PROPERTY D SLIDES 2 -17 -14 Monday

PROPERTY D SLIDES 2 -17 -14

Monday Feb 17 Music: The Magic Time Travelers: 1964 Greatest Hits Reminder: Whole class (divided alphabetically) on call for problems on Intestacy Statutes (DQs 3. 01 -3. 06) that we’ll start tomorrow.

PROPERTY D: 2/17 th Anniversary Tribute to 50 A Brief the Year in Music: 1964 Deaths: Eddie Cantor, Harpo Marx, Cole Porter Births: Tracy Chapman, Wynona Judd, Diana Krall, Lenny Kravitz, Eddie Vedder

The Year in Music: 1964 The Beatles The Supremes

The Year in Music: 1964 Singles Released (not Beatles or Supremes) Include: Oh, Pretty Woman The Way You Do the Things You Do Little Old Lady from Pasadena Dancing in the Streets I’m Into Something Good House of the Rising Sun

The Year in Music: 1964 1 st Albums: Rolling Stones, Simon & Garfunkel Groups Formed: The Byrds; The Who; Three Dog Night; The Moody Blues; Lynyrd Skynyrd; Velvet Underground; Caesar & Cleo

The Year in Music: 1964 Musical Films: My Fair Lady; Mary Poppins; Hard Days Night Famous Movie Themes: Pink Panther; Goldfinger Musical Theater: Funny Girl; Fiddler on the Roof; Hello, Dolly

Previously in Property D “Public Use” as a Limit on Eminent Domain 1. Federal Deference to State Legislation a. b. Berman and Midkiff Operation of the Rational Basis Test (& Rev. Prob. 2 A) 2. State Tests for Public Use a. b. Poletown (& Rev. Prob. 2 B) City Of Seattle

Previously in Property D “Public Use” as a Limit on Eminent Domain 1. 2. Federal Deference to State Legislation State Tests for Public Use 3. Kelo: Clarification or Change in Direction? a. b. c. Majority Opinion Kennedy Concurrence O’Connor Dissent

Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Constitutional Background • State Public Use Standards • Kelo & Beyond • Kelo Majority & Kennedy Concurrence • Kelo Dissents & Merrill (continued) • Review Problems

Kelo Dissents OCR Dissent joined by RNQ SCA THS • Justice O’Connor in her dissent in Kelo distinguishes Midkiff: • Govt Purpose/ Public Benefit… • Was Purchase Itself in Midkiff (& Berman) • Was Resulting Private Ownership in Kelo • Test implicitly is Hatchcock Situation #3

ARCHES: DQs 2. 17 -2. 18 DELICATE ARCHES

Kelo Dissents: DQ 2. 17 (Arches) THS Dissent • His alone (pretty common) • Rests on his sense of original understanding (probably correct but see delegation examples in Note 7 (P 197)) • Would adopt rule: • Gov’t Must Own -OR • Public Must Have A Right to Use • Probably includes privately owned railroads, public utilities, stadiums (See OCR Dissent, which THS joined)

Kelo Dissents: DQ 2. 17 (Arches) THS Dissent • Would adopt rule : • Govt Must Own -OR • Public Must Have A Right to Use • Rests on his sense of original understanding • Looks Like City of Seattle • Strengths of that approach? • Weaknesses of that approach?

Kelo Dissents: DQ 2. 17 (Arches) 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: DQ 2. 17 (Arches) • (P 192) THS refers to Carolene Products FN 4 “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) Qs on Kelo Dissents?

Other Approaches: DQ 2. 18 (Arches) Professor Merrill’s Approach (Note 5 P 196) • Use of Em. Dom Must Be Necessary to Accomplish Project • Hatchcock Situation #1, Applied to ALL Em. Dom (Not Just Cases Where Private Party Gets Land) • Might be met in cases like Kelo where you need to assemble a very larger parcel • Fact Q in case like Poletown (but Mich SCt thinks not met)

Other Approaches: DQ 2. 18 (Arches) Professor Merrill’s Approach (Note 5 P 196) Use of Em. Dom Must Be Necessary to Accomplish Project What are the strengths and weakness of this approach compared to those used by the cases in this chapter?

Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Constitutional Background • State Public Use Standards • Kelo & Beyond • Kelo Majority & Kennedy Concurrence • Kelo Dissents & Merrill • Review Problems • Setting Up Rev. Problem 2 G for Tomorrow • Rev. Problem 2 C

FINAL EXAM QUESTIONS Choose Three of Four • XQ 1: LAWYERING • XQ 2: SHORT ANSWERS (Choose Three of Four) • XQ 3: OPINION/DISSENT • XQ 4: TRADITIONAL ISSUE-SPOTTER

FINAL EXAM QUESTION 3 OPINION/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].

FINAL EXAM QUESTION 3 OPINION/DISSENT • Task: Choose & Defend Rules for a Specific Legal Issue • Describe and Defend Two Positions • Utilize Range of Relevant Arguments Arising 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

FINAL EXAM QUESTION 3 OPINION/DISSENT • Task: Choose & Defend Rules for a Specific Legal Issue • Take 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 • Acknowledge & Address Problems w Own Position • Address Other Side’s Best Points

FINAL EXAM QUESTION 3 OPINION/DISSENT Instructions for 2 G (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 2 G Tomorrow • On test, you would choose rules you’d like to defend, but for clarity tomorrow: • Redwood will defend Hatchcock Rule • Yellowstone will defend pure Rational Basis • For critique, Shenandoah will treat • Redwood/Hatchcock as Plaintiff • Yellowstone/Ratl. Basis as Defendant

Review Problem 2 G Tomorrow • Redwood will defend Hatchcock Rule • Yellowstone 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

Review Problem 2 G Tomorrow • 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 2 G?

Review Problem 2 C • City developing Museum on own land next to OG • 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 Em. Dom to purchase area & resell to D contingent on her building proposed project.

REVIEW PROBLEM 2 C Under Rational Basis Test • Purpose of Program? • Upgrade N-Hood; Improve Museum prospects • Legitimate? (Connected to Health, Safety, Welfare, Morals) • Legit: Both are welfare • Program Rationally Related to Purpose? • Plausible that Successful Developer Can Upgrade Neighborhood? YES • Plausible that Better Neighborhood Helps Increase Visits to Museum? YES EASY CASE UNDER RATIONAL BASIS

REVIEW PROBLEM 2 C EASY CASE UNDER RATIONAL BASIS Q under Kelo Majority & KND Concurrence: Does the Situation Here Warrant Greater Scrutiny or is Pure Rational Basis the Appropriate Test

YELLOWSTONE (Rev. Prob. 2 C: Critique) GIANT GEYSER

Critique of Review Problem 2 C (Yellowstone) • For General Instructions See Info Memo #1 @ IM 10 • Plaintiffs = Arguments Favoring Greater Scrutiny • Defendants = Arguments Favoring Pure Rational Basis • Written Submission Due by E-Mail Wednesday 2/19 @ 10 am • E-Mail me if Qs

SHENANDOAH (REVIEW PROBLEM 2 C) APPALACHIAN TRAIL

Shenandoah: REVIEW PROBLEM 2 C Favoring Greater Scrutiny (Plaintiffs) • Lehtinen, Doug • Block, Jordan • Sattler, Brian • Mc. Carten, Andrew • Alternate: Raijman, Gina Favoring Pure Rational Basis (Defendants) • Schindler, Andrew • Rostock, Patrick • Oña, Katerina • Shawn, Michael • Alternate: Perez, Priscilla

Shenandoah: REVIEW PROBLEM 2 C • • • Favoring Greater Scrutiny (Ps) Lehtinen, Doug Block, Jordan Sattler, Brian Mc. Carten, Andrew Alternate: Raijman, Gina Facts/Aspects Of Problem That Might Point To Greater Scrutiny Under Kelo Majority or KND? Favoring Pure Rational Basis (Ds) • Schindler, Andrew • Rostock, Patrick • Oña, Katerina • Shawn, Michael • Alternate: Perez, Priscilla Counter-Arguments re Same Facts?

Shenandoah: REVIEW PROBLEM 2 C • • • Favoring Greater Scrutiny (Ps) Lehtinen, Doug Block, Jordan Sattler, Brian Mc. Carten, Andrew Alternate: Raijman, Gina Counter-Arguments re Same Facts? Favoring Pure Rational Basis (Ds) • Schindler, Andrew • Rostock, Patrick • Oña, Katerina • Shawn, Michael • Alternate: Perez, Priscilla Facts/Aspects Of Problem That Might Point To Rational Basis Under Kelo Majority or KND?

Shenandoah: REVIEW PROBLEM 2 C • • • Favoring Greater Scrutiny (Ps) Lehtinen, Doug Block, Jordan Sattler, Brian Mc. Carten, Andrew Alternate: Raijman, Gina Favoring Pure Rational Basis (Ds) • Schindler, Andrew • Rostock, Patrick • Oña, Katerina • Shawn, Michael • Alternate: Perez, Priscilla Arguments Looking at Problem as a Whole

Chapter 3: Where There’s a Will … and Where There Isn’t: Property Transfer at Death • General Introduction • Intestate Succession • Generally • Working with Specific State Statutes • Wills • • Generally Will Formalities Substantial Compliance State of Mind Requirements

Past, Present & Future: Property Rights & Time

Past, Present & Future: Property Rights & Time Three Ways • Chapter 3: Transfer of Property at Death • Intestacy & Wills • Inevitable Part of Passing of Time • Chapter 4: Estates & Future Interests • Division of Interests in Land by Time • Some Leftover Ideas from Early Renaissance England • Chapter 5: Adverse Possession • Operation of Statute of Limitations to Trespass Claims • Property Rights Lost & Gained Through Passage of Time

Chapter 3: Key Technique Issues • Close Work w Statutory Language, Especially re Intestacy • Bright-Line Rules v. Flexible Standards • Will Formalities: Rigid rules re how to to create valid will • v. Doctrine of Substantial Compliance • v. Fuzzy doctrines re needed state of mind

Chapter 3: Where There’s a Will … and Where There Isn’t: Property Transfer at Death • General Introduction • Intestate Succession • Generally • Working with Specific State Statutes • Wills • • Generally Will Formalities Substantial Compliance State of Mind Requirements

Intestate Succession: Generally • Transition from Chapters 1 & 2: • Important form of Involuntary. Transfer • What state does if you die without leaving valid instructions (proper will) as to disposition of some or all of your property • Every State has detailed statute governing • Gen’l Info: Overview in Supplement & My Intro Today • Then we’ll go through three examples in detail (FL + HI + VT) • DQ 3. 01 -3. 06 Allocated Alphabetically • We’ll start after Review Problem 2 G Tomorrow • Be ready with answers & cites to relevant provisions • Find definitions in materials & elsewhere as needed

Intestate Succession: Generally on Disposition of Property • Statutes All Provide Sequence of Ifs • Unsurprisingly, strong bias to immediate family • Most people would prefer • State interest in resources going to care for dependents • Takers are generally spouses and blood relatives • EXCEPT: Some states as last resort, to step-children or other relatives of deceased spouse • EXCEPT: A few states recognize certain spouse-equivalents • See Hawaii (S 40 -42: Reciprocal Beneficiaries) • See Vermont (S 44: Parties to Civil Union)

Intestate Succession: Generally on Disposition of Property • Property & Spouses • Spousal Share Seems Small in Some States BUT • Spouse often co-owner of key assets, so gets all • In Community Property States, everything earned during marriage is essentially co-owned • Often separate provisions re household goods & car • Escheat: If no Qualified Taker Under Statute, Goes to State • Every state does this (E. g. , Florida (S 38) & Hawaii (S 41)) • Note special Hawaii provision for land granted from Hawaiian Royal Family (cf. Midkiff)

Intestate Succession: Generally Other Typical Provisions • Who Counts as Relative (Adoption/Illegitimacy) • E. g. , Fl. Stat. § 732. 108 (S 39) • Simultaneous Death • E. g. , Fl. Stat. § 732. 601 (S 39); Haw. Stat. § 360. 2104 (S 41); 14 V. S. § 337 (S 44) General Qs on Intestacy?