Music: Alberta Hunter Amtrak Blues (1980)

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Music Alberta Hunter Amtrak Blues (1980)

• Now On Course Page
• Office Hours Thru 12/2
• Bank of Old XQ3s
• Slides from Exam Workshop
• Write-Up of Bad Ghen Brief

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Miller v. SchoeneContinued

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FINAL EXAM QUESTION 3Mapping Chart
Case Govt Act Affected Landowner Intended Beneficiaries
Hadacheck LA Bans Brickyards Brickyard Os Neighbors
Mahon PA Bans Undermining Coal Companies Surface Os
Airspace Solution Rights to Empty Gas Pools Surface Os Gas Companies
Miller VA Cedar Rust Act Cedar Tree Os Apple Orchard Os
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Miller v. Schoene Introduction Procedural
Posture

• Order from state official to cut trees
• Appeal to State Circuit Court, which affirmed
  order required payment of cost of removal
• Virginia SCt affd No violation of U.S.
  Constitution
• Writ of Error to US SCt (same as in Hadacheck
  Mahon)

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Miller under Prior AuthoritiesDQ3.23 (Uranium)

• Miller Easy Under Sax No Taking
• Paradigm Arbiter Case Arbitration betw
• Apple Growers (One Type of Land Use)
• Cedar Growers (Conflicting Type of Land Use)
• Controlling Spillover Effects of Growing Cedars

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Miller under Prior AuthoritiesDQ3.23 (Uranium)

• Miller Under Epstein
• Preventing Public Nuisance?
• Likely. Can View Cedars as Noxious Use Harming
  Others
• BUT Maybe Harm Not Widespread or to General
  Public
• Implicit Compensation? No.
• Group Burdened Different from Group Getting
  Benefits
• Owners with Both Trees Probably Not Getting
  Benefits b/c Will Cut Down Cedars Themselves if
  Apples Valuable

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Miller under Prior AuthoritiesDQ3.23 (Uranium)

• Miller Under Mahon Hadacheck Epstein Analysis
  Resolves Some Qs
• Preventing Public Nuisance so OK? Likely, Not
  Certain
• Reciprocity/Implicit Compensation? No.

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Miller under Prior AuthoritiesDQ3.23 (Uranium)

• Other Qs Under Mahon Hadacheck
• Check Loss in Value Taking if Too Far
• Loss in Value of Whole Lot?
• Big loss unlikely unless 10,000 Cedars
• Could Compensate Rare Parcel w Big Loss
• cf. Euclid v. Nectow
• Loss in Value of Cedar Trees?
• Os keep wood, so not reduced to nothing,
• But cedar wood not very valuable, so some loss
• Raises Denominator Q Again Well Revisit w P.C.

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Miller v. SchoeneDQ3.24 Addressing Eubank
(Uranium)

• Local Regulation Land use decision required if
  requested by 2/3 of neighbors
• US SCt in Eubank says Unconstitutional
• Problem appears to be having some property owners
  dictate rules for others (w no mediation by
  state)
• Pretty clear possibility of unfair/arbitrary
  result
• Why did petr say Eubank is relevant to Miller?

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Miller v. SchoeneDQ3.24 Addressing Eubank
(Uranium)

• Land use decision required if requested by 2/3 of
  neighbors US SCt in Eubank says Unconstitutional
• Petr argues Eubank relevant b/c govt action
  (cutting trees) triggered by request of neighbors
• What was Courts Response?

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Miller v. SchoeneDQ3.24 Addressing Eubank
(Uranium)

• Land use decision required if requested by 2/3 of
  neighbors US SCt in Eubank says Unconstitutional
• Petr argues Eubank relevant b/c govt action
  (cutting trees) triggered by request of neighbors
• SCt In Miller, challenged decision not made by
  neighbors nor required b/c of their request
• Govt Official Decides Independently
• Decision Subject to Judicial Review
• Looks Like Adequate Process Not Arbitrary

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Miller v. SchoeneDQ3.24 Addressing Eubank
(Uranium)

• Land use decision required if requested by 2/3 of
  neighbors US SCt in Eubank says Unconstitutional
• Petr argues Eubank relevant b/c govt action
  (cutting trees) triggered by request of neighbors
• SCt Decision in Miller differs made by Govt
  official subject to judicial review
• As in Hadacheck, arbitrariness claim made
  rejected. (Reminder Not our issue!!)
• Questions on Eubank Issues?

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Miller v. Schoene Key Language (Compare with
Sax)

• Miller contains important language that seems to
  describe the governments role as Arbiter (in
  Saxs terms) and its Constitutional implications.

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Miller v. Schoene Key Language (Compare with
Sax)

• Top p.124 the state was under the necessity
  of making a choice between the preservation of
  one class of property and that of the other
  wherever both existed in dangerous proximity.

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Miller v. Schoene Key Language (Compare with
Sax)

• Top p.124 It would have been none the less a
  choice if, instead of enacting the present
  statute, the state, by doing nothing, had
  permitted serious injury to the apple orchards
  within its borders to go on unchecked.

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Miller v. Schoene Key Language (Compare with
Sax)

• Top p.124 When forced to such a choice the
  state does not exceed its constitutional powers
  by deciding upon the destruction of one class of
  property in order to save another which, in the
  judgment of the legislature, is of greater value
  to the public.

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Miller v. Schoene Key Language (Compare with
Sax)

• Passage on top of p.124 means
• Choice between two conflicting land uses ( Sax
  arbiter case) is OK even if state has a very
  strong interest in choosing one over the other.
• Cant be true that the better the states
  reasons, the more likely it has to pay
  compensation.

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Miller v. Schoene Key Language (Compare with
Sax)

• Top p.124 When forced to such a choice the
  state does not exceed its constitutional powers
  by deciding upon the destruction of one class of
  property in order to save another which, in the
  judgment of the legislature, is of greater value
  to the public.

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Miller v. Schoene Key Language (Compare with
Sax)

• Passage on top of p.124 means
• Court allows state legislature to make this
  choice.
• Court does not say it is the job of federal
  courts to make it.

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Miller v. Schoene Key Language (Compare with
Sax)

• Top p.124 the state was under the necessity
  of making a choice between the preservation of
  one class of property and that of the other
  wherever both existed in dangerous proximity.
• NOT between any two private interests, but two
  classes of private property (again Sax arbiter)
• NOT between public and private interests

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Miller v. Schoene Holding RulesDQ3.25
(Uranium)

• What rules can you derive from Miller?
• Can choose between one kind of private property
  and another in public interest .
• In making this choice, can prefer the private
  interest supported by greater public interest
  even to the extent of destruction of the other
  (can take value to zero).

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Miller v. Schoene Holding RulesDQ3.25
(Uranium)

• What rules can you derive from Miller?
• Can choose between one kind of private property
  and another in public interest .
• In making this choice, can prefer the private
  interest supported by greater public interest
  even to the extent of destruction of the other
  (can take value to zero).
• Very Important Case does not address a choice
  between a purely public interest on one side and
  a purely private interest on the other

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Miller v. Schoene Holding RulesDQ3.25
(Uranium)

• Effect on meaning of Hadacheck?
• Explicitly reaffirms Hadacheck
• Shouldnt be technical in defining nuisance
  (suggests SCt thinks this is Publ. Nuis. case)
• Seems to characterize Hadacheck as a
  destruction-of-property case
• Re Kelso Allowed to take value to zero where
  choosing one kind of property over another

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Miller v. Schoene Holding RulesDQ3.25
(Uranium)

• Effect on meaning of Mahon?
• Clarifies Mahon didnt overrule Hadacheck
• Reciprocity not necessary none here
• Public Safety issue not necessary none here
• Allowed to take value to zero where choosing one
  kind of property over another
• Maybe suggests dont look at smallest possible
  unit of property (trees)

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Hadacheck Mahon Miller

• Where the public interest is involved,
  preferment of that interest over the property
  interest of the individual, to the extent even of
  its destruction, is one of the distinguishing
  characteristics of every exercise of the police
  power which affects property. (Miller citing
  Hadacheck)
• Unclear how this fits with Mahon, which Miller
  ignores entirely.

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Miller v. Schoene Holding RulesDQ3.25
(Uranium)

• Effect on meaning of Mahon?
• Possible Very Broad Reading of Miller Mahon
  only prohibits destruction of property rights
  that are explicitly contracted for.
• BUT Helpful to Keep in Mind
• Both Holmes Brandeis Join Miller

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Questions onMiller v. Schoene?
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Relevant Considerations in Takings Cases

• Survey About What Facts Matter
• Ban on Intended Use (90)
• Reduction in Value (88) Mahon
  (Generally) Mahon
• Amount Reduction (59) Epstein (Impl.
  Comp.)
• Purpose of Regulation (63) Hadacheck (Police
  Powers) Sax Miller (Enterpriser v. Arbiter
  Stopping Spillovers) Mahon Epstein Miller
  (Stopping Public Nuisance)
• Amount Left (56) Kelso (maybe Hadacheck)
  Mahon (Zero Value)
• Return on Investment (39)

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Miller v. Schoene Florida Footnote

• Citrus Canker is Disease That Spreads Among
  Different Kinds of Citrus Trees
• In Florida, Canker Threatens Giant Citrus
  Industry
• If State Finds, Take All Citrus Trees w/in
  Certain Distance
• Right in My Own Backyard

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Miller v. Schoene Florida Footnote

• Citrus Canker is Disease That Spreads Among
  Different Kinds of Citrus Trees
• In Florida, Canker Threatens Giant Citrus
  Industry
• If State Finds, Take All Citrus Trees w/in
  Certain Distance
• State Pays Limited Compensation
• Coupon for Non-Citrus Trees
• Political Decision
• Miller Compensation Not Required by US Const

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Elements Insight A New View of an Ancient
Battle

• ORANGES

• APPLES

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Other 1920s CasesVillage of Euclid v. Ambler
Realty Co. (1926) Nectow v. City of Cambridge
(1928)DQ3.26
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DQ3.26 1920s CasesVillage of Euclid v. Ambler
Realty Co.

• Thrust of Euclid?
• Upholds facial validity (under police power) of
  modern comprehensive zoning scheme.
• Reserves Q of whether zoning as applied to a
  particular parcel might be unconstitutional.

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DQ3.26 1920s Cases Village of Euclid v. Ambler
Realty Co.

• Upholds facial validity (under police power) of
  modern comprehensive zoning scheme.
• Significance to line of cases weve read?
• Significant deference to legislative choices
  line-drawing (in the abstract). Consistent w
  Miller. Key Language makes clear That a line is
  hard to draw doesnt make it impermissible.

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DQ3.26 1920s Cases Village of Euclid v. Ambler
Realty Co.

• Key Language re Deference to Legislatures
• Long Block Quote (bottom p.126) It may
  happen that not only offensive or dangerous
  industries will be excluded, but those which are
  neither offensive nor dangerous will share the
  same fate.

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DQ3.26 1920s Cases Village of Euclid v. Ambler
Realty Co.

• Key Language re Deference to Legislatures
• Long Block Quote (bottom p.126) But this
  happens in respect of many practice-forbidding
  laws which this court has upheld, although drawn
  in general terms so as to include individual
  cases that may turn out to be innocuous in
  themselves. The inclusion of a reasonable margin,
  to insure effective enforcement, will not put
  upon a law the stamp of invalidity.

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DQ3.26 1920s Cases Village of Euclid v. Ambler
Realty Co.

• Key Language re Deference to Legislatures
• Long Block Quote (bottom p.126) Such laws may
  also find their justification in the fact that,
  in some fields, the bad fades into the good by
  such insensible degrees that the two are not
  capable of being readily distinguished and
  separated in terms of legislation.

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DQ3.26 1920s CasesNectow v. City of Cambridge

• Thrust of Nectow?
• Finds unconstitutional the application of a
  zoning scheme to a particular parcel.
• Answers Q reserved in Euclid.

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DQ3.26 1920s Cases Nectow v. City of Cambridge

• Finds unconstitutional the application of a
  zoning scheme to a particular parcel.
• Why was application unconstitutional?
• Factual findings in Nectow that application
• Eliminated profitable use of lot AND
• Not in furtherance of police power interests

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DQ3.26 1920s Cases Nectow v. City of Cambridge

• Finds unconstitutional the application of a
  zoning scheme to a particular parcel where
• Eliminated profitable use of lot AND
• Not in furtherance of police power interests
• Significance to line of cases weve read?
• Pretty Trivial Significance Very Few Cases
  Where Both (a) and (b) True.

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Other 1920s CasesVillage of Euclid v. Ambler
Realty Co. (1926) Nectow v. City of Cambridge
(1928)Questions?

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LOGISTICS

• Final Classes (34-38)
• Penn Central
• Theorists Michelman Ackerman
• Self-Quizzes Up Over Weekend to Help with
  Application of Michelman DQ for Next Week

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LOGISTICS

• Final Classes (34-38)
• Penn Central Michelman Ackerman
• Review Problems
• Each Day First 15 Minutes
• Hard Unresolved Qs (One or More of Which Will Be
  Part of Your Final Exam Q)
• Best Arguments You Can See for Each Side from
  Authorities Takings Policy

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LOGISTICS

• Final Classes (34-38)
• Penn Central Michelman Ackerman
• Review Problems (Each Day First 15 Minutes)
• Be Prepared Monday Tuesday
• All Four Panels Have Some Responsibility
• Take Time Over Weekend to Prep Create
  Accessible Answers So Youll Be Ready

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Transition 1920s ? Penn Central Alberta
Hunter

• (1895-1984)
• 1910-54 Sang Professionally in US Europe
• Lead in Original London Production of Showboat
  (music last class)
• Entertained Troops with USO (WWII Korea)

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Transition 1920s ? Penn Central Alberta
Hunter

• (1895-1984)
• 1954-77 Career as Nurse
• Invented High Sch. Diploma to get Nursing Degree
• Lied About Age to get Jobs in NY Hospitals
• Hospital Forced Her to Retire at 65 (in fact
  81)

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Transition 1920s ? Penn Central Alberta
Hunter

• (1895-1984)
• 1978-84 Revived Singing Career
• Singing in NY Jazz Clubs ? Media Sensation
• Recorded Three Albums Many TV Appearances
• Toured Europe South America Sang at White
  House
• Working Until Just Before She Died
• FAJER RIFF Baseball, Jazz, U.S. Constitution
  Improvisations on Agreed-Upon Rules

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Penn Central Transportation Co. v. City of New
York (1978)DQ3.31 (OXYGEN)
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Penn Central IntroductionDQ3.31 (Oxygen)

• Govt action at issue? NYC Historic Preservation
  Ordinance Owners of designated historical
  properties must
• keep in good repair
• preserve exterior use
• get permission for structural change

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Penn Central IntroductionDQ3.31 (Oxygen)

• Govt action? NYC Historic Preservation
  Ordinance
• Purpose?
• Legitimate? (Connected to HSWM?)
• Action Rationally Related to Purpose?

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Penn Central IntroductionDQ3.31 (Oxygen)

• Govt action? NYC Historic Preservation
  Ordinance
• Rational to Believe that Saving Historic Sites
  Furthers Welfare by Increasing Civic Pride,
  Attracting Tourist
• Use of Affected Lots
• Need govt approval before structural changes
  must maintain property properly.
• Can do anything you were doing before
  designation can do structural changes if
  approved

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Penn Central IntroductionDQ3.31 (Oxygen)

• NYC Designates Grand Central Station as Historic
  site. Penn Central (RR) owns.
• RR wants 55-story tower built above station.
• Landmark Board rejects 2 versions of tower on
  aesthetic grounds.
• Claimed Harm to RR?
• Offsetting Financial Considerations?

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Penn Central IntroductionDQ3.31 (Oxygen)

• Rejection of Tower Above Grand Central Stn.
• Loss About 2 million/yr in rent (in 1968 )
• Offsetting Financial Considerations
• Tax Breaks
• Transferable Development Rights (TDRs)
• Conceded that RR makes Reasonable Rate of
  Return on Grand Central Station parcel.
• QUESTIONS ON FACTS?

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FINAL EXAM QUESTION 3
Case Govt Act Affected Landowner Intended Beneficiaries
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 Os of Historic Buildings Tourist Biz History Buffs
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Takings Theorist 3 Frank Michelman
Today DQ3.27-3.28 (me) DQ3.29
(radium)
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Takings Theorist 3 Frank Michelman
Mon-Tues Application of Theory DQ3.30
(radium apply to earlier cases airspace
solution)DQ 3.33 (oxygen apply to P.C.)
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Takings Theorists Frank MichelmanDQ3.27-3.28

• Michelman
• Cost/Benefit Analysis
• But not analysis of whether underlying govt
  regulation is a good idea.

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Takings Theorists Frank Michelman DQ3.27-3.28

• Michelman Cost/Benefit Analysis
• of Decision Whether to Compensate
• Once state has decided to regulate, therell be
  winners losers.
• Should you compensate the losers?

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Takings Theorists Frank Michelman DQ3.27-3.28

• Michelman (MMN) Cost/Benefit Analysis
• of Decision Whether to Compensate
• Once state has decided to regulate, therell be
  winners losers. Compensate losers if
• Costs of Compensating less than
• Costs of Not Compensating
• A Major Insight of MMNs Work is These Costs
  Exist

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Takings Theorists Frank Michelman DQ3.27-3.28

• MMN Cost/Benefit Analysis
• of Decision Whether to Compensate
• Once state has decided to regulate, therell be
  winners losers. Compensate losers if
• Costs of Compensating ( Settlement Costs) less
  than
• Costs of Not Compensating ( Demoralization
  Costs)

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Takings Theorists Frank Michelman DQ3.27-3.28

• Cost of Compensating
• Settlement Costs Includes
• Cost of paying claimant everyone like claimant
• Remember decision to pay affects more than just
  the case in front of court (you)

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Takings Theorists Frank Michelman DQ3.27-3.28

• Cost of Compensating
• Settlement Costs Includes
• Cost of paying claimant everyone like claimant
• Costs of administering payment scheme
• Focus on costs of identifying valuing
  processing
• E.g., Paying Off All Airspace Owners
• E.g., Damages (Price-Fixing) 8 per pair of
  blue jeans purchased in Calif. For 10 Years
• Can dwarf actual payments.

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Takings Theorists Frank Michelman DQ3.27-3.28

• Cost of Compensating
• Settlement Costs Likely Highest When
• Lots of claimants
• Claims not same for each claimant and intangible
  or otherwise hard to value
• E.g., Again, Paying Airspace Owners

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Takings Theorists Frank Michelman DQ3.27-3.28

• Cost of Not Compensating
• Demoralization Costs Includes
• Upset to losing party everyone similar
• Upset to sympathizers
• We Care b/c Upset Can Manifest As
• Disincentives to future investment
• Lack of faith in govt resulting behavior
  (refusal to pay taxes or to obey other laws)

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Takings Theorists Frank Michelman DQ3.27-3.28

• Demoralization Costs
• Focus on Likely Public Reaction

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Takings Theorists Frank Michelman DQ3.27-3.28

• Cost of Not Compensating
• Demoralization Costs Likely Highest When
• Many people view govt act as unfair/arbitrary
• Relatively few people bear very high burdens not
  seen as relating to their own behavior
• Typical of Very Repressive Regimes Elsewhere to
  Deliberately Demoralize People This Way

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Takings Theorists Frank Michelman DQ3.27-3.28

• MMN Cost/Benefit Analysis
• of Decision Whether to Compensate
• Do Rough Comparison of Settlement Costs (SC)
  Demoralization Costs (DC)
• If SCgtDC, no compensation (often widely dispersed
  small losses)
• If DCgtSC, pay compensation (often small group of
  losers viewed as unfairly burdened)

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Takings Theorists Frank Michelman DQ3.27-3.28

• MMN Cost/Benefit Analysis
• of Decision Whether to Compensate
• Once state has decided to regulate, therell be
  winners losers. Compensate losers if
• Costs of Compensating ( Settlement Costs SC)
• LESS THAN
• Costs of Not Compensating ( Demoralization Costs
  DC)
• QUESTIONS?

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Takings Theorists Frank Michelman DQ3.27-3.28

• Role of Efficiency Gains
• Efficiency Gains are the net benefits of
  implementing the regulation in question.
• Result of cost/benefit analysis legislature
  should have done in order to decide to adopt the
  regulation

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Takings Theorists Frank Michelman DQ3.27-3.28

• Efficiency Gains net benefits of implementing
  regulation in question. E.g., in Hadacheck
• Gains (Harm Prevented) b/c no brickyards (health
  property values) LESS
• Costs of Regulation (Harm to brick industry from
  having to shut down and relocate harm from
  increase in cost of bricks costs of
  implementation and enforcement)

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Takings Theorists Frank Michelman DQ3.27-3.28

• Efficiency Gains net benefits of implementing
  regulation in question. E.g., in Miller
• Gains (Harm Prevented) to apple orchards state
  economy b/c cedar rust limited LESS
• Costs of Regulation (Harm to cedar owners
  neighbors costs of implementation and
  enforcement)

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Takings Theorists Frank Michelman DQ3.27-3.28

• Role of Efficiency Gains
• Efficiency Gains are the net benefits of
  implementing the regulation in question.
• If Efficiency Gains are negative, legislature
  shouldnt pass regulation at all.

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Takings Theorists Frank Michelman DQ3.27-3.28

• Role of Efficiency Gains
• Efficiency Gains are net benefits of
  implement-ing the regulation in question. If
  negative, legislature shouldnt pass regulation
  at all.
• Important Ordinarily, not part of Takings
  analysis.
• Under Euclid Miller, assessing efficiency gains
  is job for state legislature, not fedl court.