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Please Sit in Center Section

Into the Woods

DQ138: Bruce Ackerman(Criste Ercolani Newingham)

1. Is property in Q literally “taken”? Means:a. Gone completely (OR)b. What’s left is so trivial, “bad joke” to say you still have

2. Is gov’t stopping unduly harmful use of property?

Apply to Hadacheck?Apply to Mahon?

DQ138: Bruce Ackerman (Mena Biddle Binko)

1. Is property in Q literally “taken”? Means:a. Gone completely (OR)b. What’s left is so trivial, “bad joke” to say you still have

2. Is gov’t stopping unduly harmful use of property?

Apply to Miller?Apply to Penn Central?

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)• 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 (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





• Gov’t : “Cannot be Taking b/c B inherited property, so investment is zero (no DIBE)”

Roberts * Webster-Jones * Bianchi Fasani





• Gov’t : “Cannot be Taking where there’s no restriction at all on B’s use of his parcel.”

KLOCK * FORMAN * VAN WART





• 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)• 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 (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 (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 (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 (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

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 PeriodReview 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• 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• 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 PerspectiveTakings 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 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)


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


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


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


3 Ways to View Takings1.Strong Private Property2.Strong Democracy3.Intermediate View: – Identify Especially Problematic Situations– Use Heightened Scrutiny or Other Demanding Test


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

• 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

Thoughts on Emerging from the Dark Slimy Path