Music: Carole King, Tapestry (1971)

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Music Carole King, Tapestry (1971)

• 1L Elective Choices
• Ill Review Mon/Tue Nov 12-13
• Analysis of Evidence
• Family Law Immigration
• International Environmental Law
• Law Social Justice Legislation
• Substantive Criminal Law

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RADIUMTakings Theorist 1Joseph Sax
DQ104-05
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Takings Theorists Joseph SaxDQ104 (Radium)

• Saxs First Formulation
• Distinction Between
• Government-as-Enterpriser
• Government-as-Arbiter.
• For Each
• Definition?
• Examples?
• What Sax Sees as Consequence and Why?

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Takings Theorists Joseph SaxDQ104 (Radium)

• Saxs First Formulation
• Government-as-Enterpriser
• Classic uses of Eminent Domain (Road, School
  etc.)
• Taking land for govt purpose, so should pay for
• Government-as-Arbiter.
• Govt resolving dispute between conflicting land
  uses
• Not just conflicting parties
• Reeses Peanut Butter Cup Problems
• When resolving dispute, no need to pay loser of
  dispute

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Takings Theorists Joseph SaxDQ104 (Radium)

• Saxs First Formulation
• Distinction Between
• Government-as-Enterpriser
• Government-as-Arbiter.
• Application
• Apply to Hadacheck
• Circumstance Where Its Hard to Tell?

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Takings Theorists Joseph SaxDQ104 (Radium)

• Govt-as-Enterpriser v. Govt-as-Arbiter
  
• Apply to Hadacheck Pretty Clearly Arbiter Case
  (even though city may benefit some)
• Circumstance Where Its Hard to Tell?
• E.g., Looks Like Arbiter but One Side of Dispute
  is Govt Owned (School, Military Base, Hospital)
• Apply to Airspace Solution (Argue Both Ways)

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Takings Theorists Joseph SaxDQ104 (Radium)

• Govt-as-Enterpriser v. Govt-as-Arbiter
  
• Apply to Airspace Solution
• Could View as Arbitration between Gas Cos.
  Other Surface Owners
• Could View as Taking Property from Other Surface
  Owners for Gas Cos to Use for Large Public
  Benefit
• Could generalize Sax unclear if arbitrating
  between two private parties, but result is to
  give one party property rights of the other to
  further strong public interest.

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Takings Theorists Joseph SaxDQ104 (Radium)

• Govt-as-Enterpriser v. Govt-as-Arbiter
  
• Three Situations that are Difficult to Categorize
• Looks like arbitrating, but one side of dispute
  is govt owned (School, Military Base, Hospital)
• Looks like arbitrating, but result is to transfer
  property rights of one party to the other to
  further strong public interest (not simply saying
  owner cant do X) (Airspace Solution)
• Limit on uses of private property to protect
  wildlife (choosing between animals and landowners
  not exactly the same as choosing between two sets
  of owners) (Ramlal B2)

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Takings Theorists Joseph SaxDQ105 (Radium)

• Saxs Second Formulation
• State Can Regulate Without Compensating to
  Prevent Spillover Effects ( Negative
  Externalities)
• What spillover effects or externalities is the
  state trying to prevent
• in Hadacheck?
• in the Airspace Solution?

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Unit Three IntroductionRelevant
Considerations in Takings Cases

• B Survey About What Facts Matter (68 Responses)
• Reduction in Value (61)
• Ban on Intended Use (61)
• Amount Reduction (42)
• Purpose of Regulation (37) Hadacheck (Police
  Powers) Sax (Enterpriser v. Arbiter Stopping
  Spillovers)
• Amount Left (29) Kelso (left open by
  Hadacheck)
• Return on Investment (18)

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

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Mahon v. Pennsylvania Coal Co.Background
Pennsylvania Law

• Property Rights in Pennsylvania
• Three Types Each is Separate Estate in Land
• Surface
• Mineral (here, coal extraction)
• Subsidence
• Right to Decide Whether to Keep Surface in Place
  or Undermine It.
• Can be Held By Surface Owner or Mineral Rights
  Owner

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Mahon v. Pennsylvania Coal Co.Background
Pennsylvania Law

• Property Rights in Pennsylvania
• Three Types Each is Separate Estate in Land
• Surface
• Mineral (here, coal extraction)
• Subsidence
• Right to Decide Whether to Keep Surface in Place
  or Undermine It.
• Can be Held By Surface Owner or Mineral Rights
  Owner

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Mahon v. Pennsylvania Coal Co.Background
Factual Context

• Coal Companies (CCs) Owned Large Tracts of Land,
  Initially Holding All Three Estates
• Sell Surface Rights to Individuals, Businesses,
  Local Governments
• Contracts of Sale Deeds for these Sales
• Explicitly retained for CCs both mineral rights
  subsidence rights
• Required CCs to give notice before undermining

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Mahon v. Pennsylvania Coal Co.Background
Factual Context

• Penn. Legislature becomes concerned about
  wide-spread 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
• Exception if owner of mineral rights also owns
  surface lot is more than 150 feet from improved
  lots owned by others.
• Effect is to bar CCs from exercising some
  Subsidence Rights for which they had explicitly
  contracted.

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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

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1922
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1922 BIRTHS

• Surrender Dorothy!

• Bea Arthur
• Helen Gurley Brown
• Sid Caesar
• Doris Day
• Judy Garland
• Redd Foxx
• Boutros-Boutros Ghali
• Jack Kerouac
• Jack Klugman

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1922 BIRTHS

• Betty Saruman the
• White

• Christopher Lee
• Charles Mingus
• Leslie Nielsen
• Yitchak Rabin
• Jean-Pierre Rampal
• Carl Reiner
• Charles M. Schulz
• Kurt Vonnegut
• Betty White

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1922 INTRODUCTIONS DISCOVERIES

• Lincoln Memorial Dedicated
• 1st Microfilm Device
• National Football League
• Reader's Digest
• Rin Tin Tin
• Ulysses, by James Joyce
• Vitamin D
• The Waste Land by T.S. Eliot
• Water Skiing
• Yankee Stadium Construction Begins (Opens 1923)

• 1st US Navy Aircraft Carrier
• Better Homes Gardens
• British Broadcasting Co.
• Campbells Soup
• Dr. Doolittle
• Eskimo Pie
• Etiquette by Emily Post
• Hollywood Bowl
• Insulin Treatment of Diabetes
• King Tuts Tomb

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1922 U.S. EVENTS

• Last horse-drawn fire equipment used in Brooklyn
• Henry Ford makes more than 264,000 per day AP
  says hes a billionaire
• Growth of Radio Many New Radio Stations Many
  Firsts
• 1st Radio in White House 1st Presidential
  Broadcast
• 1st Paid Commercial
• 1st Coast-to-Coast Broadcast of a Football Game
• 1st Play-by-Play of World Series (Giants over
  Yankees 4-0 1 tie)
• Mah Jongg introduced in US becomes a craze by
  1923, tile sets outselling even radios

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1922 Bonus SlideNew in American Popular Music

• Carolina in the Morning
• Chicago
• Do It Again
• Ill Build a Stairway to Paradise
• My Buddy

• Taint Nobodys Business if I Do
• Toot, Toot, Tootsie
• Way Down Yonder in New Orleans
• Louis Armstrong Goes to Chicago

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1922 Bonus Slide Federal Baseball Club v.
National League

• U.S. Supreme Court holds Major League Baseball
  exempt from Federal Antitrust Laws (Still True)
• Justice Holmess Majority Opinion says the
  business of giving exhibitions of base ball is
  not interstate commerce, and so can only be
  regulated by the states.

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1922 WORLD EVENTS

• Ecuador Egypt Ireland Became Independent
• Ottoman Empire Abolished
• USSR Formed Joseph Stalin appointed General
  Secretary of the Soviet Communist Party
• Japan Crown Prince Hirohito Became Prince-Regent
• Italy Mussolini Fascists Take Power
• Germany Runaway Inflation Stock Market Crash
  Hitler Addressed 50,000 National Socialists in
  Munich

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Mahon v. Pennsylvania Coal Co.DQ106
Introduction (Radium)

• Govt Action at Issue Kohler Act (Forbids CCs
  from Causing Surface to Collapse While Mining
• Purposes of the Action Prevent Subsidence when
  Buildings on Surface (to further Safety and
  Welfare)
• Is action rationally related to protecting
  Safety?
• To improving/protecting Welfare?

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Mahon v. Pennsylvania Coal Co.DQ106
Introduction (Radium)

• Govt Action at Issue Kohler Act (Forbids CCs
  from Causing Surface to Collapse While Mining
• Preventing Subsidence when Buildings on Surface
  Rationally Related to Safety Welfare
• Safety concerns possible re landscape after
  cave-ins even with proper notice
• Welfare concerns possible from neighbors
  property values to disruption of economy (Katrina
  issues) to environmental harms (Garry B1)

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Mahon v. Pennsylvania Coal Co.DQ106
Introduction (Radium)

• Govt Action at Issue Kohler Act (Forbids CCs
  from Causing Surface to Collapse While Mining
• What limits are placed on the CCs use of their
  property?
• What uses of their property are still
  permissible?

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Mahon v. Pennsylvania Coal Co.DQ106
Introduction (Radium)

• CCs can mine coal so long as surface stays up
  means must leave some coal in place.
• What is the resulting harm to CCs? Uncertain!
• Because of posture of case, no factual record
• The two opinions differ as to extent of harm
• Harm according to Holmes?

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Mahon v. Pennsylvania Coal Co.DQ106
Introduction (Radium)

• CCs can mine coal so long as surface stays up
  means must leave some coal in place.
• What is the resulting harm to CCs?
• Uncertain because no factual record
• Holmes (bottom of p.108) warranted in assuming
  statute makes mining commercially
  impracticable, so whole value gone.

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Mahon v. Pennsylvania Coal Co.DQ106
Introduction (Radium)

• CCs can mine coal so long as surface stays up
  means must leave some coal in place.
• What is the resulting harm to CCs?
• Uncertain because no factual record
• Holmes warranted in assuming whole value gone.
  
• Brandeis (top of p.111) For aught that appears
  in the record the value of the coal kept in
  place by the restriction may be negligible.
  Means?

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Mahon DQ106 Demsetz Takings Story (Radium)

• Decision Do CCs undermine surface when they
  mine?
• Old Rule (before Kohler Act)?

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Mahon DQ106 Demsetz Takings Story (Radium)

• Decision Do CCs undermine surface when they
  mine?
• Old Rule Can undermine surface if own
  subsidence rights
• Externalities? Tricky Issue

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Mahon Externalities Contract Rights

• Direct harm to surface owners not an externality
  b/c not external to decisions/activities of CCs.
• CCs paid surface owners in advance for subsidence
• As if Hadacheck sold land around factory
• On condition that theyd allow brickworks to
  continue despite dust, etc. and
• Paid separately for the condition

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Mahon Externalities Contract Rights

• Direct harm to surface owners not an externality
  b/c not external to decisions/activities of CCs.
• Possible externalities beyond direct harm to
  surface owners?

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Mahon Externalities Contract Rights

• Direct harm to surface owners not an externality
  b/c not external to decisions/activities of CCs.
• Externalities beyond direct harm to surface
  owners
• Costs to society of loss of surface value
  dislocation
• Loose parallel Contract to infect person w
  contagious disease to test treatment voluntary
  to subject, not to others who might get disease
  from subject
• Could do analysis like Contract void as against
  public policy Not allow or enforce agreement
  that has large costs no non-contracting parties