PROPERTY D SLIDES2-6-14

Thursday Feb 6: Music Billy Joel, Nylon Curtain (1982)

Lunch Today (Meet on Bricks @ 12:25)Abeckjerr; Desir; Gaid; Hoffman; Iscowitz; Khoury

BISCAYNE: Rev. Prob. 1H

SUNRISE AT ADAMS KEY

Right to Exclude: Review Problem 1H Right to Exclude: Review Problem 1H (Biscayne)(Biscayne)

• Client M owns Mall• Tenant ES = outlet store for co. accused of using

sweatshop labor overseas• Prior O allowed protestors to hand out leaflets w

these accusations near ES store• ES complains protestors drive away customersM wants to know if she can “do more to

satisfy” ES.

Right to Exclude: Review Problem 1H Right to Exclude: Review Problem 1H (Biscayne)(Biscayne)

M wants to know if she can “do more to satisfy” ES.

•Keep specific client request in mind•Two problems that occurred in exam answers:

1. Qs going to whether M should drop ES as a tenant

• outside scope of request; • could be relevant to different Q• BUT really more business than legal

Right to Exclude: Review Problem 1H Right to Exclude: Review Problem 1H (Biscayne)(Biscayne)

M wants to know if she can “do more to satisfy” ES.

•Keep specific client request in mind•Two problems that occurred in exam answers:

2. Qs going to whether claims about ES are true

• Legal relevance to your client’s concerns? • Factual: How find out?

Right to Exclude: Review Problem 1H Right to Exclude: Review Problem 1H (Biscayne)(Biscayne)

Legal Research to Establish the Overall Legal Framework?

Right to Exclude: Review Problem 1H Right to Exclude: Review Problem 1H (Biscayne)(Biscayne)

Legal Research to Establish Overall Legal Framework

•Basic rule for jurisd. if any; Possibilities?• No right to protest at malls (most states)• Specific right to protest at malls• Depends on mall (compare to facts re this mall)• Specific rules re size, etc.• Gen’l rule like Schmid

•If right to protest, info on allowable restrictions

Right to Exclude: Review Problem 1H Right to Exclude: Review Problem 1H (Biscayne)(Biscayne)

Legal & Factual Research Relevant toHow the Mall Normally Handles Free Speech

Access

Right to Exclude: Review Problem 1H Right to Exclude: Review Problem 1H (Biscayne)(Biscayne)

Legal & Factual Research Relevant toHow the Mall Normally Handles Free Speech

AccessShould Include:• Existing Rules & Practices• Prior Experience/Difficulties• Comparison to What State Allows

Right to Exclude: Review Problem 1H Right to Exclude: Review Problem 1H (Biscayne)(Biscayne)

Legal & Factual Research Relevant toThe Operation and Effects of These

Protests (Including Targeting a Business Operating in

the Mall)•Relevant Info re Protest & Protestors?•Harm to ES?•Harm to Other Businesses?•Harms to Mall Operation?•Related Legal Research?

Right to Exclude: Review Problem 1H Right to Exclude: Review Problem 1H (Biscayne)(Biscayne)

Legal & Factual Research Relevant toThe Mall Having Allowed These Protesters in

the Past&

General Information to Help Understand the Situation

I’ll Leave for You

Chapter 2: The Eminent Domain Power Chapter 2: The Eminent Domain Power & the Public Use Requirement& the Public Use Requirement

•Federal Constitutional BackgroundFederal Constitutional Background•Deference, Rational Basis, Heightened Scrutiny (cont’d)• The Fifth Amdt, Eminent Domain & Public Use• Limited Federal Review Under Berman & Midkiff

•State Public Use Standards•Kelo & Beyond

Chapter 2 : Federal Chapter 2 : Federal ConstitutionalConstitutional BackgroundBackground

Fed’l Cts Determining if State Law Violates US Fed’l Cts Determining if State Law Violates US ConstitutionConstitution

“Why shouldn’t a federal court strike down a state statute because it’s stupid?” Common Answers:•Democratic Theory:• State Legislature is Elected Body; Fed’l Court is Not• Remedy for Mistakes by Legislature is Elections

•Relative Expertise: • Legislature Can Do Better Fact-Finding Than Court• Local Officials May Have Better Handle on Local Problems

Chapter 2 : Federal Chapter 2 : Federal ConstitutionalConstitutional BackgroundBackground

Upshot = Default Rule is Deference to State Legislation

•Many Bad Laws are Constitutional•State Legislatures Mostly Allowed to do Stupid Things Unless Their Actions Implicate Particular Constitutional Concerns (Tolerant Parent Analogy)

Chapter 2 : Federal Chapter 2 : Federal ConstitutionalConstitutional BackgroundBackground

Tolerant Parent Analogy

•Generally good parents of teenagers allow their kids lots of leeway to do stupid things.•That is, up to a certain point …

Chapter 2 : Federal Constitutional Chapter 2 : Federal Constitutional BackgroundBackground

Tolerant Parent Analogy“You Are Not Leaving the

House in That!!”

Chapter 2 : Federal Chapter 2 : Federal ConstitutionalConstitutional BackgroundBackground

Default is Deference to State Legislation

•States Mostly Allowed Leeway to do Stupid Things Unless Their Actions Implicate Particular Constitutional Concerns•Otherwise, Deference Means Federal Court Does Only Minimal Review of State Legislation: “Rational Basis Scrutiny”

Chapter 2 : Federal Chapter 2 : Federal ConstitutionalConstitutional Background: Background:

Rational Basis ReviewRational Basis Review•Legal Test: Is Challenged Law “Rationally Related to a Legitimate State Purpose”?• Minimal Test for Constitutionality Under Due Process & Equal Protection Clauses• Applies If No Claim Under Another More Specific Constitutional Provision • Very Deferential: Gov’t Virtually Always Wins

Chapter 2 : Federal Chapter 2 : Federal ConstitutionalConstitutional Background: Background:

Rational Basis ReviewRational Basis ReviewIs Challenged Law “Rationally Related to a

Legitimate State Purpose”?•Purpose is Legitimate if arises from State’s “Police Powers” • Basic Authority of State Gov’ts• Can regulate to protect/further “HSWM”• Health• Safety• Welfare [general well-being including economic success] • Morals

Chapter 2 : Federal Chapter 2 : Federal ConstitutionalConstitutional Background: Background:

Rational Basis ReviewRational Basis ReviewIs Challenged Law “Rationally Related to a

Legitimate State Purpose”?Purpose is Legitimate if arises from State’s “Police

Powers” •Basic authority to protect/further Health, Safety, Welfare, Morals• Good lawyer can tie virtually any state law to one of these purposes• Usually purposes found illegitimate only if openly discriminatory or singling out individuals.

Chapter 2 : Federal Chapter 2 : Federal ConstitutionalConstitutional Background: Background:

Rational Basis ReviewRational Basis ReviewIs Challenged Law “Rationally Related to a

Legitimate State Purpose”?•Not asking if “rational” to a psychologist or economist•Term of art = a rational legislator could believe the state law will help further its purpose, at least a little bit•Doesn’t have to be best option or even particularly good. (Deference means states can experiment without having to convince federal court of desirability)

Chapter 2 : Federal Chapter 2 : Federal ConstitutionalConstitutional Background: Background:

Rational Basis ReviewRational Basis Review“Rationally Related to a Legitimate State Purpose”:

Application:1. Identify Purpose of Law2. Determine if Purpose is Legitimate • Arising under Police Power (HSWM)• Not Just to Harm Individuals or Group

3. Determine if Law “Rationally Related” to its Purpose

Sample? Shenandoah: Will Do Later for DQ2.07-2.08

Chapter 2 : Federal Chapter 2 : Federal ConstitutionalConstitutional Background: Background: Means/End TestingMeans/End Testing

“Means/End” Testing•Common Type of Constitutional Analysis •Asks if •Means Chosen (Particular State Law) is Sufficiently Well-Designed to Achieve …•An End (State Interest) that is Sufficiently Important

•Rational Basis Review is One Example

Chapter 2 : Federal Chapter 2 : Federal ConstitutionalConstitutional Background: Background: Means/End TestingMeans/End Testing

•Common Type of Constitutional Analysis •Asks if • Means Chosen (Particular State Law) is Sufficiently Well-Designed to Achieve …• An End (State Interest) that is Sufficiently Important

•Rational Basis Review (or Scrutiny) :• Is State Law Rationally Related …• To a Legitimate State Interest

Chapter 2 : Federal Chapter 2 : Federal ConstitutionalConstitutional Background: Background: Means/End TestingMeans/End Testing

•Common Type of Constitutional Analysis • Rational Basis Review (or Scrutiny) :Rational Basis Review (or Scrutiny) :• Is State Law Rationally Related …• To a Legitimate State Interest• Used When Deferring to State LegislaturesUsed When Deferring to State Legislatures

• Compare “Heightened ScrutinyHeightened Scrutiny”: StrictStrict or IntermediateIntermediate• Used when we don’t fully trust the democratic processUsed when we don’t fully trust the democratic process• Not deference, but closer look = more scrutinyNot deference, but closer look = more scrutiny

Chapter 2 : Federal Constitutional Background:

Means/End TestingRational Basis Scrutiny • Must be Rationally Related …• …to Legitimate State Interest• Used for Ordinary Legislation (where deferring to legislature)

• Govt Almost Always Wins

Strict Scrutiny • Must be Narrowly Tailored …• … to Compelling State Interest • Used for, e.g., Lines Drawn on Basis of Race, Religion, Speakers’ Point of View• Govt Almost Never Wins

Chapter 2 : Federal Constitutional Background:

Means/End TestingIntermediate Scrutiny • Must be Reasonably Necessary …• … to Substantial State Interest• Used for, e.g., Lines Drawn on Basis of Sex; Restrictions on Commercial Speech • Govt Sometimes Wins

Strict Scrutiny • Must be Narrowly Tailored …• … to Compelling State Interest • Used for, e.g., Lines Drawn on Basis of Race, Religion, Speakers’ Point of View• Govt Almost Never Wins

Chapter 2 : Federal Constitutional Background

Thrust of Chapter 2•Midkiff: US SCt uses Rational Basis Review as test for when state exercise of Eminent Domain power is for “Public Use” •Debate: Is so much deference appropriate? • Many States adopt less deferential tests• US SCt in Kelo reaffirms Midkiff (5-4) BUT some Justices suggest

circumstances where they would use stricter test•Lawyering Focus of Chapter 2: Applying Legal Tests/Rules to Facts

Chapter 2: The Eminent Domain Power Chapter 2: The Eminent Domain Power & the Public Use Requirement& the Public Use Requirement

•Federal Constitutional BackgroundFederal Constitutional Background•Deference, Rational Basis, Heightened Scrutiny•The Fifth Amdt, Eminent Domain & Public Use• Limited Federal Review Under Berman & Midkiff

•State Public Use Standards•Kelo & Beyond

Chapter 2 : Takings Clause of 5th Amdt

Takings Clause of the Fifth Amdt of the U.S. Constitution

“[N]or shall private property be taken for public use

without just compensation”•Applies to States via 14th Amdt (incorporation)•Gives Rise to

1. Eminent Domain Cases2. “Takings” Cases

Chapter 2 : Takings Clause of 5th Amdt Takings Clause: Takings Clause: “[N]or shall private property

be taken for public usepublic use without just just compensationcompensation”

1.Eminent Domain Cases (Chapter 2)• Govt Deliberately Attempts to Purchase Private

Property (“Condemnation” Action)• Takings Clause requires:

• “For Public Use” (Midkiff, Kelo, etc.)• “Just Compensation” (= Fair Market Value)

Chapter 2 : Takings Clause of 5th AmdtTakings Clause : “[N]or shall private property be taken for

public use without just compensation”1.Eminent Domain Cases (Chapter 2)2.Takings Cases (Along Edge of Course)• Govt Not Trying to Purchase, but to Regulate• Property Owner Claims Regulation Effectively “Takes” Property

so Govt Must Cease or Pay (“Inverse Condemnation” Action)• Claim made to USSCt in Pruneyard & Schmid• Complex caselaw outside scope of this class

Chapter 2 : Eminent Domain: Some Policy Concerns

• Involuntary Transfer • Like Adverse Possession & Intestacy• Eminent Domain (ED!) Very Common & Important Kind of Involuntary Transfer• Govt Can Force Owner to Sell• DQ2.01-2.03 Get At Underlying Issues

REDWOOD: DQ 2.01-2.02

REDWOODS & FERNS

Chapter 2 : Eminent Domain: Some Policy Concerns•DQ2.01 (Redwood): Why not require govt to bargain for land like other purchasers?

Chapter 2 : Eminent Domain: Some Policy Concerns

•DQ2.01 (Redwood): Why not require govt to bargain for land like other purchasers? •Holdout Problems & Other Transaction Costs: Don’t Want to Block Important Projects or Drive Up Costs•Can View as “Tax” for Living in Society w Schools, Roads, Other Govt Buildings & Projects (cf. Chapter Title: “The Cost of Living in a Democratic Society”)

Chapter 2 : Eminent Domain: Some Policy Concerns

Limits on Eminent Domain Power1.Just Compensation2.Democracy: Politics & $$$3.Public Use Requirement

Chapter 2 : Eminent Domain: Some Policy Concerns

Limits on Eminent Domain Power1.Just Compensation:

a. Must Pay Fair Market Value (FMV)b.Addresses Concerns like– Ensuring Govt Has to Consider/Budget to Take Land– Protecting/Encouraging Investment in Land– Harder to Confiscate Property from Disfavored

Persons– (Maybe) Harder to Redistribute Wealth

Chapter 2 : Eminent Domain: Some Policy Concerns

Limits on Eminent Domain Power1.Just Compensation:

a. Must Pay Fair Market Value (FMV)b.Addresses Concerns like– Harder to Confiscate Property from Disfavored

Persons– (Maybe) Harder to Redistribute Wealthc. Speculation re Madison & Slavery

Chapter 2 : Eminent Domain: Some Policy Concerns

Limits on Eminent Domain Power1.Just Compensation (FMV)2.Democracy: Politics & $$$

a. FMV also is big practical limitb.State/Local Govts Usually Short of $$$c. Plus Too Much Forced Sale = Politically

Unpopular

Chapter 2 : Eminent Domain: Some Policy Concerns

•DQ2.02 (Redwood): Where Os Receive Fair Market Value & Democracy & Budgets Limit, Why Do We Need Other Limits on EmDom?

Chapter 2 : Eminent Domain: Some Policy Concerns

•DQ2.02: Where Os Receive FMV & Democracy & Budgets Limit, Why Do We Need Other Limits on EmDom?1. FMV Not Always Adequate Compensation2. Problems with “Democracy & Budgets” as

Limits on EmDom

Chapter 2 : Eminent Domain: Some Policy Concerns

1.Why FMV Not Adequate Compensation• Most people not interested in selling at time • Ignores personal value (sentiment; connection to n-hood)• Ignores investments by OO not worth as much to typical

buyer (me & dog-proofed fence & owl shelving)• Ignores relocation & disruption; loss of stability, etc.

Chapter 2 : Eminent Domain: Some Policy Concerns

2. Problems with Democracy & Budgets as Limits on Eminent Domain

• Tendency to Select Land of Politically Weak• Placement of Sewage Disposal/Hazardous Waste• Fedl Interstate Highway Exchanges in Cities

• Situations When Budgets Not at Issue• E.g., Federal Funds• E.g., Cross-Bronx Expressway• E.g., $$$ Not Coming from Govt (Midkiff & Kelo)