Extra Fajer Office Hours Today 10- 12:15

1. MUSIC: Ken Burns’s Jazz: The Story of America’s MusicDisc One (1919-31)Correction from WednesdayAlfieri Elective Will Meet Group 4 (Professional Responsibility) Requirement Extra Fajer Office Hours Today 10-12:15

2. Calcium for Monday Other Supreme Court Takings Law: Euclid & Nectow WHAT DO THEY ADD TO THE LINE OF CASES?

3. DQ102-05: Reasoning of Mahon FEATURING PHOSPHORI: • Mutamba, Masimba • Greenwald, David • Hendricks, Tim • Ziegler, Chelsey • Smittick, Sibongile • Aybar Landrau, Eduardo • Sohn, Brad • Reger, Lawrence

4. Hadacheck v. Mahon: Focus of Analysis • Hadacheck: Main focus on purpose of regulation • Lots of scope if under police power • BUT reference to Kelso implicates Q of what’s left

5. Hadacheck v. Mahon: Focus of Analysis • Hadacheck: Focus on purpose • Mahon: Focus on change in property value • Explicitly looks at what’s been taken away • Too great a diminution in value is a Taking • NOTE: explicit that not drawing clear line • Examine case by case to see if “goes too far” • BUT some discussion of purpose (Holmes careful to say no safety issue)

6. What does “too far” mean? Review Holmes’s analysis: • Subsidence Right defined as property right in Pa & specifically contracted for • Loss of Subsidence Right effectively makes Mineral Rights valueless • No safety issue (notice) • No issue of public harm: case about one house (though he goes on to address more) • No “average reciprocity of advantage”

7. “Average Reciprocity of Advantage” • Plymouth Coal (pp.90-91): upheld requirement of pillars between mines • Holmes distinguishes: • involved safety of miners plus: • “secured an average reciprocity of advantage” PHOSPHORUS: DQ104: Means?

8. “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 of Epstein’s “Implicit Compensation” • E.g., Plymouth Coal PHOSPH: DQ104: Other Examples?

9. Very Narrow Holding of Mahon Gov’t regulation is a Taking where it: • extinguishes a property right specifically contracted for by O; • renders O’s remaining property rights valueless; • is not addressing safety issue; • is not addressing widespread public harm; and • does not create reciprocity of advantage.

10. We’ll Explore Possible Broader Readings of Mahon by: • Looking at the ways Justice Brandeis disagrees with Justice Holmes re • Diminution in Value • Public Nuisance • Reciprocity of Advantage • Looking at Important Language in Majority Opinion

11. Brandeis Response to Holmes re Diminution of Value • Need to view in context of “value of all other parts of the land.” • Would not look at value of coal alone, but coal plus surface • Can’t get more rights v. gov’t by subdividing land

12. Brandeis Response to Holmes re Diminution of Value • View in context of value of all parts of the land. • Analogy to height restrictions (conceded valid) • Like Kohler Act, forbids use of part of parcel

13. Brandeis Response to Holmes re Diminution of Value • View in context of value of all parts of the land. • Analogy to height restrictions (conceded valid) • Like Kohler Act, forbids use of part of parcel • Height restrictions not characterized as: “All of air rights gone”

14. Brandeis Response to Holmes re Diminution of Value • View in context of value of all parts of the land. • Analogy to height restrictions (conceded valid) • Like Kohler Act, forbid use of part of parcel • Not characterized as: “All of air rights gone” Middle p.93: “[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?”

15. Brandeis Response to Holmes re Diminution of Value • View in context of value of all parts of the land. • Analogy to height restrictions (conceded valid) • Like Kohler Act, forbid use of part of parcel • Not characterized as: “All of air rights gone” “[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.” BUT SEE PENN CENTRAL!!

16. Brandeis Response to Holmes re Diminution of Value • View in context of value of all parts of the land. • Analogy to height restrictions (conceded valid) PHOSPHORUS DQ102: Kohler Act Distinguishable from Height Restrictions?

17. Brandeis Response to Holmes re Diminution of Value • View in context of value of all parts of the land. • Analogy to height restrictions (conceded valid) Example of key Takings issue: how to determine relevant piece of property? • BDS: look at whole parcel top to bottom • HMS: doesn’t address explicitly

18. Brandeis Response to Holmes re Diminution of Value • View in context of value of all parts of the land. • Analogy to height restrictions (conceded valid) Example of key Takings issue: how to determine relevant piece of property? • BDS: look at whole parcel top to bottom • HMS may not disagree with BDS approach • HMS could believe coal is much more valuable than surface • May disagree w BDS simply over extent of loss in value

19. Holmes re Public Nuisance Holmes sees no Public Nuisance: • Only one house; not common or public damage • Not safety issue: notice • Shouldn’t protect people who took risk of only purchasing surface rights

20. Brandeis Response to Holmes re Public Nuisance Holmes sees no Public Nuisance: Brandeis disagrees; characterizes as stopping noxious use: • Statute covers public buildings, roads, etc. as well as houses • Notice not enough to protect public interest in safety • Should defer to legislature on need for safety measure • Interest can be “public” even if some private people benefit

21. Brandeis Response to Holmes re Public Nuisance Holmes sees no Public Nuisance: Brandeis sees as stopping noxious use Significance of Public Nuisance: • BDS: Can regulate to prevent public nuisance even if deprives O of profitable use • HMS doesn’t disagree on significance, just facts

22. Brandeis Response to Holmes re Reciprocity of Advantage Only matters if conferring benefit, not if preventing harm (last para. p.94) • Remember Harm/Benefit Distinction for Penn Central

23. Brandeis Response to Holmes re Reciprocity of Advantage “There was no reciprocal advantage to the owner prohibited from using his .. brickyard, in [Hadacheck] … 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.” – End of Brandeis Opinion

24. Brandeis Response to Holmes re Reciprocity of Advantage “There was no reciprocal advantage to the owner prohibited from using his .. brickyard, in [Hadacheck] … 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.” NOT what Holmes means by Reciprocity of Advantage!!

25. Important Language in Majority “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.” -- (3d para. p.90) Means: Not every loss in value = Taking

26. Important Language in Majority “[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.” -- (p.91-92) Means: A regulation is not necessarily constitutional just because purpose is important

27. Important Language in Majority (cf. Balancing) What Balance Looks Like: • Careful evaluation of State’s interest • Careful evaluation of harm to property owner • Discussion of which is more significant & why

28. Important Language in Majority (cf. Balancing) Hadacheck: • Language re progress might suggest balance • But not what case does: • No discussion about importance of brickmaking • Discussion of state’s interest very general (police powers v. specific health concerns) • Better read of language: A regulation is not a taking just because it interferes with an existing long-established use

29. Important Language in Majority “If we were called upon to deal with the plaintiffs’ 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 defendant’s constitutionally protected rights.” -- (Top para. p.91)

30. Important Language in Majority “If we were called upon to deal with the plaintiffs’ 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 defendant’s constitutionally protected rights.” -- (Top para. p.91) Language arguably looks like balance • public interestisnot sufficient • harm to owner is so extensive

31. Important Language in Majority “If we were called upon to deal with the plaintiffs’ position alone we should think it clear that the statute does not disclose a public interest suffi-cient to warrant so extensive a destruction of the defendant’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

32. Important Language in Majority “If we were called upon to deal with the plaintiffs’ 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 defendant’s constitutionally protected rights.” Be careful if you use this passage to support balancing; later cases (e.g., Penn Central) don’t read Mahon to balance

33. PHOSPHORUSDQ105: What other rules or principles can you derive from the majority opinion in Mahon?

34. DQ105: Rules/Principles from Mahon AT LEAST: • Look at diminution in value; if “goes too far” = Taking • If all value gone [and no safety issue]= Taking • If reciprocity of advantage, no Taking • If regulation destroys Property rights that were specifically contracted for = Taking

35. PHOSPHORUS: DQ105 Effect of Mahon on Hadacheck? • Regulation OK if under Police Power? • Reg. OK if Preventing Public Nuisance? • Reg. OK if Protecting Health/Safety • Argument from Kelso: OK if Value Left • Reg OK if Furthering Progress

36. DQ105 Effect of Mahon on Hadacheck? • Regulation OK if under Police Power? • Reg. OK if Preventing Public Nuisance? • Reg. OK if Protecting Health/Safety • Argument from Kelso: OK if Value Left • Reg OK if Furthering Progress

37. 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)

38. 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

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