PROPERTY%20D%20SLIDES - PowerPoint PPT Presentation

View by Category
About This Presentation
Title:

PROPERTY%20D%20SLIDES

Description:

property d s 2-9-16 national bagel day – PowerPoint PPT presentation

Number of Views:25
Avg rating:3.0/5.0
Slides: 67
Provided by: Marc173
Category:

less

Write a Comment
User Comments (0)
Transcript and Presenter's Notes

Title: PROPERTY%20D%20SLIDES


1
PROPERTY D SLIDES
  • 2-9-16
  • NATIONAL BAGEL DAY

2
Tuesday Feb 9 - Music to Accompany Midkiff Tina
Turner, Private Dancer (1984)
  • Lunch Today
  • Meet on Bricks _at_ 1225
  • Bodzin Friedland Gordon
  • Helmy Knox Parikh Young

3
Previously in Property D
  • Continued 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 Moneys No Good Here Continuum
  • Common Law (No Limits or Innkeepers 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

4
Previously in Property D
  • Introduction 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 Dont Trust Democratic Process

5
Property Open to the Public the Right to
Exclude
  • Generally Your Moneys No Good Here
  • Free Speech Rights
  • JMB (including Schmid) DQ 1.24-1.28 (OLYMPIC)
  • (Continued)
  • Review Problem 1I (BADLANDS) (Thursday)
  • Review Problem 1K(i) (OLYMPIC) (Thursday ?
    Friday)

6
Right to Exclude Parcels Open to the
PublicLogic of JMB Reasoning (Schmid Analysis)
  • JMB Follows Applies Schmid (NJ 1980)
  • Schmid Free Speech access to Princeton 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

7
Right to Exclude Parcels Open to the
PublicLogic of JMB Reasoning (Schmid 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

8
Right to Exclude Parcels Open to the
PublicLogic of JMB Reasoning (Schmid Analysis)
  • Schmid Test (P90)
  • (1) Normal Use of Private Property in Q
  • (2) Extent Nature of Public Invitation
  • (3) Purpose of the expressional activity in
    relation to both the public private use of the
    property
  • Meaning of 1st Two Factors Relatively Clear

9
Right to Exclude Parcels Open to the
PublicLogic of JMB Reasoning (Schmid Analysis)
  • Schmid Test (P90)
  • (3) Purpose 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)
  • BUT Discussion in JMB seems to focus more on
    whether speech causes objective harm to existing
    uses.

10
Right to Exclude Parcels Open to the
PublicLogic of JMB Reasoning (Schmid Analysis)
  • JMB Follows Applies Schmid
  • 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 Amdt
  • Qs on JMB Reasoning?

11
Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude
  • What Kind of Exam Problems Might You Expect
  • Assume JMB or Pruneyard Applies What
    Specifically Can/Cant Mall Owners Do to Address
    Protestors
  • Use Schmid JMB to Help Determine if Right to
    Exclude Should be Limited in Particular Context
    for Speech Rights or Other Public Policy
    Considerations

12
Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude
  • Assume JMB or Pruneyard Applies What
    Specifically Can/Cant Mall Owners Do to Address
    Protestors
  • Review Problems Addressing
  • Rev Prob 1G (Short Problem) DF This Week
  • Rev Prob 1I (Lawyering) Thursday
  • Part of Rev Prob 1K(Part i) (Issue-Spotter)
    Thursday ? Friday
  • Note Parallel to Allowable Regulations/Restriction
    s in MW Problems under Shack FL Statute

13
OLYMPIC DQ1.26
EEL GLACIER
14
Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude (OLYMPIC)
  • Assume JMB or Pruneyard Applies What
    Specifically Can/Cant Mall Owners Do to Address
    Protestors
  • DQ1.26 You represent the owners of a relatively
    small NJ mall. What would you tell your clients
    re the following Qs about 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).

15
Right to Exclude Parcels Open to the PublicJMB,
Schmid 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?)
16
Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude
  • DQ1.26(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)
  • BUT Likely no need to redo analysis for other
    large malls.

17
Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude
  • DQ1.26(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.

18
Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude
  • MAF 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.

19
Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude
  • DQ1.26(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 Room
  • No Different Treatment My Right Side of Room

20
Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude
  • Hard 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

21
Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude
  • DQ1.26(c) (Olympic) Under JMB, what kinds of
    limits or requirements can the mall impose on
    protestors?
  • Possible Examples?
  • Then Well Look at Language from Case

22
Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude
  • DQ1.26(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.

23
Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude
  • DQ1.26(c) (Olympic) Under Language of JMB, 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 restrictions that will assure that
    leafletting does not interfere with the shopping
    centers business while preserving the
    effectiveness of plaintiffs exercise of their
    constitutional right. (P91 right before C)
  • Time, Place Manner TPM Restrictions
    Standard 1st Amdmt Category (in contrast to
    Subject Matter or Viewpoint Restrictions)

24
Right to Exclude Parcels Open to the PublicJMB,
Schmid 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
    centers business while
  • preserving the effectiveness of Ps exercise of
    their constitutional right.
  • Incorporates/balances interests of both sides.
  • Other Evidence from JMB?

25
Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude
  • DQ1.26(c) Permissible limits or requirements?
  • Other Evidence from JMB?
  • General standards
  • P86 reasonable conditions
  • P89 describing Schmid reasonable regulations
  • P90 quoting Schmid suitable restrictions
  • P87 conditions noted that presumably go too far
  • cant 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

26
Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude
  • DQ1.26(c) Permissible limits or requirements?
  • Additional Info from Green Party (NJ 2000) (Note
    5_at_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

27
Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude
  • Qs on Permissible Requirements or JMB?

28
Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude
  • What Kind of Problems Might You Expect
  • Assume JMB or Pruneyard Applies What
    Specifically Can/Cant Mall Owners Do to Address
    Protestors
  • Use Schmid JMB to Help Determine if Right to
    Exclude Should be Limited in Particular Context
    for Speech Rights or Other Public Policy
    Considerations

29
Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude
  • UseSchmid JMB to Help Determine if Right to
    Exclude Should be Limited in Particular Context
    for Speech Rights or Other Public Policy
    Considerations
  • Im not going to ask you to decide from scratch
    what scope of states 1st Amdt should be.
  • 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)).
  • 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).
  • For on your own next slide with list of some
    relevant considerations

30
Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude
  • Scope of Right to Exclude in New Situations
    Possible Relevant Considerations (Could Also Use
    for Non-1st Amdt Speech Access)
  • Protection of Disadvantaged Groups. E.g.,
  • Anti-Discrimination Law
  • Shack MWs
  • Relationship to Govt 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 cant be used in way that
    violates public policy (Shack)
  • Economic Concerns
  • Monopoly Concern w Innkeeper Rule
  • Furthering Commerce w Innkeeper Rule
  • Protecting Os Economic Interests (Shack JMB)

31
Right to Exclude Parcels Open to the PublicJMB,
Schmid Scope of Right to Exclude
  • DQ 1.27 Apply Schmid JMB to Issue in Shack
  • (1) Apply Schmid Test
  • (2) Apply JMB
  • Compare Shack to Facts of JMB
  • Relevant Language Policy Concerns from JMB
  • Ill Leave for You DF
  • Provide Write-Up in Future Info Memo

32
Right to Exclude Parcels Open to the PublicJMB,
Schmid 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
  • Ill give you write up of submissions from
    prior classes in Info Memo on Chapter One

33
Property Open to the Public the Right to
Exclude
  • Generally Your Moneys No Good Here
  • Free Speech Rights
  • JMB (including Schmid) DQ 1.24-1.28 (OLYMPIC)
  • PREVIEW OF PROBLEMS FOR THURSDAY
  • Review Problem 1I (BADLANDS)
  • Review Problem 1K(i) (OLYMPIC)

34
Preview of Review Problem 1I 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.

35
Preview of Review Problem 1I Lawyering
(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
  • 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)

36
Preview of Review Problem 1I Lawyering
(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
  • Qs going to whether claims about ES are true
  • Legal relevance to your clients concerns?
    Qable
  • Factual How find out if claims are true?
  • Send associate to Indonesia or Moldova to
    investigate?
  • Client wont pay for!!

37
Preview of Review Problem 1I Lawyering
(Badlands)
  • FOCUS 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)

38
Property Open to the Public the Right to
Exclude
  • Generally Your Moneys No Good Here
  • Free Speech Rights
  • JMB (including Schmid) DQ 1.24-1.28 (OLYMPIC)
  • PREVIEW OF PROBLEMS FOR THURSDAY
  • Review Problem 1I (BADLANDS)
  • Review Problem 1K(i) (OLYMPIC)

39
FINAL EXAM QUESTIONSChoose Three of Four
  • XQ1 LAWYERING
  • XQ2 SHORT ANSWERS (Choose Three of Four)
  • XQ3 OPINION/DISSENT
  • XQ4 TRADITIONAL ISSUE-SPOTTER

40
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))

41
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 Statutes

42
PREVIEW Review Problem 1K (Part i) (OLYMPIC)
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

43
PREVIEW Review Problem 1K (Part i) (OLYMPIC)
Part of 2014 XQ4 (Issue-Spotter)
  • Assume the state of Gaidian follows JMB and
    Schmid. Discuss the extent to which MMS can
    limit Father Franks 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 FFs
    Activities?

44
PREVIEW Review Problem 1K (Part i) (OLYMPIC)
Part of 2014 XQ4 (Issue-Spotter)
  • Assume the state of Gaidian follows JMB and
    Schmid. Discuss the extent to which MMS can
    limit Father Franks 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 FFs
    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.

45
Chapter 2 The Eminent Domain Power the Public
Use Requirement
  • Federal 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

46
Hawaii Housing Authority v. Midkiff
  1. Background Berman v. Parker
  2. Challenged Hawaii Program
  3. Midkiff Analysis Adoption of Rational Basis
    Standard

47
Background to Midkiff Berman v. Parker
  • DC Urban Renewal Project
  • Fixing Blighted N-hood
  • Forced Sales of Buildings to Private Redevelopers

48
Background to Midkiff Berman v. Parker
  • DC Urban Renewal Project
  • 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

49
Hawaii Housing Authority v. Midkiff
  1. Background Berman v. Parker
  2. Challenged Hawaii Program
  3. Midkiff Analysis Adoption of Rational Basis
    Standard

50
Midkiff Challenged Program
  • Perceived Problem Market for Land Skewed
  • Immense landholding by few owners (top of S22)
  • Yields high prices few transactions
  • Many lease who want to buy
  • Govt partly responsible tax consequences
    discourage sales

51
Midkiff Challenged Program
  • Perceived 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

52
Midkiff Challenged Program DQ2.04
  • Program 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.

53
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

54
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 Cant Actually Use Parcels in Q

55
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 Cant Actually Use Parcels in Q
  • BUT Arguably All Hawaiians Benefit (Directly or
    Indirectly) from Improved Land Market

56
ACADIA DQs 2.06-2.07(a)
Acadia Sunrise
57
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 OConnor (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?

58
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 Govts in Latin America
  • Redistributing Land Rights from Large Owners to
    Peasants/Small Farmers
  • Generally Opposed by Reagan Administration

59
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.  

60
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

61
Hawaii Housing Authority v. Midkiff
  1. Background Berman v. Parker
  2. Challenged Hawaii Program
  3. Midkiff Analysis Adoption of Rational Basis
    Standard

62
Midkiff Adoption of Rational Basis Test
  • Upholds Hawaii Program Again Interprets Public
    Use to Simply Mean Benefit to Public
  • Extends/Explains Berman v. Parker in Two Ways
  • Same deference given to states as feds
  • Govt never has to possess land itself
  • No apparent limit to public use given for either
    1 or 2
  • Makes very clear it doesnt want to assess wisdom
    of program.
  • Role for reviewing court is extremely narrow
  • Clear use of Rational Basis test

63
Midkiff Adoption of Rational Basis Test Key
Language
  • Court will not substitute its judgment for a
    legislatures judgment as to what constitutes a
    public use unless the use be palpably without
    reasonable foundation. (S24 top para)
  • Where 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)

64
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)

65
Midkiff Adoption of Rational Basis Test
  • BACK TO DQ2.05 Why shouldnt the Supreme Court
    strike down a state exercise of Eminent Domain
    that is unlikely to achieve its stated ends?
  • The weighty demand of just compensation has
    been met (S26)
  • Reasons for Deference Weve Already Discussed
  • The 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)

66
(Acadia) Application of Rational Basis
TestDQ2.07(a) to Facts of Midkiff
  • Purpose of Program?
  • Legitimate? (Connected to Health, Safety,
    Welfare, Morals)
  • Program Rationally Related to Purpose?
About PowerShow.com