1. PROPERTY D SLIDES 2-11-16 NATIONAL PEPPERMINT PATTY DAY GET THE SENSATION!

2. Thurs. Feb 11 - Music to Accompany Poletown: Billy Joel, Nylon Curtain (1982) Lunch Today Meet on Bricks @ 12:25 Appelbaum * Frizalone * Gross * Hales Neuman * Robinson * Roussin

3. 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 Ltd. Fed’l Review Under Berman & Midkiff (cont’d) State Public Use Standards Kelo & Beyond

4. EVERGLADES: DQs 2.07(b)-2.09 EGRET IN MANGROVE SWAMP

5. (Everglades) Application of Rational Basis Test… DQ2.07(b): … to Rev. Prob. 2A 2A: TX legislature creates Virtuous Texan Comm’n to choose three Texans each year who best embody the Texan Virtues (Courage, Forthrightness and Moral Strength). The chosen Texans can select private property in the state worth up to $500,000, which TX will purchase for them at FMV. Purpose of Program? Legitimate? (Connected to Health, Safety, Welfare, Morals) Program Rationally Related to Purpose?

6. Chapter 2: The Eminent Domain Power & the Public Use Requirement Federal Constitutional Background State Public Use Standards State Public Use Standards Poletown Hatchcock Review Problems 2B & 2C Kelo & Beyond

7. (Everglades) Application of Rational Basis Test… DQ2.08: … to Facts of Poletown Remind us of key facts from Poletown Apply Rational Basis Test: Purpose of Program? Legitimate? (Connected to Health, Safety, Welfare, Morals) Program Rationally Related to Purpose?

8. Public Use Under State Constitutions States often have stricter tests than feds: States often have stricter tests than feds: Already seen in JMB/Pruneyard re 1 st Amdt Allows states to craft rules based on different balance of interests given forms of local govt, needs of state etc. As we’ll see, USSCt majority Kelo suggests that … As we’ll see, USSCt majority Kelo suggests that … stricter state rules may be appropriate given local concerns great federal deference makes sense given that states can do more

9. Poletown Tests 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” Michigan SCt in Poletown repeatedly says these tests are met w/o much analysis

10. Significance of Poletown Tests Hatchcock overrules Poletown result & tests for Michigan We’ll go through new Michigan tests later BUT BUT Poletown tests still used by other states Can still use Poletown facts as example of how tests from case could be applied

11. Poletown Tests ONLY Used ONLY if land ends up in private hands (1)Public must be “primary beneficiary” & private benefit merely “incidental” Possible readings of “primary beneficiary” test: a.Quantitative weighing of public v. private benefit b.Primary purpose c.Who is driving the deal? (raised by Poletown dissent)

12. Poletown Tests Used if land ends up in private hands 2) Public benefit must be “clear and significant” Assume both words have meaning “Clear” as opposed to “speculative” “Significant” as opposed to “marginal”

13. Applying Legal Tests from Other Sources to the Facts of Decided Cases Generally, purpose is not to learn more about the decided case. Purpose is to learn more about how the test operates. Thus legal analysis within the decided case itself is usually not very relevant to this exercise.

14. DQ2.09 (Everglades): Apply Poletown Tests to Facts of Midkiff (1)Public must be “primary beneficiary” & private benefit merely “incidental” Possible readings of “primary beneficiary” test: a.Quantitative weighing of public v. private benefit b.Primary purpose c.Who is driving the deal? (raised by Poletown dissent)

15. DQ2.09 (Everglades): Apply Poletown Tests to Facts of Midkiff Public benefit must be “clear and significant” “Clear” as opposed to “speculative” “Significant” as opposed to “marginal”

16. 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) B.Review Problem 1I (BADLANDS) C.Review Problem 1K(i) (OLYMPIC)

17. BADLANDS: Review Problem 1I NORBECK PASS

18. Review Problem 1I: Lawyering (Badlands) Overview 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.

19. Right to Exclude: Review Problem 1I (Badlands) Legal Research to Establish the Overall Legal Framework?

20. Right to Exclude: Review Problem 1I (Badlands) 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 (& follow-ups if applicable like “extent of invitation”) If right to protest, info on allowable restrictions

21. Right to Exclude: Review Problem 1I (Badlands) Legal & Factual Research Relevant to How the Mall Normally Handles Free Speech Access

22. Right to Exclude: Review Problem 1I (Badlands) 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

23. Right to Exclude: Review Problem 1I (Badlands) 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?

24. Right to Exclude: Review Problem 1I (Badlands) 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

25. 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) B.Review Problem 1I (BADLANDS) C.Review Problem 1K(i) (OLYMPIC)

26. OLYMPIC: Review Problem 1K(i) EEL GLACIER

27. Overview of Review Problem 1K (Part i): Part of Issue-Spotter (Olympic) the extent to which MMS can limit Father Frank’s access The jurisd. 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? FOCUS TODAY: Relevance of Particular Facts

28. Review Problem 1K (Part i): Part of Issue-Spotter (Arches) Legal Significance of Facts (Assume JMB & Schmid Apply) Courtyard at Issue (Center of One City Block) 1.MMS has set up benches and tables in the Courtyard & generally freely allows the public to use. 2.In the past, they have allowed speakers & musicians. 3.Medical Clinic & Two Small Restaurants open on to Courtyard 4.Signs posted that say “private property” and “reserve the right to exclude members of the public for any reason at any time.”