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Property II Professor Donald J. Kochan

Property II Professor Donald J. Kochan. Spring 2009 Class 54 15 April 2009. Today’s Readings. Regulatory Takings Pages 1006-1041 (cont.) Keystone. Regulatory Takings Issues (cont.). What rights exist assuming no regulation?

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Property II Professor Donald J. Kochan

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  1. Property IIProfessor Donald J. Kochan Spring 2009 Class 54 15 April 2009

  2. Today’s Readings • Regulatory Takings • Pages 1006-1041 (cont.) • Keystone

  3. Regulatory Takings Issues (cont.) • What rights exist assuming no regulation? • How does regulation then affect those rights? What is the impact? • What is the justification for the regulation? • Does it go “too far” and amount to a taking? • Question whether it does or does not under doctrine, then question whether you think it should • Review the judicial standards

  4. Keystone • Difference between the per se and ad hoc inquiries • Partial limitation of use or extraction does not equal a taking, such as with the extraction limitation in this case • Consider how Penn Coal and Penn Central inform the opinion • VERY important that you understand the numerator/denominator issue and the determination of the relevant parcel • Take notes on Federal Circuit cases including Loveladies Harbor that will be discussed in class

  5. Pedagogical Reasons for Listening to Oral Arguments • A glimpse into the Supreme Court of the United States and its Justices – www.supremecourtus.gov • See what preceded the decisions you have read • Analyze how the arguments involved in those cases were presented and analyzed • Examine the audio for purposes of learning oral advocacy skills (you can learn from the good and the bad on these tapes); analyze how the attorneys respond to questions and see how to do it well and what not to do • Professor Kochan will provide analysis during those arguments played in class, on substance and advocacy and lawyering skills, including a discussion of pre-argument briefing

  6. Keystone Oral Argument Keystone (to be played in class) http://www.oyez.org/cases/1980-1989/1986/1986_85_1092/argument/

  7. Concluding Remarks • Remember that just because the effect of a regulation on your property does not fit a categorical rule does not mean it cannot still be a taking, but it is very tough to prove that it is a taking under the ad hoc rules • Independently then consider, from a policy perspective, why the law has developed to immunize the government from certain diminutions in value (the “government could hardly go on” philosophy)

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