MUSIC: Alberta HunterCompleted Recorded Works

Vol. 2: 1923-24

Candy on Table Available on First in Time Basis

Now Available on Course Page

Old Exam Questions:

Qs 1-2: Comments/Model Answers (exc. 2008)

Question 3: Questions

Exam Technique Workshops

• Tomorrow 12:40-1:50 Room F209

• Thursday 12:40-1:50 Room F209• Not Substantially Different from Prior

Years’ Versions Available Online on Academic Achievement Website

• One of the Sessions will be Taped and Posted

Epstein & Intro to Millerfeaturing ZINC:

• Koslow, Ian

• Wagner, Don

• Weegmann, Jared

• Fasano, Mike

• Allen, Greg

• Menocal, Mario

• Joyner, Marc

• Wales, Justin

• Barker, Brandon

• McGivern, Liam

ZINC DQ107

Epstein: No Taking in 2 situations: (1) nuisance controls -OR-

(2) implicit compensation

Application to Mahon?

ZINC DQ107

Epstein: No Taking in 2 situations: (1) nuisance controls -OR-

(2) implicit compensation

Application to Airspace Solution to Hammonds

Problem?

ZINC DQ106

Epstein: No Taking in 2 situations: (1) nuisance controls -OR-

(2) implicit compensation

Strengths & Weaknesses of This Approach

1920s Jazz: Alberta Hunter

DQ108-11: Miller v. Schoene

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

Purpose?

DQ108: Miller v. Schoene (ZINC)

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

Legitimate (Furthering Police Powers)?

DQ108: Miller v. Schoene (ZINC)

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

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

Action Rationally Related to Purpose? Yes.

MEETS MINIMAL RATIONAL BASIS SCRUTINY

DQ108: Miller v. Schoene (ZINC)

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?

DQ108: Miller v. Schoene (ZINC)

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?

DQ108: Miller v. Schoene (ZINC)

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 (ZINC)

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 (ZINC)

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 (same last step as Hadacheck & Mahon)

DQ108: Miller v. Schoene

ZINC DQ109: Miller under Prior Authorities

• Sax?– Arbiter or Enterpriser?

– Controlling Spillover Effects?

ZINC DQ109: Miller under Prior Authorities

• Sax? Paradigm Sax Arbiter Case

• Epstein?– Preventing Public Nuisance?

– Implicit Compensation?

ZINC DQ109: Miller under Prior Authorities

Under Hadacheck & Mahon?

DQ110-11 & Euclid & Nectow featuring Calcium

• Rhyne, Miranda• Ansah, Martin• Stevenson,

Anne• Regina, Michael• Lifshitz, Tal

• Olsen, TJ• Figueroa, Yaneris• Bucci, Donato• Bubtana, Najla• Elchahal, Farrah

Calcium DQ110: Eubank v. Richmond

• Regulation: Land use decision required if requested by 2/3 of neighbors

• 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?

Calcium DQ110: Eubank v. Richmond

• Regulation: Land use decision required if requested by 2/3 of neighbors

• 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?

Calcium DQ110: Eubank v. Richmond

• Regulation: Land use decision required if requested by 2/3 of neighbors

• 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 neighbors– Gov’t official decides– subject to judicial review

• As in Hadacheck, arbitrariness claim made & rejected (not our issue)

Miller & Sax

Third para. p.98:

“… the state was under the necessity of making a choice between the preservation of one class of property and that of the other wherever both existed in dangerous proximity. …

Miller & Sax

… It would have been none the less a choice if, instead of enacting the present statute, the state, by doing nothing, had permitted serious injury to the apple orchards within its borders to go on unchecked….

Miller & Sax

… When forced to such a choice the state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public.”

Miller & Sax

NOTE: Choice between two conflicting land uses (= arbiter case) is OK even if state has a very strong interest in choosing one over the other. Can’t be true that the better the state’s reasons, the more likely it has to pay compensation.

Miller & Sax

… When forced to such a choice the state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public.”

Miller & Sax

NOTE: Court allows state legislature to make this choice. Court does not say it is the job of federal courts to make it.

Miller & Sax

Case says choice here is “between the preservation of one class of property and that of the other….”–NOT between any two private

interests

–NOT between public and private interests

Sounds like Sax Arbiter Cases

Miller & Hadacheck & MahonChoice “between the preservation of one

class of property and that of the other….”– NOT between public and private interests

–BUT also says: “[W]here the public interest is involved, preferment of that interest over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property.” (citing Hadacheck).

Miller & Hadacheck & Mahon“[W]here the public interest is involved,

preferment of that interest over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property.” (citing Hadacheck)

Unclear how this fits with Mahon, which Miller ignores entirely.