ELEMENTS B POWER POINT SLIDES

ELEMENTS B POWER POINT SLIDES Class #33 Wednesday, November 18, 2015 National Vicchyssoise Day (& Mickey Mouse’s Birthday)

Billy Joel, The Stranger (1977)

Class #33 Review Problem 3B Logistics & Michelman Clarifications Penn Central Arbitrariness Claim 1978 Penn Central Analysis

FINAL EXAM QUESTION 3Review Problem 3B (Krypton/Uranium) FROM EXAM QUESTION IIIE (2000) • Gore Bush is a cash crop b/c source of industrial lubricant Goreseed Oil (GO). • Widespread distribution of recipe for explosives using GO  use in crime & inflation of GO prices • C buys Goreseed farm for $5 Million • State bans GO to reduce criminal uses • Value of C’sfarm drops to $2 Million

FINAL EXAM QUESTION 3

FINAL EXAM QUESTION 3Review Problem 3B (Krypton/Uranium) HARD Q FROM XQIIIE (2000) Should a state have to pay compensation to landowners whose property value is reduced significantly when the state bans production of a product or growing of a crop to prevent harmful or illegal uses of the product/crop where • the product/crop in question has both legal and illegal uses; and • the landowners’ methods of producing/growing of the product/crop in question cause no direct harms to the landowners’ neighbors?

FINAL EXAM QUESTION 3Review Problem 3B (Krypton/Uranium) HARD Q FROM XQIIIE (2000) Should a state have to pay compensation to landowners whose property value is reduced significantly when the state bans production of a product or growing of a crop to prevent harmful or illegal uses of the product/crop where • the product/crop in question has both legal and illegal uses; and • the landowners’ methods of producing/growing of the product/crop in question cause no direct harms to neighbors? KRYPTON for LANDOWNER URANIUM for STATE

LOGISTICS: CLASS #33 • Group Assignments • #2 Back w Comments by Day of Review Session • #3 Take Advantage of both Comments-Model Answers Memo & Detailed Comments on 2014 Submissions • Course Evaluations Fri.: Be Specific

Takings Theorist #3: Frank MichelmanCleaning Up a Couple of Points

Takings Theorists: Frank Michelman Role of Efficiency Gains • Efficiency Gains are net benefits of implement-ing the regulation in question. If negative, legislature shouldn’t pass regulation at all. • Important: Ordinarily, not part of Takings analysis. • Under Euclid & Miller, assessing efficiency gains is job for state legislature, not fed’l court.

Takings Theorists: Frank Michelman Role of Efficiency Gains • If Efficiency Gains less than both Settlement Costs and Demoralization Costs, in theory, shouldn’t proceed with regulation. • Could suggest this in a particular Takings case if both SC & DC seem very high, but very hard to know with precision. • Really a legislative Q, so shouldn’t be central to Takings Analysis

Takings Theorists: Frank Michelman: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. • Like work of John Rawls on “justice” generally: Look at problem before you know which people will be affected. • Can’t measure this, so using principle = arguments about fairness and how people are likely to react • IMPORTANT: Asking about fairness of not compensating losers, not about fairness of underlying regulation.

Penn Central: Arbitrary?DQ3.37 (Oxygen) Penn Central claimed designation of historical buildings arbitrarily singled out some property owners. Why Did Majority Disagree?

Penn Central: Arbitrary?DQ3.37 (Oxygen) Majority: Not Arbitrary (pp.143-45: “Secondly …) • Comprehensive Plan Here • No Singling Out: Rule applies to “vast numbers of structures” in NYC • Arbitrariness limited by judicial review of designation or decision

Penn Central: Arbitrary?DQ3.37 (Oxygen) Majority: Not Arbitrary (pp.143-45: “Secondly …) • 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

Penn Central: Arbitrary?DQ3.37 (Oxygen) Majority: Not Arbitrary (pp.143-45: “Secondly …) • Comprehensive Plan Here • Hard to say gov’t action is “arbitrary” when PC didn’t exhaust other remedies. • NOTE: US SCtnot happy to be asked to decide constitutional Q that might be unnecessary, but Majority doesn’t explicitly reject claim for this.

Penn Central: Arbitrary?DQ3.37 (Oxygen) Majority: Not Arbitrary (pp.143-45: “Secondly …) • Comprehensive Plan Here • Hard to say gov’t action is “arbitrary” when PC didn’t exhaust other remedies. • Not “arbitrary” just b/c falls more heavily on some landowners: regulatory burdens don’t have to be evenly distributed (citing Miller; Euclid; Hadacheck).

Penn Central: Arbitrary?DQ3.37 (Oxygen) 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 (1978)

Class #33 1978 Review Problem 3B Logistics & Michelman Clarifications Penn Central Arbitrariness Claim Penn Central Analysis

The Blizzard of ‘78

BORN: Louise Brown: 1st test tube baby Clay Aiken * Erin Andrews Kobe Bryant * James Franco Nelly Furtado * Josh Hartnett Katherine Heigl * Ashton Kutcher Matthew Morrison * Usher Chase Utley * Reggie Wayne DIED Hubert Humphrey Margaret Mead Golda Meir Keith Moon Norman Rockwell 1978: Births & Deaths

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 (Meat Loaf)

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 again until 2015) • 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 theUniv. 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 • Overview • Relatively Clear Instances of Takings • Arguments from Purpose • Arguments re Harm to Property Owner • Means/End Testing

Penn Central: Takings Analysis KEYS TO COLOR OF TEXT Greens = Arguments of Claimant PC Blues = Points Made by Majority Reds = Points Made by Dissent Purple = Points Made by Prior Authorities Black = Commentary from Me Yellow/Gold: Open Qs After Penn Central

Penn Central: Takings Analysis Big Qs Left Open by Penn Central • Noxious Use • Meaning of Distinct Invest-Backed Expectations (DIBE) • DIBE & Hadacheck • Denominator Q • Heightened Scrutiny for Takings?

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.141-42) • Taxing Power • Economic harm insufficiently tied to claimant’s reasonable expectations to be called “property” (e.g., from closing military bases) • Police Power cases like Miller & Hadacheck (more on later)

Penn Central Takings Analysis: Relatively Clear Instances of Takings • More likely a Taking if there is a physical invasion of property by or because of gov’t (p.141) • Note: Based on type of interference rather than purpose or extent • Arguably Michelman reasons: Likely high demoralization costs for physical invasions

Penn Central Takings Analysis: Relatively Clear Instances of Takings • More likely Taking if physical invasion • Gov’t actions that may be characterized as acquisitions of resources to permit or facilitate uniquely public functions (Sax Enterprisers) (bottom p.142)

Penn Central Takings Analysis: Relatively Clear Instances of Takings • More likely Taking if physical invasion • Gov’t actions that may be characterized as acquisitions of resources to permit or facilitate uniquely public functions. (Sax Enterprisers) • US v. Causby (DQ3.38) arguably both: • Very low airline overflights invaded airspace • Use by military completely destroys value of farm

Penn Central Takings Analysis: Relatively Clear Instances of Takings • US v. Causby (DQ3.38): Taking where … • Very low airline overflights invaded airspace • Use by military completely destroys value of farm • Maj: Causbydistinguishable from PC (pp.145-46) • No physical invasion of airspace by NYC • No appropriation of property by NYC for gov’t use or exploitation for gov’t purposes • Harm to PC not arising from gov’t entrepreneurial operations (Note: Dissent wouldn’t necessarily agree)

Penn Central Takings Analysis: Relatively Clear Instances of Takings • DQ3.38: Majority treatment of Causby suggestsendorsement of Sax with narrow view of “Enterpriser” • Majority Characterizes PC: No appropriation of property [by NYC] for gov’t use or exploitation for gov’t purposes. • Arguable if “Enterpriser” read broadly (see application of Sax to PC in earlier slides)

Penn Central Takings Analysis: Arguments from Purpose Purpose: Where Were We Before Penn Central? • Hadacheck& Mahon: Can regulate to stop public nuisance. • Miller: To save one type of property, can limit or destroy another type • Sax & Epstein both think purpose is important • Indirectly enters into Michelman b/c affects people’s perception of situation and thus may be relevant to both Demoralization Costs & Fairness Principle

Penn Central Takings Analysis: Arguments from Purpose Majority’s Discussion of Zoning (p.141-42) • US SCt had previously “upheld land-use regulations that destroyed or adversely affected recognized real property interests” where • Stategov’t “reasonably concluded” • that forbidding particular land use • would promote HSWM • Reaffirms Hadacheck& Miller; gives many examples of permissible regulations.

Penn Central Takings Analysis: Arguments from Purpose Pet’r Tried to Distinguish Hadacheck/Miller, etc. • Argued laws upheld in these cases all designed to stop “noxious uses” (essentially public nuisances) (see fn 30) • This is plausible reading of earlier cases : • Stopping public nuisance/noxious use = no Taking • Different rules for other kinds of gov’t actions. • E.g., BDS in Mahon dissent re public harm v. public benefit

Penn Central Takings Analysis: Arguments from Purpose Dissent Agrees with Pet’r: Providing Benefit Different From Stopping Harm • “[T]he gov’t can prevent a property owner from using his property to injure others without having to compensate the O for the value of the forbidden use.” (p.149) • Describes Hadacheck & Miller as noxious use cases (fn8 p.149) • NOTE: Even the most Conservative Justices in 1978 don’t question results in Hadacheck & Miller

Penn Central Takings Analysis: Arguments from Purpose Dissent Apparently Would Adopt Position Later Articulated By Epstein (Taking unless Public Nuisance or Reciprocity) • Dissent Sees Neither Here • DQ3.40: As we noted earlier, could see some reciprocity in tourist $$$ flowing to Pet’r; neither opinion recognizes (although Judge in NY Ct. App. had noted) • Important: Majority Implicitly Rejects Epstein Position by Disagreeing w Dissent

Penn Central Takings Analysis: Arguments from Purpose [DQ3.39] (n.30): Majority seems to reject distinction between preventing harm & providing benefit. • In Hadacheck & Miller, uses lawful at time of regulation [relevance: Os not bad actors meriting punishment?] • Cases don’t turn on “noxious use” but that restrictions were “reasonably related” to implementing a policy “expected to produce a widespread public benefit” • Plus destruction of historic landmark is public harm. • Very 1L Law Prof Kind of Move: “Harm!?” Benefit!?”

Penn Central Takings Analysis: Arguments from Purpose DQ3.39: Does Footnote 30 alter earlier cases? • If “noxious use” category gone, would seem to mean that readings of Hadacheck & Miller that rest on public nuisance idea are incorrect. • I’m skeptical that category is completely gone. You’d think preventing greater harms ought to give state more leeway to regulate land use.

ELEMENTS B POWER POINT SLIDES