1. ELEMENTS B1 & B2 POWER POINT SLIDES
Class #30 Friday, November 4, 2016 National Candy Day (Crush It!!!)

2. KRYPTON (against L-Bow)
Music to Accompany Hadacheck: Scott Joplin: His Greatest Hits Richard Zimmerman, Piano Music Recording 2005 Place Survey Form on Front Desk On-Call for Review Problem 2G:
OXYGEN (for L-Bow)
B2: Beltran; Dubberly; Galavis; Michel (Alt: Wisnoski)
B1: Conde; Akkaya; Wilson; Wright (Alt: Wagner)
KRYPTON (against L-Bow)
B2: Bernstein; Koshy; Masson; Gonzalez (Alt: Ledbetter)
B1: Dhermy; Lopez-Trigo; Fleming; Cottingham
(Alt: Goldberg)

3. Review Prob. 2F: XQ1 (1st Poss.) Ownership of Uninhabited Island
Take Home Points from Class #29
Argument/Exam Technique Generally
Keep Arguments Based in Relevant Doctrine
Keep Focus on Specific Property Right at Issue
Tests That Apply Literally v. by Analogy
Explain How Particular Facts Fit Into Legal Tests & Analogies
1st Possession Specifically (Need High Comfort Level)
Structure of Analysis (Time-Based for 1st Possession)
How Cases Employ Legal Standards
Notice & 1st Possession (Rose is not an AC)

4. FACT PATTERN O (2012): Property in Human Gestures
L-Bow begins doing “Elbowing Gesture” (EG) in conjunction with his impressive basketball plays while in college.
Shortly after turning pro, L-Bow starts doing charitable ads featuring EG.
Many people try to do EG but very few can; L-Bow sends congratulations to people who succeed.
Several years pass  2012

5. FACT PATTERN O (2012): Property in Human Gestures
Several years pass  2012
4/12: KG does spectacular dunk with EG in women’s college basketball finals; L- Bow tweets approval.
11/12: KG has becomes Cane-Ade spokesperson; Cane-Ade runs ad including video of dunk w EG
11/12: BB starts marketing exercise program using video of himself doing EG.
“Last week” (as of time of exam, so 12/12): L-Bow sues to enjoin commercial use of EG.

6. OXYGEN: REV. PROB. 2G EXAM Q1 (Escape): Human Gestures
Discuss whether, if the ACs are the relevant authority, L-Bow retains sufficient property rights to the “elbowing” gesture (EG) to prevent BB and/or Cane-Ade from using the EG in their marketing campaigns.

7. REV. PROB. 2G EXAM Q1 (Escape): Human Gestures
Under ACs, does L-Bow retain sufficient property rights to the EG to prevent use of EG in marketing campaigns?
Assume that, for the purposes of applying the animals cases, L-Bow is the OO of the EG and EG has “escaped” when someone else does it.
Assume that human gestures do not receive trademark or copyright protection and that no other applicable [legal] doctrines address property rights in human gestures.
Note that if you don’t think there should be any property rights in human gestures, you discuss that in Q2 (not here).

8. REV. PROB. 2G EXAM Q1 (Escape): Human Gestures Under ACs, does L-Bow retain sufficient property rights to the EG to prevent use of EG in marketing campaigns? Arguments re Marking/Finder’s Knowledge? Arguments re Protecting OO’s Labor/Industry? I’m Just Working with People I Call on from Panel
OXYGEN (for L-Bow)
B2: Beltran; Dubberly; Galavis; Michel (Alt: Wisnoski)
B1: Conde; Akkaya; Wilson; Wright (Alt: Wagner)
KRYPTON (against L-Bow)
B2: Bernstein; Koshy; Masson; Gonzalez (Alt: Ledbetter)
B1: Dhermy; Lopez-Trigo; Fleming; Cottingham
(Alt: Goldberg)

9. Argument By Analogy Oil & Gas: Escape
Oklahoma Statute (p.101: fn2) (Summary)
Reinserted gas remains property of Gas Co. (G) and other owners (Os) of pool cannot take reinserted gas or bring trespass action , BUT G doesn’t have any rights to gas in portions of the pool that it has not paid to use.
If G doesn’t buy rights from Os, doesn’t own gas in those parts of pool.
Means Os can extract, but not bring trespass action.
Might mean Gs will take risk that small Os can’t afford to extract and not pay them for rights.
KRYPTON DQ2.35: Pros & Cons v. Escaping ACs
(I’ll Add Slide with Some Examples)

10. Argument By Analogy Oil & Gas: Escape
Possible Alternatives to ACs
DQ2.35 (KRYPTON): Oklahoma Statute (p.101 fn2)
PROS & CONS: Include
Injecting Gas Cos. have more control than in Hammonds; keep property rights so long as they pay for space; can choose to risk not paying small surface owners.
Owners of large surface plots likely to be paid for use of space.
Easier to Use than Full ACs Analysis
Higher costs of storage than Airspace Solution (both costs of purchasing space & admin. costs of negotiation or EmDom)
Smaller surface owners might get nothing.

11. Argument By Analogy Oil & Gas: Escape
Possible Alternatives to ACs: Airspace Solution
Possible State Regulation:
Reinserted gas stays property of Gas Co.(G)
BUT Surface Owners have no right to trespass action even if Gs haven't leased/bought space
Like rule about airspace over surface: above certain height, no rights. Here, below certain depth, Surface Owner has no rights (once gas extracted).
KRYPTON DQ2.36: Pros & Cons v. Escaping ACs
(I’ll Add Slide with Some Examples)

12. Argument By Analogy Oil & Gas: Escape
Possible Alternatives to ACs
DQ2.36 (KRYPTON): Airspace Solution
PROS & CONS: Include
Injecting Gas Cos. have complete control of space.
Lower costs of storage than Oklahoma or White.
Easier to Use than Full ACs Analysis
Owners of surface plots likely get nothing.
May result in Takings Litigation
May Result in Negative Political response

13. Argument By Analogy Oil & Gas: Escape
Possible Alternatives to ACs
DQ2.37 (ALL): Best Solution?
(I’ll Take a Few Arguments Friday)
White Rule: Reinserted Gas = Property of Gas Co.
Hammonds Rule: Reinserted Gas = Unowned (Simplified ACs)
More Complex ACs (Consider marking, control, etc.)
DQ 2.35 Oklahoma Statute (White footnote 2)
DQ 2.36 “Airspace Solution to Hammonds problem.”
Other??

14. FINAL EXAM QUESTION. 2: PREPARATION
Two More In-Class Opportunities to Practice
Uninhabited Island (Monday/Tuesdasy)
Human Gestures (Wednesday/Thursday)
DF Sessions 11/6 & 11/9 (Computer Programs)
Group Assignment #3:
Sub-Assignment 3A (Facts--Not Factors--as Topics)
Sub-Assignment 3B (Factors)
Just do one factor per argument
OK to use same factor as basis for one pro argument and one con argument
OTHER QUESTIONS ON GWA#3?

15. Introduction to Unit Three : Constitutional Protection of Private Property
LECTURE &
URANIUM (DQ )
RADIUM (DQ )
Need to Get Through All Material
Plan on Both Sections Meeting Together Both Mon Nov 21 & Tue Nov 22

16. Unit Three : Constitutional Protection of Private Property
State Regulations of Land Use Frequently Limit What Landowners Can Do With Their Land and/or Reduce Its Value.
Under What Circumstances Does the U.S. Constitution Require that the State Compensate the Landowner for These Effects?

17. Unit Three : Constitutional Protection of Private Property
Key Differences from Units One & Two
Whole Unit is Single Line of Cases from Same Court, So Need to Work With as a Group
As You Already Know, US Supreme Court Opinions Longer & More Complex
Context:
Not State Court Working with Common Law of Property
Federal Court Determining if State Law Violates US Constitution (Takes Us to DQ3.01)

18. Unit Three : Introduction DQ3.01: Role of Fed’l Court (Uranium)
When Federal Courts review state statutes to determine whether they violate the U.S. Constitution, most people believe their role does not include determining whether the statute is a good idea as a matter of policy.
Why shouldn’t a Federal Court strike down a state statute because it is stupid?

19. Unit Three : Introduction DQ3.01: Role of Fed’l Court (Uranium)
Why shouldn’t a Federal Court strike down a state statute because it is stupid?
Common Answers Include:
Democratic Theory
State Legislature is Elected Body; Fed’l Court is Not
Bill of Rights Generally as Limit on Democracy
Relative Expertise:
Legislature Can Do Better Fact-Finding
See DQ1.58 after Albers

20. Unit Three : Introduction DQ3.01: Role of Fed’l Court (Uranium)
Upshot = Default Rule is Deference to State Legislation
Many Bad Laws are Constitutional
State Legislatures Allowed to do Stupid Things Unless They Violate a Specific Constitutional Provision (Parent Analogy)

21. Unit Three : Introduction DQ3.01: Role of Fed’l Court (Uranium)
Parent Analogy
“You Are Not Leaving the House in That!!”

22. Unit Three : Introduction DQ3.01: Role of Fed’l Court (Uranium)
Default is Deference to State Legislation
States Allowed to do Stupid Things Unless They Violate a Specific Constitutional Provision
Relevant Provision Here is Takings Clause of Fifth Amendment (Applicable to States through Fourteenth Amendment)

23. Unit Three : Introduction DQ3.02: Role of Fed’l Court (Uranium)
Takings Clause of the Fifth Amendment of the U.S. Constitution: “[N]or shall private property be taken for public use without just compensation”
What sort of cases do you think the framers intended to prevent when they included this provision in the Constitution?

24. Unit Three : Introduction DQ3.02: Role of Fed’l Court (Uranium)
Takings Clause : “[N]or shall private property be taken for public use without just compensation”
Eminent Domain Qs (Not for Elements)
Govt Deliberately Attempts to Purchase Private Property (“Condemnation”)
Takings Clause requires:
“For Public Use” (Midkiff, Kelo, etc.)
“Just Compensation” (= Fair Market Value)

25. Unit Three : Introduction DQ3.02: Role of Fed’l Court (Uranium)
Takings Clause : “[N]or shall private property be taken for public use without just compensation”
Eminent Domain Qs (Not for Elements)
Takings Clause requires:
“For Public Use” = Concern About Govt Handing Out Prizes to Favored Individuals
“Just Compensation”

26. Unit Three : Introduction DQ3.02: Role of Fed’l Court (Uranium)
Takings Clause : “[N]or shall private property be taken for public use without just compensation”
Eminent Domain (Property not Elements)
Takings Clause requires “Public Use” and
“Just Compensation” = Concerns About
Ensuring Govt Has to Consider/Budget to Take Land
Protecting/Encouraging Investment in Land
Taking Property to Punish Disfavored Individuals
Redistributing Wealth

27. Unit Three : Introduction DQ3.02: Role of Fed’l Court (Uranium)
Takings Clause : “[N]or shall private property be taken for public use without just compensation”
Eminent Domain (Property not Elements)
Takings Clause requires “Public Use” and
“Just Compensation” = Concerns About
Taking Property to Punish Disfavored Individuals
Redistributing Wealth
Speculation re Madison & Slavery

28. Unit Three : Introduction DQ3.02: Role of Fed’l Court (Uranium)
Takings Clause : “[N]or shall private property be taken for public use without just compensation”
Eminent Domain Cases
Takings Cases (Elements Unit Three)
Govt Not Trying to Purchase, but to Regulate
Property Owner Claims Regulation Effectively “Takes” Property so Gov’t Must Cease or Pay (“Inverse Condemnation” Action)

29. Unit Three : Introduction DQ3.02: Role of Fed’l Court (Uranium)
Takings Clause : “[N]or shall private property be taken for public use without just compensation”
Eminent Domain Cases
Takings Cases (Elements Unit Three)
Property Owner Claims Regulation Effectively “Takes” Property so Govt Must Cease or Pay (“Inverse Condemnation” Action)
Little Historical Evidence Connecting Framers to These Claims

30. Unit Three : Introduction DQ3.02: Role of Fed’l Court (Uranium)
Takings Cases (Elements Unit Three)
Property Owner Claims Regulation Effectively “Takes” Property so Govt Must Cease or Pay
Left with Hard Q of When Govt Must Pay
Really No Historical Guidance
Generally Defer to State Legislative Process
Can’t Pay for All Loss of Value (Military Bases; Opium Poppies)

31. Unit Three : Introduction Relevant Considerations in Takings Cases
We’ll Look at Cases & Theorists to Determine What’s Relevant
Cases Complex (Like Escape Cases)
Use a Variety of Factors
Can Use Charts to Keep Track
Survey for Friday re what YOU think might be relevanty

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