Mahon Analysis: Holmes Majority Explore Possible Broader Holdings by

1. SHOW BOAT1994 Broadway Cast AlbumMusic by Jerome KernBook & Lyrics by Oscar Hammerstein IIFirst Produced: 1927

2. Mahon Analysis: Holmes MajorityExplore Possible Broader Holdings by • Looking at ways BDS disagrees with HMS re • Diminution in Value (DQ108) • Public Nuisance (DQ109) • Reciprocity of Advantage (DQ110) • Looking at Important Language in Maj. Opinion • Will Yield Possible Rules: DQ111

3. DQ111: Mahon Rules& Holding (Krypton) 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

4. DQ111: 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

5. DQ111: 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 we saw with publishedGhen brief, published sources not always reliable • Let’s look more closely

6. DQ111: 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

7. DQ111: 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

8. DQ111: 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

9. 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 constitu-tionally protected rights.” (end of 3d para. p.108) Language arguably looks like balance • Public interestisnot “sufficient” • Harm to owner is “so extensive”

10. 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

11. 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

12. DQ111: Mahon Rules& Holding (Krypton) 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

13. DQ111: Mahon Rules& Holding (Krypton) 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

14. Relevant Considerations in Takings Cases §B Survey About What Facts Matter (68 Responses) • Ban on Intended Use (61) • % Reduction in Value (61): Mahon (Generally • $$$ Amount Reduction (42) & Reciprocity) • Purpose of Regulation (37) = Hadacheck (Police Powers); Sax (Enterpriser v. Arbiter; Stopping Spillovers); Mahon (Stopping Public Nuisance) • $$$ Amount Left (29) = Kelso (maybe Hadacheck); Mahon (Zero Value) • Return on Investment (18)

15. Friedman Article on Mahon DQ112: (Uranium) 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.

16. LOGISTICS: CLASS #31 • Group Written Assignment #1: • My Comments on 1st Two Qs Will Be Available This Afternoon on Course Page (Follow Instructions There) • I won’t take Qs about until whole thing graded.

17. LOGISTICS: CLASS #31 • Group Written Assignment #3 • Due Sunday @ 4:00 pm. • If Qs about the three approaches, look at slides • Coordinators: • Send to Letty Tejeda’s e-mail address • Double-check instructions before finalizing • Qs on Assignment? (Last Opportunity)

18. LOGISTICS: CLASS #31 Mon/Tue 11/12-13: Meet 8:00-9:10 • Info on Elective Choice • Intro to Exam Question 3 • Intro to Penn Central: DQ124 (Krypton) • Pick up Miller where we leave off today (Radium) • Other 1920s Cases (Krypton) • Probably Start Michaelman (Oxygen)

19. URANIUMTakings Theorist #2:Richard Epstein& DQ113-14

20. Takings Theorists: Richard EpsteinDQ113 (Uranium) Would only allow gov’t acts to limit property rights without compensation in 2 situations: (1) Nuisance Controls-OR- (2) Implicit Compensation • Includes “Reciprocity of Advantage” • Includes Other Benefits Created by Regulatory Scheme (e.g., Tax Breaks)

21. Mahon Analysis: Holmes & BrandeisDQ110: Reciprocity (Revisited) “Average Reciprocity of Advantage” • Benefit to party burdened by a law resulting precisely from same burden placed on others. • Not just general benefits to society from the regulation (“Rainbow” Benefits) • Examples • Plymouth Coal: Coal pillars between mines • Snow removal by urban stores • Similar re urban stores & lights on at night to stop burglary (Jacobson)

22. Mahon Analysis: Holmes & BrandeisDQ110: Reciprocity (Revisited) “Average Reciprocity of Advantage” Other Examples from Kryptons & Me: • Residence-Only Rules in Suburban Zoning • Similar re requirements re preserving trees (Bell) • Salvage (roughly Criste) • Requirements that Dogs be on Leash (Lanza) • Some general benefits to non-dog owners • Specific benefits to other dog-owners out at same time

23. Takings Theorists: Richard EpsteinDQ113 (Uranium) Would only allow gov’t acts to limit property rights without compensation in 2 situations: (1) Nuisance Controlsor (2) Implicit Compensation Both arguably contract-based: Contracts we’d expect to be negotiated if no transaction costs (1) Collective buyout in nuisance case (2) Group negotiation in reciprocity case

24. Takings Theorists: Richard EpsteinDQ114 (Uranium) Would only allow gov’t acts to limit property rights without compensation in 2 situations: (1) Nuisance Controlsor (2) Implicit Compensation Application to Hadacheck?

25. Takings Theorists: Richard EpsteinDQ114 (Uranium) Would only allow gov’t acts to limit property rights without compensation in 2 situations: (1) Nuisance Controlsor (2) Implicit Compensation Application to Hadacheck? Probably Paradigm Nuisance Control Case

26. Takings Theorists: Richard EpsteinDQ114 (Uranium) Would only allow gov’t acts to limit property rights without compensation in 2 situations: (1) Nuisance Controlsor (2) Implicit Compensation Application to Mahon? Depends on Whether You Accept Holmes’s Characterization

27. Takings Theorists: Richard EpsteinDQ114 (Uranium) Would only allow gov’t acts to limit property rights without compensation in 2 situations: (1) Nuisance Controlsor (2) Implicit Compensation Application to Airspace Solution to Hammonds Problem?

28. Takings Theorists: Richard EpsteinDQ114 (Uranium) Application of Epstein to Airspace Solution to Hammonds Problem? • Might say Hammonds’s refusal to allow use of reservoir is like a nuisance b/c it increases expense and safety hazards for gas cos. • BUT Epstein likely to want her to be compensated: • not traditional nuisance b/c harm doesn’t stem from her use of her own land. • Only compensation to her is general benefit to society of lower energy costs (Rainbow) • Note conversation in B1: On same reasoning, you’d expect Epstein to want compensation for surface owners when airspace taken for planes. I suggested that he might agree not to compensate b/c administrative costs of paying would be so high (identify each relevant surface owner, value the air rights; set up a system to pay, etc.)

29. Takings Theorists: Richard EpsteinDQ113 (Uranium) Would only allow gov’t acts to limit property rights without compensation in 2 situations: (1) Nuisance Controlsor (2) Implicit Compensation . Strengths & Weaknesses of This Approach? • Fewer relevant considerations than Supreme Court uses • Categories both leave lots of room for argument (Mottin-Berger) • Very Protective of Landowner Rights; Promotes Investment (Simowitz) • Very Limiting to Govt Power (Simowitz). Regulations for, e.g., Historic Preservation, Wildlife Preservation, would probably require compensation.

30. Radium:Miller v. Schoene& DQ115-18

31. Miller v. SchoeneDQ115: Introduction (Radium) Gov’t Action = Cedar Rust Act:State Entomologist can order diseased cedar trees cut down. State pays for removal but not for loss in value. Purpose? • Legitimate (Connected to HSWM)? • Action rationally related to purpose?

32. Miller v. SchoeneDQ115: Introduction (Radium) Gov’t Action = Cedar Rust Act:State Entomologist can order diseased cedar trees cut down. Purpose: Save apple trees from spread of cedar rust disease; help big apple industry • Legitimate? YES. Helping apple growers and state economy = WELFARE. • Action rationally related to purpose? YES. MEETS MINIMAL RATIONAL BASIS SCRUTINY

33. Miller v. SchoeneDQ115: Introduction (Radium) Gov’t Action = Cedar Rust Act:State Entomologist can order diseased cedar trees cut down. State pays for removal but not for loss in value. Limits on petitioners’ use of their property? Remaining Uses? Harm to Petitioners?

34. Miller v. SchoeneDQ115: Introduction (Radium) Gov’t Action = Cedar Rust Act:State Entomologist can order diseased cedar trees cut down. State pays for removal. Petitioners’ use of their property: • Cedar trees must be cut down; can do anything else with land; can do anything with wood. • Some value of tree/wood may be lost • Aesthetic loss could mean loss in land value I’ll leave Demsetz Takings Story for You

35. Miller v. Schoene : Introduction Procedural Posture • Order from state official to cut trees • Appeal to State Circuit Court, which affirmed order • Virginia SCtaff’d: No violation of U.S. Constitution • Writ of Error to US SCt (same as in Hadacheck & Mahon)