F LEETWOOD M AC : G REATEST H ITS R ECORDINGS 1975-88 On Course Page Office Hours 11/27-12/13 Office Hours 11/27-12/13 XQ3: Comments & Best Answers XQ3:

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RECORDINGS 1975-88RECORDINGS 1975-88On Course PageOn Course Page•Office Hours 11/27-12/13Office Hours 11/27-12/13•XQ3: Comments & Best AnswersXQ3: Comments & Best Answers

Next (= Final) Class MeetingNext (= Final) Class Meeting•Both Sections: Thursday 11/19Both Sections: Thursday 11/19•Room E352 8:00-9:20 amRoom E352 8:00-9:20 am

PLAN FOR TODAYPLAN FOR TODAYOXYGENSOXYGENS::•DQ135: Meaning of DQ135: Meaning of Penn CentralPenn Central•DQ136: Airspace SolutionDQ136: Airspace Solution

XQIIID & F: Hard QsXQIIID & F: Hard Qs

KRYPTON (as far as we get)KRYPTON (as far as we get)•DQ137-38: AckermanDQ137-38: Ackerman•DQ139: Cases & TheoristsDQ139: Cases & Theorists

Course Evaluations: Be Specific!Course Evaluations: Be Specific!

PLAN FOR THURSDAYPLAN FOR THURSDAYKRYPTON: Finish: KRYPTON: Finish: •DQ137-38: AckermanDQ137-38: Ackerman•DQ139: Cases & TheoristsDQ139: Cases & Theorists

More Detail on XQIIID & FMore Detail on XQIIID & F

Lecture Closing Up TakingsLecture Closing Up Takings

Song & Lecture Closing Up CourseSong & Lecture Closing Up Course

Penn Central: Takings Analysis

OXYGEN DQ135:

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

(Implicit: that are consistent with earlier cases)

Lots of Possibilities; Let’s List Some

Penn Central: Takings AnalysisDQ135: Possible Rules from Majority

• Taking 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)

• (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

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

Widespread Public Benefit• No significant interference w DIBE


• 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)


OXYGEN DQ135:

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]

Unit Three: IntroductionDQ97: Airspace Solution

• Suppose Kentucky adopted a statute that (a) allowed the gas company to store its gas under Ms. Hammonds’s property without paying rent; and (b) prohibited her from extracting it.

• Suppose Ms. Hammonds then claims this is an unconstitutional taking of her property.

Do you think this is the kind of harm the Takings Clause forbids?

Why or Why Not?

Apply Cases and Theorists to New Problems: Structure Map

Case/Hypo Gov’t Act Affected Landowner

Affected 3d Parties

Hadacheck No Brickyards Brickyard Os Neighbors

Mahon No Undermining Coal Cos. Surface Os

Miller VA Cedar Rust Act

Cedar Tree Os Apple Tree Os

Penn Central NYC Historic Preservation

Penn Central Tourist Biz; History Buffs

Airspace Solution Hypo

KY: No Rights to Depleted Gas Pools

Surface Os (Hammonds)

Gas Cos. Reinserting

DQ136: Airspace Solution (Oxygen)

• Suppose Kentucky adopted a statute that (a) allowed the gas company to store its gas under Ms. Hammonds’s property without paying rent; and (b) prohibited her from extracting it.

• Suppose Ms. Hammonds then claims this is an unconstitutional taking of her property.

What arguments can you make about “the Airspace Solution” from looking at the four cases

together?


Arguments about “the Airspace Solution” from the four cases? At

least: •Reduction in value?

– Likely trivial if look at whole parcel– 100% if look just at reservoirs

•Likely no DIBE in using depleted reservoirs•Similar to Penn Central:

– Significant public benefit – Limiting part of parcel not normally used

•Physical Invasion, So More Likely a Taking


Arguments about “the Airspace Solution” from the four cases?

•Reasonably Necessary to Substantial Public Purpose (LaFalce-B1)

– Substantial Public Purpose? • EasyEasy (Safety; Energy Costs)

– Reasonably Necessary?• Probably Not Probably Not Where We Know That Other

States Accomplish Same Goal (Through Eminent Domain) Without Completely Removing Surfave Os’ Property Rights

FINAL EXAM QUESTION 3OPINION/DISSENT FORMAT

•Requires You to Describe and Defend Two Positions•Must Show that You Understand Range of Relevant Arguments Arising from Line of Cases•Must Understand Role of US Supreme Court

•Must Address Difficult Unresolved Qs

Penn Central: Takings AnalysisBig Qs Left Open by Big Qs Left Open by Penn Central Penn Central A.A. Noxious Use Still Relevant?Noxious Use Still Relevant?

B.B. Meaning of Distinct Investment-Meaning of Distinct Investment-Backed Expectations (DIBE)?Backed Expectations (DIBE)?

C.C. DIBE & DIBE & Hadacheck (cf. Mahon)Hadacheck (cf. Mahon)

D.D. Denominator QDenominator Q

E.E. Heightened Scrutiny for Takings?Heightened Scrutiny for Takings?

FINAL EXAM QUESTION 3EXAM QUESTION IIID (1998)

•Bart’s Vacant Lot– State Gov’t Builds Prison Next Door– Value Reduced by > 2/3 ($2.2M

$600K)


•Bart’s Vacant Lot: Big Loss in Value due to Prison Next Door•Should Big Loss in Value be Taking Where

– Property inherited so investment arguably = 0

– No restriction at all on use of parcel– Not stopping any harmful use of O– Caused by proximity to necessary state

facility


•Bart’s Vacant Lot: Should Big Loss in Value be Taking Where

– Property inherited so investment arguably = 0– No restriction at all on use of parcel– Not stopping any harmful use of O– Caused by proximity to necessary state facility

URANIUMS: We’ll Work Through Some of This in Final Class

FINAL EXAM QUESTION 3EXAM 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 new lot

• Value of (C) drops from $350K to $100K• Value of B + C increases from $1M to $1.5M


A owns adjacent garages B & C. New Security rules shut down C. Value of (C) drops from

$350K to $100K. Value of B + C increases from $1M to $1.5M

•Analyze B & C together or separately?•Just Looking at C (Signif. Interference w DIBE)

– Does strong gov’t purpose justify loss in value?

– Matter that harm being stopped not caused by O?

– Should court use heightened scrutiny?


•Analyze Garages B & C together or separately?•Just Looking at C (Signif. Interference w DIBE)

– Does strong gov’t purpose justify loss in value?

– Matter that harm being stopped not caused by O?

– Should court use heightened scrutiny?

RADIUMS: We’ll Work Through Some of This in Final Class

Takings Theorist #4: Bruce Ackerman (krypton)

Takings Theorists: Bruce Ackerman DQ137 (krypton)

Ackerman Distinguishes Between:•“Scientific Policymakers” use technical concepts; abstract principles (e.g., Michelman!!)•His focus on “Ordinary Observers,” which asks how people in the culture tend to think about property. (Asks very specific Qs)


Focus on “Ordinary Observers” •Ackerman asks very specific Qs re how people in the culture (OOs) tend to think about property.

•1st Q: “Is property in Q literally ‘taken’?”–Source of this Q?


Focus on “Ordinary Observers” •Ackerman asks very specific Qs re how people in the culture (OOs) tend to think about property.

•1st Q: “Is property in Q literally ‘taken’?”– Source: Literal Language of 5th Amdt.– Two situations where OO would answer “yes”?


Ackerman asks very specific Qs re how people in the culture (OOs) tend to think about property.

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

Examples of “bad joke” cases?



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

• Mahon (if Holmes correct about effect on mining)• Nectow (zero value)• Causby (hard to imagine way to use)



1.Is property in Q literally “taken”? (Very Specific Q)– Not asking OO if she “likes” the regulation– “Bad Joke” is term of art focused on what’s left– Not “Bad Joke” to Ackerman Just Because :

• Lot of value lost (check if what’s left is significant)• Regulation seems undesirable



1.Is property in Q literally “taken”?

What is Second Question?



1.Is property in Q literally “taken”? 2.Is gov’t stopping unduly harmful use of property?

– Unduly” suggests some consideration of benefits of use– BUT looks like version of noxious use exception



1.Is property in Q literally “taken”? 2.Is gov’t stopping unduly harmful use of property?

Note dual focus of test: First what’s left, then purpose

Relevant Considerations in Takings Cases

§B Survey About What Facts Matter (68 Responses)

•Ban on Intended Use (61): Penn Central (Interference w DIBE)•% Reduction in Value (61): Mahon, Epstein, Penn Central •$$$ Amount Reduction (42):•Purpose of Regulation (37) = Hadacheck; Sax; Mahon; Epstein; Miller; Ackerman (2d Q) (BUT role of purpose unclear after Penn Central)• $$$ Amount Left (29) = Kelso; Mahon; Ackerman (1st Q); Penn Central•Return on Investment (18): Penn Central (Interference w DIBE)

Relevant Considerations in Takings Cases

Other Possible Considerations•Michaelman: Settlement & Demoralization Costs•Penn Central:

– Physical Invasion– Mean/End Testing (Relationship betw. Purpose and

Method)

Documents

F LEETWOOD M AC : G REATEST H ITS R ECORDINGS 1975-88 On Course Page Office Hours 11/27-12/13 Office Hours 11/27-12/13 XQ3: Comments & Best Answers XQ3: