ELEMENTS B POWER POINT SLIDES Class #31 Friday, November 13, 2015 National Indian Pudding Day.

ELEMENTS B POWER POINT SLIDES

Class #31Friday, November 13, 2015

National Indian Pudding Day

Music: Alberta Hunter Amtrak Blues (1980)

On Course PageOn Course PageComments on Assmt #1 Q1B3

Write-Up of Bad Ghen Brief (Saturday)Comments on Individual Assmt 3

Submissions from 2014 (Saturday/Sunday)

Elements B: 11/13

As Valentine’s Day As Valentine’s Day Approaches: Approaches:

Too Much Too Much

Part TwoPart Two

Every kiss begins with Kay®

& Jane Seymour& Jane SeymourBond Girl

Medicine WomanQueen of TV MiniseriesThird Wife of Henry VIII

“Behind Every Open Heart is a Story”

~present~

Jane Seymour’s “Open Heart”

Collection

Unfortunately, it’s usually a story about

cholesterol.

Miller v. SchoeneContinuedOxygen: Oxygen:

DQ3.24-3.25DQ3.24-3.25

Miller v. SchoeneDQ3.24: Addressing Eubank

(Oxygen) • Local Regulation: Land use decision required

if requested by 2/3 of neighbors

• US SCt in Eubank says Unconstitutional– Problem appears to be having some property

owners dictate rules for others (w no mediation by state)

– Pretty clear possibility of unfair/arbitrary result

• Why did pet’r say Eubank relevant to Miller?


(Oxygen) • Land use decision required if requested by 2/3 of

neighbors; US SCt in Eubank says Unconstitutional

• Pet’r argues Eubank relevant b/c gov’t action (cutting trees) triggered by request of neighbors

• What was Court’s Response?



neighbors; US SCt in Eubank says Unconstitutional

• Pet’r argues Eubank relevant b/c gov’t action (cutting trees) triggered by request of neighbors

• SCt: In Miller, challenged decision not made by neighbors nor required b/c of their request– Gov’t Official Decides Independently

– Decision Subject to Judicial Review

– Looks Like Adequate Process; Not Arbitrary



neighbors; US SCt in Eubank says Unconstitutional• Pet’r argues Eubank relevant b/c gov’t action (cutting

trees) triggered by request of neighbors• SCt: Decision in Miller differs; made by Gov’t official

subject to judicial review• As in Hadacheck, arbitrariness claim made &

rejected. (Reminder: Not our issue!!)

Questions on Questions on EubankEubank Issues? Issues?

Miller v. Schoene: Key Language (Compare with

Sax)

Miller contains important language that seems to describe the

government’s role as “Arbiter” (in Sax’s terms) and its Constitutional

implications.


Sax)Top p.128: “… the state was under the necessity of making a choice between the preservation of one class of property and that of the other wherever both existed in dangerous proximity. …


Sax)Top p.128: … It would have been none the less a choice if, instead of enacting the present statute, the state, by doing nothing, had permitted serious injury to the apple orchards within its borders to go on unchecked….


Sax)Top p.128: … When forced to such a choice the state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public.”


Sax)Passage on top of p.128 means:• Choice between two conflicting land uses (= Sax

arbiter case) is OK even if state has a very strong interest in choosing one over the other.

• Would make no sense to have a rule that said, The better the state’s reasons, the more likely it has to pay compensation.


Sax)Top p.128: … When forced to such a choice the state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public.”


Sax)Passage on top of p.128 means:• Court allows state legislature to make this

choice. • Court does not say it is the job of federal

courts to make it.


Sax)Top p.128: “… the state was under the necessity of making a choice between the preservation of one class of property and that of the other wherever both existed in dangerous proximity. …

–NOT between any two private interests, but two “classes” of private property (again Sax arbiter)

–NOT between public and private interests

Miller v. Schoene: Holding & Rules

DQ3.25 (Oxygen) What rules can you derive from Miller?

•Can choose between one kind of private property and another in public interest .

•In making this choice, can prefer the private interest supported by greater public interest even to the extent of destruction of the other (can take value to zero).


DQ3.25 (Oxygen) What rules can you derive from Miller?

•Can choose between one kind of private property and another in public interest .•In making this choice, can prefer the private interest supported by greater public interest even to the extent of destruction of the other (can take value to zero).•Very Important: Case does not address a choice between a purely public interest on one side and a purely private interest on the other


DQ3.25 (Oxygen) Effect on meaning of Hadacheck?

•Explicitly reaffirms Hadacheck

•Shouldn’t be technical in defining “nuisance” (suggests SCt thinks this is “Publ. Nuis.” case)

•Seems to characterize Hadacheck as a destruction-of-property case

•Re Kelso: AllowedAllowed to take value to zero where choosing one kind of property over another


DQ3.25 (Oxygen) Effect on meaning of Mahon?

•Clarifies Mahon didn’t overrule Hadacheck•Reciprocity not necessary; none here•Public Safety issue not necessary; none here

•Allowed to take value to zero where choosing one kind of property over another

•Maybe suggests don’t look at smallest possible unit of property (trees)

Hadacheck + Mahon + Miller

“[W]here the public interest is involved, preferment of that interest over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property.” (Miller citing Hadacheck)

Unclear how this fits with Mahon, which Miller ignores entirely.


DQ3.25 (Oxygen) Effect on meaning of Mahon?

•Possible Very Broad Reading of Miller: Mahon only prohibits destruction of property rights that are explicitly contracted for.

BUTBUT Helpful to Keep in Mind: BothBoth Holmes & Brandeis Join

Miller

Questions Questions onon

Miller v. Miller v. Schoene?Schoene?

Relevant Considerations in Takings Cases

Survey About What Facts Matter•Ban on Intended Use (90%)

•% Reduction in Value (88%): Mahon (Generally); Mahon•$$$ Amount Reduction (59%) & Epstein (Impl. Comp.)

•Purpose of Regulation (63%) = Hadacheck (Police Powers); Sax & Miller (Enterpriser v. Arbiter; Stopping Spillovers); Mahon & Epstein & Miller (Stopping Public Nuisance)

•$$$ Amount Left (56%) = Kelso (maybe Hadacheck); Mahon (Zero Value)•Return on Investment (39%)

Miller v. Schoene: Florida Footnote

• Citrus Canker is Disease That Spreads Among Different Kinds of Citrus Trees– In Florida, Canker Threatens Giant

Citrus Industry– If State Finds, Take All Citrus Trees w/in

Certain Distance– Right in My Own Backyard

Miller v. Schoene: Florida Footnote

• Citrus Canker is Disease That Spreads Among Different Kinds of Citrus Trees– In Florida, Canker Threatens Giant Citrus

Industry– If State Finds, Take All Citrus Trees w/in

Certain Distance

• State Pays Limited Compensation – Coupon for Non-Citrus Trees – Political Decision – Miller: Compensation Not Required by

US Const

Elements Insight: Elements Insight: A New View of an Ancient A New View of an Ancient

BattleBattleAPPLES ORANGES

Elements Insight: Elements Insight: A New View of an Ancient BattleA New View of an Ancient Battle

CHARACTERISTICS ORANGES

GROW ON TREES?



GROW ON TREES? YESYES YESYES

TYPE OF FRUIT?




TYPE OF FRUIT? YESYES YESYES

MAKE JUICE FROM?





MAKE JUICE FROM? YESYES YESYES

SEPARATABLE PEEL?






SEPARATABLE PEEL? YESYES YESYES

CROSS-SECTION IS ROUND?







CROSS-SECTION IS ROUND? YESYES YESYES

MAJOR U.S. CASH CROP?








MAJOR U.S. CASH CROP? YESYES YESYES

SOURCE OF VITAMIN C?








MAJOR U.S. CASH CROP? YESYES YESYES

SOURCE OF VITAMIN C? YESYES YESYES





Other 1920’s Cases

Village of Euclid v. Ambler Realty Co. (1926)

& Nectow v. City of CambridgeNectow v. City of Cambridge

(1928)(1928)

DQ3.26DQ3.26

DQ3.26: 1920s CasesVillage of Euclid v. Ambler

Realty Co.Thrust of Euclid?

•Upholds facial validity (under police power) of modern comprehensive zoning scheme.

•Reserves Q of whether zoning as applied to a particular parcel might be unconstitutional.

DQ3.26: 1920s Cases Village of Euclid v. Ambler

Realty Co.• Upholds facial validity (under police

power) of modern comprehensive zoning scheme.

Significance to line of cases we’ve read?

• Significant deference to legislative choices & line-drawing (in the abstract). Consistent w Miller. Key Language makes clear: That a line is hard to draw doesn’t make it impermissible.


Realty Co.Key Language re Deference to

Legislatures:

•Long Block Quote (bottom p.130): “[I]t may … happen that not only offensive or dangerous industries will be excluded, but those which are neither offensive nor dangerous will share the same fate. …


Realty Co.Key Language re Deference to Key Language re Deference to

LegislaturesLegislatures: :

•Long Block Quote (bottom p.130): “… But this … happens in respect of many practice- forbidding laws which this court has upheld, although drawn in general terms so as to include individual cases that may turn out to be innocuous in themselves. The inclusion of a reasonable margin, to insure effective enforcement, will not put upon a law … the stamp of invalidity. …


Realty Co.Key Language re Deference to Key Language re Deference to

LegislaturesLegislatures:

•Long Block Quote (bottom p.130): “… Such laws may also find their justification in the fact that, in some fields, the bad fades into the good by such insensible degrees that the two are not capable of being readily distinguished and separated in terms of legislation.”

DQ3.26: 1920s CasesNectow v. City of Cambridge

Thrust of Nectow?•Finds unconstitutional the application of a zoning scheme to a particular parcel.

•Answers Q reserved in Euclid.

DQ3.26: 1920s Cases Nectow v. City of Cambridge

• Finds unconstitutional the application of a zoning scheme to a particular parcel.

Why was application unconstitutional?

• Factual findings in Nectow that application …

a) Eliminated profitable use of lot **AND*AND*

b) Not in furtherance of police power interests

DQ3.26: 1920s Cases Nectow v. City of Cambridge

• Finds unconstitutional the application of a zoning scheme to a particular parcel where a) Eliminated profitable use of lot **AND*AND* b) Not in furtherance of police power

interests

Significance to line of cases we’ve read?

• Pretty Trivial Significance: Very Few Cases Where Both (a) and (b) True.

Other 1920’s Cases

Village of Euclid v. Village of Euclid v. Ambler Realty Co. Ambler Realty Co. (1926) (1926) &

Nectow v. City of Cambridge (1928)

Questions?

LOGISTICS

Final Classes (32-35)•Penn Central; Michelman; Ackerman

– Penn Central & Ackerman Self-Quizzes Up Saturday•Review Problems:

– Each Day Next Week First 15 MinutesFirst 15 Minutes– Hard Unresolved Qs (One or More of Which Will Be

Part of Your Final Exam Q)– Best Arguments You Can See for Each Side for Each Side from

Authorities & Takings Policy

Transition: 1920s Cases Penn Central (1978)

Three Great American Contributions to World

Culture:

Baseball, Jazz, & the Baseball, Jazz, & the

U.S. ConstitutionU.S. Constitution

Improvisations on Agreed-Improvisations on Agreed-Upon RulesUpon Rules

Transition: 1920s Penn Central =

Alberta Hunter

(1895-1984)

•1910-54: Sang Professionally in US & 1910-54: Sang Professionally in US & EuropeEurope

• Lead in Original London Production of Showboat (music last class)

• Entertained Troops with USO (WWII & Korea)


Alberta Hunter

(1895-1984)

•1954-77: Career as Nurse1954-77: Career as Nurse

• Invented High Sch. Diploma to get Nursing Degree

• Lied About Age to get Jobs in NY Hospitals

• Hospital Forced Her to Retire at “65” (in fact 81)


Alberta Hunter

(1895-1984) •1978-84: Revived Singing Career1978-84: Revived Singing Career

• Singing in NY Jazz Clubs Media Sensation

• Recorded Three Albums; Many TV Appearances

• Toured Europe & South America; Sang at White House

• Working Until Just Before She Died

Penn Central Transportation Penn Central Transportation Co. v. City of New York (1978)Co. v. City of New York (1978)

DQ3.31 KryptonDQ3.31 Krypton

Penn Central: IntroductionDQ3.31 (Krypton)

• Gov’t action at issue? NYC Historic Preservation Ordinance: Owners of designated historical properties must:– keep in good repair– preserve exterior use– get permission for structural change


• Gov’t action? NYC Historic Preservation Ordinance

• Purpose?– Legitimate? (Connected to HSWM?)– Action Rationally Related to Purpose?


• Gov’t action? NYC Historic Preservation Ordinance• Rational to Believe that Saving Historic Sites Furthers

Welfare by Increasing Civic Pride, Attracting Tourist $$$• Use of Affected Lots

– Need gov’t approval before structural changes; must maintain property properly.

– Can do anything you were doing before designation; can do structural changes if approved


• NYC Designates Grand Central Station as Historic site. Penn Central (RR) owns.– RR wants 55-story tower built above station. – Landmark Board rejects 2 versions of tower on

aesthetic grounds.

• Claimed Harm to RR? • Offsetting Financial Considerations?


• Rejection of Tower Above Grand Central Stn.• Loss: At least $2 million/yr in net rental income

after construction completed (in 1968 $$)• Offsetting Financial Considerations:

– Tax Breaks– Transferable Development Rights (TDRs)– Conceded that RR makes “Reasonable Rate of Return”

on Grand Central Station parcel.

QUESTIONS ON FACTS?

FINAL EXAM QUESTION 3

Case Gov’t Act Affected Landowner

Intended Beneficiaries

Hadacheck LA Bans Brickyards

Brickyard Os Neighbors

Mahon PA Bans Undermining

Coal Cos. Surface Os

Miller VA Cedar Rust Act

Cedar Tree Os Apple Orchard Os

Penn Central

NYC Historic Preservation

Os of Historic Buildings

Tourist Biz; History Buffs

Grand Central Station (c.1920)

One of the Proposed Towers

with Pan Am Building

(Met Life)

Takings Theorist #3: Frank Michelman

Today: DQ3.27-3.28 (me) DQ3.29 (Uranium)

Takings Theorist #3: Frank Michelman

Monday: Application of Theory

DQ3.30 (Uranium: apply to earlier cases & “airspace solution”)DQ 3.33 (krypton: apply to P.C.)

Takings Theorists: Frank Michelman

DQ3.27-3.28

Michelman = Cost/Benefit Analysis

But not analysis of whether underlying gov’t regulation is a

good idea.

Takings Theorists: Frank Michelman DQ3.27-3.28

Michelman = Cost/Benefit Analysisof Decision Whether to Compensate

•Once state has decided to regulate, there’ll be winners & losers.

•Should you compensate the losers?


Michelman (MMN) = Cost/Benefit Analysis

of Decision Whether to Compensate

•Once state has decided to regulate, there’ll be winners & losers. Compensate losers if …

– Costs of Compensating less than– Costs of Not Compensating

• A Major Insight of MMN’s Work is: These Costs Exist


MMN = Cost/Benefit Analysisof Decision Whether to Compensate

•Once state has decided to regulate, there’ll be winners & losers. Compensate losers if …

– Costs of Compensating (= Settlement Costs) less than

– Costs of Not Compensating (= Demoralization Costs)


Cost of Compensating = Settlement Costs: Includes

•Cost of paying claimant & everyone like claimant& everyone like claimant– Remember decision to pay affects more than just the Remember decision to pay affects more than just the

case in front of court (you)case in front of court (you)


Cost of Compensating = Settlement Costs: Includes

•Cost of paying claimant & everyone like claimant& everyone like claimant•Costs of administering payment scheme

– Focus on costs of identifying; valuing; processing• E.g., Paying Off All Airspace Owners• E.g., Damages (Price-Fixing) = 8% per pair of blue jeans

purchased in Calif. For 10 Years

– Can dwarf actual payments.


Cost of Compensating = Settlement Costs: Likely Highest

When•Lots of claimants•Claims not same for each claimant and intangible or otherwise hard to value•E.g., Again, Paying Airspace Owners

Takings Theorists: Frank Michelman DQ3.27-3.28Cost of Not Compensating =

Demoralization Costs: Includes•Upset to losing party & everyone similar•Upset to sympathizers•We Care b/c “Upset” Can Manifest As …

– Disincentives to future investment– Lack of faith in gov’t & resulting behavior

(refusal to pay taxes or to obey other laws)


Demoralization Costs: Focus on Likely Public Reaction

http://www.billoreilly.com/site

Takings Theorists: Frank Michelman DQ3.27-3.28Cost of Not Compensating =

Demoralization Costs: Likely Highest When

•Many people view gov’t act as unfair/arbitrary•Relatively few people bear very high burdens not seen as relating to their own behavior

– Typical of Very Repressive Regimes Elsewhere to Deliberately Demoralize People This Way

ELEMENTS B POWER POINT SLIDES Class #31 Friday, November 13, 2015 National Indian Pudding Day.

Documents

eubank issues

eubank relevant bc govt

key language compare

eubank oxygen local

decision subject

request govt official

neighbors us sct

important language