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Terms in this set (89)

i) Rule: A quasi-property right exists in published news such that appropriating the published news gathered by another for further commercial purposes constitutes unfair competition in trade.

ii) Facts: The British government had barred INS from sending cables about news to US, so INS was at a massive disadvantage. INS decided to take the news that Associated Press was gathering and printing in early additions of papers published on East Cost and republish it on the West Cost without giving Associated Press credit.

iii) Issue/Holding: What property rights are in news? If there are any, do they survive past the first publication? Is misappropriating others news unfair competition in trade? News has quasi property rights. The rights do not end at the moment of initial distribution but extend past the first publication (but not indefinite), such that misappropriating published news gathered by another is unfair competition.

(c) Justice Holmes Dissenting:
(i) General Rule: No right to forbid other people from repeating words once they have been published.
(ii) Property doesn't arise from value, doesn't mean that they the thing created property rights. The only ground that the complaint has is the implied misstatement that INS gathered the news they are publishing and failed to give express credit. If INS is willing to give credit, then there cannot be an injunction because AP doesn't have a property right; they only have right to be recognized for their work.

(d) Justice Brandies Dissenting:
(i) General Rule: "The noblest of human products became after voluntary communications to others, free as the air to common use."
(ii) If there is going to be a shift in property rights, it should come from the legislature (institutional competencies argument). He believes the legislature is better able to balance the various societal interests and reach reasoned conclusions because have more sources of information, while courts are ill-quipped to make the investigations which should precede the determination of the limitations of property rights in news or the circumstances under which news gathered by private agency should be deemed affected with public interests.
(iii) Also worried that the rule that the plaintiff is contending for is an important extension of property rights
(1) Rule: There is no legal remedy other than self-help for an intentional trespass to personal property that does no physical injury to the property - "in the absence of any actual damage, the action will not lie."
(a) For trespass to chattels to be actionable, the intermeddling must be harmful to the possessor's materially valuable interest in the physical condition, quality, or value of the chattel or the possessor must be deprived of the use of the chattel, or some other legally protected interest, for a substantial use of time.

(2) Facts: After being fired from Intel, Hamidi and several others formed a FACE-Intel, Former and Current Employees of Intel. Hamidi then sent emails to Intel's employees, approximately 35,000 recipients at a time, criticizing Intel's employment practices and suggesting that the employees leave Intel. Intel made attempts to

(3) Issue/Holding:

(a) Were the emails sent by Hamidi trespass to chattels in that the unfairly imposed on the time and attention of the employees, even though they did not damage or impair the recipient computer system? No, objection to content is not sufficient to satisfy the requirement for trespass to chattels of injury to personal property or legal interest.

(i) Connecting to internet opens one up to unwanted communication. Unwanted communication may only cause a legally cognizable injury and be actionable if there is an "1) interference with contractual relations, 2) intentional infliction of emotional distress, or 3) publication of private rights"
(b) Should California law for trespass to chattels be extended to encompass electronic communication that neither damages nor impairs the recipient's computer system? No, there is unresolved controversy to whether computer systems should be afforded property rights and enacting a rule that resolves this dispute prematurely would be acting rashly.

(i) This decision was prompted by the concern of the California Supreme Court that changing trespass to chattels to embrace chattels like internet servers would 1) lead to less freedom and less communication, 2) is better done by legislature
i) Rule: There is no reasonable self-help method to dispose of a tenant who has not abandoned nor voluntarily surrendered the property, but whose claims of possession are adversely to the landlord's claim or breach a written lease. The only appropriate method to dispose of a tenant is judicial process.

(1) This is a departure from the common law rule, which holds that a landlord can resort to self-help if 1) landlord has a lawful claim and 2) the self-help means of repossession were peaceable.

(2) However, the emerging trend in this case is no longer the trend, particularly in the context of commercial leases. With commercial leases, it is more likely that reasonable self-help is available than residential leases.

ii) Facts: Wiley leased out commercial space to Breg's predecessor for five-years. Lease specified that 1) tenant was not permitted to change building structure without written authorization, 2) tenant would operate restaurant in lawful and peaceful manner, and 3) Wiley reserved the right to retake possession of premises should lessee fail to meet the conditions set forth in the lease. Plaintiff continually remodeled space and there were numerous health code violations with restaurant. After demanding remodeling changes and health code changes, Wiley accompanied by policeman reentered space and changed the locks.

iii) Issue/Holding: Was Wiley's conduct reasonable self-help? No, because the conduct would have resulted in violence but for Berg's being gone and subsequent self-restraint.
(1) Rule: When a cotenant out of possession makes a clear, unequivocal demand to use land that is in the exclusive possession of another cotenant and that cotenant refuses to accommodate the other tenants' right to use the land, the tenant out of possession has a claim for relief. It is not necessary that the out-of-possession cotenant resort to force or to means that would damage the property as means to provide legal redress.

(a) Footnote 2: "The burden to establish ouster in a suit to recover rents and profits is less stringent than the burden to establish ouster in an adverse possession action."

(2) Rule: Usually, when a cotenant in sole possession makes repairs/improvements to common property without consent of cotenants, he has no right of contribution, except in this case when the expenditures were reasonable and made for necessary repairs and maintenance.

(3) Facts: Frank and Edward Lincoln Gillmor owned a ranch. When Frank died, he passes his ½ interest in the ranch to his sons (Edward and Frank). When Edward died, he passes his ½ interest to his daughter (Florence). All off-springs are co-tenants but Florence is claiming that Edward is using the land to his exclusion and that she has been ousted from her property and as a result, is owed ½ of rental value of the property. Edward appealed ruling from lower court arguing that the award was excessive and that he should be compensated for building a fence and digging a ditch.

(4) Issue/Holding:

(a) If ousted can a cotenant recover fair share of rents and profits from land held jointly or in common? Yes, if cotenant makes clear and unequivocal demand to use and is refused, she is entitled to fair share of rents and profits.

(b) Is a cotenant not in possession liable for necessary repairs and maintenance costs? No, if not in possession, cotenant is not liable for a share of repairs/maintenance costs.
i) Rule: Voluntary or involuntary destruction on any of the unities will sever a joint tenancy, but a lien on joint tenant's interest in property will not effectuate a severance of the joint tenancy, absent the conveyance by a deed following the expiration of a redemption period.

(1) Importance:
(a) Shows the practical difference between title theory and lien is not that great in normal practice, but the distinction matters in Sprague because under a lien theory of mortgage, taking out a mortgage on the property would not sever the joint tenancy (because there is no transfer, just a security interest), while under a title theory there is a better argument that there was a transfer of legal title from mortgagor to mortgagee, thus severing the joint tenancy

(i) Title Theory of Mortgage: When you take out the mortgage, you transfer legal title to the lender and mortgagor retains equitable title

(ii) Lien Theory of Mortgage: When you take out mortgage, you don't transfer legal title, but lender just has secured interest in property

(b) Shows the modern trend that transfer of mortgage interest does not sever joint interests and will not in effect survive the death of a joint tenant but that the property interest that recipient is given will cease on the life of the tenant

ii) Facts: John and William Harms co-own as joint tenants a piece of property. Charles Sprague wishes to buy property, but he is short $7,000 and doesn't own any property to use as security interest. He asks John Harms to guarantee the $7,000 balance by cosigning the promissory note, and in doing so, John Harm transfers a security interest of his ½ undivided interest on the property he owns with his brother. This severs joint tenancy and turns the brothers into tenants in common, but William, John's brother, had no knowledge of this. John Harms died and left everything in his estate to Charles. Charles is arguing that his estate included ½ interest in property and that know Charles and William are co-tenants. However, William is arguing that the brothers remained joint tenants, so when he died, his interest died with him and there are no surveyorship rights.

iii) Issue/Holding:

(1) Is joint tenancy severed when less than all joint tenants mortgage a property? No, joint tenant is not severed.

(2) Does mortgage survive death of mortgagor? No, mortgages are treated as lien on interest in the property, not transfers of title. Therefore, John's mortgage was merely a lien on his ½ interest of property and did not destroy the joint tenancy. Therefore, upon John's death, he had nothing to transfer because joint tenants are characterized by the right of survivorship, so William assumed title in the entire property.

(3) Simmons did not raise Section 20-19 of the Illinois Probate Act, but it appears to state that property will not pass from one joint tenant to another if there is an encumbrance on it, like a mortgage. Court implies that they would rule against this section of the act because it is misunderstands joint tenancy.

(4) This fact pattern, where not all joint tenants signed on to the mortgage, appeared post 2009 financial crisis with Bank of America. Mortgage was transferred by joint tenants without all the tenants singing on to Bank of America, BOA arguing that they should still get right to the property that survive joint tenant. NY Court was not sympathetic reasoning that it is Bank of America's responsibility to understand their security interests. Again, illustrates modern trend.
i) Rule: Tenants by the entirety have property rights, which allow the tenants to encumber the property with things like tax liens. Therefore, the federal government can attach a lien to one member of the married couple's interest in the property.

ii) Facts: Sandra and Don craft owned property together as tenants in the entirety. Mr. Craft failed to pay his income tax for several years, and as a result, IRS attached a federal tax lien to the property. In response, the Crafts executed a quitclaim deed to transfer ½ interest from Mr. to Mrs. Craft for $1. A few years later, they tried to sell the property and found that the lien still existed on the residence. Mrs. Craft brought suit against United States government to quiet title to the sale proceeds, which were being held in escrow.

iii) Issue/Holding: Whether tenants in the entirety, possess "property" or "rights to property" to which a federal tax lien may attach? "State law determines only which sticks are in a person's bundle. Whether those sticks qualify as "property" for purposes of the federal tax line statute is a question of federal law." Under Michigan Law, tenancy by the entirety creates a single property right held by the married couple, but each tenant has the right, among other things, to encumber his property with the other tenant's consent. United states tax law permits tax liens to be levied on a broad array of property interests, including tenants by the entirety. Allowing tenancies by the entirety to escape tax liens would create negative incentives for tax evasion because many married people hold property as tenants by the entirety.

iv) Justice Thomas Dissenting: Under English law and Michigan law, a property held by a tenancy by the entirety does not belong to either spouse, so Mr. Craft did not have any rights in the property in question. The tax lien should be held invalid.

v) Justice Scalia Dissenting: Tenancies by the entirety assist stay-at-home mothers who are incapable of removing tax liens left on their property by their husbands, and this court's ruling reverses that protection.

vi) Contrast with Drye v. United States (1999) where Rohn Dryer disclaimed his inheritance to shield it from federal tax lien attaching pursuant to a state disclaimer statute, which then passed to his daughter without a tax lien. Supreme Court held that where an heir disclaims his or her inheritance from a decedent's interstate estate, that interest is subject to federal tax lien on the disclaiming heir's property or rights to property.
i) Rule: A covenant in a lease that requires a landlord to return a tenant's security deposit does not run with the land. To run with a land, a covenant must be so related to the land that the covenant enhances the land's value or confers a benefit on the land; otherwise, it is only the original lessor's collateral and personal obligation.

ii) Facts: Conner Theaters entered 10-year lease that required a $22,500 security deposit to the landlord. Lease provided that: 1) landlord could keep the security deposit as damages if Conner defaulted; 2) If Conner did not default, the landlord would return the lease in 1979; 3) all convents in the lease ran with the land. Conner assigned the lease to Mullendore (plaintiff) and security deposit was reduced to $6,000. Property was eventually acquired by Growth Realty Investors, who then sold it to the city. Mullendore sued GRIC for the return of the security deposit.

iii) Issue/Holding: Does a covenant in a lease that requires a landlord to return a tenant's security deposit run with the land? No, a covenant only runs with the land if it touches and concerns the land.

iv) Importance: Shows that small differences in words are important. Most people think that all provisions of lease are applicable to the new tenant, but that is not true. Not all promises go with assignments and sub-leases. One must distinguish between privity of contract and privity of estate.

(1) If you were advising the defendants on how to make it touch and concern the land, claim that the money is going to be used for repairs.
(1) Rule: When lease provides for assignment of tenant interest only with consent of the lessor, then such consent can only be withheld where lessor has commercially reasonable objection to assignment. (This rule is now the modern trend Landlord consent may be required, but may not be unreasonably withheld.)

(2) Facts: Hanger space at San Jose Airport was rented out to Perlitch couple, who signed a 25-year sub-lease with Bixler, and then, in turn assigned landholder interest to Ernest Pestana Inc. Because the value of the land had increased, Bixler sought to assign his right to Kendall and the O'Hara couple. Bixler requested consent from Ernest, and they refused.

(3) Issue/Holding: Whether, in the absence of a provision that such consent will not be unreasonably withheld, a lessor may unreasonably and arbitrarily withhold his or her consent to assignment/subleases? when lease provides for assignment of tenant interest only with consent of the lessor, then such consent can only be withheld where lessor has commercially reasonable objection to assignment.

(4) Importance: This changes California's default rule and makes it align with the minority rule, but parties can contract around this.

(a) Justifications for adopting minority rule:
(i) Modern times call for reasonable alienation of commercial spaces
1. Leases are not just contract law, but they are also conveyances. Leases as conveyances justifies the adoption of the minority rule because there is general disfavor at common law for restraint on alienations.
(ii) In every contract, there is implied good faith and fair dealing
(1) Rule: A party has the authority to exercise a power of sale contained in a mortgage only if the party holds the mortgage at the time of the notice of sale and at the subsequent foreclosure sale.

(a) This is an outliner case from the traditional holding that the mortgage follows the note.

(2) Facts: Ibanez takes out a mortgage to buy a home. He defaults on the mortgage. The mortgage had initially been with Rose Mortgage, but though a long strong series of assignments, it ended up being assigned pooled with 1,2000 other mortgages to US bank as a trustee.

(3) Context: In the run up to the 2007-2008 financial crisis, a lot of markets were getting overheated because the required down payment was decreasing, so more people were able to buy houses and more expensive houses. This can be a really good thing, but how can someone who only has so little to put up as an initial down payment ever repay the payment on a very expensive house? If prices are rising, you can flip the house and make a profit, but if prices are falling, then you can become underwater, when you own more on your loan than the property is worth.

(4) Issue/Holding: Can a party claim title to a property sold pursuant to a power of sale contained in a mortgage if the party is unable to prove that it held the mortgage at the time of the notice of sale and at the subsequent foreclosure sale? Although publication in the Boston Globe was sufficient notice of foreclosure, US Bank did not have right to foreclose because they did not, at that moment in time, have right to mortgage.
(1) Rule: Under Indiana law, judicial foreclosure is the preferred remedy for enforcement of a vendor's rights under a land contract unless the vendee has acquired so little equitable interest in the subject property that forfeiture would not be unfair.

(2) Facts: Contract entered into for sale of real estate for $36,000. Clear payment schedule is laid out, but contract has 1) prepayment provision (prepayments can be accepted in lieu of further principal payments), and 2) forfeiture clause (if payment lapse, then all money previously paid is terminated and contract is terminated). When defendant defaulted, plaintiff tried to enforce forfeiture provision and keep the land and the $21,000 that has been paid on the property.

(3) Issue/Holding: What is the appropriate remedy for default on installment land contract? Judicial foreclosure because 1) Skendzel waived the right to strictly enforce contract terms by acquiescing to non-compliance in the past, 2) the amount of loss resulting from breach may be determined with specificity, so the law disfavors liquidated damages, 3) liquidated damages will only be enforced when forfeiture will not represent unreasonable measure of damages and greatly exceed the actual loss suffered, as is the case here, 4) buyer does not acquire legal title, but they do require an equitable interest on the property proportional to the measure of their previous performance under the contract, here that is a significant equitable interest

(4) Concurrence: Vendor does have important contractual rights and under certain circumstances, forfeiture will be an appropriate remedy. Remedies should be crafted with consideration of the fact that land contract vendors would most likely have utilized other provisions for the protection of their interests had they realized that forfeiture provisions would not be consistently enforced.

(5) Importance: To what extent should party be able to bargain around typical mortgage terms
(1) Rule: An interference will be considered a private nuisance when it interferes with the use and enjoyment of another's land and is either (a) intentional and unreasonable or (b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities (Restatement 2d Torts §822). Here the water well is substantial interference, btu not unreasonable, so it is not a private nuisance.

(a) Intentional: interference is considered intentional if "actor knew or should know that the conduct is causing a substantial and unreasonable inference."

(b) Unreasonable: interference is unreasonable when the gravity of harm outweighs the social harm considering: 1) extent of harm involved, 2) character of harm involved, 3) social value that the law attaches to the type of use or enjoyment invaded, 4) suitability of a particular use or enjoyment invaded to the character of the locality, and 5) burden on person harmed by avoiding the harm.

(2) Facts: Hendricks moves in adjacent to Stalnaker and immediately makes plans to get a septic system installed, but before he can do so, Stalnaker receives a permit for a water well to be installed, which then prevents the country from approving his septic system.
(3) Issue/Holding: Is the water well a private nuisance? No, water well is not a private nuisance because Hendricks have failed to show that the balancing of interests favors their septic system. Furthermore, inability to operate a septic system was intentional, but is not an unreasonable harm to land.
(1) Rule: A possessor of land in Michigan proving a direct or immediate intrusion of a physical, tangible object onto his land is presumptively entitled to recover at least nominal damages in trespass, however, noise, vibrations, and dust are intangible objects and therefore do not give rise to an action in trespass.

(2) Facts: Plaintiff brought suit seeking damages in both trespass and nuisance complaining of dust, noise, and vibrations from Empire Mine, owned and operated by Cleveland-Cliffs Iron Company. Mining operation that is going 24 hours/day, but in the local day it provides 2,200 jobs.

(3) Issue/Holding: Is this case covered by trespass or nuisance law? This is covered by nuisance because it interferes with the private use and enjoyment of one's land, and not with the sole possession of their land.

(4) Importance:
(a) This case shows the difference between nuisance and trespass. However, it is hard to draw a bright line rule, but courts don't admit the difficult. Options;
(i) Trespass could be considered direct injury to land vs. nuisance is indirect injury
(ii) Trespass could be direct interference of visible object (that you can see with naked eye) vs. nuisance is interference of invisible object

(5) This has substantial effects because trespassers are strictly liable. There is no weighing the benefit to the trespassers vs. the loss of value to the person they trespassed against. In contrast, in nuisance law, there are few absolutes, and courts invariable way the social benefits vs. social costs ,even if they don't say that they're doing that explicitly.
i) Rule 1 (nuisance and injunction): Property rules are preferred when transaction costs are low because property will end up in hands of the one who values it the most.

(a) Rule: Nuisance prohibits unreasonable use of land, especially if land use is unreasonable in light of the locality and the damage to the one complaining of the nuisance is substantially larger than the benefit to the one causing the nuisance

(b) Facts: Plaintiff bought 40 acres on the Hudson River and built a mansion and elaborate garden. Defendant has been using the enjoining land as a brickyard for the last 20 years. Upon change in the wind pattern, the gas coming from defendant's brickyard started killing plaintiff's trees and injured their vines, causing them an estimated $500 in damage.

(c) Issue/Holding: Was defendant's brickyard a nuisance? If so, should the remedy be an injunction or damages? Yes, defendant's brickyard was a nuisance and an injunction should be ordered.

(i) Why nuisance?
1. Killing of the trees / vines
(ii) Why injunction?
1. Trees and vines cannot be replaced
2. Injunction prevents the multiplicity of suits as this is a reoccurring injury
3. Damages endured by plaintiff are large and substantial and brickyard can move to another location
(iii) If the plaintiff "came to nuisance," that does not prevent a claim in totality, rather the courts will consider it as one of many factors also including timing, good faith, absence of spite, public interest in defendant's activities, and estoppel like notions.
i) Rule 2 (nuisance and damages): Conventional wisdom is that Rule 2 is used in cases with high transaction costs.
(a) Rule: Permanent damages, rather than an injunction, are appropriate when the damages resulting from a nuisance are significantly less than the economic benefit derived from the party causing the harm.
(b) Facts: Plaintiff were neighboring landowners to defendant, who operated a large cement plant in Albany. Plaintiff used for injunction and damages alleging nuisance in form of dirt, smoke, and vibrations. Trial court found a nuisance, but ordered permanent damages, instead of an injunction.
(c) Issue/Holding: Are permanent damages appropriate in a situation where the harm caused by a nuisance is significantly less than the benefit to the party causing the nuisance? Yes, permanent damages are appropriate in this case because the benefit gained by the plaintiffs through issuing an injunction is out weighted by the social cost of shutting down the plant.
(i) Allowing for permanent damages is effectively setting a price for Atlantic City to pay, and if they don't pay, then an injunction will be ordered.
(d) Dissent:
(i) Court should adhere to a standard remedy of granting of injunctions.
1. Moral element: when someone is a nuisance, what they are doing is morally wrong and we shouldn't allow people to pay in advance to create moral wrongs
2. Misuse of Imminent Domain: this is effectively the government allowing an individual's right to not be subject to pollution to be taken so long as they are reimbursed for it. This Is private use of imminent domain, but there is no public benefit.
a. While government does have imminent domain power that can be designated to private use, it must be for public use.
3. Negative Incentives: if damages are paid up front than there is no incentive for the defender to attempt to reduce their pollution
(i) Rule: Violations of a restrictive covenant that are not habitual or substantial do not constitute abandonment

(ii) Facts: Milroys move to the neighborhood of Spokane Terrace. The neighborhood had a restrictive covenant which prevented the operation of home businesses. After remodeling their home and moving in, Mrs. Milroy began to operate a daycare. Peckham informed the Milroys that they were violating the covenant, and later brought suit to enjoin daycare's operations.

(iii) Issue: Should the daycare be enjoined or has the covenant been abandoned because of 1) violations by other home businesses, 2) the defense of laches, 3) the defense of estoppel, and 3) because it violates public policy? Yes, the daycare should be enjoined because 1) covenant has not been abandoned because only a few violations don't constitute abandonment; 2) defenses of laches is not applicable because a) Peckham didn't know or couldn't have known that they were doing construction for day care, b) there was no unreasonable delay c) he's been complaining for the whole time; 3) the defense of estoppel is not permissible because none of the necessary elements have been met - he didn't make a statement that he reneged on; and 4) public policy defense is not applicable because restrictive convents are permitted in residential areas.
1. Abandonment: only applicable when the covenant has been "habitually and substantially violated"
2. Laches: A defense in equity under which a party claims that the opposing party has failed to assert its rights within a timely manner and that the rights thus cannot be enforced.
a. Elements of Laches Defense:
i. Knowledge or reasonable opportunity to discover on part of potential plaintiff that he has a cause of action against defendant
ii. Unreasonable delay by the plaintiff
iii. Damage to defendant resulting from unreasonable delay
this is a due process case, not a takings case

(a) Rule: Municipal zoning regulations are constitutional, unless they are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.

(b) Facts: Amber Realty Co. owned 68 acres of land in the Village of Euclid (suburb of Cleveland, Ohio). 1922 Euclid enacted comprehensive zoning plan - had restrictions based on use, class, height, and area. Amber Realty Co. sues on grounds that the value of the land will decrease if the land restrictions are imposed, and that potential buyers will be deterred.

(c) Issue/Holding: May cities and municipalities constitutionally pass zoning regulations, or is the zoning regulation unconstitutional, such that Ambler should be awarded injunctive relief? The zoning regulation is not by itself unconstitutional, but there is still the potential that the regulation could be unconstitutional as applied to plaintiff (see Nectow v. City of Cambridge, 1928).
(i) Zoning regulations that may be constitutional in certain circumstances, may not be constitutional in other circumstances (ex. city v. rural). Even if zoning is Constitutional on its face, it may be unconstitutional when applied to a specific plaintiff (see Nectow v. City of Cambridge, 1928).

(ii) The line between legitimate and illegitimate assertions of power with regard to zoning is "not capable of precise delineation. It varies with circumstances and conditions." One factor to consider is nuisance.

(iii) Zoning and Apartment Buildings:
1. Coming of apartment buildings retards the development of detached family dwellings (""apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district.") and coming of one apartment building is often followed by others.

a. Arguments For:
i. Apartments block sunlight (pro-property rights of single-family dwelling)
ii. Preventing the coming of apartments prevents the influx of industries and people

b. Arguments Against:
i. Class segregation because apartment houses are normally for less wealthy
(a) Rule: A state's use of eminent domain to condemn property from private individuals and redistribute it to other private individuals constitutes a "public use" under the Fifth Amendment if it is rationally related to a conceivable public purpose.
(b) Facts: City of New London, Connecticut (defendant) approved a new development project that involved using its eminent-domain authority to seize private property to sell to private developers. The city stated that the purpose of this exercise of eminent domain was to create new jobs and increase tax revenues from the sale of property. Susette Kelo (plaintiff) had lived in a home in the New London area since 1997. Wilhelmina Dery (plaintiff) was born in her New London home in 1918 and had lived in the home with her husband Charles (plaintiff) for roughly sixty years. The property owned by Kelo and the Derys was in one of the areas scheduled to be condemned by the city's development project. Nine private property owners, including Kelo and the Derys (plaintiffs), brought suit in Connecticut state court to challenge the project on the grounds that it violated the "public use" requirement of the Fifth Amendment.
(c) Issue/Holding: Whether a city's decision to take property for the purpose of economic development satisfies the public use requirement of the Fifth Amendment? Yes, it does satisfy the 5th Amendment public use requirement because 1) follows precedent of Berman v. Parker (1954) and Hawaii Housing Authority v. Midkiff (1984), 2) state legislative judgements are entitled to great deference, and 3) economic benefit conferred on the general public can still constitute a viable public purpose.
(i) Writing for the majority, Justice Stevens largely relies on precedent to show that there is broad deference afforded to legislatures "in deterring what public needs justify the use of the takings power."
a. Berman v. Parker (Supreme Court, 1954):
i. Justice Stevens quotes from Berman v. Parker to emphasize the wide breadth of needs that can be used to justify the use of the takings power: "The concept of public welfare is very broad and inclusive... The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as health, spacious, as well as clean, well-balanced, as well as carefully patrolled."
ii. Rule: Seizing title to real estate for the public purpose of preventing or eliminating slums is within Congress's power of eminent domain if reasonably necessary to eliminate or prevent slums provided the owners receive just compensation because nothing in the 5th Amendment will stand in the way if the government believes "community should be beautiful as well as healthy, spacious, as well as clean, well-balanced as well as carefully patrolled."
iii. Facts: challenge to a 1945 DC urban-renewal plan that allowed seizure of title to about 15 city blocks within slums or blighted areas.
2. Hawaii Housing Authority v. Midkiff (Supreme Court, 1984):
a. Rule: A state may use the eminent domain process to take property that is heavily concentrated in the hands of a few private landowners and redistribute it among the general population of private individuals.
i. Legislatures are entitled great deference when trying to improve social and economic life. The mere fact that state served as facilitator from transfer of one property to another doesn't mean that this is not for public use.
b. Facts: Challenge to a Hawaii statute that permitted land title to be taken from lessors lessees in order to reduce concentration of land ownership
(d) Justice Kennedy Concurring:
(i) Under the Public Use Clause, it is required to do a meaningful rational basis review to determine if the benefit to the city is the primary or incidental benefit, which requires taking plausible allegations of favoritism when determining if taking is for public use seriously. Kennedy leaves open possibility that there is a subset of cases that merit a more stringent standard of review than rational basis scrutiny
(e) Justice O'Connor Dissenting:
(i) O'Connor argues that the taking of property from one private individual and giving it to another is a violation of basic principles such that "the specter of condemnation will haunt property owners."
(ii) Distinguishes this case from Berman v. Parker and Hawaii Housing Authority v. Midkiff by arguing that in Berman and Midkiff there was pre-condemnation harm to properties, so taking property was necessary to remedy property as a whole. In this case, there is no argument that plaintiff's homes are inherently harmful to society and thus in the need to condemn
1. Takings in Berman v. Parker was to remedy "a blighted neighborhood"
2. Takings in Hawaii Housing Authority v. Midkiff was to remedy oligopoly that resulted from extreme wealth
3. Very few commentators find this persuasive
(f) Justice Thomas Dissenting:
(i) Focuses on the individuals effected by eminent domain and argues that the consequences do not fall equally on the people of the United States: "Allowing government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economic goal guarantees that these losses will fall disproportionately on poor communities"
(ii) Argues that the government should return to the original understanding of the 5th Amendment
(iii) Note 11 on pg. 1197 of our casebook explains that the understanding of the original meaning for "public use" may center on "whether one thinks the Framers were more influenced by Blackstone or Locke (who would require the consent of the legislature) or by continental thinkers like Grotius (who would require a public use or a purpose."
(a) Rule: Fair market value for takings is to be ascertained at the date of taking and does not include any value increase from the announcement of the government's project, if the land was within the project's scope when the government committed to the project or after-condemnation value of the land.

(b) Rule: If plaintiff receives compensation in excess of fair market value, they are not allowed to keep overcompensation.

(c) Facts: US government condemned a strip of land of various landowners in order to relocate railroad tracks. The potential negative aspects for individual property owners are crime, noise, and decreased property owner. The government committed to the relocation project on August 26, 1937. On December 14, 1938, the government filed an eminent-domain action against the landowners and a declaration of taking in the United States District Court for the District of Northern California. As part of the statutory requirement for filing the declaration, the government submitted a $2,550 deposit, which was the estimated amount of compensation due to three co-tenant landowners. The court paid each landowner $850 from the deposit. Issue went to trial and jury awarded less than $850 for three plaintiffs.

(d) Issue/Holding:
(i) Can an owner benefit from an incremental increase in the value of property taken by the action of the public authority in condemning nearby lands? No, the fair market value for the land taken by eminent domain does not include any value increase from the announcement of the government's project. Disadvantage or benefit of past taking may increase/offset the awards of damage buy only with regard to that owner's specific property.
(ii) Are plaintiffs entitled to retain overcompensation initially awarded by the government? No, plaintiffs are not entitled to because holding otherwise would 10 defeat the policy of the statute and work injustice, 2) would encourage federal officials to underestimate the value of property, and 3) would deny the owner of immediate use of cash gained from approximating the value of his land
(1) Rule: "Property may be regulated to a certain extent, if the regulation goes too far it will be recognized as a taking." In short, government should balance the public interest served by the regulation against the interference with the individual's investment back expectations. Factors to be considered are 1) diminution in value, 2) nature of public interest served by legislation - if legislation is designed to protect the public safety / stop a public nuisance, and 3) the reciprocity of advantage received, if any.

(a) Note, this is no longer good law. It was effectively repudiated in Keystone Bituminous Coal Association v. DeBenedicts (Supreme Court, 1987)

(2) Facts: Pennsylvania Coal conveyed land it owned to Mahon, but Pennsylvania Coal retained the right to mine underneath the property. Deed stated that Mahone was taking the land subject to risks associated with any mining beneath the land. Almost 30 years later, Pennsylvania enacted the Kohl Act which prevented coal mining that could possibly affect the integrity of any surface land. Mahon then sued Pennsylvania Coal arguing that the new statute bared Pennsylvania Coal from mining under the property.

(3) Issue/Holding: Can a statute that promotes overregulation of property be considered a taking? Yes, while the use of property can be regulated, overregulation will be considered a taking because it is the functional equivalent of eminent domain.
(a) Justice Holmes' Majority:
(i) Argues that whether something is a regulation or taking is a question of degree. Holmes argues that not every regulation should be considered a taking because then, the "government hardly could go on if some extent values incident to property could not be diminished without paying for every such change in the general law." If the government had to pay for every change in government regulation, then there would be a tremendous amount of transaction costs and the government would cease to pass new regulation.

(ii) Focuses on three factors to distinguish this case from Plymouth Coal v. Pennsylvania (held that it was permissible for legislature to require barriers of coal be left between mines). While Plymouth Coal v. Pennsylvania was for the safety of the employees and secured an average reciprocity of advantage, Holmes argued that the case at issue did not.

(iii) Reduction in Value:
1. Holmes sees a lot of reduction in value to the value of the coal because increased transaction costs might prove prohibitive and the savings from this statue are to health/safety and likely can't be taxed/wouldn't be paid

(iv) Public Safety/ Public Nuisance Requirement:
1. This is not a case of public safety because Mahon was fully aware of the mining operation under the land he was purchasing and he agreed to bear the risks associated with mining.
2. This is not a case of public nuisance because only one home is involved.
3. Coal company has the right to use the property and to the extent that their use is harmful, we can solve this problem using notice
a. Counterarguments:
i. Doesn't necessarily mean that no one will be there - someone may not have somewhere else to go, or refuse to clear out, or there might be language barriers, or children

(v) Reciprocity of Advantage: the idea that each party should receive equal burden and/or benefit from regulation
1. In this case, there is no reciprocity of advantage, takin is a huge burden on Mohan:
a. "In general, it is not plain that a man's misfortunes or necessities will justify his shifting the damages to his neighbor's shoulders. ... A strong public desire to improve the condition is not entitled to warrant achieving the desire by a shorter cut than constitutional way of paying for change."

(b) Justice Brandeis Dissent:
(i) Three issues:
1. Reduction in Value:
a. Denominator Issue:
i. What denominator should we compare when looking at the reduction in value?
ii. Do we look at surface estate? Coal estate? Both?
iii. Brandeis argued that the diminution in value should be calculated by looking at the property rights as a whole
2. Public Safety/ Public Nuisance Requirement:
a. This is a public nuisance case
i. "The restriction here in question is merely the prohibition of a noxious use." State does not appropriate it or make use of it, but merely prevents owners from making a use "which interferes with the paramount rights of the public"
3. Reciprocity of Advantage:
a. If you are a public nuisance and are doing something that harms others, you should expect to be disadvantaged
(ii) Other:
1. Right of a landowner to use his land is not absolute:
a. "[T]he right of the owner to use his land is not absolute. He may not so use It as to create a public nuisance, and uses, once harmless, may, owing to changed conditions seriously threaten the public welfare. Whenever they do, the Legislature has power to prohibit such uses without paying compensation; and the power to prohibit extends alike to the manner, the character, and the purpose of use."
2. "Every restriction imposed to protect public health, safety, or morals from dangers threatened is not a taking. The restriction here in question is merely the prohibition of a noxious use."
a. Property remained in hands of owner
b. State does not appropriate it or make use of it, but merely prevents owners from making a use "which interferes with the paramount rights of the public"
3. Restriction is only lawful if it is for a public use, but merely because the private person receive benefits from the restriction, does not mean that the restriction ceases to be public

(c) Comparing Justice Holmes and Justice Brandeis:
(i) How do the justices agree?
(ii) How do the justices disagree?
1. Weight to public safety / public nuisance
a. Holms believes that this is going too far because only involves one house which owner waived his risk
2. Holmes focuses a lot on the deed which " waived all claim for damages that may have been giving for coal" the parties had agreed that the surface estate holder would not have a right to sue if there were damages
(1) Rule: In determining whether a state regulation constitutes a taking under the Fifth and Fourteenth Amendments, courts should consider: 1) the economic impact of the regulation on the owner, 2) the extent to which the regulation has interfered with the owner's reasonable investment-backed expectations, and 3) the character of the government action involved in the regulation.

(a) Factor 1: The economic impact of the regulation on the owner - requires determining what the denominator should be

(b) Factor 2: Reasonable Investment-Backed Expectations - did government's taking interfere with what was reasonable for plaintiff to expect from his land

(i) Influenced by your view of market efficiency - do you think that the chance that government might take property is reflected in prices? If so, then your reasonable investment-backed expectations have not really been effected

(c) Factor 3: The character of the government action involved in the regulation.

(2) Facts: NYC designated Grand Central Terminal in New York (owned by Penn Central) as a historical landmark. Planning to lease out the space, Penn Central submitted two proposals to build office space atop of Grand Central. Both proposals were rejected. Penn Central sued NYC alleging that 1) It had been deprived of its air rights over the terminal, 2) which it would have profitably developed, and 3) that it had been singled out to pay for a program designed to benefit the public. Effectively, they were arguing the law which denied Penn Central's right to build an office building and receive revenue from leasing the space constituted a taking of the company's property without just compensation as was required by the 5th Amendment.

(3) Issue/Holding: Can a city place restriction on development of historical landmarks, in addition to normal zoning ordinances, without effecting a taking requiring payment of just compensation? Yes, designation of historic landmark is not considered a taking, and NYC has not interfered with appellants' property in such a way that there must be an exercise of eminent domain and just compensation to sustain it.
(a) Justice Brennan's Majority: Denied that this was a taking.
(i) Takings clause was "designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice should be borne by the public as a whole." (Armstrong v. United States)

(ii) Ad Hoc Inquiry Test: Brennan admitted that determining what constituted a taking had been of "considerable difficulty" for the Court, so instead of a clear rule, he argued that the court is to engage in ad hoc inquiries of the particular circumstances of a case, in which the factors are: 1) the economic impact of the regulation on the owner, 2) the extent to which the regulation has interfered with the owner's reasonable investment-backed expectations, and 3) the character of the government action involved in the regulation.

(iii) In this case, the court in a 6-3 vote fund that there was no taking because:
1. The economic impact of the regulation was significant but not unfair
a. Penn Central already have a profitable use for their land and the takings clause does not guarantee that owners will be able to use their property for its post profitable purpose
b. Diminution in value also doesn't establish a taking (see Euclid)
c. Loss to Penn Central was a mere opportunity loss - an inability to change the use of the property rather than a prohibition of a prior existing use
d. The impact on the land was not unduly harsh and it was substantially related to the goals of preserving historic nature of buildings
e. Air rights above Penn Central are not distinct bundle or property rights independently protected by Constitution
f. The owners were also given transfer development rights, which potentially offset the diminution in value
2. The extent to which the regulation has interfered with the owner's reasonable investment-backed expectations
a. Penn Central is still entitled to continue the current use of its property, so its reasonable investment-backed expectations have not been disturbed
3. The character of the government action involved in the regulation.
a. Law did not wrongfully single out Penn Central, but was a general regulatory scheme to protect historic structures
(b) Justice Rehnquist's Dissent: He would remand for determination of whether the transfer of development rights are just compensation
(i) Unlike nuisance cases, Rehnquist argues that there is no reciprocity if advantage here, the law merely prohibited "a legal and essential use, an attribute of its ownership."
(ii) Rehnquist also considers the economic impact of the regulation with regard to the air space and not the property as a whole. He argues that Grand Central is only attempting to build something similar to those in the neighborhood and they haven't been allowed to. That is an essence a taking.
(iii) The owners have transferable development rights, but they have an "uncertain and contingent" market value. This is not what the Supreme Court should be spending their time on. It is extremely careful about staying in its in institutional competency.
(i) Rule: Permanent physical occupation of property is taking. In such a case, the property owner entertains a historically rooted expectation of compensation, and the character of the invasion is qualitatively more intrusive than perhaps any other category of property regulation

(ii) Facts: Teleprompter Manhattan CATV Corp had installed a cable on portions of the side and roof of a five-story apartment building in New York City that Loretto later purchased. In 1973, New York passed a law which prohibited interference by a landlord in the installation of cable and the acceptance of payment from a cable company. Loretto brought suit in New York state court alleging that the installation of cable facilities on her building by Teleprompter was an unconstitutional taking of her property.

(iii) Issue/Holding: Whether a minor but permanent physical occupation of an owner's property authorized by government constitutes a "taking" of property for which just compensation is due under the Fifth and Fourteenth Amendment? Yes, both precedent and historical circumstances support the rule that a minor but permanent, physical occupation of an owner's property, authorized by government constitutes a taking.

1. Permanent physical invasion is more serious and intrusive than either a temporary intrusion or an intrusion that merely restricts the use of property. These only require using a balancing test.
2. Permanent taking requires just compensation because with a permanent taking, the government does not simply take a strand from the bundle of property rights "it chops through the bundle taking a slice of every right: 1) the owner may no longer fully possess the property or exclude others from possessing it; (2) the owner can no longer exclude others from using his or her property, and cannot make any personal non-possessory uses of it; and (3) the owner cannot properly dispose of the property because a permanent physical occupation typically strips the property of most or all of its economic value.

(iv) Justice Blackmun's Dissent:
1. Blackman argues that the majority provides no guidance as to when a permissible state regulation ends and an unconstitutional taking begins and totally abandons ad hoc test that had been laid out in prior precent
a. Counterargument; multifactor review could undue a settled area of law (ex. utility easements)
(i) Rule: A governmental mandate to relinquish specific, identifiable, and safe personal property as a condition to engage in commerce is a per se taking requiring just compensation.

(ii) Facts: US Department of Agriculture required that a portion of raisin farmers' raisin crops be set aside for government use. The government then sold the raisins where appropriate to promote and maintain a healthy raisin market. The government kept the proceeds of these sales. The Hornes (plaintiffs) were raisin growers subject to the USDA order. In 2002, the Hornes refused to give any raisins to the government. The Hornes were fined for their refusal. The Hornes brought suit, claiming that the USDA order constituted an unconstitutional taking of property under the Fifth Amendment.

(iii) Issue/Holding: Whether the Takings Clause of the Fifth Amendment bars the Government from requiring a portion of raisin farmers' raisin crops be set aside for government use without just compensation? Yes, the Takings Clause of the Fifth Amendment bars the Government from requiring a portion of raisin farmers' raisin crops be set aside for government use without just compensation because 1) just compensation applies to real and non-real property, 2) The raisin requirement is a clear physical taking and the contingent interest in the portion of the value of raisins set at the government's discretion does not allow the government to avoid categorical duty to pay just compensation, and 3) The governmental mandate to relinquish specific, identifiable property as a condition on permission to engage in commerce does effect a per se taking

1. Majority Opinion:
a. Just compensation applies to real and non-real property
i. Court says Nothing in historical practice or text of precedent to suggests that there is a distinction - this is overstatement
b. The raisin requirement is a clear physical taking and the contingent interest in the portion of the value of raisins set at the government's discretion does not allow the government to avoid categorical duty to pay just compensation
i. "The Government and dissent again confuse our inquiry concerning per se takings with our analysis for regulatory taking. A regulatory restriction on use that does not entirely deprive an owner of property rights may not be a taking under Penn Central. But once there is a taking, as in the case of physical appropriation, any payment from the Government in connection with that action goes, at most, to the question of just compensation."
c. The governmental mandate to relinquish specific, identifiable property as a condition on permission to engage in commerce does effect a per se taking
i. Court distinguishes other regulation implemented on commerce rather quickly Selling produce in interstate commerce is not as a governmental benefit like disclosing pesticides in Ruckelshaus v. Monsanto

2. Part III:
a. Government wants remand to determine fair market value of property, but the majority reasons that the fair market value is the fines posed on the Hornes by the government
b. This portion is not majority because not joined by Breyer, Kagan, and Ginsberg
3. Justice Thomas' Concurrence: Thomas argues that There could be public use problem here - if public use has limited meeting (see Thomas' dissent in Kelo), to the extent that they are not taking this for true public use, then cannot take.
4. Justice Breyer Concurring in Part and Dissenting in Part: (Joined by Ginsberg and Kagan):
a. Breyer Emphasizes that although the raisin reserve requirement is a taking, it has not been established that there has not been just compensation. As established in Burman v. Ross, ehen there is a partial property taking, then the individual is entitled to just compensation of property taken, which is equal to the fair market value, offset by any benefit they received to the rest of their property. Here, the Hornes' benefited from the general regulatory scheme. Their raisin prices are likely higher due to the government's maintenance of the market. Thus, the case should be remanded to determine whether the benefit the Hornes receive from the reserve requirement regulation amounts to just compensation.
(a) Rule: When land-use regulation denies an owner economically viable use of his land so long as the use the plaintiff is seeking is permissible under relevant state and nuisance doctrine AND there is no pre-existing limitation in the title that implies "that the state may subsequently eliminate all economically valuable use."
(b) Facts: In 1986, David Lucas purchased two lots fronting on the ocean for $975,000 intending to build single family homes on them. Other homes had been built next to the undeveloped property he purchased, and at the time of purchase, he was not legally obligated to obtain a permit from the Council in advance of any development activity. However, in 1988, before he began construction, South Carolina passed a regulatory law that had the effect of prohibiting development on his land. Lucas filed suit claiming that this was a taking of his property without just compensation. He did not contend that the legislative act was an unlawful use of the police power's exercise, but he contended that regardless of whether the legislature had acted in furtherance of legitimate police power objectives, he was entitled to just compensation.

(c) Issue/Holding: May a state enact a regulation that results in the complete destruction of economic value of private property without paying just compensation to the owner? No, if the state regulates the land so as to deprive it of all beneficial use, then the regulation constitutes a taking and the owner must be paid just compensation, so long as the use the plaintiff is seeking is not previously regulated in their title and is legal according to all state property and nuisance laws.
(d) Justice Scalia's Majority:
(i) In his majority, Scalia announces a second categorical rule, where regulation denies all economically beneficial or productive use of land, then this is a taking per se and deserves just compensation so long as the proscribed use interests were not part of his title to begin with.

1. Scalia argued that "total deprivation of beneficial use is, from the landowner's point of view, the equivalent of physical appropriation," and that should be treated like a categorical taking "without case-specific inquiry into the public interest advanced in support of the restraint." However, the language is amorphous, subject to more than one meaning.

a. Two ways to read the majority:
i. Regulation has deprived the owner of the all economic value of property denominator looms large
ii. Regulation has deprived owner of right to engage in total productive use of property denominator not as large

iii. In Murr v. Wisconsin (Supreme Court, 2017) the Supreme Court announced another list of factors that must be considered in order to determine the correct denominator
2. How to determine if something inheres in title?
a. Nuisance Law: State nuisance law is the first factor to determine if something inheres in title
i. Note, Can South Carolina just add provision saying beachfront development is a nuisance? Likely no, he seems to think that it is mainly a matter for courts.
b. Incentives: If this is not considered a taking might encourage ppl to develop more quickly

i. "Seems unlikely that these common law principles would've prevented the erection of any habitable or productive improvements on petitioners land", but this is a question for the state of SC. Sends it back to determine if the right to build was within his title or nuisance-like

(e) Justice Kennedy's Concurring:
(i) Kennedy argues that common law of nuisance is too narrow to rely on for exercise of regulatory power in a complex and interdependent society, and that there are other things besides nuisance that would not necessarily exist in owner's title.
(f) Justice Blackmun's Dissent: "Today the court launches a missile to a mouse."

(i) Blackman agrees that a taking which totally deprives one of any economic value is a substantial burden on private interest, but that it is still possible for it to be offset because of the public benefits: "A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health morals or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property.
(ii) Blackmun relies heavily on original understanding of taking and argues that state courts have historically been less likely to find a taking when land is undeveloped. Furthermore, he points out that there was no common law limit on regulation of harmful uses even when there is a total wipeout of value. This is a harmful use.
(iii) Blackmun argues that majority is picking and choosing precedent and is not mindful of the fact that land use regulations change over time.

(g) Justice Stevens Dissent:
(i) Stevens argues that the total deprivation rule is arbitrary because someone whose property value is diminished 95% will not recovery anything, while owner whose property value is decreased 100% recovers the land's full value.
(ii) This runs into the denominator problem - of what are we determining whether or not there is a total wipeout?
(iii) This creates incentivizes for owners to divide states in a way that take advantage of this rule by making the denominator smaller so that the entire economic value of the property has been seemingly wiped out.
(iv) The just compensation clause was designed to bar single individuals from bearing public burdens, and this was not borne by just Lucas but by all property owners. Stevens engages in Penn Central ad hoc inquiry and finds that "even assuming that petitioner's property was rendered valueless, the risk inherent in investments of the sort made by petitioner, the generality of the Act, and the compelling purpose motivating the South Carolina Legislature persuade me that the Act did not effect a taking of petitioner's property.
i) Rule: An owner's interest in property may be forfeited due to an unlawful use of the property even if the owner had no knowledge of such use.

ii) Facts: Mr. Bennis was arrested for engaging in a sexual act with a prostitute in a car that he co-owned with his wife, Mrs. Bennis (defendant). The State of Michigan (plaintiff) sued the Bennises to have the car declared a public nuisance and confiscated under Michigan law. Mrs. Bennis claimed that she had no knowledge of Mr. Bennis's activities in the car so her ownership interest in the car should not be taken. The Wayne County Circuit Court ruled in favor of Michigan and the Michigan Supreme Court affirmed. Mrs. Bennis appealed.

iii) Issue/Holding: Does a forfeiture of a property interest due to unlawful use of the property of which the owner has no knowledge constitute a taking in violation of the Takings Clause? No. A forfeiture of property to the government because of an unlawful use of the property is not an unconstitutional taking even when the owner had no knowledge of the unlawful use. On the contrary, forfeiture is a valid governmental act to prevent certain uses of property that "may be regarded as so undesirable that the owner surrenders his control at his peril."

iv) Chief Justice Rehnquist Majority:
(1) Rehnquist relies heavily on precedent to argue that this possession of Mrs. Bennis' ownership was constitutional: "A long and unbroken line of cases holds that an owner's interest in property may be forfeited by reason of the use to which the property is put even though the owner did not know that it was to be put to such use."
(2) Rehnquist ended by saying "[w]e conclude today, as we concluded 75 years ago, that the cases authorizing actions of the kind at issue are "too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced."
(a) Why did the court refuse to overrule precedent here?
(i) Law enforcement makes a ton of money off of civil forfeitures, but this can be viewed both ways.
1. On one hand, our society is built on the assumption of a functioning law enforcement and we should not overrule something that helps finance it.
2. On the other hand, the overwhelming amount of money that law enforcement makes off of this can be viewed as a negative incentive for law enforcement that would lead them to cease property for the sake of making money, instead of protecting the public.
v) Justice Ginsberg Concurring: Although it is questionable as to whether Mrs. Bennis is entitled to a share of the sale proceeds of the car, the Court is correct in noting that the car is so old that the value of Mrs. Bennis's share would have been "practically nothing" after the subtraction of costs.
vi) Justice Thomas Concurring: This case serves as a reminder that the Constitution does not protect against every undesirable or unfair result. Forfeiture of innocent parties' property interests as is the case here has been permitted for over 200 years.

vii) Justice Stevens Dissenting:
(1) There are three permissible categories which are subject to seizure: pure contraband, proceeds of criminal activity, and tools of criminal trade. While this case falls into the third category, it differs from historical cases in two important ways: 1) car wasn't used to carry forbidden or smuggled goods, and 2) the vehicle/property did not facilitate the criminal activity. It could have occurred in numerous locations. This brings up distinction between fundamental between suits in rem v. suits in personam.
(a) In Rem: A term meaning "against a thing," used to describe actions or proceedings concerning property rather than people. The term is typically used in cases to determine title to or interests in property within the court's territorial jurisdiction that are brought against the property itself, not against the people who own it.
(b) In Personam: A term meaning "against a person," referring to the power of a court to exercise jurisdiction over a person.