richard epstein approach epstein would only allow gov’t acts to limit property rights without...

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



Application to Hadacheck?

OXYGEN DQ107



Application to Mahon?

OXYGEN DQ107



Application to Airspace Solution to Hammonds

Problem?

OXYGEN DQ106



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: Miller v. Schoene

Gov’t Action?

DQ108-11: Miller v. Schoene

Govt Action: Cedar Rust Act allows state entomologist to order diseased cedar trees cut down

Purpose?


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)?


DQ108-11: Miller v. SchoeneGovt Action: Cedar Rust Act allows state

entomologist to order diseased cedar trees cut down


Legitimate (Furthering Police Powers)? Yes. Helping state economy = WELFARE.

Action Rationally Related to Purpose? Yes.

MEETS MINIMAL RATIONAL BASIS SCRUTINY


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?


DQ108-11: 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?



Govt Action: State entomologist can order diseased cedar trees cut down


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?


DQ108-11: 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



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


CHLORINE DQ109: Miller under Prior Authorities

• Sax?– Arbiter or Enterpriser?

– Controlling Spillover Effects?


• Sax? Paradigm Sax Arbiter Case

• Epstein?– Preventing Public Nuisance?

– Implicit Compensation?


Under Hadacheck & Mahon?

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


• 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?


Uranium DQ110: Eubank v. Richmond


• 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)


CHOOSING YOUR

1L ELECTIVE

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

The most important decision you will make …


The most important decision you will make on Tuesday.


The most important decision you will make on Tuesday. Maybe.


You are picking one course out of the 20 or so electives you will

take in law school.


You are not picking a spouse.

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.,

CHOOSING YOUR 1L ELECTIVE: LOGISTICS

• Registration Time & Significance

• Learn the Procedures

• Wait Lists & Add/Drop

richard epstein approach epstein would only allow gov’t acts to limit property rights without...

Documents

diseased cedar trees

apple trees

cedar rust disease

cedar rust act

schoenegovt action

state entomologist

big apple industrylimits

nuisance controls