MUSIC: Alberta Hunter Completed Recorded Works Vol. 2: Candy on Table Available on First in Time Basis Now Available on Course Page Old Exam Questions : Qs 1-2: Comments/Model Answers (exc. 2008) Question 3: Questions

Exam Technique Workshops Tomorrow 12:40-1:50 Room F209 Thursday 12:40-1:50 Room F209 Not Substantially Different from Prior Years’ Versions Available Online on Academic Achievement Website One of the Sessions will be Taped and Posted

Epstein & Intro to Miller featuring ZINC: Koslow, Ian Wagner, Don Weegmann, Jared Fasano, Mike Allen, Greg Menocal, Mario Joyner, Marc Wales, Justin Barker, Brandon McGivern, Liam

ZINC DQ107 Epstein: No Taking in 2 situations: (1)nuisance controls -OR- (2) implicit compensation Application to Mahon?

ZINC DQ107 Epstein: No Taking in 2 situations: (1)nuisance controls -OR- (2) implicit compensation Application to Airspace Solution to Hammonds Problem?

ZINC DQ106 Epstein: No Taking in 2 situations: (1)nuisance controls -OR- (2) implicit compensation Strengths & Weaknesses of This Approach

1920s Jazz: Alberta Hunter

DQ108-11: Miller v. Schoene Govt Action: Cedar Rust Act: State entomologist can order diseased cedar trees cut down Purpose? DQ108: Miller v. Schoene (ZINC)

DQ108-11: Miller v. Schoene Govt Action: State entomologist can order diseased cedar trees cut down Purpose: save apple trees from spread of cedar rust disease; help big apple industry Legitimate (Furthering Police Powers)? DQ108: Miller v. Schoene (ZINC)

DQ108-11: Miller v. Schoene Govt Action: State entomologist can order diseased cedar trees cut down Purpose: save apple trees from spread of cedar rust disease; help big apple industry Legitimate (Furthering Police Powers)? Yes. Helping state economy = WELFARE. Action Rationally Related to Purpose? Yes. MEETS MINIMAL RATIONAL BASIS SCRUTINY DQ108: Miller v. Schoene (ZINC)

DQ108-11: Miller v. Schoene Govt Action: State entomologist can 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? DQ108: Miller v. Schoene (ZINC)

DQ108-11: Miller v. Schoene Govt Action: State entomologist can 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? DQ108: Miller v. Schoene (ZINC)

DQ108-11: Miller v. Schoene Govt Action: State entomologist can 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? DQ108: Miller v. Schoene (ZINC)

DQ108-11: Miller v. Schoene Govt Action: State entomologist can 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 DQ108: Miller v. Schoene (ZINC)

DQ108-11: Miller v. Schoene Procedural Posture: Order from state official to cut trees Appealed to state Circuit Court, which aff’d order; Virginia SCt aff’d: no viol. of U.S. Const Writ of Error to US SCt (same last step as Hadacheck & Mahon) DQ108: Miller v. Schoene

ZINC DQ109: Miller under Prior Authorities Sax? –Arbiter or Enterpriser? –Controlling Spillover Effects?

ZINC DQ109: Miller under Prior Authorities Sax? Paradigm Sax Arbiter Case Epstein? –Preventing Public Nuisance? –Implicit Compensation?

ZINC DQ109: Miller under Prior Authorities Under Hadacheck & Mahon?

DQ & Euclid & Nectow featuring Calcium Rhyne, Miranda Ansah, Martin Stevenson, Anne Regina, Michael Lifshitz, Tal Olsen, TJ Figueroa, Yaneris Bucci, Donato Bubtana, Najla Elchahal, Farrah

Calcium DQ110: Eubank v. Richmond Regulation: Land use decision required if requested by 2/3 of neighbors S.Ct. in Eubank says unconstitutional –apparently problem having some property owners dictate rules for others –pretty clear possibility of unfair/arbitrary result Why did pet’r argue it was relevant to Miller?

Calcium DQ110: Eubank v. Richmond Regulation: Land use decision required if requested by 2/3 of neighbors S.Ct. in Eubank says unconstitutional Why did pet’r argue it was relevant to Miller? –Gov’t action triggered by request of neighbors What was Court’s Response?

Calcium DQ110: Eubank v. Richmond Regulation: Land use decision required if requested by 2/3 of neighbors S.Ct. in Eubank says unconstitutional Why arguably relevant to Miller? –Gov’t action triggered by request of neighbors SCt: Decision in Miller not by neighbors –Gov’t official decides –subject to judicial review As in Hadacheck, arbitrariness claim made & rejected (not our issue)

Miller & Sax Third para. p.98: “… 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. …

Miller & Sax … 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….

Miller & Sax … 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.”

Miller & Sax NOTE: Choice between two conflicting land uses (= 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.

Miller & Sax … 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.”

Miller & Sax NOTE: Court allows state legislature to make this choice. Court does not say it is the job of federal courts to make it.

Miller & Sax Case says choice here is “between the preservation of one class of property and that of the other….” –NOT between any two private interests –NOT between public and private interests Sounds like Sax Arbiter Cases

Miller & Hadacheck & Mahon Choice “between the preservation of one class of property and that of the other….” –NOT between public and private interests –BUT also says: “ [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.” (citing Hadacheck).

Miller & Hadacheck & Mahon “[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.” (citing Hadacheck) Unclear how this fits with Mahon, which Miller ignores entirely.