PROPERTY D SLIDES 2 12 16 LINCOLNS BIRTHDAY

PROPERTY D SLIDES 2 -12 -16 LINCOLN’S BIRTHDAY

Friday Feb 12 Music to Accompany Hatchcock: Renee Olstead (Self-Titled 2004) Lunch Today Meet on Bricks @ 12: 25 Blanco * Brignola * Lindemann Olin * Petak * Staiano

FRIDAY POP CULTURE MOMENT The Most Performed Waltz in American Popular Music

OLYMPIC: Review Problem 1 K(i) (cont’d) EEL GLACIER

Overview of Review Problem 1 K (Part i): Part of Issue-Spotter (Olympic) (Recap) The jurisd. follows JMB and Schmid. Discuss the extent to 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? FOCUS TODAY: Relevance of Particular Facts

Review Problem 1 K (Part i): Part of Issue-Spotter (Arches) Legal Significance of Facts (Assume JMB & Schmid Apply) Courtyard at Issue (Center of One City Block) 1. MMS has set up benches and tables in the Courtyard & generally freely allows the public to use. 2. In the past, they have allowed speakers & musicians. 3. Medical Clinic & Two Small Restaurants open on to Courtyard 4. Signs posted that say “private property” and “reserve the right to exclude members of the public for any reason at any time. ”

Review Problem 1 K (Part i): Part of Issue-Spotter (Arches) Legal Significance of Facts (Assume JMB & Schmid Apply) The Players 1. Owner MMS is a private accredited Medical School. 2. Father Franks(FF) is a charismatic and controversial religious figure. 3. In his most famous presentations, FF holds up an i. Phone or i. Pad, explains the evils that flow from it and smashes it onto the ground. 4. MMS is associated with a mainstream Protestant denomination.

LOGISTICS: 2/12 • Adding Class Mon 2/29 • Same Bat Time; Same Bat Place • To ensure coverage before Chapter 4 test • Last Class will become Review Session • Posting on Course Page by Monday: • Chapter 3 Materials • Updated Syllabus & Assignment Sheet • Instructions for Turning in Practice Exam Answers For My Comments (E-Mail me if Qs)

LOGISTICS: 2/12 • Start Next 7 -8 Classes w Rev. Probs. • 15 -20 Minutes Before Class, Names of Responsible Panel Members Posted on Board • I’ll do Preview in Earlier Class Session to Structure Discussion • Good Way to Test Yourselves; Push Hard • Will Include 1 st Set of Critiques

Critiques • 5 Arguments assessing points made by your colleagues in class • Informal Submission via E-Mail • Instructions at Bottom of Posted Assignment Sheet • Read & Follow Instructions Carefully; E-Mail Me if Qs • Each Panel will do two. • One before spring break & one after • I’ll get you comments on 1 st submission before 2 d is due. • I’ll get you comments on 2 d submission by a few days before Exam. • Purposes • You get feedback on your ideas (& bonuses for good work) • I get sense of what class understands (& doesn’t) & can provide

Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Constitutional Background • State Public Use Standards • Poletown • Hatchcock • Review Problems 2 B & 2 C: Set-Ups • Kelo & Beyond

Review Problems 2 B & 2 C: Coverage (Practicing Applying Legal Tests) Review Problem 2 B • Set-Up Info Today • In-Class Tuesday: Apply Poletown Tests • DF Next Week: Apply Midkiff & Hatchcock Review Problem 2 C • Set-Up Info Today • In-Class Thursday: Apply Hatchcock Situations • DF Next Week: Apply Midkiff & Poletown

Review Problem 2 B (S 28) Setting Up for Tuesday • EVERGLADES: (Arguments for Plaintiffs/Landowners) • SEQUOIA: (Arguments for Defendant/City) • BADLANDS: (Critique; See Instructions at Bottom of Assmt Sheet) • Badlands Submission Due Thursday 2/18 @ 10: 00 a. m. (i) Identify facts in the problem that are different from those in Poletown and be prepared to argue whether those facts should affect the outcome. • Everglades & Sequoia: Choose facts helpful to your client’s position & be prepared to explain why particular facts make your case stronger. I’ll get a few examples from each side.

Review Problem 2 B (S 28) Setting Up for Tuesday • EVERGLADES: (Arguments for Plaintiffs/Landowners) • SEQUOIA: (Arguments for Defendant/City) • BADLANDS: (Critique; See Instructions at Bottom of Assmt Sheet) • Badlands Submission Due Thursday 2/18 @ 10: 00 a. m. (ii) Apply the legal standards from Poletown described in DQ 2. 09 to the problem. • Everglades & Sequoia: Make arguments applying the legal standards helpful to your client’s position. Anticipate the other side’s likely arguments and be prepared to respond.

Review Problem 2 C (S 29) Setting Up for Thursday • ACADIA: Arguments for Plaintiffs/Landowners • BADLANDS: Arguments for Defendant/City • Both Sides: Be Ready to Apply All Three Hatchcock Situations • EVERGLADES: Critique; See Instructions on Assignment Sheet • Submission Due Saturday 2/20 @ Noon • Do the Five Assigned Arguments Once Each • Can Address One, Two or Three of the Hatchcock Situations • Not Asked for Five Arguments for Each Situation

Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Constitutional Background • State Public Use Standards • Poletown : Recap & Transition • Hatchcock • Review Problems 2 B & 2 C • Kelo & Beyond

Poletown Tests Used if land ends up in private hands (1)Public must be “primary beneficiary” & private benefit merely “incidental” (2) Public benefit must be “clear and significant” Michigan SCt in Poletown repeatedly says these tests are met w/o much analysis

State “Public Use” Standards: Compare: City of Seattle (Wash. 1981) City of Seattle Majority Test: • Eminent Domain OK under Washington Constitution if: 1) Use is really [open to] public (private uses only “incidental”); AND 2) Public interests require it; AND 3) The property appropriated is necessary for the purpose. I Won’t Test Directly, BUT Useful to Contrast with Other Tests Can Use Ideas in a Lawyering Q or an Opinion/Dissent Q

State “Public Use” Standards: Transition • Roughly 20 Years between Midkiff (1984) and Hatchcock (2004)/Kelo (2005) • Country Grows More Conservative & Increases Protection of Property Rights • Increasing Controversy re Cases Like Rev Prob 2 B & City of Seattle involving Em. Dom to create new private or public-private complexes • Condemnation of shabby but functional biz or residential district. • Replace it with new shopping areas and/or upscale housing units and/or industrial parks/office space. • Leads to claims in Hatchcock & Kelo

Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Constitutional Background • State Public Use Standards • Poletown • Hatchcock • Review Problems 2 B & 2 C • Kelo & Beyond

State “Public Use” Standards: The Three Hatchcock “Situations” Hatchcock: Public Benefit is insufficient; only 3 “situations” where property acquired by Em. Dom legitimately ends up in private hands: (1) Public Necessity: Type of Project is important/vital & only way to do project is through Eminent Domain; --OR-(2) Accountability: Private entity remains responsible to public for its use; --OR-(3) Selection: Particular parcel(s) chosen based on facts of independent public significance.

Lists of Relevant Factors: “AND” v. “OR” • Three factors in City of Seattle connected by “AND” so a project must satisfy all of them to be constitutional. • Three situations in Hatchcock connected by “OR” so a project only needs to fit one of them to be constitutional.

Lists of Relevant Factors: “AND” v. “OR” • Cf. Ford Focus “AND is Better” Commercials • Sweet AND/OR Sour Chicken • Nuts AND/OR Bolts • Loud AND/OR Clear

Lists of Relevant Factors: “AND” v. “OR” • Cf. Ford Focus “AND is Better” Commercials • BUT Sometimes OR is Better!!! • 50 Page Paper AND/OR a Final Exam • Breaking AND/OR Entering • Vomiting AND/OR Diarrhea

State “Public Use” Standards: The Three Hatchcock “Situations” Hatchcock: Public Benefit is insufficient; only 3 “situations” where property acquired by Em. Dom legitimately ends up in private hands: (1) Public Necessity: Necessity Type of Project is important/vital & only way to do project is through Eminent Domain; OR (2) Accountability: Private entity remains responsible to public for its use; OR (3) Selection: Particular parcel(s) chosen based on facts of independent public significance. Need to Really Know/Understand Legal Tests Rev Probs 2 C & 2 I (Short Problems from 2014 & 2015 Exams) Revealed Weaknesses

SEQUOIA: DQ 2. 10 -2. 11 SEQUOIAS

State “Public Use” Standards: The Hatchcock “Situations” DQ 2. 10 -2. 11 (Sequoia) (1)Public Necessity: • Examples Given: Private RRs or highways, etc. What kind of Necessity does Court mean?

State “Public Use” Standards: The Hatchcock “Situations” DQ 2. 10 -2. 11 (Sequoia) Note Different Possible Meanings of “Necessity” • Use of Em. Dom is Necessary for Project (Hatchcock #1; maybe is Necessary for Project City of Seattle #2; Merrill) • Project is Necessary for Public Interest (Maybe City of Seattle is Necessary for Public Interest #2; Hatchcock #1 says type of project should be “vital”; doesn’t say that particular project must be “necessary”) • Site is Necessary for Project (City of Seattle #3; maybe part of is Necessary for Project Hatchcock #3)

State “Public Use” Standards: The Hatchcock “Situations” DQ 2. 10 -2. 11 (Sequoia) (1)Public Necessity: Type of Project is important & only way to do project is through Eminent Domain • Examples Given: RRs, highways, etc. • Justification: Overcome high transaction costs for key activities • OCR Dissent P 181 -82: Hard to determine if really necessary. • Hatchcock majority must believe that GM could assemble large parcel through ordinary purchases. Application to facts of Midkiff?

State “Public Use” Standards: The Hatchcock “Situations” DQ 2. 10 -2. 11 (Sequoia) (2) Accountability: Private entity remains responsible to public for its use. • “Responsible” here probably suggests that private compliance with govt /public wishes is not simply voluntary • Examples: • Could make pvt. ownership contingent on particulars (contracts) • Gov’t could retain supervision or voice in management

State “Public Use” Standards: The Hatchcock “Situations” DQ 2. 10 -2. 11 (Sequoia) (2) Accountability: Private entity remains responsible to public for its use • Justification: If still public control, not entirely private use. • I. e. , if gov’t effectively employing K’or to do gov’t job, seems public enough. • Poletown: Not much evidence of this in Detroit-GM deal. Application to facts of Midkiff? Consider Limits in Program or in Contracts that Would Help

State “Public Use” Standards: The Hatchcock “Situations” DQ 2. 10 -2. 11 (Sequoia) (3) Selection: Particular parcel(s) chosen based on facts of independent public significance. • Test Means? Examples?

State “Public Use” Standards: The Hatchcock “Situations” DQ 2. 10 -2. 11 (Sequoia) (3) Selection: Particular parcel(s) chosen based on facts of independent public significance. • Test Means: Can justify choice of land w/o reference to desires/ultimate uses of private entity. • Example: Urban Renewal (Berman) (land chosen to remove urban “blight”) • Justification: “Public” part is taking of land, not who ends up with it. • Poletown: GM parcel chosen only b/c of GM’s desires & ultimate uses. Application to facts of Midkiff?

State “Public Use” Standards: The Hatchcock “Situations” DQ 2. 10 -2. 11 (Sequoia) (3) Particular parcel(s) chosen based on facts of independent public significance. • Can justify choice w/o reference to desires/ultimate uses of private entity. • Application to facts of Midkiff? • Purpose seems to be to get it out of hands of land oligopoly • BUT selected by private tenants who want to reside there. • OCR in Kelo Dissent says Midkiff fits this category. Suggests that test met where public has good reason to get it out of hands of present owners (without considering where it will end up).

State “Public Use” Standards: The Three Hatchcock “Situations” (1) Public Necessity: Project is important & only way to do project is through Em. Dom; (2) Accountability: Private entity remains responsible to public for its use; (3) Selection: Particular parcel(s) chosen based on facts of independent public significance. NOTE: Hatchcock overruled Poletown & struck down use of Em. Dom to create 1300 -acre biz/technology park, so Mich. S. Ct. must have believed that both projects would fail all three tests. Poletown tests survive in other states. Qs on Hatchcock “Situations”?

Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Constitutional Background • State Public Use Standards • Kelo & Beyond • Kelo Majority & Kennedy Concurrence • Facts of Kelo & Application of Earlier Tests • Legal Analysis • Application to Poletown • Review Problem 2 D • Kelo Dissents & Merrill • Review Problem 2 G

Facts of Kelo • Response to Run-Down Area/Econ. Difficulties in New London, CT • Project = Multi-Use Integrated Economic Development 1. Incorporates Office Space, Residences, Retail, Parking, Park, Museum, Marina, Hotel/Conference Center 2. Next to Pfizer Site, but Pfizer not Part of Project (cf. Poletown) • Plaintiffs = Homeowners Whose Lots are not Blighted 1. Under plan, becoming retail, office or parking 2. Assisted by Non-Profit Organizations Favoring Strong Property Rights 3. Primary claim is that shouldn’t be able to transfer from 1 private party to another if only purpose is to achieve economic development

ACADIA: DQs 2. 12 -2. 13 Acadia Sunrise

DQ 2. 12(a) (Acadia) Legal Treatment of New London Project under Midkiff • Purpose? • Legitimate (Tie to HSWM) • Project Rationally Related to Purpose?

DQ 2. 12(a) (Acadia) Legal Treatment of New London Project under Midkiff • Purpose? • Legitimate (Tie to HSWM) • Project Rationally Related to Purpose? Easy case under Midkiff (as are virtually all conceivable economic development cases).