ELEMENTS B1 & B2 POWER POINT SLIDES

ELEMENTS B1 & B2 POWER POINT SLIDES
Class #33: Friday, November 11, 2015 National Sundae Day & Veterans Day

MUSIC: Alberta Hunter Complete Recorded Works Vol. 2: 1923-24
1L Elective Choices Family Law Immigration Law International Human Rights Legislation Law Practice: Social Impact Advocacy Products Liability Substantive Criminal Law

CHOOSING YOUR 1L ELECTIVE

Section B Spring 2016 L.COMM II (B1/B2) 9:00-10:50 (B3/B4) CON LAW I
MON TUE WED THU FRI L.COMM II (B1/B2) 9:00-10:50 (B3/B4) CON LAW I SCHNABLY 11:00-12:20 ELECTIVE CRIM PRO SUNDBY 2:00-3:20 PROPERTY MAHONEY 3:30-5:20

The most important decision you will make…

The most important decision you will make next Monday or Tuesday.

The most important decision you will make next Monday or Tuesday. Maybe.

You are picking one course out of the 20 or so electives you will take in law school.

You are not picking a spouse.

CHOOSING YOUR 1L ELECTIVE: LOGISTICS
Read Descriptions Carefully; Watch Videos Learn Registration Procedures Including Wait Lists & Add/Drop Note re “Full” Classes & Room Changes Check Registration Time (Significance) Checking Availability in Advance

CHOOSING YOUR 1L ELECTIVE: SOME CONSIDERATIONS
Course Available to Take Later? Method of Evaluation Prerequisite/Intro to Other Courses Furthering Skills & Career Goals

CHOOSING YOUR 1L ELECTIVE: SOME CONSIDERATIONS
Past Student Evaluations (Circulation Desk) Grain of Salt Might be Available for Course/Instructor as Upper Level as well as/instead of as 1L Upper Level Students in Room? (Separate Curves) Law Practice SIA Products Liability

FAMILY LAW (PERLMUTTER)
Legal Relationships between Spouses/Life Partners and between Parents & Children Offered Every Year for Upper Level Method of Evaluation: Final Exam Intro/Prereq. to Upper Level Family Law Electives Significant # of Students Practice Family Law; Also Useful for Personal Representation & Gen’l Practice

IMMIGRATION LAW (SHARPLESS)
Legal Treatment of Process of Immigration and of Immigrants Once Inside U.S. Offered Every Year for Upper Level Final Exam Intro/Prereq. to Upper Level Immigration Electives incl. Immigration Clinic In Places w Many Immigrants (S.Fla., NY, TX, Calif.): Large Pro Bono Practice + Arises in Many Other Practice Areas; Synergy w Con Law I Good Intro to Working with Complex Statutes & Gov’t Agencies/Regulations

INT’L HUMAN RIGHTS (NICKEL)
Int’l Law of (& Nature of) Human Rights Offered Every Year for Upper Level Method of Evaluation: Class Participation, Presentation, and Final Exam Intro to Public International Law Useful skills working with treaties & int’l law; relevant to gov’t int’l practice, immigration, and US civil rights.

LAW PRACTICE: SOCIAL IMPACT ADVOCACY (J. HILL/VALDES)
Access to Justice: Lawyering Role & Skills Regular Attendance/Participation, Weekly Exercises, Final Project High Level of Participation Required First Time Offered as 1L Elective Open to Upper Level Students Read Course Description Carefully!!

Techniques for Working with Statutes
LEGISLATION (BLATT) Techniques for Working with Statutes Final Exam, Written Assignment, Participation High Level of Participation Required Rarely Offered for Upper Level Like an Elements Course Focused on Statutes Instead of Cases. Very Helpful b/c Many Major Practice Areas Involve Detailed Statutes (Crim; Environ; Anti-Discr; Bankruptcy; Consumer Prot’n; Banking; Commercial Law; Labor; Copyright, etc.)

PRODUCTS LIABILITY (FENTON)
Advanced Torts Class Relatively New Course: Co-Offered for Upper Level This Year & Last; No Guarantee Will Be Again Upper Level Students in Room Method of Evaluation: Final Exam Not direct pre-requisite or intro for other courses; techniques & skills probably relevant in advanced business and litigation courses. Significant part of personal injury and insurance practice and often general business litigation. Most business-related 2016 elective offering.

SUBSTANTIVE CRIMINAL LAW (COKER)
Elements of Crimes & Defenses Offered Every Semester for Upper Level Method of Evaluation: Final Exam & 2 Short Quizzes Intro/Prereq. to Upper Level Crim Electives; Good Synergy with Crim. Pro. Many Students Practice Criminal Law; Comes Up in Every Area of Practice, Personal Representation, and Family Conversations. Good Experience with Common Kind of Statute.

QUESTIONS?

Back to Hadacheck v. Sebastian (U.S. 1915) DQ3.08-3.09

Hadacheck v. Sebastian: Reasoning DQ3.08 (Police Power)
Brief Aside on Nuisance Law Tort to Protect Property Rights: Your use of your own land is interfering with my use of my land (e.g., noise, smoke, odors) Private Nuisance: Lawsuits by private individuals. Defenses: First in Time & Oversensitiveness Public Nuisance: Statutes banning particular harmful land uses Lawsuits for widespread harms to other people’s use of land (no first in time defense)

Hadacheck v. Sebastian: Reasoning DQ3.08
Hadacheck & the Police Power (p.113) “[O]ne of most essential powers of gov’t—one that is the least limitable.” (p.113) “A vested interest cannot be asserted against it [the Police Power] because of conditions once obtaining.” MEANS?

Hadacheck & the Police Power (p.113) “A vested interest cannot be asserted against it because of conditions once obtaining.” Compare “Coming to the Nuisance” First-in-Time Defense for Private Nuisance Not defense for Public Nuisance

Hadacheck & the Police Power: Reinman Little Rock bans livery stables Related to Change from Horses to Cars Similar Facts Alleged re Loss of Property Value US SCt says OK under Police Power Petitioner in Hadacheck says L.A. Ordinance Distinguishable

Hadacheck & the Police Power: Reinman Little Rock bans livery stables; US SCt says OK Petitioner: L.A. Ordinance Distinguishable b/c Brick- works Tied to Particular Location (Clay Pits) But Court Responds: Not Impossible to Run Business Elsewhere Reliance on Reinman suggests that under Police Power, OK to severely reduce value by eliminating current use.

Hadacheck & the Police Power: Kelso San Francisco banned operation of rock quarry Cal. S.Ct. said unconstitutional; then distinguishes Kelso in its own decision in Hadacheck.

Hadacheck & the Police Power: Kelso San Francisco banned operation of rock quarry Cal. S.Ct. said unconstitutional; distinguishes Hadacheck because: In Kelso, if you can’t quarry, rock is valueless In Hadacheck, clay still has value; can remove & process elsewhere

Hadacheck & the Police Power: Kelso Cal. S.Ct. draws distinction between limit on use of land and complete elimination of value US SCt not bound by California state decision. Does US SCt adopt Kelso reasoning? NO. Explicitly reserves Q in last paragraph of opinion US SCt does note that clay still is available & has value (clearly dicta).

Hadacheck & the Police Power: Kelso Cal. S.Ct. draws distinction between limit on use of land and complete elimination of value Distinction raises important recurring Q: In deciding if value remains, do you look at: All property owned by claimant (quarry + rock) Particular property most directly effected (just rock) Still value left in quarry, but not in rock.

Hadacheck & the Police Power: Kelso Important recurring Q: In deciding if value remains (or amount of value lost), what portion of claimant’s property do you look at? We’ll call this the “denominator” question: What do you use as denominator in fraction showing how much property is lost (or is left)? Lost Value of Rock Lost Value of Rock Value of Rock? = 100% Loss Value of Quarry? = Smaller Loss

Hadacheck v. Sebastian: Holding/Rules DQ3.09
What rules or principles can you derive from Hadacheck to use in future cases? Might start with very broad holding: Any exercise of police power is Constitutional if not arbitrary. Try # of Narrower Versions

VERY BROAD: Exercise of police power Constitutional if not arbitrary. NARROWER EXAMPLES: Exercise of police power Constitutional if not arbitrary and related to human health & safety. Exercise of police power Constitutional if not arbitrary and related to substantial concerns re human health & safety. Exercise of police power Constitutional if not arbitrary and prohibiting public nuisance/ harmful use of land.

Other possible rules or principles: Prohibiting existing use not automatically unconstitutional Large decrease in property value not automatically unconstitutional Note that even Conservative commentators generally OK with these where purpose is to prevent substantial health/safety risks.

Other possible rules or principles: Prohibiting existing use not automatically unconstitutional Large decrease in property value not automatically unconstitutional Maybe: Unconstitutional if all value removed (following Kelso) Private interests must yield to progress & good of community (See third full paragraph p.113)

Hadacheck v. Sebastian: Holding/Rules DQ3.09 (Krypton)
Apply rules/principles from Hadacheck to “Airspace Solution” Back to Doing a Skill We’ve Practiced Repeatedly: Apply Rules/Principles from One Case to Facts of a Hypothetical or of a Second Case

Takings Problems Mapping Chart: Make Sure You Are Using Correct Factual Parallels
Case Gov’t Act Affected Landowner Intended Beneficiaries Hadacheck LA Bans Brickyards Brickyard Os Neighbors “Airspace Solution” Ky Gives Gas Cos. Exclusive Rts to Empty Gas Pools Os of Surface above Empty Pools Gas Companies

Apply rules/principles from Hadacheck to Airspace Solution: Exercise of police power Constitutional if not arbitrary?

Apply rules/principles from Hadacheck to Airspace Solution: OK under Broad Versions Exercise of police power Constitutional if not arbitrary. Perception of “Unfairness” isn’t Same as Arbitrary All Surface Os Except Gas Reinserters Treated Alike Airspace Solution Genuinely Addresses Reinsertion Policy Exercise of police power Constitutional if not arbitrary and related to human health & safety?

Airspace Solution under Hadacheck rules/principles Exercise of police power Constitutional if not arbitrary and related to human health & safety? Encouraging Reinsertion, which Increases Safety Exercise of police power Constitutional if not arbitrary and prohibiting nuisance/ harmful use of land. Hadacheck : Govt Prohibiting Harmful Use by Brickyard Os In Airspace Hypo, Similar Harmful Use by Surface Os?

Airspace Solution under Hadacheck rules/principles Exercise of police power Constitutional if not arbitrary and prohibiting nuisance/ harmful use of land. Hadacheck : Govt Prohibiting Harmful Use by Brickyard Os In Airspace Hypo, Similar Harmful Use by Surface Os? Not unless you stretch “Harmful Use” to include refusal to allow use of pool.

Airspace Solution under Hadacheck rules/principles Kelso (& Maybe Hadacheck): Unconstitutional if all value removed?: Again Raises “Denominator Question”: Do We Compare Loss to Value of … All of Hammonds’s Parcel (Tiny % Lost) Only Her Part of Pool (100% Lost) Compare loss of rights to actual airspace Similar Denominator Q BUT Market Value of Air Rights Lost Trivial

QUESTIONS ON HADACHECK OR APPLICATION TO “AIRSPACE SOLUTION”?

Takings Theorists - Ideas re How to Approach - Each Yields Easy & Hard Cases - Helpful to Support or Supplement Arguments from/about Cases

Takings Theorist #1: Joseph Sax & DQ3.10-3.11 ME & Some B1 Radiums

Takings Theorists: Joseph Sax
Sax’s First Formulation “Government-as-Enterpriser” Classic uses of Eminent Domain (Road, School etc.) Taking land for govt purpose, so should pay for “Government-as-Arbiter.” Govt resolving dispute between conflicting land uses Not just conflicting parties “Reese’s Peanut Butter Cup” Problems When resolving dispute, no need to pay loser of dispute

Takings Theorists: Joseph Sax DQ3.10 Radium
“Govt-as-Enterpriser” v. “Govt-as-Arbiter” Apply to Hadacheck:

Takings Theorists: Joseph Sax DQ3.10 Radium
“Govt-as-Enterpriser” v. “Govt-as-Arbiter” Apply Test to Hadacheck: Pretty Clearly Arbiter Case Even though city may benefit some, gov’t has to resolve dispute either for H or for n-bors One Circumstance Where It’s Hard to Tell: Looks Like Arbiter but All Land on One Side of Dispute is Govt Owned (School, Military Base, Hospital) Airspace Solution to Hammonds Problem Not clear result under this test Arguments both ways?

Takings Theorists: Joseph Sax DQ3.10
“Govt-as-Enterpriser” v. “Govt-as-Arbiter” Apply to Airspace Solution to Hammonds Problem Could View as Arbitration between Gas Cos. & Other Surface Owners Could View as Taking Property from Other Surface Owners for Gas Cos to Use for Large Public Benefit (Similar to Govt Taking Ownership Itself & Letting Gas Cos. Use) Could generalize: Sax unclear if arbitrating betw. two private parties, but result is to transfer property rts from one to the other to further strong public interest.

“Govt-as-Enterpriser” v. “Govt-as-Arbiter” Three Situations that are Difficult to Categorize Looks like arbitrating, but one side of dispute is gov’t owned (School, Military Base, Hospital) Looks like arbitrating, but result is to transfer property rights from one party to the other to further strong public interest (not simply saying owner can’t do X) (Airspace Solution) Limit on uses of private property to protect wildlife or ecosystem (choosing between animals/habitat and landowners not exactly the same as choosing between two sets of owners)

Sax’s Second Formulation State Can Regulate Without Compensating to Prevent “Spillover Effects” (= Negative Externalities) What “spillover effects” or externalities is the state trying to prevent … in Hadacheck? Easy; harm to health & property value from brick pollution in “the Airspace Solution” to Hammonds Problem? Same kind of issue issue as “stopping harmful use” from Hadacheck.

Sax’s Second Formulation What “spillover effects” or externalities is the state trying to prevent in “the Airspace Solution” to Hammonds Problem? Surface Os not currently using, so no spillovers from activity. BUT refusal to allow gas cos. to use creates large costs to society (safety, higher gas prices, etc.). HARD Q: should we treat these as “spillover effects” for Sax purposes?

Takings Theorists: Joseph Sax
Sax’s First Formulation “Government-as-Enterpriser” Classic uses of Eminent Domain (Road, School etc.) Taking land for govt’ purpose, so should pay for “Government-as-Arbiter.” Govt resolving dispute between conflicting land uses When resolving dispute, no need to pay loser of dispute Sax’s Second Formulation State Can Regulate Without Compensating to Prevent “Spillover Effects” (= Negative Externalities) QUESTIONS ON SAX?

Unit Three: Relevant Considerations in Takings Cases
Survey of Instincts About What Facts Matter % Reduction in Value (86%) Ban on Intended Use (79%) Purpose of Regulation (57%) = Hadacheck (Police Powers); Sax (Enterpriser v. Arbiter; Stopping Spillovers) $$$ Amount Reduction (46%) $$$ Amount Left (43%) = Kelso (left open by Hadacheck) Return on Investment (32%)

Pennsylvania Coal Co. v. Mahon We’ll Start with Introduction to Justices Holmes & Brandeis

Justice Oliver Wendell Holmes
Born in 1841 Fought in Civil War (Wounded at Antietam & Fredericksburg) Wrote The Common Law (1881) Appointed to US Supreme Court in 1902 Served until 1932 (At time, oldest Justice ever). Died in 1935

Justice Oliver Wendell Holmes
"Holmes was a cold and brutally cynical man who had contempt for the masses and for the progressive laws he voted to uphold." Jeffrey Rosen, Brandeis's Seat, Kagan's Responsibility New York Times, July 2, 2010.

Justice Louis Brandeis
Born in 1856 Progressive Cause Lawyering (Brandeis Brief) Appointed to US Supreme Court in 1916 (first Jewish Justice) Served until 1939; Died 1941

Justice Louis Brandeis
“[T]he image of Brandeis, when [President] Wilson sent his name to the Senate … was one that frightened the Establishment. Brandeis was a militant crusader for social justice whoever his opponent might be. He was dangerous not only because of his brilliance, his arithmetic, his courage. He was danger-ous because he was incorruptible… . The fears of the Establishment were greater because Brandeis was the first Jew to be named to the Court.” -- Justice William O. Douglas

Holmes & Brandeis: Successors & Introduction to US SCt Abbreviations
Holmes (1902) (HMS) Cardozo (1932) (CAR) Frankfurter (1939) (FFR) Goldberg (1962) (GBG) Fortas (1965) (FTS) Blackmun (1970) (BMN) Breyer (1994) (BRY) Brandeis (1916) (BDS) Douglas (1939) (DGS) Stevens (1975) (STV) Kagan (2010) (KGN)

Pennsylvania Coal Co. v. Mahon URANIUM: DQ3. 12 OXYGEN: DQ3
Pennsylvania Coal Co. v. Mahon URANIUM: DQ OXYGEN: DQ Introduction to Case and Arguments from Earlier Precedent

Pennsylvania Coal Co. v. Mahon DQ3.12: Introduction (Uranium)
Govt Action at Issue = Kohler Act Forbids CCs from Causing Surface to Collapse While Mining if Certain Structures Present Purpose: Prevent Subsidence when Buildings on Surface Assume Without Kohler Act, CCs Have to Give Surface Os Adequate Notice Before Undermining

Govt Action at Issue = Kohler Act Forbids CCs from Causing Surface to Collapse While Mining if Certain Structures Present Purpose: Prevent Subsidence when Buildings on Surface Assume CCs Have to Give Surface Os Adequate Notice Before Undermining Given Notice Requirement, Is Kohler Act rationally related to protecting Safety? to improving/protecting Welfare?

Govt Action at Issue = Kohler Act (Forbids CCs from Causing Surface to Collapse While Mining Preventing Subsidence when Buildings on Surface = Rationally Related to Safety & Welfare Safety concerns possible re landscape after cave- ins even with proper notice. Welfare concerns possible from property values of non-contracting neighbors. disruption of economy (Katrina issues) environmental harms

Govt Action at Issue = Kohler Act (Forbids CCs from Causing Surface to Collapse While Mining What limits are placed on the CCs’ use of their property? What uses of their property are still permissible?

CCs can mine coal so long as surface stays up; means must leave some coal in place. What is the resulting harm to CCs? Uncertain! Because of posture of case, no factual record The two opinions differ as to extent of harm

CCs can mine coal so long as surface stays up; means must leave some coal in place. What is the resulting harm to CCs? Uncertain because no factual record Holmes: (very bottom of p.117) “warranted in assuming” statute makes mining “commercially impracticable”, so whole value gone.

CCs can mine coal so long as surface stays up; means must leave some coal in place. What is the resulting harm to CCs? Uncertain because no factual record Holmes: “warranted in assuming” whole value gone. Brandeis: (2d line top of p.120) “For aught that appears [in the record] the value of the coal kept in place by the restriction may be negligible….” [Means?]

Mahon DQ3.12: Demsetz Takings Story (Uranium)
Decision: Do CCs undermine surface when they mine? Old Rule (before Kohler Act)?

Mahon DQ3.12: Demsetz Takings Story (Uranium)
Decision: Do CCs undermine surface when they mine? Old Rule: Can undermine surface if own subsidence rights Externalities?: Tricky Issue

Mahon: Externalities & Contract Rights
Direct harm to surface owners not an externality b/c not external to decisions/ activities of CCs. CCs paid surface owners in advance for subsidence As if Hadacheck sold land around factory On condition that they’d allow brickworks to continue despite dust, etc.; and Paid separately for the condition

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 Costs to society of loss of surface value & dislocation Loose parallel: Contract to infect person w contagious disease to test treatment: Voluntary to subject (so that harm is not externality) Not voluntary to others who might get disease from subject (and to those who have to pay their medical costs, etc.) (so these are externalities to contract)

ELEMENTS B1 & B2 POWER POINT SLIDES

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