richard epstein approach epstein would only allow gov’t acts to limit property rights without...
TRANSCRIPT
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
OXYGEN DQ107
Epstein: No Taking in 2 situations: (1) nuisance controls -OR-
(2) implicit compensation
Application to Hadacheck?
OXYGEN DQ107
Epstein: No Taking in 2 situations: (1) nuisance controls -OR-
(2) implicit compensation
Application to Mahon?
OXYGEN DQ107
Epstein: No Taking in 2 situations: (1) nuisance controls -OR-
(2) implicit compensation
Application to Airspace Solution to Hammonds
Problem?
OXYGEN DQ106
Epstein: No Taking in 2 situations: (1) nuisance controls -OR-
(2) implicit compensation
Strengths & Weaknesses of this Approach
DQ108-11: Miller v. SchoeneFEATURING CHLORINES
• Stone, Scott• Chughtai-Harvey,
Alexandra• Sullivan, Kelly• Cohen, Scott• Reed, Evan• Hethcoat, Tad
• Collett, Andrea• Darville, Renée• Tomlinson, Trey• Moskal, Tommy• Pelleyá, Nico
DQ108-11: Miller v. Schoene
Govt Action: Cedar Rust Act allows state entomologist to order diseased cedar trees cut down
Purpose?
DQ108: Miller v. Schoene
DQ108-11: Miller v. SchoeneGovt Action: Cedar Rust Act allows state
entomologist to order diseased cedar trees cut down
Purpose: save apple trees from spread of cedar rust disease; help big apple industry
Legitimate (Furthering Police Powers)?
DQ108: Miller v. Schoene
DQ108-11: Miller v. SchoeneGovt Action: Cedar Rust Act allows state
entomologist to order diseased cedar trees cut down
Purpose: save apple trees from spread of cedar rust disease; help big apple industry
Legitimate (Furthering Police Powers)? Yes. Helping state economy = WELFARE.
Action Rationally Related to Purpose? Yes.
MEETS MINIMAL RATIONAL BASIS SCRUTINY
DQ108: Miller v. Schoene
DQ108-11: Miller v. SchoeneGovt Action: State entomologist can order diseased
cedar trees cut down Purpose: save apple trees from spread of cedar rust
disease; help big apple industry
Limits on petitioners’ use of their property?
DQ108: Miller v. Schoene
DQ108-11: Miller v. SchoeneGovt Action: State entomologist can order diseased
cedar trees cut down Purpose: save apple trees from spread of cedar rust
disease; help big apple industry
Limits on petitioners’ use of their property? Cedar trees must be cut down
Remaining Uses?
DQ108: Miller v. Schoene
DQ108-11: Miller v. Schoene
Govt Action: State entomologist can order diseased cedar trees cut down
Purpose: save apple trees from spread of cedar rust disease; help big apple industry
Limits on petitioners’ use of their property? Cedar trees must be cut down
Remaining Uses? Can do anything with land; anything with wood
Harm to the petitioners?
DQ108: Miller v. Schoene
DQ108-11: Miller v. SchoeneGovt Action: State entomologist can order diseased cedar
trees cut down Purpose: save apple trees from spread of cedar rust disease;
help big apple industryLimits on petitioners’ use of their property? Cedar trees
must be cut downRemaining Uses? Can do anything with land; anything with
wood
Harm to the petitioners? • Some value of tree/wood may be lost• Aesthetic loss could mean loss in land value
DQ108: Miller v. Schoene
DQ108-11: Miller v. Schoene
Procedural Posture:
• Order from state official to cut trees
• Appealed to state Circuit Court, which aff’d order;
• Virginia SCt aff’d: no viol. of U.S. Const
• Writ of Error to US SCt
DQ108: Miller v. Schoene
CHLORINE DQ109: Miller under Prior Authorities
• Sax?– Arbiter or Enterpriser?
– Controlling Spillover Effects?
CHLORINE DQ109: Miller under Prior Authorities
• Sax? Paradigm Sax Arbiter Case
• Epstein?– Preventing Public Nuisance?
– Implicit Compensation?
CHLORINE DQ110: Eubank v. Richmond
• Regulation: Land use decision required if requested by 2/3 of n-bors
• S.Ct. in Eubank says unconstitutional– apparently problem having some property
owners dictate rules for others– pretty clear possibility of unfair/arbitrary result
• Why did pet’r argue it was relevant to Miller?
Uranium DQ110: Eubank v. Richmond
• Regulation: Land use decision required if requested by 2/3 of n-bors
• S.Ct. in Eubank says unconstitutional
• Why did pet’r argue it was relevant to Miller? – Gov’t action triggered by request of neighbors
• What was Court’s Response?
CHLORINE DQ110: Eubank v. Richmond
Uranium DQ110: Eubank v. Richmond
• Regulation: Land use decision required if requested by 2/3 of n-bors
• S.Ct. in Eubank says unconstitutional• Why arguably relevant to Miller?
– Gov’t action triggered by request of neighbors
• SCt: Decision in Miller not by n-bors– Gov’t official decides– subject to judicial review
• As in Hadacheck, arbitrariness claim made & rejected (not our issue)
CHLORINE DQ110: Eubank v. Richmond
SPRING 2009SECTION E
• Contracts (Rosen)• Criminal Procedure
(Bascuas)• U.S. Constitutional
Law I (Casebeer)• LRW II
•Elective
SECTION G• Contracts (Rosen)• Criminal Procedure
(Stotzky)• U.S. Constitutional
Law I (Hill)• LRW II
•Elective
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: OPTIONS
• Analysis of Evidence (Anderson/Twining)
• Environmental Law (Williamson)
• European Union Law (Bradley)
• Jurisprudence (Froomkin)
• Substantive Criminal Law (Mourer)
CHOOSING YOUR 1L ELECTIVE: CONSIDERATIONS
• Past Student Evaluations• Method of Evaluation• Size/Operation of Class• Prerequisite/Intro to Other Courses• Likely to Be Offered Later?• Upper Level Students in Room?• Furthering Career Goals
ANALYSIS OF EVIDENCE (ANDERSON/TWINING)Inferences & Proof of Facts
• Evaluation: Group Projects & Exam• Mostly Run as 2 Classes of 40-50• Can take Litigation Skills • Not Usually Offered as Upper Level• No Upper Level Students in Room• Especially helpful for litigation, but analytic
skills help everywhere; some intro to evidence rules on bar exam (but most students take Evidence)
Environmental Law (Williamson)
Complex Statute; Not Trees & Squirrels• Midterm & Final Exam• Likely in 50-75 range; Traditional Class• Prereq/Intro to Upper Level Environmental• Offered Every Year for Upper Level• Upper Level Students in Room• Good practice with modern statutes; can
use directly for public interest, gov’t, or business advising
EUROPEAN UNION LAW (BRADLEY)
Structure & Operation of European Union• Final Exam• Likely Large Class; Traditional• Intro to Public & Pvt. Int’l Law; Not Prereq• Rarely Offered as Upper Level Course• No Upper Level Students in Room• Interest in Int’l or Business Areas; Good
Synergy with US Con Law I
JURISPRUDENCE (FROOMKIN)
Intro to Legal Philosophy
• Take Home Exam; Lot of Participation
• Likely Smallest; Lot of Discussion/Blogs
• Helpful in General Way to Many Courses
• Often Offeredto Upper Level Students
• Upper Level Students in Room
• Helps You Understand Whole Enterprise
SUBSTANTIVE CRIMINAL LAW (MOURER)
Elements of Crimes & Defenses • Final Exam• Likely Largest Class/Traditional• Intro/Prereq to Upper Level Crim Electives• Offered Every Semester for Upper Level• No Upper Level Students in Room• Many Students Go Into Criminal Law, But
Comes Up in Every Area of Practice; On All Bar Exams; Good Synergy with Crim. Pro.,