1. PROPERTY D SLIDES 2-5-16 NATIONAL WEATHERPERSON’S DAY & NATIONAL SHOWER-WITH-A-FRIEND DAY Looks like a very high chance of showers pretty much everywhere.

2. Friday Feb 5 Music: Indigo Girls, Swamp Ophelia (1994) Lunch Today Meet on Bricks @ 12:25 Alfonso * Alvarez * Chipi * Hoffman Ledig * Manzano * Postal

3. As Valentine ’ s Day Approaches : Way Too Much Part Two (featuring the Voice Talents of Dan Hales)

4. Every kiss begins with Kay®

5. I’ve seen those Kay Jewelers ads …

6. … but frankly, if I give someone a $5000 diamond bracelet, …

7. … I’m looking for a little more than a kiss. That’s why I shop at …

8. Eff Jewelers Taking Care of Your Family Jewels

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

10. Chapter 2 : Federal Constitutional Background Note Marble Headers & Old English Font Federal Courts Determining if State Law Violates US Constitution Often in Con Law I: “Procedural” Often in Con Law I: “Procedural” Not Looking at Substance of State Law Looking at Authority (v. Feds) Over Subject Matter. E.g., Pre-Emption by Congress Dormant Commerce Clause

11. Chapter 2 : Federal Constitutional Background Fed’l Cts Determining if State Law Violates US Constitution Con Law I = Mostly “Procedural” (Compare Subject Matter to State v. Fed’l Authority or to Powers of Fed’l Branches) Con Law I = Mostly “Procedural” (Compare Subject Matter to State v. Fed’l Authority or to Powers of Fed’l Branches) Compare: Review of Substance Employed to Check Validity Under 14th Amdt and Bill of Rights Compare: Review of Substance Employed to Check Validity Under 14th Amdt and Bill of Rights Most people believe this should not include determining whether the statute is a good idea as a matter of policy. DQ 2.05: Why shouldn’t a federal court strike down a state statute because it’s unlikely to do a good job achieving its purpose or because it’s simply stupid?

12. 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

13. 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)

14. 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 …

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

16. 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”

17. 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

18. 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

19. Chapter 2 : Federal Constitutional Background: Rational Basis Review Is Challenged Law “Rationally Related to a Legitimate State Purpose” ? Purpose is Legitimate if arises from “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. (E.g., Not-So-Sunny-Iles Act)

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

21. 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 Particular Individuals or Group 3.Determine if Law “Rationally Related” to its Purpose Will Do Samples Next Week in DQ2.07-2.08

22. 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

23. 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

24. 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

25. 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) Gov’t 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 Gov’t Almost Never Wins

26. 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

27. 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/use 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

28. Chapter 2: The Eminent Domain Power & the Public Use Requirement Federal Constitutional Background Federal Constitutional Background Deference, Rational Basis, Heightened Scrutiny The 5th Amdt, Eminent Domain & Public Use The 5th Amdt, Eminent Domain & Public Use Limited Federal Review Under Berman & Midkiff State Public Use Standards Kelo & Beyond

29. 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

30. 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” (Our Issue: Midkiff, Kelo, etc.) “Just Compensation” (= Fair Market Value)

31. 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

32. Chapter 2 : Eminent Domain: Some Policy Concerns Eminent Domain = Involuntary Transfer Like Adverse Possession (Chapter 3) & Intestacy (We’ll Note Briefly in Chapter 4) Eminent Domain (ED!) Very Common & Important Kind of Involuntary Transfer Gov’t Can Force Owner to Sell DQ2.01-2.03 Get At Underlying Issues

33. ACADIA: DQs 2.01-2.03 Acadia Sunrise

34. Chapter 2 : Eminent Domain: Some Policy Concerns DQ2.01 (Acadia): Why not require gov’t to bargain for land like other purchasers?

35. Chapter 2 : Eminent Domain: Some Policy Concerns DQ2.01 (Acadia): 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 Chapter Title: “The Cost of Living in a Democratic Society” Can View as “Tax” for Living in Society w Schools, Roads, Other Govt Buildings & Projects, Police, Military, etc. Can View as Slight Advantage in Land Markets Given to Democratic Gov’t (Compared with Private Developers) to Accomplish the People’s Purposes.

36. 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” Eminent Domain Cases (Chapter 2) Govt Deliberately Attempts to Purchase Private Property (“Condemnation” Action) Takings Clause requires: “For Public Use” (Our Issue: Midkiff, Kelo, etc.) “Just Compensation” (= Fair Market Value)

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

38. 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 Gov’t Has to Consider/Budget to Take Land – Protecting/Encouraging Investment in Land – Harder to Confiscate Property from Disfavored Persons – (Maybe) Harder to Redistribute Wealth

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 – Harder to Confiscate Property from Disfavored Persons – (Maybe) Harder to Redistribute Wealth c. Speculation re Madison & Slavery

40. 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

41. Chapter 2 : Eminent Domain: Some Policy Concerns DQ2.02 (Acadia): Where Os Receive Fair Market Value + 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 Why Might FMV Not Be Adequate Compensation?

42. Chapter 2 : Eminent Domain: Some Policy Concerns 1.Why FMV Might Not Be 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. 2.Possible Problems with Democracy & Budgets as Limits on Eminent Domain?

43. 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 for Local Projects w Local Decision-Makers E.g., Cross-Bronx Expressway E.g., $$$ Not Coming from Govt (Midkiff & Kelo)

44. Chapter 2 : Eminent Domain: Some Policy Concerns Limits on Eminent Domain Power 1.Just Compensation 2.Democracy: Politics & $$$ 3.“Public Use” Requirement a.DQ2.03: Addresses Concern About Gov’t Handing Out Prizes to Favored Individuals (“Private” Users) b.Big Issue w British Monarchy

45. Chapter 2 : Eminent Domain: Some Policy Concerns Public Use Requirement: Meaning INTENT UNCLEAR: Use BY Public v. Use FOR Public Easy Cases: Both true (schools, roads, post offices) Harder Cases: One or the other Use by public (but not for): E.g., Privately-Owned Theme Park Use for public (but not by): E.g., Military Base

46. Chapter 2 : Eminent Domain: Some Policy Concerns Public Use Requirement: Meaning INTENT UNCLEAR: Use BY Public v. Use FOR Public 5 th Amdt originally limited feds not states; seems unlikely that using EmDom for military bases would violate Note that states interpreting own Constitutions can limit themselves more. E.g., can choose to adopt a “use by public” standard. State of Washington seems to have done this. I’ll give you cites & a little bit of detail in Info Memo on Chapter 2.

47. Chapter 2 : Eminent Domain: Some Policy Concerns Public Use Requirement (DQ2.03) Ultimate Q: When OK for Govt to Force Sales? Maybe “Public Use” Simply Trying to Ensure Benefit isn’t Personal or Corrupt Maybe Since EmDom is Big Interference w Property Rights, Only Can Use If Really for Benefit of Public QUESTIONS? (We’ll Return to Chapter 2 on Tuesday)

48. 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) (Shift to Next Thursday) C.Review Problem 1K(i) (OLYMPIC) (Next Thursday)

49. OLYMPIC: DQs 1.25-1.28 EEL GLACIER

50. Right to Exclude: Parcels Open to the Public JMB: DQ1.25: Public Interest (Olympic) Yesterday: Listed Possible Psychic & Material Costs to Mall-Owners of Forced Speech Access (Will be Relevant to Help Determine Whether Restrictions Mall Places on Speakers are Reasonable) What benefits to society might there be to allowing political activists to hand out leaflets at privately- owned shopping centers?

51. Right to Exclude: Parcels Open to the Public JMB: DQ1.25: Public Interest (Olympic) Interests of Public in Speech at Malls Include: Speakers Get Access to Folks They Might Not Otherwise Reach Few Traditional Public Spaces in Suburbs Maybe Can Target Speech to People with Particular Interests (near specific stores, etc.) How significant are these benefits likely to be?

52. Right to Exclude: Parcels Open to the Public JMB: DQ1.25: Public Interest (Olympic) Interests of Public in Speech at Malls: Speakers Get Access to Folks They Might Not Otherwise Reach Significance is Fact Q: Likely varies greatly with locality Significance is Fact Q: Likely varies greatly with locality J. Garibaldi suggests not very significant. SUBURBS BUT maybe most cost-effective way to reach public in SUBURBS when opinion decided in 1994. Why Might 1994 Be Significant for Thinking About These Interests?

53. Right to Exclude: Parcels Open to the Public JMB: DQ1.25: Public Interest (Olympic) Interests of Public in Speech at Malls: Possible Significance of 1994 Just Before Widespread Public Internet Access How Might Internet Change Calculus of Relevant Interests?

54. Right to Exclude: Parcels Open to the Public JMB: DQ1.25: Public Interest (Olympic) Interests of Public in Speech at Malls: Possible Significance of 1994 Just Before Widespread Public Internet Access Internet May Change Calculus of Relevant Interests Maybe Os’ Interests  : Shoppers Irritated by Political Leafletters Can Shop Online Instead of at Malls Maybe Public Interest  : Internet Means Less Need to Access Malls to Spread Points of View

55. Right to Exclude: Parcels Open to the Public Logic of JMB: Constitutional Background Federal Cases (Discussed in JMB P88-89): Marsh: Company town: 1 st Amdt applies Logan Valley extended Marsh to shopping centers Tanner & Hudgens overrule Logan Valley & hold shopping centers are private space not addressed by federal 1st Amdt

56. Right to Exclude: Parcels Open to the Public Logic of JMB: Constitutional Background Federal v. State Constitutions Federal Constitution limits both state & federal govt power State Constitutions Can’t permit what Feds prohibit BUT State can choose to restrict itself more than Feds do E.g., by forbidding its own police from doing some searches and seizures allowed by 4 th Amdt E.g., by protecting speech more than Fedl 1 st Amdt We’ll see again in Chapter 2

57. Right to Exclude: Parcels Open to the Public Logic of JMB: Constitutional Background Federal v. State Constitutions Federal Constitution limits both state & federal govt power State Constitutions Can’t permit what Feds prohibit. BUT State can choose to restrict itself more than Feds do. SPEECH PROTECTED BY FED’L 1 ST AMDT ADDITIONAL SPEECH PROTECTED BY STATE 1 ST AMDT

58. Right to Exclude: Parcels Open to the Public Logic of JMB: Constitutional Background Pruneyard (Cal. 1979) aff’d (US 1980) Calif SCt says its state 1 st Amdt protects speech more than Fedl 1 st Amdt and gives its citizens the right to free speech in Shopping Centers Shopping Center Os appeal claiming that Calif allowing this access interferes with property rights in violation of 5 th and 14 th Amdts of Fedl Constitution:

59. Right to Exclude: Parcels Open to the Public Logic of JMB: Constitutional Background Pruneyard (Cal. 1979) aff’d (US 1980) Calif SCt says its state 1 st Amdt protects speech more than Fedl 1 st Amdt and gives its citizens the right to free speech in Shopping Centers Shopping Center Os appeal claiming that Calif allowing this access interferes with property rights in violation of 5 th and 14 th Amdts of Fedl Constitution: USSCt says no violation of Fedl Constitution Effectively leaves states with choice of whether to provide state protection for speech at shopping centers: Federal 1 st Amdt allows (but doesn’t require) Federal 5 th /14 th Amdts don’t forbid

60. Right to Exclude: Parcels Open to the Public Logic of JMB: Constitutional Background Federal v. State Constitutions Federal Constitution limits both state & federal govt power State Constitutions Can’t permit what Feds prohibit BUT State can restrict itself more SPEECH PROTECTED BY FED’L 1 ST AMDT BETWEEN FED’L REQUIREMENTS = ZONE OF STATE CHOICE GOVT ACTIONS BANNED BY FED’L 5th AMDT Property Rts

61. Right to Exclude: Parcels Open to the Public Logic of JMB: Constitutional Background In JMB, NJ follows Calif & says its state 1 st Amdt gives its citizens the right to free speech in Shopping Centers Calif & NJ only states to do this through state 1 st Amdt. Mass & Colo & Wash (limited; see FN1 on P93-94) allow speech access to shopping centers on other theories. Other states do not allow speech access to shopping centers (as of time t2d edition of textbook went to press). Other states do not allow speech access to shopping centers (as of time t2d edition of textbook went to press).