for public use without just compensation” 1.Eminent Domain (Property not Elements) – Govt Deliberately Attempts to Purchase Private Property (“Condemnation”) – Takings Clause requires: – “For Public Use” (Midkiff, Kelo, etc.) – “Just Compensation” (= Fair Market Value)

9. Unit Three : Introduction DQ96: Takings Clause (Oxygen) Takings Clause : “[N]or shall private property be taken for public use without just compensation” 1.Eminent Domain (Property not Elements) – Takings Clause requires: – “For Public Use” = Concern About Govt Handing Out Prizes to Favored Individuals – “Just Compensation”

10. Unit Three : Introduction DQ96: Takings Clause (Oxygen) Takings Clause : “[N]or shall private property be taken for public use without just compensation” 1.Eminent Domain (Property not Elements) – Takings Clause requires “Public Use” and – “Just Compensation” = Concerns About – Ensuring Govt Has to Consider/Budget to Take Land – Protecting/Encouraging Investment in Land – Taking Property to Punish Disfavored Individuals – Redistributing Wealth – (Shout-Outs to §B1: Importico; LaFalce; Suarez)

11. Unit Three : Introduction DQ96: Takings Clause (Oxygen) Takings Clause : “[N]or shall private property be taken for public use without just compensation” 1.Eminent Domain (Property not Elements) – Takings Clause requires “Public Use” and – “Just Compensation” = Concerns About – Taking Property to Punish Disfavored Individuals – Redistributing Wealth – Speculation re Madison & Slavery

12. Unit Three : Introduction DQ96: Takings Clause (Oxygen) Takings Clause : “[N]or shall private property be taken for public use without just compensation” 1.Eminent Domain Cases 2.Takings Cases (Elements Unit Three) – Govt Not Trying to Purchase, but to Regulate – Property Owner Claims Regulation Effectively “Takes” Property so Govt Must Cease or Pay (“Inverse Condemnation” Action)

13. Unit Three : Introduction DQ96: Takings Clause (Oxygen) Takings Clause : “[N]or shall private property be taken for public use without just compensation” 1.Eminent Domain Cases 2.Takings Cases (Elements Unit Three) – Property Owner Claims Regulation Effectively “Takes” Property so Govt Must Cease or Pay (“Inverse Condemnation” Action) – Little Historical Evidence Connecting Framers to These Claims

14. Unit Three : Introduction DQ96: Takings Clause (Oxygen) Takings Cases (Elements Unit Three) Property Owner Claims Regulation Effectively “Takes” Property so Govt Must Cease or Pay Left with Hard Q of When Govt Must Pay – Really No Historical Guidance – Generally Defer to State Legislative Process – Can’t Pay for All Loss of Value (Military Bases; Opium Poppies)

15. Unit Three : Introduction Relevant Considerations in Takings Cases We’ll Look at Cases & Theorists to Determine What’s Relevant Cases Complex (Like Escape Cases) – Use a Variety of Factors – Can Use Charts to Keep Track

16. Unit Three : Introduction Relevant Considerations in Takings Cases Survey of Instincts About What Facts Matter 1.% Reduction in Value 2.$$$ Amount Reduction (Loss Can Be Small % but Big $$$ or v-v) 3.$$$ Amount Left (Regardless of Loss, Is What’s Left Substantial?) 4.Return on Investment (Focus on Long Term Financial Effects to O) 5.Ban on Intended Use 6.Purpose of Regulation

17. Unit Three : Introduction Relevant Considerations in Takings Cases Survey of Instincts About What Facts Matter 68 Responses % Reduction in Value (61) Ban on Intended Use (61) $$$ Amount Reduction (42) Purpose of Regulation (37) $$$ Amount Left (29) Return on Investment (18)

18. Unit Three : Introduction Relevant Considerations in Takings Cases Survey Data on Instincts (68 Responses) Every Option Chosen By At Least Two Students ABCDE Strongest2183646 2d Strongest27102065 3d Strongest151242215 4 th Strongest181342410 5 th Strongest61341232 Average Rank (1 = Strongest) 3.02.81.83.53.8

19. Unit Three : Introduction Relevant Considerations in Takings Cases Survey of Instincts About What Facts Matter (A) Owner just purchased land and can still use the land in the way she intended; market value of land reduced 60%. (Avg = 3.0) (Compare to E) (B) Owner can no longer use the land the way he had been using it; market value of land reduced 5%. (Avg =2.8) (Compare to A & D) (C) Current use of land limited, not eliminated; market value of land reduced from $100,000 to $20,000 (Avg = 1.8) (Compare to A & D) (D) Current use of land limited, not eliminated; market value of land reduced from $10,000,000 to $9,000,000 (Avg = 3.5) (E) Land purchased for $50,000 five years ago; market value of land before regulation $200,000; market value after regulation $80,000; current use unlimited. (Avg = 3.8)

20. Unit Three : Constitutional Protection of Private Property Special Tools Recurring Hypo: “Airspace Solution to Hammonds Problem” (Introduced in DQ 97) Minimum Requirement for Constitutionality: Rational Basis Review (Introduced in DQ 98) The “Demsetz Takings Story” (Introduced in DQ 99) In Class: Replace Briefs w Introductory Line of Qs for Each Case (Introduced in DQ100) Four Theorists (Each Panel will Introduce One)

21. Unit Three : Introduction DQ97: Airspace Solution (Oxygen) “Airspace Solution to Hammonds Problem” Suppose Kentucky adopts a statute treating empty underground gas reservoirs like airspace needed for airlines. The statute: (a) allows the gas company to store its gas under Ms. Hammonds’s property without paying rent; and (b) prohibits her from extracting it.

22. Unit Three : Introduction DQ97: Airspace Solution (Oxygen) Suppose Kentucky adopted a statute that (a) allowed the gas company to store its gas under Ms. Hammonds’s property without paying rent; and (b) prohibited her from extracting it. Suppose Ms. Hammonds then claims this is an unconstitutional taking of her property. Do you think this is the kind of harm the Takings Clause forbids? Why or Why Not?

23. Unit Three : Introduction DQ97: Airspace Solution (Oxygen) Suppose Kentucky adopted a statute that (a) allowed the gas company to store its gas under Ms. Hammonds’s property without paying rent; and (b) prohibited her from extracting it. Suppose Ms. Hammonds then claims this is an unconstitutional taking of her property. We’ll apply the authorities we study to this problem to help see what they do.

24. Unit Three : Introduction To Krypton for DQ98-100

25. Unit Three : Introduction DQ98: Police Power (Krypton) “Police Power” = Basic Authority of State Gov’ts Can regulate to protect/further “HSWM” Health Safety Welfare [general well-being including economic success] Morals Good lawyer can tie virtually any state law to one of these purposes

26. Unit Three : Introduction DQ98: Rational Basis Review (Krypton) Is Challenged Law “Rationally Related to a Legitimate State Purpose”? – Minimal Test for Constitutionality Under Due Process & Equal Protection Clauses – Applies When No Specific Constitutional Provision is Violated – Very Deferential: Gov’t Virtually Always Wins

27. Unit Three : Introduction DQ98: Rational Basis Review (Krypton) “Rationally Related to Legitimate State Purpose” – What is Purpose? – Is Purpose Legitimate? Arising under Police Power (HSWM) Not Just to Harm Individuals or Group – Is Law “Rationally Related” to Purpose?

28. Unit Three : Introduction DQ98: Rational Basis Review (Krypton) “Rationally Related to Legitimate State Purpose” – What is Purpose? – Is Purpose Legitimate? – Is Law “Rationally Related” to 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 particularly good

29. Unit Three : Introduction DQ98: Rational Basis Review (Krypton) Apply to Airspace Solution – What is Purpose? – Is Purpose Legitimate? Arising under Police Power Health Safety Welfare Morals – Is Law “Rationally Related” to Purpose? Could a rational legislator believe the state law will help further its purpose, at least a little bit?

30. Unit Three : Introduction DQ99: Demsetz Takings Story (Krypton) Description of How Takings Cases Arise Change leads to rising externalities Creates a demand for a change in the law. After the change, people affected by the new law complain that their property rights have been taken.

31. Unit Three : Introduction DQ99: Demsetz Takings Story (Krypton) Airspace Solution? Change leads to rising externalities Creates a demand for a change in the law. After the change, people affected by the new law complain that their property rights have been taken.

32. Unit Three : Introduction DQ99: Demsetz Takings Story (Krypton) Description of How Takings Cases Arise Change leads to rising externalities Creates a demand for a change in the law. After the change, people affected by the new law complain that their property rights have been taken. Long Term Q for You: If this story represents a common pattern among Takings cases, what does that suggest about the proper role of the Takings Clause?

33. LOGISTICS: CLASS #27 Won’t get to Mahon v. Penn Coal Friday, so shift reading of majority opinion & DQ106  Mon-Tues Assignment #3 – “International Waters” Point is no trespass-like claims by nearby nations Like “deserted beach” in Pierson – Sub-Assignment 3C Choosing Alternative: Can pick from Usual Options for Escape Cases: OO always wins; F always wins; variations on salvage; registration systems Different option of your own creation – Other Qs??

34. Hadacheck v. Sebastian Background: Growth of Los Angeles OIL: – Discovered 1876 – SoCal produces 25% of world’s oil in 1920s WATER: Aqueduct Completed in 1913 MOVIE INDUSTRY: Beginning 1910 – Weather/Sunlight – Proximity to Mexico & Patent Evasion

35. Hadacheck v. Sebastian DQ100: Introduction (Krypton) Useful in Takings cases to begin analysis with challenged gov’t action, rather than with a description of the lawsuit. DQ100 provides a standard set of Qs that, along with brief, will help you understand what’s at issue in the cases. We’ll use again in DQs 106, 115 & 124.

36. Hadacheck v. Sebastian DQ100: Introduction (Krypton) Challenged Action & Rational Basis Review Government action in Hadacheck: (p.101) L.A. Ordinance banning operation of brickyard in city What is the purpose of the action? Legitimate (HSWM)? Is the action rationally related to the purpose?