Music: Carole King, Tapestry (1971) 1L Elective Choices: I’ll Review Mon/Tue Nov 12-13 Analysis of Evidence Family Law * Immigration International Environmental

Music: Carole King, Tapestry (1971)

1L Elective Choices: I’ll Review Mon/Tue Nov 12-13

Analysis of EvidenceFamily Law * Immigration

International Environmental LawLaw & Social Justice * Legislation

Substantive Criminal Law

RADIUM

Takings Theorist #1:Joseph Sax & DQ104-05

Takings Theorists: Joseph SaxDQ104 (Radium)

Sax’s First Formulation

•Distinction Between:• “Government-as-Enterpriser” • “Government-as-Arbiter.”

•For Each:• Definition?• Examples?• What Sax Sees as Consequence and

Why?



•“Government-as-Enterpriser” • Classic uses of Eminent Domain (Road, School

etc.)• Taking land for govt purpose, so should pay for

•“Government-as-Arbiter.” • Govt resolving dispute between conflicting

land uses • Not just conflicting parties• Reese’s Peanut Butter Cup Problems

• When resolving dispute, no need to pay loser of dispute



•Distinction Between:• “Government-as-Enterpriser” • “Government-as-Arbiter.”

•Application• Apply to Hadacheck• Circumstance Where It’s Hard to Tell?


“Govt-as-Enterpriser” v. “Govt-as-Arbiter”

•Apply to Hadacheck: Pretty Clearly Arbiter Case (even though city may benefit some)•Circumstance Where It’s Hard to Tell?• E.g., Looks Like Arbiter but One Side of

Dispute is Govt Owned (School, Military Base, Hospital)

•Apply to Airspace Solution (Argue Both Ways)


“Govt-as-Enterpriser” v. “Govt-as-Arbiter”

•Apply to Airspace Solution• Could View as Arbitration between Gas

Cos. & Other Surface Owners• Could View as Taking Property from

Other Surface Owners for Gas Cos to Use for Large Public Benefit• Could generalize: Sax unclear if arbitrating

between two private parties, but result is to give one party property rights of the other to further strong public interest.


“Govt-as-Enterpriser” v. “Govt-as-Arbiter” Three Situations that are Difficult to Categorize

1.Looks like arbitrating, but one side of dispute is gov’t owned (School, Military Base, Hospital)2.Looks like arbitrating, but result is to transfer property rights of one party to the other to further strong public interest (not simply saying owner can’t do X) (Airspace Solution) 3.Limit on uses of private property to protect wildlife (choosing between animals and landowners not exactly the same as choosing between two sets of owners) (Ramlal B2)


Sax’s Second Formulation

•State Can Regulate Without Compensating to Prevent “Spillover Effects” (= Negative Externalities)

•What “spillover effects” or externalities is the state trying to prevent …– in Hadacheck? – in “the Airspace Solution”?

Unit Three : IntroductionRelevant Considerations in

Takings Cases§B Survey About What Facts Matter (68

Responses)•% Reduction in Value (61)•Ban on Intended Use (61) •$$$ Amount Reduction (42)

•Purpose of Regulation (37) = Hadacheck (Police Powers); Sax (Enterpriser v. Arbiter; Stopping Spillovers)•$$$ Amount Left (29) = Kelso (left open by Hadacheck)•Return on Investment (18)

Mahon v. Pennsylvania Coal Co. (1922)

Read Carefully; Important Differences between Holmes Majority & Brandeis Dissent

Mahon v. Pennsylvania Coal Co.Background: Pennsylvania Law

Property Rights in PennsylvaniaThree Types; Each is Separate “Estate in

Land”1.Surface2.Mineral (here, coal extraction)3.Subsidence: – Right to Decide Whether to Keep Surface in

Place or Undermine It. – Can be Held By Surface Owner or Mineral

Rights Owner

Mahon v. Pennsylvania Coal Co.Background: Pennsylvania Law

Property Rights in PennsylvaniaThree Types; Each is Separate “Estate in

Land”1.Surface2.Mineral (here, coal extraction)3.Subsidence: – Right to Decide Whether to Keep Surface in

Place or Undermine It. – Can be Held By Surface Owner or Mineral

Rights Owner

Mahon v. Pennsylvania Coal Co.Background: Factual Context

Coal Companies (CCs) Owned Large Tracts of Land, Initially Holding All

Three Estates•Sell Surface Rights to Individuals, Businesses, Local Governments •Contracts of Sale & Deeds for these Sales…– Explicitly retained for CCs both mineral rights

& subsidence rights; – Required CCs to give notice before

undermining

Mahon v. Pennsylvania Coal Co.Background: Factual Context

• Penn. Legislature becomes concerned about wide-spread effects of CCs exercising subsidence rights

• Passes Kohler Act– Forbids CCs from mining in a way that causes

surface to collapse where home or other structure affected

– Exception if owner of mineral rights also owns surface & lot is more than 150 feet from improved lots owned by others.

– Effect is to bar CCs from exercising some Subsidence Rights for which they had explicitly contracted.

Mahon v. Pennsylvania Coal Co.Background: Procedural History

• Pursuant to contract, D coal co gives notice to P surface owner that it will exercise its Subsidence Rights and undermine surface.

• P sued to prevent undermining, relying on Kohler Act

• TCt: Kohler Act bars undermining, but unconstitutional

• Pa SCt: Act = Legit. Exercise of State Power; P Wins

• Appeal to US SCt (via Writ of Error as in Hadacheck) b/c claiming a State Law violates Federal Constitution

• US SCt Opinion = 1922

1922

1922: BIRTHS• Bea Arthur • Helen Gurley Brown • Sid Caesar • Doris Day • Judy Garland • Redd Foxx • Boutros-Boutros Ghali• Jack Kerouac • Jack Klugman

Surrender Dorothy!

1922: BIRTHS

• Christopher Lee• Charles Mingus• Leslie Nielsen• Yitchak Rabin • Jean-Pierre Rampal• Carl Reiner • Charles M. Schulz• Kurt Vonnegut• Betty White

Betty & Saruman the White

1922: INTRODUCTIONS & DISCOVERIES

• 1st US Navy Aircraft Carrier • Better Homes & Gardens• British Broadcasting Co.• Campbell’s Soup• Dr. Doolittle• Eskimo Pie• Etiquette by Emily Post • Hollywood Bowl• Insulin Treatment of Diabetes • King Tut’s Tomb

• Lincoln Memorial Dedicated• 1st Microfilm Device • National Football League• Reader's Digest• Rin Tin Tin• Ulysses, by James Joyce• Vitamin D • The Waste Land by T.S. Eliot• Water Skiing• Yankee Stadium Construction

Begins (Opens 1923)

1922: U.S. EVENTS• Last horse-drawn fire equipment used in Brooklyn• Henry Ford makes more than $264,000 per day; AP says

he’s a billionaire• Growth of Radio: Many New Radio Stations + Many Firsts:– 1st Radio in White House & 1st Presidential Broadcast– 1st Paid Commercial– 1st Coast-to-Coast Broadcast of a Football Game– 1st Play-by-Play of World Series (Giants over Yankees 4-0 + 1 tie)

• Mah Jongg introduced in US; becomes a craze; by 1923, tile sets outselling even radios

1922 Bonus Slide:New in American Popular Music

• Carolina in the Morning• Chicago• Do It Again• I’ll Build a Stairway to

Paradise• My Buddy

• Taint Nobody’s Business if I Do

• Toot, Toot, Tootsie• Way Down Yonder in

New Orleans

Louis Armstrong Goes to Chicago

1922 Bonus Slide: Federal Baseball Club v. National League

• U.S. Supreme Court holds Major League Baseball exempt from Federal Antitrust Laws (Still True)

• Justice Holmes’s Majority Opinion says the business of giving “exhibitions of base ball” is not interstate commerce, and so can only be regulated by the states.

1922: WORLD EVENTS

• Ecuador & Egypt & Ireland Became Independent• Ottoman Empire Abolished• USSR Formed; Joseph Stalin appointed General

Secretary of the Soviet Communist Party• Japan: Crown Prince Hirohito Became Prince-

Regent• Italy: Mussolini & Fascists Take Power • Germany: Runaway Inflation; Stock Market Crash;

Hitler Addressed 50,000 National Socialists in Munich

Mahon v. Pennsylvania Coal Co.DQ106: Introduction (Radium)

Govt Action at Issue = Kohler Act (Forbids CCs from Causing Surface to

Collapse While Mining

•Purposes of the Action: Prevent Subsidence when Buildings on Surface (to further Safety and Welfare)•Is action rationally related to protecting Safety? •To improving/protecting Welfare?

Mahon v. Pennsylvania Coal Co.DQ106: Introduction (Radium)Govt Action at Issue = Kohler Act

(Forbids CCs from Causing Surface to Collapse While Mining

•Preventing Subsidence when Buildings on Surface = Rationally Related to Safety & Welfare•Safety concerns possible re landscape after cave-ins even with proper notice•Welfare concerns possible from neighbors’ property values to disruption of economy (Katrina issues) to environmental harms (Garry B1)


Govt Action at Issue = Kohler Act (Forbids CCs from Causing Surface to

Collapse While Mining

•What limits are placed on the CCs’ use of their property? •What uses of their property are still permissible?


• CCs can mine coal so long as surface stays up; means must leave some coal in place.

• What is the resulting harm to CCs? Uncertain!– Because of posture of case, no factual

record– The two opinions differ as to extent of

harm

–Harm according to Holmes?



• What is the resulting harm to CCs? – Uncertain because no factual record

–Holmes: (bottom of p.108) “warranted in assuming” statute makes mining “commercially impracticable”, so whole value gone.



• What is the resulting harm to CCs? – Uncertain because no factual record– Holmes: “warranted in assuming” whole value

gone.

– Brandeis: (top of p.111) “For aught that appears [in the record] the value of the coal kept in place by the restriction may be negligible….” [Means?]

Mahon DQ106: Demsetz Takings Story (Radium)

Decision: Do CCs undermine surface when they mine?

Old Rule (before Kohler Act)?

Mahon DQ106: Demsetz Takings Story (Radium)

Decision: Do CCs undermine surface when they mine?

Old Rule: Can undermine surface if own subsidence rights

Externalities?: Tricky Issue

Mahon: Externalities & Contract Rights

• Direct harm to surface owners not an externality b/c not external to decisions/activities of CCs. – CCs paid surface owners in advance for subsidence– As if Hadacheck sold land around factory • On condition that they’d allow brickworks to

continue despite dust, etc.; and • Paid separately for the condition


• Direct harm to surface owners not an externality b/c not external to decisions/activities of CCs.

• Possible externalities beyond direct harm to surface owners?


• 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”: Not allow or enforce agreement that has large costs no non-contracting parties

Documents

Music: Carole King, Tapestry (1971) 1L Elective Choices: I’ll Review Mon/Tue Nov 12-13 Analysis of Evidence Family Law * Immigration International Environmental