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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? - PowerPoint PPT Presentation

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  • Please Sit in Center SectionInto the Woods

  • DQ138: Bruce Ackerman(Criste Ercolani Newingham)Is property in Q literally taken? Means:Gone completely (OR)Whats left is so trivial, bad joke to say you still haveIs govt stopping unduly harmful use of property?Apply to Hadacheck?Apply to Mahon?

  • DQ138: Bruce Ackerman (Mena Biddle Binko)Is property in Q literally taken? Means:Gone completely (OR)Whats left is so trivial, bad joke to say you still haveIs govt stopping unduly harmful use of property?Apply to Miller?Apply to Penn Central?

  • DQ139: Takings TheoristsWhich theorists seem to have been approved or adopted in whole or in part by the SCt?Sax: Enterpriser adopted in PC & Arbiter in MillerEpstein: View rejected with dissent in PCMichelman: Cited though not adopted (might be consistent with results)Ackerman: Not referenced (might be consistent with results)

  • EXAM QUESTION 3D (1998)1970: B Inherits Large Lot & Summer Home Worth $2.2M1979: Minimum-Security Prison Built Next DoorFindings of Fact (Must Accept!)No threat to health/safety of residents of Bs lotMarket Value declines to $600K

  • EXAM QUESTION 3D (1998)1970: B Inherits Lot /Summer Home worth $2.2M1979: Minimum-Security Prison Built Next DoorFoF: No threat to health/safety of residents of Bs lotFoF: Market Value declines to $600KGovt may argue: Cannot be Taking because B inherited property, so investment is zero (no DIBE)No restriction at all on Bs use of parcelWhen Govt purchases land to build necessary Govt facility, shouldnt have to pay for neighbors loss of property value

  • EXAM QUESTION 3D (1998)1970: B Inherits Lot /Summer Home worth $2.2M1979: Minimum-Security Prison Built Next DoorFoF: No threat to health/safety of residents of Bs lotFoF: Market Value declines to $600KGovt : Cannot be Taking b/c B inherited property, so investment is zero (no DIBE)Roberts * Webster-Jones * Bianchi Fasani

  • EXAM QUESTION 3D (1998)1970: B Inherits Lot /Summer Home worth $2.2M1979: Minimum-Security Prison Built Next DoorFoF: No threat to health/safety of residents of Bs lotFoF: Market Value declines to $600KGovt : Cannot be Taking where theres no restriction at all on Bs use of his parcel.KLOCK * FORMAN * VAN WART

  • EXAM QUESTION 3D (1998)1970: B Inherits Lot /Summer Home worth $2.2M1979: Minimum-Security Prison Built Next DoorFoF: No threat to health/safety of residents of Bs lotFoF: Market Value declines to $600KGovt : When Govt purchases land to build necessary Govt facility, shouldnt have to pay for neighbors loss of property valueFAYNE * YANES * MARTIN

  • EXAM QUESTION 3F (2001)A owns adjacent garages BG & CG. Post 9/11 Security rules shut down CG. FoF: Value of BG + CG: $1M $1.5MFoF: Value of CG: $350K $100K.

  • EXAM QUESTION 3F (2001)A owns adjacent garages BG & CG. New Security rules shut down CG. FoF: Value of BG + CG: $1M $1.5MFoF: Value of CG: $350K $100K.Govt may argue no Taking b/c Even looking at CG alone, strong govt 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 (2001)A owns adjacent garages BG & CG. New rules shut down CG ($350K $100K)Govt may argue no Taking b/c strong govt purpose permits signif. interference w DIBE GONZALEZ * RAMLAL * ANDINO

  • EXAM QUESTION 3F (2001)Govt likely to argue court should analyze parcels togetherNeed to look at specific facts as well as law and policy to resolve. Possibly relevant facts include:Parcels purchased at different timesRoad separates the two parcelsA intended to manage as single businessNew rules decreased value of CG but increased value of BG and of parcels together

  • EXAM QUESTION 3F (2001)Govt likely to argue court should analyze parcels together. Possibly relevant facts:Parcels purchased at different timesRoad separates the two parcelsA intended to manage as single businessNew rules decreased value of CG but increased value of BG and of parcels togetherDeOrchis * PHILLIPS * DOYLE

  • LOGISTICS: Reading & Exam PeriodKey Pre-Exam Info on Course PageOffice Hours Listed for 11/30-12/13Ill Take E-Mail Qs Sent Before 7pm on 12/13Additional Info Memos (& Updates to Syllabus) Graded Assignments: When Ready for Pick-UpFinal Exam Instructions & Syllabus

  • LOGISTICS: Reading & Exam PeriodReview SessionWed. 12/12/12 @ 7:00 pm in Room F109 (Torts Room)Presentation with Slides, Mostly About Exam TechniqueHow to Approach Each Type of Question Then Ill take Qs on Both Technique & SubstanceSlides & Podcast posted on course page afterwardsOld Exam QsIf Limited Time, Work with Most Recent (esp. Q2 & Q3)Skip XQ3C (1997); Missing Key Sentence or Two (Clancy!)

  • LOGISTICS: After the TestIm on Bricks Immediately AfterwardDont Talk About Substance of Exam (with Anyone)After Grades Posted, Packet for Each of YouExam Questions, Comments & Best AnswersInformation Sheet with Your ScoresCopy of Your TestIll Review with You After Youve Read PacketGrades & Your Place in the Universe

  • Takings in PerspectiveSociety continually becomes more complex & interrelatedGreater externalities from use of private property. E.g.,:Environmental Impacts: More Impacts/More AwarenessNeed for open space in cities seen as more important History seen as more importantMore 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 PerspectiveTakings Clause = Limit on democratic process of taking and regulating propertyEminent Domain & other real Enterpriser cases: Govt wants to use and control private propertyClearly must pay for itMost Non-Eminent Domain Takings cases: Govt 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 PerspectiveMeans/End Testing & Levels of ScrutinyChoice among three tests: Rational BasisScrict ScrutinyIntermediate ScrutinyAt Stake: Relative Protection Given toDemocratic Process (US v. Romania)Particular Constitutional Interests (Here, Property Rights)

  • Takings in PerspectiveMeans/End Testing & Levels of ScrutinyAt stake in choice among three tests: Protection forDemocratic Process versusParticular 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 PerspectiveMeans/End Testing & Levels of ScrutinyAt stake in choice among three tests: Protection forDemocratic Process versusParticular Constitutional Interests (Here, Property Rights)Strict Scrutiny Govt 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 PerspectiveMeans/End Testing & Levels of ScrutinyAt stake in choice among three tests: Protection forDemocratic Process versusParticular Constitutional Interests Intermediate ScrutinyPenn Central: Reasonably Necessary to Substantial Public Purpose (though role of language unclear)Trying to protect from predictable dangers of democracyArguably focused review, not necessarily replacing legislatures ability to make policy judgments

  • Takings in Perspective3 Ways to View TakingsStrong Private PropertyStrong DemocracyIntermediate View: Identify Especially Problematic SituationsUse Heightened Scrutiny or Other Demanding Test

  • Takings in PerspectiveWhats at Stake?How much we trust Democracy to sufficiently protect private property interestsHow much Govt regulation we haveState & local Govts & $$$Mahon: Govt couldnt go on.Strong Takings Clause protection of property meansMuch less Zoning & Environmental regulationMore leeway for private land uses to harm others

  • Into the Woods (1986)Stephen Sondheim & James LapineCompilation of Several Fairy TalesWoods = metaphor for conquering childhood fearsCharacters discover recurring pattern in lifeNo real happily ever afterMust go into the woods to confront fears againFor 25 years, I end 1L courses withRed Riding Hood in the FallJack and the Beanstalk in the Spring

  • I Know Things Now

  • Thoughts on Emerging from the Dark Slimy Path

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