Meat Loaf, BAT OUT OF HELL (1977) SCHEDULE ADJUSTMENTS Today & Mon/Tue (11/19-20): Lecture (Hold Qs) Finish Michelman & Application of Theorists to PC.

Meat Loaf, BAT OUT OF HELL (1977)

SCHEDULE ADJUSTMENTS•Today & Mon/Tue (11/19-20): Lecture (Hold Qs)• Finish Michelman & Application of Theorists to PC

Facts• Analysis from PC Majority & Dissent (DQ127-34)• Extend class as necessary on Mon/Tue to complete

•After Thanksgiving: Mon(B1)/Tue(B2) (11/26-27)• Shift Oxygen DQs 135-36 to these Classes• Krypton on Ackerman & DQ137-39 • Course Evaluations

Penn Central: DQ125 (Uranium)

Arguments about PC from Prior Cases

One Common Way to Do This: Compare Facts of Old Case to

Facts of New Case/Hypo(E.g., Fayne argument from Mahon)


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



•E.g., Compare Hadacheck to Penn Central: – Importance of Gov’t Purpose



•E.g., Compare Hadacheck to Penn Central: – Gov’t Purpose? Stronger in Hadacheck– Extent of Interference with Property Rights?



•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.



•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)



•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).

FINAL EXAM QUESTION 3OPINION/DISSENT FORMAT

•Must Understand Role of US Supreme Court– Setting Rules for Lots of Cases While Deciding

One Case– Can Choose to Affirm or Modify Precedent;

Must Defend

•Must think about best way to handle legal problem


•Think about best way to handle legal problem.•Keep in mind “legal problem” you will address:– NOT “Is the regulation a good idea?”– BUT “Has the regulation interfered with claimant’s

property rights too much?”– As with other Constitutional questions, in effect asking

“How should the gov’t operate?”


“Legal Problem” you will address: “Has the regulation interfered with claimant’s property rights too much?” •Terminology Point: If we conclude that the regulation has interfered with property rights more than the Constitution allows (without paying), we call it a “Taking.” Thus: •“Has the regulation interfered with claimant’s property rights too much?” = “Has the regulation interfered with claimant’s property rights so much that it constitutes a “Taking”?


“Legal Problem” you will address: “Has the regulation interfered with claimant’s property rights too much?” •Policies at issue:– How much leeway do we give the

democratically elected gov’t to regulate property?

– How much protection do we give owners to use their land as they wish when majority disapproves?

– NOT: What is best way to use this land? (Policy Q for state legislature, not federal court)


“Legal Problem” you will address: “Has the regulation interfered with claimant’s property rights too much?” •Policies at issue:– How much leeway do we give the

democratically elected gov’t to regulate property?

– How much protection do we give owners to use their land as they wish when majority disapproves?

– Theorists can give us ideas about these Qs.

Penn Central: DQ126Apply 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.

Penn Central: DQ126

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

Takings Theorists: Frank Michelman DQ123

Compensate losers if Costs of Compensating (= Settlement

Costs) are less than

Costs of Not Compensating (= Demoralization Costs)

Takings Theorists: Frank Michelman DQ123: Settlement Costs

• High if many properties affected and losses are hard to value (Miller & Airspace Solution)

• Relatively low if few properties affected & value reduced to zero because loss easy to determine (Nectow)

Takings Theorists: Frank Michelman DQ123: Settlement Costs

• Hadacheck: – Probably easy to identify losers – Valuation may be easier b/c clear

difference in use– BUT need to pay all similar. Expensive to

pay off not just a couple of brickworks but any existing noxious use that might be banned.

Takings Theorists: Frank Michelman DQ123: Demoralization

Costs• Depends on Guesses re Public

Reaction• Likely Low if widespread small

losses to achieve goal public sees as reasonable (Miller, but see Florida reaction re Citrus)

• Likely Low if public sees goal as very important (Hadacheck) (no need to pay to prevent substantial harm to humans)

Takings Theorists: Frank Michelman DQ123: Demoralization

Costs• Depends on Guesses re Public Reaction• Likely High if public perceives

substantial loss w/o strong reason (Nectow)

• Airspace Solution may depend on spin:– Greedy landowner trying to extort $$ for

space she can’t use & driving up energy prices

– Govt effectively completely taking rights to part of parcel without paying; giving to rich Gas Cos.

Takings Theorists: Frank Michelman DQ123: 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.

• Michelman likely thinks reasonable people OK with cases like Hadacheck w extensive harm

• Principle might have different result in Mahon because of possible harms to society from overturning established contract rights.

Penn Central: DQ126Apply Theorists to Facts of PC:

Michelman•Settlement Costs

– Easy to Identify “Losers” b/c NYC Designates– Valuation: Losses Vary w Parcel; Hard to Do

Precisely– Lot of Landmarks; Some Amounts May Be Large;

•Demoralization Costs – Maybe Low b/c People Like Landmarks in Place– Helpful that PC Gets Reasonable Return, but Big $$

$ Loss

•Fairness Principle: – Should Gov’t Have to Buy Landmarks to Prevent

Change?– Hard Q; Leave Arguments for You

Takings Theorists: Frank Michelman

E-Mail Me if Questions on Michelman; I’ll Circulate Qs &

Answers if Appropriate

Penn Central: Demsetz Takings Story

• This Analysis Provides Another Way to Think About Q of When Regulation Interferes Too Much w Property Rights

• Who Should Bear Burden for Changing Technology and/or Values?

• Though Not a Tough Question if “Change” is: “We’ve just discovered you’ve been poisoning us for years.”


• Decision: Whether to alter historically significant building• Old Rule: Os can do as they like.• Externalities: Harm to nearby tourist businesses and

tourism generally; harm to “history buffs” & civic pride• Change in Circumstances: As time passes, historic

buildings become more well-known/more popular/rarer• Increased Externalities: Increase in [Perception of] Harms

b/c more popularity; more reliance; loss of some historic buildings

Jacqueline Kennedy Onassis:

"Is it not cruel to let our city die by degrees, stripped of all her proud monuments, until there will be nothing left of all her history and beauty to inspire our children? If they are not inspired by the past of our city, where will they find the strength to fight for her future? …

Jacqueline Kennedy Onassis:

"Americans care about their past, but for short term gain they ignore it and tear down everything that matters. Maybe… this is the time to take a stand, to reverse the tide, so that we won't all end up in a uniform world of steel and glass boxes."


• Decision: Whether to alter historically significant building• Change in Circumstances: As time passes, historic

buildings become more well-known/more popular/rarer• Increased Externalities: Increase in [Perception of] Harms

b/c more popularity; more reliance; fewer historic bldgs• Change in Rule: Passage of Historic Preservation Laws• Response: Os of historic buildings claim “Taking” b/c of

interference w Property Rights:


Policy Questions• State Legislature: Is Historic Preservation

a Good Way to Address Growing Externalities?

• Federal Takings Analysis: Society decided relatively recently that historic preservation is important. – Fair to Os of historic bldgs to bear financial

burden? OR

– Should govt pay them to preserve landmarks?


•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 (Think About Best Ways to Analyze Takings Issues)•Must Address One or More Difficult Unresolved Qs

QUESTIONS?

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

Analysis

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

Analysis• Last & Most Complex Case of

Semester–Culmination of Skills: Read & Reread –Figure out range of arguments it

creates–Figure out how it affects earlier cases–NOTE: Far & Away Most Important

Case for Exam Question 3, which is worth more 25% of grade in Three Credit Course

Penn Central: IntroductionDQ130: Arbitrary?

Penn Central claimed designation of historical

buildings arbitrarily singled out some property owners.


Majority: Not Arbitrary (pp.133-35)

• Comprehensive Plan Here –No Singling Out: Rule applies to “vast

numbers of structures” in NYC– Arbitrariness limited by judicial review

of designation or decision


Majority: Not Arbitrary (pp.133-35)• Comprehensive Plan Here • Hard to say gov’t action is “arbitrary”

when PC didn’t exhaust other remedies:–Didn’t appeal designation as landmark–Didn’t appeal decision by Board to reject

plans–Only tried 2 options for additional stories



• Comprehensive Plan Here • Hard to say arbitrary gov’t action

when PC didn’t exhaust other remedies:

• NOTE: US SCt not happy to be asked to decide constitutional Q that might be unnecessary, but Majority doesn’t reject claim for this.



• Comprehensive Plan Here • PC didn’t exhaust remedies• Not “arbitrary” just b/c falls more

heavily on some landowners: regulatory burdens don’t have to be evenly distributed (citing Miller; Hadacheck; Euclid)


Majority: Not Arbitrary• Same result on this claim as

Hadacheck & Miller• Reminder: Arbitrariness won’t be an

issue for you.• Leaves us with real Takings Question• First Some Historical Context

The Blizzard of ‘78

1978: Births & Deaths

BORN:Louise Brown: 1st test tube babyClay Aiken * Kobe BryantNelly Furtado * Josh HartnettAshton Kutcher * Dirk NowitzkiChase Utley * Reggie Wayne

DIEDHubert HumphreyMargaret MeadGolda MeirKeith MoonNorman Rockwell

1978: Entertainment (Bonus Slide)

• John Travolta– Saturday Night Fever (Grammy for album)– Grease (movie)

• Vietnam movies (5 yrs after fall of Saigon)– Deer Hunter (best picture)– Coming Home (best actor & actress)

• Premieres: Dallas; Evita; Garfield

1978: Songs (Bonus Slide)

• Just the Way You Are (Billy Joel)• Copacabana (Barry Manilow)• Three Times a Lady (Commodores)• Sailing (Christopher Cross)• Paradise by the Dashboard Light (Meatloaf)

1978: International

• Camp David Accords: Peace treaty between Israel & Egypt

• Unrest in Iran & Nicaragua anticipates revolutions of ’79

• US agrees to formally recognize People’s Republic of China

• Panama Canal Treaties ratified by Senate; will end US control of Canal as of end of ’99

1978: California

• I arrive at Stanford mid-September• Calif. Propositions 13 & 6 (11/7)• Jonestown Mass Suicide (11/18)• Killing of Harvey Milk/George Moscone by Dan

White (11/27)

1978: Other Memorable

• 1st US casinos outside Nevada open in Atlantic City • Affirmed wins Triple Crown (not happened since)• Red Sox & Yankees: Bucky Dent• Pope Paul VI Pope John Paul I (53 Days)

Pope John Paul II

1978: U.S. Supreme Court

• Regents of the Univ. of California v. Bakke (affirmative action)

• Tennessee Valley Authority v. Hill (snail darter) • Penn Central Transportation Co. v. City of New

York (Grand Central Station)

Penn Central: Takings Analysis

Structure of Penn Central Takings Analysis

1.Overview2.Relatively Clear Instances of Takings3.Arguments from Purpose4.Arguments re Harm to Property Owner5.Means/End Testing


Big Qs Left Open by Penn Central A.Noxious UseB.Meaning of Distinct Invest-Backed Expectations (DIBE)C.Denominator QD.DIBE & HadacheckE.Heightened Scrutiny for Takings?


Structure of Penn Central Takings Analysis

1.Overview2.Relatively Clear Instances of Takings3.Arguments from Purpose4.Arguments re Harm to Property Owner5.Means/End Testing

Penn Central Takings Analysis: Overview

• Majority Makes Clear: No Easy Answers– no “set formula”– “depends on particular

circumstances”– essentially ad hoc factual inquiries– several relevant factors

Penn Central Takings Analysis: Overview

• Majority Makes Clear: No Easy Answers

• Not every case where gov’t action adversely affects property value (PV) is a Taking (p.130-31)a. Taxing Powerb. Economic harm insufficiently tied to

claimant’s reasonable expectations to be called “property” (e.g., from closing military bases)

c. Police Power cases like Miller & Hadacheck (more on later)

Meat Loaf, BAT OUT OF HELL (1977) SCHEDULE ADJUSTMENTS Today & Mon/Tue (11/19-20): Lecture (Hold Qs) Finish Michelman & Application of Theorists to PC.

Documents

facts of pce

facts of pcif

facts of new casehypoe

claimants property rights

nectowpenn central

mahonpenn central

holmespenn central

better case