ELEMENTS B POWER POINT SLIDES Class #28 (Extendo-Class) Friday, November 6, 2015 National Nachos Day

ELEMENTS B POWER POINT SLIDES

Class #28 (Extendo-Class)Friday, November 6, 2015

National Nachos Day

MUSIC: Alberta HunterComplete Recorded Works Vol. 2: 1923-24

1L Elective Choices1L Elective Choices•European Union LawEuropean Union Law•Family LawFamily Law•Immigration LawImmigration Law•Legislation Legislation •Products LiabilityProducts Liability•Substantive Criminal LawSubstantive Criminal Law

Elements B: 11/6

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CHOOSING YOUR

1L ELECTIVE

SectionSection B Spring 2016B Spring 2016MON TUE WED THU FRI

L.COMM II9:00-10:50

CON LAW IHILL11:00-12:20

CON LAW IHILL11:00-12:20

ELECTIVE11:00-12:20

CON LAW IHILL11:00-12:20

ELECTIVE11:00-12:20

CONTRACTSDAWSON3:30-5:20

CRIM PROSTOTZKY3:30-4:50

CONTRACTSDAWSON3:30-5:20

CRIM PROSTOTZKY3:30-4:50

CHOOSING YOUR 1L ELECTIVE

The most important decision you will make…

CHOOSING YOUR 1L ELECTIVE

The most important decision you will make

next Thursday or Friday.

CHOOSING YOUR 1L ELECTIVE

The most important decision you will make

next Thursday or Friday.Maybe.

CHOOSING YOUR 1L ELECTIVE

You are picking one course out of the 20 or so electives you will take

in law school.

CHOOSING YOUR 1L ELECTIVE

You are not picking a spouse.

CHOOSING YOUR 1L ELECTIVE

CHOOSING YOUR 1L ELECTIVE: LOGISTICS

• Read Descriptions Carefully; Watch Videos• Learn Registration Procedures – Including Wait Lists & Add/Drop– Note re “Full” Classes & Room Changes

• Check Registration Time (Significance)• Checking Availability in Advance

CHOOSING YOUR 1L ELECTIVE:

SOME CONSIDERATIONS• Available to Take Later?• Method of Evaluation• Prerequisite/Intro to Other Courses• Furthering Skills & Career Goals

CHOOSING YOUR 1L ELECTIVE:

SOME CONSIDERATIONS• Past Student Evaluations (@ Circulation

Desk)

• Upper Level Students in Room? Upper Level Students in Room? –European Union European Union –Products LiabilityProducts Liability

EUROPEAN UNION LAW (C. BRADLEY)

Structure & Operation of European Union• Short Essay & Final Exam• Intro to Public & Pvt. Int’l Law; Not Prereq• Upper Level Students in Room• Rarely Offered as Stand Alone Upper Level Course• Interest in Int’l or Business Areas; Good Synergy

with US Con Law I

FAMILY LAW (B. PERLMUTTER)

Legal Relationships between Spouses/Life Partners and between Parents & Children

•Offered Every Semester for Upper Level•Method of Evaluation: Class Participation; Final Exam; Negotiation Exercise; and Reflection Papers. •Intro/Prereq. to Upper Level Family Law Electives•Significant # of Students Practice Family Law; Also Useful for Personal Representation & Gen’l Practice

IMMIGRATION LAW (D. ABRAHAM)

Legal Treatment of Process of Immigration and of Immigrants Once Inside U.S.

•Final Exam & Class Participation•Intro/Prereq. to Upper Level Immigration Electives incl. Immigration Clinic•Offered Every Year for Upper Level•In Places w Many Immigrants (S.Fla., NY, TX, Calif.): Large Pro Bono Practice + Arises in Many Other Practice Areas; Synergy w Con Law I•Good Intro to Working with Complex Statutes

LEGISLATION (W. BLATT)Techniques for Working with Statutes

• Final Exam, Written Assignment, Participation• High Level of Participation Required• Rarely Offered for Upper Level• Like an Elements Course Focused on Statutes

Instead of Cases. Very Helpful b/c Many Major Practice Areas Involve Detailed Statutes (Crim; Environ; Anti-Discr; Bankruptcy; Consumer Prot’n; Banking; Commercial Law; Labor; Copyright, etc.)

PRODUCTS LIABILITY (Z. FENTON)

Advanced Torts Class

•Relatively New Course: Co-Offered for Upper Level This Year; No Guarantee Will Be Again•Upper Level Students in Room•Method of Evaluation: Final Exam •Not direct pre-requisite or intro for other courses; techniques & skills may be relevant in advanced business and litigation courses.•Significant part of personal injury and insurance practice and often general business litigation.

SUBSTANTIVE CRIMINAL LAW (D. COKER)

Elements of Crimes & Defenses • Offered Every Semester for Upper Level• Method of Evaluation: Final Exam & 2-3 Short Quizzes• Intro/Prereq. to Upper Level Crim Electives; Good

Synergy with Crim. Pro.• Many Students Practice Criminal Law; Comes Up in

Every Area of Practice, Personal Representation, and Family Conversations. Good Experience with Common Kind of Statutes.

CHOOSING YOUR 1L ELECTIVE

QUESTIONS?QUESTIONS?

Argument By AnalogyReview Problem 2J (URANIUM)(URANIUM)

Arguments re Usefulness of Escaping Animals Cases for Resolving Disputes

re Human Gestures Strongly Identified with Particular Individuals

(SIPI)

Assume Property Rights Assume Property Rights OnlyOnly Available for Gestures Strongly Available for Gestures Strongly

Associated with Particular (Famous) Associated with Particular (Famous) Individuals AND Not Widely Used Individuals AND Not Widely Used

Otherwise.Otherwise.

Argument By AnalogyReview Problem 2J (URANIUM)(URANIUM)Arguments re Usefulness of

Escaping Animals Cases from Factual Similarities

between Disputes re Escaping Animals

Generally &Disputes re Human Gestures

SIPI

Argument By AnalogyReview Problem 2J (URANIUM)(URANIUM)

Arguments re [Lack of] Usefulness of Escaping Animals Cases from Factual Differences

between Disputes re Escaping Animals

Generally &Disputes re Human Gestures SIPI

Argument By AnalogyReview Problem 2J (URANIUM)(URANIUM)

Usefulness of Factors (not Usefulness of Factors (not discussed last time) from discussed last time) from

Escaping ACs Escaping ACs for Resolving for Resolving Disputes re Human Gestures SIPI:Disputes re Human Gestures SIPI:

•DistanceDistance

•Return to Natural LibertyReturn to Natural Liberty

Argument By AnalogyReview Problem 2J (URANIUM)(URANIUM)Alternatives to Escape ACs for Alternatives to Escape ACs for

Resolving Disputes About Human Resolving Disputes About Human Gestures SIPI?Gestures SIPI?

•OO WinsOO Wins: If Strongly Associated w Particular : If Strongly Associated w Particular Indiv and Not Commonly Used Before Indiv., Indiv and Not Commonly Used Before Indiv., Indiv. Can Control All Commercial Use.Indiv. Can Control All Commercial Use.•F WinsF Wins: No Property Rights in Gestures at All.: No Property Rights in Gestures at All.

OTHER PLAUSIBLE OTHER PLAUSIBLE

ALTERNATIVES?ALTERNATIVES?

Argument By AnalogyReview Problem 2J (URANIUM)(URANIUM)

SOME PROS & CONS OF SOME PROS & CONS OF

THESE ALTERNATIVES v. ACs?THESE ALTERNATIVES v. ACs?

•OO WinsOO Wins: If Strongly Associated w : If Strongly Associated w Particular Indiv and Not Commonly Particular Indiv and Not Commonly Used Before Indiv., Indiv. Can Control Used Before Indiv., Indiv. Can Control All Commercial Use.All Commercial Use.

•F WinsF Wins: No Property Rights in : No Property Rights in Gestures at All.Gestures at All.

LOGISTICS: GROUP ASSIGNMENT #3• Available Resources Include:– Posted Comments on Your Assignment #1

Submissions, Especially on Tie-Breaker Arguments– Comments & Model Answers on Old Exam Q 2,

(Including Problem We Just Did Later Today)– Instructions for This Assignment & for All Written

Assignments (Reread Before Submitting)

• Last Availability for Qs on This (Me or B.A.)– In-Class Now– Immediately After Class Outside Room (me)– Beginning of DF Session Today (B.A.)

Hadacheck v. Sebastian (1915)

RADIUM: DQs 3.06-3.09

Hadacheck v. SebastianDQ3.06: Introduction (Radium)

• Useful in Takings cases to begin analysis with the challenged gov’t action, rather than with a description of the lawsuit.

• DQ3.06 provides a standard set of Qs that we will use for all four primary Takings Cases to help you understand what’s at issue.

Hadacheck v. SebastianDQ3.06: Introduction (Radium)

Challenged Action & Rational Basis Challenged Action & Rational Basis ReviewReview

•Government action in Hadacheck: (p.110) L.A. Ordinance banning operation of brickyard in city

• What is the purpose of the action?

• Legitimate (Health Safety Welfare Morals)?

• Is the action rationally related to the purpose?

Hadacheck v. SebastianDQ3.06: Introduction (Radium)

Effects of the Challenged Action Effects of the Challenged Action •Government action in Hadacheck: (p.110) L.A. Ordinance banning operation of brickyard in city

• What limits are placed on the petitioner’s use of his property?

• What uses of his property are still permissible?

• What is the harm to the petitioner?

Hadacheck v. SebastianDQ3.06: Introduction (Radium)Effects of the Challenged Action

•What is the harm to the petitioner? • Incarceration!• Claims re Value in Habeas

Petition: • Property worth $800,000 as brickworks• Worth $60,000 as anything else• NOTE: Calif. & US Supreme Courts don’t endorse these claims (so they may not believe them)

Hadacheck v. SebastianDQ3.06: Introduction (Radium)

• (1915) Claim re Property Value (PV): • Property worth $800,000 as brickworks• Worth $60,000 as anything else

• Claims re Loss of PV Often Short Term• PV Fluctuates Significantly Over Time• This was new part of LA; PV must have

increased sharply at some point

Brickworks Site 11/2012: West Pico & Crenshaw Blvds., Los Angeles, CA

Hadacheck v. SebastianDQ3.06: Introduction (Radium)

Fit Into Demsetz Takings Story?•Activity is Brickmaking• Externalities: Some dust reaches nearby residents• Old Rule: Brickworks Allowed to Operate if There First

•Change? •Leads to rising externalities?•Change in the law?

Hadacheck v. SebastianDQ3.06: Introduction

Fit Into Demsetz Takings Story?•Activity is Brickmaking•Growth of LA Increases Externalities •Change in the law = New zoning ordinance banning brickworks•After the change, people affected by the new law complain that their property rights have been “taken.” (= Hadacheck Litigation)

Hadacheck v. SebastianProcedural Posture

• Hadacheck convicted for violating ordinance

• Files Habeas Petition w California SCt; Loses

• Appeal to US SCt – Claim that state law violated US

Constitution– At time, automatic appeal automatic appeal rather than

petition for certiorari

Hadacheck v. SebastianProcedural Posture

• Hadacheck convicted for violating ordinance• Files Habeas Petition w California SCt; Loses• Appeal to US SCt

• Status of Allegations in Petition (pp.111-12) – p.112: “substantial traverses” in reply by

Chief of Police– Cal SCt found against Petitioner on facts

re health, discrimination, etc.– US SCt says these findings supported by

evidence

Hadacheck v. Sebastian: Reasoning

DQ3.07Discrimination ClaimDiscrimination Claim

•Petitioner Says: – I was singled out; ordinance passed to stop me– Other brickworks in other districts treated differently

•How did the court deal with this claim? – Cal SCt found ordinance not arbitrary/discriminatory– US SCt said sufficient evidence supports that finding

Hadacheck v. Sebastian: Reasoning

DQ3.07Arbitrariness/Discrimination ClaimsArbitrariness/Discrimination Claims•Made Frequently (Hadacheck, Miller, Penn Central)•Hard to Win–Must Be:• Explicit Direct Attack on Someone -OR-• Very Random Exercise of Gov’t Power

– Rare Example: Eubank (cited in Miller) complete delegation of zoning decision to neighbors with no gov’t oversight

Hadacheck v. Sebastian: Reasoning

DQ3.07Arbitrariness/Discrimination Arbitrariness/Discrimination

ClaimsClaims•Made Frequently But Hard to Win•Generally OK for Gov’t to draw rough but plausible distinctions:– E.g., Between people under/over 21 years old

– E.g., Between neighborhoods

– E.g., Between types or size of brickworks, etc.

– Unless courts have found distinction problematic under Equal Protection Clause or First Amdt (race; religion, etc.)

Hadacheck v. Sebastian: Reasoning

DQ3.07Arbitrariness/Discrimination Arbitrariness/Discrimination

ClaimsClaims•Made Frequently But Hard to Win

•Generally OK to draw rough but plausible distinctions

•I won’t (intentionally) make arbitrariness a serious issue on final; don’t spend time on it!!

Hadacheck v. Sebastian: ReasoningDQ3.08 (Police Power)

Brief Aside on Nuisance LawBrief Aside on Nuisance Law•Tort to Protect Property Rights: Tort to Protect Property Rights: Your use of your own land is interfering with my use of my land (e.g., noise, smoke, odors)

•Exposure in Torts or Property?Exposure in Torts or Property?

Private Nuisance? Public Nuisance?

Hadacheck v. Sebastian: ReasoningDQ3.08 (Police Power)

Brief Aside on Nuisance LawBrief Aside on Nuisance Law•Tort to Protect Property Rights: Tort to Protect Property Rights: Your use of your own land is interfering with my use of my land (e.g., noise, smoke, odors)

•Private Nuisance: Private Nuisance: Lawsuits by private individuals.– Defenses: First in Time & Oversensitiveness

•Public Nuisance:Public Nuisance:– Statutes banning particular harmful land uses– Lawsuits for widespread harms to other

people’s use of land (no first in time defense)

Hadacheck v. Sebastian: Reasoning

DQ3.08 (Radium)Hadacheck Hadacheck & the Police Power (p.113)& the Police Power (p.113)

•“[O]ne of most essential powers of gov’t—one that is the least limitable.” (p.113)

•“A vested interest cannot be asserted against it because of conditions once obtaining.”

–MEANS?

Hadacheck v. Sebastian: Reasoning

DQ3.08 (Radium)Hadacheck & the Police Power (p.113)

•“A vested interest cannot be asserted against it because of conditions once obtaining.”

•Compare “Coming to the Nuisance” – First-in-Time Defense for Private

Nuisance–Not defense for Public Nuisance

Hadacheck v. Sebastian: Reasoning

DQ3.08 (Radium)Hadacheck & the Police Power:

Reinman

•Little Rock bans livery stables– Related to Change from Horses to Cars – Similar Facts Alleged re Loss of Property

Value– US SCt says OK under Police Power

•Why does Petitioner in Hadacheck say L.A. Ordinance Distinguishable?

Hadacheck v. Sebastian: Reasoning

DQ3.08 (Radium)Hadacheck Hadacheck & the Police Power: & the Police Power:

ReinmanReinman•Little Rock bans livery stables; US SCt says OK

•Petitioner: L.A. Ordinance Distinguishable b/c Brick-works Tied to Particular Location (Clay Pits)

•But Court Responds: Not Impossible to Run Business Elsewhere

•Reliance on Reinman suggests that under Police Power, OK to severely reduce value by eliminating current use.

Hadacheck v. Sebastian: Reasoning

DQ3.08 (Radium)Hadacheck Hadacheck & the Police Power: & the Police Power:

KelsoKelso

•San Francisco banned operation of rock quarry

•Cal. S.Ct. said unconstitutional

•Why Distinguishable from Hadacheck ?

Hadacheck v. Sebastian: Reasoning

DQ3.08 (Radium)Hadacheck Hadacheck & the Police Power: & the Police Power: KelsoKelso•San Francisco banned operation of rock quarry

•Cal. S.Ct. said unconstitutional; distinguishes Hadacheck because:

– In Kelso, if you can’t quarry, rock is valueless

– In Hadacheck, clay still has value; can remove & process elsewhere

Hadacheck v. Sebastian: Reasoning

DQ3.08 (Radium)Hadacheck Hadacheck & the Police Power: & the Police Power: KelsoKelso•Cal. S.Ct. draws distinction between

– Limit on use of land; and

– Complete elimination of value

•US SCt not bound by California state decision.

Does US SCt adopt Kelso reasoning?

Hadacheck v. Sebastian: Reasoning

DQ3.08 (Radium)Hadacheck Hadacheck & the Police Power: & the Police Power: KelsoKelso

•Cal. S.Ct. draws distinction between limit on use of land and complete elimination of value

•US SCt not bound by California state decision. Does US SCt adopt Kelso reasoning? NO.NO.– Explicitly reserves Q in last paragraph of

opinion– Does note clay still is available & has value

Hadacheck v. Sebastian: Reasoning

DQ3.08 (Radium)Hadacheck Hadacheck & the Police Power: & the Police Power: KelsoKelso

•Cal. S.Ct. draws distinction between limit on use of land and complete elimination of value

•Distinction raises important recurring Q: In deciding if value remains, do you look at:– All property owned by claimant (quarry +

rock)– Particular property most directly effected

(just rock)– Still value left in quarry, but not in rock.

Hadacheck v. Sebastian: Reasoning

DQ3.08 (Radium)Hadacheck Hadacheck & the Police Power: & the Police Power: KelsoKelso

•Important recurring Q: In deciding if value remains (or amount of value lost), what portion of claimant’s property do you look at?

•We’ll call this the “denominator” question: –What do you use as denominator in

fraction showing how much property is lost (or is left)?

Hadacheck v. Sebastian: Holding/Rules

DQ3.09 What rules or principles can you derive from Hadacheck to use in future cases? •Start with very broad holding: Any Any exercise of police power is exercise of police power is Constitutional if not arbitrary.Constitutional if not arbitrary.

•Narrower Versions?

Hadacheck v. Sebastian: Holding/Rules

DQ3.09VERY BROAD: Exercise of police power

Constitutional if not arbitrary.

NARROWER EXAMPLES: – Exercise of police power Constitutional if

not arbitrary and related to human health & safety.

– Exercise of police power Constitutional if not arbitrary and related to substantial concerns re human health & safety.

– Exercise of police power Constitutional if not arbitrary and prohibiting public nuisance/ harmful use of land.

Hadacheck v. Sebastian: Holding/Rules

DQ3.09Other possible rules or principles:•Prohibiting existing use not automatically unconstitutional•Large decrease in property value not automatically unconstitutional

Note that even Conservative Note that even Conservative commentators generally OK with these commentators generally OK with these where purpose is to prevent substantial where purpose is to prevent substantial

health/safety risks.health/safety risks.

Hadacheck v. Sebastian: Holding/Rules

DQ3.09Other possible rules or principles:•Prohibiting existing use not automatically unconstitutional•Large decrease in property value not automatically unconstitutional

•Maybe: Unconstitutional if all value removed (following Kelso)•Private interests must yield to progress & good of community (See third full paragraph p.113)

Hadacheck v. Sebastian: Holding/Rules

DQ3.09

Apply rules/principles from Hadacheck

to “Airspace Solution”

Hadacheck v. Sebastian: Holding/Rules

DQ3.09Apply rules/principles from Hadacheck to

Airspace Solution:

•Exercise of police power Constitutional if not arbitrary.

•Exercise of police power Constitutional if not arbitrary and related to human health & safety

•Exercise of police power Constitutional if not arbitrary and prohibiting nuisance/ harmful use of land

•(Kelso & Maybe Hadacheck): Unconstitutional if all value removed