last exam-tips workshop today @12:30 in f309

Music: MozartPiano Concertos 26 & 27

(1788, 1791)Vienna Symphony (Recorded

2004)Rudolf Buchbinder,

Piano/ConductorLAST EXAM-TIPS WORKSHOP TODAY @12:30 in F309

Unit Three : Constitutional Protection of Private Property

State Regulations of Land Use Frequently Limit What Landowners

Can Do With Their Land and/or Reduce Its Value.

Our Issue:

Under What Circumstances Does the U.S. Constitution Require that the

State Compensate the Landowner for These Effects?

Unit Three : IntroductionDQ95: Role of Fed’l Court

(Oxygen)LAST TIME: Why shouldn’t a Federal Court

strike down a state statute because it is stupid?

Common Answers Include: •Democratic Theory (State Legislature is Elected Body; Fed’l Court Isn’t)•Relative Expertise (Legislatures Better at Fact-Finding than Courts)


(Oxygen)Upshot = Default Rule is Deference to

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


(Oxygen)Parent Analogy

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


(Oxygen)Default is Deference to State Legislation•States Allowed to do Stupid Things Unless They Violate a Specific Constitutional Provision •Relevant Provision Here is Takings Clause of Fifth Amendment (Applicable to States through Fourteenth Amendment)

Unit Three : IntroductionDQ96: Takings Clause

(Oxygen)Takings Clause of the Fifth

Amendment of the U.S. Constitution: “[N]or shall private property be taken for

public use without just compensation”

What sort of cases do you think the framers intended to prevent

when they included this provision in the Constitution?


(Oxygen)Takings Clause : “[N]or shall private property be taken for public use without just compensation”

1.Eminent Domain (Property not Elements)– Govt Deliberately Attempts to

Purchase Private Property (“Condemnation”)

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

Value)


(Oxygen)Takings Clause : “[N]or shall private

property be taken for public use without just compensation”

1.Eminent Domain (Property not Elements)– Takings Clause requires:

– “For Public Use” = Concern About Govt Handing Out Prizes to Favored Individuals

– “Just Compensation”


(Oxygen)Takings Clause : “[N]or shall private property be taken for public use without just compensation”

1.Eminent Domain (Property not Elements)– Takings Clause requires “Public Use” and– “Just Compensation” = Concerns About – Ensuring Govt Has to Consider/Budget to Take Land

– Protecting/Encouraging Investment in Land

– Taking Property to Punish Disfavored Individuals

– Redistributing Wealth

– (Shout-Outs to §B1: Importico; LaFalce; Suarez)




1.Eminent Domain (Property not Elements)– Takings Clause requires “Public Use”

and– “Just Compensation” = Concerns About – Taking Property to Punish Disfavored

Individuals

– Redistributing Wealth

– Speculation re Madison & Slavery




1.Eminent Domain Cases

2.Takings Cases (Elements Unit Three)– Govt Not Trying to Purchase, but to

Regulate– Property Owner Claims Regulation

Effectively “Takes” Property so Govt Must Cease or Pay (“Inverse Condemnation” Action)




1.Eminent Domain Cases

2.Takings Cases (Elements Unit Three)– Property Owner Claims Regulation

Effectively “Takes” Property so Govt Must Cease or Pay (“Inverse Condemnation” Action)

– Little Historical Evidence Connecting Framers to These Claims


(Oxygen)Takings Cases (Elements Unit Three)•Property Owner Claims Regulation Effectively “Takes” Property so Govt Must Cease or Pay •Left with Hard Q of When Govt Must Pay– Really No Historical Guidance

– Generally Defer to State Legislative Process

– Can’t Pay for All Loss of Value (Military Bases; Opium Poppies)

Unit Three : IntroductionRelevant Considerations in

Takings Cases• We’ll Look at Cases & Theorists to

Determine What’s Relevant• Cases Complex (Like Escape Cases)– Use a Variety of Factors– Can Use Charts to Keep Track


Takings CasesSurvey of Instincts About What Facts

Matter1.% Reduction in Value2.$$$ Amount Reduction (Loss Can Be Small % but Big $$$ or v-v)3.$$$ Amount Left (Regardless of Loss, Is What’s Left Substantial?)4.Return on Investment (Focus on Long Term Financial Effects to O)5.Ban on Intended Use6.Purpose of Regulation



Matter68 Responses

•% Reduction in Value (61)•Ban on Intended Use (61)•$$$ Amount Reduction (42)•Purpose of Regulation (37)•$$$ Amount Left (29)•Return on Investment (18)


Takings CasesSurvey Data on Instincts (68 Responses)Every Option Chosen By At Least Two Students

A B C D E

Strongest 2 18 36 4 6

2d Strongest 27 10 20 6 5

3d Strongest 15 12 4 22 15

4th Strongest 18 13 4 24 10

5th Strongest 6 13 4 12 32

Average Rank (1 = Strongest)

3.0 2.8 1.8 3.5 3.8



Matter(A) Owner just purchased land and can still use the land in the way she intended; market value of land reduced 60%. (Avg = 3.0) (Compare to E)(B) Owner can no longer use the land the way he had been using it; market value of land reduced 5%. (Avg =2.8) (Compare to A & D)(C) Current use of land limited, not eliminated; market value of land reduced from $100,000 to $20,000 (Avg = 1.8) (Compare to A & D)(D) Current use of land limited, not eliminated; market value of land reduced from $10,000,000 to $9,000,000 (Avg = 3.5)(E) Land purchased for $50,000 five years ago; market value of land before regulation $200,000; market value after regulation $80,000; current use unlimited. (Avg = 3.8)

Unit Three : Constitutional Protection of Private Property

Special Tools•Recurring Hypo: “Airspace Solution to Hammonds Problem” (Introduced in DQ 97)•Minimum Requirement for Constitutionality: Rational Basis Review (Introduced in DQ 98)•The “Demsetz Takings Story” (Introduced in DQ 99)•In Class: Replace Briefs w Introductory Line of Qs for Each Case (Introduced in DQ100)•Four Theorists (Each Panel will Introduce One)

Unit Three : IntroductionDQ97: Airspace Solution (Oxygen)

“Airspace Solution to Hammonds Problem”

•Suppose Kentucky adopts a statute treating empty underground gas reservoirs like airspace needed for airlines. The statute:

(a) allows the gas company to store its gas under Ms. Hammonds’s property without paying rent; and (b) prohibits her from extracting it.

Unit Three : IntroductionDQ97: 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.

Do you think this is the kind of harm the Takings Clause forbids?

Why or Why Not?

Unit Three : IntroductionDQ97: 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.

We’ll apply the authorities we study to this problem to help see

what they do.

Unit Three : Introduction

To Krypton for DQ98-100

Unit Three : IntroductionDQ98: Police Power (Krypton)• “Police Power” = Basic Authority of State Gov’ts• Can regulate to protect/further “HSWM”• Health• Safety• Welfare [general well-being including economic success] • Morals

• Good lawyer can tie virtually any state law to one of these purposes

Unit Three : IntroductionDQ98: Rational Basis Review

(Krypton)• 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


(Krypton)• “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?


(Krypton)• “Rationally Related to Legitimate State Purpose”–What is Purpose?– Is Purpose Legitimate? – Is Law “Rationally Related” to 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


(Krypton)• Apply to Airspace Solution–What is Purpose?– Is Purpose Legitimate? • Arising under Police Power • Health Safety Welfare Morals

– Is Law “Rationally Related” to Purpose?• Could a rational legislator believe the state

law will help further its purpose, at least a little bit?

Unit Three : IntroductionDQ99: Demsetz Takings Story

(Krypton)Description of How Takings Cases

Arise•Change leads to rising externalities•Creates a demand for a change in the law. •After the change, people affected by the new law complain that their property rights have been taken.


(Krypton)Airspace Solution?

•Change leads to rising externalities•Creates a demand for a change in the law. •After the change, people affected by the new law complain that their property rights have been taken.


(Krypton)Description of How Takings Cases Arise

•Change leads to rising externalities•Creates a demand for a change in the law. •After the change, people affected by the new law complain that their property rights have been taken.

Long Term Q for You: If this story represents a common pattern among Takings cases, what does that suggest about the proper role of the Takings

Clause?

LOGISTICS: CLASS #27• Won’t get to Mahon v. Penn Coal Friday, so shift reading

of majority opinion & DQ106 Mon-Tues• Assignment #3– “International Waters” • Point is no trespass-like claims by nearby nations• Like “deserted beach” in Pierson

– Sub-Assignment 3C Choosing Alternative: Can pick from• Usual Options for Escape Cases: OO always wins; F always

wins; variations on salvage; registration systems• Different option of your own creation

–Other Qs??

Hadacheck v. SebastianBackground: Growth of Los

Angeles• OIL: –Discovered 1876

– SoCal produces 25% of world’s oil in 1920s

• WATER: Aqueduct Completed in 1913

• MOVIE INDUSTRY: Beginning 1910–Weather/Sunlight

– Proximity to Mexico & Patent Evasion

Hadacheck v. SebastianDQ100: Introduction (Krypton)

• Useful in Takings cases to begin analysis with challenged gov’t action, rather than with a description of the lawsuit.

• DQ100 provides a standard set of Qs that, along with brief, will help you understand what’s at issue in the cases. We’ll use again in DQs 106, 115 & 124.

Hadacheck v. SebastianDQ100: Introduction (Krypton)

Challenged Action & Rational Basis Review

•Government action in Hadacheck: (p.101) L.A. Ordinance banning operation of brickyard in city• What is the purpose of the action? • Legitimate (HSWM)?• Is the action rationally related to the

purpose?

last exam-tips workshop today @12:30 in f309

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