PROPERTY D SLIDES2-9-16

NATIONAL BAGEL DAY

Tuesday Feb 9 - Music to Accompany Midkiff: Tina Turner, Private Dancer (1984)

Lunch TodayLunch TodayMeet on Bricks @ 12:25Meet on Bricks @ 12:25

Bodzin * Friedland * GordonHelmy * Knox * Parikh * Young

Previously in Property DPreviously in Property DContinued Work on Chapter 1Continued Work on Chapter 1

• MWs & Right to Exclude: Problems• Review Problem 1K(ii) (Using FL Statutes)• Review Problem 1J (1st Lawyering Q)

• Right to Exclude & Parcels Open to Public• Your Money’s No Good Here: Continuum

• Common Law (No Limits or Innkeeper’s Rule)• Civil Rights Statutes• Brooks

• JMB & First Amendment Access to Malls• Relevant Interests on Both Sides• NJ & Calif use state 1st Amdts to give access

Previously in Property DPreviously in Property DIntroduction to Chapter 2

• Federal Court Deference to State Legislation & the Rational Basis Test

• The Eminent Domain Power & Its Limits• Takings Clause of 5th Amdt• Just Compensation as a Limit• Democracy as a Limit• Possible Need for Additional Limits When Money Not at Issue & We Don’t Trust Democratic Process

Property Open to the PublicProperty Open to the Public& the Right to Exclude & the Right to Exclude

I. Generally: Your Money’s No Good Here

II.II. Free Speech RightsFree Speech RightsA.A. JMBJMB (including (including SchmidSchmid) & DQ 1.24-1.28 ) & DQ 1.24-1.28

(OLYMPIC)(OLYMPIC) (Continued) (Continued) B. Review Problem 1I (BADLANDS) (Thursday)C. Review Problem 1K(i) (OLYMPIC) (Thursday

Friday)

Right to Exclude: Parcels Open to the PublicRight to Exclude: Parcels Open to the PublicLogic of Logic of JMB: JMB: Reasoning (Reasoning (Schmid Schmid Analysis)Analysis)

JMB Follows & Applies Schmid (NJ 1980)

•Schmid : Schmid : Free Speech access to Princeton Free Speech access to Princeton Univ.Univ.

• (Private property often open to public)• Case described in detail on P89-90• Note: USSCt dismissed appeal in Schmid (see cite on P89)• Appeal raised same type of fedl property rts claim made unsuccessfully in Pruneyard

• As could perhaps try re Shack

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

Logic of Logic of JMB: JMB: Reasoning (Reasoning (Schmid Schmid Analysis)Analysis)Schmid Test (P90)

•Use to decide when 1st Amdt requires access to private property open (for some purposes) to public•Can use by analogy for other limits on Right to Exclude (e.g., for Qs raised in Brooks or Shack)•Once access allowed, test largely unhelpful for deciding what restrictions allowable; Schmid just says they must be “reasonable”

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

Logic of Logic of JMB: JMB: Reasoning (Reasoning (Schmid Schmid Analysis)Analysis)

Schmid Test (P90)(1) Normal Use of Private Property in Q(2) Extent & Nature of [Public] Invitation(3) “[P]urpose of the expressional activity … in relation to both the public & private use of the property”

Meaning of 1Meaning of 1stst Two Factors Relatively Clear Two Factors Relatively Clear

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

Logic of Logic of JMB: JMB: Reasoning (Reasoning (Schmid Schmid Analysis)Analysis)Schmid Test (P90)

(3) “[P]urpose of the expressional activity … in relation to both the public & private use of the property” •(P91) This factor: “examines the compatibility of the free speech sought with the uses of the property.” Means?

• 2014 student argument : compatibility as subjective: seeming to fit (like human relationship) (reasonable interpretation of language)

• BUTBUT Discussion in JMB seems to focus more on whether speech causes objective harm to existing uses.

Right to Exclude: Parcels Open to the PublicRight to Exclude: Parcels Open to the PublicLogic of Logic of JMB: JMB: Reasoning (Reasoning (Schmid Schmid Analysis)Analysis)

JMB JMB Follows & Applies Follows & Applies Schmid Schmid in Granting Free Speech Access to Malls in Granting Free Speech Access to Malls

•Note importance of analogy to town square. •Note importance of very broad invitation by malls.•Court (P92) explicitly says it is drawing on common law as well as NJ 1st Amdt

• Cites/discusses Shack• Again suggests can use JMB/Schmid to support other

kinds of limits on rt excl besides 1st AmdtQs on JMB Reasoning?

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeWhat Kind of Exam Problems Might You

ExpectA.A.Assume Assume JMB JMB or or Pruneyard Pruneyard Applies: What Applies: What Specifically Can/Can’t Mall Owners Do to Specifically Can/Can’t Mall Owners Do to Address ProtestorsAddress ProtestorsB.Use Schmid & JMB to Help Determine if Right to Exclude Should be Limited in Particular Context for Speech Rights or Other Public Policy Considerations

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeA.Assume JMB or Pruneyard Applies: What

Specifically Can/Can’t Mall Owners Do to Address Protestors

1. Review Problems Addressing:a. Rev Prob 1G (Short Problem): DF This Week b. Rev Prob 1I (Lawyering): Thursdayc. Part of Rev Prob 1K(Part i) (Issue-Spotter): Thursday Friday

2. Note Parallel to Allowable Regulations/Restrictions in MW Problems under Shack & FL Statute

OLYMPIC: DQ1.26

EEL GLACIER

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude & Scope of Right to Exclude (OLYMPIC)(OLYMPIC)A.Assume JMB or Pruneyard Applies: What

Specifically Can/Can’t Mall Owners Do to Address Protestors

DQ1.26: You represent the owners of a relatively DQ1.26: You represent the owners of a relatively small NJ mall. What would you tell your clients re small NJ mall. What would you tell your clients re

the following Qs about the following Qs about J.M.B.J.M.B.??• Assume no additional cases or regulations• Helpful to point to specific evidence from facts,

language, logic of case.• OK to use common sense (e.g., seems pretty

unlikely that could limit protestor access to top floor of parking garage).

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to Exclude

DQ1.26(a) (Olympic): Does case open up all malls in the

state to protestors or will its application be determined on a

case-by-case basis for each mall? (Evidence from JMB?)

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeDQ1.26(a) (Olympic): Will application of JMB be determined on a case-by-case basis? Evidence includes:•All malls addressed in original case quite large

• “Regional” or “Community” Shopping Centers• At least 71 stores & 27 acres (P87-88)• Ruling “limited to leafletting at such centers”

(1st paragraph P86) •BUTBUT: Likely no need to redo analysis for other large malls.

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeDQ1.26(a) (Olympic): Will application of JMB be determined on a case-by-case basis? Evidence includes:•Schmid analysis consistent with case-by-case

• Check for smaller public invitation [than large malls]

• Check for less compatibility [than large malls]•Note: No need to redo Schmid analysis for large malls or for large open private universities (like UM or Princeton) unless good reason to believe invitation or compatibility different.

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeMAF: DQ1.26(b): Assuming the case governs, do

all political/protest groups have to be treated alike?

Evidence includes:• Common Sense: Can exclude groups if

significant problems during past visits. • Otherwise: Basis in 1st Amdt

• Might suggest treating all groups/messages the same

• BUT (P92) refers to anti-war protest as “most substantial” and “central to the purpose” of 1st Amdt interests; leaves room for argument about other issues.

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeDQ1.26(b): Assuming the case governs, do all

political/protest groups have to be treated alike? • Common Sense: Can exclude if significant problems

during past visits. • Basis in 1st Amdt suggests treating all groups/messages

the same.

Hard Q not addressed in JMB or Pruneyard: Treat differently if targeting particular stores in mall?

Different Treatment: [My] Left Side of RoomNo Different Treatment: [My] Right Side of Room

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeHard Q not addressed in JMB or Pruneyard:

Should you treat differently if targeting particular stores in mall?

See Fashion Valley Mall v. NLRB, 172 P.3d 742 (Cal. 2007)Forbids mall from excluding peaceful protestors because they are requesting that shoppers boycott a particular mall tenant.No specific info on whether mall is allowed to place special restrictions on where protestors can operate in relation to targeted business

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeDQ1.26(c) (Olympic): Under JMB, what kinds of limits or requirements can the mall impose

on protestors? •Possible Examples? •[Then We’ll Look at Language from Case]

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeDQ1.26(c) (Olympic): Under JMB, what kinds of limits or requirements can the mall impose

on protestors? Possible Examples: •Must stay in designated area.

•Limit on # of protestors per group.

• Limits re noise level, politeness, etc.

• Must clean up leaflets left around

•Reasonable deposit for [plausible/provable] clean-up/security costs.

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeDQ1.26(c) (Olympic): Under Language of Language of JMBJMB, what kinds of limits or requirements can the mall impose

on protestors? Most important phrase likely is …

Malls have “full power to adopt … time, place & manner time, place & manner [restrictions] [restrictions] that will assure … that … leafletting does not interfere with the shopping center’s business while … preserving the effectiveness of plaintiff’s exercise of their constitutional right.” (P91 right before §C)

Time, Place & Manner [“TPM”] Restrictions = Time, Place & Manner [“TPM”] Restrictions = Standard 1Standard 1stst Amdmt Category (in contrast to Amdmt Category (in contrast to

Subject Matter or Viewpoint Restrictions)Subject Matter or Viewpoint Restrictions)

Right to Exclude: Parcels Open to the PublicRight to Exclude: Parcels Open to the PublicJMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to Exclude

DQ1.26(c) (Olympic): Under JMB, what kinds of limits or requirements can the mall impose on protestors?

Most important phrase likely is … (P91): Malls have “full power to adopt … time, place & manner [restrictions] that will assure … that … •leafletting does not interfere with the shopping center’s leafletting does not interfere with the shopping center’s business business while •preserving the effectiveness of P’s exercise of their preserving the effectiveness of P’s exercise of their constitutional rightconstitutional right.”

Incorporates/balances interests of both sides.Incorporates/balances interests of both sides.

Other Evidence from JMB?

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeDQ1.26(c): Permissible limits or requirements?

Other Evidence from Other Evidence from JMBJMB??•General standards

• P86 “reasonable conditions” • P89 describing Schmid: “reasonable regulations”• P90 quoting Schmid: “suitable restrictions”

•P87: conditions noted that presumably go too far• can’t approach shoppers• insurance coverage FOR $$1m+

•P86: case seems to be limited to passing out leaflets & related activity; suggests, e.g., might be OK to ban harassment or loud noises

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeDQ1.26(c): Permissible limits or requirements? Additional Info from Additional Info from Green Party Green Party (NJ 2000) (Note (NJ 2000) (Note

5@P94-95)5@P94-95)•General standards

• P95: [Again] Balance rights of both sides in evaluating regulations

• P95: Fairly allocated fee OK if “objectively related” to evidence of real costs stemming from leafletting [and presumably other speech activity]

•Conditions rejected• insurance coverage for $$1million• “requirement of ‘hold harmless clause’”• Limit on access to a “few days” per year

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to Exclude

Qs on Permissible Requirements or JMB?

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeWhat Kind of Problems Might You

ExpectA.Assume JMB or Pruneyard Applies: What Specifically Can/Can’t Mall Owners Do to Address ProtestorsB.B.Use Use Schmid Schmid & & JMB JMB to Help Determine if to Help Determine if Right to Exclude Should be Limited in Right to Exclude Should be Limited in Particular Context for Speech Rights or Particular Context for Speech Rights or Other Public Policy ConsiderationsOther Public Policy Considerations

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeUseSchmid & JMB to Help Determine if Right to Exclude Should be Limited in Particular Context for Speech Rights or Other Public Policy Considerations1.I’m not going to ask you to decide from scratch what scope of state’s 1st Amdt should be.

2.Might ask you to assume Schmid/JMB are good law & apply to different claims of free speech access (e.g., Rev. Prob 1K(Part i)).

3.Might give you more general Q on scope of right to exclude & you could use Schmid/JMB as one way to analyze (e.g., Rev. Prob. 1H).

4.For on your own: next slide with list of some relevant considerations

Right to Exclude: Parcels Open to the Right to Exclude: Parcels Open to the PublicPublic

JMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to ExcludeScope of Right to Exclude in New Situations: Possible Scope of Right to Exclude in New Situations: Possible

Relevant Considerations (Could Also Use for Non-1Relevant Considerations (Could Also Use for Non-1stst Amdt Amdt Speech Access)Speech Access)

•Protection of Disadvantaged Groups. E.g., • Anti-Discrimination Law• Shack & MWs

•Relationship to Gov’t or Law• Implied K from Support of Govt for creation or operation of enterprise• B/c Rt to Excl derives from state common law in 1st instance, arguably can’t be used in

way that violates public policy (Shack)•Economic Concerns

• Monopoly Concern w Innkeeper Rule• Furthering Commerce w Innkeeper Rule• Protecting O’s Economic Interests (Shack & JMB)

Right to Exclude: Parcels Open to the PublicRight to Exclude: Parcels Open to the PublicJMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to Exclude

DQ 1.27: Apply DQ 1.27: Apply Schmid Schmid & & JMB JMB to Issue in to Issue in ShackShack

•(1) Apply Schmid Test•(2) Apply JMB

• Compare Shack to Facts of JMB• Relevant Language & Policy Concerns from JMB

I’ll Leave for You & DF & Provide Write-Up in Future Info Memo

Right to Exclude: Parcels Open to the PublicRight to Exclude: Parcels Open to the PublicJMB, Schmid JMB, Schmid & Scope of Right to Exclude& Scope of Right to Exclude

DQ1.28. Can you formulate a rule or a set of standards for when a business generally open to the public should be

prevented from excluding particular individuals or activities? • Again, Leave for You• Prior Years: Some students submitted written answers• I’ll give you write up of submissions from prior classes in

Info Memo on Chapter One

Property Open to the PublicProperty Open to the Public& the Right to Exclude & the Right to Exclude

I. Generally: Your Money’s No Good Here

II.II. Free Speech RightsFree Speech RightsA. JMB (including Schmid) & DQ 1.24-1.28

(OLYMPIC) PREVIEW OF PROBLEMS FOR PREVIEW OF PROBLEMS FOR

THURSDAY:THURSDAY:B.B. Review Problem 1I (BADLANDS)Review Problem 1I (BADLANDS)C. Review Problem 1K(i) (OLYMPIC)

PreviewPreview of Review Problem 1I: of Review Problem 1I: Lawyering (Badlands)Lawyering (Badlands)

• Client M owns Mall• Tenant ES = outlet store for co. accused of using

sweatshop labor overseas• Prior O allowed protestors to hand out leaflets (w

these accusations) near ES store.• ES complains protestors drive away customers.

M wants to know if she can “do more to satisfy” ES.

Preview Preview of Review Problem 1I: Lawyering of Review Problem 1I: Lawyering (Badlands)(Badlands)

M wants to know if she can “do more to satisfy” ES.

•Keep specific client request in mind•Two problems that occurred in exam answers:

1. Qs going to whether M should drop ES as a tenant

• Outside scope of request (can she help, not should she)

• Could be relevant to different Q.• BUT really more business than legal (would need

detailed cost & revenue info to do financial cost/benefit analysis)

Preview Preview of Review Problem 1I: Lawyering of Review Problem 1I: Lawyering (Badlands)(Badlands)

M wants to know if she can “do more to satisfy” ES.

•Keep specific client request in mind•Two problems that occurred in exam answers:

2. Qs going to whether claims about ES are true

• Legal relevance to your client’s concerns? Q’able

• Factual: How find out if claims are true? • Send associate to Indonesia or Moldova to

investigate?• Client won’t pay for!!

Preview Preview of Review Problem 1I: Lawyering of Review Problem 1I: Lawyering (Badlands)(Badlands)

FOCUS OF CLASS DISCUSSION THURSDAYFOCUS OF CLASS DISCUSSION THURSDAY•Legal Research to Establish the Overall Legal Framework•Legal & Factual Research Relevant to

• How the Mall Normally Handles Free Speech Access• The Operation and Effects of These Protests

(Including Targeting a Business Operating in the Mall)

Property Open to the PublicProperty Open to the Public& the Right to Exclude & the Right to Exclude

I. Generally: Your Money’s No Good Here

II.II. Free Speech RightsFree Speech RightsA. JMB (including Schmid) & DQ 1.24-1.28

(OLYMPIC) PREVIEW OF PROBLEMS FOR PREVIEW OF PROBLEMS FOR

THURSDAY:THURSDAY:B. Review Problem 1I (BADLANDS)C.C. Review Problem 1K(i) (OLYMPIC)Review Problem 1K(i) (OLYMPIC)

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 4ISSUE-SPOTTER

• Long Fact Pattern• Generally Two to Four Major

Subjects• At Least One Statutory Issue (Saw

Already in Rev. Prob. 1K(ii))

FINAL EXAM QUESTION 4ISSUE-SPOTTER

Relevant Skills Include …•Recognizing Relevant Legal Issues•* Identifying Most Important (= Most Contested) Topics & Making Best Arguments for Each Party •Recognizing Significance of Facts in Problem•Presenting Analysis in Organized Way•Working with Relevant Statute[s]

PREVIEW: PREVIEW: Review Problem 1K (Part i) Review Problem 1K (Part i) (OLYMPIC) (OLYMPIC)

Part of 2014 XQ4 (Issue-Spotter):Part of 2014 XQ4 (Issue-Spotter):Additional Helpful Facts

•Mckain Medical School (MMS) is a private accredited medical school associated with a mainstream Protestant denomination. •It is located in a small city in Gaidian. •Wayne is General Counsel for MMS

PREVIEW: PREVIEW: Review Problem 1K (Part i) Review Problem 1K (Part i) (OLYMPIC) (OLYMPIC)

Part of 2014 XQ4 (Issue-Spotter):Part of 2014 XQ4 (Issue-Spotter):Assume the state of Gaidian follows JMB and Schmid. Discuss the the

extent to which MMS can limit Father Frank’s access extent to which MMS can limit Father Frank’s access to its courtyard.

•Instruction Raises Two Qs:• Can MMS Exclude FF from the Courtyard Completely?• Assuming MMS Must Allow FF Access, What Restrictions May

the School Place on FF’s Activities?

PREVIEW: PREVIEW: Review Problem 1K (Part i) Review Problem 1K (Part i) (OLYMPIC) (OLYMPIC)

Part of 2014 XQ4 (Issue-Spotter):Part of 2014 XQ4 (Issue-Spotter):Assume the state of Gaidian follows JMB and Schmid. Discuss the extent to the extent to which MMS can limit Father Frank’s access which MMS can limit Father Frank’s access to its courtyard.

• Can MMS Exclude FF from the Courtyard Completely?• Assuming MMS Must Allow FF Access, What Restrictions May the School

Place on FF’s Activities?

Identify as many relevant facts as you can from the problem and be prepared to discuss how they might affect the result.

Task: I will give you a fact from the problem & ask you to tell me how you would use the fact to support an argument about one or both of the two questions above.

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

•Federal Constitutional BackgroundFederal Constitutional Background• Deference, Rational Basis, Heightened Scrutiny• The Fifth Amdt, Eminent Domain & Public Use•Limited Federal Review Under Berman & Midkiff

• State Public Use Standards• Kelo & Beyond

Hawaii Housing Authority v. Midkiff

1.1. Background: Background: Berman v. ParkerBerman v. Parker2. Challenged Hawaii Program3. Midkiff Analysis: Adoption of Rational Basis

Standard

Background to Midkiff: Berman v. Parker1. DC “Urban Renewal” Project:

a. Fixing “Blighted” N-hood b. Forced Sales of Buildings to Private Redevelopers

Background to Midkiff: Berman v. Parker1. DC “Urban Renewal” Project2. US SCt. approves as “Public Use” a transfer of land

from one private party to another• Gives deference to plan of US Congress• Once purpose w/in Congr. authority, Congr. can choose means to

implement (incl. EmDom) • Essentially reads “public use” to mean “benefits the public”

Hawaii Housing Authority v. Midkiff1. Background: Berman v. Parker2.2. Challenged Hawaii ProgramChallenged Hawaii Program3. Midkiff Analysis: Adoption of Rational Basis

Standard

Midkiff: Challenged ProgramPerceived Problem: Market for Land Skewed

•Immense landholding by few owners (top of S22)• Yields high prices; few transactions• Many lease who want to buy

•Gov’t partly responsible: tax consequences discourage sales

Midkiff: Challenged ProgramPerceived Problem: Market for Land Skewed

•Immense landholding by few owners (S22)•State Wants More Active Land Market

• Affects Labor Market• State Prefers Owners to Renters

• Usually More Investment/Upkeep• Usually Greater Ties to Community

Midkiff: Challenged Program & DQ2.04Program Designed to Aid Land Market

•Forced Sale of Land: Landlords to Tenants•In practice, funds come entirely from Tenants.•Requirements/Limitations

• Sufficient # of tenants apply from same residential development.

• Public Hearing re furthering purpose of program.• Eligibility Requirements for Buyers to prevent misuse by commercial developers.

Midkiff: Challenged Program & DQ2.04• Program = Forced Sale of Land (Landlords to Tenants)

• DQ2.04: Relation to Purposes of EmDom & Public Use?

• (1) Avoids Transaction Costs• Breaks negotiation deadlock• Allows sales that might take place if no tax consequences

Midkiff: Challenged Program & DQ2.04• Forced Sale of Land: Landlords to Tenants• DQ2.04: Relation to Purposes of EmDom & Public Use?

• (1) Avoids Transaction Costs• (2) How “Public Use”?

• End Users Private Individuals • Not Everyone Eligible; Relatively Few Directly Benefit• Public Can’t Actually Use Parcels in Q

Midkiff: Challenged Program & DQ2.04• Forced Sale of Land: Landlords to Tenants• DQ2.04: Relation to Purposes of Eminent Domain & Public Use?• (1) Avoids Transaction Costs• (2) How “Public Use”?

• End Users Private Individuals • Not Everyone Eligible; Relatively Few Directly Benefit• Public Can’t Actually Use Parcels in Q• BUT: Arguably All Hawaiians Benefit (Directly or BUT: Arguably All Hawaiians Benefit (Directly or Indirectly) from Improved Land MarketIndirectly) from Improved Land Market

ACADIA: DQs 2.06-ACADIA: DQs 2.06-2.07(a)2.07(a)

Acadia SunriseAcadia Sunrise

Midkiff: Challenged Program & DQ2.06 (Acadia)

• “After the American Revolution, the colonists in several States took steps to eradicate the feudal incidents with which large proprietors had encumbered land in the Colonies. Courts have never doubted that such statutes served a public purpose.” --FN5 (S24)

• DQ2.06: Assume Justice O’Connor (OCR) got this info from the briefs of the State of Hawaii [or of one of the Amicus Curiae supporting the state].

• Why would the lawyers use valuable space in their briefs to give the Court a history lesson?

Midkiff: Challenged Program & DQ2.06 (Acadia)

DQ2.06: Why would lawyers use valuable space in briefs to give the Court a history lesson?

•Meaning of “Land Reform” in 1984• Practice of Leftist Gov’ts in Latin America • Redistributing Land Rights from Large Owners to Peasants/Small

Farmers• Generally Opposed by Reagan Administration

Midkiff: Challenged Program & DQ2.06 (Acadia)

DQ2.06: Why would lawyers use valuable space in briefs to give the Court a history lesson?

•Cf. Latin American “Land Reform” in 1984•Lawyers Providing Another Way for SCt to See Program•Evidence that OCR Buys Characterization

• (S21 2d para): “feudal land tenure system”• (S24 middle para): “The people of Hawaii have attempted, much

as the settlers of the original 13 Colonies did, to reduce the perceived social and economic evils of a land oligopoly traceable to their monarchs.”

Midkiff: Challenged Program & DQ2.06(S24 middle para): “The people of Hawaii have attempted, much as the settlers of the original 13 Colonies did, to reduce the perceived social and economic evils of a land oligopoly traceable to their monarchs.”

Statue of King Kamehameha

Hawaii Housing Authority v. Midkiff1. Background: Berman v. Parker2. Challenged Hawaii Program 3.3. Midkiff Midkiff Analysis: Adoption of Analysis: Adoption of

Rational Basis StandardRational Basis Standard

Midkiff: Adoption of Rational Basis Test• Upholds Hawaii Program; Again Interprets “Public Use” to Simply Mean Benefit to PublicBenefit to Public

• Extends/Explains Berman v. Parker in Two Ways1. Same deference given to states as feds2. Govt never has to possess land itself• No apparent limit to public use given for either 1 or

2• Makes very clear it doesn’t want to assess wisdom of program.

• Role for reviewing court is “extremely narrow”• Clear use of Rational Basis test

Midkiff: Adoption of Rational Basis Test: Key Language

• “Court … will not substitute its judgment for a legislature’s judgment as to what constitutes a public use ‘unless the use be palpably without reasonable foundation.’” (S24: top para)

• “[W]here the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause.” (S24: first full para)

Midkiff: Adoption of Rational Basis Test: Key Language

Rationally Related = Very Deferential Standard•“Of course, this Act, like any other, may not be successful in achieving its intended goals. But ‘whether in fact the provision will accomplish its objectives is not the question: the [constitutional requirement] is satisfied if ... the ... [state] Legislature rationally could have believed that the [Act] would promote its objective.’” (S24: last para)

Midkiff: Adoption of Rational Basis TestBACK TO DQ2.05: Why shouldn’t the Supreme Court strike down a state exercise of Eminent Domain that is unlikely to achieve its stated

ends? •“[T]he weighty demand of just compensation has been met” (S26)• Reasons for Deference We’ve Already Discussed: “[T]he legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation, whether it be Congress legislating concerning the District of Columbia ... or the States legislating concerning local affairs.... This principle admits of no exception merely because the power of eminent domain is involved....” --(S23 first block quote from Berman)

(Acadia) Application of Rational Basis Test…DQ2.07(a): … to Facts of Midkiff

•Purpose of Program?•Legitimate? (Connected to Health, Safety, Welfare, Morals)

•Program Rationally Related to Purpose?