ELEMENTS B POWER POINT SLIDES

ELEMENTS B POWER POINT SLIDES Class #30 Wednesday, November 11, 2015 National Sundae Day & Veterans Day

SHOW BOAT (1927)Music by Jerome KernBook & Lyrics by Oscar Hammerstein II1994 Broadway Cast Album Now Posted on Course Page: • Complete Assignment Sheet • Assmt #3: Comments/Best Answers • Exam-Taking Workshop: • Power Point Slides • Link to Video • Exam Question III: Bank of Old Qs • Office Hours Schedule Thru 12/1 Office Hours This Week • Today 10-12 • Tomorrow 9:30-11 Friday Class: 9:25-10:50

Mahon Analysis cont’d

Mahon Analysis: Holmes MajorityVery Narrow Holding A Gov’t Regulation is a Taking Where It: • Extinguishes a property right specifically contracted for by O; • renders O’s remaining property rights valueless; • is not addressing safety issue; • is not addressing widespread public harm; AND • does not create reciprocity of advantage.

Mahon Analysis: Holmes MajorityExplore Possible Broader Holdings by • Looking at the ways Justice Brandeis disagrees with Justice Holmes re • Diminution in Value (DQ3.14) • Public Nuisance (DQ3.15) • Reciprocity of Advantage (DQ3.16) • Looking at Important Language in Maj. Opinion • Will Yield Possible Rules: DQ3.17

Mahon Analysis: Holmes & BrandeisDQ3.14: Height Restrictions(Krypton) Measuring Loss of Value: Quick Recap • HMS argument similar to Kelso • Relevant property here is mineral rights • Assumes Act reduces value to 0  Taking • BDS disagrees for two reasons • Doesn’t accept that value of mineral rights is 0 • Need to view mineral rights in context of “value of all other parts of the land.” (last para. p. 119)

Mahon Analysis: Holmes & BrandeisDQ3.14: Height Restrictions(Krypton) Measuring Loss of Value • BDS: Need to view mineral rights in context of “value of all other parts of the land.” • Look at value of coal and surface together, not value of coal alone • Why? Owner can’t get more rights v. Gov’t by dividing land. • Example/Analogy: Height Restrictions

Mahon Analysis: Holmes & BrandeisDQ3.14: Height Restrictions(Radium) Measuring Loss of Value • BDS Example/Analogy: Height Restrictions • Like Kohler Act, forbid use of part of parcel • BUT conceded to be valid/Constitutional • Height restrictions not characterized as: “Value of air rights reduced to 0.”

Mahon Analysis: Holmes & BrandeisDQ3.14: Height Restrictions(Radium) Measuring Loss of Value • BDS Example/Analogy: Height Restrictions • p.119-20: “[N]o one would contend that by selling his interest above 100 feet from the surface he could prevent the state from limiting, by the police power, the height of structures in a city. And why should a sale of underground rights bar the state’s power?” • We’ll revisit issue in Penn Central.

Mahon Analysis: Holmes & BrandeisDQ3.14: Height Restrictions(Radium) Measuring Loss of Value • Example of “Denominator Q”: How Do You Decide Relevant Piece of Property to Value? • BDS: Look at whole parcel top to bottom • Important Argument for Denominator Q: Dividing property shouldn’t affect gov’t power to regulate • HMS: Doesn’t explicitly address BDS approach

Mahon Analysis: Holmes & BrandeisDQ3.14: Height Restrictions(Radium) Measuring Loss of Value • What is Relevant Piece of Property to Value? • BDS: Look at whole parcel top to bottom • HMS: Doesn’t explicitly address BDS approach • Might disagree, believing should just look at what this O has • Might agree with approach but still think CCs should win b/c • Coal much more valuable than surface rights; and/or • Loss in value of coal much greater than BDS believes

Mahon Analysis: Holmes & BrandeisDQ3.14: Height Restrictions(Radium) Measuring Loss of Value • What is Relevant Piece of Property to Value? • BDS: Look at whole parcel top to bottom • HMS: Doesn’t explicitly address BDS approach QUESTIONS?

Mahon Analysis: Holmes & BrandeisDQ3.15: Public Nuisance (Krypton) • HMS: No Public Nuisance in Case: • Only one house; not common or public damage. • Not safety issue because of notice. • Shouldn’t protect people who took risk of only purchasing surface rights.

Mahon Analysis: Holmes & BrandeisDQ3.15: Public Nuisance (Krypton) • HMS: No Public Nuisance in Case: • BDS disagrees; characterizes as “noxious use” and Public Nuisance • Act includes public buildings, etc. as well as houses • Notice not enough to protect public interest in safety • Should defer to Legisl. on need for safety measure • Interest can be “public” even if helps private parties

Mahon Analysis: Holmes & BrandeisDQ3.15: Public Nuisance (Krypton) • HMS: No Public Nuisance in Case: • BDS says Public Nuisance/noxious use: • Significance if Considered “Public Nuisance”? • BDS: OK to regulate to prevent Public Nuisance even if deprives O of only profitable use • HMS: Nothing in majority suggests he disagrees on legal significance, just on reading of facts

Mahon Analysis: Holmes & BrandeisDQ3.15: Public Nuisance (Krypton) • Significance if Considered “Public Nuisance”? • BDS: Constitutional to regulate to prevent Public Nuisance even if deprives O of profitable use • HMS: Nothing in majority suggests he disagrees on legal significance, just on reading of facts • Questions?

Mahon Analysis: Holmes & BrandeisDQ3.16: Reciprocity (Uranium) • P and state relied on Plymouth Coal : US SCt upheld state requirement that CCs, when mining, leave enough coal in place to serve as pillars between mines. (top p.118) • Holmes distinguishes: • involved safety of miners plus: • “secured an average reciprocity of advantage”

Mahon Analysis: Holmes & BrandeisDQ3.16: Reciprocity (Uranium) “Average Reciprocity of Advantage” • Benefit resulting precisely from fact that others are restricted in the same way • Not just general benefit from the regulation • Can see as an aspect of diminution in value • Get something back, so less diminution • Example/Subset of Epstein’s “Implicit Compensation”

Mahon Analysis: Holmes & BrandeisDQ3.16: Reciprocity (Uranium) “Average Reciprocity of Advantage” • Benefit resulting precisely from fact that others are restricted in the same way. (Notjust general benefit from the regulation.) • E.g., Plymouth Coal: Purpose: prevent cave-ins where two mines meet. • I lose some coal because I can’t mine to property line; benefits neighboring mine, which doesn’t collapse • He loses some coal because hecan’t mine to property line; benefits my mine, which doesn’t collapse.

Mahon Analysis: Holmes & BrandeisDQ3.16: Reciprocity (Uranium) “Average Reciprocity of Advantage” • Benefit resulting precisely from fact that others are restricted in the same way. (Notjust general benefit from the regulation.) • E.g., City Ordinance: Storeowners in Business District must keep sidewalk in front clear of snow • I have to use labor to comply; might not be worth it for my store alone; benefits all neighboring stores • Neighbors have to use labor to comply; might not be worth it for their store alone; benefits me & other neighboring stores • E.g., Residential Only Zoning: No Commercial Uses

Mahon Analysis: Holmes & BrandeisDQ3.16: Reciprocity (Uranium) “Average Reciprocity of Advantage” • Benefit resulting precisely from fact that others are restricted in the same way. • Not just general benefit from the regulation. • General benefits = “Rainbows”

Mahon Analysis: Holmes & BrandeisDQ3.16: Reciprocity (Uranium) “Average Reciprocity of Advantage” • Benefit resulting precisely from fact that others are restricted in the same way. • Not just general benefit from the regulation. • General benefits = “Rainbows” • Not Reciprocity: Hadacheck • I have to shut down brickworks; benefits all neighboring lots byreducing pollution. • No corresponding restriction on neighbors. I benefit from regulation, if at all, from general benefit: cleaner air in LA.

Mahon Analysis: Holmes & BrandeisDQ3.16: Reciprocity (Uranium) “Average Reciprocity of Advantage” • Benefit resulting precisely from fact that others are restricted in the same way. (Notjust general benefit from the regulation.) • BDS: Reciprocity only matters if challenged state law is conferring a benefit, not if it is preventing harm. (top para. p.121) • Remember Harm/Benefit Distinction for Penn Central.

Mahon Analysis: Holmes & BrandeisDQ3.16: Reciprocity (Uranium) • (top p.121) “There was no reciprocal advantage [in Hadacheck] to the owner prohibited from using his ... brickyard, … unless it be the advantage of living and doing business in a civilized community. That reciprocal advantage is given by the act to the coal operators.”

Mahon Analysis: Holmes & BrandeisDQ3.16: Reciprocity (Uranium) • “the advantage of living and doing business in a civilized community” • Not how Holmes or I use the term “reciprocity.” Only use where specific benefits to one regulated party arise from burdens on other regulated parties.

Mahon Analysis: Holmes & BrandeisDQ3.16: Reciprocity (Uranium) “Average Reciprocity of Advantage” • Benefit resulting precisely from fact that others are restricted in the same way. (Notjust general benefit from the regulation.) • BDS: Reciprocity only matters if challenged state law is conferring a benefit, not if it is preventing harm. Questions?

Mahon Analysis: Holmes MajorityExplore Possible Broader Holdings by • Looking at ways BDS disagrees with HMS re • Diminution in Value (DQ3.14) • Public Nuisance (DQ3.15) • Reciprocity of Advantage (DQ3.16) • Looking at Important Language in Majority Opinion • Will Yield Possible Rules: DQ3.17

Key Language in Majority Opinion in Mahon “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.” -- (2d para. p.117) Means: Not every loss in property value = Unconstitutional Taking

Key Language in Majority Opinion in Mahon “[A] strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” -- (middle para. p.118) Means: A regulation is not necessarily Constitutional just because its purpose is important.

Mahon Analysis: Holmes MajorityExplore Possible Broader Holdings by • Looking at ways BDS disagrees with HMS re • Diminution in Value (DQ3.14) • Public Nuisance (DQ3.15) • Reciprocity of Advantage (DQ3.16) • Looking at Important Language in Maj. Opinion • Will Yield Possible Rules: DQ3.17

DQ3.17: Mahon Rules& Holding (Oxygen) POSSIBLE RULES: AT LEAST… • If diminution in value “goes too far” = Taking • If all value gone [and no safety issue]= Taking • If reciprocity of advantage, no Taking • If regulation destroys Property rights that were specifically contracted for = Taking

DQ3.17: Mahon Rules & Holding :Balancing Test? • Some students read caseto say courts should decide Takings claims by balancing public interest behind challenged restriction against harm to property rights. • Some study guides/published briefs agree. • Need to be careful; b/c you often use balancing tests in torts & elsewhere, may have instinct to use as default.

DQ3.17: Mahon Rules & Holding :Balancing Test? • Some students read to require balancing test. • Some study guides/published briefs agree. • Concerns: • You often use balancing tests in Torts & elsewhere; may have instinct to use as default rule. • As was true with publishedGhen brief, published sources not always reliable • Let’s look more closely

DQ3.17: Mahon Rules & Holding :Balancing Test? What a Balancing Test Looks Like: • Careful evaluation of State’s interest • Careful evaluation of harm to property owner • Discussion of which is more significant & why

DQ3.17: Mahon Rules & Holding :Balancing Test? • What a Balancing Test Looks Like: • Careful evaluation of State’s interest • Careful evaluation of harm to property owner • Discussion of which is more significant & why • Hadacheck language re progress might suggest balance, but notwhat case does: • Discussion of state’s interest very general (police powers v. specific health concerns) • No discussion about importance of brickmaking

DQ3.17: Mahon Rules & Holding :Balancing Test? • What a Balancing Test Looks Like: • Careful evaluation of State’s interest • Careful evaluation of harm to property owner • Discussion of which is more significant & why • Hadacheck language re progress might suggest balance, but notwhat case does. • Better read of language: A regulation is not a Taking just because it interferes with an existing long-established use

Key Language in Majority Opinion in Mahon:Balancing Test? “If we were called upon to deal with the plaintiffs’ posi-tion alone we should think it clear that the statute does not disclose a public interest sufficient to warrant so extensive a destruction of the defendant’s constitutionally protected rights.” (3d para. p.117) Language arguably looks like balance • Public interestisnot “sufficient” • Harm to owner is “so extensive”

Key Language in Majority Opinion in Mahon:Balancing Test? “If we were called upon to deal with the Ps’ position alone we should think it clear that the statute does not disclose a public interest sufficient to warrant so extensive a destruction of the D’s constitutionally protected rights.” Hard to evaluate significance • On its face, this language is dicta • Case doesn’t really attempt thorough balance • Minimizes public interest as small & unfair • Sees private harm as total deprivation of rights • So pretty trivial balance

Key Language in Majority Opinion in Mahon:Balancing Test? “If we were called upon to deal with the Ps’ position alone we should think it clear that the statute does not disclose a public interest sufficient to warrant so extensive a destruction of the D’s constitutionally protected rights.” You can use passage to support balancing test • BUT if you do, best to acknowledge problems • Be aware later cases (e.g., Penn Central) don’t read Mahon to balance

DQ3.17: Mahon Rules & Holding Possible Readings of Hadacheck • Regulation OK if under Police Power? • Regulation OK if Preventing Public Nuisance? • Regulation OK if Protecting Health/Safety • Argument from Kelso: OK if Value Left • Regulation OK if Furthering Progress

DQ3.17: Mahon Rules& Holding Possible Readings of Hadacheck: Effect of Mahon • Regulation OK if under Police Power? • Regulation OK if Preventing Public Nuisance? • Regulation OK if Protecting Health/Safety • Argument from Kelso: OK if Value Left • Regulation OK if Furthering Progress

Relevant Considerations in Takings Cases Survey About What Facts Matter • Ban on Intended Use (90%) • % Reduction in Value (88%): Mahon (Generally • $$$ Amount Reduction(59%) & Reciprocity) • Purpose of Regulation (63%) = Hadacheck (Police Powers); Sax (Enterpriser v. Arbiter; Stopping Spillovers); Mahon (Stopping Public Nuisance) • $$$ Amount Left (56%) = Kelso (maybe Hadacheck); Mahon (Zero Value) • Return on Investment (39%)

Friedman Article on Mahon DQ3.19 Some New Info from Friedman Article: • Mahons were original buyers; held land for 43 years; he was atty so understood deed • CCs in practice had often left surface in place despite subsidence rights • Whole chunks of Scranton on the verge of collapse. • Under Penn laws, CCs had choice to exercise subsidence rights and pay damages to surface Os. • Other things striking to you?

Friedman Article on Mahon DQ3.19 How Does Info from Friedman Article Affect the Way You Should Read Mahon? • Might change your view of dispute, but as a legal matter, shouldn’t change how you read case at all. • For purposes of reading case, facts are what court says they are. No different than: • Ignoring fox in well when interpreting Pierson • Ignoring facts of Liesnerthat aren’t in WiscSCt opinion.

FINAL EXAM QUESTION 3 OPINION/DISSENT FORMAT 2014 Instructions • Based on the information presented on the next two pages, compose drafts of the analysis sections of a majority opinion for the U.S. Supreme Court and of a separate dissent, deciding whether there was an unconstitutional Taking of Ashley’s property. … • Assume that the record supports the trial court's findings of fact. Assume that the Supreme Court Takings cases assigned for the course (up to and including Penn Central) constitute the available precedent. The opinions you compose also may discuss the Takings theorists we have studied to the extent you find their work relevant.

FINAL EXAM QUESTION 3 OPINION/DISSENT FORMAT • Requires You to Describe and Defend Two Positions

FINAL EXAM QUESTION 3 OPINION/DISSENT FORMAT • Requires You to Describe and Defend Two Positions • Must Show that You Understand Range of Relevant Arguments Arising from Line of Takings Cases

Skills: Applying Legal Authority to New Sets of Facts 1. Applying Language (Rules, Factors, Elements) 2. Comparing Facts 3. Applying Relevant Policies

ELEMENTS B POWER POINT SLIDES