THE%20THREEPENNY%20OPERA%20(1928)%20Book%20

1
THE THREEPENNY OPERA (1928)Book Lyrics by
Bertholdt BrechtMusic by Kurt Weill
(1928)English Translation by Marc
Blitzstein1954 Broadway Cast Album

• Extra Office Hours Next Two Fridays
• Nov 10 17 _at_ 945-1115 a.m.
• Course Evaluations Friday (Please Be On Time)
• Revised Assignment Sheet Online

2
Brandeis Response to Holmes re Public Nuisance

• Holmes sees no Public Nuisance
• Only one house not common or public damage
• Not safety issue notice
• Shouldnt protect people who took risk of only
  purchasing surface rights

3
BDS Response re Public Nuisance

• Holmes sees no Public Nuisance
• Brandeis disagrees characterizes as stopping
  noxious use
• Statute covers public buildings, roads, etc. as
  well as houses
• Notice not enough to protect public interest in
  safety
• Should defer to legislature on need for safety
  measure
• Interest can be public even if some private
  people benefit

4
BDS Response re Public Nuisance

• Holmes sees no Public Nuisance
• Brandeis sees as stopping noxious use
• Consequences of Public Nuisance
• BDS Can regulate to prevent public nuisance even
  if deprives O of profitable use
• HMS doesnt disagree

5
BDS on Reciprocity of Advantage

• Only matters if conferring benefit, not if
  preventing harm (top p.94)
• Remember Harm/Benefit Distinction for Penn Central

6
BDS on Reciprocity of Advantage

• There was no reciprocal advantage to the owner
  prohibited from using his .. brickyard, in
  Hadacheck unless it be the advantage of
  living and doing business in a civilized
  community. That reciprocal advantage is given by
  the act to the coal operators.

7
BDS on Reciprocity of Advantage

• There was no reciprocal advantage to the owner
  prohibited from using his .. brickyard, in
  Hadacheck unless it be the advantage of
  living and doing business in a civilized
  community. That reciprocal advantage is given by
  the act to the coal operators.
• NOT what Holmes means by Reciprocity of
  Advantage!!

8
Important Language in Majority

• Government hardly could go on if to some extent
  values incident to property could not be
  diminished without paying for every such change
  in the general law.
• -- (top p.90)
• Means Not every loss in value Taking

9
Important Language in Majority

• A strong public desire to improve the public
  condition is not enough to warrant achieving the
  desire by a shorter cut than the constitutional
  way of paying for the change. -- (middle
  p.91)
• Means A regulation is not necessarily
  constitutional just because purpose is important

10
Important Language in Majority (Balancing)

• What Balance Looks Like
• Careful evaluation of States interest
• Careful evaluation of harm to property owner
• Discussion of which is more significant why

11
Important Language in Majority (Balancing)

• Hadacheck
• Language re progress might suggest balance
• But not what case does
• No discussion about importance of brickmaking
• Discussion of states interest very general
  (police powers v. specific health concerns)
• Better read of language A regulation is not a
  taking just because it interferes with an
  existing long-established use

12
Important Language in Majority

• If we were called upon to deal with the
  plaintiffs position alone we should think it
  clear that the statute does not disclose a public
  interest sufficient to warrant so extensive a
  destruction of the defendants constitutionally
  protected rights.
• -- (End 2d para. p.90)

13
Important Language in Majority

• If we were called upon to deal with the
  plaintiffs position alone we should think it
  clear that the statute does not disclose a public
  interest sufficient to warrant so extensive a
  destruction of the defendants constitutionally
  protected rights. -- (End 2d para. p.90)
• Language arguably looks like balance
• public interest is not sufficient
• harm to owner is so extensive

14
Important Language in Majority

• If we were called upon to deal with the
  plaintiffs position alone we should think it
  clear that the statute does not disclose a public
  interest sufficient to warrant so extensive a
  destruction of the defendants constitutionally
  protected rights. -- (End 2d para. p.90)
• Hard to evaluate significance
• On its face, this language is dicta
• Case doesnt really attempt thorough balance
• minimizes public interest as small unfair
• sees private harm as total deprivation of rights
• so pretty trivial balance

15
Important Language in Majority

• If we were called upon to deal with the
  plaintiffs position alone we should think it
  clear that the statute does not disclose a public
  interest sufficient to warrant so extensive a
  destruction of the defendants constitutionally
  protected rights. -- (End 2d para. p.90)
• Be careful if you use this passage to support
  balancing later cases dont pick up on

16
OXYGEN DQ105 What other rules or principles
can you derive from the majority opinion in
Mahon?
17
DQ105 Rules/Principles from Mahon

• AT LEAST
• Look at diminution in value if goes too far
  Taking
• If all value gone and no safety issue Taking
• If reciprocity of advantage, no Taking

18
OXYGEN DQ105 Effect of Mahon on Hadacheck?

• Regulation OK if under Police Power?
• Reg. OK if Preventing Public Nuisance?
• Reg. OK if Protecting Health/Safety
• Argument from Kelso OK if Value Left

19
Richard Epstein Approach

• Epstein would only allow govt acts to limit
  property rights without compensation in 2
  situations
• (1) nuisance controls -OR-
• (2) implicit compensation (reciprocity or
  similar benefit from regulatory scheme)

20
Richard Epstein Approach

• Epstein No Taking in 2 situations
• (1) nuisance controls -OR-
• (2) implicit compensation
• Both arguably contract-based Contracts wed
  expect to be negotiated if no transaction costs
• (1) collective buyout in nuisance case
• (2) group negotiation in reciprocity case

21
Richard Epstein Approach

• Epstein No Taking in 2 situations
• (1) nuisance controls -OR-
• (2) implicit compensation
• OXYGEN DQ107 Application to
• Hadacheck?
• Mahon?
• Airspace Solution?

22
Richard Epstein Approach

• Epstein No Taking in 2 situations
• (1) nuisance controls -OR-
• (2) implicit compensation
• OXYGEN DQ106 Strengths weaknesses of this
  approach?

23
Miller v. Schoene (1928)

• Govt Action Cedar Rust Act allows state
  entomologist to order diseased cedar trees cut
  down
• Purpose save apple trees from spread of cedar
  rust disease help big apple industry
• Limits on petitioners use of their property
  Cedar trees must be cut down
• Remaining Uses Can do anything with land
  anything with wood
• Harm to the petitioners
• Some value of tree/wood may be lost
• Aesthetic loss could mean loss in land value