1. PROPERTY D SLIDES 2-9-16 NATIONAL BAGEL DAY

2. Tuesday Feb 9 - Music to Accompany Midkiff: Tina Turner, Private Dancer (1984) Lunch Today Meet on Bricks @ 12:25 Bodzin * Friedland * Gordon Helmy * Knox * Parikh * Young

3. Previously in Property D Continued Work on Chapter 1 MWs & Right to Exclude: Problems Review Problem 1K(ii) (Using FL Statutes) Review Problem 1J (1 st Lawyering Q) Right to Exclude & Parcels Open to Public Your Money’s No Good Here: Continuum Common Law (No Limits or Innkeeper’s Rule) Civil Rights Statutes Brooks JMB & First Amendment Access to Malls Relevant Interests on Both Sides NJ & Calif use state 1 st Amdts to give access

4. Previously in Property D Introduction to Chapter 2 Federal Court Deference to State Legislation & the Rational Basis Test The Eminent Domain Power & Its Limits Takings Clause of 5 th Amdt Just Compensation as a Limit Democracy as a Limit Possible Need for Additional Limits When Money Not at Issue & We Don’t Trust Democratic Process

5. Property Open to the Public & the Right to Exclude I.Generally: Your Money’s No Good Here II.Free Speech Rights A.JMB (including Schmid) & DQ 1.24-1.28 (OLYMPIC) (Continued) (Continued) B.Review Problem 1I (BADLANDS) (Thursday) C.Review Problem 1K(i) (OLYMPIC) (Thursday  Friday)

6. Right to Exclude: Parcels Open to the Public Logic of JMB: Reasoning (Schmid Analysis) JMB Follows & Applies Schmid (NJ 1980) Schmid : Free Speech access to Princeton Univ. Schmid : Free Speech access to Princeton Univ. (Private property often open to public) Case described in detail on P89-90 Note: USSCt dismissed appeal in Schmid (see cite on P89) Appeal raised same type of fedl property rts claim made unsuccessfully in Pruneyard As could perhaps try re Shack

7. Right to Exclude: Parcels Open to the Public Logic of JMB: Reasoning (Schmid Analysis) Schmid Test (P90) Use to decide when 1 st Amdt requires access to private property open (for some purposes) to public Can use by analogy for other limits on Right to Exclude (e.g., for Qs raised in Brooks or Shack) Once access allowed, test largely unhelpful for deciding what restrictions allowable; Schmid just says they must be “reasonable”

8. Right to Exclude: Parcels Open to the Public Logic of JMB: Reasoning (Schmid Analysis) Schmid Test (P90) (1) Normal Use of Private Property in Q (2) Extent & Nature of [Public] Invitation (3) “[P]urpose of the expressional activity … in relation to both the public & private use of the property” Meaning of 1 st Two Factors Relatively Clear

9. Right to Exclude: Parcels Open to the Public Logic of JMB: Reasoning (Schmid Analysis) Schmid Test (P90) (3) “[P]urpose of the expressional activity … in relation to both the public & private use of the property” (P91) This factor: “examines the compatibility of the free speech sought with the uses of the property.” Means? 2014 student argument : compatibility as subjective: seeming to fit (like human relationship) (reasonable interpretation of language) BUT BUT Discussion in JMB seems to focus more on whether speech causes objective harm to existing uses.

10. Right to Exclude: Parcels Open to the Public Logic of JMB: Reasoning (Schmid Analysis) JMB Follows & Applies Schmid in Granting Free Speech Access to Malls Note importance of analogy to town square. Note importance of very broad invitation by malls. Court (P92) explicitly says it is drawing on common law as well as NJ 1 st Amdt Cites/discusses Shack Again suggests can use JMB/Schmid to support other kinds of limits on rt excl besides 1 st Amdt Qs on JMB Reasoning?

11. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude What Kind of Exam Problems Might You Expect A.Assume JMB or Pruneyard Applies: What Specifically Can/Can’t Mall Owners Do to Address Protestors B.Use Schmid & JMB to Help Determine if Right to Exclude Should be Limited in Particular Context for Speech Rights or Other Public Policy Considerations

12. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude A.Assume JMB or Pruneyard Applies: What Specifically Can/Can’t Mall Owners Do to Address Protestors 1.Review Problems Addressing: a.Rev Prob 1G (Short Problem): DF This Week b.Rev Prob 1I (Lawyering): Thursday c.Part of Rev Prob 1K(Part i) (Issue-Spotter): Thursday  Friday 2.Note Parallel to Allowable Regulations/Restrictions in MW Problems under Shack & FL Statute

13. OLYMPIC: DQ1.26 EEL GLACIER

14. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude (OLYMPIC) A.Assume JMB or Pruneyard Applies: What Specifically Can/Can’t Mall Owners Do to Address Protestors DQ1.26: You represent the owners of a relatively small NJ mall. What would you tell your clients re the following Qs about J.M.B.? Assume no additional cases or regulations Helpful to point to specific evidence from facts, language, logic of case. OK to use common sense (e.g., seems pretty unlikely that could limit protestor access to top floor of parking garage).

15. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude DQ1.26(a) (Olympic): Does case open up all malls in the state to protestors or will its application be determined on a case-by-case basis for each mall? (Evidence from JMB?)

16. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude DQ1.26(a) (Olympic): Will application of JMB be determined on a case-by-case basis? Evidence includes: All malls addressed in original case quite large “Regional” or “Community” Shopping Centers At least 71 stores & 27 acres (P87-88) Ruling “limited to leafletting at such centers” (1 st paragraph P86) BUT BUT: Likely no need to redo analysis for other large malls.

17. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude DQ1.26(a) (Olympic): Will application of JMB be determined on a case-by-case basis? Evidence includes: Schmid analysis consistent with case-by-case Check for smaller public invitation [than large malls] Check for less compatibility [than large malls] Note: No need to redo Schmid analysis for large malls or for large open private universities (like UM or Princeton) unless good reason to believe invitation or compatibility different.

18. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude MAF: DQ1.26(b): Assuming the case governs, do all political/protest groups have to be treated alike? Evidence includes: Common Sense: Can exclude groups if significant problems during past visits. Otherwise: Basis in 1 st Amdt Might suggest treating all groups/messages the same BUT (P92) refers to anti-war protest as “most substantial” and “central to the purpose” of 1 st Amdt interests; leaves room for argument about other issues.

19. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude DQ1.26(b): Assuming the case governs, do all political/protest groups have to be treated alike? Common Sense: Can exclude if significant problems during past visits. Basis in 1 st Amdt suggests treating all groups/messages the same. Hard Q not addressed in JMB or Pruneyard: Treat differently if targeting particular stores in mall? Different Treatment: [My] Left Side of Room No Different Treatment: [My] Right Side of Room

20. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude Hard Q not addressed in JMB or Pruneyard: Should you treat differently if targeting particular stores in mall? See Fashion Valley Mall v. NLRB, 172 P.3d 742 (Cal. 2007)  Forbids mall from excluding peaceful protestors because they are requesting that shoppers boycott a particular mall tenant.  No specific info on whether mall is allowed to place special restrictions on where protestors can operate in relation to targeted business

21. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude DQ1.26(c) (Olympic): Under JMB, what kinds of limits or requirements can the mall impose on protestors? Possible Examples? [Then We’ll Look at Language from Case]

22. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude DQ1.26(c) (Olympic): Under JMB, what kinds of limits or requirements can the mall impose on protestors? Possible Examples: Must stay in designated area. Limit on # of protestors per group. Limits re noise level, politeness, etc. Must clean up leaflets left around Reasonable deposit for [plausible/provable] clean-up/security costs.

23. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude Language of JMB DQ1.26(c) (Olympic): Under Language of JMB, what kinds of limits or requirements can the mall impose on protestors? Most important phrase likely is … time, place & manner [restrictions] Malls have “full power to adopt … time, place & manner [restrictions] that will assure … that … leafletting does not interfere with the shopping center’s business while … preserving the effectiveness of plaintiff’s exercise of their constitutional right.” (P91 right before §C) Time, Place & Manner [“TPM”] Restrictions = Standard 1 st Amdmt Category (in contrast to Subject Matter or Viewpoint Restrictions)

24. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude DQ1.26(c) (Olympic): Under JMB, what kinds of limits or requirements can the mall impose on protestors? Most important phrase likely is … (P91): Malls have “full power to adopt … time, place & manner [restrictions] that will assure … that … leafletting does not interfere with the shopping center’s business leafletting does not interfere with the shopping center’s business while preserving the effectiveness of P’s exercise of their constitutional right preserving the effectiveness of P’s exercise of their constitutional right.” Incorporates/balances interests of both sides. Other Evidence from JMB?

25. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude DQ1.26(c): Permissible limits or requirements? Other Evidence from JMB? General standards P86 “reasonable conditions” P89 describing Schmid: “reasonable regulations” P90 quoting Schmid: “suitable restrictions” P87: conditions noted that presumably go too far can’t approach shoppers insurance coverage FOR $$1m+ P86: case seems to be limited to passing out leaflets & related activity; suggests, e.g., might be OK to ban harassment or loud noises

26. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude DQ1.26(c): Permissible limits or requirements? Additional Info from Green Party (NJ 2000) (Note 5@P94-95) General standards P95: [Again] Balance rights of both sides in evaluating regulations P95: Fairly allocated fee OK if “objectively related” to evidence of real costs stemming from leafletting [and presumably other speech activity] Conditions rejected insurance coverage for $$1million “requirement of ‘hold harmless clause’” Limit on access to a “few days” per year

27. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude Qs on Permissible Requirements or JMB?

28. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude What Kind of Problems Might You Expect A.Assume JMB or Pruneyard Applies: What Specifically Can/Can’t Mall Owners Do to Address Protestors B.Use Schmid & JMB to Help Determine if Right to Exclude Should be Limited in Particular Context for Speech Rights or Other Public Policy Considerations

29. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude UseSchmid & JMB to Help Determine if Right to Exclude Should be Limited in Particular Context for Speech Rights or Other Public Policy Considerations 1.I’m not going to ask you to decide from scratch what scope of state’s 1st Amdt should be. 2.Might ask you to assume Schmid/JMB are good law & apply to different claims of free speech access (e.g., Rev. Prob 1K(Part i)). 3.Might give you more general Q on scope of right to exclude & you could use Schmid/JMB as one way to analyze (e.g., Rev. Prob. 1H). 4.For on your own: next slide with list of some relevant considerations

30. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude Scope of Right to Exclude in New Situations: Possible Relevant Considerations (Could Also Use for Non-1 st Amdt Speech Access) Protection of Disadvantaged Groups. E.g., Anti-Discrimination Law Shack & MWs Relationship to Gov’t or Law Implied K from Support of Govt for creation or operation of enterprise B/c Rt to Excl derives from state common law in 1 st instance, arguably can’t be used in way that violates public policy (Shack) Economic Concerns Monopoly Concern w Innkeeper Rule Furthering Commerce w Innkeeper Rule Protecting O’s Economic Interests (Shack & JMB)

31. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude DQ 1.27: Apply Schmid & JMB to Issue in Shack (1) Apply Schmid Test (2) Apply JMB Compare Shack to Facts of JMB Relevant Language & Policy Concerns from JMB I’ll Leave for You & DF & Provide Write-Up in Future Info Memo

32. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude DQ1.28. Can you formulate a rule or a set of standards for when a business generally open to the public should be prevented from excluding particular individuals or activities? Again, Leave for You Prior Years: Some students submitted written answers I’ll give you write up of submissions from prior classes in Info Memo on Chapter One

33. Property Open to the Public & the Right to Exclude I.Generally: Your Money’s No Good Here II.Free Speech Rights A.JMB (including Schmid) & DQ 1.24-1.28 (OLYMPIC) PREVIEW OF PROBLEMS FOR THURSDAY: B.Review Problem 1I (BADLANDS) C.Review Problem 1K(i) (OLYMPIC)

34. Preview of Review Problem 1I: Lawyering (Badlands) 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.

35. Preview of Review Problem 1I: Lawyering (Badlands) 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 (can she help, not should she) Could be relevant to different Q. BUT really more business than legal (would need detailed cost & revenue info to do financial cost/benefit analysis)

36. Preview of Review Problem 1I: Lawyering (Badlands) 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? Q’able Factual: How find out if claims are true? Send associate to Indonesia or Moldova to investigate? Client won’t pay for!!

37. Preview of Review Problem 1I: Lawyering (Badlands) FOCUS OF CLASS DISCUSSION THURSDAY Legal Research to Establish the Overall Legal Framework Legal & Factual Research Relevant to How the Mall Normally Handles Free Speech Access The Operation and Effects of These Protests (Including Targeting a Business Operating in the Mall)

38. Property Open to the Public & the Right to Exclude I.Generally: Your Money’s No Good Here II.Free Speech Rights A.JMB (including Schmid) & DQ 1.24-1.28 (OLYMPIC) PREVIEW OF PROBLEMS FOR THURSDAY: B.Review Problem 1I (BADLANDS) C.Review Problem 1K(i) (OLYMPIC)

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

40. FINAL EXAM QUESTION 4 ISSUE-SPOTTER Long Fact Pattern Generally Two to Four Major Subjects At Least One Statutory Issue (Saw Already in Rev. Prob. 1K(ii))

41. FINAL EXAM QUESTION 4 ISSUE-SPOTTER Relevant Skills Include … Recognizing Relevant Legal Issues * Identifying Most Important (= Most Contested) Topics & Making Best Arguments for Each Party Recognizing Significance of Facts in Problem Presenting Analysis in Organized Way Working with Relevant Statute[s]

42. PREVIEW: Review Problem 1K (Part i) (OLYMPIC) Part of 2014 XQ4 (Issue-Spotter): Additional Helpful Facts Mckain Medical School (MMS) is a private accredited medical school associated with a mainstream Protestant denomination. It is located in a small city in Gaidian. Wayne is General Counsel for MMS

43. PREVIEW: Review Problem 1K (Part i) (OLYMPIC) Part of 2014 XQ4 (Issue-Spotter): 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. Instruction Raises Two Qs: Can MMS Exclude FF from the Courtyard Completely? Assuming MMS Must Allow FF Access, What Restrictions May the School Place on FF’s Activities?

44. PREVIEW: Review Problem 1K (Part i) (OLYMPIC) Part of 2014 XQ4 (Issue-Spotter): 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? Identify as many relevant facts as you can from the problem and be prepared to discuss how they might affect the result. Task: 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.

45. 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

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

47. Background to Midkiff: Berman v. Parker 1.DC “Urban Renewal” Project: a.Fixing “Blighted” N-hood b.Forced Sales of Buildings to Private Redevelopers

48. Background to Midkiff: Berman v. Parker 1.DC “Urban Renewal” Project 2.US SCt. approves as “Public Use” a transfer of land from one private party to another Gives deference to plan of US Congress Once purpose w/in Congr. authority, Congr. can choose means to implement (incl. EmDom) Essentially reads “public use” to mean “benefits the public”

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

50. Midkiff: Challenged Program Perceived Problem: Market for Land Skewed Immense landholding by few owners (top of S22) Yields high prices; few transactions Many lease who want to buy Gov’t partly responsible: tax consequences discourage sales

51. 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

52. 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.

53. 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

54. 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

55. 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

56. ACADIA: DQs 2.06-2.07(a) Acadia Sunrise

57. Midkiff: Challenged Program & DQ2.06 (Acadia) “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?

58. Midkiff: Challenged Program & DQ2.06 (Acadia) 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

59. Midkiff: Challenged Program & DQ2.06 (Acadia) 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.”

60. 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

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

62. 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

63. 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)

64. 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)

65. 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)

66. (Acadia) 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?