ELEMENTS B1 & B2 POWER POINT SLIDES Class #13 Wednesday, September 14, 2016 Thursday, September 15, 2016

MUSIC : THE MAMAS & THE PAPAS 16 of Their Greatest Hits ( ) (Left Speaker ONLY) Friday Coverage 1)Intro to Manning –URANIUM: DQ1.43 & Start of Brief (Statement & Posture) –RADIUM: DQ1.44 2)Completion of Demsetz (as time allows)

Transition : Shaw to Escape ( including GWA #1) “Abandonment” of Property & Technical (Legal) Meanings of Terms

Technical Meaning of Terms When people use a word or phrase in a specialized context, they often intend to employ only the meaning that is most relevant to, or most commonly used in, that context. – Might be one of several common meanings. – Might be different than meanings used in other contexts. Can call the definition that best fits a specialized context the “technical meaning” of the word or phrase, even when the context is not especially technical or scientific.

Technical Meanings of Terms Three contexts in which people commonly use “technical meanings” of ordinary words/phrases: 1.Sports Reporting 2.Cooking 3.Law. Use of technical meanings so familiar that you probably take it for granted in the contexts of sports reporting and/or cooking. An example …

To “WHIP” Technical Meanings of Terms: To “WHIP” Webster’s lists 15+ definitions of this verb including – “ To strike forcefully with a slender lithe instrument, especially as a punishment” – “To move very quickly” (e.g., whip across a highway) – “To drive or urge on (as if using a whip) – “To stir up or incite” (e.g., whip a crowd into a frenzy ) Obviously derived from uses of the object called a “whip” consisting of a handle and a lash.

Terms with Technical Meanings: To “WHIP” BUT Webster’s lists 15+ definitions of this verb BUT whipped we know must be: When a sports reporter says that “the 49ers whipped the Rams,” we know from the context that no actual whips were used. Here, the relevant definition must be: “To overcome or defeat decisively.”

Terms with Technical Meanings: To “WHIP” BUT Webster’s lists 15+ definitions of this verb BUT whip we know must be: When a cookbook instructs us “to whip a cup of cream,” we know from the context that we don’t need to go buy a whip. Here, the relevant definition must be: “To beat into a froth using a utensil like a whisk or fork.”

Terms with Technical (Legal) Meanings For your work in law, look out for situations where common words have technical legal meanings (like “duty” in Torts or “consideration” in Contracts) and make sure you memorize those meanings and use them where appropriate. E.g., …

To “Abandon” Property Terms with Technical (Legal) Meanings To “Abandon” Property Webster’s definitions of the verb “abandon” include: – “to give up to the control or influence of another person” – “to withdraw protection, support, or help from” – “to give oneself over unrestrainedly” People commonly use the term very loosely: “He’s abandoned me!” can mean things like “forgotten about” or “ignores” or “favors someone else.”

To “Abandon” Property Terms with Technical (Legal) Meanings To “Abandon” Property “to give up with the intent of never again claiming a right or interest.” Definitions of “abandon” include, “to give up with the intent of never again claiming a right or interest.” Use this definition in Elements, emphasizing Intentional decisions (v. careless or negligent acts); Meant to be permanent (v. temporary or of uncertain duration); and (Ideally) Clearly shown by a specific action or statement.

LOGISTICS: Assignment #1 Generally Submission due Sat 2 pm Non-Coordinators send work to Coordinators by Friday 2 am (effectively late Thursday night) unless group agrees otherwise. Coordinators –Get Pseudonyms Before End of School Day Friday –Double-Check Formatting Instructions Before Finalizing

LOGISTICS: Assignment #1 Common Qs:Common Qs: –Length? –Length? (I’ve No Set Ideas; Thorough yet Concise) –How Literal? –How Literal? (Very!! Cf. Reality TV Challenges) Questions Now?Questions Now? I’ll Take Other Questions … –by through Tuesday Night 9/20 –In Class on Tuesday and Wednesday next week. –Not at All After B1 Class Wednesday 9/21 (So Double- Check Instructions Before That)

RING STORY (10/78-1/84)

Introduction to Escape Generally: Difficult for an Owner to Lose Property Rights Accidentally Return of the Ring We Don’t Presume Abandonment of Property from Carelessness See Technical Definition Above Laptops in Library

Introduction to Escape Unit IB: When Does Owner of Escaped Wild Animal Lose Property Rights? – Why Different from Ring? – What Facts are Relevant?

Introduction to Escape : Terminology Original Owner (OO) Original Owner (OO) (can’t just say “owner” b/c unclear who owns animal after escape) Finder (F) Finder (F) lose retain acquire Does OO lose or retain property rights in the escaped animal? (v. Unit IA: Did pursuer acquire property rights to animal)

OXYGEN Intro to Escape : DQ 1.41: OXYGEN Why should an OO ever lose property rights in an escaped wild animal? Why might we treat an escaped animal differently from a ring? Let’s Get Some Ideas on the Table

OXYGEN Intro to Escape : DQ 1.41: OXYGEN Can you think of a circumstance where it would be unfair to return an escaped animal to original owner? I’m asking here re layperson’s sense of right & wrong/fairness (not legal doctrine).

OXYGEN Intro to Escape : DQ 1.42: OXYGEN Arguments from Prior Authority re Ownership of Escaped Animals From Language in Cases? – Although clearly nothing directly targeting – Until something on point, look where you can – I’ve added the next two slides with examples

Introduction to Escape : DQ 1.42 Sample Arguments from Language in Prior Case re Ownership of Escaped Animals Shaw: – Once animals are confined, need to maintain reasonable precautions against escape. Might suggest that if you take reasonable precautions, might retain ownership even if animal escapes (per Pita B1 & Dubberly B2). – Requirement that you maintain control in a way that shows no intent to abandon might mean you can retain property in escaped animals if evidence of no intent to abandon – BUT Thrust of case seems to assume that once fish escape from net, net-owner loses property rights.

Introduction to Escape : DQ 1.42 Sample Arguments from Language in Prior Case re Ownership of Escaped Animals Pierson: Mortal wounding by one not abandoning pursuit  Property (suggests property rights can be lost at some point by not following up/pursuing) Pierson/Liesner: Depriving animal of natural liberty  Property (suggests property rights can be lost if animal returns to natural liberty).

OXYGEN Intro to Escape : DQ 1.42: OXYGEN Arguments from Prior Authority re Ownership of Escaped Animals From Policies We’ve Discussed? – Rewarding Useful Labor/Investment? What Labor/Investment by OO or by F Might We Want to Reward/Protect?

OXYGEN : Intro to Escape : DQ 1.42: OXYGEN : Rewarding Useful Labor/Investment? Labor of OO? Acquisition: Investment in purchase or capture Acquisition: Investment in purchase or capture While Owned: In confining, maintaining, training While Owned: In confining, maintaining, training After Escape: In pursuit After Escape: In pursuit Labor of F? Acquisition: In capturing Acquisition: In capturing While Owned: In confining, maintaining, training While Owned: In confining, maintaining, training

OXYGEN Intro to Escape : DQ 1.42: OXYGEN Arguments from Prior Authority re Ownership of Escaped Animals From Policies We’ve Discussed? – From Wanting to Provide Certainty?

OXYGEN : Intro to Escape : DQ 1.42: OXYGEN : Wanting to Provide Certainty? Certainty to OO? – No “Perfect Cage Rule”: Don’t have to take ridiculous steps to keep from escaping? – OO’s aware of what is necessary to retain O-Ship? Certainty to Decision-Maker: Rule is Easy to Apply? Very Easy: You win if you can prove you are OO Very Easy: F always wins” Certainty to Finder? (we’ll come back to) – Includes certainty to F re existence of prior claim to found animal (per Fontalvo B2)

OXYGEN Introduction to Escape : DQ 1.42: OXYGEN Going Forward We’ll Look at What Our Four Escape Cases Really Seem to Care About (as Opposed to These Hypothetical Lists)

Intro to Escape : Mullett & Manning Our First Possession Cases (Pierson-Liesner-Shaw) All Ask Similar Legal Qs First 2 Escape Cases Very Different from Each Other: – Mullett: Applies English Common Law Rule to Escaped Sea Lion – Manning: Fact-Specific Result (Not Referencing English Common Law Rule) for Escaped Canary

Intro to Escape : Mullett & Manning The First Two Escape Cases Use Very Different Approaches BUT they are the only two cases in the entire course where the animals aren’t killed.

Shaw  Demsetz: Intro to Externalities, Cont’d KRYPTON DQ 1.29 & URANIUM DQ1.31

EXTERNALITIES Costs or benefits external to a decision- making process – Must be with reference to particular decision or activity. – Helpful to start by identifying decision-maker

EXTERNALITIES Costs or benefits external to a decision-making process – Must be with reference to particular decision/activity – Helpful to start by identifying decision-maker considers If decision-maker considers a cost, but chooses to absorb it, not an externality – E.g., Thomas considers own exertion necessary to take from nets, but may decide to take anyway

Krypton STATE v. SHAW DQ1.29(a): Krypton T Likely to Consider Own Exertions/Cost of Equipment, etc. Benefits to Dependents Benefits to Likely Purchasers Threats of Self-Help by Net- Owners (if any) Some Likely Externalities Costs to Net-Owners, Their Dependents, Their Purchasers Costs to Net Manufacturers Effect on Ecosystem (note might be benefits if “theft” discourages use of big nets) Benefits to Suppliers of Substitutes

EXTERNALITIES Costs or benefits external to a decision-making process – With reference to particular decision or activity – Helpful to start by identifying decision-maker Examples from outside this problem? – Me not trimming my tree – Volunteers with other examples?

Krypton STATE v. SHAW DQ1.29(a) Krypton Questions on DQ1.29(a) or Externalities?

STATE v. SHAW DQ1.29(b) Assume Net-Owners have no enforceable property rights in fish caught in their nets: If the fish are worth more to the net-owners than to Thomas, presumably there is some amount of money they could contract to pay him to leave the fish alone that would leave all parties better off than before the contract.

STATE v. SHAW DQ1.29(b) What obstacles stand in the way of the parties entering contract where T promises not to take fish from nets? Assume cost to net-owner is $500/wk & benefit to Thomas is $300/wk. Assume One-on-One Negotiation.

STATE v. SHAW DQ1.29(b) Costs of One-on-One Negotiation Include: Investigation Costs (e.g., find relevant parties; determine relevant costs/values; legal research) Bargaining Costs (e.g., time, representation) Strategic Behavior (negotiating postures) Enforcement Costs

STATE v. SHAW DQ1.29(b) What obstacles stand in the way of the parties entering contract where T promises not to take fish from nets? Assume cost to net-owner is $500/wk & benefit to Thomas is $300/wk. Additional Obstacles if Multi-Party Negotiation (multiple net-owners; multiple fish-takers)?

STATE v. SHAW DQ1.29(b) Additional Costs of Multi-Party Negotiation: Free-Riding Holdouts Organization/Management Costs Compare Agreement on Restaurant & Movie: Two People? Four People? Your Parents, Your Siblings, Everyone’s Spouses & Kids??

STATE v. SHAW DQ1.29(b) Collectively: “Transaction Costs” Investigation CostsBargaining Costs Strategic BehaviorEnforcement Costs Free-RidingHoldouts Organization/Management Costs

Transaction Costs Costs of Reaching Agreements Can Prevent Parties from Reaching Bargains that are “Efficient” (i.e., Would Make Everyone Better Off)

STATE v. SHAW DQ1.29(b) Questions on DQ1.29(b) or Transaction Costs?

INTERNALIZING EXTERNALITIES Changing Rules, Laws or Circumstances to Force Decision-Maker to Take External Costs or Benefits Into Account – Generally Imposed from Outside; Not Done by Decision-Maker (Contrast “Internalizing” in Psychology)

INTERNALIZING EXTERNALITIES Changing Rules, Laws or Circumstances to Force Decision-Maker to Take External Costs or Benefits Into Account. Generally Imposed from Outside. Beneficial Because Means Price of Activities Will Better Reflect Real Costs & Benefits – Pollution costs  Damages & Regulation – Charitable services  Subsidies/Gov’t Operation

INTERNALIZING EXTERNALITIES Several Ways to Do: Changing Rules, Laws or Circumstances to Force Decision-Maker to Take External Costs or Benefits Into Account; Generally Imposed from Outside. Several Ways to Do: Require Payment of Damages or Fees (or Subsidize) Regulate Activity: Criminalize or Limit (or Require) Private Negotiation (“Bribes” to Do or Not Do Activity) (BUT Limited by Transaction Costs)

Uranium DEMSETZ ARTICLE DQ1.31: Uranium Examples of internalizing externalities from outside the reading?