MUSIC Billy Joel The Stranger (1977). UNIT III TASKS: SAME AS COURSE AS A WHOLE Figure Out What...

MUSIC

Billy JoelThe Stranger (1977)

UNIT III TASKS: SAME AS COURSE AS A WHOLE

• Figure Out What Cases Mean

• Think About Best Way to Handle Legal Problem

• Apply Cases and Theorists to New Problems

Figure Out What Cases Mean

Hadacheck: Possible Holdings

• OK if furthering Police Powers

• OK if furthering Health/Safety

• OK if preventing Public Nuisance

• OK if furthering progress

• OK if some value left

Figure Out What Cases Mean

Line of ^

Hadacheck after Mahon?

Figure Out What Line of Cases Means

Hadacheck after Mahon?

• OK if furthering Police Powers

• OK if furthering Health/Safety

• OK if preventing Public Nuisance

• OK if furthering progress

• OK if some value left

Figure Out What Line of Cases Means

Mahon: Narrow Holding: Not OK if:

• O contracted for specific property right removed AND

• Value of O’s interest reduced to 0 AND

• No reciprocity AND

• No safety issue or public nuisance

Figure Out What Line of Cases Means

Mahon possible broad holdings (among many others): Not OK if

1. O contracted for specific property right removed OR

2. Value of O’s interest reduced to 0 OR

3. No reciprocity OR

4. No safety issue or public nuisance

Figure Out What Line of Cases Means

Mahon possible broad holdings (among many others): Not OK if

1. O contracted for specific property right removed OR

2. Value of O’s interest reduced to 0 OR

3. No reciprocity OR (Hadacheck)

4. No safety issue or public nuisance

Figure Out What Line of Cases Means

Hadacheck after Mahon & Miller?

• OK if furthering Health/Safety

• OK if preventing Public Nuisance

• OK if some value left

Figure Out What Line of Cases Means

Mahon possible broad holdings (after Miller): Not OK if

1. O contracted for specific property right removed OR

2. Value of O’s interest reduced to 0 OR

3. No safety issue or public nuisance

Figure Out What Line of Cases Means

Hadacheck + Mahon + Miller: Possible Rules

1. Not OK if O contracted for specific property right removed AND value of O’s interest reduced to 0

2. OK if value of O’s interest reduced to 0 IF choosing between two inconsistent land uses

3. OK if stopping public nuisance

4. OK if reciprocity

5. OK if some value left

Figure Out What Line of Cases Means

Very Difficult to Identify Precise Line between

Hadacheck and Mahon

Figure Out What Line of Cases Means

Very Difficult to Identify Precise Line between

Hadacheck and Mahon; We’ll Return to This After

Penn Central

Think About Best Way to Handle Legal Problem

Keep in mind the “legal problem” we are addressing:

• NOT “Is the regulation a good idea?”• BUT “Has the regulation interfered with

claimant’s property rights too much?”• As with other Constitutional questions, in

effect asking “How should the gov’t operate?”

Think About Best Way to Handle Legal Problem

Legal Problem: “Has the regulation interfered with claimant’s property rights too much?” Policies at issue:

• How much leeway do we give the democratically elected gov’t to regulate property?

• How much protection do we give individuals to use their land as they wish despite disapproval of the majority?

Think About Best Way to Handle Legal Problem

Terminology Point: If we conclude that the regulation has interfered with property rights more than the Constitution allows (without paying), we call it a “Taking.” Thus,

“Has the regulation interfered with claimant’s property rights too much?” = “Has the regulation interfered with claimant’s property rights so much that it constitutes a “Taking”?

Think About Best Way to Handle Legal Problem

Legal Problem: “Has the regulation interfered with claimant’s property rights so much that it constitutes a “Taking”?

Theorists provide us with some ideas about this.

Think About Best Way to Decide When a Regulation of Property Rights is a “Taking”

• Sax: Look at– Arbiter v. Enterpriser– Stopping Spillover Effects

• Epstein: OK ONLY if – implicit compensation OR – stopping public nuisance

• Michaelman: Look at– Settlement costs v. demoralization costs– Fairness Principle

Think About Best Way to Decide When a Regulation of Property Rights is a “Taking”?

“Demsetz Takings Story” • Another Way to Think About This

Question

• Who Should Bear Burden for Changing Technology and/or Values?

• Though Not a Tough Question if Change is: “We’ve just discovered you’ve been poisoning us for years.”

Think About Best Way to Decide When a Regulation of Property Rights is a “Taking”?

DQ116: “Demsetz Takings Story” & Penn Central Facts:

• Decision: Whether to alter historically significant building

• Old Rule: Os can do as they like.

• Externalities: Harm to nearby tourist businesses; harm to “history buffs”

Think About Best Way to Decide When a Regulation of Property Rights is a “Taking”?

DQ116: “Demsetz Takings Story” & Penn Central Facts:

• Change in Circs: As time passes, buildings become more well-known/more popular; # of history buffs increase

• Increased Externalities?: Harms increase with popularity/reliance/# of buffs

Think About Best Way to Decide When a Regulation of Property Rights is a “Taking”?

DQ116: “Demsetz Takings Story” & Penn Central Facts:

Change in Rule: Passage of Historic Preservation Laws

Response: Os of Historic Buildings claim interference w Property Rights

Question: Is it fair to Os of historic buildings to bear burden for society’s recent decision that preservation is important

Apply Cases and Theorists to New Problems

• Basic Skill Required on Test

• Incorporates Both of the Other Tasks

• Requires Clear Sense of How Structure of Cases Map onto Problem

Apply Cases and Theorists to New Problems: Structure Map

Case Gov’t Act Affected Landowner

Affected 3d Parties

Hadacheck LA Bans Brickyards

Brickyard Os Neighbors

Mahon PA Bans Undermining

Coal Cos. Surface Os

Miller VA Cedar Rust Act

Cedar Tree Os

Apple Orchard Os

Penn Central

NYC Historic Preservation

Penn Central Tourist Biz; History Buffs

Apply Cases and Theorists to New Problems: Structure Map

Case/Hypo Gov’t Act Affected Landowner

Affected 3d Parties

Hadacheck LA Bans Brickyards

Brickyard Os Neighbors

Mahon PA Bans Undermining

Coal Cos. Surface Os

Miller VA Cedar Rust Act

Cedar Tree Os

Apple Orchard Os

Penn Central

NYC Historic Preservation

Penn Central Tourist Biz; History Buffs

Airspace Solution Hypo

KY No Rights to Depleted Gas Pools

Surface Os (Hammonds)

Gas Cos. Reinserting

Apply Cases and Theorists to New Problems

DQ117-18: Apply to Facts of Penn Central – To Practice Using the Earlier Cases and

Theorists– To Further Understand the Earlier Cases

and Theorists– To See What Arguments Lawyers Might

Have Made to the SCt When It Decided PC

DQ117: Apply Cases to Penn Central Facts

Hadacheck after Mahon & Miller

• OK if furthering Health/Safety?

• OK if preventing Public Nuisance?

• OK if some value left?

DQ117: Apply Cases to Penn Central Facts

Hadacheck after Mahon & Miller

• OK if furthering Health/Safety? N/A

• OK if preventing Public Nuisance? N/A

• OK if some value left? YES

DQ117: Apply Cases to Penn Central Facts

Considerations from Mahon• Right Specifically Contracted For?

DQ117: Apply Cases to Penn Central Facts

Considerations from Mahon

• Right Specifically Contracted For?– NO. (Lease after regulation in place)

• Value Reduced to Zero?

DQ117: Apply Cases to Penn Central Facts

Considerations from Mahon• Right Not Specifically Contracted For

• Value Reduced to Zero?– If look at whole parcel, NO (Retains value

of building + Reas. Rate of Return)– If look at air rights alone, MAYBE (Unclear

if city would allow if better)

• Reciprocity of Advantage?

DQ117: Apply Cases to Penn Central Facts

Considerations from Mahon• Right Not Specifically Contracted For• Value Reduced to Zero?

– If look at whole parcel, NO – If look at air rights alone, MAYBE

• Reciprocity of Advantage? NO

• Loss in Value Too Great?

DQ117: Apply Cases to Penn Central Facts

Considerations from Mahon• Right Not Specifically Contracted For• Value Reduced to Zero?

– If look at whole parcel, NO – If look at air rights alone, MAYBE

• No Reciprocity of Advantage

• Loss in Value Too Great?– $2 Million/Year– BUT retains significant value + reas. return

DQ117: Apply Cases to Penn Central Facts

Governed by Miller?• OK if value of O’s interest reduced to 0

IF choosing between two inconsistent land uses.

Apply Cases and Theorists to New Problems: See Patterns

Case Gov’t Act Affected Landowner

Affected 3d Parties

Hadacheck LA Bans Brickyards

Brickyard Os Neighbors

Mahon PA Bans Undermining

Coal Cos. Surface Os

Miller VA Cedar Rust Act

Cedar Tree Os

Apple Orchard Os

Penn Central

NYC Historic Preservation

Penn Central Tourist Biz; History Buffs

DQ117: Apply Cases to Penn Central Facts

Governed by Miller?• OK if value of O’s interest reduced to 0

IF choosing between two inconsistent land uses.

• Penn Central doesn’t look like the same kind of dispute.

DQ117: Apply Cases to Penn Central Facts

Another Common Way to Do This: Compare Facts of Old Case to Facts of New Case/Hypo

DQ117: Apply Cases to Penn Central Facts

Common Way to Do This: Compare Facts of Old Case to Facts of New Case/Hypo

• E.g., Compare Nectow to Penn Central: – PC: Less Interference w Ppty Rts (Value Left)– PC: Furthers Police Power (Welfare)– Thus, Better Case for Gov’t than Nectow

DQ117: Apply Cases to Penn Central Facts

Common Way to Do This: Compare Facts of Old Case to Facts of New Case/Hypo

• E.g., Compare Hadacheck to Penn Central: – Gov’t Purpose?

DQ117: Apply Cases to Penn Central Facts

Common Way to Do This: Compare Facts of Old Case to Facts of New Case/Hypo

• E.g., Compare Hadacheck to Penn Central: – Gov’t Purpose? Stronger in Hadacheck– Interference with Property Rights?

DQ117: Apply Cases to Penn Central Facts

Common Way to Do This: Compare Facts of Old Case to Facts of New Case/Hypo

• E.g., Compare Hadacheck to Penn Central: – Gov’t Purpose Stronger in Hadacheck

– Interference with Property Rights? Hard Call• Had: Basically can do anything except existing use;

may have substantial loss on investment.

• PC: Basically can only do existing use; still have reasonable return on investment.

DQ117: Apply Cases to Penn Central Facts

• If compare facts for all cases, should see that PC facts are between the other cases (like an exam Q):– Smaller interference w property rights than

Mahon or Nectow; greater interference than Miller (Hard to say re Hadacheck)

– Arguably less important purpose than Hadacheck or Miller; more important than Nectow or arguably Mahon (at least as described by Holmes)

DQ117: Apply Cases to Penn Central Facts

• If compare facts for all cases, should see that PC facts are between the other cases (like an exam Q)

• Thus, Theorists especially helpful to resolve. Note that Court explicitly relies on both Sax and Michaelman. (Epstein not yet written).

DQ118: Apply Theorists to Penn Central Facts

• Sax: Look at– Arbiter v. Enterpriser– Stopping Spillover Effects

• Epstein: OK ONLY if – implicit compensation OR – stopping public nuisance

• Michaelman: Look at– Settlement costs v. demoralization costs– Fairness Principle

Figure Out What Cases Mean

Analysis in Penn Central :•Get as far as we can today &

continue next week.•I’ll update assignment sheet

after class

Figure Out What Penn Central Means: Arbitrariness (DQ122)

pp.112-13: Majority rejects claim that designation of historical buildings arbitrarily singles out some property owners. Why?

Figure Out What Penn Central Means: Arbitrariness (DQ122)

Majority rejects arbitrariness claim• Comprehensive plan here

– Rule applies to vast #s of structures– Arbitrariness limited by judicial review of

designation or decision

Figure Out What Penn Central Means: Arbitrariness (DQ122)

Majority rejects arbitrariness claim• Comprehensive plan here • Hard to say arbitrary gov’t action when PC

didn’t exhaust other remedies:– didn’t appeal designation– didn’t appeal decision by Board– only tried 2 options

NOTE: SCt not happy to be asked to decide constitutional question that might be unnecessary

Figure Out What Penn Central Means: Arbitrariness (DQ122)

Majority rejects arbitrariness claim• Comprehensive plan here

• PC Didn’t Exhaust Remedies

• Regulatory burdens don’t have to be evenly distributed (citing Miller; Hadacheck; Euclid)

Figure Out What Penn Central Means: Arbitrariness (DQ122)

Majority rejects arbitrariness claim• Same result on this claim as Hadacheck &

Miller

• Reminder: Arbitrariness won’t be an issue for you.

• Leaves us with real Takings Question