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

2. 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)

3. 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

4. Every kiss begins with Kay®
As Black Friday Approaches: Too Much
Every kiss begins with Kay®

5. I’ve seen those Kay Jewelers ads …

6. … but frankly, if I give someone a $5000 diamond bracelet, …

7. … I’m looking for a little more than a kiss. That’s why I shop at …

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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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)

15. 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

16. 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)

17. 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 8pm)
No Qs Over Weekend; No More Qs to Me
Double-Check Formatting & Substantive Instructions if Qs & Before Final Submission

18. Intro to Unit Three: Constitutional Protection of Private Property LECTURE (DQs ) integrated with
Hadacheck v. Sebastian (1915) OXYGEN: DQs 3.06* KRYPTON: DQs *

19. 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

20. 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.

21. 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.

22. 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

23. 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

24. 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?

25. 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

26. 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

27. 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

28. 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

29. 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?

30. 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

31. 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?

32. 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?

33. 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?

34. 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

35. 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

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

37. 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 )
Four Theorists (Each Panel will Introduce One)
-- Radium: Joseph Sax -- Oxygen: Frank Michelman
-- Uranium: Richard Epstein -- Krypton: Bruce Ackerman

38. 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.

39. 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?

40. 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

41. 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?

42. 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)