1. PROPERTY D SLIDES 2-6-14

2. Thursday Feb 6: Music Billy Joel, Nylon Curtain (1982) Lunch Today (Meet on Bricks @ 12:25) Abeckjerr; Desir; Gaid; Hoffman; Iscowitz; Khoury

3. BISCAYNE: Rev. Prob. 1H SUNRISE AT ADAMS KEY

4. Right to Exclude: Review Problem 1H (Biscayne) Client M owns Mall Tenant ES = outlet store for co. accused of using sweatshop labor overseas Prior O allowed protestors to hand out leaflets w these accusations near ES store ES complains protestors drive away customers M wants to know if she can “do more to satisfy” ES.

5. Right to Exclude: Review Problem 1H (Biscayne) M wants to know if she can “do more to satisfy” ES. Keep specific client request in mind Two problems that occurred in exam answers: 1.Qs going to whether M should drop ES as a tenant outside scope of request; could be relevant to different Q BUT really more business than legal

6. Right to Exclude: Review Problem 1H (Biscayne) M wants to know if she can “do more to satisfy” ES. Keep specific client request in mind Two problems that occurred in exam answers: 2.Qs going to whether claims about ES are true Legal relevance to your client’s concerns? Factual: How find out?

7. Right to Exclude: Review Problem 1H (Biscayne) Legal Research to Establish the Overall Legal Framework?

8. Right to Exclude: Review Problem 1H (Biscayne) Legal Research to Establish Overall Legal Framework Basic rule for jurisd. if any; Possibilities? No right to protest at malls (most states) Specific right to protest at malls Depends on mall (compare to facts re this mall) Specific rules re size, etc. Gen’l rule like Schmid If right to protest, info on allowable restrictions

9. Right to Exclude: Review Problem 1H (Biscayne) Legal & Factual Research Relevant to How the Mall Normally Handles Free Speech Access

10. Right to Exclude: Review Problem 1H (Biscayne) Legal & Factual Research Relevant to How the Mall Normally Handles Free Speech Access Should Include: Existing Rules & Practices Prior Experience/Difficulties Comparison to What State Allows

11. Right to Exclude: Review Problem 1H (Biscayne) Legal & Factual Research Relevant to The Operation and Effects of These Protests (Including Targeting a Business Operating in the Mall) Relevant Info re Protest & Protestors? Harm to ES? Harm to Other Businesses? Harms to Mall Operation? Related Legal Research?

12. Right to Exclude: Review Problem 1H (Biscayne) Legal & Factual Research Relevant to The Mall Having Allowed These Protesters in the Past & General Information to Help Understand the Situation I’ll Leave for You

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

14. 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

15. 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)

16. 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 …

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

18. 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”

19. 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

20. 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

21. 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 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.

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

23. 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 Individuals or Group 3.Determine if Law “Rationally Related” to its Purpose Sample? Shenandoah: Will Do Later for DQ2.07-2.08

24. 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

25. 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

26. 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

27. 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) Govt 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 Govt Almost Never Wins

28. 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

29. 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 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

30. 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

31. 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

32. 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” (Midkiff, Kelo, etc.) “Just Compensation” (= Fair Market Value)

33. 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

34. Chapter 2 : Eminent Domain: Some Policy Concerns Involuntary Transfer Like Adverse Possession & Intestacy Eminent Domain (ED!) Very Common & Important Kind of Involuntary Transfer Govt Can Force Owner to Sell DQ2.01-2.03 Get At Underlying Issues

35. REDWOOD: DQ 2.01-2.02 REDWOODS & FERNS

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

37. Chapter 2 : Eminent Domain: Some Policy Concerns DQ2.01 (Redwood): 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 Can View as “Tax” for Living in Society w Schools, Roads, Other Govt Buildings & Projects (cf. Chapter Title: “The Cost of Living in a Democratic Society”)

38. Chapter 2 : Eminent Domain: Some Policy Concerns Limits on Eminent Domain Power 1.Just Compensation 2.Democracy: Politics & $$$ 3.Public Use Requirement

39. Chapter 2 : Eminent Domain: Some Policy Concerns Limits on Eminent Domain Power 1.Just Compensation: a.Must Pay Fair Market Value (FMV) b.Addresses Concerns like – Ensuring Govt Has to Consider/Budget to Take Land – Protecting/Encouraging Investment in Land – Harder to Confiscate Property from Disfavored Persons – (Maybe) Harder to Redistribute Wealth

40. Chapter 2 : Eminent Domain: Some Policy Concerns Limits on Eminent Domain Power 1.Just Compensation: a.Must Pay Fair Market Value (FMV) b.Addresses Concerns like – Harder to Confiscate Property from Disfavored Persons – (Maybe) Harder to Redistribute Wealth c. Speculation re Madison & Slavery

41. Chapter 2 : Eminent Domain: Some Policy Concerns Limits on Eminent Domain Power 1.Just Compensation (FMV) 2.Democracy: Politics & $$$ a.FMV also is big practical limit b.State/Local Govts Usually Short of $$$ c.Plus Too Much Forced Sale = Politically Unpopular

42. Chapter 2 : Eminent Domain: Some Policy Concerns DQ2.02 (Redwood): Where Os Receive Fair Market Value & Democracy & Budgets Limit, Why Do We Need Other Limits on EmDom?

43. Chapter 2 : Eminent Domain: Some Policy Concerns DQ2.02: Where Os Receive FMV & Democracy & Budgets Limit, Why Do We Need Other Limits on EmDom? 1.FMV Not Always Adequate Compensation 2.Problems with “Democracy & Budgets” as Limits on EmDom

44. Chapter 2 : Eminent Domain: Some Policy Concerns 1.Why FMV Not Adequate Compensation Most people not interested in selling at time Ignores personal value (sentiment; connection to n-hood) Ignores investments by OO not worth as much to typical buyer (me & dog-proofed fence & owl shelving) Ignores relocation & disruption; loss of stability, etc.

45. Chapter 2 : Eminent Domain: Some Policy Concerns 2.Problems with Democracy & Budgets as Limits on Eminent Domain Tendency to Select Land of Politically Weak Placement of Sewage Disposal/Hazardous Waste Fedl Interstate Highway Exchanges in Cities Situations When Budgets Not at Issue E.g., Federal Funds E.g., Cross-Bronx Expressway E.g., $$$ Not Coming from Govt (Midkiff & Kelo)