1. Music: Carole King, Tapestry (1971) 1L Elective Choices: I’ll Review Mon/Tue Nov 12-13 Analysis of Evidence Family Law * Immigration International Environmental Law Law & Social Justice * Legislation Substantive Criminal Law

2. RADIUM Takings Theorist #1: Joseph Sax & DQ104-05

3. Takings Theorists: Joseph Sax DQ104 (Radium) Sax’s First Formulation Distinction Between: “ Government-as-Enterpriser” “Government-as-Arbiter.” For Each: Definition? Examples? What Sax Sees as Consequence and Why?

4. Takings Theorists: Joseph Sax DQ104 (Radium) 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

5. Takings Theorists: Joseph Sax DQ104 (Radium) Sax’s First Formulation Distinction Between: “ Government-as-Enterpriser” “Government-as-Arbiter.” Application Apply to Hadacheck Circumstance Where It’s Hard to Tell?

6. Takings Theorists: Joseph Sax DQ104 (Radium) “ Govt-as-Enterpriser” v. “Govt-as-Arbiter” Apply to Hadacheck: Pretty Clearly Arbiter Case (even though city may benefit some) Circumstance Where It’s Hard to Tell? E.g., Looks Like Arbiter but One Side of Dispute is Govt Owned (School, Military Base, Hospital) Apply to Airspace Solution (Argue Both Ways)

7. Takings Theorists: Joseph Sax DQ104 (Radium) “ Govt-as-Enterpriser” v. “Govt-as-Arbiter” Apply to Airspace Solution 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 Could generalize: Sax unclear if arbitrating between two private parties, but result is to give one party property rights of the other to further strong public interest.

8. Takings Theorists: Joseph Sax DQ104 (Radium) “ Govt-as-Enterpriser” v. “Govt-as-Arbiter” Three Situations that are Difficult to Categorize 1.Looks like arbitrating, but one side of dispute is gov’t owned (School, Military Base, Hospital) 2.Looks like arbitrating, but result is to transfer property rights of one party to the other to further strong public interest (not simply saying owner can’t do X) (Airspace Solution) 3.Limit on uses of private property to protect wildlife (choosing between animals and landowners not exactly the same as choosing between two sets of owners) (Ramlal B2)

9. Takings Theorists: Joseph Sax DQ105 (Radium) 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? – in “the Airspace Solution”?

10. Unit Three : Introduction Relevant Considerations in Takings Cases §B Survey About What Facts Matter (68 Responses) % Reduction in Value (61) Ban on Intended Use (61) $$$ Amount Reduction (42) Purpose of Regulation (37) = Hadacheck (Police Powers); Sax (Enterpriser v. Arbiter; Stopping Spillovers) $$$ Amount Left (29) = Kelso (left open by Hadacheck) Return on Investment (18)

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

12. Mahon v. Pennsylvania Coal Co. Background: Pennsylvania Law Property Rights in Pennsylvania Three Types; Each is Separate “Estate in Land” 1.Surface 2.Mineral (here, coal extraction) 3.Subsidence: – Right to Decide Whether to Keep Surface in Place or Undermine It. – Can be Held By Surface Owner or Mineral Rights Owner

13. Mahon v. Pennsylvania Coal Co. Background: Pennsylvania Law Property Rights in Pennsylvania Three Types; Each is Separate “Estate in Land” 1.Surface 2.Mineral (here, coal extraction) 3.Subsidence: – Right to Decide Whether to Keep Surface in Place or Undermine It. – Can be Held By Surface Owner or Mineral Rights Owner

14. 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 Contracts of Sale & Deeds for these Sales… – Explicitly retained for CCs both mineral rights & subsidence rights; – Required CCs to give notice before undermining

15. Mahon v. Pennsylvania Coal Co. Background: Factual Context Penn. Legislature becomes concerned about wide- spread 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.

16. 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

17. 1922

18. 1922: BIRTHS Bea Arthur Helen Gurley Brown Sid Caesar Doris Day Judy Garland Redd Foxx Boutros-Boutros Ghali Jack Kerouac Jack Klugman Surrender Dorothy!

19. 1922: BIRTHS Christopher Lee Charles Mingus Leslie Nielsen Yitchak Rabin Jean-Pierre Rampal Carl Reiner Charles M. Schulz Kurt Vonnegut Betty White Betty & Saruman the White

20. 1922: INTRODUCTIONS & DISCOVERIES 1st US Navy Aircraft Carrier Better Homes & Gardens British Broadcasting Co. Campbell’s Soup Dr. Doolittle Eskimo Pie Etiquette by Emily Post Hollywood Bowl Insulin Treatment of Diabetes King Tut’s Tomb Lincoln Memorial Dedicated 1st Microfilm Device National Football League Reader's Digest Rin Tin Tin Ulysses, by James Joyce Vitamin D The Waste Land by T.S. Eliot Water Skiing Yankee Stadium Construction Begins (Opens 1923)

21. 1922: U.S. EVENTS Last horse-drawn fire equipment used in Brooklyn Henry Ford makes more than $264,000 per day; AP says he’s a billionaire Growth of Radio: Many New Radio Stations + Many Firsts: – 1 st Radio in White House & 1 st Presidential Broadcast – 1st Paid Commercial – 1st Coast-to-Coast Broadcast of a Football Game – 1st Play-by-Play of World Series (Giants over Yankees 4-0 + 1 tie) Mah Jongg introduced in US; becomes a craze; by 1923, tile sets outselling even radios

22. 1922 Bonus Slide: New in American Popular Music Carolina in the Morning Chicago Do It Again I’ll Build a Stairway to Paradise My Buddy Taint Nobody’s Business if I Do Toot, Toot, Tootsie Way Down Yonder in New Orleans Louis Armstrong Goes to Chicago

23. 1922 Bonus Slide: Federal Baseball Club v. National League U.S. Supreme Court holds Major League Baseball exempt from Federal Antitrust Laws (Still True) Justice Holmes’s Majority Opinion says the business of giving “exhibitions of base ball” is not interstate commerce, and so can only be regulated by the states.

24. 1922: WORLD EVENTS Ecuador & Egypt & Ireland Became Independent Ottoman Empire Abolished USSR Formed; Joseph Stalin appointed General Secretary of the Soviet Communist Party Japan: Crown Prince Hirohito Became Prince-Regent Italy: Mussolini & Fascists Take Power Germany: Runaway Inflation; Stock Market Crash; Hitler Addressed 50,000 National Socialists in Munich

25. Mahon v. Pennsylvania Coal Co. DQ106: Introduction (Radium) Govt Action at Issue = Kohler Act (Forbids CCs from Causing Surface to Collapse While Mining Purposes of the Action: Prevent Subsidence when Buildings on Surface (to further Safety and Welfare) Is action rationally related to protecting Safety? To improving/protecting Welfare?

26. Mahon v. Pennsylvania Coal Co. DQ106: Introduction (Radium) 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 neighbors’ property values to disruption of economy (Katrina issues) to environmental harms (Garry B1)

27. Mahon v. Pennsylvania Coal Co. DQ106: Introduction (Radium) 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?

28. Mahon v. Pennsylvania Coal Co. DQ106: Introduction (Radium) 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 – Harm according to Holmes?

29. Mahon v. Pennsylvania Coal Co. DQ106: Introduction (Radium) 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: (bottom of p.108) “warranted in assuming” statute makes mining “commercially impracticable”, so whole value gone.

30. Mahon v. Pennsylvania Coal Co. DQ106: Introduction (Radium) 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: (top of p.111) “For aught that appears [in the record] the value of the coal kept in place by the restriction may be negligible….” [Means?]

31. Mahon DQ106: Demsetz Takings Story (Radium) Decision: Do CCs undermine surface when they mine? Old Rule (before Kohler Act)?

32. Mahon DQ106: Demsetz Takings Story (Radium) Decision: Do CCs undermine surface when they mine? Old Rule: Can undermine surface if own subsidence rights Externalities?: Tricky Issue

33. 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

34. Mahon: Externalities & Contract Rights Direct harm to surface owners not an externality b/c not external to decisions/activities of CCs. Possible externalities beyond direct harm to surface owners?

35. Mahon: Externalities & Contract Rights Direct harm to surface owners not an externality b/c not external to decisions/activities of CCs. 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, not to others who might get disease from subject – Could do analysis like “Contract void as against public policy”: Not allow or enforce agreement that has large costs no non-contracting parties