elements b power point slides class #30 wednesday, november 11, 2015 national sundae day &...

ELEMENTS B POWER POINT SLIDES

Class #30Wednesday, November 11, 2015

National Sundae Day &Veterans Day

SHOW BOAT SHOW BOAT (1927)(1927)

Music by Jerome KernMusic by Jerome KernBook & Lyrics by Oscar Hammerstein IIBook & Lyrics by Oscar Hammerstein II

1994 Broadway Cast Album1994 Broadway Cast AlbumNow Posted on Course PageNow Posted on Course Page::•Complete Assignment Sheet•Assmt #3: Comments/Best Answers•Exam-Taking Workshop:

– Power Point Slides– Link to Video

•Exam Question III: Bank of Old Qs•Office Hours Schedule Thru 12/1

Office Hours This WeekOffice Hours This Week•Today 10-12•Tomorrow 9:30-11

Friday Class: 9:25-10:50Friday Class: 9:25-10:50

Mahon Analysis cont’d

Mahon Analysis: Holmes MajorityVery Narrow Holding

A Gov’t Regulation is a Taking Where It:

1. Extinguishes a property right specifically contracted for by O;

2. renders O’s remaining property rights valueless;

3. is not addressing safety issue;

4. is not addressing widespread public harm; ANDAND

5. does not create reciprocity of advantage.

Mahon Analysis: Holmes MajorityExplore Possible Broader Holdings

by1. Looking at the ways Justice Brandeis disagrees

with Justice Holmes re

a. Diminution in Value (DQ3.14)b. Public Nuisance (DQ3.15)c. Reciprocity of Advantage (DQ3.16)

2. Looking at Important Language in Maj. Opinion3. Will Yield Possible Rules: DQ3.17

Mahon Analysis: Holmes & Brandeis

DQ3.14: Height Restrictions (Krypton)Measuring Loss of Value: Quick RecapMeasuring Loss of Value: Quick Recap

•HMS argument similar to HMS argument similar to KelsoKelso– Relevant property here is mineral rights– Assumes Act reduces value to 0 Taking

•BDS disagrees for two reasonsBDS disagrees for two reasons1.Doesn’t accept that value of mineral rights is

02.Need to view mineral rights in context of

“value of all other parts of the land.” (last para. p. 119)


DQ3.14: Height Restrictions (Krypton)Measuring Loss of ValueMeasuring Loss of Value

•BDS: Need to view mineral rights in BDS: Need to view mineral rights in context of “value of all other parts of context of “value of all other parts of the land.”the land.”

–Look at value of coal and surface together, not value of coal alone

–Why? Owner can’t get more rights v. Gov’t by dividing land.

–Example/Analogy: Height Restrictions


DQ3.14: Height Restrictions (Radium)Measuring Loss of ValueMeasuring Loss of Value

•BDS Example/Analogy: Height Restrictions

–Like Kohler Act, forbid use of part of parcel

–BUT conceded to be valid/Constitutional

–Height restrictions not characterized as: “Value of air rights reduced to 0.”



•BDS Example/Analogy: Height BDS Example/Analogy: Height RestrictionsRestrictions

– p.119-20: “[N]o one would contend that by selling his interest above 100 feet from the surface he could prevent the state from limiting, by the police power, the height of structures in a city. And why should a sale of underground rights bar the state’s power?”

•We’ll revisit issue in Penn Central.



•Example of “Denominator Q”Example of “Denominator Q”: How Do : How Do You Decide Relevant Piece of Property to You Decide Relevant Piece of Property to Value?Value?

– BDS: Look at whole parcel top to bottom

– Important Argument for Denominator Q: Dividing property shouldn’t affect gov’t power to regulate

– HMS: Doesn’t explicitly address BDS HMS: Doesn’t explicitly address BDS approachapproach



•What is Relevant Piece of Property to Value?

•BDS: Look at whole parcel top to bottom

•HMS: Doesn’t explicitly address BDS approachHMS: Doesn’t explicitly address BDS approach

– Might disagree, believing should just look at what this O has

– Might agree with approach but still think CCs should win b/c

• Coal much more valuable than surface rights; and/or

• Loss in value of coal much greater than BDS believes



•What is Relevant Piece of Property to Value?

•BDS: Look at whole parcel top to bottom

•HMS: Doesn’t explicitly address BDS approach

QUESTIONS?



with Justice Holmes rea. Diminution in Value (DQ3.14)

b. Public Nuisance (DQ3.15)c. Reciprocity of Advantage (DQ3.16)

2. Looking at Important Language in Maj. Opinion3. Will Yield Possible Rules: DQ3.17


DQ3.15: Public Nuisance (Krypton)• HMS: No Public Nuisance in HMS: No Public Nuisance in

Case:Case:–Only one house; not common or public

damage.–Not safety issue because of notice.–Shouldn’t protect people who took risk

of only purchasing surface rights.


DQ3.15: Public Nuisance (Krypton)• HMS: No Public Nuisance in Case:

• BDS disagrees; characterizes as BDS disagrees; characterizes as “noxious use” and Public Nuisance“noxious use” and Public Nuisance– Act includes public buildings, etc. as well

as houses

– Notice not enough to protect public interest in safety

– Should defer to Legisl. on need for safety measure

– Interest can be “public” even if helps private parties


DQ3.15: Public Nuisance (Krypton)• HMS: No Public Nuisance in Case:• BDS says Public Nuisance/noxious use:

• Significance if Considered “Public Significance if Considered “Public Nuisance”?Nuisance”?– BDS: OK to regulate to prevent Public

Nuisance even if deprives O of only profitable use

– HMS: Nothing in majority suggests he disagrees on legal significance, just on reading of facts


DQ3.15: Public Nuisance (Krypton)• Significance if Considered “Public Significance if Considered “Public

Nuisance”?Nuisance”?– BDS: Constitutional to regulate to

prevent Public Nuisance even if deprives O of profitable use

– HMS: Nothing in majority suggests he disagrees on legal significance, just on reading of facts

• Questions?Questions?



with Justice Holmes rea. Diminution in Value (DQ3.14)b. Public Nuisance (DQ3.15)

c. Reciprocity of Advantage (DQ3.16)2. Looking at Important Language in Maj. Opinion3. Will Yield Possible Rules: DQ3.17


DQ3.16: Reciprocity (Uranium)(Uranium)• P and state relied on Plymouth Coal :

US SCt upheld state requirement that CCs, when mining, leave enough coal in place to serve as pillars between mines. (top p.118)

• Holmes distinguishes:Holmes distinguishes:– involved safety of miners plus: – “secured an average reciprocity of

advantage”


DQ3.16: Reciprocity (Uranium)(Uranium)““Average Reciprocity of AdvantageAverage Reciprocity of Advantage””

•Benefit resulting precisely from fact that others are restricted in the same way

•Not just general benefit from the regulation

•Can see as an aspect of diminution in value – Get something back, so less diminution– Example/Subset of Epstein’s “Implicit

Compensation”


DQ3.16: Reciprocity (Uranium)(Uranium)“Average Reciprocity of Advantage”

•Benefit resulting precisely from fact that others are restricted in the same way. (Not just general benefit from the regulation.)

•E.g., Plymouth Coal: Purpose: prevent cave-ins where two mines meet.

– I lose some coal because I can’t mine to property line; benefits neighboringneighboring mine, which doesn’t collapse

– He He loses some coal because hehe can’t mine to property line; benefits mymy mine, which doesn’t collapse.


DQ3.16: Reciprocity (Uranium)(Uranium)“Average Reciprocity of Advantage”


•E.g., City Ordinance: Storeowners in Business District must keep sidewalk in front clear of snow

– I have to use labor to comply; might not be worth it for my store alone; benefits all neighboring stores

– Neighbors have to use labor to comply; might not be worth it for their store alone; benefits me & other neighboring stores

–E.g., Residential Only Zoning: No Commercial Uses



•Benefit resulting precisely from fact that others are restricted in the same way.

•Not just general benefit from the regulation.•General benefits = “Rainbows”



•Benefit resulting precisely from fact that others are restricted in the same way.

• Not just general benefit from the regulation.• General benefits = “Rainbows”

•Not Reciprocity: Hadacheck– I have to shut down brickworks; benefits all

neighboring lots by reducing pollution.– No corresponding restriction on neighbors. I

benefit from regulation, if at all, from general benefit: cleaner air in LA.




•BDS: Reciprocity only matters if challenged BDS: Reciprocity only matters if challenged state law is conferring a benefit, not if it is state law is conferring a benefit, not if it is preventing harm. preventing harm. (top para. p.121)

•Remember Harm/Benefit Distinction for Remember Harm/Benefit Distinction for Penn Penn Central.Central.


DQ3.16: Reciprocity (Uranium)(Uranium)• (top p.121) “There was no reciprocal

advantage [in Hadacheck] to the owner prohibited from using his ... brickyard, … unless it be the advantage of living and doing business in a civilized community. That reciprocal advantage is given by the act to the coal operators.”


DQ3.16: Reciprocity (Uranium)(Uranium)• “the advantage of living and doing

business in a civilized community” • Not how Holmes or I use the term

“reciprocity.” Only use where specific benefits to one regulated party arise from burdens on other regulated parties.




•BDS: Reciprocity only matters if challenged state law is conferring a benefit, not if it is preventing harm.

Questions?


by1. Looking at ways BDS disagrees with HMS re


2. Looking at Important Language in Majority Opinion

3. Will Yield Possible Rules: DQ3.17

Key Language in Majority Opinion in Mahon

“Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.” -- (2d para. p.117)

Means: Not every loss in property value = Unconstitutional Taking

Key Language in Majority Opinion in Mahon

“[A] strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.”

-- (middle para. p.118)Means: A regulation is not necessarily

Constitutional just because its purpose is important.


by1. Looking at ways BDS disagrees with HMS re


2. Looking at Important Language in Maj. Opinion

3. Will Yield Possible Rules: DQ3.17

DQ3.17: Mahon Rules& Holding (Oxygen)

POSSIBLE RULES: AT LEAST…POSSIBLE RULES: AT LEAST…1. If diminution in value “goes too far” = Taking 2. If all value gone [and no safety issue]= Taking3. If reciprocity of advantage, no Taking4. If regulation destroys Property rights that were

specifically contracted for = Taking

DQ3.17: Mahon Rules & Holding :Balancing Test?

• Some students read case to say courts should decide Takings claims by balancing public interest behind challenged restriction against harm to property rights.

• Some study guides/published briefs agree.

• Need to be careful; b/c you often use balancing tests in torts & elsewhere, may have instinct to use as default.


• Some students read to require balancing test.

• Some study guides/published briefs agree.

• Concerns:– You often use balancing tests in Torts &

elsewhere; may have instinct to use as default rule.

– As was true with publishedGhen brief, published sources not always reliable

• Let’s look more closely


What a Balancing Test Looks Like:

• Careful evaluation of State’s interest• Careful evaluation of harm to property

owner• Discussion of which is more significant &

why


• What a Balancing Test Looks Like:– Careful evaluation of State’s interest– Careful evaluation of harm to property owner– Discussion of which is more significant & why

• Hadacheck language re progress might suggest balance, but not what case does:– Discussion of state’s interest very general

(police powers v. specific health concerns)– No discussion about importance of brickmaking


• What a Balancing Test Looks Like:– Careful evaluation of State’s interest– Careful evaluation of harm to property owner– Discussion of which is more significant & why

• Hadacheck language re progress might suggest balance, but not what case does.

• Better read of language: A regulation is not a Taking just because it interferes with an existing long-established use

Key Language in Majority Opinion in Mahon:

Balancing Test?“If we were called upon to deal with the

plaintiffs’ posi-tion alone we should think it clear that the statute does not disclose a public interest sufficient to warrant so extensive a destruction of the defendant’s constitutionally protected rights.” (3d para. p.117)

Language arguably looks like balance– Public interest is not “sufficient”– Harm to owner is “so extensive”


Balancing Test?“If we were called upon to deal with the Ps’ position alone

we should think it clear that the statute does not disclose a public interest sufficient to warrant so extensive a destruction of the D’s constitutionally protected rights.”

Hard to evaluate significance• On its face, this language is dicta• Case doesn’t really attempt thorough balance

– Minimizes public interest as small & unfair– Sees private harm as total deprivation of rights– So pretty trivial balance


Balancing Test?“If we were called upon to deal with the Ps’ position alone

we should think it clear that the statute does not disclose a public interest sufficient to warrant so extensive a destruction of the D’s constitutionally protected rights.”

You can use passage to support balancing test• BUT if you do, best to acknowledge problems

• Be aware later cases (e.g., Penn Central) don’t read Mahon to balance

DQ3.17: Mahon Rules & Holding

Possible Readings of Hadacheck

•Regulation OK if under Police Power?

•Regulation OK if Preventing Public Nuisance?

•Regulation OK if Protecting Health/Safety

•Argument from Kelso: OK if Value Left

•Regulation OK if Furthering Progress

DQ3.17: Mahon Rules& Holding

Possible Readings of Hadacheck:Effect of Mahon

•Regulation OK if under Police Power?•Regulation OK if Preventing Public Nuisance?•Regulation OK if Protecting Health/Safety•Argument from Kelso: OK if Value Left•Regulation OK if Furthering Progress

Relevant Considerations in Takings Cases

Survey About What Facts Matter•Ban on Intended Use (90%)

•% Reduction in Value (88%): Mahon (Generally•$$$ Amount Reduction (59%) & Reciprocity)•Purpose of Regulation (63%) = Hadacheck (Police Powers); Sax (Enterpriser v. Arbiter; Stopping Spillovers); Mahon (Stopping Public Nuisance)•$$$ Amount Left (56%) = Kelso (maybe Hadacheck); Mahon (Zero Value)•Return on Investment (39%)

Friedman Article on Mahon DQ3.19

Some New Info from Friedman Article:•Mahons were original buyers; held land for 43 years; he was atty so understood deed•CCs in practice had often left surface in place despite subsidence rights•Whole chunks of Scranton on the verge of collapse.•Under Penn laws, CCs had choice to exercise subsidence rights and pay damages to surface Os.•Other things striking to you?

Friedman Article on Mahon DQ3.19

How Does Info from Friedman Article Affect the Way You Should Read Mahon?

•Might change your view of dispute, but as a legal matter, shouldn’t change how you read case at all.

•For purposes of reading case, facts are what court says they are. No different than:

– Ignoring fox in well when interpreting Pierson

– Ignoring facts of Liesner that aren’t in Wisc SCt opinion.

FINAL EXAM QUESTION 3OPINION/DISSENT FORMAT

2014 Instructions•Based on the information presented on the next two pages, compose drafts of the analysis sections of a majority opinion for the U.S. Supreme Court and of a separate dissent, deciding whether there was an unconstitutional Taking of Ashley’s property. … •Assume that the record supports the trial court's findings of fact. Assume that the Supreme Court Takings cases assigned for the course (up to and including Penn Central) constitute the available precedent. The opinions you compose also may discuss the Takings theorists we have studied to the extent you find their work relevant.


•Requires You to Describe and Defend Two Positions


•Requires You to Describe and Defend Two Positions

•Must Show that You Understand Range of Relevant Arguments Arising from Line of Takings Cases

Skills: Applying Legal Authority to New Sets of Facts

11. Applying Language (Rules, . Applying Language (Rules, Factors, Elements)Factors, Elements)

2. Comparing Facts2. Comparing Facts

3. Applying Relevant Policies3. Applying Relevant Policies

Skills: Applying Legal Authority (Line of Takings Cases) to New

Sets of Facts1.1. Applying Language (Rules, Applying Language (Rules,

Factors, Elements) Factors, Elements) – Must be Consistent with Whole Line, Must be Consistent with Whole Line,

Not Just Individual CaseNot Just Individual Case

– Need to Adjust Your Notes/Outline After Need to Adjust Your Notes/Outline After Each New CaseEach New Case

2. Comparing Facts: 2. Comparing Facts:




Factors, Elements) Factors, Elements)

2.2. Comparing Facts: Comparing Facts: – Often Useful to Compare to Two Cases Often Useful to Compare to Two Cases

with Different Resultswith Different Results

– More Like More Like Hadacheck Hadacheck Than Like Than Like Mahon Mahon BecauseBecause … …




Factors, Elements) Factors, Elements)

2.2. Comparing Facts: Comparing Facts:

3. Applying Relevant Policies3. Applying Relevant Policies– Remember NOT looking at policy used Remember NOT looking at policy used

by legislature to create challenged lawby legislature to create challenged law

– Relevant policy addresses what kinds Relevant policy addresses what kinds of gov’t interference with property of gov’t interference with property rights require compensationrights require compensation


•Requires You to Describe and Defend Two Positions•Must Show that You Understand Range of Relevant Arguments Arising from Line of Cases

•Must Understand Role of US Supreme Must Understand Role of US Supreme Court (Useful for Justice or Clerk or Court (Useful for Justice or Clerk or Litigant)Litigant)

– Deciding One Case, BUT Setting Rules for Many

– Can Choose to Affirm or Modify Precedent BUT Must Defend

– Need to Resolve One or More Difficult Open Qs (We’ll Identify As We Go)

FINAL EXAM QUESTION 3

OPINION/DISSENT FORMAT

•Look at Posted ExamplesLook at Posted Examples

•We’ll Discuss at More Length & Do Review We’ll Discuss at More Length & Do Review Problems Identifying and Targeting Difficult Problems Identifying and Targeting Difficult Open Legal QsOpen Legal Qs

•I’ll take Qs in Class Later & at Review I’ll take Qs in Class Later & at Review Session After You’ve Had Some More Session After You’ve Had Some More Exposure. In Meantime, Can Ask Qs Outside Exposure. In Meantime, Can Ask Qs Outside of Class or by E-Mail.of Class or by E-Mail.

Mid-September Crisis

Mid-October Crisis

Mid-November Crisis

YOUR SCHEDULE

• Mon 11/23: L. Comm. Final Project Due• Tue 11/24: Last Day of Classes• Wed 11/25-Sun 11/29: T-Giving Break• Mon 11/30: Elements Review Session F209 @ 2• Wed 12/2: Elements Exam (AM)• Mon 12/7: Property Exam (PM)• Fri 12/11: Civ Pro Exam (AM)• Tue 12/15: Torts Exam (AM)

YOU HAVE MORE TIME THAN YOU THINK YOU DO

• 3-4 Days of Total Focus Before Each Test• In Between:

– Transition Period: Wed Nov 11-Tue Nov 24• Keep Going to Class• Don’t Let L. Comm. Eat Your Life

– Thanksgiving Break: • Thursday Rest; Other Days Work• “Do I Go Home or Not?”

• Schedule Prep Time for All Four Classes

USE OLD EXAMS• Do Some Under Exam Conditions

• You’ll Likely Never “Feel Ready”; Build in Time to Do Anyway

• Look at Old Model Answers if Available– Evidence of Kind of Answer Professor Likes– BUT Generally Imperfect & Incomplete

• If Questions Remain Afterward, Ask! – E-Mail or Extended Office Hrs (Posted) – I’ll Always Take Specific Qs– I Can’t Look at Written Answers from 74

People

OTHER EXAM PREP TIPS• Checklists for Open Book Exams• Make Time for Group Work

– Consult on Qs from Cases/Classnotes– Discuss Hypos & Old Exam Qs– Identify Likely Issues for Exam

• Go to Office Hours/Review Sessions– My times posted on course page

POINTS SPECIFIC TO ELEMENTS• Grading Order: Assmt 2, Assmt 3, Whale

Briefs

• Concern w Being First Exam– Most of You Will Be Extremely Wired– Breathe & Read Carefully

• Take Advantage of Range of Feedback & Info– Slides, Self-Quizzes, Sample Briefs, Comments on

Assmts– Comments & Best Answers re Old Exam Qs– Enough Time to Reread Key Cases– Review Session Mon Nov 30 (2:00 p.m. Here):

– A Little More on Substance of Unit III– Exam Technique for Each Q– A Few Helpful Details re Format of Your Actual Test

Peace of Mind Tips• Now to Dec. 15: You Need to Sleep• Ignore Rumor Mill• Reminder re The First Year “Grade Curve”• Kevin Niemann & September 2018• You Have to Work Both Hard and

Efficiently BUT

YOU CAN DO THIS !

Takings Theorist #2:Richard Epstein &

DQ3.20-3.21

Takings Theorists: Richard Epstein

Would only allow gov’t acts to limit property rights without compensation in 2 situations: (1) Nuisance Controls -OR-(2) Implicit Compensation

• Includes “Reciprocity of Advantage”• Includes Other Benefits Created by Regulatory

Scheme (e.g., Tax Breaks & TDRs in Penn Central)

Takings Theorists: Richard EpsteinDQ3.20

Would only allow gov’t acts to limit property rights without compensation in 2 situations: (1) Nuisance Controls or (2) Implicit Compensation

Both arguably contract-based: Contracts we’d expect to be negotiated if no transaction costs (cf. Coase Theorem)(1) Collective buyout in nuisance case(2) Group negotiation in reciprocity case


Would only allow gov’t acts to limit property rights without compensation in 2 situations:

(1) Nuisance Controls or (2) Implicit Compensation

Application to Hadacheck?




Application to Hadacheck?Probably Paradigm

Nuisance Control Case




Application to Mahon?Depends on Whether You

Accept Holmes’s Characterization




Application to Airspace Solution to Hammonds

Problem?


Application of Epstein to Airspace Solution to Hammonds Problem?

• Might say Hammonds’s refusal to allow use of reservoir is like a nuisance b/c it increases expense and safety hazards for gas cos.

• BUT Epstein likely to want her to be compensated:– not traditional nuisance b/c harm doesn’t stem from her use of her

own land.– Only compensation to her is general benefit to society of lower

energy costs (Rainbows)


Application of Epstein to Airspace Solution to Hammonds Problem?

• Might say Hammonds’s refusal to allow use of reservoir like a nuisance • BUT Epstein likely to want her to be compensated:

• On same reasoning, Epstein might want compensation for surface owners when airspace taken for planes.

• Possible that he might agree not to compensate b/c administrative costs administrative costs of paying would be so high (identify each relevant surface owner, value the air rights; set up a system to pay, etc.)


Only allow gov’t acts to limit property rts without compensation if: (1) Nuisance Controls or (2) Implicit Compensation .

Strengths & Weaknesses Include: • Fewer relevant considerations than Supreme Court uses• Categories both leave lots of room for argument• Very Protective of Landowner Rights; Promotes Investment • Very Limiting to Govt Power. Regulations for, e.g., Historic Preservation,

Wildlife Preservation, would probably require compensation.

Other Strengths/Weaknesses? Qs?

Oxygen:Oxygen:

Miller v. Miller v. SchoeneSchoene

& DQ3.22-3.25& DQ3.22-3.25

Miller v. SchoeneDQ3.22: Introduction

(Oxygen) Gov’t Action = Cedar Rust Act: State Entomologist

can order diseased cedar trees cut down. State pays for removal but not for loss in value.

Purpose?• Legitimate (Connected to HSWM)? • Action rationally related to purpose?


(Oxygen) Gov’t Action = Cedar Rust Act: State Entomologist can order

diseased cedar trees cut down. Purpose: Save apple trees from spread of cedar rust disease;

help big apple industry• Legitimate? YES. Helping apple growers and state economy

= WELFARE.• Action rationally related to purpose? YES.

MEETS MINIMAL RATIONAL BASIS SCRUTINY


(Oxygen) Gov’t Action = Cedar Rust Act: State Entomologist can order

diseased cedar trees cut down. State pays for removal but not for loss in value.

Limits on petitioners’ use of their property? Remaining Uses?Harm to Petitioners?


(Oxygen)

FINAL EXAM QUESTION 3Mapping Chart

Case Gov’t Act Affected Landowner

Intended Beneficiaries

Hadacheck LA Bans Brickyards

Brickyard Os Neighbors

Mahon PA Bans Undermining

Coal Companies

Surface Os

“Airspace Solution”

Rights to Empty Gas Pools

Surface Os Gas Companies

Miller VA Cedar Rust Act

Cedar Tree Os

Apple Orchard Os

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)

Miller under Prior AuthoritiesDQ3.23 (Oxygen)

• 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


• 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


• Miller Under Mahon & Hadacheck: Epstein Analysis Resolves Some Qs – Preventing Public Nuisance so OK?: Likely, Not Certain– Reciprocity/Implicit Compensation? No.


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

– Denominator Q Again; We’ll Revisit w Penn Central

elements b power point slides class #30 wednesday, november 11, 2015 national sundae day &...

Documents

holmes brandeisdq3

value dq3

value of mineral rights

context of value

value of coal

value of air rights

height of structures

height restrictionsp