1. Music: MEAT LOAF BAT OUT OF HELL (1977) Office Hours This Week: – TUE 3:15-4:45pm – WED 10:15am-12:15pm – FRI 11:45am-1:45pm – SUN 1:00-5:00 pm

2. Class #35 Review Problem 3A(i) (Uranium) Michelman Continued Application of Prior Authority to Penn Central Facts Penn Central Arbitrariness Claim 1978 Begin Penn Central Takings Analysis

3. FINAL EXAM QUESTION 3 OPINION/DISSENT FORMAT Requires You to Describe and Defend Two Positions Must Show that You Understand Range of Relevant Arguments Arising from Line of Cases Must Understand Role of US Supreme Court – Deciding One Case, BUT Setting Rules for Many – Can Choose to Affirm or Modify Precedent BUT Must Defend – Need to Resolve One or More Difficult Open Qs (Review Problems 3A-3C)

4. FINAL EXAM QUESTION 3 Review Problem 3A (Uranium) FROM EXAM QUESTION IIID (1998) 1979: State Opens Minimum-Security Prison Adjacent to Bart’s Vacant Lot Findings of Fact – B received vacant lot under terms of his father’s will. – Value reduced by > 2/3 ($2.2M(1970)  $600K(1980)). – The prison constituted no threat to the health or safety to present or future residents of B’s parcel. – No change in allowable uses of B’s parcel.

5. FINAL EXAM QUESTION 3 Review Problem 3A (Uranium) XQIIID: Big loss in value to B’s parcel when state opened prison on neighboring lot. Part (ii): Unconstitutional “Taking” if landowners’ property value is reduced significantly but Os acquired the property in Q by gift/will/inheritance, so arguably made no investment? Part (ii): Unconstitutional “Taking” if landowners’ property value is reduced significantly but Os acquired the property in Q by gift/will/inheritance, so arguably made no investment? – Assigned to URANIUMS for next Monday – Had been incorrectly listed as 3A(i) again on Assignment Sheet (I’ve fixed)

6. FINAL EXAM QUESTION 3 Review Problem 3A (Uranium) XQIIID: Big loss in value to B’s parcel when state opened prison on neighboring lot. Part (i): Unconstitutional “Taking”? Landowners’ property value is reduced significantly but Part (i): Unconstitutional “Taking”? Landowners’ property value is reduced significantly but – The state’s use causes no tangible harms to the landowners Have to accept findings of fact Have to accept findings of fact Basically means loss of value caused by irrational fear Basically means loss of value caused by irrational fear – AND The state places no limits on the landowners’ use of their lots

7. ELEMENTS B/D As Black Friday Approaches : Too Much Part Two

8. Every kiss begins with Kay®

9. & Jane Seymour & Jane Seymour Bond Girl Medicine Woman Queen of TV Miniseries Third Wife of Henry VIII

10. “Behind Every Open Heart is a Story” ~present~ Jane Seymour’s “Open Heart” Collection

11. Unfortunately, it’s usually a story about cholesterol.

12. Class #35 Review Problem 3A(i) Michelman Continued Application of Prior Authority to Penn Central Facts Penn Central Arbitrariness Claim 1978 Begin Penn Central Takings Analysis

13. Takings Theorist #3: Frank Michelman Introduction to Concepts - DQ3.27-3.28 cont’d (me) - DQ3.29 (radium)

14. Takings Theorists: Frank Michelman from last time Compensate losers if Costs of Compensating (= Settlement Costs) are less than Costs of Not Compensating (= Demoralization Costs)

15. Takings Theorists: Frank Michelman DQ3.27-3.28 Role of Efficiency Gains Efficiency Gains are the net benefits of implementing the regulation in question. Result of cost/benefit analysis legislature should have done in order to decide to adopt the regulation

16. Takings Theorists: Frank Michelman DQ3.27-3.28 Efficiency Gains = net benefits of implementing regulation in question. E.g., in Hadacheck: – Gains (Harm Prevented) b/c no brickyards (health; property values) LESS – Costs of Regulation (Harm to brick industry from having to shut down and relocate; harm from increase in cost of bricks; costs of implementation and enforcement)

17. Takings Theorists: Frank Michelman DQ3.27-3.28 Efficiency Gains = net benefits of implementing regulation in question. E.g., in Miller: – Gains (Harm Prevented) to apple orchards & state economy b/c cedar rust limited LESS – Costs of Regulation (Harm to cedar owners & neighbors; costs of implementation and enforcement)

18. Takings Theorists: Frank Michelman DQ3.27-3.28 Role of Efficiency Gains Efficiency Gains are the net benefits of implementing the regulation in question. If Efficiency “Gains” are negative, legislature shouldn’t pass regulation at all. If Efficiency “Gains” are negative, legislature shouldn’t pass regulation at all.

19. Takings Theorists: Frank Michelman DQ3.27-3.28 Role of Efficiency Gains Efficiency Gains are net benefits of implement- ing the regulation in question. If negative, legislature shouldn’t pass regulation at all. Important: Ordinarily, not part of Takings analysis. Important: Ordinarily, not part of Takings analysis. Under Euclid & Miller, assessing efficiency gains is job for state legislature, not fed’l court. Under Euclid & Miller, assessing efficiency gains is job for state legislature, not fed’l court.

20. Takings Theorists: Frank Michelman DQ3.27-3.28 Role of Efficiency Gains both Even if Efficiency Gains are positive, but less than both Settlement Costs and Demoralization Costs, in theory, shouldn’t proceed with regulation (net loss to society).

21. Takings Theorists: Frank Michelman DQ3.27-3.28 Role of Efficiency Gains If Efficiency Gains less than both Settlement Costs and Demoralization Costs, in theory, shouldn’t proceed with regulation. if both SC & DC seem very high Could suggest this in a particular Takings case if both SC & DC seem very high, but very hard to know with precision. central Really a legislative Q, so shouldn’t be central to Takings Analysis

22. Takings Theorists: Frank Michelman DQ3.27-3.28 Role of Efficiency Gains Efficiency Gains are the net benefits of implementing the regulation in question. – If negative, legislature shouldn’t pass regulation at all. – If less than both Settlement Costs and Demoralization Costs, in theory, shouldn’t proceed with regulation. – Primarily legislative Qs; not part of judicial Takings analysis. QUESTIONS?

23. Takings Theorists: Frank Michelman DQ3.29 (radium) Fairness Principle Explain in your own words.

24. Takings Theorists: Frank Michelman DQ3.29 (radium) Fairness Principle OK not to compensate, if affected parties ought to understand how not compensating in similar cases probably is more beneficial in long run. – Like work of John Rawls on “justice” generally: Look at problem before you know which people in particular will be affected. – Can’t measure this, so using principle = arguments about fairness and how people are likely to react

25. Takings Theorist #3: Frank Michelman Application of Theory DQ3.30 (radium: apply to earlier cases & “airspace solution”) DQ 3.33 (oxygen: apply to P.C.)

26. Takings Theorists: Frank Michelman from last time Compensate losers if Costs of Compensating (= Settlement Costs) are less than Costs of Not Compensating (= Demoralization Costs)

27. Takings Theorists: Frank Michelman DQ3.30 & 3.33: Application of Theory Settlement Costs Easy to Identify Losers? Administrative Costs of Paying Claims (Valuation/Distribution) Value of Settlements (Number x Amount) Apply to Facts of … Hadacheck Miller Mahon Airspace Solution Penn Central (OXYGEN)

28. Takings Theorists: Frank Michelman DQ3.30 & 3.33: Application of Theory Demoralization Costs Likely Perception of Harm to Losers? Likely Perception of Winners/Importance of State Interest? Possible Variations in Spin? Apply to Facts of … Hadacheck Miller Mahon Airspace Solution Penn Central (OXYGEN)

29. Takings Theorists: Frank Michelman Application of Fairness Principle OK not to compensate, if affected parties ought to understand how not compensating in similar cases probably is more beneficial in long run. Likely similar analysis to Demoralization Costs Michelman likely thinks reasonable people OK with cases like Hadacheck w extensive harm Principle might operate differently in Mahon because of recognition of possible harms to society from overturning established contract rights.

30. Class #35 Review Problem 3A(i) Michelman Continued Application of Prior Authority to Penn Central Facts (OXYGEN) Penn Central Arbitrariness Claim 1978 Begin Penn Central Takings Analysis

31. Penn Central: DQ3.32-3.33 (Oxygen) Apply Prior Authority to PC Facts To Practice Using Earlier Cases/Theorists To Further Understand Earlier Cases/Theorists To See What Arguments Lawyers Might Have Made to the US SCt When It Decided PC Like Treating PC Facts as Exam Question

32. Penn Central: DQ3.32-3.33 (Oxygen) Apply Prior Authority to PC Facts Sax/Miller – Pure Arbiter/Miller Case? – Enterpriser Case? – Other Arguments from Sax or Miller

33. Penn Central: DQ3.33 Apply Theorists to Facts of PC: Sax Arbiter v. Enterpriser: – Not Standard Arbiter Case b/c No Land Use Conflict – Not Standard Ent. Case b/c Gov’t Doesn’t Want to Run – Might Argue : More like Ent. b/c Gov’t Wants Parcel Used Only for Particular Purpose that Serves Gov’t Interest Control Spillover Effects – Not Preventing Harm to Other Land Uses – BUT: Externalities to NYC from decision to change bldg.

34. Penn Central: DQ3.32-3.33 (Oxygen) Apply Prior Authority to PC Facts Sax/Miller Epstein & Related Arguments – Public Nuisance/Hadacheck Case? – Implicit Compensation/Reciprocity?

35. Penn Central: DQ3.33 Apply Theorists to Facts of PC: Epstein Stopping Public Nuisance: NO Implicit Compensation – Reciprocity? Last Time: Normally not for Hist. Preservation Penn Central does get some tourism benefits – Other Compensation? Tax Breaks: Probably Not Enough to Matter (Not Raised) TDRs: Could discuss; might depend on actual value

36. Penn Central: DQ3.32-3.33 (Oxygen) Apply Prior Authority to PC Facts Sax/Miller Epstein & Related Arguments Arguments from Mahon (beside reciprocity)? – Too Far? – Value to Zero? – Other?

37. Penn Central: DQ3.32 Arguments about Penn Central from Mahon include: Loss in Property Value = “Too Far”? – Losing $2 Million/year – BUT retains value of building + reasonable rate of return – Gets TDRs + tax breaks – Would need better data plus discussion re “too far” Value to Zero?

38. Penn Central: DQ3.32 Arguments about Penn Central from Mahon include: Value to Zero? – If look at whole parcel, NO – If look at air rights alone, MAYBE City might allow use of air rights if better design TDRs may allow moving value of air rights to new site

39. Penn Central: DQ3.32-3.33 (Oxygen) Arguments about PC from Prior Cases One Common Way to Do This: Compare Facts of Old Case to Facts of New Case/Hypo

40. Penn Central: DQ3.32-3.33 (Oxygen) Compare Facts of Old Case to Facts of PC E.g., Compare Nectow to Penn Central: – PC: Less Interference w Ppty Rts (Value Left) – PC: Furthers Police Power (Welfare) (Nectow Didn’t) – Thus, Better Case for Gov’t than Nectow

41. Penn Central: DQ3.32-3.33 (Oxygen) Compare Facts of Old Case to Facts of PC E.g., Compare Hadacheck to Penn Central: – Gov’t Purpose? Stronger in Hadacheck – Interference with Property Rights? Hard Call Had: Basically can do anything except existing use; may have substantial loss on investment. PC: Basically can only do existing use; still have reasonable return on investment.

42. Penn Central: DQ3.32-3.33 (Oxygen) Compare Facts of Old Case to Facts of PC If compare facts for all cases, should see that PC facts are between the other cases (like an exam Q): – Smaller interference w property rights than Mahon or Nectow; greater interference than Miller (Hard to say re Hadacheck) – Arguably less important purpose than Hadacheck or Miller; more important than Nectow or arguably Mahon (at least as described by Holmes)

43. Penn Central: DQ3.32-3.33 (Oxygen) Compare Facts of Old Case to Facts of PC If compare facts for all cases, should see that PC facts are between the other cases (like an exam Q): Suggests Theorists especially helpful to resolve. Note that US SCt in PC explicitly relies on both Sax and Michaelman. (Epstein not yet written).