Transcript ELEMENTS B1: Prof. Fajer

FLEETWOOD MAC: GREATEST HITS
RECORDINGS 1975-88
§B Seating Today §D
If you normally sit on the side where your section is sitting
today, take your usual seat.
If you normally sit on the side where the other section is
sitting today, sit on the other side in the back four rows (i.e.,
behind the usual seating).
TOMORROW: REVIEW SESSION 7:55-9:15
Both Sections; First-in-Time Seating
Optional but Strongly Recommended
Class #38: Final Class
• DQs Closing Up Unit III
•
DQ3.42 (Radium)
• DQ3.46 (Oxygen)
• Review Problem 3A(ii)
• Review Problem 3C(ii)
• Final Lectures
Penn Central: Takings Analysis
DQ3.42 (Radium)
What rules can you derive from the
majority in Penn Central?
• Implicit: Rules must be consistent with results
of earlier cases (nothing overruled).
• Can read PC to alter meaning of those cases
as long as they’d come out the same way.
How does Penn Central alter or limit the
holdings of the earlier cases?
Penn Central: Takings Analysis
DQ3.42 (Radium)
How does Penn Central alter or limit
the holdings of the earlier cases?
At least:
• Rejects distinction between preventing public harm &
providing public benefit
• Reads Mahon: Kohler Act unconstitutional b/c
interference w DIBE left no value to property Os
• [Adds a number of new ideas: e.g., importance of
DIBE & physical invasion]
Penn Central: Takings Analysis
DQ3.42 (Radium)
What rules can you derive from the
majority in Penn Central?
• Implicit: Rules must be consistent with results
of earlier cases (nothing overruled).
Lots of Possibilities; I’ll Go Through Some
Penn Central: Takings Analysis
DQ3.42: Possible Rules from Majority
• Taking (= unconstitutional unless compensation
paid) if:
• Gov’t actions “that may be characterized as
acquisitions of resources to permit or facilitate
uniquely public functions” (Sax Enterprisers)
(EXPLICIT)
• “Not reasonably necessary to the effectuation of a
substantial public purpose.” (MAYBE)
Penn Central: Takings Analysis
DQ3.42: Possible Rules from Majority
• (Possible Reads) Not Taking if:
• Reasonably Related to Implementing Policy
w Widespread Public Benefit
• No Significant Interference w DIBE
Penn Central: Takings Analysis
DQ3.42: Possible Rules from Majority
• (Explicit) More Likely Taking if:
• Physical invasion of property by or because of Gov’t
• Significant Interference w DIBE
• (Explicit) Not Necessarily Taking if:
• Significant diminution in value
• Elimination of one use of parcel
Penn Central: Takings Analysis
DQ3.42: Possible Rules from Majority
Denominator Q
• Don’t divide a single parcel into segments to
determine if whole segment gone
• Look at effect on all of parcel owned by claimant
• Whole parcel in Penn Central
• “Rights Reserved” in Mahon
• Don’t look at other unrelated property owned by
claimant (other land in Manhattan owned by PC; other
property owned by coal cos.)
Penn Central: Takings Analysis
DQ3.42
What rules can you derive from the majority
in Penn Central?
• Implicit: Rules must be consistent with results of
earlier cases (nothing overruled).
• Lots of Possibilities
QUESTIONS?
Takings Theorists Recap
DQ3.46: OXYGEN
Which theorists we’ve studied
seem to have been approved or
adopted in whole or in part by
the SCt?
Takings Theorists Recap
DQ3.46: OXYGEN
Which theorists seem to have been approved
or adopted in whole or in part by the SCt?
• Sax: Enterpriser adopted in PC & Arbiter in Miller
• Epstein: View rejected with dissent in PC
• Michelman: Cited though not adopted (might be
consistent with results)
• Ackerman: Not referenced (might be consistent
with results)
Relevant Considerations in Takings Cases
Survey About What Facts Matter
• Ban on Intended Use (90%): Penn Central (Interference w DIBE)
• % Reduction in Value (88%):
Mahon, Epstein & Penn Central
• $$$ Amount Reduction (59%):
• Purpose of Regulation (63%) = Hadacheck; Sax; Mahon; Epstein;
Miller; Ackerman (2d Q) (BUT role of purpose unclear after
Penn Central)
st
• $$$ Amount Left (56%) = Kelso; Mahon; Ackerman (1 Q); Penn
Central
• Return on Investment (39%): Penn Central (Interference w
DIBE)
Relevant Considerations in Takings Cases
Other Possible Considerations
• Michaelman: Settlement & Demoralization Costs
• Penn Central:
– Physical Invasion
– Means/Ends Testing (Relationship betw. Purpose and
Method)
Class #38: Final Class
• DQs Closing Up Unit III
• Review Problem 3A(ii)
• featuring Uranium
• Review Problem 3C(ii)
• Final Lectures
FINAL EXAM QUESTION 3
Review Problem 3A(ii) (Uranium)
XQIIID (1998): B took parcel under father’s will. Big
loss in value to B’s parcel when state opened prison
on neighboring lot.
• Should a state ever have to pay compensation to
landowners whose property values are reduced
significantly by some government activity but who paid
nothing for their land because they acquired it by gift,
inheritance or bequest (will)?
• Gov’t Argument: No interference w DIBE (Penn
Central) if no investment at all.
FINAL EXAM QUESTION 3
Review Problem 3A(ii) (Uranium)
• Gov’t : No interference w DIBE (Penn Central) if no
investment at all b/c acquired by gift or will.
• Assume for purposes of this argument
– Gov’t would have to pay market value to B if purchasing
through ordinary Eminent Domain.
– If B had purchased for market price at time of gift, he’d
have a plausible Takings claim on same facts
• Possible Alternatives (B May Need to Defend One)
– Treat B’s Father’s investment as relevant amount.
–Treat value when B Became owner as “investment.”
Class #38: Final Class
•
•
DQs Closing Up Unit III
Review Problem 3A(ii)
• Review Problem 3C(ii)
• Radium Together
• Krypton Separately
• Final Lectures
FINAL EXAM QUESTION 3
Rev. Prob. 3C(ii) (Krypton/Radium)
FROM EXAM QUESTION IIIF (2001)
Parking Garages at Shreveport Airport
– A buys one (B) and builds one on adjacent lot (C)
– Post 9/11 Security Rules shut down garage on (C)
• Value of (C) drops from $350K to $100K (Significant
Interference w DIBE as high-tech garage)
• Value of B + C together increases from $1M to $1.5M
(Almost certainly no Taking)
Analyze B & C together or separately?
FINAL EXAM QUESTION 3
Rev. Prob. 3C(ii) (Krypton/Radium)
• A owns adjacent garages B & C. New Security
rules shut down C.
• FoF: Value of BG + CG: $1M  $1.5M (Assume OK)
• FoF: Value of CG: $350K  $100K. (Signif Intfr w DIBE)
Analyze B & C together or separately?
• Need to look at specific facts as well as law and
policy to resolve. Possibly relevant facts include:
•
•
•
•
Parcels purchased at different times
Road separates the two parcels
A intended to manage as single business
New rules decreased value of C but increased value of B
and of parcels together
Class #38: Final Class
• DQs Closing Up Unit III
• Review Problem 3A(ii)
• Review Problem 3C(ii)
• Final Lectures
Takings in Perspective
Society continually becomes more
complex & interrelated
• Greater externalities from use of private property. E.g.,:
•
•
•
•
Environmental Impacts: More Impacts/More Awareness
Need for open space in cities seen as more important
History seen as more important
More awareness that strong private right to exclude can creates
significant social harms (e.g., race, handicap)
• Gov ’t, responding to popular will, changes rules to try to
limit externalities (Demsetz 1st Thesis)
Takings in Perspective
Takings Clause = Limit on democratic process
of taking and regulating property
• Eminent Domain & other real “Enterpriser” cases:
• Gov’t wants to use and control private property
• Clearly must pay for it
• Most Non-Eminent Domain Takings cases:
• Gov’t trying to regulate (not to take over)
• Mostly attempts to get owners to use their land in ways that
reduce negative effects on others
Takings in Perspective
Means/End Testing & Levels of Scrutiny
• Choice among three common means/end tests:
• Rational Basis
• Scrict Scrutiny
• Intermediate Scrutiny
• At Stake: Relative Protection Given to
• Democratic Process (US v. Romania)
• Particular Constitutionally Protected Interests (Here,
Property Rights)
Takings in Perspective
Means/End Testing & Levels of Scrutiny
• At stake in choice among three tests: Protection for
• Democratic Process versus
• Particular Constitutional Interests
• Rational Basis =
• Near total deference to legislators
• Means we basically trust/rely on the democratic process
to protect the necessary interests.
• True for most economic interests
Takings in Perspective
Means/End Testing & Levels of Scrutiny
• At stake in choice among three tests: Protection for
• Democratic Process versus
• Particular Constitutional Interests (Here, Property Rights)
• Strict Scrutiny
• Gov’t must show its regulation is drawn with precision to
serve a very important purpose
• Used if we have observed or would expect that the
majority will regularly disfavor particular segments of
the population
• Classifications based on race, religion, political views
Takings in Perspective
Means/End Testing & Levels of Scrutiny
• At stake in choice among three tests: Protection for
• Democratic Process versus
• Particular Constitutional Interests
• Intermediate Scrutiny
• Penn Central: Reasonably Necessary to Substantial Public
Purpose (though role of language unclear)
• Trying to protect from predictable dangers of democracy
• Arguably focused review, not necessarily replacing
legislature’s ability to make policy judgments
Takings in Perspective
3 Ways to View Takings
in Context of Tension between Democracy &
Constitutional Protections
1. Strong Private Property
2. Strong Democracy
3. Intermediate View:
– Identify Especially Problematic Situations
– Use Heightened Scrutiny or Other Demanding Test
Takings in Perspective
What’s at Stake?
• How much we trust Democracy to sufficiently
protect private property interests
• How much Gov’t regulation we have
• State & local Gov’ts & $$$
• Mahon: “Gov’t couldn’t go on….”
• Strong Takings Clause protection of property means
• Much less Zoning & Environmental regulation
• More leeway for private land uses to harm others
Into the Woods
Into the Woods (1986)
Stephen Sondheim & James Lapine
• Compilation of Several Fairy Tales
• Woods = metaphor for conquering childhood fears
• Characters discover recurring pattern in life
• No real “happily ever after”
• Must go into the woods to confront fears again
• For 25 years, I end 1L courses with
• Red Riding Hood in the Fall
• Jack and the Beanstalk in the Spring
I Know Things Now
Thoughts on Emerging from the
Dark Slimy Path