1. 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

2. Miller v. Schoene Continued

3. FINAL EXAM QUESTION 3 Mapping Chart CaseGov’t ActAffected Landowner Intended Beneficiaries HadacheckLA Bans Brickyards Brickyard OsNeighbors MahonPA Bans Undermining Coal Companies Surface Os “Airspace Solution” Rights to Empty Gas Pools Surface OsGas Companies MillerVA Cedar Rust Act Cedar Tree Os Apple Orchard Os

4. 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 aff’d: No violation of U.S. Constitution Writ of Error to US SCt (same as in Hadacheck & Mahon)

5. Miller under Prior Authorities DQ3.23 (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

6. Miller under Prior Authorities DQ3.23 (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

7. Miller under Prior Authorities DQ3.23 (Uranium) Miller Under Mahon & Hadacheck: Epstein Analysis Resolves Some Qs – Preventing Public Nuisance so OK?: Likely, Not Certain – Reciprocity/Implicit Compensation? No.

8. Miller under Prior Authorities DQ3.23 (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; We’ll Revisit w P.C.

9. Miller v. Schoene DQ3.24: 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 pet’r say Eubank is relevant to Miller?

10. Miller v. Schoene DQ3.24: Addressing Eubank (Uranium) Land use decision required if requested by 2/3 of neighbors; US SCt in Eubank says Unconstitutional Pet’r argues Eubank relevant b/c gov’t action (cutting trees) triggered by request of neighbors What was Court’s Response?

11. Miller v. Schoene DQ3.24: Addressing Eubank (Uranium) Land use decision required if requested by 2/3 of neighbors; US SCt in Eubank says Unconstitutional Pet’r argues Eubank relevant b/c gov’t action (cutting trees) triggered by request of neighbors SCt: In Miller, challenged decision not made by neighbors nor required b/c of their request – Gov’t Official Decides Independently – Decision Subject to Judicial Review – Looks Like Adequate Process; Not Arbitrary

12. Miller v. Schoene DQ3.24: Addressing Eubank (Uranium) Land use decision required if requested by 2/3 of neighbors; US SCt in Eubank says Unconstitutional Pet’r argues Eubank relevant b/c gov’t action (cutting trees) triggered by request of neighbors SCt: Decision in Miller differs; made by Gov’t official subject to judicial review As in Hadacheck, arbitrariness claim made & rejected. (Reminder: Not our issue!!) Questions on Eubank Issues?

13. Miller v. Schoene: Key Language (Compare with Sax) Miller contains important language that seems to describe the government’s role as “Arbiter” (in Sax’s terms) and its Constitutional implications.

14. 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. …

15. 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….

16. 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.”

17. 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. Can’t be true that the better the state’s reasons, the more likely it has to pay compensation.

18. 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.”

19. 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.

20. 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

21. Miller v. Schoene: Holding & Rules DQ3.25 (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).

22. Miller v. Schoene: Holding & Rules DQ3.25 (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

23. Miller v. Schoene: Holding & Rules DQ3.25 (Uranium) Effect on meaning of Hadacheck? Explicitly reaffirms Hadacheck Shouldn’t be technical in defining “nuisance” (suggests SCt thinks this is “Publ. Nuis.” case) Seems to characterize Hadacheck as a destruction-of-property case Allowed Re Kelso: Allowed to take value to zero where choosing one kind of property over another

24. Miller v. Schoene: Holding & Rules DQ3.25 (Uranium) Effect on meaning of Mahon? Clarifies Mahon didn’t 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 don’t look at smallest possible unit of property (trees)

25. Hadacheck + Mahon + Miller “[W]here 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.

26. Miller v. Schoene: Holding & Rules DQ3.25 (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

27. Questions on Miller v. Schoene?

28. 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%)

29. 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

30. 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

31. Elements Insight: A New View of an Ancient Battle APPLES ORANGES

32. Nectow v. City of Cambridge (1928) DQ3.26 Other 1920’s Cases Village of Euclid v. Ambler Realty Co. (1926) & Nectow v. City of Cambridge (1928) DQ3.26

33. DQ3.26: 1920s Cases Village 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.

34. 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 we’ve 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 doesn’t make it impermissible.

35. DQ3.26: 1920s Cases Village of Euclid v. Ambler Realty Co. Key Language re Deference to Legislatures : Long Block Quote (bottom p.126): “[I]t 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. …

36. 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. …

37. 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.”

38. DQ3.26: 1920s Cases Nectow v. City of Cambridge Thrust of Nectow? Finds unconstitutional the application of a zoning scheme to a particular parcel. Answers Q reserved in Euclid.

39. 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 … a)Eliminated profitable use of lot *AND* b)Not in furtherance of police power interests

40. DQ3.26: 1920s Cases Nectow v. City of Cambridge Finds unconstitutional the application of a zoning scheme to a particular parcel where a) Eliminated profitable use of lot *AND* b) Not in furtherance of police power interests Significance to line of cases we’ve read? Pretty Trivial Significance: Very Few Cases Where Both (a) and (b) True.

41. Village of Euclid v. Ambler Realty Co. (1926) Other 1920’s Cases Village of Euclid v. Ambler Realty Co. (1926) & Nectow v. City of Cambridge (1928) Questions?

42. 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

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

44. LOGISTICS Final Classes (34-38) Penn Central; Michelman; Ackerman First 15 Minutes) Review Problems ( Each Day First 15 Minutes) Be Prepared Monday & Tuesday Be Prepared Monday & Tuesday All Four Panels Have Some Responsibility All Four Panels Have Some Responsibility Take Time Over Weekend to Prep & Create Accessible Answers So You’ll Be Ready

45. Transition: 1920s  Penn Central = Alberta Hunter (1895-1984) 1910-54: Sang Professionally in US & Europe 1910-54: Sang Professionally in US & Europe Lead in Original London Production of Showboat (music last class) Entertained Troops with USO (WWII & Korea)

46. Transition: 1920s  Penn Central = Alberta Hunter (1895-1984) 1954-77: Career as Nurse 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)

47. Transition: 1920s  Penn Central = Alberta Hunter (1895-1984) 1978-84: Revived Singing Career 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 FAJER RIFF: Baseball, Jazz, U.S. Constitution: Improvisations on Agreed-Upon Rules

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

49. Penn Central: Introduction DQ3.31 (Oxygen) Gov’t 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

50. Penn Central: Introduction DQ3.31 (Oxygen) Gov’t action? NYC Historic Preservation Ordinance Purpose? – Legitimate? (Connected to HSWM?) – Action Rationally Related to Purpose?

51. Penn Central: Introduction DQ3.31 (Oxygen) Gov’t 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 gov’t approval before structural changes; must maintain property properly. – Can do anything you were doing before designation; can do structural changes if approved

52. Penn Central: Introduction DQ3.31 (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?

53. Penn Central: Introduction DQ3.31 (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?

54. FINAL EXAM QUESTION 3 CaseGov’t ActAffected Landowner Intended Beneficiaries HadacheckLA Bans Brickyards Brickyard OsNeighbors MahonPA Bans Undermining Coal Cos.Surface Os MillerVA Cedar Rust Act Cedar Tree OsApple Orchard Os Penn Central NYC Historic Preservation Os of Historic Buildings Tourist Biz; History Buffs

55. Takings Theorist #3: Frank Michelman Today: DQ3.27-3.28 (me) DQ3.29 (radium)

56. 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.)

57. Takings Theorists: Frank Michelman DQ3.27-3.28 Michelman = Cost/Benefit Analysis But not analysis of whether underlying gov’t regulation is a good idea.

58. Takings Theorists: Frank Michelman DQ3.27-3.28 Michelman = Cost/Benefit Analysis of Decision Whether to Compensate Once state has decided to regulate, there’ll be winners & losers. Should you compensate the losers?

59. Takings Theorists: Frank Michelman DQ3.27-3.28 Michelman (MMN) = Cost/Benefit Analysis of Decision Whether to Compensate Once state has decided to regulate, there’ll be winners & losers. Compensate losers if … – Costs of Compensating less than – Costs of Not Compensating A Major Insight of MMN’s Work is: These Costs Exist

60. Takings Theorists: Frank Michelman DQ3.27-3.28 MMN = Cost/Benefit Analysis of Decision Whether to Compensate Once state has decided to regulate, there’ll be winners & losers. Compensate losers if … – Costs of Compensating (= Settlement Costs) less than – Costs of Not Compensating (= Demoralization Costs)

61. Takings Theorists: Frank Michelman DQ3.27-3.28 Cost of Compensating = Settlement Costs: Includes & everyone like claimant Cost of paying claimant & everyone like claimant – Remember decision to pay affects more than just the case in front of court (you)

62. Takings Theorists: Frank Michelman DQ3.27-3.28 Cost of Compensating = Settlement Costs: Includes & everyone like claimant 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.

63. 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

64. 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 gov’t & resulting behavior (refusal to pay taxes or to obey other laws)

65. Takings Theorists: Frank Michelman DQ3.27-3.28 Demoralization Costs: Focus on Likely Public Reaction

66. Takings Theorists: Frank Michelman DQ3.27-3.28 Cost of Not Compensating = Demoralization Costs: Likely Highest When Many people view gov’t 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

67. 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 SC>DC, no compensation (often widely dispersed small losses) – If DC>SC, pay compensation (often small group of losers viewed as unfairly burdened)

68. Takings Theorists: Frank Michelman DQ3.27-3.28 MMN = Cost/Benefit Analysis of Decision Whether to Compensate Once state has decided to regulate, there’ll be winners & losers. Compensate losers if … – Costs of Compensating (= Settlement Costs = SC) LESS THAN – Costs of Not Compensating (= Demoralization Costs = DC) QUESTIONS?

69. 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

70. 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)

71. 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)

72. 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 shouldn’t pass regulation at all. If Efficiency “Gains” are negative, legislature shouldn’t pass regulation at all.

73. 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 shouldn’t pass regulation at all. Important: Ordinarily, not part of Takings analysis. Important: Ordinarily, not part of Takings analysis. Under Euclid & Miller, assessing efficiency gains is job for state legislature, not fed’l court. Under Euclid & Miller, assessing efficiency gains is job for state legislature, not fed’l court.