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

2. 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)

3. 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

4. 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

5. 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

6. 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

7. 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.

8. 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.

9. 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

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

11. 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

12. 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.

13. 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.

14. 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

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

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

17. 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

18. 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

19. 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

20. 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

21. 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.)

22. 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

23. 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)
% Reduction in Value % % 88% %
Ban on Intended Use % % 90% %
Purpose of Regulation % % 63% %
$$$ Amount Reduction 46% % 59% %
$$$ Amount Left % % 56% %
Return on Investment % % 39% %

24. 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 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