SHOW BOAT
1994 Broadway Cast Album
Music by Jerome Kern
Book & Lyrics by Oscar Hammerstein II
First Produced: 1927
Posted on Course Page:
For Tomorrow (Friday):
• Course Materials for Rest of
• Resume Normal Panel
Unit III (including reading & DQs
Responsibilities
for Friday)
• See Course Page After Class for
• Complete Syllabus &
Specific Assignments
Assignment Sheet
Mahon Analysis: Holmes Majority
Explore Possible Broader Holdings by
1. 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. Opinion
3. Will Yield Possible Rules: DQ3.17
Mahon Analysis: Holmes & Brandeis
DQ3.14: Height Restrictions (Radium)
Measuring Loss of Value
• HMS argument similar to Kelso
– Relevant property here is mineral rights
– Assumes Act reduces value to 0  Taking
• BDS disagrees for two reasons
1. Doesn’t accept that value of mineral rights is 0
2. Need to view mineral rights in context of “value of
all other parts of the land.” (last para. p. 115)
Mahon Analysis: Holmes & Brandeis
DQ3.14: Height Restrictions (Radium)
Measuring Loss of Value
• BDS: Need to view mineral rights in context of
“value of all other parts of 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
Mahon Analysis: Holmes & Brandeis
DQ3.14: Height Restrictions (Radium)
Measuring 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.”
Mahon Analysis: Holmes & Brandeis
DQ3.14: Height Restrictions (Radium)
Measuring Loss of Value
• BDS Example/Analogy: Height Restrictions
– p.115-16: “[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
Mahon Analysis: Holmes & Brandeis
DQ3.14: Height Restrictions (Radium)
Measuring Loss of Value
• Example of “Denominator Q”: How Do You
Decide Relevant Piece of Property to 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 approach
Mahon Analysis: Holmes & Brandeis
DQ3.14: Height Restrictions (Radium)
Measuring Loss of Value
• What is Relevant Piece of Property to Value?
• BDS: Look at whole parcel top to bottom
• HMS: 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
Mahon Analysis: Holmes & Brandeis
DQ3.14: Height Restrictions (Radium)
Measuring Loss of Value
• What is Relevant Piece of Property to Value?
• BDS: Look at whole parcel top to bottom
• HMS: Doesn’t explicitly address BDS approach
QUESTIONS?
Mahon Analysis: Holmes Majority
Explore Possible Broader Holdings by
1. 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. Opinion
3. Will Yield Possible Rules: DQ3.17
Mahon Analysis: Holmes & Brandeis
DQ3.15: Public Nuisance (Krypton)
• HMS: No Public Nuisance in 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
Mahon Analysis: Holmes & Brandeis
DQ3.15: Public Nuisance (Krypton)
• HMS: No Public Nuisance in Case:
• BDS disagrees; characterizes as “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
Mahon Analysis: Holmes & Brandeis
DQ3.15: Public Nuisance (Krypton)
• HMS: No Public Nuisance in Case:
• BDS says Public Nuisance/noxious use:
• Significance if Considered “Public 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
Mahon Analysis: Holmes & Brandeis
DQ3.15: Public Nuisance (Krypton)
• Significance if Considered “Public 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?
Mahon Analysis: Holmes Majority
Explore Possible Broader Holdings by
1. 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. Opinion
3. Will Yield Possible Rules: DQ3.17
Mahon Analysis: Holmes & Brandeis
DQ3.16: Reciprocity (Krypton)
• 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.114)
• Holmes distinguishes:
– involved safety of miners plus:
– “secured an average reciprocity of advantage”
Mahon Analysis: Holmes & Brandeis
DQ3.16: Reciprocity (Krypton)
“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”
Mahon Analysis: Holmes & Brandeis
DQ3.16: Reciprocity (Krypton)
“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 neighboring mine, which doesn’t collapse
– He loses some coal because he can’t mine to property line;
benefits my mine, which doesn’t collapse.
Mahon Analysis: Holmes & Brandeis
DQ3.16: Reciprocity (Oxygen)
“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., 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
Mahon Analysis: Holmes & Brandeis
DQ3.16: Reciprocity (Oxygen)
“Average Reciprocity of Advantage”
• Benefit resulting precisely from fact that others are
restricted in the same way.
• Not just general benefit from the regulation.
• General benefits = “Rainbows”
Mahon Analysis: Holmes & Brandeis
DQ3.16: Reciprocity (Oxygen)
“Average Reciprocity of Advantage”
• 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.
Mahon Analysis: Holmes & Brandeis
DQ3.16: Reciprocity (Oxygen)
“Average Reciprocity of Advantage”
• Benefit resulting precisely from fact that others are
restricted in the same way. (Not just general benefit
from the regulation.)
• BDS: Reciprocity only matters if challenged state law
is conferring a benefit, not if it is preventing harm (top
para. p.117)
• Remember Harm/Benefit Distinction for Penn Central
Mahon Analysis: Holmes & Brandeis
DQ3.16: Reciprocity (Oxygen)
• (top p.117) “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.”
Mahon Analysis: Holmes & Brandeis
DQ3.16: Reciprocity (Oxygen)
• “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.
Mahon Analysis: Holmes & Brandeis
DQ3.16: Reciprocity (Oxygen)
“Average Reciprocity of Advantage”
• Benefit resulting precisely from fact that others are
restricted in the same way. (Not just general benefit
from the regulation.)
• BDS: Reciprocity only matters if challenged state law
is conferring a benefit, not if it is preventing harm.
Questions?
Mahon Analysis: Holmes Majority
Explore Possible Broader Holdings by
1. Looking at ways BDS disagrees with HMS re
a. Diminution in Value (DQ3.14)
b. Public Nuisance (DQ3.15)
c. Reciprocity of Advantage (DQ3.16)
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.113)
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.114)
Means: A regulation is not necessarily
Constitutional just because its purpose
is important.
Mahon Analysis: Holmes Majority
Explore Possible Broader Holdings by
1. Looking at ways BDS disagrees with HMS 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. Opinion
3. Will Yield Possible Rules: DQ3.17
DQ3.17: Mahon Rules& Holding (Oxygen)
POSSIBLE RULES: AT LEAST…
1.
2.
3.
4.
If diminution in value “goes too far” = Taking
If all value gone [and no safety issue]= Taking
If reciprocity of advantage, no Taking
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
DQ3.17: Mahon Rules & Holding :
Balancing Test?
• 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 we saw with publishedGhen brief, published
sources not always reliable
• Let’s look more closely
DQ3.17: Mahon Rules & Holding :
Balancing Test?
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
DQ3.17: Mahon Rules & Holding :
Balancing Test?
• 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
DQ3.17: Mahon Rules & Holding :
Balancing Test?
• 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 longestablished use
Key Language in Majority Opinion in Mahon:
Balancing Test?
“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.” (end of 3d para. p.113)
Language arguably looks like balance
– Public interest is not “sufficient”
– Harm to owner is “so extensive”
Key Language in Majority Opinion in Mahon:
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
Key Language in Majority Opinion in Mahon:
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 (Oxygen)
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
DQ3.17: Mahon Rules& Holding (Oxygen)
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.
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)
Mahon Analysis: Holmes & Brandeis
DQ3.16: Reciprocity (Revisited)
“Average Reciprocity of Advantage”
• Benefit to party burdened by a law resulting precisely
from same burden placed on others.
• Not just general benefits to society from the regulation
(“Rainbow” Benefits)
• Examples
– Plymouth Coal: Coal pillars between mines
– Snow removal by urban stores
– Similar re urban stores & lights on at night to stop burglary
Mahon Analysis: Holmes & Brandeis
DQ3.16: Reciprocity (Revisited)
“Average Reciprocity of Advantage”
Other Examples from Kryptons & Me:
• Residence-Only Rules in Suburban Zoning
– Similar re requirements re preserving trees (Bell)
• Salvage (roughly Criste)
• Requirements that Dogs be on Leash (Lanza)
– Some general benefits to non-dog owners
– Specific benefits to other dog-owners out at same time
Takings Theorists: Richard Epstein
DQ3.20
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
Takings Theorists: Richard Epstein
DQ3.21
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?
Takings Theorists: Richard Epstein
DQ3.21
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?
Probably Paradigm Nuisance
Control Case
Takings Theorists: Richard Epstein
DQ3.21
Would only allow gov’t acts to limit property
rights without compensation in 2 situations:
(1) Nuisance Controls or
(2) Implicit Compensation
Application to Mahon?
Depends on Whether You Accept
Holmes’s Characterization
Takings Theorists: Richard Epstein
DQ3.21
Would only allow gov’t acts to limit property
rights without compensation in 2 situations:
(1) Nuisance Controls or
(2) Implicit Compensation
Application to Airspace Solution
to Hammonds Problem?
Takings Theorists: Richard Epstein
DQ3.21
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 (Rainbow)
Takings Theorists: Richard Epstein
DQ3.21
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.
• I suggested in 2012 that he might agree not to compensate
b/c administrative costs of paying would be so high (identify
each relevant surface owner, value the air rights; set up a
system to pay, etc.)
Takings Theorists: Richard Epstein
DQ3.20
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?
Uranium:
Miller v. Schoene
& DQ3.22-3.25
Miller v. Schoene
DQ3.22: Introduction (Uranium)
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?
Miller v. Schoene
DQ3.22: Introduction (Uranium)
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
Miller v. Schoene
DQ3.22: Introduction (Uranium)
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?
Miller v. Schoene
DQ3.22: Introduction (Uranium)
Gov’t Action = Cedar Rust Act: State Entomologist can order
diseased cedar trees cut down. State pays for removal.
Petitioners’ use of their property:
• Cedar trees must be cut down; can do anything
else with land; can do anything with wood.
– Some value of tree/wood may be lost
– Aesthetic loss could mean loss in land value
I’ll leave Demsetz Takings Story for You
Mid-September Crisis
Mid-October Crisis
Mid-November Crisis
YOUR SCHEDULE
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•
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•
Mon 11/17: L.Comm. Final Project Due
Tue 11/25: Last Day of Classes
Wed 11/26-Sun 11/30: T-Giving Break
Wed 12/3: Elements Exam (AM)
Mon 12/8: Property Exam (PM)
Fri 12/12: Civ Pro Exam (PM)
Tue 12/16: Torts Exam (AM)
YOU HAVE MORE TIME THAN
YOU THINK YOU DO
• End of L.Comm. Frees Up Much Time
• 2-3 Days of Total Focus Before Each Test
• In Between:
– Transition Week: Tue Nov 18-Tue Nov 25
– Thanksgiving Break: Thursday Rest; Other Days Work
• 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 Soon)
– I’ll Always Take Specific Qs
– I Can’t Look at Answers from 113 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 soon on course page
POINTS SPECIFIC TO ELEMENTS
• Grading Sequence: AI, A3, A2, Whale Briefs
• Concerns w Being First Exam
– Most of You Will Be Extremely Wired
– Breathe & Read Carefully
• Take Advantage of Range of Feedback & Info
–
–
–
–
IMs (2-3 More Forthcoming) & Slides
Comments & Best Answers re Old Exam Qs
Enough Time to Reread Key Cases
Review Session Tues Nov 25 (Normal Class Time):
– Exam Technique for Each Q
– A Little More on Substance of Unit III
Peace of Mind Tips
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Now to Dec. 16: You Need to Sleep
Ignore Rumor Mill
Reminder re The First Year “Grade Curve”
September 2017
You Have to Work Both Hard and Efficiently
BUT
YOU CAN DO THIS !