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MUSIC: Alberta Hunter Complete Recorded Works Vol. 2: 1923-24

MUSIC: Alberta Hunter Complete Recorded Works Vol. 2: 1923-24. Post-Election Trivia Question: When was the last time three Presidents in a row were elected to two terms each?. MUSIC: Alberta Hunter Complete Recorded Works Vol. 2: 1923-24. Post-Election Trivia Question:

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MUSIC: Alberta Hunter Complete Recorded Works Vol. 2: 1923-24

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  1. MUSIC: Alberta HunterComplete Recorded Works Vol. 2: 1923-24 Post-Election Trivia Question: When was the last time three Presidents in a row were elected to two terms each?

  2. MUSIC: Alberta HunterComplete Recorded Works Vol. 2: 1923-24 Post-Election Trivia Question: The last time three Presidents in a row were elected to two terms each was: Jefferson-Madison-Monroe

  3. LOGISTICS: CLASS #30 Change in My Assistant • Letty Tejeda taking new job elsewhere at UM; her last day is today  • New Assistant is Michelle Gomez; she has started and is training with Letty • Same Phone # (on course page) • Her e-mail address already on course page

  4. LOGISTICS: CLASS #30 • Group Written Assignment #3 • Coordinators: We’ll e-mail you & tell you in class Friday where to send • Qs on Assignment? • Group Written Assignment #1: • Some Feedback by Friday a.m. • I’ll E-mail You Info re Availability

  5. LOGISTICS: CLASS #30 • We’re a little behind where we need to be. • Today + Start of Fri.: I’ll lecture through Mahon & DQs 106-112 (with some special assignments for you) • Rest of Fri: We’ll do Epstein & start Miller at normal pace

  6. Mahon: Externalities & Contract Rights • Direct harm to surface owners not an externality b/c not external to decisions/activities of CCs. • Externalities beyond direct harm to surface owners • Costs to society of loss of surface value & dislocation • Loose parallel: Contract to infect person w contagious disease to test treatment: voluntary to subject, not to others who might get disease from subject • Could do analysis like “Contract void as against public policy” = Where agreement that has large costs to non-contracting parties, don’t allow or don’t enforce

  7. Mahon DQ106: Demsetz Takings Story (Radium) Decision: Undermine surface? Old Rule: OK if own subsidence rights Externalities: Harm to non-parties/society (lost value/dislocation) Changes  Increased Externalities?

  8. Mahon DQ106: Demsetz Takings Story (Radium) Decision: Undermine surface? Old Rule: OK if own subsidence rights Externalities: Lost value/Dislocation Costs Changes  Increased Externalities? Maybe: • Cities/towns more developed; more lost value/dislocation • More surface under contracts; more lost value/dislocation • Mines approaching populated areas, so harms more imminent

  9. Mahon DQ106: Demsetz Takings Story (Radium) Decision: Undermine surface? Old Rule: OK if own subsidence rights Externalities: Lost value/Dislocation Costs Changes  Increased Externalities Rule Change: Kohler Act Losers under new rule (CCs) claim unconst. interference with property rights

  10. Mahon DQ106: Demsetz Takings Story Reminder: Repeated Focus on Demsetz Takings Story Intended to Raise Question for You: Under what circumstances should the landowner bear the burden where changing conditions make her formerly permitted use of land more harmful to society or make the harms more apparent?

  11. Mahon DQ106: Demsetz Takings Story Holmes (last paragraph of majority opinion): “The question … is upon whom the loss of the changes desired should fall. …

  12. Mahon DQ106: Demsetz Takings Story Holmes (last paragraph of majority opinion): “The question … is upon whom the loss of the changes desired should fall. So far as private persons or communities have seen fit to take the risk of acquiring only surface rights, we cannot see that the fact that their risk has become a danger warrants the giving to them greater rights than they bought.”

  13. Mahon DQ106: Demsetz Takings Story Holmes (last paragraph of majority opinion): “So far as private persons or communities have seen fit to take the risk of acquiring only surface rights, we cannot see that the fact that their risk has become a danger warrants the giving to them greater rights than they bought.” Q going forward: In Hadacheck, owners purchased residential lots “taking the risk” of proximity to the factory. Why different than surface Os in Mahon?

  14. Mahon Under Authorities We’ve StudiedDQ107: Sax (Oxygen) Facts of Mahon Under Sax • Gov’t as Arbiter or Enterpriser? • Difficulties w Arbiter … • Gov’t is one side of dispute in many instances here (Holmes 2d para. p.109: “short sighted”). • Parties here have already contracted re subject of land use dispute (so one side is really asking gov’t to override the contract, not merely to resolve a dispute parties couldn’t settle themselves).

  15. Mahon Under Authorities We’ve StudiedDQ107: Sax (Oxygen) Facts of Mahon Under Sax 1. Gov’t as Arbiter or Enterpriser? • Difficulties w Enterpriser… • Dislocation harms from subsidence may fall on neighboring private landowners who did not contract with CCs (so real arbitration) 2. Preventing Spillover Effects: See analysis of externalities last class.

  16. Mahon Under Authorities We’ve StudiedDQ107: Hadacheck (Oxygen) Facts of Mahon Under Hadacheck • Purpose Arguments • Regulation OK if under Police Power? Easy YES • Reg. OK if Protecting Health/Safety? Harder • Reg. OK if Preventing Public Nuisance? (See DQ109) • Kelso: OK if Value Left? • Compare Holmes v. Brandeis re value

  17. Mahon Under Authorities We’ve StudiedDQ107: Hadacheck (Oxygen) Facts of Mahon Under Hadacheck • Prior Use Can’t Stop Progress? Hard to Use • CCs not really claiming rights through prior use • Claiming rights through purchase • Might argue can limit/eliminate old type of property interest to further progress of Penn cities/economy. • Other (significantly different) arguments from Hadacheck?

  18. Mahon Analysis:DQs 108-111We’ll Start with BriefIntroduction to JusticesHolmes & Brandeis

  19. Justice Oliver Wendell Holmes • Born in 1841 • Fought in Civil War (Wounded at Antietam & Fredericksburg) • Wrote The Common Law (1881) • Appointed to US Supreme Court in 1902 • Served until 1932 (At time, oldest Justice ever) • Died in 1935

  20. Justice Oliver Wendell Holmes "Holmes was a cold and brutally cynical man who had contempt for the masses and for the progressive laws he voted to uphold." Jeffrey Rosen, Brandeis's Seat, Kagan's Responsibility New York Times, July 2, 2010.

  21. Justice Louis Brandeis • Born in 1856 • Progressive Cause Lawyering (Brandeis Brief) • Appointed to US Supreme Court in 1916 (first Jewish Justice) • Served until 1939; Died 1941

  22. Justice Louis Brandeis “[T]he image of Brandeis, when [President] Wilson sent his name to the Senate … was one that fright-ened the Establishment. Brandeis was a militant crusader for social justice whoever his opponent might be. He was dangerous not only because of his brilliance, his arithmetic, his courage. He was dangerous because he was incorruptible… . The fears of the Establishment were greater because Brandeis was the first Jew to be named to the Court.” -- Justice William O. Douglas

  23. Holmes (1902) (HMS) Cardozo (1932) (CAR) Frankfurter (1939) (FFR) Goldberg (1962) (GBG) Fortas (1965) (FTS) Blackmun (1970) (BMN) Breyer (1994) (BRY) Brandeis (1916) (BDS) Douglas (1939) (DGS) Stevens (1975) (STV) Kagan (2010) (KGN) Holmes & Brandeis: Successors& Introduction to US SCt Abbreviations

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

  25. 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: explicitly 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)

  26. Mahon Analysis: Holmes MajorityWhat Does “Too Far” Mean? 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 (b/c notice) • No issue of public harm: case about one house (though he goes on to address more) • No “avg. reciprocity of advantage”(we’ll define later)

  27. Mahon Analysis: Holmes MajorityVery Narrow Holding A 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.

  28. Mahon Analysis: Holmes MajorityExplore Possible Broader Holdings by • Looking at the ways Justice Brandeis disagrees with Justice Holmes re • Diminution in Value (DQ108) • Public Nuisance (DQ109) • Reciprocity of Advantage (DQ110) • Looking at Important Language in Maj. Opinion • Will Yield Possible Rules: DQ111

  29. Mahon Analysis: Holmes & BrandeisDQ108: Height Restrictions(Oxygen) Measuring Loss of Value • HMS argument similar to Kelso • Relevant property here is mineral rights • Assumes Act reduces value to 0  Taking • BDS disagrees for two reasons • Doesn’t accept that value of mineral rights is 0 • Need to view mineral rights in context of “value of all other parts of the land.” (last para. p. 110)

  30. Mahon Analysis: Holmes & BrandeisDQ108: Height Restrictions(Oxygen) Measuring Loss of Value • BDS: Need to view mineral rights in context of “value of all other parts of the land.” • Look at value of coal and surface together, not value of coal alone • Why? Owner can’t get more rights v. Gov’t by dividing land. • Example/Analogy: Height Restrictions

  31. Mahon Analysis: Holmes & BrandeisDQ108: Height Restrictions(Oxygen) Measuring Loss of Value • BDS Example/Analogy: Height Restrictions • Like Kohler Act, forbid use of part of parcel • BUT conceded to be valid/Constitutional • Height restrictions not characterized as: “Value of air rights reduced to 0.”

  32. Mahon Analysis: Holmes & BrandeisDQ108: Height Restrictions(Oxygen) Measuring Loss of Value • BDS Example/Analogy: Height Restrictions • p.110-11: “[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?” • We’ll revisit issue in Penn Central

  33. Mahon Analysis: Holmes & BrandeisDQ108: Height Restrictions(Oxygen) Part of DQ108: How might you distinguish the Kohler Act from height restrictions? (E-Mail to me by 2:00 pm) • OXYGEN-B1: Garry; Griffin; Importico; Starr • OXYGEN-B2: Baros; Fenton; Nanes; Strelitz

  34. Mahon Analysis: Holmes & BrandeisDQ108: Height Restrictions(Oxygen) Measuring Loss of Value • Example of “Denominator Q”: How Do You Decide Relevant Piece of Property to Value? • BDS: Look at whole parcel top to bottom • Important Argument for Denominator Q: Dividing property shouldn’t affect gov’t power to regulate • HMS: Doesn’t explicitly address BDS approach

  35. Mahon Analysis: Holmes & BrandeisDQ108: Height Restrictions(Oxygen) Measuring Loss of Value • What is Relevant Piece of Property to Value? • BDS: Look at whole parcel top to bottom • HMS: Doesn’t explicitly address BDS approach • Might disagree, believing should just look at what this O has • Might agree with approach but still think CCs should win b/c • Coal much more valuable than surface rights; and/or • Loss in value of coal much greater than BDS believes

  36. Mahon Analysis: Holmes & BrandeisDQ108: Height Restrictions(Oxygen) Measuring Loss of Value • What is Relevant Piece of Property to Value? • BDS: Look at whole parcel top to bottom • HMS: Doesn’t explicitly address BDS approach QUESTIONS?

  37. Mahon Analysis: Holmes MajorityExplore Possible Broader Holdings by • Looking at the ways Justice Brandeis disagrees with Justice Holmes re • Diminution in Value (DQ108) • Public Nuisance (DQ109) • Reciprocity of Advantage (DQ110) • Looking at Important Language in Maj. Opinion • Will Yield Possible Rules: DQ111

  38. Mahon Analysis: Holmes & BrandeisDQ109: Public Nuisance (Krypton) • HMS: No Public Nuisance in Case: • Only one house; not common or public damage • Not safety issue because of notice • Shouldn’t protect people who took risk of only purchasing surface rights

  39. Friedman Article on Mahon DQ112: (Uranium) Some New Info from Friedman Article: • Mahons were original buyers; held land for 43 years • CCs had often left surface in place despite subsidence rights • Whole chunks of Scranton on the verge of collapse. • Under Penn laws, CCs had choice to exercise subsidence rights and pay damages to surface Os. • Other things striking to you?

  40. Friedman Article on Mahon DQ112: (Uranium) Part of DQ112: How Does Info from Friedman Article Affect the Way You Should Read Mahon? (E-Mail to me by 2:00 pm) Uranium B1: Diblasi; Klock; Tolentino Uranium B2: Burns; Forman; Simowitz

  41. Mahon Analysis: Holmes & BrandeisDQ109: Public Nuisance (Krypton) • HMS: No Public Nuisance in Case: • BDS disagrees; characterizes as “noxious use” and Public Nuisance • Act includes public buildings, etc. as well as houses • Notice not enough to protect public interest in safety • Should defer to Legisl. on need for safety measure • Interest can be “public” even if helps private parties

  42. Mahon Analysis: Holmes & BrandeisDQ109: Public Nuisance (Krypton) • HMS: No Public Nuisance in Case: • BDS says Public Nuisance/noxious use: • Significance if Considered “Public Nuisance”: • BDS: OK to regulate to prevent Public Nuisance even if deprives O of only profitable use • HMS: Nothing in majority suggests he disagrees on legal significance, just on reading of facts

  43. Mahon Analysis: Holmes & BrandeisDQ109: Public Nuisance (Krypton) • Significance if Considered “Public Nuisance”: • BDS: Constitutional to regulate to prevent Public Nuisance even if deprives O of profitable use • HMS: Nothing in majority suggests he disagrees on legal significance, just on reading of facts • Questions?

  44. Mahon Analysis: Holmes MajorityExplore Possible Broader Holdings by • Looking at the ways Justice Brandeis disagrees with Justice Holmes re • Diminution in Value (DQ108) • Public Nuisance (DQ109) • Reciprocity of Advantage (DQ110) • Looking at Important Language in Maj. Opinion • Will Yield Possible Rules: DQ111

  45. Mahon Analysis: Holmes & BrandeisDQ110: Reciprocity (Krypton) • P and state relied on Plymouth Coal : US SCt upheld state requirement that CCs, when mining, leave enough coal in place to serve as pillars between mines. (top p.109) • Holmes distinguishes: • involved safety of miners plus: • “secured an average reciprocity of advantage”

  46. Mahon Analysis: Holmes & BrandeisDQ110: Reciprocity (Krypton) “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”

  47. Mahon Analysis: Holmes & BrandeisDQ110: Reciprocity (Krypton) “Average Reciprocity of Advantage” • Benefit resulting precisely from fact that others are restricted in the same way. (Notjust general benefit from the regulation.) • E.g., Plymouth Coal: Purpose: prevent cave-ins where two mines meet. • I lose some coal because I can’t mine to property line; benefits neighboring mine, which doesn’t collapse • He loses some coal because he can’t mine to property line; benefits my mine, which doesn’t collapse.

  48. Mahon Analysis: Holmes & BrandeisDQ110: Reciprocity (Krypton) “Average Reciprocity of Advantage” • Benefit resulting precisely from fact that others are restricted in the same way. (Notjust general benefit from the regulation.) • E.g., City Ordinance: Storeowners in Business District must keep sidewalk in front clear of snow • I have to use labor to comply; might not be worth it for my store alone; benefits all neighboring stores • Neighbors have to use labor to comply; might not be worth it for their store alone; benefits me & other neighboring stores

  49. Mahon Analysis: Holmes & BrandeisDQ110: Reciprocity (Krypton) “Average Reciprocity of Advantage” • Benefit resulting precisely from fact that others are restricted in the same way. (Not just general benefit from the regulation.) • Not Reciprocity: Hadacheck • I have to shut down brickworks; benefits all neighboring lots byreducing pollution. • No corresponding restriction on neighbors. I benefit from regulation, if at all, from general benefit: cleaner air in LA.

  50. Mahon Analysis: Holmes & BrandeisDQ110: Reciprocity (Krypton) Part of DQ110: Other Examples of Average Reciprocity of Advantage? (E-Mail to me by 2:00 pm) Krypton B1: Biddle, Criste, Grabel, Rhodes Krypton B2: Bell, Ebenstein, Jacobson, Lanza

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