Billy Joel The Stranger 1977 Group Assignment 1
Billy Joel, The Stranger (1977) Group Assignment #1 • Ready for Pick-Up • Each of you gets your own copy; Coordinator has original • Info on Comments & Scoring System in IMs • Can ask me Qs as long as you don’t break anonymity
Other 1920’s Cases Village of Euclid v. Ambler Realty Co. (1926) & Nectow v. City of Cambridge (1928) DQ 119: KRYPTON
DQ 119: 1920 s Cases (Krypton) Village of Euclid v. Ambler Realty Co. Thrust of Euclid?
DQ 119: 1920 s Cases (Krypton) Village of Euclid v. Ambler Realty Co. • Upholds facial validity (under police power) of modern comprehensive zoning scheme. • Reserves Q of whether zoning as applied to a particular parcel might be unconstitutional. • Significance to line of cases we’ve read?
DQ 119: 1920 s Cases (Krypton) Village of Euclid v. Ambler Realty Co. • Upholds facial validity (under police power) of modern comprehensive zoning scheme. • Significant deference to legislative choices & linedrawing (in the abstract). Consistent w Miller. Key Language makes clear: That a line is hard to draw doesn’t make it impermissible.
DQ 119: 1920 s Cases (Krypton) Village of Euclid v. Ambler Realty Co. Key Language re Deference to Legislatures: • Long Block Quote (bottom p. 121): “[I]t may … happen that not only offensive or dangerous industries will be excluded, but those which are neither offensive nor dangerous will share the same fate. …
DQ 119: 1920 s Cases (Krypton) Village of Euclid v. Ambler Realty Co. Key Language re Deference to Legislatures: • Long Block Quote (bottom p. 121): “… But this … happens in respect of many practice‑forbidding laws which this court has upheld, although drawn in general terms so as to include individual cases that may turn out to be innocuous in themselves. The inclusion of a reasonable margin, to insure effective enforcement, will not put upon a law … the stamp of invalidity. …
DQ 119: 1920 s Cases (Krypton) Village of Euclid v. Ambler Realty Co. Key Language re Deference to Legislatures: • Long Block Quote (bottom p. 121): “… Such laws may also find their justification in the fact that, in some fields, the bad fades into the good by such insensible degrees that the two are not capable of being readily distinguished and separated in terms of legislation. ”
DQ 119: 1920 s Cases (Krypton) Nectow v. City of Cambridge Thrust of Nectow?
DQ 119: 1920 s Cases (Krypton) Nectow v. City of Cambridge • Finds unconstitutional the application of a zoning scheme to a particular parcel. • Answers Q reserved in Euclid. • Why was application here unconstitutional?
DQ 119: 1920 s Cases (Krypton) Nectow v. City of Cambridge • Finds unconstitutional the application of a zoning scheme to a particular parcel. • Factual findings that application here … a) Eliminated profitable use of lot *AND* b) Not in furtherance of police power interests • Significance to line of cases we’ve read?
DQ 119: 1920 s Cases (Krypton) Nectow v. City of Cambridge • Finds unconstitutional the application of a zoning scheme to a particular parcel where a) Eliminated profitable use of lot *AND* b) Not in furtherance of police power interests • Pretty Trivial Significance: Very Few Cases Where Both (a) and (b) True.
Other 1920’s Cases Village of Euclid v. Ambler Realty Co. (1926) & Nectow v. City of Cambridge (1928) Questions?
Takings Theorist #3: Frank Michelman Today: DQ 120 -21 (me) DQ 122 (oxygen)
Takings Theorists: Frank Michelman DQ 120 -21 Michelman = Cost/Benefit Analysis
Takings Theorists: Frank Michelman DQ 120 -21 Michelman = Cost/Benefit Analysis of Decision Whether to Compensate • Once state has decided to regulate, there’ll be winners & losers. Should you compensate the losers?
Takings Theorists: Frank Michelman DQ 120 -21 Michelman = Cost/Benefit Analysis of Decision Whether to Compensate • Once state has decided to regulate, there’ll be winners & losers. Compensate losers if … – Costs of Compensating less than – Costs of Not Compensating
Takings Theorists: Frank Michelman DQ 120 -21 Michelman = Cost/Benefit Analysis of Decision Whether to Compensate • Once state has decided to regulate, there’ll be winners & losers. Compensate losers if … – Costs of Compensating (= Settlement Costs) less than – Costs of Not Compensating (= Demoralization Costs)
Takings Theorists: Frank Michelman DQ 120 -21 Cost of Compensating = Settlement Costs: Includes • Cost of paying claimant & everyone like claimant • Costs of administering payment scheme – Focus on costs of processing; valuing – E. g. , Paying Off All Airspace Owners – E. g. , Damages (Price-Fixing) = 8% per pair of blue jeans purchased in Calif. For 10 Years
Takings Theorists: Frank Michelman DQ 120 -21 Cost of Compensating = Settlement Costs: Likely Highest When • Lots of claimants • Claims intangible or otherwise hard to value • E. g. , Again, Paying Airspace Owners
Takings Theorists: Frank Michelman DQ 120 -21 Cost of Not Compensating = Demoralization Costs: Includes • Upset to losing party & everyone similar • Upset to sympathizers • We Care b/c “Upset” Can Manifest As … – Disincentives to future investment – Lack of faith in gov’t & resulting behavior (refusal to pay taxes or to obey other laws)
Takings Theorists: Frank Michelman DQ 120 -21 Demoralization Costs: Focus on Likely Public Reaction
Takings Theorists: Frank Michelman DQ 120 -21 Cost of Not Compensating = Demoralization Costs: Likely Highest When • Many people view gov’t act as unfair/arbitrary • Relatively few people bear very high burdens not seen as relating to their own behavior – Typical of Very Repressive Regimes Elsewhere to Deliberately Demoralize People This Way
Takings Theorists: Frank Michelman DQ 120 -21 Michelman = Cost/Benefit Analysis of Decision Whether to Compensate • Do Rough Comparison of Settlement Costs (SC) & Demoralization Costs (DC) – If SC>DC, no compensation (often widely dispersed small losses) – If DC>SC, pay compensation (often small group of losers viewed as unfairly burdened)
Takings Theorists: Frank Michelman DQ 120 -21 Michelman = Cost/Benefit Analysis of Decision Whether to Compensate • Once state has decided to regulate, there’ll be winners & losers. Compensate losers if … – Costs of Compensating (= Settlement Costs) < – Costs of Not Compensating (= Demoralization Costs) QUESTIONS?
Takings Theorists: Frank Michelman DQ 120 -21 Role of Efficiency Gains • Efficiency Gains are the net benefits of implementing the regulation in question. • Result of cost/benefit analysis legislature should have done in order to decide to pass the regulation
Takings Theorists: Frank Michelman DQ 120 -21 • Efficiency Gains = net benefits of implementing regulation in question. E. g. , in Hadacheck: – Gains (Harm Prevented) b/c no brickyards (health; property values) LESS – Costs of Regulation (Harm to brick industry from having to shut down and relocate; harm from increase in cost of bricks; costs of implementation and enforcement)
Takings Theorists: Frank Michelman DQ 120 -21 • Efficiency Gains = net benefits of implementing regulation in question. E. g. , in Miller: – Gains (Harm Prevented) to apple orchards & state economy b/c cedar rust limited LESS – Costs of Regulation (Harm to cedar owners & neighbors; costs of implementation and enforcement)
Takings Theorists: Frank Michelman DQ 120 -21 Role of Efficiency Gains • Efficiency Gains are the net benefits of implementing the regulation in question. • If Efficiency “Gains” are negative, legislature shouldn’t pass regulation at all.
Takings Theorists: Frank Michelman DQ 120 -21 Role of Efficiency Gains • Efficiency Gains are net benefits of implement-ing the regulation in question. If negative, legislature shouldn’t pass regulation at all. – Important: Ordinarily, not part of Takings analysis. – Under Euclid & Miller, assessing efficiency gains is job for state legislature, not fed’l court.
Takings Theorists: Frank Michelman DQ 120 -21 Role of Efficiency Gains • Even if Efficiency Gains are positive, but less than both Settlement Costs and Demoralization Costs, in theory, shouldn’t proceed with regulation (net loss to society).
Takings Theorists: Frank Michelman DQ 120 -21 Role of Efficiency Gains • If Efficiency Gains less than both Settlement Costs and Demoralization Costs, in theory, shouldn’t proceed with regulation. – Could suggest this in a particular Takings case if both SC & DC seem very high, but very hard to know with precision. – Really a legislative Q, so shouldn’t be central to Takings Analysis
Takings Theorists: Frank Michelman DQ 120 -21 Role of Efficiency Gains • Efficiency Gains are the net benefits of implementing the regulation in question. – If negative, legislature shouldn’t pass regulation at all. – If less than both Settlement Costs and Demoralization Costs, in theory, shouldn’t proceed with regulation. – Primarily legislative Qs; not part of judicial Takings analysis. QUESTIONS?
Takings Theorists: Frank Michelman DQ 122 (oxygen) Fairness Principle Explain in your own words.
Takings Theorists: Frank Michelman DQ 122 (oxygen) Fairness Principle • OK not to compensate, if affected parties ought to understand how not compensating in similar cases probably is more beneficial in long run. • Note connection to work of John Rawls on justice: View before you know who in particular will be affected.
Takings Theorist #3: Frank Michelman Friday: Application of Theory DQ 123 (oxygen: apply to earlier cases & “airspace solution”) DQ 126 (uranium: apply to P. C. )
Penn Central: DQ 125 -26 (Uranium) Apply Prior Authority to PC Facts • To Practice Using Earlier Cases/Theorists • To Further Understand Earlier Cases/Theorists • To See What Arguments Lawyers Might Have Made to the US SCt When It Decided PC • Like Treating PC Facts as Exam Question
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 – Setting Rules for Lots of Cases While Deciding One Case – Can Choose to Affirm or Modify Precedent; Must Defend • Must Address One or More Difficult Unresolved Qs – E. g. , Denominator Q – E. g. , Line between Hadacheck and Mahon
FINAL EXAM QUESTION 3 OPINION/DISSENT FORMAT • Must Show that You Understand Range of Relevant Arguments Arising from Line of Cases • Requires Clear Sense of How Structure of Cases Map onto Problem
FINAL EXAM QUESTION 3 Case Gov’t Act Affected Landowner Affected 3 d Parties Hadacheck LA Bans Brickyard Os Neighbors Mahon PA Bans Undermining Coal Cos. Miller VA Cedar Rust Cedar Tree Act Os Surface Os Apple Orchard Os
FINAL EXAM QUESTION 3 Case Gov’t Act Affected Landowner Affected 3 d Parties Hadacheck LA Bans Brickyard Os Neighbors Mahon PA Bans Undermining Coal Cos. Surface Os Miller VA Cedar Rust Cedar Tree Os Act Apple Orchard Os Penn Central NYC Historic Preservation Tourist Biz; History Buffs Os of Historic Buildings
Penn Central: DQ 125 (Uranium) Apply Prior Cases to PC Facts What arguments can you make about Penn Central from Hadacheck, Mahon and Miller?
Penn Central: DQ 125 (Uranium) Arguments about Penn Central from Hadacheck, Mahon and Miller include: • • • Stopping public nuisance ? Furthering health or safety? Choice between conflicting land uses? Reciprocity? Interference with contract rights?
Penn Central: DQ 125 (Uranium) Arguments about Penn Central from Hadacheck, Mahon and Miller include: • • Stopping public nuisance ? No Furthering health or safety? No Choice between conflicting land uses? No Reciprocity? Not ordinarily for historic buildings; might be some benefit in tourist $$$ for some (Grand Central Stn, Radio City, etc. ) • Interference with contract rights? No. Regulation preceded contract.
Penn Central: DQ 125 (Uranium) Arguments about Penn Central from Hadacheck, Mahon and Miller include: • Loss in Property Value = “Too Far”? – – Losing $2 Million/year BUT retains value of building + reasonable rate of return Gets TDRs + tax breaks Would need better data plus discussion re “too far” • Value to Zero?
Penn Central: DQ 125 (Uranium) Arguments about Penn Central from Hadacheck, Mahon and Miller include: • Value to Zero? – If look at whole parcel, NO – If look at air rights alone, MAYBE • City might allow use of air rights if better design • TDRs may allow moving value of air rights to new site
- Slides: 46