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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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Please sit in center section

Please Sit in Center Section

Into the Woods


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


I know things now

I Know Things Now


Thoughts on emerging from the dark slimy path

Thoughts on Emerging from the Dark Slimy Path


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