THE THREEPENNY OPERA THE THREEPENNY OPERA (1928)(1928)

Book & Lyrics by Bertholdt BrechtMusic by Kurt Weill (1928)

English Translation by Marc Blitzstein

1954 Broadway Cast Album1954 Broadway Cast Album

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Brandeis Response to Holmes re Public Nuisance

Holmes sees no Public Nuisance:• Only one house; not common or public

damage

• Not safety issue: notice

• Shouldn’t protect people who took risk of only purchasing surface rights

BDS Response re Public Nuisance

Holmes sees no Public Nuisance:

Brandeis disagrees; characterizes as stopping noxious use:

• Statute covers public buildings, roads, etc. as well as houses

• Notice not enough to protect public interest in safety

• Should defer to legislature on need for safety measure

• Interest can be “public” even if some private people benefit

BDS Response re Public Nuisance

Holmes sees no Public Nuisance:

Brandeis sees as stopping noxious use

Consequences of Public Nuisance:• BDS: Can regulate to prevent public

nuisance even if deprives O of profitable use

• HMS doesn’t disagree

BDS on Reciprocity of Advantage

Only matters if conferring benefit, not if preventing harm (top p.94)

• Remember Harm/Benefit Distinction for Penn Central

BDS on Reciprocity of Advantage

“There was no reciprocal advantage to the owner prohibited from using his .. brickyard, in [Hadacheck] … 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.”

BDS on Reciprocity of Advantage

“There was no reciprocal advantage to the owner prohibited from using his .. brickyard, in [Hadacheck] … 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.”

NOT what Holmes means by Reciprocity of Advantage!!

Important Language in Majority

“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.”

-- (top p.90)

Means: Not every loss in value = Taking

Important Language in Majority

“[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 p.91)

Means: A regulation is not necessarily constitutional just because purpose is important

Important Language in Majority (Balancing)

What Balance Looks Like: • Careful evaluation of State’s interest

• Careful evaluation of harm to property owner

• Discussion of which is more significant & why

Important Language in Majority (Balancing)

Hadacheck:• Language re progress might suggest

balance• But not what case does:

– No discussion about importance of brickmaking– Discussion of state’s interest very general

(police powers v. specific health concerns)

• Better read of language: A regulation is not a taking just because it interferes with an existing long-established use

Important Language in Majority

“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 2d para. p.90)

Important Language in Majority

“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 2d para. p.90)

Language arguably looks like balance– public interest is not sufficient– harm to owner is so extensive

Important Language in Majority

“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 2d para. p.90)

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

Important Language in Majority

“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 2d para. p.90)

Be careful if you use this passage to support balancing; later cases don’t pick up on

OXYGEN

DQ105: What other rules or principles can you derive from

the majority opinion in Mahon?

DQ105: Rules/Principles from Mahon

AT LEAST:

1. Look at diminution in value; if “goes too far” = Taking

2. If all value gone [and no safety issue]= Taking

3. If reciprocity of advantage, no Taking

OXYGEN: DQ105 Effect of Mahon on Hadacheck?

• Regulation OK if under Police Power?

• Reg. OK if Preventing Public Nuisance?

• Reg. OK if Protecting Health/Safety

• Argument from Kelso: OK if Value Left

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

Richard Epstein Approach

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

(2) implicit compensation

OXYGEN DQ107: Application to:

• Hadacheck?

• Mahon?

• Airspace Solution?

Richard Epstein Approach

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

(2) implicit compensation

OXYGEN DQ106: Strengths & weaknesses of this approach?

Miller v. Schoene (1928)

Govt 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

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• Some value of tree/wood may be lost• Aesthetic loss could mean loss in land value