ELEMENTS B1 & B2 POWER POINT SLIDES Class #32 Wednesday, November 9, 2016 Thursday, November 10, 2016

The Essential Duke Ellington Duke Ellington & His Orchestra Disc 1: Music 1920s & 30s Rev Prob 2J: OXYGEN B2: Fontalvo; Fish; Beltran; Stevenson(Alt: Galavis) B1: Augustin; Wagner; Sharp-Dimitri; Robledo (Alt: Pita) Rev Prob 2J: KRYPTON B2: Ledbetter; Iglesia; Altobello; Valenti(Alt: J.Berman) B1: Rust; Goldberg; Walsh; Ardijanto (Alt: Horn)

Argument By Analogy Review Problem 2J Usefulness of Escaping Animals Cases (Manning/Mullett/Albers/Kesler; Taber/Bartlett; Relevant Non-Custom Ideas from Ghen) for Resolving Disputes re Human Gestures SIPI (Strongly Identified with Particular Individuals) Assume Property Rts Only Available for Gestures Strongly Associated with Particular (Famous) Individuals AND Not Widely Used Otherwise. Assume No Binding I.P. Law or Custom

Argument By Analogy Review Problem 2J (OXYGEN) B2: Fontalvo; Fish; Beltran; Stevenson (Alt: Galavis) B1: Augustin; Wagner; Sharp-Dimitri; Robledo (Alt: Pita) Arguments re Usefulness of Escaping Animals Cases from Factual Similarities between Disputes re Escaping Animals Generally & Disputes re Human Gestures SIPI

Argument By Analogy Review Problem 2J (OXYGEN) B2: Fontalvo; Fish; Beltran; Stevenson (Alt: Galavis) B1: Augustin; Wagner; Sharp-Dimitri; Robledo (Alt: Pita) Arguments re [Lack of] Usefulness of Escaping Animals Cases from Factual Differences between Disputes re Escaping Animals Generally & Disputes re Human Gestures SIPI

Argument By Analogy Review Problem 2J (KRYPTON) B2: Ledbetter; Iglesia; Altobello; Valenti(Alt: J.Berman) B1: Rust; Goldberg; Walsh; Ardijanto (Alt: Horn) Usefulness of Factors (not discussed last time) from Escaping ACs for Resolving Disputes re Human Gestures SIPI: Distance Abandonment/Pursuit Time Return to Natural Liberty

Argument By Analogy Review Problem 2J (KRYPTON) B2: Ledbetter; Iglesia; Altobello; Valenti(Alt: J.Berman) B1: Rust; Goldberg; Walsh; Ardijanto (Alt: Horn) SOME PROS & CONS OF ALTERNATIVES v. ACs? OO Wins: If Strongly Associated w Particular Indiv and Not Commonly Used Before Indiv., Indiv. Can Control All Commercial Use While Alive.

Argument By Analogy Review Problem 2J (OXYGEN) B2: Fontalvo; Fish; Beltran; Stevenson (Alt: Galavis) B1: Augustin; Wagner; Sharp-Dimitri; Robledo (Alt: Pita) SOME PROS & CONS OF ALTERNATIVES v. ACs? F Wins: No Property Rights in Gestures at All.

Where We Are (Going) Completed Classroom Work on Unit II/XQ2 Comments/Best Answers for Islands Posted; for Gestures Thurs GWA#3: Comments/Best Answers Posted by Saturday Today; Brief Intro to Mahon; finish Hadacheck Friday (Start of Endless Day) Elective Selection Advice Sax, then Mahon DQs Monday/Tuesday: Pre-Memo/Post-Memo All Lecture; Lot of Coverage; Try to Come & Listen Intro to XQIII Finish Mahon; Friedman & Epstein Excerpts; Start Miller

Mahon v. Pennsylvania Coal Co Mahon v. Pennsylvania Coal Co. (1922) Introduction to Set Up Discussion for Next Two Classes

Mahon v. Pennsylvania Coal Co. Background: Pennsylvania Law Property Rights in Pennsylvania Three Types; Each is Separate “Estate in Land” Surface Mineral (here, coal extraction) Subsidence: Right to Decide Whether to Keep Surface in Place or Undermine It. Can be Held By Surface Owner or Mineral Rights Owner

Mahon v. Pennsylvania Coal Co. Background: Factual Context Coal Companies (CCs) Owned Large Tracts of Land, Initially Holding All Three Estates Sell Surface Rights to Individuals, Businesses, Local Governments (who become “Surface Owners”). Contracts of Sale & Deeds for these Sales… Explicitly retained for CCs both mineral rights & subsidence rights; Required CCs to give notice to surface owners before undermining.

Mahon v. Pennsylvania Coal Co. Background: Factual Context Penn. Legislature concerned re widespread effects of CCs exercising subsidence rights Passes Kohler Act Forbids CCs from mining in a way that causes surface to collapse where home or other structure affected. Exception if owner of mineral rights also owns surface & lot is more than 150 feet from improved lots owned by others. Effect is to bar CCs from exercising some Subsidence Rights for which they had explicitly contracted.

Mahon v. Pennsylvania Coal Co. Background: Procedural History Pursuant to contract, D coal co gives notice to P surface owner that it will exercise its Subsidence Rights and undermine surface. P sued to prevent undermining, relying on Kohler Act TCt: Kohler Act bars undermining, but unconstitutional Pa SCt: Act = Legit. Exercise of State Power; P Wins Appeal to US SCt (via Writ of Error as in Hadacheck) b/c claiming a State Law violates Federal Constitution US SCt Opinion = 1922

Mahon v. Pennsylvania Coal Co Mahon v. Pennsylvania Coal Co. (1922) Read Carefully; Important Differences between Holmes Majority & Brandeis Dissent

Back to Hadacheck v. Sebastian (U.S. 1915) DQ3.07

Hadacheck v. Sebastian Procedural Posture Hadacheck convicted for violating ordinance Files Habeas Petition w California SCt; Loses Appeal to US SCt Claim that state law violated US Constitution At time, automatic appeal rather than petition for certiorari

Hadacheck v. Sebastian Procedural Posture Hadacheck convicted for violating ordinance Files Habeas Petition w California SCt; Loses Appeal to US SCt Allegations in Petition (= 1st full para on p.111 and 6 subsequent paras beginning “That …”) Status/Treatment of Pet’r’s Allegations p.112: “substantial traverses” in reply by Chief of Police Cal SCt found against Petitioner on facts re health, discrimination, etc. US SCt says these findings supported by evidence

Hadacheck v. Sebastian: Reasoning DQ3.07 Discrimination Claim Petitioner Says: I was singled out; ordinance passed to stop me Other brickworks in other districts treated differently How did the court deal with this claim? Cal SCt found ordinance not arbitrary/discriminatory US SCt said sufficient evidence supports that finding

Hadacheck v. Sebastian: Reasoning DQ3.07 Arbitrariness/Discrimination Claims Made Frequently (Hadacheck, Miller, Penn Central) Hard to Win Must Be: Explicit Direct Attack on Someone -OR- Very Random Exercise of Gov’t Power Rare Example of Win: Eubank (cited in Miller) complete delegation of zoning decision to neighbors with no gov’t oversight

Hadacheck v. Sebastian: Reasoning DQ3.07 Arbitrariness/Discrimination Claims Made Frequently But Hard to Win Generally OK for Gov’t to draw rough but plausible distinctions: E.g., Between people under/over 21 years old E.g., Between neighborhoods E.g., Between types or size of brickworks, etc. Unless courts have found distinction problematic under Equal Protection Clause or First Amdt (race; religion, etc.)

Hadacheck v. Sebastian: Reasoning DQ3.07 Arbitrariness/Discrimination Claims Made Frequently But Hard to Win Generally OK for state/local gov’t to draw rough but plausible distinctions I won’t (intentionally) make arbitrariness a serious issue on final; don’t spend time on it!! On to Actual Takings Analysis

Unit Three : Introduction Relevant Considerations in Takings Cases Survey of Instincts About What Facts Matter (All 6 Matter: 2016: 4/56 ; 2015: 7/41; 2014: 13/94) 2016 2015 2014 2012 % Reduction in Value 86% 88% 88% 90% Ban on Intended Use 79% 85% 90% 90% Purpose of Regulation 57% 71% 63% 54% $$$ Amount Reduction 46% 59% 59% 62% $$$ Amount Left 43% 49% 56% 43% Return on Investment 32% 32% 39% 26%

Unit Three : Introduction Relevant Considerations in Takings Cases Survey Data on Instincts A B C D E Current Use Unlimited Eliminated Limited % Value Lost 60% 5% 80% 10% Value Lost N/A $80K $1M $120K Orig. Purchase Just Now 5 Yrs @ 50K/ 200K 80K Avg. Rank (1 = Strongest) 2016 2015/2014/2012 2.7 2.9/3.0/3.0 2.8 2.8/2.6/2.8 2.0 1.9/1.7/1.8 3.8 3.6/3.6/3.5 3.7 3.8/4.0/3.8