1. ELEMENTS B POWER POINT SLIDES Class #30 Wednesday, November 11, 2015 National Sundae Day & Veterans Day

2. SHOW BOAT (1927) Music by Jerome Kern Book & Lyrics by Oscar Hammerstein II 1994 Broadway Cast Album Now Posted on Course Page: Complete Assignment Sheet Assmt #3: Comments/Best Answers Exam-Taking Workshop: – Power Point Slides – Link to Video Exam Question III: Bank of Old Qs Office Hours Schedule Thru 12/1 Office Hours This Week Today 10-12 Tomorrow 9:30-11 Friday Class: 9:25-10:50

3. Mahon Analysis cont’d

4. Mahon Analysis: Holmes Majority Very Narrow Holding A Gov’t Regulation is a Taking Where It: 1.Extinguishes a property right specifically contracted for by O; 2.renders O’s remaining property rights valueless; 3.is not addressing safety issue; AND 4.is not addressing widespread public harm; AND 5.does not create reciprocity of advantage.

5. Mahon Analysis: Holmes Majority Explore Possible Broader Holdings by 1.Looking at the ways Justice Brandeis disagrees with Justice Holmes re a.Diminution in Value (DQ3.14) b.Public Nuisance (DQ3.15) c.Reciprocity of Advantage (DQ3.16) 2.Looking at Important Language in Maj. Opinion 3.Will Yield Possible Rules: DQ3.17

6. Mahon Analysis: Holmes & Brandeis DQ3.14: Height Restrictions (Krypton) Measuring Loss of Value: Quick Recap HMS argument similar to Kelso HMS argument similar to Kelso – Relevant property here is mineral rights – Assumes Act reduces value to 0  Taking BDS disagrees for two reasons BDS disagrees for two reasons 1.Doesn’t accept that value of mineral rights is 0 2.Need to view mineral rights in context of “value of all other parts of the land.” (last para. p. 119)

7. Mahon Analysis: Holmes & Brandeis DQ3.14: Height Restrictions (Krypton) Measuring Loss of Value BDS: Need to view mineral rights in context of “value of all other parts of the land.” BDS: Need to view mineral rights in context of “value of all other parts of the land.” – Look at value of coal and surface together, not value of coal alone – Why? Owner can’t get more rights v. Gov’t by dividing land. – Example/Analogy: Height Restrictions

8. Mahon Analysis: Holmes & Brandeis DQ3.14: Height Restrictions (Radium) Measuring Loss of Value BDS Example/Analogy: Height Restrictions – Like Kohler Act, forbid use of part of parcel – BUT conceded to be valid/Constitutional – Height restrictions not characterized as: “Value of air rights reduced to 0. ”

9. Mahon Analysis: Holmes & Brandeis DQ3.14: Height Restrictions (Radium) Measuring Loss of Value BDS Example/Analogy: Height Restrictions BDS Example/Analogy: Height Restrictions – p.119-20: “[N]o one would contend that by selling his interest above 100 feet from the surface he could prevent the state from limiting, by the police power, the height of structures in a city. And why should a sale of underground rights bar the state’s power?” We’ll revisit issue in Penn Central.

10. Mahon Analysis: Holmes & Brandeis DQ3.14: Height Restrictions (Radium) Measuring Loss of Value Example of “Denominator Q”: How Do You Decide Relevant Piece of Property to Value? Example of “Denominator Q”: How Do You Decide Relevant Piece of Property to Value? – BDS: Look at whole parcel top to bottom – Important Argument for Denominator Q: Dividing property shouldn’t affect gov’t power to regulate – HMS: Doesn’t explicitly address BDS approach

11. Mahon Analysis: Holmes & Brandeis DQ3.14: Height Restrictions (Radium) Measuring Loss of Value What is Relevant Piece of Property to Value? BDS: Look at whole parcel top to bottom HMS: Doesn’t explicitly address BDS approach HMS: Doesn’t explicitly address BDS approach – Might disagree, believing should just look at what this O has – Might agree with approach but still think CCs should win b/c Coal much more valuable than surface rights; and/or Loss in value of coal much greater than BDS believes

12. Mahon Analysis: Holmes & Brandeis DQ3.14: Height Restrictions (Radium) Measuring Loss of Value What is Relevant Piece of Property to Value? BDS: Look at whole parcel top to bottom HMS: Doesn’t explicitly address BDS approach QUESTIONS?

13. Mahon Analysis: Holmes Majority Explore Possible Broader Holdings by 1.Looking at the ways Justice Brandeis disagrees with Justice Holmes re a.Diminution in Value (DQ3.14) b.Public Nuisance (DQ3.15) c.Reciprocity of Advantage (DQ3.16) 2.Looking at Important Language in Maj. Opinion 3.Will Yield Possible Rules: DQ3.17

14. Mahon Analysis: Holmes & Brandeis DQ3.15: Public Nuisance (Krypton) HMS: No Public Nuisance in Case: HMS: No Public Nuisance in Case: – Only one house; not common or public damage. – Not safety issue because of notice. – Shouldn’t protect people who took risk of only purchasing surface rights.

15. Mahon Analysis: Holmes & Brandeis DQ3.15: Public Nuisance (Krypton) HMS: No Public Nuisance in Case: BDS disagrees; characterizes as “noxious use” and Public Nuisance BDS disagrees; characterizes as “noxious use” and Public Nuisance – Act includes public buildings, etc. as well as houses – Notice not enough to protect public interest in safety – Should defer to Legisl. on need for safety measure – Interest can be “public” even if helps private parties

16. Mahon Analysis: Holmes & Brandeis DQ3.15: Public Nuisance (Krypton) HMS: No Public Nuisance in Case: BDS says Public Nuisance/noxious use: Significance if Considered “Public Nuisance”? Significance if Considered “Public Nuisance”? – BDS: OK to regulate to prevent Public Nuisance even if deprives O of only profitable use – HMS: Nothing in majority suggests he disagrees on legal significance, just on reading of facts

17. Mahon Analysis: Holmes & Brandeis DQ3.15: Public Nuisance (Krypton) Significance if Considered “Public Nuisance”? Significance if Considered “Public Nuisance”? – BDS: Constitutional to regulate to prevent Public Nuisance even if deprives O of profitable use – HMS: Nothing in majority suggests he disagrees on legal significance, just on reading of facts Questions? Questions?

18. Mahon Analysis: Holmes Majority Explore Possible Broader Holdings by 1.Looking at the ways Justice Brandeis disagrees with Justice Holmes re a.Diminution in Value (DQ3.14) b.Public Nuisance (DQ3.15) c.Reciprocity of Advantage (DQ3.16) 2.Looking at Important Language in Maj. Opinion 3.Will Yield Possible Rules: DQ3.17

19. (Uranium) Mahon Analysis: Holmes & Brandeis DQ3.16: Reciprocity (Uranium) P and state relied on Plymouth Coal : US SCt upheld state requirement that CCs, when mining, leave enough coal in place to serve as pillars between mines. (top p.118) Holmes distinguishes: Holmes distinguishes: – involved safety of miners plus: – “secured an average reciprocity of advantage”

20. (Uranium) Mahon Analysis: Holmes & Brandeis DQ3.16: Reciprocity (Uranium) “Average Reciprocity of Advantage” Benefit resulting precisely from fact that others are restricted in the same way Not just general benefit from the regulation Can see as an aspect of diminution in value – Get something back, so less diminution – Example/Subset of Epstein’s “Implicit Compensation”

21. (Uranium) Mahon Analysis: Holmes & Brandeis DQ3.16: Reciprocity (Uranium) “Average Reciprocity of Advantage” Benefit resulting precisely from fact that others are restricted in the same way. (Not just general benefit from the regulation.) E.g., Plymouth Coal: Purpose: prevent cave-ins where two mines meet. neighboring – I lose some coal because I can’t mine to property line; benefits neighboring mine, which doesn’t collapse – He he my – He loses some coal because he can’t mine to property line; benefits my mine, which doesn’t collapse.

22. (Uranium) Mahon Analysis: Holmes & Brandeis DQ3.16: Reciprocity (Uranium) “Average Reciprocity of Advantage” Benefit resulting precisely from fact that others are restricted in the same way. (Not just general benefit from the regulation.) E.g., City Ordinance: Storeowners in Business District must keep sidewalk in front clear of snow – I have to use labor to comply; might not be worth it for my store alone; benefits all neighboring stores – Neighbors have to use labor to comply; might not be worth it for their store alone; benefits me & other neighboring stores – E.g., Residential Only Zoning: No Commercial Uses

23. (Uranium) Mahon Analysis: Holmes & Brandeis DQ3.16: Reciprocity (Uranium) “Average Reciprocity of Advantage” Benefit resulting precisely from fact that others are restricted in the same way. Not just general benefit from the regulation. General benefits = “Rainbows”

24. (Uranium) Mahon Analysis: Holmes & Brandeis DQ3.16: Reciprocity (Uranium) “Average Reciprocity of Advantage” Benefit resulting precisely from fact that others are restricted in the same way. Not just general benefit from the regulation. General benefits = “Rainbows” Not Reciprocity : Hadacheck – I have to shut down brickworks; benefits all neighboring lots by reducing pollution. – No corresponding restriction on neighbors. I benefit from regulation, if at all, from general benefit: cleaner air in LA.

25. (Uranium) Mahon Analysis: Holmes & Brandeis DQ3.16: Reciprocity (Uranium) “Average Reciprocity of Advantage” Benefit resulting precisely from fact that others are restricted in the same way. (Not just general benefit from the regulation.) BDS: Reciprocity only matters if challenged state law is conferring a benefit, not if it is preventing harm. BDS: Reciprocity only matters if challenged state law is conferring a benefit, not if it is preventing harm. (top para. p.121) Remember Harm/Benefit Distinction for Penn Central. Remember Harm/Benefit Distinction for Penn Central.

26. (Uranium) Mahon Analysis: Holmes & Brandeis DQ3.16: Reciprocity (Uranium) (top p.121) “There was no reciprocal advantage [in Hadacheck] to the owner prohibited from using his... brickyard, … unless it be the advantage of living and doing business in a civilized community. That reciprocal advantage is given by the act to the coal operators.”

27. (Uranium) Mahon Analysis: Holmes & Brandeis DQ3.16: Reciprocity (Uranium) “the advantage of living and doing business in a civilized community” Not how Holmes or I use the term “reciprocity.” Only use where specific benefits to one regulated party arise from burdens on other regulated parties.

28. (Uranium) Mahon Analysis: Holmes & Brandeis DQ3.16: Reciprocity (Uranium) “Average Reciprocity of Advantage” Benefit resulting precisely from fact that others are restricted in the same way. (Not just general benefit from the regulation.) BDS: Reciprocity only matters if challenged state law is conferring a benefit, not if it is preventing harm. Questions?

29. Mahon Analysis: Holmes Majority Explore Possible Broader Holdings by 1.Looking at ways BDS disagrees with HMS re a.Diminution in Value (DQ3.14) b.Public Nuisance (DQ3.15) c.Reciprocity of Advantage (DQ3.16) 2.Looking at Important Language in Majority Opinion 3.Will Yield Possible Rules: DQ3.17

30. Key Language in Majority Opinion in Mahon “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.” -- (2d para. p.117) Means: Not every loss in property value = Unconstitutional Taking

31. Key Language in Majority Opinion in Mahon “[A] strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” -- (middle para. p.118) Means: A regulation is not necessarily Constitutional just because its purpose is important.

32. Mahon Analysis: Holmes Majority Explore Possible Broader Holdings by 1.Looking at ways BDS disagrees with HMS re a.Diminution in Value (DQ3.14) b.Public Nuisance (DQ3.15) c.Reciprocity of Advantage (DQ3.16) 2.Looking at Important Language in Maj. Opinion 3.Will Yield Possible Rules: DQ3.17

33. DQ3.17: Mahon Rules& Holding (Oxygen) POSSIBLE RULES: AT LEAST… 1.If diminution in value “goes too far” = Taking 2.If all value gone [and no safety issue]= Taking 3.If reciprocity of advantage, no Taking 4.If regulation destroys Property rights that were specifically contracted for = Taking

34. DQ3.17: Mahon Rules & Holding : Balancing Test? Some students read case to say courts should decide Takings claims by balancing public interest behind challenged restriction against harm to property rights. Some study guides/published briefs agree. Need to be careful; b/c you often use balancing tests in torts & elsewhere, may have instinct to use as default.

35. DQ3.17: Mahon Rules & Holding : Balancing Test? Some students read to require balancing test. Some study guides/published briefs agree. Concerns: – You often use balancing tests in Torts & elsewhere; may have instinct to use as default rule. – As was true with publishedGhen brief, published sources not always reliable Let’s look more closely

36. DQ3.17: Mahon Rules & Holding : Balancing Test? What a Balancing Test Looks Like: Careful evaluation of State’s interest Careful evaluation of harm to property owner Discussion of which is more significant & why

37. DQ3.17: Mahon Rules & Holding : Balancing Test? What a Balancing Test Looks Like: – Careful evaluation of State’s interest – Careful evaluation of harm to property owner – Discussion of which is more significant & why Hadacheck language re progress might suggest balance, but not what case does: – Discussion of state’s interest very general (police powers v. specific health concerns) – No discussion about importance of brickmaking

38. DQ3.17: Mahon Rules & Holding : Balancing Test? What a Balancing Test Looks Like: – Careful evaluation of State’s interest – Careful evaluation of harm to property owner – Discussion of which is more significant & why Hadacheck language re progress might suggest balance, but not what case does. Better read of language: A regulation is not a Taking just because it interferes with an existing long- established use

39. Key Language in Majority Opinion in Mahon: Balancing Test? “If we were called upon to deal with the plaintiffs’ posi- tion alone we should think it clear that the statute does not disclose a public interest sufficient to warrant so extensive a destruction of the defendant’s constitutionally protected rights.” (3d para. p.117) Language arguably looks like balance – Public interest is not “sufficient” – Harm to owner is “so extensive”

40. Key Language in Majority Opinion in Mahon: Balancing Test? “If we were called upon to deal with the Ps’ position alone we should think it clear that the statute does not disclose a public interest sufficient to warrant so extensive a destruction of the D’s constitutionally protected rights.” Hard to evaluate significance On its face, this language is dicta Case doesn’t really attempt thorough balance – Minimizes public interest as small & unfair – Sees private harm as total deprivation of rights – So pretty trivial balance

41. Key Language in Majority Opinion in Mahon: Balancing Test? “If we were called upon to deal with the Ps’ position alone we should think it clear that the statute does not disclose a public interest sufficient to warrant so extensive a destruction of the D’s constitutionally protected rights.” You can use passage to support balancing test BUT if you do, best to acknowledge problems Be aware later cases (e.g., Penn Central) don’t read Mahon to balance

42. DQ3.17: Mahon Rules & Holding Possible Readings of Hadacheck Regulation OK if under Police Power? Regulation OK if Preventing Public Nuisance? Regulation OK if Protecting Health/Safety Argument from Kelso: OK if Value Left Regulation OK if Furthering Progress

43. DQ3.17: Mahon Rules& Holding Possible Readings of Hadacheck: Effect of Mahon Regulation OK if under Police Power? Regulation OK if Preventing Public Nuisance? Regulation OK if Protecting Health/Safety Argument from Kelso: OK if Value Left Regulation OK if Furthering Progress

44. Relevant Considerations in Takings Cases Survey About What Facts Matter Ban on Intended Use (90%) % Reduction in Value (88%): Mahon (Generally $$$ Amount Reduction (59%) & Reciprocity) Purpose of Regulation (63%) = Hadacheck (Police Powers); Sax (Enterpriser v. Arbiter; Stopping Spillovers); Mahon (Stopping Public Nuisance) $$$ Amount Left (56%) = Kelso (maybe Hadacheck); Mahon (Zero Value) Return on Investment (39%)

45. Friedman Article on Mahon DQ3.19 Some New Info from Friedman Article: Mahons were original buyers; held land for 43 years; he was atty so understood deed CCs in practice had often left surface in place despite subsidence rights Whole chunks of Scranton on the verge of collapse. Under Penn laws, CCs had choice to exercise subsidence rights and pay damages to surface Os. Other things striking to you?

46. Friedman Article on Mahon DQ3.19 How Does Info from Friedman Article Affect the Way You Should Read Mahon? Might change your view of dispute, but as a legal matter, shouldn’t change how you read case at all. For purposes of reading case, facts are what court says they are. No different than: – Ignoring fox in well when interpreting Pierson – Ignoring facts of Liesner that aren’t in Wisc SCt opinion.

47. FINAL EXAM QUESTION 3 OPINION/DISSENT FORMAT 2014 Instructions Based on the information presented on the next two pages, compose drafts of the analysis sections of a majority opinion for the U.S. Supreme Court and of a separate dissent, deciding whether there was an unconstitutional Taking of Ashley’s property. … Assume that the record supports the trial court's findings of fact. Assume that the Supreme Court Takings cases assigned for the course (up to and including Penn Central) constitute the available precedent. The opinions you compose also may discuss the Takings theorists we have studied to the extent you find their work relevant.

48. FINAL EXAM QUESTION 3 OPINION/DISSENT FORMAT Requires You to Describe and Defend Two Positions

49. 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 Takings Cases

50. Skills: Applying Legal Authority to New Sets of Facts 1. Applying Language (Rules, Factors, Elements) 2. Comparing Facts 3. Applying Relevant Policies

51. Skills: Applying Legal Authority (Line of Takings Cases) to New Sets of Facts 1.Applying Language (Rules, Factors, Elements)  –Must be Consistent with Whole Line, Not Just Individual Case –Need to Adjust Your Notes/Outline After Each New Case 2. Comparing Facts: 3. Applying Relevant Policies

52. Skills: Applying Legal Authority (Line of Takings Cases) to New Sets of Facts 1.Applying Language (Rules, Factors, Elements)  2.Comparing Facts: –Often Useful to Compare to Two Cases with Different Results –More Like Hadacheck Than Like Mahon Because … 3. Applying Relevant Policies

53. Skills: Applying Legal Authority (Line of Takings Cases) to New Sets of Facts 1.Applying Language (Rules, Factors, Elements)  2.Comparing Facts: 3. Applying Relevant Policies –Remember NOT looking at policy used by legislature to create challenged law –Relevant policy addresses what kinds of gov’t interference with property rights require compensation

54. 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 (Useful for Justice or Clerk or Litigant) Must Understand Role of US Supreme Court (Useful for Justice or Clerk or Litigant) – 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 (We’ll Identify As We Go)

55. FINAL EXAM QUESTION 3 OPINION/DISSENT FORMAT Look at Posted Examples Look at Posted Examples We’ll Discuss at More Length & Do Review Problems Identifying and Targeting Difficult Open Legal Qs We’ll Discuss at More Length & Do Review Problems Identifying and Targeting Difficult Open Legal Qs I’ll take Qs in Class Later & at Review Session After You’ve Had Some More Exposure. In Meantime, Can Ask Qs Outside of Class or by E-Mail. I’ll take Qs in Class Later & at Review Session After You’ve Had Some More Exposure. In Meantime, Can Ask Qs Outside of Class or by E-Mail.

56. Mid-September Crisis

57. Mid-October Crisis

58. Mid-November Crisis

59. YOUR SCHEDULE Mon 11/23: L. Comm. Final Project Due Tue 11/24: Last Day of Classes Wed 11/25-Sun 11/29: T-Giving Break Mon 11/30: Elements Review Session F209 @ 2 Wed 12/2: Elements Exam (AM) Mon 12/7: Property Exam (PM) Fri 12/11: Civ Pro Exam (AM) Tue 12/15: Torts Exam (AM)

60. YOU HAVE MORE TIME THAN YOU THINK YOU DO 3-4 Days of Total Focus Before Each Test In Between: – Transition Period: Wed Nov 11-Tue Nov 24 Keep Going to Class Don’t Let L. Comm. Eat Your Life – Thanksgiving Break: Thursday Rest; Other Days Work “Do I Go Home or Not?” Schedule Prep Time for All Four Classes

61. USE OLD EXAMS Do Some Under Exam Conditions You’ll Likely Never “Feel Ready”; Build in Time to Do Anyway Look at Old Model Answers if Available – Evidence of Kind of Answer Professor Likes – BUT Generally Imperfect & Incomplete If Questions Remain Afterward, Ask! – E-Mail or Extended Office Hrs (Posted) – I’ll Always Take Specific Qs – I Can’t Look at Written Answers from 74 People

62. OTHER EXAM PREP TIPS Checklists for Open Book Exams Make Time for Group Work – Consult on Qs from Cases/Classnotes – Discuss Hypos & Old Exam Qs – Identify Likely Issues for Exam Go to Office Hours/Review Sessions – My times posted on course page

63. POINTS SPECIFIC TO ELEMENTS Grading Order: Assmt 2, Assmt 3, Whale Briefs Concern w Being First Exam – Most of You Will Be Extremely Wired – Breathe & Read Carefully Take Advantage of Range of Feedback & Info – Slides, Self-Quizzes, Sample Briefs, Comments on Assmts – Comments & Best Answers re Old Exam Qs – Enough Time to Reread Key Cases – Review Session Mon Nov 30 (2:00 p.m. Here): – A Little More on Substance of Unit III – Exam Technique for Each Q – A Few Helpful Details re Format of Your Actual Test

64. Peace of Mind Tips Now to Dec. 15: You Need to Sleep Ignore Rumor Mill Reminder re The First Year “Grade Curve” Kevin Niemann & September 2018 You Have to Work Both Hard and Efficiently BUT

65. YOU CAN DO THIS !

66. Takings Theorist #2: Richard Epstein & DQ3.20-3.21

67. Takings Theorists: Richard Epstein Would only allow gov’t acts to limit property rights without compensation in 2 situations: (1)Nuisance Controls -OR- (2) Implicit Compensation Includes “Reciprocity of Advantage” Includes Other Benefits Created by Regulatory Scheme (e.g., Tax Breaks & TDRs in Penn Central)

68. Takings Theorists: Richard Epstein DQ3.20 Would only allow gov’t acts to limit property rights without compensation in 2 situations: (1) Nuisance Controls or (2) Implicit Compensation Both arguably contract-based: Contracts we’d expect to be negotiated if no transaction costs (cf. Coase Theorem) (1) Collective buyout in nuisance case (2) Group negotiation in reciprocity case

69. Takings Theorists: Richard Epstein DQ3.21 Would only allow gov’t acts to limit property rights without compensation in 2 situations: (1) Nuisance Controls or (2) Implicit Compensation Application to Hadacheck?

70. Takings Theorists: Richard Epstein DQ3.21 Would only allow gov’t acts to limit property rights without compensation in 2 situations: (1) Nuisance Controls or (2) Implicit Compensation Application to Hadacheck? Probably Paradigm Nuisance Control Case

71. Takings Theorists: Richard Epstein DQ3.21 Would only allow gov’t acts to limit property rights without compensation in 2 situations: (1) Nuisance Controls or (2) Implicit Compensation Application to Mahon? Depends on Whether You Accept Holmes’s Characterization

72. Takings Theorists: Richard Epstein DQ3.21 Would only allow gov’t acts to limit property rights without compensation in 2 situations: (1) Nuisance Controls or (2) Implicit Compensation Application to Airspace Solution to Hammonds Problem?

73. Takings Theorists: Richard Epstein DQ3.21 Application of Epstein to Airspace Solution to Hammonds Problem? Might say Hammonds’s refusal to allow use of reservoir is like a nuisance b/c it increases expense and safety hazards for gas cos. BUT Epstein likely to want her to be compensated: – not traditional nuisance b/c harm doesn’t stem from her use of her own land. – Only compensation to her is general benefit to society of lower energy costs (Rainbows)

74. Takings Theorists: Richard Epstein DQ3.21 Application of Epstein to Airspace Solution to Hammonds Problem? Might say Hammonds’s refusal to allow use of reservoir like a nuisance BUT Epstein likely to want her to be compensated: On same reasoning, Epstein might want compensation for surface owners when airspace taken for planes. administrative costs Possible that he might agree not to compensate b/c administrative costs of paying would be so high (identify each relevant surface owner, value the air rights; set up a system to pay, etc.)

75. Takings Theorists: Richard Epstein DQ3.20 Only allow gov’t acts to limit property rts without compensation if: (1) Nuisance Controls or (2) Implicit Compensation. Strengths & Weaknesses Include: Fewer relevant considerations than Supreme Court uses Categories both leave lots of room for argument Very Protective of Landowner Rights; Promotes Investment Very Limiting to Govt Power. Regulations for, e.g., Historic Preservation, Wildlife Preservation, would probably require compensation. Other Strengths/Weaknesses? Qs?

76. Oxygen: Miller v. Schoene & DQ3.22-3.25

77. Miller v. Schoene DQ3.22: Introduction (Oxygen) Gov’t Action = Cedar Rust Act: State Entomologist can order diseased cedar trees cut down. State pays for removal but not for loss in value. Purpose? Legitimate (Connected to HSWM)? Action rationally related to purpose?

78. Miller v. Schoene DQ3.22: Introduction (Oxygen) Gov’t Action = Cedar Rust Act: State Entomologist can order diseased cedar trees cut down. Purpose: Save apple trees from spread of cedar rust disease; help big apple industry Legitimate? YES. Helping apple growers and state economy = WELFARE. Action rationally related to purpose? YES. MEETS MINIMAL RATIONAL BASIS SCRUTINY

79. Miller v. Schoene DQ3.22: Introduction (Oxygen) Gov’t Action = Cedar Rust Act: State Entomologist can order diseased cedar trees cut down. State pays for removal but not for loss in value. Limits on petitioners’ use of their property? Remaining Uses? Harm to Petitioners?

80. Miller v. Schoene DQ3.22: Introduction (Oxygen) Gov’t Action = Cedar Rust Act: State Entomologist can order diseased cedar trees cut down. State pays for removal. Petitioners’ use of their property: Cedar trees must be cut down; can do anything else with land; can do anything with wood. – Some value of tree/wood may be lost – Aesthetic loss could mean loss in land value I’ll leave Demsetz Takings Story for You

81. FINAL EXAM QUESTION 3 Mapping Chart CaseGov’t ActAffected Landowner Intended Beneficiaries HadacheckLA Bans Brickyards Brickyard OsNeighbors MahonPA Bans Undermining Coal Companies Surface Os “Airspace Solution” Rights to Empty Gas Pools Surface OsGas Companies MillerVA Cedar Rust Act Cedar Tree Os Apple Orchard Os

82. Miller v. Schoene : Introduction Procedural Posture Order from state official to cut trees Appeal to State Circuit Court, which affirmed order; required payment of cost of removal Virginia SCt aff’d: No violation of U.S. Constitution Writ of Error to US SCt (same as in Hadacheck & Mahon)

83. Miller under Prior Authorities DQ3.23 (Oxygen) Miller Easy Under Sax: No Taking – Paradigm Arbiter Case: Arbitration betw: Apple Growers (One Type of Land Use) Cedar Growers (Conflicting Type of Land Use) – Controlling Spillover Effects of Growing Cedars

84. Miller under Prior Authorities DQ3.23 (Oxygen) Miller Under Epstein: – Preventing Public Nuisance?: Likely. Can View Cedars as “Noxious Use” Harming Others BUT: Maybe Harm Not Widespread or to General Public – Implicit Compensation? No. Group Burdened Different from Group Getting Benefits Owners with Both Trees Probably Not Getting Benefits b/c Will Cut Down Cedars Themselves if Apples Valuable

85. Miller under Prior Authorities DQ3.23 (Oxygen) Miller Under Mahon & Hadacheck: Epstein Analysis Resolves Some Qs – Preventing Public Nuisance so OK?: Likely, Not Certain – Reciprocity/Implicit Compensation? No.

86. Miller under Prior Authorities DQ3.23 (Oxygen) Other Qs Under Mahon & Hadacheck: Check Loss in Value: Taking if “Too Far” – Loss in Value of Whole Lot? Big loss unlikely unless “10,000 Cedars” Could Compensate Rare Parcel w Big Loss – cf. Euclid v. Nectow – Loss in Value of Cedar Trees? Os keep wood, so not reduced to nothing, But cedar wood not very valuable, so some loss – Denominator Q Again; We’ll Revisit w Penn Central