F LEETWOOD M AC : G REATEST H ITS R ECORDINGS 1975-88 §B Seating Today §D If you normally sit on...

FLEETWOOD MAC: FLEETWOOD MAC: GREATEST HITSGREATEST HITS

RECORDINGS 1975-88RECORDINGS 1975-88§B Seating Today §D

If you normally sit on the side where your section is sitting today, take your usual seat.

If you normally sit on the side where the other section is sitting today, sit on the other side in the back four rows (i.e.,

behind the usual seating).

TOMORROW: REVIEW SESSION 7:55-9:15TOMORROW: REVIEW SESSION 7:55-9:15Both Sections; First-in-Time SeatingBoth Sections; First-in-Time Seating

Optional but Strongly RecommendedOptional but Strongly Recommended

Class #38: Final ClassClass #38: Final Class

• DQs Closing Up Unit III DQs Closing Up Unit III • DQ3.42 (Radium)DQ3.42 (Radium)

• DQ3.46 (Oxygen)DQ3.46 (Oxygen)• Review Problem 3A(ii)Review Problem 3A(ii)• Review Problem 3C(ii)Review Problem 3C(ii)• Final LecturesFinal Lectures

Penn Central: Takings AnalysisDQ3.42 (Radium)

What rules can you derive from the majority in Penn Central?

•Implicit: Rules must be consistent with resultsresults of earlier cases (nothing overruled).•Can read PC to alter meaningmeaning of those cases as long as they’d come out the same way.

How does Penn Central alter or limit the holdings of the earlier cases?


How does Penn Central alter or limit the holdings of the earlier

cases? At least:•Rejects distinction between preventing public harm & providing public benefit•Reads Mahon: Kohler Act unconstitutional b/c interference w DIBE left no value to property Os •[Adds a number of new ideas: e.g., importance of DIBE & physical invasion]


What rules can you derive from the majority in Penn

Central?

•Implicit: Rules must be consistent with resultsresults of earlier cases (nothing overruled).

Lots of Possibilities; I’ll Go Through Some

Penn Central: Takings AnalysisDQ3.42: Possible Rules from Majority

• Taking (= unconstitutional unless compensation paid) if: • Gov’t actions “that may be characterized as

acquisitions of resources to permit or facilitate uniquely public functions” (Sax Enterprisers) (EXPLICIT)

• “Not reasonably necessary to the effectuation of a substantial public purpose.” (MAYBE)


• (Possible Reads) Not Taking if:• Reasonably Related to Implementing

Policy w Widespread Public Benefit• No Significant Interference w DIBE


• (Explicit) More Likely Taking if:• Physical invasion of property by or because of

Gov’t • Significant Interference w DIBE

• (Explicit) Not Necessarily Taking if:

• Significant diminution in value• Elimination of one use of parcel


Denominator Q

• Don’t divide a single parcel into segments to determine if whole segment gone

• Look at effect on all of parcel owned by claimant• Whole parcel in Penn Central• “Rights Reserved” in Mahon

• Don’t look at other unrelated property owned by claimant (other land in Manhattan owned by PC; other property owned by coal cos.)

Penn Central: Takings AnalysisDQ3.42

What rules can you derive from the majority in Penn Central?

•Implicit: Rules must be consistent with resultsresults of earlier cases (nothing overruled).•Lots of Possibilities

QUESTIONS?QUESTIONS?

Takings Theorists RecapTakings Theorists Recap DQ3.46: DQ3.46: OXYGENOXYGEN

Which theorists we’ve studied seem to have been

approved or adopted in whole or in part by the SCt?

Takings Theorists RecapTakings Theorists Recap DQ3.46: DQ3.46: OXYGENOXYGEN

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)

Relevant Considerations in Takings Cases

Survey About What Facts Matter•Ban on Intended Use (90%): Penn Central (Interference w DIBE)

•% Reduction in Value (88%): Mahon, Epstein & Penn Central

•$$$ Amount Reduction (59%):

•Purpose of Regulation (63%) = Hadacheck; Sax; Mahon; Epstein; Miller; Ackerman (2d Q) (BUT role of purpose unclear after Penn Central)

• $$$ Amount Left (56%) = Kelso; Mahon; Ackerman (1st Q); Penn Central

•Return on Investment (39%): Penn Central (Interference w DIBE)

Relevant Considerations in Takings Cases

Other Possible Considerations•Michaelman: Settlement & Demoralization Costs•Penn Central:– Physical Invasion– Means/Ends Testing (Relationship betw. Purpose and

Method)


• DQs Closing Up Unit III DQs Closing Up Unit III

• Review Problem 3A(ii)Review Problem 3A(ii)• featuring Uraniumfeaturing Uranium

• Review Problem 3C(ii)Review Problem 3C(ii)• Final LecturesFinal Lectures

FINAL EXAM QUESTION 3Review Problem 3A(ii)

(Uranium)XQIIID (1998): B took parcel under father’s will. Big loss in value to B’s parcel when state opened prison on neighboring lot.

•Should a state ever have to pay compensation to landowners whose property values are reduced significantly by some government activity but who paid nothing for their land because they acquired it by gift, inheritance or bequest (will)?

•Gov’t Argument: No interference w DIBE (Penn Central) if no investment at all.

FINAL EXAM QUESTION 3Review Problem 3A(ii)

(Uranium)• Gov’t : No interference w DIBE (Penn Central) if no

investment at all b/c acquired by gift or will.• Assume for purposes of this argument– Gov’t would have to pay market value to B if purchasing

through ordinary Eminent Domain.– If B had purchased for market price at time of gift, he’d

have a plausible Takings claim on same facts

• Possible Alternatives (B May Need to Defend One)– Treat B’s Father’s investment as relevant amount.–Treat value when B Became owner as “investment.”


• DQs Closing Up Unit III DQs Closing Up Unit III • Review Problem 3A(ii)Review Problem 3A(ii)

• Review Problem 3C(ii)Review Problem 3C(ii)• Radium TogetherRadium Together• Krypton SeparatelyKrypton Separately

• Final LecturesFinal Lectures

FINAL EXAM QUESTION 3Rev. Prob. 3C(ii)

(Krypton/Radium)FROM EXAM QUESTION IIIF (2001)

Parking Garages at Shreveport Airport–A buys one (B) and builds one on adjacent lot (C)–Post 9/11 Security Rules shut down garage on (C)

• Value of (C) drops from $350K to $100K (Significant Interference w DIBE as high-tech garage)

• Value of B + C together increases from $1M to $1.5M (Almost certainly no Taking)

Analyze B & C together or separately?Analyze B & C together or separately?

FINAL EXAM QUESTION 3Rev. Prob. 3C(ii)

(Krypton/Radium)• A owns adjacent garages B & C. New Security

rules shut down C. • FoF: Value of BG + CG: $1M $1.5M (Assume OK)• FoF: Value of CG: $350K $100K. (Signif Intfr w

DIBE)

Analyze B & C together or separately?Analyze B & C together or separately?• 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 C but increased

value of B and of parcels together


• DQs Closing Up Unit III DQs Closing Up Unit III • Review Problem 3A(ii)Review Problem 3A(ii)• Review Problem 3C(ii)Review Problem 3C(ii)

• Final LecturesFinal Lectures

Takings in PerspectiveSociety 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 Perspective

Takings 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


Means/End Testing & Levels of Scrutiny•Choice among three common means/end tests: • Rational Basis• Scrict Scrutiny• Intermediate Scrutiny

•At Stake: Relative Protection Given to• Democratic Process (US v. Romania)• Particular Constitutionally Protected 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 Takings in Context of Tension between Democracy & in Context of Tension between Democracy &

Constitutional ProtectionsConstitutional Protections1.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

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

F LEETWOOD M AC : G REATEST H ITS R ECORDINGS 1975-88 §B Seating Today §D If you normally sit on...

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