PROPERTY A SLIDES 2-20-15. Feb 20 Music: Jason Mraz, Mr. A-Z (2005) Shenandoah Reminder: Critique of...

PROPERTY A SLIDES2-20-15

Feb 20 Music: Jason Mraz, Mr. A-Z (2005)

Shenandoah Reminder: Shenandoah Reminder: Critique of Rev. Prob. 2C Due Tomorrow @ 10amCritique of Rev. Prob. 2C Due Tomorrow @ 10am

Name the Musical Group:Name the Musical Group:

• 1st Billboard #1 Hit in 1958

•Won 5 Grammys; Nominated for 8 More

• Featured in Major Studio Motion Picture in 2011

Name the Musical Group:• 1st Billboard #1 Hit in 1958

• Won 5 Grammys; Nominated for 8 More

• Featured in Major Studio Motion Picture in 2011

Name the Musical Group:

• 1st Billboard #1 Hit in 1958

• Won 5 Grammys; Nominated for 8 More

• Featured in Motion Picture in 2011

Closing Up REVIEW PROBLEM 2C• Need to Understand Specific Definitions• “Public Necessity” • Does NOT Mean Project must be Necessary to Public• Instead:

1. Project is Important -AND-2. EmDom must be Necessary to Do Project

• In “Selection”: IndependentIndependent means reasons to select location unconnected to success of intended Project

• Questions?Questions?

Chapter 2: The Eminent Domain Power Chapter 2: The Eminent Domain Power & the Public Use Requirement& the Public Use Requirement

•Federal Constitutional Background

•State Public Use Standards

•Kelo & BeyondKelo & Beyond• Kelo Majority & Kennedy Concurrence

•KeloKelo Dissents & Merrill Dissents & Merrill• Review Problems• Setting Up Rev. Problem 2G for Tuesday

• Rev. Problem 2D

YELLOWSTONE (DQ2.15-2.17)

GIANT GEYSER

Kelo Dissents: DQ2.15 (Yellowstone)

OCR Dissent joined by RNQ SCA THS

Justice O’Connor wrote the majority opinion in Midkiff.

In her dissent in Kelo, how does she distinguish

Midkiff from Kelo?

Kelo Dissents: DQ2.15 (Yellowstone)OCR Dissent joined by RNQ SCA THS

Justice O’Connor wrote the majority opinion in Midkiff. How does she distinguish that case in her dissent in

Kelo?

•Govt Purpose/ Public Benefit…•Was Purchase Itself in Midkiff (& Berman).

•Was Resulting Private Ownership in Kelo.

•Convincing?

•NOTE: OCR Test implicitly is Hatchcock Situation #3


OCR Dissent joined by RNQ SCA THS

•(P183) If economic development counts as a public use, “[n]othing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory ….”

How would majority likely respond?


THS Dissent •Dissenting alone (pretty common)

•Rests on his sense of original understanding (probably correct but see delegation examples in Note 7 (P189))

•Would adopt rule: • Gov’t Must Own -OR-

• Public Must Have Right to Use• Probably includes privately owned railroads, public utilities,

stadiums (See OCR Dissent, which THS joined)


THS Dissent •Would adopt rule : •Govt Must Own -OR- Public Must Have A Right to Use

•Rests on his sense of original understanding

•Similar to Wash. State’s approach in City of Seattle

•Strengths of that approach?

•Weaknesses of that approach?


Why does Justice Thomas believe that the interests of poorer citizens and people of color are particularly threatened by the

majority’s approach? Convincing?

Kelo Dissents: DQ2.16 (Yellowstone)• (P184) THS refers to Carolene Products FN4 • “discrete & insular minorities”

• Suggests less deference appropriate• Not clear how he would apply in practice

• To get Heightened Scrutiny because of these concerns, normally would need very strong evidence of discriminatory purpose by govt (hard to do generally & even more so where big economic benefit)

Qs on Kelo Dissents?

Other Approaches: DQ2.17 (Yellowstone)

Professor Merrill’s Approach (Note 5 P188)

•Use of EmDom Must Be Necessary to Accomplish Project

•Hatchcock Situation #1, Applied to ALL EmDom (Not Just Cases Where Private Party Gets Land)• Might be met in cases like Kelo where you need to assemble a very large parcel

• Fact Q in case like Poletown

• BUT Mich SCt thinks not met either in Poletown or in Hatchcock itself (1300 acres)

Other Approaches: DQ2.17 (Yellowstone)

Professor Merrill’s Approach (Note 5 P196)

Use of EmDom Must Be Necessary to Accomplish Project

What are some strengths and weakness of this approach compared to those used by the

cases in this chapter?


•Federal Constitutional Background•State Public Use Standards

•Kelo & BeyondKelo & Beyond• Kelo Majority & Kennedy Concurrence• Kelo Dissents & Merrill

•Review ProblemsReview Problems• Setting Up Rev. Problem 2G for TuesdaySetting Up Rev. Problem 2G for Tuesday• Rev. Problem 2D

FINAL EXAM QUESTIONSChoose Three of Four

• XQ1: LAWYERING• XQ2: SHORT ANSWERS (Choose

Three of Four)

• XQ3: OPINION/DISSENT• XQ4: TRADITIONAL ISSUE-SPOTTER

FINAL EXAM QUESTION 3OPINION/DISSENT

Instructions Will Say (Roughly) …

Based on the information presented here, draft the analysis sections of a

majority opinion for the [U.S. or Name-of-State] Supreme Court and of

a shorter concurrence or dissent, deciding [the legal question

indicated].


Task: Choose & Defend Rules for a Specific Legal Task: Choose & Defend Rules for a Specific Legal IssueIssue

•Describe and Defend Two Positions•Utilize Range of Relevant Arguments from Course. E.g., • Policy from Relevant Area• Ease of Application/Institutional Competence• Likely Effects on Behavior of Relevant Parties

•Application to Facts & Resolution of Case Much Less Important Than Defense of Rule


Task: Choose & Defend Rules for a Specific Task: Choose & Defend Rules for a Specific Legal IssueLegal Issue

• Take on Role of US/State Supreme CourtTake on Role of US/State Supreme Court• Setting Rules for Lots of Cases While Deciding One Case• Can Choose to Affirm or Modify Precedent; Must Defend

• Ideally Both Opinions Address Own Weaknesses Ideally Both Opinions Address Own Weaknesses • Acknowledge & Address Problems w Own Position• Address Other Side’s Best Points


Instructions for 2G (Spring 2013)

Compose drafts of the analysis sections of both:

(a) a majority opinion for the Court, determining the legal standards that should apply and defending your choice; and

(b) a shorter opinion arguing that the Court should apply different legal standards than those adopted by the majority and defending this position. (If the result in this case under this test is the same as under the majority’s test, call this a concurrence; otherwise, call it a dissent.)

Review Problem 2G Tuesday

• On test, you could choose any two plausible rules to defend in your two opinions.

• For clarity Tuesday: • Yellowstone will defend Yellowstone will defend HatchcockHatchcock Rule Rule

• Shenandoah will defend pure Rational Basis

• For critique, Redwood will treat •Yellowstone/Hatchcock as Plaintiff

•Shenandoah/Ratl. Basis as Defendant


• Yellowstone will defend Yellowstone will defend HatchcockHatchcock Rule Rule• Shenandoah will defend pure Rational

Basis

• Sequence of Qs Addressed:•Why Each Particular Hatchcock Situation is/isn’t a Useful Test for Public Use

•Why Rational Basis is/isn’t a Useful Test for Public Use

•Why the Rule You Are Defending is Preferable to the Primary Beneficiary Test from Poletown


Keep in Mind:•Cases treat government as equivalent to public for purposes of Public Use tests

•Cases do not consider extent of harm to owners whose land will be purchased or value to public of uses lost

•You can use facts of particular case as an example to illustrate a particular argument for or against a rule.

•Useful to try to address arguments raised by “lower courts.”

Qs on Review Problem 2G?


•Federal Constitutional Background•State Public Use Standards

•Kelo & BeyondKelo & Beyond• Kelo Majority & Kennedy Concurrence• Kelo Dissents & Merrill

•Review ProblemsReview Problems• Setting Up Rev. Problem 2G for Tuesday

•Rev. Problem 2DRev. Problem 2D

BISCAYNE: Rev. Prob. 2D

SUNRISE AT ADAMS KEY

Review Problem 2D

•City developing Museum on own land next to Old Grantham•OG = Slightly rundown neighborhood w shabby but occupied apt complexes, warehouses, and a few small businesses (incl. pawnshop & XXX bookstore).

•Developer D wants to develop 24-sq-block part of OG into mixed-use project containing residences, offices, stores and restaurants. •City uses EmDom to purchase area & resell to D contingent on her building proposed project.

REVIEW PROBLEM 2D Under Rational Basis Test

• Purpose of Program?• Upgrade N-Hood; Improve Museum Prospects

• Legitimate? (Connected to Health, Safety, Welfare, Morals)• YES. Both are Welfare

• Program Rationally Related to Purpose?• Plausible Successful Developer Can Upgrade Neighborhood? YES• Plausible Better Neighborhood Helps Increase Visits to Museum? YES

EASY CASE UNDER RATIONAL BASIS

REVIEW PROBLEM 2D

EASY CASE UNDER RATIONAL BASIS

TODAY: Q under Kelo Majority & KND Concurrence:

Does the Situation Here Warrant Greater Scrutiny or is Pure Rational Basis the

Appropriate Test

NEXT WEEK IN DF: Do as Lawyering QTake into Account Both Federal Standards

and Possible Stricter State Standards

Biscayne: REVIEW PROBLEM 2D

Facts/Aspects Of Problem That Might Point To Greater Scrutiny

Under Kelo Majority or KND?


Facts/Aspects Of Problem That Tend to Support

Rational Basis/Deference?


Overall: Enough Reasons for Concern to Forego Deference/Rational Basis?

PROPERTY A SLIDES 2-20-15. Feb 20 Music: Jason Mraz, Mr. A-Z (2005) Shenandoah Reminder: Critique of...

Documents

Transcript of PROPERTY A SLIDES 2-20-15. Feb 20 Music: Jason Mraz, Mr. A-Z (2005) Shenandoah Reminder: Critique of...