ELEMENTS B1 & B2 POWER POINT SLIDES Class #31 Monday, November 7, 2016 Tuesday, November 8, 2016

Music to Accompany the Bill of Rights Mozart, Horn Concertos 1-4 Philharmonia Orchestra Conductor: Herbert von Karajan TODAY: WE START w REV PROB 2I URANIUM B1: R.Pereira; Halpern; Zimet; Robins (Alt: Massagli) B2: Saldana; Ramelize; Evans; Wood (Alt: Campo) RADIUM B1: Pringle; Gordon; Solis; Webb (Alt: Lecca) B2: Shevlin; Barth; Gangemi; Norris (Alt: Re)

featuring the voice talents of B1: Angelo Massagli B2: Malik Ramelize Elements B: 11/7-11/8 Pop Culture Moment featuring the voice talents of B1: Angelo Massagli B2: Malik Ramelize

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Taking Care of Your Family Jewels Eff Jewelers Taking Care of Your Family Jewels

Argument By Analogy Review Problem 2I Usefulness of 1st Poss. Animals Cases (Pierson/Liesner/Shaw & Relevant Non-Custom Ideas from Swift/Ghen) as Tools for Determining Ownership of Uninhabited Islands Keep in Mind All Three Approaches are Ways to Get at This “Bottom Line” Q

Argument By Analogy Review Problem 2I (URANIUM) B1: R.Pereira; Halpern; Zimet; Robins (Alt: Massagli) B2: Saldana; Ramelize; Evans; Wood (Alt: Campo) Arguments re Usefulness of 1st Possession ACs from Factual Similarities between Hunting Wild Animals Generally & Taking Ownership of Uninhabited Islands

Argument By Analogy Review Problem 2I (URANIUM) B1: R.Pereira; Halpern; Zimet; Robins (Alt: Massagli) B2: Saldana; Ramelize; Evans; Wood (Alt: Campo) Arguments re [Lack of] Usefulness of 1st Possession ACs from Factual Differences between Hunting Wild Animals Generally & Taking Ownership of Uninhabited Islands

Argument By Analogy Review Problem 2I (RADIUM) B1: Pringle; Gordon; Solis; Webb (Alt: Lecca) B2: Shevlin; Barth; Gangemi; Norris (Alt: Re) Rules/Factors from 1st Possession ACs: that Would Work Fairly Well (and Why) re Taking Ownership of Uninhabited Islands

Argument By Analogy Review Problem 2I (RADIUM) B1: Pringle; Gordon; Solis; Webb (Alt: Lecca) B2: Shevlin; Barth; Gangemi; Norris (Alt: Re) Rules/Factors from 1st Possession ACs that Would Be Hard to Use (and Why) re Taking Ownership of Uninhabited Islands

Argument By Analogy Rev. Prob. 2I: Possible Alts Include: Variations on 1st in Time 1st to Step on Island/Claim 1st to Take Resources 1st to Use Gets Area Used (Possible Split) “Owner” of Nearest Inhabited Land Gets Whole Island Ownership = de facto Military Control Warning: Custom as Alternative Discuss in Q1 UsingSwift/Ghen Factors (Not Q2) BUT Very Smart Wasserman (B1) Idea: Can Use Ideas from Swift/Ghen to Develop Pros & Cons of ACs v. Alternatives in Q2 (e.g., Relative Certainty)

Argument By Analogy Review Problem 2I (URANIUM) B1: R.Pereira; Halpern; Zimet; Robins (Alt: Massagli) B2: Saldana; Ramelize; Evans; Wood (Alt: Campo) Pros & Cons: 1st Possession ACs v. Selected Alternative First Party to Take Resources Gets Whole Island

Argument By Analogy Review Problem 2I (RADIUM) B1: Pringle; Gordonn; Solis; Webb (Alt: Lecca) B2: Shevlin; Barth; Gangemi; Norris (Alt: Re) Pros & Cons: 1st Possession ACs v. Selected Alternative Any Party Gets Ownership of as Much of the Island as They Are First to Use (Possible Split)

LOGISTICS CLASS #31 Exam Workshop Tues 12:30-1:50 in Room E352 On Course Page: Updated Complete Assignment Sheet Complete Version of Comments/Best Answers for GWA#2 2007 Comments/Best Answers for XQ1-Custom (After Mon DF) and for XQ2 (After Tue Class) GWA#3 (Due Wed @ 8pm) No E-Mail Qs Over Weekend; No More Qs to Me Double-Check Formatting & Substantive Instructions if Qs & Before Final Submission

Intro to Unit Three: Constitutional Protection of Private Property LECTURE (DQs 3.03-3.05) integrated with Hadacheck v. Sebastian (1915) OXYGEN: DQs 3.06*-3.07 KRYPTON: DQs 3.08-3.09*

Unit Three : Constitutional Protection of Private Property; Special Tools Recurring Hypo: “Airspace Solution to Hammonds Problem” (Introduced in DQ2.36 & DQ3.03) In Class: Replace Briefs w Introductory Line of Qs for Each Case (E.g., DQ3.06, 3.12, 3.22) Minimum Requirement for Constitutionality: Rational Basis Review (Introduced in DQ 3.04) The “Demsetz Takings Story” (Introduced in DQ 3.05) Four Theorists (Each Panel will Introduce One) -- Radium: Joseph Sax -- Oxygen: Frank Michelman -- Uranium: Richard Epstein -- Krypton: Bruce Ackerman

Unit Three : Introduction DQ3.03: Airspace Solution “Airspace Solution to Hammonds Problem” “Hammonds Problem” = When Gas Co. Reinserts into 3d Party Land, They Either Lose Property Rights to Gas (KY) or Must Pay to Avoid Trespass Claim (PA) Suppose instead, Kentucky adopts a statute treating empty underground gas reservoirs like airspace needed for airlines. The statute: (a) Allows the Gas Co. to store its gas in portions of pool under Ms. Hammonds’s lot without paying rent; and (b) prohibits her (& other surface Os) from extracting it.

Unit Three : Introduction DQ3.03: Airspace Solution Suppose Kentucky adopted a statute that (a) allowed the gas company to store its gas under Ms. Hammonds’s lot without paying rent; and (b) prohibited her from extracting it. Ms. Hammonds then claims this is an unconstitutional taking of her property. Very hard to know whether framers intended Takings Clause to cover this type of gov’t act. We’ll apply the authorities we study to this problem to help see what the authorities say.

Unit Three : Constitutional Protection of Private Property; Special Tools Recurring Hypo: “Airspace Solution to Hammonds Problem” (Introduced in DQ2.36 & DQ3.03) In Class: Replace Briefs w Introductory Line of Qs for Each Case (E.g., DQ3.06, 3.12, 3.22) Minimum Requirement for Constitutionality: Rational Basis Review (Introduced in DQ 3.04) The “Demsetz Takings Story” (Introduced in DQ 3.05) Four Theorists (Each Panel will Introduce One) -- Radium: Joseph Sax -- Oxygen: Frank Michelman -- Uranium: Richard Epstein -- Krypton: Bruce Ackerman

Hadacheck v. Sebastian Background: Rapid Growth of Los Angeles WATER: Aqueduct Completed in 1913 OIL: Discovered 1876; Southern California produces 25% of world’s oil in 1920s MOVIE INDUSTRY: Beginning 1910 Weather/Sunlight (Better than Florida b/c Drier & Little Rain) Proximity to Mexico & Patent Evasion POPULATION (~50,000 in 1890) 1900 = ~ 102,000 1910 = ~ 319,000 1920 = ~ 577,000 1930 = ~1,238,000

Hadacheck v. Sebastian DQ3.06: Introduction (Oxygen) DQ3.06 provides a standard set of Qs that we will use for all four primary Takings Cases to help you understand what’s at issue. Useful in Takings cases to begin analysis with the challenged gov’t action, rather than with a description of the lawsuit. Challenged Gov’t Action in Hadacheck?

Hadacheck v. Sebastian DQ3.06: Introduction (Oxygen) v. Gov’t action in Hadacheck: (p.110) L.A. Ordinance banning operation of brickyard in city. City legislative body does cost-benefit analysis (policy determination) re brickyards. Unlike courts in Units I & II, US SCt not (re)doing cost-benefit analysis/policy decision re brickyards. Instead deciding whether L.A. Ordinance violates Takings Clause For Next Step in DQ3.06 Need Intro to Rational Basis Review

Unit Three : Constitutional Protection of Private Property; Special Tools Recurring Hypo: “Airspace Solution to Hammonds Problem” (Introduced in DQ2.36 & DQ3.03) In Class: Replace Briefs w Introductory Line of Qs for Each Case (E.g., DQ3.06, 3.12, 3.22) Minimum Reqmt for Constitutionality: Rational Basis Review (Introduced in DQ 3.04) The “Demsetz Takings Story” (Introduced in DQ 3.05) Four Theorists (Each Panel will Introduce One) -- Radium: Joseph Sax -- Oxygen: Frank Michelman -- Uranium: Richard Epstein -- Krypton: Bruce Ackerman

Unit Three : Introduction DQ3.04: Police Power “Police Power” = Basic Authority of State Gov’ts Can regulate to protect/further “HSWM” Health Safety Welfare [general well-being including economic success] Morals Good lawyer can tie virtually any state law to one of these purposes

Unit Three : Introduction DQ3.04: Rational Basis Review Is Challenged Law “Rationally Related to a Legitimate State Purpose”? Minimal Test for Constitutionality Under Due Process & Equal Protection Clauses Applies When No Claim that Specific Constitutional Provision is Violated Very Deferential: Gov’t Virtually Always Wins I will not give you a Q where there’s a serious issue BUT useful to do analysis to help see what Gov’t is doing

Unit Three : Introduction DQ3.04: Rational Basis Review “Rationally Related to Legitimate State Purpose” What is Purpose? Is Purpose Legitimate? Arising under Police Power (HSWM) Not Just to Harm Individuals or Group Is Law “Rationally Related” to Purpose?

Unit Three : Introduction DQ3.04: Rational Basis Review “Rationally Related to Legitimate State Purpose” What is Purpose? Is Purpose Legitimate? Is Law “Rationally Related” to Purpose? Term of Art (thus, in quote marks whenever I use it) MEANS: A rational legislator could believe the state law will help further its purpose, at least a little bit Not asking if “rational” to a psychologist or economist Doesn’t have to be best option or even particularly good

DQ3.04: Rational Basis Review Volunteer Radium? Apply to Airspace Solution What is Purpose? Is Purpose Legitimate? Arising under Police Power Health Safety Welfare Morals Is Law “Rationally Related” to Purpose? Could a rational legislator believe the state law will help further its purpose, at least a little bit?

Hadacheck v. Sebastian DQ3.06: Introduction (Oxygen) Challenged Action & Rational Basis Review Government action in Hadacheck: (p.110) L.A. Ordinance banning operation of brickyard in city What is the purpose of the action? Legitimate (Health Safety Welfare Morals)? Is the action rationally related to the purpose?

Hadacheck v. Sebastian DQ3.06: Introduction (Oxygen) Effects of the Challenged Action Government action in Hadacheck: (p.110) L.A. Ordinance banning operation of brickyard in city What limits are placed on the petitioner’s use of his property? What uses of his property are still permissible? What is the harm to the petitioner?

Hadacheck v. Sebastian DQ3.06: Introduction (Oxygen) Effects of the Challenged Action What is the harm to the petitioner? Incarceration! Allegations re Value in Habeas Petition: Property worth $800,000 as brickworks Worth $60,000 as anything else Calif. & US S.Cts don’t endorse value claims They may not believe them We have no firm evidence of actual value/loss

Property Value in Taking Cases Generally Property Value (PV) of Parcel of Land “Objective” in sense that Real Estate experts will often roughly agree on market value at particular time given building, amenities, neighborhood, etc. BUT: Aggregation of subjective prejudices of likely buyers (e.g., reaction to cell phone towers) PV Often Fluctuates Significantly Over Time Thus, Claims re Loss of PV Often Short Term Hadacheck PV Claim: ($800,000  $60,000) This was new part of LA PV must have increased sharply again at some point

Brickworks Site 11/2012: West Pico & Crenshaw Blvds., Los Angeles, CA

Unit Three : Constitutional Protection of Private Property; Special Tools Recurring Hypo: “Airspace Solution to Hammonds Problem” (Introduced in DQ2.36 & DQ3.03) In Class: Replace Briefs w Introductory Line of Qs for Each Case (E.g., DQ3.06, 3.12, 3.22) Minimum Reqmt for Constitutionality: Rational Basis Review (Introduced in DQ 3.04) The “Demsetz Takings Story” (Introduced in DQ 3.05) Four Theorists (Each Panel will Introduce One) -- Radium: Joseph Sax -- Oxygen: Frank Michelman -- Uranium: Richard Epstein -- Krypton: Bruce Ackerman

Unit Three : Introduction DQ3.05: Demsetz Takings Story Description of How Takings Cases Arise Change leads to rising negative externalities Creates a demand for a change in the law. After the change, people harmed by the new law complain that their property rights have been “taken” without compensation.

Unit Three : Introduction DQ3.05: Demsetz Takings Story Description of How Takings Cases Arise Change leads to rising negative externalities Creates a demand for a change in the law. After the change, people harmed by the new law complain that their property rights have been “taken” without compensation. Long Term Q for You: If this story represents a common pattern among Takings cases, what does that suggest about the proper role of the Takings Clause?

Unit Three : Introduction DQ3.05: Demsetz Takings Story Airspace Solution as Example Change leads to rising externalities. Hammonds decided  Gas cos. move gas out of Ky. Harm to state economy; gas prices in Ky increase. Creates a demand for a change in the law. Ky legislature (hypothetically) passes statute adopting Airspace Solution After the change, people affected by the new law complain that their property rights have been taken. Hammonds might claim Airspace Solution is a Taking of her portion of the underground gas pool

Hadacheck v. Sebastian DQ3.06: Introduction (Oxygen) Hadacheck Fit Into Demsetz Takings Story? Activity is Brickmaking Externalities: Some dust reaches nearby residents Old Rule: Brickworks Allowed to Operate if There First Change? Leads to rising externalities? Change in the law?

Hadacheck v. Sebastian DQ3.06: Introduction Fit Into Demsetz Takings Story? Activity is Brickmaking Growth of LA Increases Externalities Change in the law = New zoning ordinance banning brickworks After the change, people affected by the new law complain that their property rights have been “taken.” (= Hadacheck Litigation)