ELEMENTS B POWER POINT SLIDES Class #27 Wednesday, November 4, 2015 National Candy Day (Crush It!!!)

Music to Accompany Hadacheck: Scott Joplin: His Greatest Hits Richard Zimmerman, Piano Music Recording 2005 FRIDAY EXTENDO-CLASS 8:50-10:50 Including Advice on Choosing 1L Elective Fajer’s Exam Technique Workshops Today & Tuesday 11/10 in Room 12:30-1:50 pm

FACT PATTERN O (2012): Property in Human Gestures L-Bow begins doing “Elbowing Gesture” (EG) in conjunction with his impressive basketball plays while in college. Shortly after turning pro, L-Bow starts doing charitable ads featuring EG. Many people try to do EG but very few can; L-Bow sends congratulations to people who succeed. Several years pass  2012

FACT PATTERN O (2012): Property in Human Gestures Several years pass  /12: KG does spectacular dunk with EG in women’s college basketball finals; L-Bow tweets approval. 11/12: KG has becomes Cane-Ade spokesperson; Cane-Ade runs ad including video of dunk w EG 11/12: BB starts marketing exercise program using video of himself doing EG. “Last week” (as of time of exam, so 12/12): L-Bow sues to enjoin commercial use of EG.

OXYGEN: REV. PROB. 2G EXAM Q1 (Escape): Human Gestures retains Discuss whether, if the ACs are the relevant authority, L-Bow retains sufficient property rights to the “elbowing” gesture (EG) to prevent BB and/or Cane-Ade from using the EG in their marketing campaigns.

OXYGEN: REV. PROB. 2G EXAM Q1 (Escape): Human Gestures Under ACs, does L-Bow retain sufficient property rights to the EG to prevent use of EG in marketing campaigns? Assume that, for the purposes of applying the animals cases, L-Bow is the OO of the EG. Assume that human gestures do not receive trademark or copyright protection and that no other applicable [legal] doctrines address property rights in human gestures. Note that if you don’t think there should be any property rights in human gestures, you discuss that in Q2 (not here).

OXYGEN: REV. PROB. 2G EXAM Q1 (Escape): Human Gestures Under ACs, does L-Bow retain sufficient property rights to the EG to prevent use of EG in marketing campaigns? I’m Just Working with People I Call on from Panel Arguments re Marking/Finder’s Knowledge? Arguments re Protecting OO’s Labor/Industry?

Arguments re Abandonment/Pursuit/Time? OXYGEN: REV. PROB. 2G EXAM Q1 (Escape): Human Gestures Arguments re Abandonment/Pursuit/Time? L-Bow begins doing EG in college. Turns pro & starts doing charitable ads featuring EG. Over next several years, L-Bow congratulates people who do EG. 4/12: KG does EG; L-Bow tweets approval. 11/12: Cane-Ade ad with video of KG dunk & EG 11/12: BB marketing uses video of himself doing EG. 12/12: L-Bow sues to enjoin commercial use of EG.

(URANIUM) Argument By Analogy Friday: Rev. Prob. 2J (URANIUM) Assume Property Rights Only Available for Gestures Strongly Associated with Particular (Famous) Individuals AND Not Widely Used Otherwise. We’ll Discuss: Fact Similarities & Differences Usefulness of Factors Not Discussed Today Alternatives: Some Examples, then Compare to – If Strongly Associated w Particular Indiv and Not Commonly Used Before Indiv., Indiv. Can Control All Commercial Use – No Property Rights in Gestures at All

Introduction to Unit Three : Constitutional Protection of Private Property LECTURE & KRYPTON (DQ )

Unit Three : Constitutional Protection of Private Property State Regulations of Land Use Frequently Limit What Landowners Can Do With Their Land and/or Reduce Its Value. Under What Circumstances Does the U.S. Constitution Require that the State Compensate the Landowner for These Effects?

Unit Three : Constitutional Protection of Private Property Key Differences from Units One & Two Whole Unit is Single Line of Cases from Same Court, So Need to Work With as a Group As You Already Know, US Supreme Court Opinions Longer & More Complex Context: – Not State Court Working with Common Law of Property – Federal Court Determining if State Law Violates US Constitution (Takes Us to DQ3.01)

Unit Three : Introduction DQ3.01: Role of Fed’l Court (Krypton) When Federal Courts review state statutes to determine whether they violate the U.S. Constitution, most people believe their role does not include determining whether the statute is a good idea as a matter of policy. Why shouldn’t a Federal Court strike down a state statute because it is stupid?

Unit Three : Introduction DQ3.01: Role of Fed’l Court (Krypton) Why shouldn’t a Federal Court strike down a state statute because it is stupid? Common Answers Include: Democratic Theory – State Legislature is Elected Body; Fed’l Court is Not – Bill of Rights Generally as Limit on Democracy Relative Expertise: – Legislature Can Do Better Fact-Finding – See DQ1.58 after Albers

Unit Three : Introduction DQ3.01: Role of Fed’l Court (Krypton) Upshot = Default Rule is Deference to State Legislation Many Bad Laws are Constitutional State Legislatures Allowed to do Stupid Things Unless They Violate a Specific Constitutional Provision (Parent Analogy)

Unit Three : Introduction DQ3.01: Role of Fed’l Court (Krypton) Parent Analogy “You Are Not Leaving the House in That!!”

Unit Three : Introduction DQ3.01: Role of Fed’l Court (Krypton) Default is Deference to State Legislation States Allowed to do Stupid Things Unless They Violate a Specific Constitutional Provision Relevant Provision Here is Takings Clause of Fifth Amendment (Applicable to States through Fourteenth Amendment)

Unit Three : Introduction DQ3.02: Role of Fed’l Court (Krypton) Takings Clause of the Fifth Amendment of the U.S. Constitution: “[N]or shall private property be taken for public use without just compensation” What sort of cases do you think the framers intended to prevent when they included this provision in the Constitution?

Unit Three : Introduction DQ3.02: Role of Fed’l Court (Krypton) Takings Clause : “[N]or shall private property be taken for public use without just compensation” 1.Eminent Domain (Property not Elements) – Govt Deliberately Attempts to Purchase Private Property (“Condemnation”) – Takings Clause requires: – “For Public Use” (Midkiff, Kelo, etc.) – “Just Compensation” (= Fair Market Value)

Unit Three : Introduction DQ3.02: Role of Fed’l Court (Krypton) Takings Clause : “[N]or shall private property be taken for public use without just compensation” 1.Eminent Domain (Property not Elements) – Takings Clause requires: – “For Public Use” = Concern About Govt Handing Out Prizes to Favored Individuals – “Just Compensation”

Unit Three : Introduction DQ3.02: Role of Fed’l Court (Krypton) Takings Clause : “[N]or shall private property be taken for public use without just compensation” 1.Eminent Domain (Property not Elements) – Takings Clause requires “Public Use” and – “Just Compensation” = Concerns About – Ensuring Govt Has to Consider/Budget to Take Land – Protecting/Encouraging Investment in Land – Taking Property to Punish Disfavored Individuals – Redistributing Wealth

Unit Three : Introduction DQ3.02: Role of Fed’l Court (Krypton) Takings Clause : “[N]or shall private property be taken for public use without just compensation” 1.Eminent Domain (Property not Elements) – Takings Clause requires “Public Use” and – “Just Compensation” = Concerns About – Taking Property to Punish Disfavored Individuals – Redistributing Wealth – Speculation re Madison & Slavery

Unit Three : Introduction DQ3.02: Role of Fed’l Court (Krypton) Takings Clause : “[N]or shall private property be taken for public use without just compensation” 1.Eminent Domain Cases 2.Takings Cases (Elements Unit Three) – Govt Not Trying to Purchase, but to Regulate – Property Owner Claims Regulation Effectively “Takes” Property so Gov’t Must Cease or Pay (“Inverse Condemnation” Action)

Unit Three : Introduction DQ3.02: Role of Fed’l Court (Krypton) Takings Clause : “[N]or shall private property be taken for public use without just compensation” 1.Eminent Domain Cases 2.Takings Cases (Elements Unit Three) – Property Owner Claims Regulation Effectively “Takes” Property so Govt Must Cease or Pay (“Inverse Condemnation” Action) – Little Historical Evidence Connecting Framers to These Claims

Unit Three : Introduction DQ3.02: Role of Fed’l Court (Krypton) Takings Cases (Elements Unit Three) Property Owner Claims Regulation Effectively “Takes” Property so Govt Must Cease or Pay Left with Hard Q of When Govt Must Pay – Really No Historical Guidance – Generally Defer to State Legislative Process – Can’t Pay for All Loss of Value (Military Bases; Opium Poppies)

Unit Three : Introduction Relevant Considerations in Takings Cases We’ll Look at Cases & Theorists to Determine What’s Relevant Cases Complex (Like Escape Cases) – Use a Variety of Factors – Can Use Charts to Keep Track

Special Tools Unit Three : Constitutional Protection of Private Property; Special Tools Recurring Hypo: “Airspace Solution to Hammonds Problem” (Introduced in DQ2.36 & DQ3.03) Minimum Requirement for Constitutionality: Rational Basis Review (Introduced in DQ 3.04) The “Demsetz Takings Story” (Introduced in DQ 3.05) In Class: Replace Briefs w Introductory Line of Qs for Each Case (E.g., DQ3.06, 3.12, 3.22) Four Theorists (Each Panel will Introduce One) Oxygen: Joseph Sax--Uranium: Frank Michelman -- Oxygen: Joseph Sax--Uranium: Frank Michelman -- Radium: Richard Epstein --Krypton: Bruce Ackerman

Unit Three : Introduction DQ3.03: Airspace Solution (Krypton) “Airspace Solution to Hammonds Problem” Suppose Kentucky adopts a statute treating empty underground gas reservoirs like airspace needed for airlines. The statute: (a) allows the gas company to store its gas under Ms. Hammonds’s property without paying rent; and (b) prohibits her from extracting it.

Unit Three : Introduction DQ3.03: Airspace Solution (Krypton) Suppose Kentucky adopted a statute that (a) allowed the gas company to store its gas under Ms. Hammonds’s property without paying rent; and (b) prohibited her from extracting it. Suppose Ms. Hammonds then claims this is an unconstitutional taking of her property. Do you think this is the kind of harm the Takings Clause forbids? Why or Why Not?

Unit Three : Introduction DQ3.03: Airspace Solution (Krypton) Suppose Kentucky adopted a statute that (a) allowed the gas company to store its gas under Ms. Hammonds’s property without paying rent; and (b) prohibited her from extracting it. Suppose Ms. Hammonds then claims this is an unconstitutional taking of her property. We’ll apply the authorities we study to this problem to help see what they do.

Unit Three : Introduction DQ3.04: Police Power (Krypton) “Police Power” = Basic Authority of State Gov’ts Can regulate to protect/further “HSWM” Health Safety Welfare [general well-being including economic success] Morals Good lawyer can tie virtually any state law to one of these purposes

Unit Three : Introduction DQ3.04: Rational Basis Review (Krypton) Is Challenged Law “Rationally Related to a Legitimate State Purpose”? – Minimal Test for Constitutionality Under Due Process & Equal Protection Clauses – Applies When No Specific Constitutional Provision is Violated – Very Deferential: Gov’t Virtually Always Wins

Unit Three : Introduction DQ3.04: Rational Basis Review (Krypton) “Rationally Related to Legitimate State Purpose” – What is Purpose? – Is Purpose Legitimate? Arising under Police Power (HSWM) Not Just to Harm Individuals or Group – Is Law “Rationally Related” to Purpose?

Unit Three : Introduction DQ3.04: Rational Basis Review (Krypton) “Rationally Related to Legitimate State Purpose” – What is Purpose? – Is Purpose Legitimate? – Is Law “Rationally Related” to Purpose? Not asking if “rational” to a psychologist or economist Term of art = a rational legislator could believe the state law will help further its purpose, at least a little bit Doesn’t have to be best option or even particularly good

Unit Three : Introduction DQ3.04: Rational Basis Review (Krypton) Apply to Airspace Solution – What is Purpose? – Is Purpose Legitimate? Arising under Police Power Health Safety Welfare Morals – Is Law “Rationally Related” to Purpose? Could a rational legislator believe the state law will help further its purpose, at least a little bit?

Unit Three : Introduction DQ3.05: Demsetz Takings Story Description of How Takings Cases Arise Change leads to rising externalities Creates a demand for a change in the law. After the change, people affected by the new law complain that their property rights have been taken.

Unit Three : Introduction DQ3.05: Demsetz Takings Story Airspace Solution as Example Change leads to rising externalities. Hammonds decided  Gas cos. move gas out of Ky. Gas prices in Ky increase. Creates a demand for a change in the law. Ky legislature (hypothetically) passes statute adopting Airspace Solution After the change, people affected by the new law complain that their property rights have been taken. Hammonds might claim Airspace Solution is a Taking of her portion of the underground gas pool

Unit Three : Introduction DQ3.05: Demsetz Takings Story Description of How Takings Cases Arise Change leads to rising externalities Creates a demand for a change in the law. After the change, people affected by the new law complain that their property rights have been taken. Long Term Q for You: If this story represents a common pattern among Takings cases, what does that suggest about the proper role of the Takings Clause?

Unit Three : Introduction Relevant Considerations in Takings Cases Survey of Instincts About What Facts Matter (All 6 Matter: 2015: 7/41; 2014: 13/94) % Reduction in Value 88% 88%90% Ban on Intended Use 85% 90% 90% Purpose of Regulation 71% 63%54% $$$ Amount Reduction 59% 59%62% $$$ Amount Left 49% 56%43% Return on Investment 32% 39%26%

Unit Three : Introduction Relevant Considerations in Takings Cases Survey Data on Instincts ABCDE Current UseUnlimitedEliminatedLimited Unlimited % Value Lost60%5%80%10%60% Value LostN/A $80K$1M$120K Orig. Purchase Just NowN/A 5 50K/ 200K  80K Avg. Rank (1 = Strongest) / / / / / /3.8

Name the Musical Group: 1 st Billboard #1 Hit in 1958 Won 5 Grammys; Nominated for 8 More Featured in Major Studio Motion Picture in 2011Hint:

Name the Musical Group: 1 st Billboard #1 Hit in 1958 Won 5 Grammys; Nominated for 8 More Featured in Major Studio Motion Picture in 2011

Mahon v. Pennsylvania Coal Co. (1922) Introduction to Set Up Discussion for Next Two Classes

Mahon v. Pennsylvania Coal Co. Background: Pennsylvania Law Property Rights in Pennsylvania Three Types; Each is Separate “Estate in Land” 1.Surface 2.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 Surface Rights Sell Surface Rights to Individuals, Businesses, Local Governments (who become “Surface Owners”). Contracts of Sale & Deeds for these Sales… mineral rights subsidence rights – Explicitly retained for CCs both mineral rights & subsidence rights; notice – Required CCs to give notice to surface owners before undermining.

Mahon v. Pennsylvania Coal Co. Background: Factual Context Penn. Legislature concerned re widespread 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. mineral rights surface – Exception if owner of mineral rights also owns surface & lot is more than 150 feet from improved lots owned by others. Subsidence Rights – 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

Mahon v. Pennsylvania Coal Co. (1922) Read Carefully; Important Differences between Holmes Majority & Brandeis Dissent

Hadacheck v. Sebastian (1915) RADIUM: DQs

Hadacheck v. Sebastian Background: Growth of Los Angeles WATER: Aqueduct Completed in 1913 OIL: Discovered 1876; SoCal produces 25% of world’s oil in 1920s MOVIE INDUSTRY: Beginning 1910 – Weather/Sunlight (Better than Florida b/c Drier & Little Rain) – Proximity to Mexico & Patent Evasion POPULATION (~50,000 in 1890) – 1900 = ~ 102,000 – 1910 = ~ 319,000 – 1920 = ~ 577,000 – 1930 = ~1,238,000