ELEMENTS B1 & B2 POWER POINT SLIDES Class #14: Friday, September 16, 2015 National Cinnamon Raisin Bread Day

Immediately After Contracts Dubberly * Dudley * Morejon Music: Tchaikovsky, Symphony #4 (1880) Recording: Berlin Philharmonic (2003) Conductor: Von Karajan B2 Lunch Today Meet on Bricks Immediately After Contracts Altobello * Berman, J. Dubberly * Dudley * Morejon Ramelize After Class Today: I’ll Post Updated Assignment Sheet for Rest of September to Better Reflect Where We Are at End of Today’s Classes

One Month Into Law School: Three Things to Think About September Fog Calisthenics A Thousand Words

The Rhythm of the First Year Same at Every School Where I’ve Taught Same Every Year But One Since 1988

The Rhythm of the First Year Three Typical Fall Semester Low Points: Mid-September Mid-October Mid-November

The Rhythm of the First Year: The Mid-September Crisis You Have Never in Your Life Worked So Hard for a Whole Month Without Feeling on Top of Things!!! Common to Start to Worry That …

The Rhythm of the First Year: The Mid-September Crisis I’m the Stupidest Person Here & They Let Me In By Mistake

The Rhythm of the First Year: The Mid-September Crisis KEEP IN MIND: We’ve Already Discussed: You’re Learning New Language by Immersion

The Rhythm of the First Year: The Mid-September Crisis KEEP IN MIND: We’ve Already Discussed: You’re Learning New Language by Immersion Perception of “Hard” v. “Easy” Questions

The Rhythm of the First Year: The Mid-September Crisis KEEP IN MIND: Learning New Language by Immersion Perception of “Hard” v. “Easy” Questions Nature of Socratic Method: Profs Control Discussion & Decide What’s “Relevant”

The Rhythm of the First Year: The Mid-September Crisis KEEP IN MIND: Second Year Students (No Secret 1L Graveyard)

The Rhythm of the First Year: The Mid-September Crisis So Let Yourself Believe the September Fog is Normal and Nearly Universal

The Rhythm of the First Year: The Mid-September Crisis Almost All of You Will be Worried About Something Else in Mid-October!

The Rhythm of the First Year The Mid-September Crisis Uranium Radium Oxygen Krypton

One Month In: Three Things to Think About September Fog Calisthenics A Thousand Words

The Rhythm of the First Year & Elements Common Mid-September Concern: This class is fun and all, but does any of this really matter?

The Rhythm of the First Year Same at Every School Where I’ve Taught Same Every Year But One

FALL 2001

Pierson v. Al-Qaeda???? FALL 2001

The Rhythm of the First Year & Elements Analogy to Calisthenics

The Rhythm of the First Year & Elements Analogy to Calisthenics Apply Language of Case to New Facts Compare Facts of Case to New Facts Apply Policy Concerns to New Facts Identify Key Similarities & Differences

The Rhythm of the First Year: The Mid-September Crisis KEEP IN MIND: Analogy to Calisthenics: You Are Starting to Use New Muscles, So You’ll Be a Little Sore

One Month In: Three Things to Think About September Fog Calisthenics A Thousand Words

The Rhythm of the First Year Staying Motivated

The Rhythm of the First Year Staying Motivated Fall 2014: Ray Rice, the Elevator Videotape & the Failure of Words

The Rhythm of the First Year Staying Motivated Storytelling Will Be Your Responsibility

The Rhythm of the First Year Staying Motivated Storytelling Will Be Your Responsibility Development Project

The Rhythm of the First Year Staying Motivated Storytelling Will Be Your Responsibility Development Project Parental Rights

The Rhythm of the First Year Staying Motivated Storytelling Will Be Your Responsibility Development Project Parental Rights Environmental Partnership

The Rhythm of the First Year Staying Motivated Storytelling Will Be Your Responsibility Development Project Parental Rights Environmental Partnership Less Visible Assault

The Rhythm of the First Year Staying Motivated Storytelling Will Be Your Responsibility Development Project Parental Rights Environmental Partnership Less Visible Assault Remember the Client Who is Waiting for You

Back to Work!!

Uranium: DQ 1.43 & Start of Brief Manning v. Mitcherson Introduction: Uranium: DQ 1.43 & Start of Brief Radium: DQ 1.44

in a small town in Georgia there lived Manning v. Mitcherson Once Upon a Time in a small town in Georgia there lived Two Canary Birds …

Manning v. Mitcherson “Sweet” lived with Mrs. Mitcherson [“Sour”] lived with Mr. & Mrs. Manning Looked almost identical Same parted crest Both escaped

Manning v. Mitcherson “Sweet” lived with Mrs. Mitcherson [“Sour”] lived with Mr. & Mrs. Manning Both escaped

Manning v. Mitcherson One of the escaped Canary Birds flew into Mr. Brown’s kitchen. Mr. Brown gave it to the Mannings. The Mannings refused Mrs. Mitcherson’s request for the bird. Mrs. Mitcherson sued.

Manning v. Mitcherson: DQ1.43: Uranium (What’s at Issue?) The parties initially disagreed as to whether the bird found in Brown’s kitchen was “Sweet” or “Sour.” Whose version of the facts did the magistrate accept?

Manning v. Mitcherson: DQ1.43: Uranium (What’s at Issue?) Magistrate/Justice of Peace Rules in Favor of P Mitcherson. Ga SCt.: “The answer of the ex-officio justice of the peace in this case, the same being a certiorari and no traverse thereof, must be taken as true, ...” “no traverse thereof” Means here?

Manning v. Mitcherson: DQ1.43: Uranium (What’s at Issue?) “The answer of the ex-officio justice of the peace in this case, the same being a certiorari and no traverse thereof, must be taken as true, ...” “no traverse thereof”  no objection/rebuttal made Answer must be “taken as true “ = Justice/Magistrate’s factual findings not Q’ed. “Taken as true” about facts not law Ga SCt wouldn’t defer to legal holding of Magistrate

Manning v. Mitcherson: DQ1.43: Uranium (What’s at Issue?) Justice’s answer must be “taken as true “ = Justice/Magistrate’s Factual findings not Q’ed. So what are facts for purposes of the case?

Manning v. Mitcherson: DQ1.43: Uranium (What’s at Issue?) Facts for purposes of the case = Plaintiff’s Version = Canary in Browns’ Kitchen was “Sweet” So What is Defendant’s Legal Claim on Appeal?

Manning v. Mitcherson: DQ1.43: Uranium (What’s at Issue?) Defendant’s Legal Claim Not “It’s My Bird” (No Traverse) Not “It Was Never Her Bird” (Years In Cage) Must Be: “She Lost Property Rights When It Escaped”

Manning v. Mitcherson: BRIEF: Uranium STATEMENT OF THE CASE: Mitcherson … ? sued Manning, … [theory of case] [remedy requested]

Manning v. Mitcherson: BRIEF: Uranium STATEMENT OF THE CASE: Mitcherson, original owner (OO) of escaped canary sued Manning, … ? [theory of case] [remedy requested]

Manning v. Mitcherson: BRIEF: Uranium (STATEMENT OF THE CASE) Mitcherson, OO of escaped canary sued Manning, who was given the bird by its finder, [theory of case] = under a “possessory warrant” (= summary action for return of personal property) [remedy requested]

Manning v. Mitcherson: BRIEF: Uranium (STATEMENT OF THE CASE) Mitcherson, OO of escaped canary sued Manning, who was given the bird by finder, under a possessory warrant not “conversion” b/c not asking for $$ not crazy to say “replevin” but poss. warr. appears to be its own cause of action in Ga. [remedy requested]?

Manning v. Mitcherson: BRIEF: Uranium (STATEMENT OF THE CASE) Mitcherson, OO of escaped canary sued Manning, who was given the bird by finder, under a possessory warrant … For return of the bird. (Sweet!!)

Manning v. Mitcherson: BRIEF: PROCEDURAL POSTURE After a trial, the magistrate awarded possession to the Plaintiff. … Need to include “After a trial” to clarify not decided: on pleadings (like Pierson) on Directed Verdict (like Liesner & Shaw)

Manning v. Mitcherson: BRIEF: PROCEDURAL POSTURE After a trial, the magistrate awarded possession to the Plaintiff. Defendant brought a writ of certiorari to Superior Court, which affirmed [by dismissing the writ]. Defendant “excepted” [appealed].

Manning v. Mitcherson: DQ1.44: RADIUM (What’s at Issue?) Why Do You Think This Case Got to Georgia Supreme Court???!!! Why did the Mannings Keep Fighting? Why did Mrs. Mitcherson?

Manning v. Mitcherson: Hints about Mrs. Mitcherson Georgia treats husband as relevant party to lawsuit if both spouses alive. Mr. Manning is the only Defendant, even though pretty clearly his wife’s bird. Mr. Mitcherson not a party. Why not?

Manning v. Mitcherson: Hints about Mrs. Mitcherson Mr. Mitcherson not a party. Why not? Divorce unusual in 1882; likely he’s dead. High probability she’s a Civil War widow If so, husband dead at least 17 years.

Manning v. Mitcherson: Hints about Mrs. Mitcherson High probability she’s a Civil War widow If so, husband dead at least 17 years. Enter the Captain & the Canary!! QUESTIONS ON MANNING?

DEMSETZ FIRST THESIS (Descriptive)

INTERNALIZING EXTERNALITIES 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)

DEMSETZ FIRST THESIS New property rights tend to develop “when the gains of internalization become larger than the cost of internalization.”

DEMSETZ 1st THESIS: DQ1.33 New ppty rts tend to develop “when the gains of internalization become larger than the cost of internalization.” Gains = Having more effects considered by decision-maker, presumably leading to: Reduction in harmful effects AND/OR Increase in beneficial effects Maximum Potential Gain = Total elimination of externalities (unlikely)

What are relevant “costs”? DEMSETZ 1st THESIS: DQ1.33 New property rights tend to develop “when the gains of internalization become larger than the cost of internalization.” What are relevant “costs”? Focus on people who might want to change the game (force internalization), not on decision-maker who is source of externalities.

DEMSETZ 1st THESIS: DQ1.33 New property rights tend to develop “when the gains of internalization become larger than the cost of internalization.” What are relevant “costs”? Costs of bargaining privately Costs of collectively creating new rules (can be expensive) Multi-party negotiation Legislation or agency regulation

If harm from externalities > cost of change  change in rule. DEMSETZ FIRST THESIS New property rights tend to develop “when the gains of internalization become larger than the cost of internalization.” If harm from externalities > cost of change  change in rule.

DEMSETZ FIRST THESIS New property rights tend to develop “when the gains of internalization become larger than the cost of internalization.” = If cost of externalities > cost of change  change in rule Rough Approximation (Not Precise Math)

DEMSETZ FIRST THESIS New property rights tend to develop “when the gains of internalization become larger than the cost of internalization.” = If cost of externalities > cost of change  change in rule Rough Approximation (Not Precise Math) Resulting Change in Rule Unpredictable E.g., Legislature responding to public outcry must do something Lots of possibilities; legislators might not make good choices

DEMSETZ FIRST THESIS DQ1.32 Why does the author believe that new property rights tend to arise from “the emergence of new or different beneficial and harmful effects”? (p.31) Increase in (perceived) cost of status quo needed to overcome inertia stemming from cost of change.

DEMSETZ FIRST THESIS New property rights tend to develop “when the gains of internalization become larger than the cost of internalization.” If cost of externalities > cost of change  change in rule Often Results from Social/Cultural Change New Social Habits  Value Change  Scarcity New Science/Tech.  Scarcity or Better Monitoring

DEMSETZ FIRST THESIS: DQ1.34-1.36 Basic Analysis: ME & RADIUM Identify decision at issue Identify old rule Identify neg. externalities under old rule Identify change in circumstances Does change increase neg. externalities? If cost of externalities > cost of change  change in rule

DEMSETZ FIRST THESIS: Basic Analysis: State v. Shaw Identify decision at issue: Thomas: Do I take fish? Identify old rule Identify neg. externalities under old rule Identify change in circumstances Does change increase neg. externalities? If cost of externalities > cost of change  change in rule

DEMSETZ FIRST THESIS DQ1.34(a) (MONTAGNE) : RADIUM Identify decision/activity at issue: Individuals in tribe deciding whether to kill beavers. Identify old rule Identify neg. externalities under old rule Identify change in circumstances Does change increase neg. externalities? If cost of externalities > cost of change  change in rule

DEMSETZ FIRST THESIS DQ1.34(a) (MONTAGNE) : RADIUM Tribe-members killing beavers; RULE = no limits except First-in-Time Identify negative externalities under old rule Identify change in circumstances Does change increase neg. externalities? If cost of externalities > cost of change  change in rule

DEMSETZ FIRST THESIS DQ1.34(b) (MONTAGNE) : RADIUM Tribe-members killing beavers; RULE = no limits except First-in-Time Neg. Ext. = Possibility of Overhunting (Slim) Identify change in circumstances Does change increase neg. externalities? If cost of externalities > cost of change  change in rule

DEMSETZ FIRST THESIS DQ1.34(b) (MONTAGNE) : RADIUM Tribe-members killing beavers; RULE = no limits except First-in-Time; Neg. Ext. = Possibility of Overhunting (Slim) French Arrive; Beaver Hats = Fashion; Price of Pelts Increases; Hunting Increases How does change increase neg. externalities? If cost of externalities > cost of change  change in rule

DEMSETZ FIRST THESIS DQ1.34(c) (MONTAGNE) : RADIUM Tribe-members killing beavers; RULE = no limits except First-in-Time; Neg. Ext. = Possibility of Overhunting (Slim) French Arrive; Price of Pelts Rises  Both Cost & Likelihood of Overhunting Increase What happens next?

DEMSETZ FIRST THESIS DQ1.34(c) (MONTAGNE) : RADIUM French Arrive; Price of Pelts Rises  Both Cost & Likelihood of Overhunting Increase Tribe Develops Property Rights System Must have invoked decision-making system Decided on new rules & mechanisms to implement [Incurring Transaction Costs associated with change]

DEMSETZ FIRST THESIS DQ1.34(c) (MONTAGNE) : RADIUM Tribe Develops Property Rights System Incurring Transaction Costs Associated with Change Can Explain Under Demsetz First Thesis: Big Change in Value of Pelts Perceived Costs of Potential Overkilling Increase Become Greater than Costs of Change Leading to Change in Rule

DEMSETZ FIRST THESIS DQ1.35: RADIUM Why does the author believe that the tribes of the Southwestern U.S. did not adopt a system for rights to Buffalo similar to the one the Montagne for rights to beavers?

DEMSETZ FIRST THESIS DQ1.35: RADIUM Why does the author believe that the tribes of the Southwestern U.S. did not adopt a system similar to that of the Montagne? No Scarcity Issue (Little Value to Outsiders) Beavers Dam BUT Buffalo “Roam” (Harder/More Expensive to Create Exclusive Property Rights)

DEMSETZ FIRST THESIS: DQ1 DEMSETZ FIRST THESIS: DQ1.36 (b) DEVELOPMENT OF LEGAL CLAIMS RE SEXUAL HARASSMENT Decision/activity at issue: Male bosses demand sex from women as job condition Old rule: Legal/No Liability Identify neg. externalities under old rule Identify change in circumstances Does change increase neg. externalities [or perception of harms]? If cost of externalities > cost of change  change in rule