PROPERTY E SLIDES

1. PROPERTY E SLIDES 02-11-13

2. Review Problem 1G: OLYMPICAstigarraga; Little; Segall; Green; Stroman SUNSET IN THE PARK

3. Review Problem 1G: OLYMPICClient 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

4. Review Problem 1G: OLYMPICAstigarraga; Little; Segall; Green; Stroman Legal Research Where do You Start? • We’ve said rules vary by state, so start by getting basic rule (if any) for jurisdiction • Possibilities?

5. Review Problem 1G: OLYMPICAstigarraga; Little; Segall; Green; Stroman Legal Research • We’ve said rules vary by state; get basic rule (if any) for jurisd. Possibilities include: • No right to protest at malls • Specific right to protest at [some/all] malls • Might be no rule re malls, but some general rule re 1stAmdt access (like Schmid) • Assuming some right to protest at malls, what specific details re law might be helpful?

6. Review Problem 1G: OLYMPICAstigarraga; Little; Segall; Green; Stroman Legal Research • Relevant Specific Details re Law Might Include: • Rules re Which Malls Covered • Specifics re Rules/Limits can Put on Protestors. E.g., • Location • Manner of Protest • Clean-Up, Deposit, etc. • Special rules re targeting mall tenant

7. Review Problem 1G: OLYMPIC Factual Research? • Re M’s Mall Generally? • Re This Dispute?

8. Review Problem 1G: OLYMPIC Factual Research? • Re M’s Mall Generally? Might Include • Info re size (if relevant to coverage) • Scope/nature of invitation • General Rules re Protestors • Physical Space & Good Place for Protestors • Maybe general info on maintenance/security/insurance • Re This Dispute?

9. Review Problem 1G: OLYMPIC Factual Research? • Re This Dispute: Might Include: • Specifics re Protestors • Number, Length of Time, Location • Content of Pamphlets • Behavior • Prior Specific Agreement • Specifics re Harms/Problems • Evidence of Harm to ES? • Complaints by Shoppers? • Problems for Mall (Security, Clean-Up, Traffic Flow) • Room for Detailed Qs re Most of These

10. Right to Exclude: Property Open to the PublicEVERGLADES: JMB & DQ28 EGRET IN MANGROVE SWAMP

11. DQ28: EVERGLADESArguments from JMB & SchmidreIssue in Shack Sequence Today: • Discussion/application of Schmidtest • Comparisons to facts of JMB • [A couple of] other arguments from JMB

12. DQ28: EVERGLADESArguments from JMB & SchmidreIssue in Shack • Discussion of SchmidTest • Use to decide when 1stAmdt requires access to private property open (for some purposes) to public • Once access allowed, test largely unhelpful for deciding what restrictions allowable; Schmidjust says they must be “reasonable” • Note Princeton appealed Schmiddecisionto US SCt • Claim was interference with federal Const. Property Rights • US SCt refused to hear case

13. DQ28: EVERGLADESArguments from JMB & SchmidreIssue in Shack (1) Application of SchmidTest (P89) • Normal Use of Private Property • Extent & Nature of [Public] Invitation • Compatibility of Speech [Entrance] with Normal Use:

14. DQ28: EVERGLADESArguments from JMB & SchmidreIssue in Shack • Discussion/application of Schmid test • Comparisons to facts of JMB • [A couple of] other arguments from JMB

15. DQ28: EVERGLADESArguments from JMB & SchmidreIssue in Shack • Discussion/application of Schmid test • Comparisons to facts of JMB: • Nicely worded version from student submission: “In both cases there are groups that seek to provide citizens who are on private land with information that they believe the citizens need to know.” • [A couple of] other arguments from JMB

16. DQ29: EVERGLADESElectronic Submission Last Week • Write-Up Available on Course Page; I’ll also integrate into next Info Memo • Includes Best points from Student Submissions (w Shout-Outs) • Additional Points & Comments from Me • Obviously 3.5 page Write-Up for One DQ Much More Than I Expect for Ordinary Class Prep • BUT Useful to Begin Thinking About Pushing Yourself to Keep Adding More to Initial Response • for Class • Especially for Exam Prep

17. Review Problem 1K: YOSEMITE & ZION • FD = gated community of single-family homes • Managed by Homeowners’ Association (FDHA) • Includes common areas: meeting/event room, gym, two pools, child care center, small general store. • Full-time security guards; non-residents cannot enter the community unless they are guests of a resident. • Os unanimously enact by-law banning themselves from having reporters or photographers as guests.

18. Review Problem 1K: Osin gated community ban reporters or photographers as guests. YOSEMITE (supporting ban) ZION (opposing ban) Rosenbaum, Danny Silver, Stephen Crespo, Loisis Seppi, Shae • Balkin, Kelly • Burts, Tracy • Favro, Marc • Scala, Laura

19. Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Constitutional Background • Deference, Rational Basis, Heightened Scrutiny • The Fifth Amdt, Eminent Domain & Public Use • Federal Public Use Standards • Midkiff • Kelo • State Public Use Standards • Poletown • Hatchcock

20. Chapter 2 : Federal Constitutional Background • Federal Courts Determining if State Law Violates US Constitution • Often in Con Law I: “Procedural” • Not Looking at Substance of Law • Looking at Authority (v. Feds) Over Subject Matter • Pre-emption by Congress • Dormant Commerce Clause

21. Chapter 2 : Federal Constitutional Background Federal Courts Determining if State Law Violates US Constitution • “Procedural” (Subject Matter/State v. Fed’l Authority) • Review of Substance Employed to Check Validity Under 14thAmdt and Bill of Rights • Most people believe this should not include determining whether the statute is a good idea as a matter of policy. • Why shouldn’t a federal court strike down a state statute because it’s stupid?

22. Chapter 2 : Federal Constitutional Background Federal Courts 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

23. 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 They Violate a Specific Constitutional Provision (Tolerant Parent Analogy)

24. 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 …

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

26. Chapter 2 : Federal Constitutional Background Default is Deference to State Legislation • States Mostly Allowed to do Stupid Things Unless They Violate a Specific Constitutional Provision • Relevant Provision Here is Takings Clause of 5th Amdt(Applicable to States through 14th Amdt) • Otherwise, Deference Means Minimal Review of State Legislation: “Rational Basis Scrutiny”

27. Chapter 2 : Federal Constitutional Background : Rational Basis Review • 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

28. Chapter 2 : Federal Constitutional Background : Rational Basis Review Is Challenged Law “Rationally Related to a Legitimate State Purpose”? • Purpose is Legitimate if stems from “Police Power” = Basic Authority of State Govts • Can regulate to protect/further “HSWM” • Health • Safety • Welfare [general well-being including economic success] • Morals

29. Chapter 2 : Federal Constitutional Background : Rational Basis Review Is Challenged Law “Rationally Related to a Legitimate State Purpose”? • Purpose is Legitimate if stems from “Police Power” = Basic Authority of State Gov’ts = furthering 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

30. 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)

31. 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)

32. Chapter 2 : Federal Constitutional Background : Rational Basis Review • “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? • Sample? • Example of “Means/End” Testing

33. 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

34. 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 Scrutiny • Means Chosen Must Be RationallyRelated to • Legitimate State Interest

35. Chapter 2 : Federal Constitutional Background: Means/End Testing Common Type of Constitutional Analysis • Rational Basis Scrutiny • Means Chosen Must Be RationallyRelated to • Legitimate State Interest • Used When Deferring to State Legislatures • Compare Two Forms of “Heightened Scrutiny”: Strict & Intermediate • Used when we don’t fully trust the democratic process • Not deference, but closer look = more scrutiny

36. Chapter 2 : Federal Constitutional Background: Means/End Testing Rational Basis Scrutiny 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 • Must be Rationally Related • to Legitimate State Interest • Used for Ordinary Legislation(where deferring to legislature) • Govt Almost Always Wins

37. Chapter 2 : Federal Constitutional Background: Means/End Testing Intermediate Scrutiny 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 • 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

38. 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 MidkiffBUT some Justices suggest circumstances where they would use stricter test • Lawyering Focus of Chapter 2: Applying Legal Tests to Facts

39. Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Constitutional Background • Deference, Rational Basis, Heightened Scrutiny • The Fifth Amdt., Eminent Domain & Public Use • Federal Public Use Standards • Midkiff • Kelo • State Public Use Standards • Poletown • Hatchcock

40. Chapter 2 : Takings Clause of 5th Amdt Takings Clause of the Fifth Amdt of the U.S. Constitution (Applies to States via 14th Amdt): “[N]or shall private property be taken for public use without just compensation” Gives Rise to 1. Eminent Domain Cases 2. “Takings” Cases

41. Chapter 2 : Takings Clause of 5th Amdt Takings Clause : “[N]or shall private property be taken for public use without just compensation” • Eminent Domain Cases (Chapterv2) • Govt Deliberately Attempts to Purchase Private Property (“Condemnation” Action) • Takings Clause requires: • “For Public Use” (Midkiff, Kelo, etc.) • “Just Compensation” (= Fair Market Value)

42. Chapter 2 : Takings Clause of 5th Amdt Takings Clause : “[N]or shall private property be taken for public use without just compensation” • Eminent Domain Cases (Chapter 2) • Takings Cases (Along Edge of Course) • GovtNot 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

43. Chapter 2 : Eminent Domain: Some Policy Concerns • Part of Unit One: Involuntary Transfers • Eminent Domain Very Common & Important Kind of Involuntary Transfer • Govt Can Force Owner to Sell • DQ30-32 Get At Underlying Issues

44. Chapter 2 : Eminent Domain: Some Policy Concerns • DQ30: 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

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

46. Chapter 2 : Eminent Domain: Some Policy Concerns Limits on Eminent Domain Power • Just Compensation: • Must Pay Fair Market Value (FMV) • 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

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

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

49. Chapter 2 : Eminent Domain: Some Policy Concerns • DQ31: Where Os Receive FMV & Democracy & Budgets Limit, Why Do We Need Other Limits on EmDom? • FMV Not Always Adequate Compensation • Problems with “Democracy & Budgets” as Limits on EmDom

50. Chapter 2 : Eminent Domain: Some Policy Concerns • 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 • Ignores relocation & disruption; loss of stability, etc.