ELEMENTS B1 & B2 POWER POINT SLIDES Class #34 Monday, November 14, 2016 Tuesday, November 15, 2016

SHOW BOAT (1927) Music by Jerome Kern Book & Lyrics by Oscar Hammerstein II 1994 Broadway Cast Album 2015 XQIII: Based on the information presented here, 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 Lauren’s property.

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OPINION/DISSENT FORMAT FINAL EXAM QUESTION 3 OPINION/DISSENT FORMAT 2015 Instructions Based on the information presented here, 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 Lauren’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 write also may discuss the Takings theorists we have studied to the extent you find their work relevant.

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

OPINION/DISSENT FORMAT 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

Applying Language (Rules, Factors, Elements)  Skills: Applying Legal Authority (Line of Takings Cases) to New Sets of Facts Applying Language (Rules, Factors, Elements)  Must be Consistent with Whole Line, Not Just Individual Case Need to Adjust Your Notes/Outline After Each New Case 2. Comparing Facts: 3. Applying Relevant Policies

Applying Language (Rules, Factors, Elements)  Comparing Facts: Skills: Applying Legal Authority (Line of Takings Cases) to New Sets of Facts Applying Language (Rules, Factors, Elements)  Comparing Facts: Often Useful to Compare to Two Cases with Different Results More Like Hadacheck Than Like Mahon Because … 3. Applying Relevant Policies

Applying Language (Rules, Factors, Elements)  Comparing Facts: Skills: Applying Legal Authority (Line of Takings Cases) to New Sets of Facts Applying Language (Rules, Factors, Elements)  Comparing Facts: 3. Applying Relevant Policies Remember NOT looking at policy used by legislature to create challenged law Relevant policy addresses what kinds of gov’t interference with property rights require compensation

OPINION/DISSENT FORMAT 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 Cases Must Understand Role of US Supreme Court (Useful for Justice or Clerk or Litigant) Deciding One Case, BUT Setting Rules for Many Can Choose to Affirm or Modify Precedent BUT Must Defend Need to Resolve One or More Difficult Open Qs (We’ll Identify As We Go)

OPINION/DISSENT FORMAT FINAL EXAM QUESTION 3 OPINION/DISSENT FORMAT Look at Posted Examples We’ll Discuss at More Length & Do Review Problems Identifying and Targeting Difficult Open Legal Qs I’ll take Qs in Class Later & at Review Session After You’ve Had Some More Exposure. In Meantime, Can Ask Qs Outside of Class or by E-Mail. Remember: Primarily Advanced Version of Skills From XQI & XQII Only Four Primary Cases

Mid-September Crisis

Mid-October Crisis

Mid-November Crisis ELEMENTS 31 Days Civil Procedure TORTS CONTRACTS Whales OUTLINES Demsetz Foxes Mid-November Crisis ROSE HELP! Civil Procedure ELEMENTS TAKINGS Diversity FOOD Worldwide Volkswagen Consideration Res Ipsa Loquitur Elephant in a Cornfield GRADES! TORTS SWEET Proximate Cause Rescission CONTRACTS My Leg Itches Sleep? Erie Abandonment by Compulsion Duty of Care

YOUR SCHEDULE Mon 11/14: L. Comm. Final Project Due Wed 11/23-Sun 11/27: T-Giving Break Tue 11/29: Elements Review Session A110 @7:55; Last Day of Classes (Contracts) Fri 12/2: Elements Exam (AM) Wed 12/7: Contracts Exam (PM) Mon 12/12: Civ Pro Exam (AM) Thu 12/15: Torts Exam (AM)

YOU HAVE MORE TIME THAN YOU THINK YOU DO Schedule Prep Time for All Four Classes Here to Nov 29: End of L.Comm. = More Week in Your Week Keep Going to Classes T-Giving = 1 Day Off & 4 Days Work 2+ Days of Total Focus Before Each Test WARNING: Short Turn-Around betw CivPro & Torts & You’ll Be Tired After 3 Exams, So Plan on Torts for 1st Day after Contracts and/or Get much of Torts Prep done during Thanksgiving

USE OLD EXAMS Do Some Under Exam Conditions You’ll Likely Never “Feel Ready”; Build in Time to Do Anyway Look at Old Model Answers if Available Evidence of Kind of Answer Professor Likes BUT Generally Imperfect & Incomplete If Questions Remain Afterward, Ask! E-Mail or Bring to Office Hrs I’ll Always Take Specific Qs I Can’t Look at Written Answers from 74 People

OTHER EXAM PREP TIPS Slides from Exam Workshop on Course Page Checklists for Open Book Exams Make Time for Group Work Go to Office Hours/Review Sessions My Office Hours 11/26-12/1 on Course Page My Review Session Tue 11/29 Here @ 7:55 A Little More on Substance of Unit III Exam Technique for Each Q A Few Helpful Details re Format of Your Actual Test

POINTS SPECIFIC TO ELEMENTS Concern w Being First Exam Most of You Will Be Extremely Wired Breathe & Read Carefully Take Advantage of Range of Feedback & Info Slides, Self-Quizzes, Sample Briefs Comments & Best Answers re Old Exam Qs & GWAs Enough Time to Reread Key Cases

Peace of Mind Tips Now to Dec. 15: You Need to Sleep Ignore Rumor Mill Reminder re The First Year “Grade Curve” September 2018 You Have to Work Both Hard and Efficiently BUT

YOU CAN DO THIS !

Pennsylvania Coal Co. v. Mahon Introduction to Case and Arguments from Earlier Precedent (continued)

Mahon: Externalities & Contract Rights Direct harm to surface owners not an externality b/c not external to decisions/activities of CCs. BUT Externalities beyond direct harm to surface owners Also may worry K price may not reflect real value to society even of the specific land in Q Did purchasers have equal bargaining power (e.g., if coal company workers) Hard to value catastrophic harm many years away Maybe like sale of human organs, we simply don’t trust that market operates properly

Mahon: Externalities & Contract Rights Direct harm to surface owners not an externality b/c not external to decisions/activities of CCs. BUT Externalities beyond direct harm to surface owners Also may worry K price may not reflect real value Could do analysis like “Contract void as against public policy.” Don’t allow or don’t enforce Where K has large costs to non-contracting parties Where we don’t trust that K can be fair

Mahon DQ3.12: Demsetz Takings Story (Uranium) Decision: Undermine surface? Old Rule: OK if own subsidence rights Externalities: Harm to non-parties/society (lost value/dislocation) Changes  Increased Externalities?

Mahon DQ3.12: Demsetz Takings Story (Uranium) Decision: Undermine surface? Old Rule: OK if own subsidence rights Externalities: Lost value/Dislocation Costs Changes  Increased Externalities? Maybe: Cities/towns more developed; more lost value/dislocation More surface under contracts; more lost value/dislocation Mines approaching populated areas, so harms more imminent

Mahon DQ3.12: Demsetz Takings Story (Uranium) Decision: Undermine surface? Old Rule: OK if own subsidence rights Externalities: Lost value/Dislocation Costs Changes  Increased Externalities Rule Change: Kohler Act Losers under new rule (CCs) claim unconst. interference with property rights

Mahon DQ3.12: Demsetz Takings Story Reminder: Repeated Focus on Demsetz Takings Story Intended to Raise Question for You: Under what circumstances should the landowner bear the burden where changing conditions make her formerly permitted use of land more harmful to society or make the harms more apparent?

Mahon DQ3.12: Demsetz Takings Story Holmes (last paragraph of majority opinion): “The question … is upon whom the loss of the changes desired should fall. …”

Mahon DQ3.12: Demsetz Takings Story Holmes (last paragraph of majority opinion): “The question … is upon whom the loss of the changes desired should fall. So far as private persons or communities have seen fit to take the risk of acquiring only surface rights, we cannot see that the fact that their risk has become a danger warrants the giving to them greater rights than they bought.”

Mahon DQ3.12: Demsetz Takings Story Holmes (last paragraph of majority opinion): “So far as private persons or communities have seen fit to take the risk of acquiring only surface rights, we cannot see that the fact that their risk has become a danger warrants the giving to them greater rights than they bought.” One key Q going forward: In Hadacheck, owners purchased residential lots “taking the risk” of proximity to the factory. Why different than surface Os in Mahon?

Mahon Under Authorities We’ve Studied DQ3.13: Sax (OXYGEN) Facts of Mahon Under Sax Gov’t as Arbiter or Enterpriser? This a Hard Q. Why Hard to Resolve?

Mahon Under Authorities We’ve Studied DQ3.13: Sax (OXYGEN) Facts of Mahon Under Sax Gov’t as Arbiter or Enterpriser? Difficulties w Arbiter … Gov’t is one side of dispute in many instances here (Holmes 2d para. p.118: “short sighted”). Parties here have already contracted re subject of land use dispute (so one side is really asking gov’t to override the contract--i.e., transfer property rights--not merely to resolve a dispute parties couldn’t settle themselves).

Mahon Under Authorities We’ve Studied DQ3.13: Sax Facts of Mahon Under Sax 1. Gov’t as Arbiter or Enterpriser? Difficulties w Enterpriser… Dislocation harms from subsidence may fall on neighboring private landowners who did not contract with CCs (so real arbitration) 2. Preventing Spillover Effects: See analysis of externalities above.

Mahon Under Authorities We’ve Studied DQ3.13: Hadacheck (Oxygen) Facts of Mahon Under Hadacheck Purpose Arguments Regulation OK if under Police Power? Easy YES Reg. OK if Protecting Health/Safety? Harder (Notice) Reg. OK if Preventing Public Nuisance? See Discussion of DQ3.15 (Later Today) Kelso: OK if Value Left? Compare Holmes v. Brandeis re value

Mahon Under Authorities We’ve Studied DQ3.13: Hadacheck (Oxygen) Facts of Mahon Under Hadacheck Prior Use Can’t Stop Progress? Hard to Use CCs not really claiming rights through prior use Claiming rights through purchase Might argue can limit/eliminate old type of property interest to further progress of Penn cities/economy. Other (significantly different) arguments from Hadacheck? Qs on Mahon under prior Authority?

Mahon Analysis DQ3.14-3.18

Hadacheck v. Mahon: Focus of Analysis Hadacheck: Main focus = purpose of regulation Lots of scope if under police power BUT reference to Kelso implicates Q of what’s left

Hadacheck v. Mahon: Focus of Analysis Hadacheck: Focus on purpose Mahon: Focus on change in ppty value Explicitly looks at what’s been taken away Too great a “diminution in value” is a Taking NOTE: explicitly not drawing clear line Examine case by case to see if “goes too far” BUT some discussion of purpose (Holmes careful to say he sees no safety issue)

Mahon Analysis: Holmes Majority What Does “Too Far” Mean? Holmes’s Analysis: Subsidence Right defined as property right in Pa & specifically contracted for Loss of Subsidence Right effectively makes Mineral Rights valueless No safety issue (b/c notice) No issue of public harm: case about one house (though he goes on to address more) No “avg. reciprocity of advantage” (we’ll define later)

Mahon Analysis: Holmes Majority Very 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 Majority Explore 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 & Brandeis DQ3.14: Height Restrictions Measuring Loss of Value 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 & Brandeis DQ3.14: Height Restrictions 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. If Gov’t has power to regulate, why does division matter? Example/Analogy: Height Restrictions

Mahon Analysis: Holmes & Brandeis DQ3.14: Height Restrictions 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 & Brandeis DQ3.14: Height Restrictions 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 & Brandeis DQ3.14: Height Restrictions 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 Majority Explore 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 & Brandeis DQ3.15: 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 & Brandeis DQ3.15: 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 & Brandeis DQ3.15: 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 & Brandeis DQ3.15: 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 Majority Explore 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 & Brandeis DQ3.16: 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 & Brandeis DQ3.16: 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 Should View as Example/Subset of Epstein’s “Implicit Compensation”

Mahon Analysis: Holmes & Brandeis DQ3.16: 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.) 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 Neighbor loses some coal because neighbor can’t mine to property line; benefits my mine, which doesn’t collapse.

Mahon Analysis: Holmes & Brandeis DQ3.16: 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.) 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 & Brandeis DQ3.16: 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. We will call general benefits “Rainbows” Not targeted at landowners like claimant Make Everyone Happy 

Mahon Analysis: Holmes & Brandeis DQ3.16: 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 by reducing pollution. No corresponding restriction on neighbors. I benefit from regulation, if at all, from general benefit: cleaner air in LA.

Mahon Analysis: Holmes & Brandeis DQ3.16: 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.) 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 & Brandeis DQ3.16: Reciprocity (Uranium) BDS (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 & Brandeis DQ3.16: 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 & Brandeis DQ3.16: 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.) BDS: Reciprocity only matters if challenged state law is conferring a benefit, not if it is preventing harm. Questions?

Mahon Analysis: Holmes Majority Explore 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. My Examples: Opening/closing Military Bases Changes in Tax System

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. My Examples: Taking Land to Use for Military Bases See Causby (Discussed in Penn Central)

Mahon Analysis: Holmes Majority Explore 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 case to 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 published Ghen brief, published sources not always reliable Let’s look more closely

DQ3.17: Mahon Rules & Holding : Balancing Test? What Balancing Test Would Look 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 Balancing Test Would Look 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 not what case does: Discussion of state’s interest very general (police powers NOT 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 Not what 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 interest is not “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.” On exam, you can use passage to support balancing test BUT if you do, 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 Line of Cases  Reconsider Meaning of Earlier Cases In Light of Later Ones

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 (86%) % Reduction in Value (79%): Mahon (Generally $$$ Amount Reduction (46%) & Reciprocity) Purpose of Regulation (57%) = Hadacheck (Police Powers); Sax (Enterpriser v. Arbiter; Stopping Spillovers); Mahon (Stopping Public Nuisance) $$$ Amount Left (43%) = Kelso (maybe Hadacheck); Mahon (Zero Value) Return on Investment (32%)

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 Liesner that aren’t in Wisc SCt opinion.

Takings Theorist #2: Richard Epstein & DQ3.20-3.21

Takings Theorists: Richard Epstein 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 & TDRs in Penn Central)

Takings Theorists: Richard Epstein DQ3.20 Would only allow gov’t acts to limit property rights without compensation in 2 situations: (1) Nuisance Controls or (2) Implicit Compensation Both arguably contract-based: Contracts we’d expect to be negotiated if no transaction costs (cf. Coase Theorem) (1) Collective buyout in nuisance case (2) Group negotiation in reciprocity case

Takings Theorists: Richard Epstein DQ3.21 Would only allow gov’t acts to limit property rights without compensation in 2 situations: (1) Nuisance Controls or (2) Implicit Compensation Application to Hadacheck?

Takings Theorists: Richard Epstein DQ3.21 Would only allow gov’t acts to limit property rights without compensation in 2 situations: (1) Nuisance Controls or (2) Implicit Compensation Application to Hadacheck? Probably Paradigm Nuisance Control Case

Takings Theorists: Richard Epstein DQ3.21 Would only allow gov’t acts to limit property rights without compensation in 2 situations: (1) Nuisance Controls or (2) Implicit Compensation Application to Mahon? Depends on Whether You Accept Holmes’s Characterization

Takings Theorists: Richard Epstein DQ3.21 Would only allow gov’t acts to limit property rights without compensation in 2 situations: (1) Nuisance Controls or (2) Implicit Compensation Application to Airspace Solution to Hammonds Problem?

Takings Theorists: Richard Epstein DQ3.21 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 safety & lower energy costs (Rainbows)

Takings Theorists: Richard Epstein DQ3.21 Application of Epstein to Airspace Solution to Hammonds Problem? Might say Hammonds’s refusal to allow use of reservoir like a nuisance BUT Epstein likely to want her to be compensated: On same reasoning, Epstein might want compensation for surface owners when airspace taken for planes. Possible 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.) (we’ll discuss admin costs under Michelman)

Takings Theorists: Richard Epstein DQ3.20 Only allow gov’t acts to limit property rts without compensation if: (1) Nuisance Controls or (2) Implicit Compensation . Strengths & Weaknesses Include: Fewer relevant considerations than Supreme Court uses Categories both leave lots of room for argument Very Protective of Landowner Rights; Promotes Investment Very Limiting to Govt Power. Regulations for, e.g., Historic Preservation, Wildlife Preservation, would probably require compensation. Other Strengths/Weaknesses? Qs?