Courts will be forced into high administrative costs asking judges to become land use – regulators and decide law on their personal policy preferences Exceptions: Necessity Public control Facts of independent significance (blight) Public Use: Law and Economics Approach High transactions preventing a voluntary transaction preventing lesser value resources shifting to higher value resources Narrow and broad views are ends tests what are the means? – Is there something about the nature of the transaction that justifies government intervention Test: When transaction costs are sufficiently high that it causes a maket failure -> government should intervene Market failure = due to high transaction costs, people are not engaging in voluntary transactions that would otherwise occur (i.e., not maximizing efficiency in resource allocation) they’re Government will also have higher transaction costs Limitation on Using Eminent Domain: The government must always weigh cost of intervention against cost of the market failure itself. If government actions costs more than cost of market failure itself -> no intervention Condemnation requires due process (per Constitution) Legislative enactment Agency proceedings Judicial proceedings Enforcement costs Constitutional Challenge (City condemned private property to give to private developers to Kelo v. City of New London increase economic values) Holding: So long as the condemnation was part of a comprehensive development plan that the has been subjected to thorough deliberation, the Court deferred to the judgment of government officials. Increasing economic values satisfied the requirement “public use” O’Connor Dissent: Beneficiaries will probably be those with disproportionate political influence Thomas Dissent definition changed + change in the standard of review – “public use” If you defer to the legislature, It makes no sense to have zero deference on the 1st Amendment and 4th Amendment strict – scrutiny Police Power (City ordinance allowed cable company to put a Loretto v. Teleprompter Manhattan CATV Corp. cable onto property; sued for a taking) P’s Holding: A permanent, physical occupation authorized by the government is a taking, regardless of either the public interests that it serves or the extent of the invasion. General rule if government action is pictured as having worked a permanent physical – occupation, it appears that there is always a taking, no matter how inconsequential or trivial the invasion Blackmun bundle of sticks conception emphasizes the right to use degree of interference – – – (similar to Euclid) Tenants have a countervailing property interest to use space –right Marshall right to exclude also the bundle of rights theory – –
Courts will be forced into high administrative costs – asking judges to become land use regulators and decide law on their personal policy preferences Exceptions: Necessity Public control Facts of independent significance (blight) Public Use: Law and Economics Approach High transactions preventing a voluntary transaction preventing lesser value resources shifting to higher value resources Narrow and broad views are ends tests – what are the means? Is there something about the nature of the transaction that justifies government intervention Test: When transaction costs are sufficiently high that it causes a maket failure -> government should intervene Market failure = due to high transaction costs, people are not engaging in voluntary transactions that would otherwise occur (i.e., they’re not maximizing efficiency in resource allocation) Government will also have higher transaction costs Limitation on Using Eminent Domain: The government must always weigh cost of intervention against cost of the market failure itself. If government actions costs more than cost of market failure itself -> no intervention Condemnation requires due process (per Constitution) Legislative enactment Agency proceedings Judicial proceedings Enforcement costs Constitutional Challenge Kelo v. City of New London (City condemned private property to give to private developers to increase economic values) Holding: So long as the condemnation was part of a comprehensive development plan that the has been subjected to thorough deliberation, the Court deferred to the judgment of government officials. Increasing economic values satisfied the “public use” requirement O’Connor Dissent: Beneficiaries will probably be those with disproportionate political influence Thomas Dissent – “public use” definition changed + change in the standard of review If you defer to the legislature, It makes no sense to have zero deference on the 1st Amendment and 4th Amendment – strict scrutiny Police Power Loretto v. Teleprompter Manhattan CATV Corp. (City ordinance allowed cable company to put a cable onto P’s property; sued for a taking) Holding: A permanent, physical occupation authorized by the government is a taking, regardless of either the public interests that it serves or the extent of the invasion. General rule – if government action is pictured as having worked a permanent physical occupation, it appears that there is always a taking, no matter how inconsequential or trivial the invasion Blackmun – bundle of sticks conception – emphasizes the right to use – degree of interference (similar to Euclid) Tenants have a countervailing property interest –right to use space Marshall – right to exclude – also the bundle of rights theory
Property-Law1.docx