1. ELEMENTS B POWER POINT SLIDES Class #28 (Extendo-Class) Friday, November 6, 2015 National Nachos Day

2. MUSIC: Alberta Hunter Complete Recorded Works Vol. 2: 1923-24 1L Elective Choices 1L Elective Choices European Union Law European Union Law Family Law Family Law Immigration Law Immigration Law Legislation Legislation Products Liability Products Liability Substantive Criminal Law Substantive Criminal Law

3. Elements B: 11/6 featuring the voice talents of Bryston Stafford

4. Every kiss begins with Kay® As Black Friday Approaches : Too Much

5. I’ve seen those Kay Jewelers ads …

6. … but frankly, if I give someone a $5000 diamond bracelet, …

7. … I’m looking for a little more than a kiss. That’s why I shop at …

8. Eff Jewelers Taking Care of Your Family Jewels

9. CHOOSING YOUR 1L ELECTIVE

10. SectionB Spring 2016 Section B Spring 2016 MONTUEWEDTHUFRI L.COMM II 9:00-10:50 CON LAW I HILL 11:00-12:20 CON LAW I HILL 11:00-12:20 ELECTIVE 11:00-12:20 CON LAW I HILL 11:00-12:20 ELECTIVE 11:00-12:20 CONTRACTS DAWSON 3:30-5:20 CRIM PRO STOTZKY 3:30-4:50 CONTRACTS DAWSON 3:30-5:20 CRIM PRO STOTZKY 3:30-4:50

11. CHOOSING YOUR 1L ELECTIVE The most important decision you will make…

12. CHOOSING YOUR 1L ELECTIVE The most important decision you will make next Thursday or Friday.

13. CHOOSING YOUR 1L ELECTIVE The most important decision you will make next Thursday or Friday. Maybe.

14. CHOOSING YOUR 1L ELECTIVE You are picking one course out of the 20 or so electives you will take in law school.

15. CHOOSING YOUR 1L ELECTIVE You are not picking a spouse.

16. CHOOSING YOUR 1L ELECTIVE

17. CHOOSING YOUR 1L ELECTIVE: LOGISTICS Read Descriptions Carefully; Watch Videos Learn Registration Procedures – Including Wait Lists & Add/Drop – Note re “Full” Classes & Room Changes Check Registration Time (Significance) Checking Availability in Advance

18. CHOOSING YOUR 1L ELECTIVE: SOME CONSIDERATIONS Available to Take Later? Method of Evaluation Prerequisite/Intro to Other Courses Furthering Skills & Career Goals

19. CHOOSING YOUR 1L ELECTIVE: SOME CONSIDERATIONS Past Student Evaluations (@ Circulation Desk) Upper Level Students in Room? Upper Level Students in Room? – European Union – Products Liability

20. EUROPEAN UNION LAW (C. BRADLEY) Structure & Operation of European Union Short Essay & Final Exam Intro to Public & Pvt. Int’l Law; Not Prereq Upper Level Students in Room Rarely Offered as Stand Alone Upper Level Course Interest in Int’l or Business Areas; Good Synergy with US Con Law I

21. FAMILY LAW (B. PERLMUTTER) Legal Relationships between Spouses/Life Partners and between Parents & Children Offered Every Semester for Upper Level Method of Evaluation: Class Participation; Final Exam; Negotiation Exercise; and Reflection Papers. Intro/Prereq. to Upper Level Family Law Electives Significant # of Students Practice Family Law; Also Useful for Personal Representation & Gen’l Practice

22. IMMIGRATION LAW (D. ABRAHAM) Legal Treatment of Process of Immigration and of Immigrants Once Inside U.S. Final Exam & Class Participation Intro/Prereq. to Upper Level Immigration Electives incl. Immigration Clinic Offered Every Year for Upper Level In Places w Many Immigrants (S.Fla., NY, TX, Calif.): Large Pro Bono Practice + Arises in Many Other Practice Areas; Synergy w Con Law I Good Intro to Working with Complex Statutes

23. LEGISLATION (W. BLATT) Techniques for Working with Statutes Final Exam, Written Assignment, Participation High Level of Participation Required Rarely Offered for Upper Level Like an Elements Course Focused on Statutes Instead of Cases. Very Helpful b/c Many Major Practice Areas Involve Detailed Statutes (Crim; Environ; Anti-Discr; Bankruptcy; Consumer Prot’n; Banking; Commercial Law; Labor; Copyright, etc.)

24. PRODUCTS LIABILITY (Z. FENTON) Advanced Torts Class Relatively New Course: Co-Offered for Upper Level This Year; No Guarantee Will Be Again Upper Level Students in Room Method of Evaluation: Final Exam Not direct pre-requisite or intro for other courses; techniques & skills may be relevant in advanced business and litigation courses. Significant part of personal injury and insurance practice and often general business litigation.

25. SUBSTANTIVE CRIMINAL LAW (D. COKER) Elements of Crimes & Defenses Offered Every Semester for Upper Level Method of Evaluation: Final Exam & 2-3 Short Quizzes Intro/Prereq. to Upper Level Crim Electives; Good Synergy with Crim. Pro. Many Students Practice Criminal Law; Comes Up in Every Area of Practice, Personal Representation, and Family Conversations. Good Experience with Common Kind of Statutes.

26. CHOOSING YOUR 1L ELECTIVEQUESTIONS?

27. (URANIUM) Argument By Analogy Review Problem 2J (URANIUM) Arguments re Usefulness of Escaping Animals Cases for Resolving Disputes re Human Gestures Strongly Identified with Particular Individuals (SIPI) Assume Property Rights Only Available for Gestures Strongly Associated with Particular (Famous) Individuals AND Not Widely Used Otherwise.

28. (URANIUM) Argument By Analogy Review Problem 2J (URANIUM) Arguments re Usefulness of Escaping Animals Cases from Factual Similarities between Disputes re Escaping Animals Generally & Disputes re Human Gestures SIPI

29. (URANIUM) Argument By Analogy Review Problem 2J (URANIUM) Arguments re [Lack of] Usefulness of Escaping Animals Cases from Factual Differences between Disputes re Escaping Animals Generally & Disputes re Human Gestures SIPI

30. (URANIUM) Argument By Analogy Review Problem 2J (URANIUM) Usefulness of Factors (not discussed last time) from Escaping ACs for Resolving Disputes re Human Gestures SIPI: Distance Distance Return to Natural Liberty Return to Natural Liberty

31. (URANIUM) Argument By Analogy Review Problem 2J (URANIUM) Alternatives to Escape ACs for Resolving Disputes About Human Gestures SIPI? OO Wins: If Strongly Associated w Particular Indiv and Not Commonly Used Before Indiv., Indiv. Can Control All Commercial Use. OO Wins: If Strongly Associated w Particular Indiv and Not Commonly Used Before Indiv., Indiv. Can Control All Commercial Use. F Wins: No Property Rights in Gestures at All. F Wins: No Property Rights in Gestures at All. OTHER PLAUSIBLE ALTERNATIVES?

32. (URANIUM) Argument By Analogy Review Problem 2J (URANIUM) SOME PROS & CONS OF THESE ALTERNATIVES v. ACs? OO Wins: If Strongly Associated w Particular Indiv and Not Commonly Used Before Indiv., Indiv. Can Control All Commercial Use. OO Wins: If Strongly Associated w Particular Indiv and Not Commonly Used Before Indiv., Indiv. Can Control All Commercial Use. F Wins: No Property Rights in Gestures at All. F Wins: No Property Rights in Gestures at All.

33. LOGISTICS: GROUP ASSIGNMENT #3 Available Resources Include: – Posted Comments on Your Assignment #1 Submissions, Especially on Tie-Breaker Arguments – Comments & Model Answers on Old Exam Q 2, (Including Problem We Just Did Later Today) – Instructions for This Assignment & for All Written Assignments (Reread Before Submitting) Last Availability for Qs on This (Me or B.A.) – In-Class Now – Immediately After Class Outside Room (me) – Beginning of DF Session Today (B.A.)

34. Hadacheck v. Sebastian (1915) RADIUM: DQs 3.06-3.09

35. Hadacheck v. Sebastian DQ3.06: Introduction (Radium) Useful in Takings cases to begin analysis with the challenged gov’t action, rather than with a description of the lawsuit. DQ3.06 provides a standard set of Qs that we will use for all four primary Takings Cases to help you understand what’s at issue.

36. Hadacheck v. Sebastian DQ3.06: Introduction (Radium) Challenged Action & Rational Basis Review Government action in Hadacheck: (p.110) L.A. Ordinance banning operation of brickyard in city What is the purpose of the action? Legitimate (Health Safety Welfare Morals)? Is the action rationally related to the purpose?

37. Hadacheck v. Sebastian DQ3.06: Introduction (Radium) Effects of the Challenged Action Government action in Hadacheck: (p.110) L.A. Ordinance banning operation of brickyard in city What limits are placed on the petitioner’s use of his property? What uses of his property are still permissible? What is the harm to the petitioner?

38. Hadacheck v. Sebastian DQ3.06: Introduction (Radium) Effects of the Challenged Action What is the harm to the petitioner? Incarceration! Claims re Value in Habeas Petition: Property worth $800,000 as brickworks Worth $60,000 as anything else NOTE: Calif. & US Supreme Courts don’t endorse these claims (so they may not believe them)

39. Hadacheck v. Sebastian DQ3.06: Introduction (Radium) (1915) Claim re Property Value (PV): Property worth $800,000 as brickworks Worth $60,000 as anything else Claims re Loss of PV Often Short Term PV Fluctuates Significantly Over Time This was new part of LA; PV must have increased sharply at some point

40. Brickworks Site 11/2012: West Pico & Crenshaw Blvds., Los Angeles, CA

41. Hadacheck v. Sebastian DQ3.06: Introduction (Radium) Fit Into Demsetz Takings Story? Activity is Brickmaking Externalities: Some dust reaches nearby residents Old Rule: Brickworks Allowed to Operate if There First Change? Leads to rising externalities? Change in the law?

42. Hadacheck v. Sebastian DQ3.06: Introduction Fit Into Demsetz Takings Story? Activity is Brickmaking Growth of LA Increases Externalities Change in the law = New zoning ordinance banning brickworks After the change, people affected by the new law complain that their property rights have been “taken.” (= Hadacheck Litigation)

43. Hadacheck v. Sebastian Procedural Posture Hadacheck convicted for violating ordinance Files Habeas Petition w California SCt; Loses Appeal to US SCt – Claim that state law violated US Constitution automatic appeal – At time, automatic appeal rather than petition for certiorari

44. Hadacheck v. Sebastian Procedural Posture Hadacheck convicted for violating ordinance Files Habeas Petition w California SCt; Loses Appeal to US SCt Status of Allegations in Petition (pp.111-12) – p.112: “substantial traverses” in reply by Chief of Police – Cal SCt found against Petitioner on facts re health, discrimination, etc. – US SCt says these findings supported by evidence

45. Hadacheck v. Sebastian: Reasoning DQ3.07 Discrimination Claim Petitioner Says: – I was singled out; ordinance passed to stop me – Other brickworks in other districts treated differently How did the court deal with this claim? – Cal SCt found ordinance not arbitrary/discriminatory – US SCt said sufficient evidence supports that finding

46. Hadacheck v. Sebastian: Reasoning DQ3.07 Arbitrariness/Discrimination Claims Made Frequently (Hadacheck, Miller, Penn Central) Hard to Win – Must Be: Explicit Direct Attack on Someone -OR- Very Random Exercise of Gov’t Power – Rare Example: Eubank (cited in Miller) complete delegation of zoning decision to neighbors with no gov’t oversight

47. Hadacheck v. Sebastian: Reasoning DQ3.07 Arbitrariness/Discrimination Claims Made Frequently But Hard to Win Generally OK for Gov’t to draw rough but plausible distinctions: – E.g., Between people under/over 21 years old – E.g., Between neighborhoods – E.g., Between types or size of brickworks, etc. – Unless courts have found distinction problematic under Equal Protection Clause or First Amdt (race; religion, etc.)

48. Hadacheck v. Sebastian: Reasoning DQ3.07 Arbitrariness/Discrimination Claims Made Frequently But Hard to Win Generally OK to draw rough but plausible distinctions I won’t (intentionally) make arbitrariness a serious issue on final; don’t spend time on it!!

49. Hadacheck v. Sebastian: Reasoning DQ3.08 (Police Power) Brief Aside on Nuisance Law Tort to Protect Property Rights: Tort to Protect Property Rights: Your use of your own land is interfering with my use of my land (e.g., noise, smoke, odors) Exposure in Torts or Property? Exposure in Torts or Property? Private Nuisance? Public Nuisance?

50. Hadacheck v. Sebastian: Reasoning DQ3.08 (Police Power) Brief Aside on Nuisance Law Tort to Protect Property Rights: Tort to Protect Property Rights: Your use of your own land is interfering with my use of my land (e.g., noise, smoke, odors) Private Nuisance: Private Nuisance: Lawsuits by private individuals. – Defenses: First in Time & Oversensitiveness Public Nuisance: Public Nuisance: – Statutes banning particular harmful land uses – Lawsuits for widespread harms to other people’s use of land (no first in time defense)

51. Hadacheck v. Sebastian: Reasoning DQ3.08 (Radium) Hadacheck & the Police Power (p.113) “[O]ne of most essential powers of gov’t—one that is the least limitable.” (p.113) “A vested interest cannot be asserted against it because of conditions once obtaining.” – MEANS?

52. Hadacheck v. Sebastian: Reasoning DQ3.08 (Radium) Hadacheck & the Police Power (p.113) “A vested interest cannot be asserted against it because of conditions once obtaining.” Compare “Coming to the Nuisance” – First-in-Time Defense for Private Nuisance – Not defense for Public Nuisance

53. Hadacheck v. Sebastian: Reasoning DQ3.08 (Radium) Hadacheck & the Police Power: Reinman Little Rock bans livery stables – Related to Change from Horses to Cars – Similar Facts Alleged re Loss of Property Value – US SCt says OK under Police Power Why does Petitioner in Hadacheck say L.A. Ordinance Distinguishable?

54. Hadacheck v. Sebastian: Reasoning DQ3.08 (Radium) Hadacheck & the Police Power: Reinman Little Rock bans livery stables; US SCt says OK Petitioner: L.A. Ordinance Distinguishable b/c Brick- works Tied to Particular Location (Clay Pits) But Court Responds: Not Impossible to Run Business Elsewhere Reliance on Reinman suggests that under Police Power, OK to severely reduce value by eliminating current use.

55. Hadacheck v. Sebastian: Reasoning DQ3.08 (Radium) Hadacheck & the Police Power: Kelso San Francisco banned operation of rock quarry Cal. S.Ct. said unconstitutional Why Distinguishable from Hadacheck ?

56. Hadacheck v. Sebastian: Reasoning DQ3.08 (Radium) Hadacheck & the Police Power: Kelso San Francisco banned operation of rock quarry Cal. S.Ct. said unconstitutional; distinguishes Hadacheck because: – In Kelso, if you can’t quarry, rock is valueless – In Hadacheck, clay still has value; can remove & process elsewhere

57. Hadacheck v. Sebastian: Reasoning DQ3.08 (Radium) Hadacheck & the Police Power: Kelso Cal. S.Ct. draws distinction between – Limit on use of land; and – Complete elimination of value US SCt not bound by California state decision. Does US SCt adopt Kelso reasoning?

58. Hadacheck v. Sebastian: Reasoning DQ3.08 (Radium) Hadacheck & the Police Power: Kelso Cal. S.Ct. draws distinction between limit on use of land and complete elimination of value NO. US SCt not bound by California state decision. Does US SCt adopt Kelso reasoning? NO. – Explicitly reserves Q in last paragraph of opinion – Does note clay still is available & has value

59. Hadacheck v. Sebastian: Reasoning DQ3.08 (Radium) Hadacheck & the Police Power: Kelso Cal. S.Ct. draws distinction between limit on use of land and complete elimination of value Distinction raises important recurring Q: In deciding if value remains, do you look at: – All property owned by claimant (quarry + rock) – Particular property most directly effected (just rock) – Still value left in quarry, but not in rock.

60. Hadacheck v. Sebastian: Reasoning DQ3.08 (Radium) Hadacheck & the Police Power: Kelso Important recurring Q: In deciding if value remains (or amount of value lost), what portion of claimant’s property do you look at? We’ll call this the “denominator” question: – What do you use as denominator in fraction showing how much property is lost (or is left)?

61. Hadacheck v. Sebastian: Holding/Rules DQ3.09 What rules or principles can you derive from Hadacheck to use in future cases? Any exercise of police power is Constitutional if not arbitrary. Start with very broad holding: Any exercise of police power is Constitutional if not arbitrary. Narrower Versions?

62. Hadacheck v. Sebastian: Holding/Rules DQ3.09 VERY BROAD: Exercise of police power Constitutional if not arbitrary. NARROWER EXAMPLES: – Exercise of police power Constitutional if not arbitrary and related to human health & safety. – Exercise of police power Constitutional if not arbitrary and related to substantial concerns re human health & safety. – Exercise of police power Constitutional if not arbitrary and prohibiting public nuisance/ harmful use of land.

63. Hadacheck v. Sebastian: Holding/Rules DQ3.09 Other possible rules or principles: Prohibiting existing use not automatically unconstitutional Large decrease in property value not automatically unconstitutional Note that even Conservative commentators generally OK with these where purpose is to prevent substantial health/safety risks.

64. Hadacheck v. Sebastian: Holding/Rules DQ3.09 Other possible rules or principles: Prohibiting existing use not automatically unconstitutional Large decrease in property value not automatically unconstitutional Maybe: Unconstitutional if all value removed (following Kelso) Private interests must yield to progress & good of community (See third full paragraph p.113)

65. Hadacheck v. Sebastian: Holding/Rules DQ3.09 Apply rules/principles from Hadacheck to “Airspace Solution”

66. Hadacheck v. Sebastian: Holding/Rules DQ3.09 Apply rules/principles from Hadacheck to Airspace Solution: Exercise of police power Constitutional if not arbitrary. Exercise of police power Constitutional if not arbitrary and related to human health & safety Exercise of police power Constitutional if not arbitrary and prohibiting nuisance/ harmful use of land (Kelso & Maybe Hadacheck): Unconstitutional if all value removed