Music: Carole King, Tapestry (1971)
1L Elective Choices:
Comparative Law
Family Law * Financial Accounting
International Human Rights
Products Liability * Regulatory State
Substantive Criminal Law
§D Seating §B
Elements B/D: 11/7
featuring the voice talents of
Bryston Stafford
As Black Friday Approaches:
Too Much
Every kiss begins with Kay®
I’ve seen those Kay Jewelers ads …
… but frankly, if I give someone a
$5000 diamond bracelet, …
… I’m looking for a little more than
a kiss. That’s why I shop at …
Eff Jewelers
Taking Care
of Your Family Jewels
CHOOSING
YOUR
1L ELECTIVE
Section B Spring 2015
MON
TUE
CONTRACTS CRIM PRO
DAWSON
FRANKS
9:00-10:50
9:30-10:50
CON LAW I
WAGNER
2:00-3:20
CON LAW I
WAGNER
2:00-3:20
WED
THU
FRI
CONTRACTS CRIM PRO
DAWSON
FRANKS
9:00-10:50
9:30-10:50
L.COMM II
8:30-10:20
ELECTIVE
11:00-12:20
ELECTIVE
11:00-12:20
CON LAW I
WAGNER
2:00-3:20
Section D Spring 2015
MON
TUE
CONTRACTS CRIM PRO
WIDEN
SUNDBY
9:00-10:50
9:30-10:50
WED
THU
CONTRACTS CRIM PRO
WIDEN
SUNDBY
9:00-10:50
9:30-10:50
ELECTIVE
11:00-12:20
L COMM II
2:00-3:50
(Some)
CON LAW I
IGLESIAS
3:30-5:20
FRI
L COMM II
2:00-3:50
(Some)
ELECTIVE
11:00-12:20
CON LAW I
IGLESIAS
3:30-5:20
CHOOSING YOUR 1L
ELECTIVE
The most important decision you
will make…
CHOOSING YOUR 1L
ELECTIVE
The most important decision you
will make
next Monday or Tuesday.
CHOOSING YOUR 1L
ELECTIVE
The most important decision you
will make
next Monday or Tuesday.
Maybe.
CHOOSING YOUR 1L
ELECTIVE
You are picking one course out of
the 20 or so electives you will take
in law school.
CHOOSING YOUR 1L
ELECTIVE
You are not
picking a
spouse.
CHOOSING YOUR 1L
ELECTIVE
CHOOSING YOUR 1L ELECTIVE:
LOGISTICS
•
•
•
•
•
Read Descriptions Carefully
Learn Registration Procedures
Check Registration Time (Significance)
Checking Availability in Advance
Wait Lists & Add/Drop
CHOOSING YOUR 1L ELECTIVE:
SOME CONSIDERATIONS
•
•
•
•
Available to Take Later?
Method of Evaluation
Prerequisite/Intro to Other Courses
Furthering Skills & Career Goals
CHOOSING YOUR 1L ELECTIVE:
SOME CONSIDERATIONS
• Past Student Evaluations (@ Circulation
Desk for Spring 2012-Spring 2014)
• ALL except Products Liability & Regulatory State
• Upper Level Students in Room?
– Comparative
– Int’l Human Rights (Very Limited Number)
COMPARATIVE LAW (K.ROSENN)
Compare Legal Systems (Civil/Common Law)
•
•
•
•
Offered Every Year as Upper Level
Method of Evaluation: Final Exam
Helpful Intro to Comparative/Int’l Courses
Good course for int’l careers and for gen’l
understanding of law, especially Civil Law
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
FINANCIAL ACCOUNTING FOR
LAWYERS (G. MUNDSTOCK)
•
•
•
•
Intro to Accounting (Legal Perspective)
Sometimes Offered to Upper Level Students
Method of Evaluation: Final Exam
Helpful Intro to Business Law for Students w/o
Business Background
Can’t Take as 1L if More Than One Prior
Accounting or Finance Course
INT’L HUMAN RIGHTS (J. NICKEL)
Int’l Law of (& Nature of) Human Rights
• Offered Every Year for Upper Level
• Method of Evaluation: Class Participation and
Final Exam
• Intro to Public International Law
• Useful skills working with treaties & int’l law;
relevant to gov’t int’l practice, immigration, and US
civil rights.
• Check Prof’s Website for Additional Info
PRODUCTS LIABILITY (Z. FENTON)
Advanced Torts Class
• New Course: No Guarantee that Will be Offered as
Upper Level
• 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 part of general business litigation
practice.
REGULATORY STATE (C. COPELAND)
Federal Legislative & Administrative Process
• To Date, Only Offered as 1L Elective
• Method of Evaluation: Final Exam & One Other
Graded Assignment
• Very Helpful for Lots of Upper Level Courses; Good
Synergy with US Con Law I
• Central to Many Areas of Law (E.g., Civil Rights,
Communications, Consumer, Environmental, Health
Care, Immigration, Labor, Tax)
SUBSTANTIVE CRIMINAL LAW (MAHONEY)
Elements of Crimes & Defenses
• Offered Every Semester for Upper Level
• Method of Evaluation: Final Exam & Short Exercises
• 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.
CHOOSING YOUR 1L ELECTIVE:
QUESTIONS?
REVIEW PROBLEM 2J
2012 XQ2 (Escape):
Discuss whether the Escaping Animals Cases are
good tools to resolve disputes about rights to control
commercial use of human gestures strongly
identified with particular individuals.
1. Arguments from Factual Similarities & Differences
(KRYPTON)
2. Arguments re Usefulness of Legal Rules/Factors
(URANIUM)
3. Arguments re Comparisons to Alternatives (RADIUM)
FINAL EXAM QUESTIONS 1 & 2
XQ1: “Assuming Animals Cases Apply,
Discuss Who Should Get Property Rights?”
• Traditional Issue-Spotter, But Need to Be
Creative Applying Doctrine
• Focus of Discussion: Who Should Win Here?
– Applying Doctrine from ACs
– Looking Only at Specific Parties in Fact Pattern
FINAL EXAM QUESTIONS 1 & 2
XQ2: “Discuss Whether ACs Are Good Tools
to Use in This Type of Scenario”
• Having Tried ACs in the Specific Circumstances
of the Fact Pattern, Take a Step Back
• Can Think About as Addressing Legislature or
State Supreme Court : How Should the State
Handle Situations Like the Fact Pattern?
• No longer “Referee” applying rules to players in
game, but “Consultant” presenting report to
“Rules Committee” about what rules should be.
FINAL EXAM QUESTIONS 1 & 2
XQ2: “Discuss Whether ACs Are Good Tools
to Use in This Type of Scenario”
• Can Think About as Addressing Legislature or
State Supreme Court : How Should the State
Handle Situations Like the Fact Pattern?
• In What Ways Are the ACs Useful Tools? In What Ways
Are They Not Useful?
• In What Ways Are ACs Better or Worse Than Plausible
Alternatives?
FINAL EXAM QUESTIONS 1 & 2
XQ2: “Discuss Whether ACs Are Good Tools
to Use in This Type of Scenario”
• OK to Refer to Facts of Problem as Examples of
Situations or Problems that Might Arise, but
Application of Specific Doctrine to Specific Facts
Belongs in Q1.
• Cf. Notorious/Unpopular Application of Rule in
Sporting Event
• Once event is finished, can’t “relitigate” the specific
result
• BUT Can have a conversation about whether and how
to change the rules.
REV. PROB. 2J: 2012 XQ2
Discuss whether the Escaping ACs are good tools to resolve
disputes about rights to control commercial use of human
gestures strongly identified with particular individuals (SIPI).
Assume we only would give property rts to gestures
that are:
• Not commonly used in everyday life
• Very strongly associated with a particular public figure
I’m Just Working with People I Call on from Panel
REV. PROB. 2J: 2012 XQ2
Krypton-B: Factual Similarities
Discuss whether the Escaping ACs are good tools to resolve
disputes about rights to control commercial use of human
gestures strongly identified with particular individuals.
• Identify a Factual Similarity between
i.
ii.
Situations/Disputes Involving Escaping Wild Animals;
Situations/Disputes Involving the Use of Human Gestures SIPI
• Explain why the Similarity suggests that the Escaping ACs
would be good tools for resolving the latter situations.
REV. PROB. 2J: 2012 XQ2
Krypton-D: Factual Differences
Discuss whether the Escaping ACs are good tools to resolve
disputes about rights to control commercial use of human
gestures strongly identified with particular individuals.
• Identify a Factual Difference between
i.
ii.
Situations/Disputes Involving Escaping Wild Animals;
Situations/Disputes Involving the Use of Human Gestures SIPI
• Explain why the Difference suggests that the Escaping
ACs might not be useful for resolving the latter
situations.
REV. PROB. 2J: 2012 XQ2
Uranium-D: Useful Factors
Discuss whether the Escaping ACs are good tools to resolve
disputes about rights to control commercial use of human
gestures strongly identified with particular individuals.
• What Rules/Factors from the Escaping ACs Would
Be Useful for Disputes re the Use of Human
Gestures SIPI (and Why)?
REV. PROB. 2J: 2012 XQ2
Uranium-B: Less Useful Factors
Discuss whether the Escaping ACs are good tools to resolve
disputes about rights to control commercial use of human
gestures strongly identified with particular individuals.
• What Rules/Factors from the Escaping ACs Would
Be Less Useful (Hard to Use or Not Very Relevant)
for Disputes re the Use of Human Gestures SIPI (and
Why)?
REV. PROB. 2J: 2012 XQ2
Radium: Alternatives
Discuss whether the Escaping ACs are good tools to resolve
disputes about rights to control commercial use of human
gestures strongly identified with particular individuals.
• Possible Alternative Approaches?
• Some Pros & Cons
• I’ll Take Qs After Class or by E-Mail
FINAL EXAM QUESTION 3
OPINION/DISSENT FORMAT (1998)
• Draft the analysis sections of an opinion for the
Supreme Court and of a shorter dissent deciding
whether there has been an unconstitutional taking
of Bart’s property.
– Assume that the record supports the trial court’s
findings of fact.
– Assume that the Supreme Court cases decided prior to
1980 constitute the available precedent.
– The opinions you draft also may discuss the Takings
theorists to the extent you find their work relevant.
FINAL EXAM QUESTION 3
OPINION/DISSENT FORMAT
• Requires You to Describe and Defend
Two Positions
FINAL EXAM QUESTION 3
OPINION/DISSENT FORMAT
• 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
1. Applying Language (Rules, Factors, Elements)
2. Comparing Facts
3. Applying Relevant Policies
Skills: Applying Legal Authority (Line
of Takings Cases) to New Sets of Facts
1.
Applying Language (Rules, Factors, Elements) 
– Must be Consistent with Whole Line, Not Just Individual Case
– Need to Adjust Your Notes/Outline After Each New Case
2. Comparing Facts:
3. Applying Relevant Policies
Skills: Applying Legal Authority (Line
of Takings Cases) to New Sets of Facts
1.
Applying Language (Rules, Factors, Elements) 
2.
Comparing Facts:
–
Often Useful to Compare to Two Cases with Different Results
–
More Like Hadacheck Than Like Mahon Because …
3. Applying Relevant Policies
Skills: Applying Legal Authority (Line
of Takings Cases) to New Sets of Facts
1.
Applying Language (Rules, Factors, Elements) 
2.
Comparing Facts:
3.
Applying Relevant Policies
–
Remember NOT looking at policy used by legislature to create
challenged law
–
Relevant policy addresses what kinds of gov’t interference with
property rights require compensation
FINAL EXAM QUESTION 3
OPINION/DISSENT FORMAT
• 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 Court
(Useful for Justice or Clerk or 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 Examples
• We’ll Discuss at More Length & Do Review
Problems Identifying and Targeting Difficult
Open Legal Qs
Unit Three : Introduction
Relevant Considerations in Takings Cases
Survey of Instincts About What Facts Matter
(2014: 13/94 said all 6 matter)
•
•
•
•
•
•
Ban on Intended Use
% Reduction in Value
Purpose of Regulation
$$$ Amount Reduction
$$$ Amount Left
Return on Investment
2014
90%
88%
63%
59%
56%
39%
2012
90%
90%
54%
62%
43%
26%
Unit Three : Introduction
Relevant Considerations in Takings Cases
Survey Data on Instincts
A
B
Current Use Unlimited Eliminated
% Value Lost
60%
5%
Value Lost
N/A
N/A
Orig.
Just Now
N/A
Purchase
Avg. Rank (1
= Strongest) 3.0/3.0
2.6/2.8
2014/2012
C
D
E
Limited
80%
$80K
N/A
Limited Unlimited
10%
60%
$1M
$120K
N/A 5 Yrs @ 50K/
200K 80K
1.7/1.8
3.6/3.5
4.0/3.8
Hadacheck v. Sebastian (1915)
OXYGEN: DQs 3.06-3.09
Hadacheck v. Sebastian
Background: Growth of Los Angeles
• OIL: Discovered 1876; SoCal produces 25% of
world’s oil in 1920s
• WATER: Aqueduct Completed in 1913
• MOVIE INDUSTRY: Beginning 1910
– Weather/Sunlight
– Proximity to Mexico & Patent Evasion
• POPULATION (~50,000 in 1890)
–
–
–
–
1900 =
1910 =
1920 =
1930 =
~ 102,000
~ 319,000
~ 577,000
~1,238,000
Hadacheck v. Sebastian
DQ3.06: Introduction (Oxygen)
• 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.
Hadacheck v. Sebastian
DQ3.06: Introduction (Oxygen-B)
Challenged Action & Rational Basis Review
• Government action in Hadacheck: (p.106) L.A.
Ordinance banning operation of brickyard in city
• What is the purpose of the action?
• Legitimate (HSWM)?
• Is the action rationally related to the purpose?
Hadacheck v. Sebastian
DQ3.06: Introduction (Oxygen-D)
Effects of the Challenged Action
• Government action in Hadacheck: (p.106) 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?
Hadacheck v. Sebastian
DQ3.06: Introduction (Oxygen)
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: Cal & US Supreme Courts don’t
necessarily accept these claims
Hadacheck v. Sebastian
DQ3.06: Introduction (Oxygen)
• (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; must have
increased sharply at some point
Brickworks Site 11/2012: West Pico &
Crenshaw Blvds., Los Angeles, CA
Hadacheck v. Sebastian
DQ3.06: Introduction (Oxygen-B)
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?
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)
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
– At time, automatic appeal rather than petition for
certiorari
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.107-08)
– p.108: “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
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
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 Govt Power
– Rare Example: Eubank (cited in Miller) complete
delegation of zoning decision to neighbors with no
gov’t oversight
Hadacheck v. Sebastian: Reasoning
DQ3.07
Arbitrariness/Discrimination Claims
• Made Frequently But Hard to Win
• Generally OK 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.)
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!!
Hadacheck v. Sebastian: Reasoning
DQ3.08 (Police Power)
Brief Aside on Nuisance Law
• 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?
• Private Nuisance: Lawsuits by private individuals.
– Defenses: First in Time & Oversensitiveness
• Public Nuisance:
– Statutes banning particular harmful land uses
– Lawsuits for widespread harms to other people’s use of land
(no first in time defense)
Hadacheck v. Sebastian: Reasoning
DQ3.08 (Oxygen-D)
Hadacheck & the Police Power (p.109)
• “[O]ne of most essential powers of government—one
that is the least limitable.” (p.109)
• “A vested interest cannot be asserted against it
because of conditions once obtaining.”
– MEANS?
Hadacheck v. Sebastian: Reasoning
DQ3.08 (Oxygen-d)
Hadacheck & the Police Power (p.109)
• “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
Hadacheck v. Sebastian: Reasoning
DQ3.08 (Oxygen-D)
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?
Hadacheck v. Sebastian: Reasoning
DQ3.08 (Oxygen-D)
Hadacheck & the Police Power: Reinman
• Little Rock bans livery stables; US Sct says OK
• Petitioner: L.A. Ordinance Distinguishable b/c Brickworks 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.
Hadacheck v. Sebastian: Reasoning
DQ3.08 (Oxygen-D)
Hadacheck & the Police Power: Kelso
• San Francisco banned operation of rock quarry
• Cal. S.Ct. said unconstitutional
• Why Distinguishable from Hadacheck ?
Hadacheck v. Sebastian: Reasoning
DQ3.08 (Oxygen-D)
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
Hadacheck v. Sebastian: Reasoning
DQ3.08 (Oxygen-D)
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?
Hadacheck v. Sebastian: Reasoning
DQ3.08 (Oxygen-D)
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?
– Explicitly reserves Q in last paragraph of opinion
– Does note clay still is available & has value
Hadacheck v. Sebastian: Reasoning
DQ3.08 (Oxygen-D)
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.
Hadacheck v. Sebastian: Reasoning
DQ3.08 (Oxygen-D)
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)?