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Please Sit in Center Section. Into the Woods. DQ138: Bruce Ackerman (Criste Ercolani Newingham ). Is property in Q literally “taken”? Means: Gone completely (OR) What’s left is so trivial, “bad joke” to say you still have Is gov’t stopping unduly harmful use of property?

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dq138 bruce ackerman criste ercolani newingham
DQ138: Bruce Ackerman(Criste Ercolani Newingham)
  • Is property in Q literally “taken”? Means:
    • Gone completely (OR)
    • What’s left is so trivial, “bad joke” to say you still have
  • Is gov’t stopping unduly harmful use of property?

Apply to Hadacheck?

Apply to Mahon?

dq138 bruce ackerman mena biddle binko
DQ138: Bruce Ackerman (Mena Biddle Binko)
  • Is property in Q literally “taken”? Means:
    • Gone completely (OR)
    • What’s left is so trivial, “bad joke” to say you still have
  • Is gov’t stopping unduly harmful use of property?

Apply to Miller?

Apply to Penn Central?

dq139 takings theorists
DQ139: Takings Theorists

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)
exam question 3d 1998
EXAM QUESTION 3D (1998)
  • 1970: B Inherits Large Lot & Summer Home Worth $2.2M
  • 1979: Minimum-Security Prison Built Next Door
  • Findings of Fact (Must Accept!)
    • No threat to health/safety of residents of B’s lot
    • Market Value declines to $600K
exam question 3d 19981
EXAM QUESTION 3D (1998)
  • 1970: B Inherits Lot /Summer Home worth $2.2M
  • 1979: Minimum-Security Prison Built Next Door
    • FoF: No threat to health/safety of residents of B’s lot
    • FoF: Market Value declines to $600K
  • Gov’t may argue: “Cannot be Taking because …”
    • B inherited property, so investment is zero (no DIBE)
    • No restriction at all on B’s use of parcel
    • When Govt purchases land to build necessary Gov’t facility, shouldn’t have to pay for neighbor’s loss of property value
exam question 3d 19982
EXAM QUESTION 3D (1998)
  • 1970: B Inherits Lot /Summer Home worth $2.2M
  • 1979: Minimum-Security Prison Built Next Door
    • FoF: No threat to health/safety of residents of B’s lot
    • FoF: Market Value declines to $600K
  • Gov’t : “Cannot be Taking b/c B inherited property, so investment is zero (no DIBE)”

Roberts * Webster-Jones * Bianchi Fasani

exam question 3d 19983
EXAM QUESTION 3D (1998)
  • 1970: B Inherits Lot /Summer Home worth $2.2M
  • 1979: Minimum-Security Prison Built Next Door
    • FoF: No threat to health/safety of residents of B’s lot
    • FoF: Market Value declines to $600K
    • Gov’t : “Cannot be Taking where there’s no restriction at all on B’s use of his parcel.”

KLOCK * FORMAN * VAN WART

exam question 3d 19984
EXAM QUESTION 3D (1998)
  • 1970: B Inherits Lot /Summer Home worth $2.2M
  • 1979: Minimum-Security Prison Built Next Door
    • FoF: No threat to health/safety of residents of B’s lot
    • FoF: Market Value declines to $600K
    • Gov’t : “When Govt purchases land to build necessary Gov’t facility, shouldn’t have to pay for neighbor’s loss of property value”

FAYNE * YANES * MARTIN

exam question 3f 2001
EXAM QUESTION 3F (2001)
  • A owns adjacent garages BG & CG.
  • Post 9/11 Security rules shut down CG.
    • FoF: Value of BG + CG: $1M $1.5M
    • FoF: Value of CG: $350K $100K.
exam question 3f 20011
EXAM QUESTION 3F (2001)
  • A owns adjacent garages BG & CG.
  • New Security rules shut down CG.
    • FoF: Value of BG + CG: $1M $1.5M
    • FoF: Value of CG: $350K $100K.
  • Gov’t may argue no Taking b/c …
    • Even looking at CG alone, strong gov’t purpose permits significant interference w DIBE (Note: should concede signif. interf. w DIBE re CG)
    • Court should analyze parcels together (means increase in value)
exam question 3f 20012
EXAM QUESTION 3F (2001)
  • A owns adjacent garages BG & CG.
  • New rules shut down CG ($350K  $100K)
  • Gov’t may argue no Taking b/c strong gov’t purpose permits signif. interference w DIBE

GONZALEZ * RAMLAL * ANDINO

exam question 3f 20013
EXAM QUESTION 3F (2001)
  • Gov’t likely to argue court should analyze parcels together
  • 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 CG but increased value of BG and of parcels together
exam question 3f 20014
EXAM QUESTION 3F (2001)
  • Gov’t likely to argue court should analyze parcels together. Possibly relevant facts:
    • Parcels purchased at different times
    • Road separates the two parcels
    • A intended to manage as single business
    • New rules decreased value of CG but increased value of BG and of parcels together

DeOrchis* PHILLIPS * DOYLE

logistics reading exam period
LOGISTICS: Reading & Exam Period

Key Pre-Exam Info on Course Page

  • Office Hours Listed for 11/30-12/13
  • I’ll Take E-Mail Qs Sent Before 7pm on 12/13
  • Additional Info Memos (& Updates to Syllabus)
  • Graded Assignments: When Ready for Pick-Up
  • Final Exam Instructions & Syllabus
logistics reading exam period1
LOGISTICS: Reading & Exam Period

Review Session

  • Wed. 12/12/12 @ 7:00 pm in Room F109 (Torts Room)
  • Presentation with Slides, Mostly About Exam Technique
    • How to Approach Each Type of Question
    • Then I’ll take Qs on Both Technique & Substance
  • Slides & Podcast posted on course page afterwards

Old Exam Qs

  • If Limited Time, Work with Most Recent (esp. Q2 & Q3)
  • Skip XQ3C (1997); Missing Key Sentence or Two (Clancy!)
logistics after the test
LOGISTICS: After the Test
  • I’m on Bricks Immediately Afterward
  • Don’t Talk About Substance of Exam (with Anyone)
  • After Grades Posted, Packet for Each of You
    • Exam Questions, Comments & Best Answers
    • Information Sheet with Your Scores
    • Copy of Your Test
  • I’ll Review with You After You’ve Read Packet
  • Grades & Your Place in the Universe
takings in perspective
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 perspective1
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 perspective2
Takings in Perspective

Means/End Testing & Levels of Scrutiny

  • Choice among three tests:
    • Rational Basis
    • Scrict Scrutiny
    • Intermediate Scrutiny
  • At Stake: Relative Protection Given to
    • Democratic Process (US v. Romania)
    • Particular Constitutional Interests (Here, Property Rights)
takings in perspective3
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 perspective4
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 perspective5
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 perspective6
Takings in Perspective

3 Ways to View Takings

  • Strong Private Property
  • Strong Democracy
  • Intermediate View:
    • Identify Especially Problematic Situations
    • Use Heightened Scrutiny or Other Demanding Test
takings in perspective7
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 1986 stephen sondheim james lapine
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
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