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Richard Epstein Approach

Richard Epstein Approach. Epstein would only allow gov’t acts to limit property rights without compensation in 2 situations: (1) nuisance controls -OR- (2) implicit compensation (reciprocity or similar benefit from regulatory scheme). Richard Epstein Approach.

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Richard Epstein Approach

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  1. Richard Epstein Approach Epstein would only allow gov’t acts to limit property rights without compensation in 2 situations: (1) nuisance controls -OR- (2) implicit compensation (reciprocity or similar benefit from regulatory scheme)

  2. Richard Epstein Approach Epstein: No Taking 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 (1) collective buyout in nuisance case (2) group negotiation in reciprocity case

  3. OXYGEN DQ107 Epstein: No Taking in 2 situations: (1) nuisance controls -OR- (2) implicit compensation Application to Hadacheck?

  4. OXYGEN DQ107 Epstein: No Taking in 2 situations: (1) nuisance controls -OR- (2) implicit compensation Application to Mahon?

  5. OXYGEN DQ107 Epstein: No Taking in 2 situations: (1) nuisance controls -OR- (2) implicit compensation Application to Airspace Solution to Hammonds Problem?

  6. OXYGEN DQ106 Epstein: No Taking in 2 situations: (1) nuisance controls -OR- (2) implicit compensation Strengths & Weaknesses of this Approach

  7. Stone, Scott Chughtai-Harvey, Alexandra Sullivan, Kelly Cohen, Scott Reed, Evan Hethcoat, Tad Collett, Andrea Darville, Renée Tomlinson, Trey Moskal, Tommy Pelleyá, Nico DQ108-11: Miller v. SchoeneFEATURING CHLORINES

  8. DQ108: Miller v. Schoene Gov’t Action?

  9. DQ108: Miller v. Schoene DQ108-11: Miller v. Schoene Govt Action: Cedar Rust Act allows state entomologist to order diseased cedar trees cut down Purpose?

  10. DQ108: Miller v. Schoene DQ108-11: Miller v. Schoene Govt Action: Cedar Rust Act allows state entomologist to order diseased cedar trees cut down Purpose: save apple trees from spread of cedar rust disease; help big apple industry Legitimate (Furthering Police Powers)?

  11. DQ108: Miller v. Schoene DQ108-11: Miller v. Schoene Govt Action: Cedar Rust Act allows state entomologist to order diseased cedar trees cut down Purpose: save apple trees from spread of cedar rust disease; help big apple industry Legitimate (Furthering Police Powers)? Yes. Helping state economy = WELFARE. Action Rationally Related to Purpose? Yes. MEETS MINIMAL RATIONAL BASIS SCRUTINY

  12. DQ108: Miller v. Schoene DQ108-11: Miller v. Schoene Govt Action: State entomologist can order diseased cedar trees cut down Purpose: save apple trees from spread of cedar rust disease; help big apple industry Limits on petitioners’ use of their property?

  13. DQ108: Miller v. Schoene DQ108-11: Miller v. Schoene Govt Action: State entomologist can order diseased cedar trees cut down Purpose: save apple trees from spread of cedar rust disease; help big apple industry Limits on petitioners’ use of their property?Cedar trees must be cut down Remaining Uses?

  14. DQ108: Miller v. Schoene DQ108-11: Miller v. Schoene Govt Action: State entomologist can order diseased cedar trees cut down Purpose: save apple trees from spread of cedar rust disease; help big apple industry Limits on petitioners’ use of their property? Cedar trees must be cut down Remaining Uses?Can do anything with land; anything with wood Harm to the petitioners?

  15. DQ108: Miller v. Schoene DQ108-11: Miller v. Schoene Govt Action: State entomologist can order diseased cedar trees cut down Purpose: save apple trees from spread of cedar rust disease; help big apple industry Limits on petitioners’ use of their property? Cedar trees must be cut down Remaining Uses? Can do anything with land; anything with wood Harm to the petitioners? • Some value of tree/wood may be lost • Aesthetic loss could mean loss in land value

  16. DQ108: Miller v. Schoene DQ108-11: Miller v. Schoene Procedural Posture: • Order from state official to cut trees • Appealed to state Circuit Court, which aff’d order; • Virginia SCt aff’d: no viol. of U.S. Const • Writ of Error to US SCt

  17. CHLORINE DQ109: Miller under Prior Authorities • Sax? • Arbiter or Enterpriser? • Controlling Spillover Effects?

  18. CHLORINE DQ109: Miller under Prior Authorities • Sax? Paradigm Sax Arbiter Case • Epstein? • Preventing Public Nuisance? • Implicit Compensation?

  19. CHLORINE DQ109: Miller under Prior Authorities Under Hadacheck & Mahon?

  20. CHLORINE DQ110: Eubank v. Richmond • Regulation: Land use decision required if requested by 2/3 of n-bors • S.Ct. in Eubank says unconstitutional • apparently problem having some property owners dictate rules for others • pretty clear possibility of unfair/arbitrary result • Why did pet’r argue it was relevant to Miller?

  21. CHLORINE DQ110: Eubank v. Richmond Uranium DQ110: Eubank v. Richmond • Regulation: Land use decision required if requested by 2/3 of n-bors • S.Ct. in Eubank says unconstitutional • Why did pet’r argue it was relevant to Miller? • Gov’t action triggered by request of neighbors • What was Court’s Response?

  22. CHLORINE DQ110: Eubank v. Richmond Uranium DQ110: Eubank v. Richmond • Regulation: Land use decision required if requested by 2/3 of n-bors • S.Ct. in Eubank says unconstitutional • Why arguably relevant to Miller? • Gov’t action triggered by request of neighbors • SCt: Decision in Miller not by n-bors • Gov’t official decides • subject to judicial review • As in Hadacheck, arbitrariness claim made & rejected (not our issue)

  23. CHOOSING YOUR 1L ELECTIVE

  24. SECTION E Contracts (Rosen) Criminal Procedure (Bascuas) U.S. Constitutional Law I (Casebeer) LRW II Elective SECTION G Contracts (Rosen) Criminal Procedure (Stotzky) U.S. Constitutional Law I (Hill) LRW II Elective SPRING 2009

  25. CHOOSING YOUR 1L ELECTIVE The most important decision you will make …

  26. CHOOSING YOUR 1L ELECTIVE The most important decision you will make on Tuesday.

  27. CHOOSING YOUR 1L ELECTIVE The most important decision you will make on Tuesday. Maybe.

  28. CHOOSING YOUR 1L ELECTIVE You are picking one course out of the 20 or so electives you will take in law school.

  29. CHOOSING YOUR 1L ELECTIVE You are not picking a spouse.

  30. CHOOSING YOUR 1L ELECTIVE

  31. CHOOSING YOUR 1L ELECTIVE: OPTIONS • Analysis of Evidence (Anderson/Twining) • Environmental Law (Williamson) • European Union Law (Bradley) • Jurisprudence (Froomkin) • Substantive Criminal Law (Mourer)

  32. CHOOSING YOUR 1L ELECTIVE: CONSIDERATIONS • Past Student Evaluations • Method of Evaluation • Size/Operation of Class • Prerequisite/Intro to Other Courses • Likely to Be Offered Later? • Upper Level Students in Room? • Furthering Career Goals

  33. ANALYSIS OF EVIDENCE (ANDERSON/TWINING) Inferences & Proof of Facts • Evaluation: Group Projects & Exam • Mostly Run as 2 Classes of 40-50 • Can take Litigation Skills • Not Usually Offered as Upper Level • No Upper Level Students in Room • Especially helpful for litigation, but analytic skills help everywhere; some intro to evidence rules on bar exam (but most students take Evidence)

  34. Environmental Law (Williamson) Complex Statute; Not Trees & Squirrels • Midterm & Final Exam • Likely in 50-75 range; Traditional Class • Prereq/Intro to Upper Level Environmental • Offered Every Year for Upper Level • Upper Level Students in Room • Good practice with modern statutes; can use directly for public interest, gov’t, or business advising

  35. EUROPEAN UNION LAW (BRADLEY) Structure & Operation of European Union • Final Exam • Likely Large Class; Traditional • Intro to Public & Pvt. Int’l Law; Not Prereq • Rarely Offered as Upper Level Course • No Upper Level Students in Room • Interest in Int’l or Business Areas; Good Synergy with US Con Law I

  36. JURISPRUDENCE (FROOMKIN) Intro to Legal Philosophy • Take Home Exam; Lot of Participation • Likely Smallest; Lot of Discussion/Blogs • Helpful in General Way to Many Courses • Often Offeredto Upper Level Students • Upper Level Students in Room • Helps You Understand Whole Enterprise

  37. SUBSTANTIVE CRIMINAL LAW (MOURER) Elements of Crimes & Defenses • Final Exam • Likely Largest Class/Traditional • Intro/Prereq to Upper Level Crim Electives • Offered Every Semester for Upper Level • No Upper Level Students in Room • Many Students Go Into Criminal Law, But Comes Up in Every Area of Practice; On All Bar Exams; Good Synergy with Crim. Pro.,

  38. CHOOSING YOUR 1L ELECTIVE: LOGISTICS • Registration Time & Significance • Learn the Procedures • Wait Lists & Add/Drop

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