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Disc One (1919-31) Correction from Wednesday

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Calcium for MondayOther Supreme Court Takings Law:

Euclid & Nectow

WHAT DO THEY ADD TO THE LINE OF CASES?

DQ102-05: Reasoning of Mahon

FEATURING PHOSPHORIFEATURING PHOSPHORI::1.1. Mutamba, MasimbaMutamba, Masimba2.2. Greenwald, DavidGreenwald, David3.3. Hendricks, TimHendricks, Tim4.4. Ziegler, ChelseyZiegler, Chelsey5.5. Smittick, SibongileSmittick, Sibongile6.6. Aybar Landrau, EduardoAybar Landrau, Eduardo7.7. Sohn, BradSohn, Brad8.8. Reger, LawrenceReger, Lawrence

Hadacheck v. Mahon: Focus of Analysis

• Hadacheck: Main focus on purpose of regulation –Lots of scope if under police power–BUT reference to Kelso implicates

Q of what’s left

Hadacheck v. Mahon: Focus of Analysis

• Hadacheck: Focus on purpose• Mahon: Focus on change in

property value – Explicitly looks at what’s been taken away

• Too great a diminution in value is a Taking• NOTE: explicit that not drawing clear line • Examine case by case to see if “goes too far”

– BUT some discussion of purpose (Holmes careful to say no safety issue)

What does “too far” mean? Review Holmes’s analysis:

1. Subsidence Right defined as property right in Pa & specifically contracted for

2. Loss of Subsidence Right effectively makes Mineral Rights valueless

3. No safety issue (notice)4. No issue of public harm: case about one

house (though he goes on to address more)

5. No “average reciprocity of advantage”

“Average Reciprocity of Advantage”

• Plymouth Coal (pp.90-91): upheld requirement of pillars between mines

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

PHOSPHORUS: DQ104: Means? PHOSPHORUS: DQ104: Means?

“Average 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 of Epstein’s “Implicit Compensation”

• E.g., Plymouth Coal

PHOSPH: DQ104: Other Examples?PHOSPH: DQ104: Other Examples?

Very Narrow Holding of Mahon

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;

and5. does not create reciprocity of advantage.

We’ll Explore Possible Broader Readings of Mahon by:

1. Looking at the ways Justice Brandeis disagrees with Justice Holmes re

a. Diminution in Valueb. Public Nuisancec. Reciprocity of Advantage

2. Looking at Important Language in Majority Opinion

Brandeis Response to Holmes re Diminution of Value

• Need to view in context of “value of all other parts of the land.”– Would not look at value of coal alone,

but coal plus surface– Can’t get more rights v. gov’t by

subdividing land


• View in context of value of all parts of the land.

• Analogy to height restrictions (conceded valid) – Like Kohler Act, forbids use of part of

parcel


• View in context of value of all parts of the land.

• Analogy to height restrictions (conceded valid) – Like Kohler Act, forbids use of part of

parcel– Height restrictions not characterized

as: “All of air rights gone”


• View in context of value of all parts of the land.• Analogy to height restrictions (conceded valid)

– Like Kohler Act, forbid use of part of parcel– Not characterized as: “All of air rights gone”Middle p.93: “[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?”



– Like Kohler Act, forbid use of part of parcel– Not characterized as: “All of air rights gone”“[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.”

BUT SEE PENN CENTRAL!!



PHOSPHORUS DQ102: Kohler Act PHOSPHORUS DQ102: Kohler Act Distinguishable from Height Distinguishable from Height RestrictionsRestrictions??



Example of key Takings issue: how to determine relevant piece of property? – BDS: look at whole parcel top to bottom– HMS: doesn’t address explicitly



Example of key Takings issue: how to determine relevant piece of property? – BDS: look at whole parcel top to bottom– HMS may not disagree with BDS approach

• HMS could believe coal is much more valuable than surface

• May disagree w BDS simply over extent of loss in value

Holmes re Public Nuisance

Holmes sees no Public Nuisance:• Only one house; not common or public

damage• Not safety issue: notice• Shouldn’t protect people who took risk of

only purchasing surface rights

Brandeis Response to Holmes re Public Nuisance

Holmes sees no Public Nuisance:Brandeis disagrees; characterizes as

stopping noxious use: • Statute covers public buildings, roads, etc. as well

as houses• Notice not enough to protect public interest in

safety• Should defer to legislature on need for safety

measure• Interest can be “public” even if some private

people benefit

Brandeis Response to Holmes re Public Nuisance

Holmes sees no Public Nuisance:Brandeis sees as stopping noxious use Significance of Public Nuisance:• BDS: Can regulate to prevent public

nuisance even if deprives O of profitable use

• HMS doesn’t disagree on significance, just facts

Brandeis Response to Holmes re Reciprocity of Advantage

Only matters if conferring benefit, not if preventing harm (last para. p.94)

• Remember Harm/Benefit Distinction for Penn Central


“There was no reciprocal advantage to the owner prohibited from using his .. brickyard, in [Hadacheck] … 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.” – End of Brandeis Opinion


“There was no reciprocal advantage to the owner prohibited from using his .. brickyard, in [Hadacheck] … 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.”

NOT what Holmes means by Reciprocity of Advantage!!

Important Language in Majority“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.”

-- (3d para. p.90)

Means: Not every loss in value = Taking

Important Language in Majority“[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.”

-- (p.91-92)Means: A regulation is not

necessarily constitutional just because purpose is important

Important Language in Majority (cf. Balancing)

What Balance Looks Like: • Careful evaluation of State’s interest• Careful evaluation of harm to property

owner• Discussion of which is more significant

& why

Important Language in Majority (cf. Balancing)

Hadacheck:• Language re progress might suggest balance• But not what case does:

– No discussion about importance of brickmaking– Discussion of state’s interest very general (police

powers v. specific health concerns)• Better read of language: A regulation is not a

taking just because it interferes with an existing long-established use

Important Language in Majority

“If we were called upon to deal with the plaintiffs’ 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 defendant’s constitutionally protected rights.”

-- (Top para. p.91)

Important Language in Majority“If we were called upon to deal with the plaintiffs’

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 defendant’s constitutionally protected rights.”

-- (Top para. p.91)

Language arguably looks like balance– public interest is not sufficient– harm to owner is so extensive

Important Language in Majority“If we were called upon to deal with the plaintiffs’

position alone we should think it clear that the statute does not disclose a public interest suffi-cient to warrant so extensive a destruction of the defendant’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

Important Language in Majority

“If we were called upon to deal with the plaintiffs’ 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 defendant’s constitutionally protected rights.”

Be careful if you use this passage to support balancing; later cases (e.g., Penn Central) don’t read Mahon to balance

PHOSPHORUSPHOSPHORUS

DQ105: What other rules or principles can you derive from

the majority opinion in Mahon?

DQ105: Rules/Principles from Mahon

AT LEAST:1. Look at diminution in value; if “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

PHOSPHORUSPHOSPHORUS: DQ105 Effect of Mahon on Hadacheck?

• Regulation OK if under Police Power?• Reg. OK if Preventing Public Nuisance?• Reg. OK if Protecting Health/Safety

• Argument from Kelso: OK if Value Left

• Reg OK if Furthering Progress

DQ105 Effect of Mahon on Hadacheck?

• Regulation OK if under Police Power?• Reg. OK if Preventing Public Nuisance?• Reg. OK if Protecting Health/Safety

• Argument from Kelso: OK if Value Left

• Reg OK if Furthering Progress

Richard Epstein Approach

Epstein would only allow gov’t acts to limit property rights without compensation in 2 situations: (1) nuisance controls -OR-(2) implicit compensation (reciprocity or similar benefit from regulatory scheme)

Richard Epstein Approach

Epstein: No Taking 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(1) collective buyout in nuisance case(2) group negotiation in reciprocity case

ZINC DQ107

Epstein: No Taking in 2 situations: (1) nuisance controls -OR-(2) implicit compensation

Application to Hadacheck?

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