property e slides

PROPERTY E SLIDES

02-11-13

Review Problem 1G: OLYMPICAstigarraga; Little; Segall; Green; Stroman

SUNSET IN THE PARK

Review Problem 1G: OLYMPICClient 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 customers

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


Legal ResearchWhere do You Start?

•We’ve said rules vary by state, so start by getting basic rule (if any) for jurisdiction•Possibilities?


Legal Research•We’ve said rules vary by state; get basic rule (if any) for jurisd. Possibilities include:

– No right to protest at malls – Specific right to protest at [some/all] malls– Might be no rule re malls, but some general rule re 1st

Amdt access (like Schmid)•Assuming some right to protest at malls, what specific details re law might be helpful?


Legal Research•Relevant Specific Details re Law Might Include:

– Rules re Which Malls Covered– Specifics re Rules/Limits can Put on Protestors. E.g.,

• Location• Manner of Protest• Clean-Up, Deposit, etc.

– Special rules re targeting mall tenant

Review Problem 1G: OLYMPIC

Factual Research?•Re M’s Mall Generally?•Re This Dispute?


Factual Research?•Re M’s Mall Generally? Might Include

– Info re size (if relevant to coverage)– Scope/nature of invitation– General Rules re Protestors– Physical Space & Good Place for Protestors– Maybe general info on

maintenance/security/insurance•Re This Dispute?


Factual Research?•Re This Dispute: Might Include:

– Specifics re Protestors• Number, Length of Time, Location• Content of Pamphlets• Behavior• Prior Specific Agreement

– Specifics re Harms/Problems• Evidence of Harm to ES?• Complaints by Shoppers?• Problems for Mall (Security, Clean-Up, Traffic Flow)

•Room for Detailed Qs re Most of These

Right to Exclude: Property Open to the PublicEVERGLADES: JMB & DQ28

EGRET IN MANGROVE SWAMP

DQ28: EVERGLADESArguments from JMB & Schmid re Issue in Shack

Sequence Today: 1.Discussion/application of Schmid test2.Comparisons to facts of JMB3.[A couple of] other arguments from JMB


(1) Discussion of Schmid Test• Use to decide when 1st Amdt requires access

to private property open (for some purposes) to public

• Once access allowed, test largely unhelpful for deciding what restrictions allowable; Schmid just says they must be “reasonable”

• Note Princeton appealed Schmid decision to US SCt

– Claim was interference with federal Const. Property Rights

– US SCt refused to hear case


(1) Application of Schmid Test (P89)

i.Normal Use of Private Propertyii.Extent & Nature of [Public] Invitationiii.Compatibility of Speech [Entrance] with Normal Use:


1. Discussion/application of Schmid test2.Comparisons to facts of JMB3. [A couple of] other arguments from JMB


1. Discussion/application of Schmid test2. Comparisons to facts of JMB:

– Nicely worded version from student submission: “In both cases there are groups that seek to provide citizens who are on private land with information that they believe the citizens need to know.”

3.[A couple of] other arguments from JMB

DQ29: EVERGLADESElectronic Submission Last Week

1. Write-Up Available on Course Page; I’ll also integrate into next Info Memo

– Includes Best points from Student Submissions (w Shout-Outs)

– Additional Points & Comments from Me2. Obviously 3.5 page Write-Up for One DQ Much

More Than I Expect for Ordinary Class Prep3. BUT Useful to Begin Thinking About Pushing

Yourself to Keep Adding More to Initial Response

– for Class– Especially for Exam Prep

Review Problem 1K: YOSEMITE & ZION• FD = gated community of single-family homes

– Managed by Homeowners’ Association (FDHA) – Includes common areas: meeting/event room, gym, two

pools, child care center, small general store. – Full-time security guards; non-residents cannot enter

the community unless they are guests of a resident.• Os unanimously enact by-law banning

themselves from having reporters or photographers as guests.

Review Problem 1K: Os in gated community ban reporters or photographers as guests.

YOSEMITE (supporting ban)

• Balkin, Kelly• Burts, Tracy• Favro, Marc• Scala, Laura

ZION (opposing ban)

• Rosenbaum, Danny• Silver, Stephen• Crespo, Loisis• Seppi, Shae

Chapter 2: The Eminent Domain Power & the Public Use

Requirement• Federal Constitutional Background

– Deference, Rational Basis, Heightened Scrutiny– The Fifth Amdt, Eminent Domain & Public Use

• Federal Public Use Standards– Midkiff– Kelo

• State Public Use Standards– Poletown– Hatchcock

Chapter 2 : Federal Constitutional

Background• Federal Courts Determining if State Law

Violates US Constitution– Often in Con Law I: “Procedural”

• Not Looking at Substance of Law• Looking at Authority (v. Feds) Over Subject

Matter – Pre-emption by Congress– Dormant Commerce Clause


BackgroundFederal Courts Determining if State Law Violates US Constitution

•“Procedural” (Subject Matter/State v. Fed’l Authority)•Review of Substance Employed to Check Validity Under 14th Amdt and Bill of Rights

– Most people believe this should not include determining whether the statute is a good idea as a matter of policy.

– Why shouldn’t a federal court strike down a state statute because it’s stupid?


BackgroundFederal Courts Determining if State Law Violates US Constitution

“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


BackgroundUpshot = Default Rule is Deference to

State Legislation•Many Bad Laws are Constitutional•State Legislatures Mostly Allowed to do Stupid Things Unless They Violate a Specific Constitutional Provision (Tolerant Parent Analogy)


BackgroundTolerant Parent

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


BackgroundTolerant Parent Analogy

“You Are Not Leaving the House in That!!”


BackgroundDefault is Deference to State Legislation

•States Mostly Allowed to do Stupid Things Unless They Violate a Specific Constitutional Provision

– Relevant Provision Here is Takings Clause of 5th Amdt (Applicable to States through 14th Amdt)

– Otherwise, Deference Means Minimal Review of State Legislation: “Rational Basis Scrutiny”

Chapter 2 : Federal Constitutional Background :

Rational Basis Review• Is Challenged Law “Rationally

Related to a Legitimate State Purpose”?– Minimal Test for Constitutionality Under Due

Process & Equal Protection Clauses– Applies When No Specific Constitutional

Provision is Violated– Very Deferential: Gov’t Virtually Always Wins


Rational Basis ReviewIs Challenged Law “Rationally Related to a Legitimate State Purpose”?•Purpose is Legitimate if stems from “Police Power” = Basic Authority of State Govts•Can regulate to protect/further “HSWM”

• Health• Safety• Welfare [general well-being including economic success] • Morals


Rational Basis ReviewIs Challenged Law “Rationally Related to a Legitimate State Purpose”?•Purpose is Legitimate if stems from “Police Power” = Basic Authority of State Gov’ts = furthering 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


Rational 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)


Rational 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)


Rational Basis Review• “Rationally Related to Legitimate State Purpose”

– What is Purpose?– Is Purpose Legitimate

• Arising under Police Power (HSWM)• Not Just to Harm Individuals or Group

– Is Law “Rationally Related” to Purpose?• Sample?• Example of “Means/End” Testing

Chapter 2 : Federal Constitutional Background:

Means/End TestingCommon 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



Analysis •Asks if

– Means Chosen (Particular State Law) is Sufficiently Well-Designed to Achieve …

– An End (State Interest) that is Sufficiently Important

•Rational Basis Scrutiny– Means Chosen Must Be Rationally Related

to– Legitimate State Interest



Analysis •Rational Basis Scrutiny

– Means Chosen Must Be Rationally Related to– Legitimate State Interest– Used When Deferring to State Legislatures

•Compare Two Forms of “Heightened Scrutiny”: Strict & Intermediate

– Used when we don’t fully trust the democratic process

– Not deference, but closer look = more scrutiny


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


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


BackgroundThrust 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 BUT some

Justices suggest circumstances where they would use stricter test

•Lawyering Focus of Chapter 2: Applying Legal Tests to Facts

Chapter 2: The Eminent Domain Power & the Public Use

Requirement• Federal Constitutional Background

– Deference, Rational Basis, Heightened Scrutiny– The Fifth Amdt., Eminent Domain & Public Use

• Federal Public Use Standards– Midkiff– Kelo

• State Public Use Standards– Poletown– Hatchcock

Chapter 2 : Takings Clause of 5th Amdt

Takings Clause of the Fifth Amdt of the U.S. Constitution (Applies to States via 14th Amdt): “[N]or shall

private property be taken for public use without just compensation”

Gives Rise to1. Eminent Domain Cases2. “Takings” Cases


Takings Clause : “[N]or shall private property be taken for public use without just compensation”1.Eminent Domain Cases (Chapterv2)

– Govt Deliberately Attempts to Purchase Private Property (“Condemnation” Action)

– Takings Clause requires:– “For Public Use” (Midkiff, Kelo, etc.)– “Just Compensation” (= Fair Market

Value)


Takings 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

• Part of Unit One: Involuntary Transfers– Eminent Domain Very Common &

Important Kind of Involuntary Transfer

– Govt Can Force Owner to Sell– DQ30-32 Get At Underlying Issues


• DQ30: 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


Limits on Eminent Domain Power

1.Just Compensation2.Democracy: Politics & $$$3.Public Use Requirement


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


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


Limits on Eminent Domain Power

1.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


• DQ31: 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


1.Why FMV Not Adequate Compensation

2. Most people not interested in selling at time 3. Ignores personal value (sentiment;

connection to n-hood)4. Ignores investments by OO not worth as

much to typical buyer 5. Ignores relocation & disruption; loss of

stability, etc.

property e slides

Documents

jmb schmid

restrictions allowable

parkreview problem

esreview problem

mall tenantreview problem

jmb dq28egret

malls specific right

olympicfactual research