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Fleetwood Mac: Greatest Hits Recordings 1975-88. On Course Page Office Hours 11/27-12/13 XQ3: Comments & Best Answers Next (= Final) Class Meeting Both Sections: Thursday 11/19 Room E352 8:00-9:20 am. Plan for Today. OXYGENS : DQ135: Meaning of Penn Central DQ136: Airspace Solution

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Fleetwood mac greatest hits recordings 1975 88

Fleetwood Mac: Greatest HitsRecordings 1975-88

On Course Page

Office Hours 11/27-12/13

XQ3: Comments & Best Answers

Next (= Final) Class Meeting

Both Sections: Thursday 11/19

Room E352 8:00-9:20 am


Plan for today

Plan for Today

OXYGENS:

DQ135: Meaning of Penn Central

DQ136: Airspace Solution

XQIIID & F: Hard Qs

KRYPTON (as far as we get)

DQ137-38: Ackerman

DQ139: Cases & Theorists

Course Evaluations: Be Specific!


Plan for thursday

Plan for Thursday

KRYPTON: Finish:

DQ137-38: Ackerman

DQ139: Cases & Theorists

More Detail on XQIIID & F

Lecture Closing Up Takings

Song & Lecture Closing Up Course


Penn central takings analysis

Penn Central: Takings Analysis

OXYGEN DQ135:

What rules can you derive from the majority in Penn Central?

(Implicit: that are consistent with earlier cases)

Lots of Possibilities; Let’s List Some


Penn central takings analysis dq135 possible rules from majority

Penn Central: Takings AnalysisDQ135: Possible Rules from Majority

  • Taking 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)

  • (Explicit) More Likely Taking if:

    • Physical invasion of property by or because of Gov’t

    • Significant Interference w DIBE


  • Penn central takings analysis dq135 possible rules from majority1

    Penn Central: Takings AnalysisDQ135: Possible Rules from Majority

    • (Explicit) Not Necessarily Taking if:

    • Significant diminution in value

    • Elimination of one use of parcel

  • (Possible Reads) Not Taking if:

    • Reasonably Related to Implementing Policy w Widespread Public Benefit

    • No significant interference w DIBE


  • Penn central takings analysis dq135 possible rules from majority2

    Penn Central: Takings AnalysisDQ135: 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)


    Penn central takings analysis1

    Penn Central: Takings Analysis

    OXYGEN DQ135:

    How does Penn Central alter or limit the holdings of the earlier cases?


    Penn central takings analysis2

    Penn Central: Takings Analysis

    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]


    Unit three introduction dq97 airspace solution

    Unit Three: IntroductionDQ97: Airspace Solution

    • Suppose Kentucky adopted a statute that

      (a) allowed the gas company to store its gas under Ms. Hammonds’s property without paying rent; and

      (b) prohibited her from extracting it.

    • Suppose Ms. Hammonds then claims this is an unconstitutional taking of her property.

      Do you think this is the kind of harm the Takings Clause forbids? Why or Why Not?


    Apply cases and theorists to new problems structure map

    Apply Cases and Theorists to New Problems: Structure Map


    Dq136 airspace solution oxygen

    DQ136: Airspace Solution (Oxygen)

    • Suppose Kentucky adopted a statute that

      (a) allowed the gas company to store its gas under Ms. Hammonds’s property without paying rent; and

      (b) prohibited her from extracting it.

    • Suppose Ms. Hammonds then claims this is an unconstitutional taking of her property.

      What arguments can you make about “the Airspace Solution” from looking at the four cases together?


    Dq136 airspace solution oxygen1

    DQ136: Airspace Solution (Oxygen)

    Arguments about “the Airspace Solution” from the four cases? At least:

    • Reduction in value?

      • Likely trivial if look at whole parcel

      • 100% if look just at reservoirs

    • Likely no DIBE in using depleted reservoirs

    • Similar to Penn Central:

      • Significant public benefit

      • Limiting part of parcel not normally used

    • Physical Invasion, So More Likely a Taking


    Dq136 airspace solution oxygen2

    DQ136: Airspace Solution (Oxygen)

    Arguments about “the Airspace Solution” from the four cases?

    • Reasonably Necessary to Substantial Public Purpose (LaFalce-B1)

      • Substantial Public Purpose?

        • Easy (Safety; Energy Costs)

      • Reasonably Necessary?

        • Probably Not Where We Know That Other States Accomplish Same Goal (Through Eminent Domain) Without Completely Removing Surfave Os’ Property Rights


    Final exam question 3

    FINAL EXAM QUESTION 3

    OPINION/DISSENT FORMAT

    • Requires You to Describe and Defend Two Positions

    • Must Show that You Understand Range of Relevant Arguments Arising from Line of Cases

    • Must Understand Role of US Supreme Court

    • Must Address Difficult Unresolved Qs


    Penn central takings analysis big qs left open by penn central

    Penn Central: Takings AnalysisBig Qs Left Open by Penn Central

    • Noxious Use Still Relevant?

    • Meaning of Distinct Investment-Backed Expectations (DIBE)?

    • DIBE & Hadacheck (cf. Mahon)

    • Denominator Q

    • Heightened Scrutiny for Takings?


    Final exam question 31

    FINAL EXAM QUESTION 3

    EXAM QUESTION IIID (1998)

    • Bart’s Vacant Lot

      • State Gov’t Builds Prison Next Door

      • Value Reduced by > 2/3 ($2.2M  $600K)


    Final exam question 32

    FINAL EXAM QUESTION 3

    EXAM QUESTION IIID (1998)

    • Bart’s Vacant Lot: Big Loss in Value due to Prison Next Door

    • Should Big Loss in Value be Taking Where

      • Property inherited so investment arguably = 0

      • No restriction at all on use of parcel

      • Not stopping any harmful use of O

      • Caused by proximity to necessary state facility


    Final exam question 33

    FINAL EXAM QUESTION 3

    EXAM QUESTION IIID (1998)

    • Bart’s Vacant Lot: Should Big Loss in Value be Taking Where

      • Property inherited so investment arguably = 0

      • No restriction at all on use of parcel

      • Not stopping any harmful use of O

      • Caused by proximity to necessary state facility

        URANIUMS: We’ll Work Through Some of This in Final Class


    Final exam question 34

    FINAL EXAM QUESTION 3

    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 new lot

        • Value of (C) drops from $350K to $100K

        • Value of B + C increases from $1M to $1.5M


    Final exam question 35

    FINAL EXAM QUESTION 3

    EXAM QUESTION IIIF (2001)

    A owns adjacent garages B & C. New Security rules shut down C. Value of (C) drops from $350K to $100K. Value of B + C increases from $1M to $1.5M

    • Analyze B & C together or separately?

    • Just Looking at C (Signif. Interference w DIBE)

      • Does strong gov’t purpose justify loss in value?

      • Matter that harm being stopped not caused by O?

      • Should court use heightened scrutiny?


    Final exam question 36

    FINAL EXAM QUESTION 3

    EXAM QUESTION IIIF (2001)

    • Analyze Garages B & C together or separately?

    • Just Looking at C (Signif. Interference w DIBE)

      • Does strong gov’t purpose justify loss in value?

      • Matter that harm being stopped not caused by O?

      • Should court use heightened scrutiny?

        RADIUMS: We’ll Work Through Some of This in Final Class


    Takings theorist 4 bruce ackerman krypton

    Takings Theorist #4: Bruce Ackerman(krypton)


    Takings theorists bruce ackerman dq137 krypton

    Takings Theorists: Bruce Ackerman DQ137 (krypton)

    Ackerman Distinguishes Between:

    • “Scientific Policymakers” use technical concepts; abstract principles (e.g., Michelman!!)

    • His focus on “Ordinary Observers,” which asks how people in the culture tend to think about property. (Asks very specific Qs)


    Takings theorists bruce ackerman dq137 krypton1

    Takings Theorists: Bruce Ackerman DQ137 (krypton)

    Focus on “Ordinary Observers”

    • Ackerman asks very specific Qs re how people in the culture (OOs) tend to think about property.

    • 1st Q: “Is property in Q literally ‘taken’?”

      • Source of this Q?


    Takings theorists bruce ackerman dq137 krypton2

    Takings Theorists: Bruce Ackerman DQ137 (krypton)

    Focus on “Ordinary Observers”

    • Ackerman asks very specific Qs re how people in the culture (OOs) tend to think about property.

    • 1st Q: “Is property in Q literally ‘taken’?”

      • Source: Literal Language of 5thAmdt.

      • Two situations where OO would answer “yes”?


    Takings theorists bruce ackerman dq137 krypton3

    Takings Theorists: Bruce Ackerman DQ137 (krypton)

    Ackerman asks very specific Qs re how people

    in the culture (OOs) tend to think about property.

    • Is property in Q literally “taken”? Means either:

      • Gone completely (like an ordinary enterpriser case)

      • What’s left is so trivial, “bad joke” to say you still have

        Examples of “bad joke” cases?


    Takings theorists bruce ackerman dq137 krypton4

    Takings Theorists: Bruce Ackerman DQ137 (krypton)

    Ackerman asks very specific Qs re how people

    in the culture (OOs) tend to think about property.

    • Is property in Q literally “taken”? Means either:

      • Gone completely (like an ordinary enterpriser case)

      • What’s left is so trivial, “bad joke” to say you still have

        • Mahon (if Holmes correct about effect on mining)

        • Nectow(zero value)

        • Causby(hard to imagine way to use)


    Takings theorists bruce ackerman dq137 krypton5

    Takings Theorists: Bruce Ackerman DQ137 (krypton)

    Ackerman asks very specific Qs re how people

    in the culture (OOs) tend to think about property.

    • Is property in Q literally “taken”? (Very Specific Q)

      • Not asking OO if she “likes” the regulation

      • “Bad Joke” is term of art focused on what’s left

      • Not “Bad Joke” to Ackerman Just Because :

        • Lot of value lost (check if what’s left is significant)

        • Regulation seems undesirable


    Takings theorists bruce ackerman dq137 krypton6

    Takings Theorists: Bruce Ackerman DQ137 (krypton)

    Ackerman asks very specific Qs re how people

    in the culture (OOs) tend to think about property.

    • Is property in Q literally “taken”?

      What is Second Question?


    Takings theorists bruce ackerman dq137 krypton7

    Takings Theorists: Bruce Ackerman DQ137 (krypton)

    Ackerman asks very specific Qs re how people

    in the culture (OOs) tend to think about property.

    • Is property in Q literally “taken”?

    • Is gov’t stopping unduly harmful use of property?

      • Unduly” suggests some consideration of benefits of use

      • BUT looks like version of noxious use exception


    Takings theorists bruce ackerman dq137 krypton8

    Takings Theorists: Bruce Ackerman DQ137 (krypton)

    Ackerman asks very specific Qs re how people

    in the culture (OOs) tend to think about property.

    • Is property in Q literally “taken”?

    • Is gov’t stopping unduly harmful use of property?

      Note dual focus of test:

      First what’s left, then purpose


    Relevant considerations in takings cases

    Relevant Considerations in Takings Cases

    §B Survey About What Facts Matter (68 Responses)

    • Ban on Intended Use (61): Penn Central (Interference w DIBE)

    • % Reduction in Value (61): Mahon, Epstein, Penn Central

    • $$$ Amount Reduction (42):

    • Purpose of Regulation (37) = Hadacheck; Sax; Mahon; Epstein; Miller; Ackerman (2d Q) (BUT role of purpose unclear after Penn Central)

    • $$$ Amount Left (29) = Kelso; Mahon; Ackerman (1st Q); Penn Central

    • Return on Investment (18): Penn Central (Interference w DIBE)


    Relevant considerations in takings cases1

    Relevant Considerations in Takings Cases

    Other Possible Considerations

    • Michaelman: Settlement & Demoralization Costs

    • Penn Central:

      • Physical Invasion

      • Mean/End Testing (Relationship betw. Purpose and Method)


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