Tchaikovsky, Symphony #4 (1880) “Capriccio Italien” Berlin Philharmonic (1977) Conductor: Von Karajan

DEMSETZ SECOND THESIS Over Time, Process Described in 1 st Thesis Leads to More and Stronger Private Property Rights

DEMSETZ SECOND THESIS Over Time, Process Described in 1 st Thesis Leads to More and Stronger Private Property Rights As Opposed to What?

DEMSETZ SECOND THESIS: DQ36 Alternatives to Private Property 1.State of Nature: (Can Use Power to Exclude) 2.Communal Ownership (Can’t Exclude/1 st -in-Time) 3.Can Have Non-Communal State Ownership

DEMSETZ SECOND THESIS: DQ36 Gradations of Private Property  Communal : Examples (Pretty Strong Private Rights) (1) Songs under copyright: Can’t perform for $$ or copy text w/o permission/$$ Can’t limit singing in shower, etc. (2) Farmers’ Land after State v. Shack Can exclude most people for most purposes Limits on right to exclude to meet needs of MWs

DEMSETZ SECOND THESIS: DQ36 Gradations of Private Property  Communal : Examples (Pretty Weak Private Rights) (1) Perfumes, Clothing Designs: Anyone can copy formula/design & sell Can’t lie about source (pvt property in trademark). (2) Air Generally anyone can use oxygen, nitrogen, etc. Some limits on use if creates identifiable pollution

DEMSETZ SECOND THESIS Over Time, Process Described in 1 st Thesis Leads to More and Stronger Private Property Rights Why? Private Property More Efficient Than Communal Property

DEMSETZ SECOND THESIS: DQ37 Private Property More Efficient Than Communal Property (Results in Fewer Externalities) 1.Members of community will have trouble negotiating among themselves to achieve optimal level of resource use.

DEMSETZ SECOND THESIS: DQ37 Private Property More Efficient Than Communal Property (Results in Fewer Externalities) 1.Members of community will have trouble negotiating among themselves to achieve optimal level of resource use. Claim: Private Os more likely to manage resource in way to maximize long term benefits In communal or state, no individual reaps benefits of good management, so have to do difficult group negotiation to get everyone to agree to steps needed to achieve optimum

DEMSETZ SECOND THESIS: DQ37 Private Property More Efficient Than Communal Property (Results in Fewer Externalities) 2. The members of the community will have trouble negotiating with other communities or outsiders: to prevent interference with community’s rights to achieve useful bargains

DEMSETZ SECOND THESIS: DQ37 Private Property More Efficient Than Communal Property (Results in Fewer Externalities) 2.The members of the community will have trouble negotiating with other communities or outsiders: Standard problems of group bargaining Plus difficulty of figuring out who to bargain with (Who do I talk to if I want to buy up all the oxygen?)

DEMSETZ SECOND THESIS: DQ38 Private Property More Efficient Than Communal Property (Reasons to Q Claim) May understate effectiveness of social sanctions/ ostracism as ways for communities to regulate behavior w/o negotiation (law school sections, The Help; fast food containers).

DEMSETZ SECOND THESIS: DQ38 Private Property More Efficient Than Communal Property (Reasons to Q Claim) May understate effectiveness of social sanctions Not always clear that private property yields better management Individuals can be irrationally wasteful Sometimes concerned community (e.g., re children) can do better job planning for future

DEMSETZ SECOND THESIS: DQ38 Private Property More Efficient Than Communal Property (Reasons to Q Claim) May understate effectiveness of social sanctions Not clear private property yields better management If bargaining among community is so difficult, how do private property systems get created? Shows some group negotiation possible Although Demsetz would say overcoming transaction costs hard so only occurs if perceived costs of status quo very high

DEMSETZ SECOND THESIS Over Time, Process Described in 1 st Thesis Leads to More and More Private Property Assuming Private Property Results in Fewer Externalities …

DEMSETZ SECOND THESIS Over Time, Process Described in 1 st Thesis Leads to More and More Private Property If Externalities High  Change in Rule

DEMSETZ SECOND THESIS Over Time, Process Described in 1 st Thesis Leads to More and More Private Property If Externalities High  Change in Rule Rule Changes Unpredictable

DEMSETZ SECOND THESIS Over Time, Process Described in 1 st Thesis Leads to More and More Private Property If Externalities High  Change in Rule Rule Changes Unpredictable – If to Private Property, Low Externalities = Stable

DEMSETZ SECOND THESIS Over Time, Process Described in 1 st Thesis Leads to More and More Private Property If Externalities High  Change in Rule Rule Changes Unpredictable – If to Private Property, Low Externalities = Stable – If not, Higher Externalities  More Change

DEMSETZ SECOND THESIS Over Time, Process Described in 1 st Thesis Leads to More and More Private Property If Externalities High  Change in Rule Rule Changes Unpredictable – If to Private Property, Low Externalities = Stable – If not, Higher Externalities  More Change QUESTIONS?

DEMSETZ: WHAT TO TAKE AWAY Externalities Important Very Commonly Referenced Concept Want Decision-Makers to Consider Real Costs I’ll Give a Little Bit More On in Future Info Memo

DEMSETZ: WHAT TO TAKE AWAY Externalities Important 1 st Thesis: Useful Description of How Changes in Society Can Create Changes in Property Rights Can also use to argue change is needed b/c of high externalities

DEMSETZ: WHAT TO TAKE AWAY Externalities Important Useful Description of a Way Changes in Society Create Changes in Property Rights Arguments re Advantages of Private Property (or of Stronger Private Property Rights)

DEMSETZ: WHAT TO TAKE AWAY ALSO (though we didn’t spend time on): 1 st para.: Description of What Property Is (useful here & for Schnably) Expectations re Rights to Act Protection from Others’ Interference Construct of Particular Society/Culture

DEMSETZ: WHAT TO TAKE AWAY What Counts as Property = Construct of Particular Society/Culture

LOGISTICS: CLASS #12 OXYGEN: Mullett Brief Due Thu 9pm ALL: Assignment #1 Due Mon 9pm I’ll only take Qs through end of class Friday KRYPTON: Albers Brief Due Thu 9pm Questions on Assignments?

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

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

Manning v. Mitcherson : BRIEF : RADIUM STATEMENT OF THE CASE : Mitcherson, OO of escaped canary sued Manning, who was given the bird by its finder, [theory of case]? [remedy requested]

Manning v. Mitcherson : BRIEF : RADIUM STATEMENT OF THE CASE : Mitcherson, OO of escaped canary sued Manning, who was given the bird by finder, under a “possessory warrant” = summary action for return of personal property

Manning v. Mitcherson : BRIEF : RADIUM 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 : RADIUM 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.

Manning v. Mitcherson : BRIEF : RADIUM 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 : BRIEF : RADIUM ISSUE ( Procedural Part ): Did the magistrate err in awarding possession of the canary to the original owner … OR Did the Superior Court err by affirming the judgment of the magistrate awarding possession of the canary to the original owner

Manning v. Mitcherson : BRIEF : RADIUM ISSUE ( Substantive Part ): Did the magistrate err in awarding possession of the canary to the original owner …

Manning v. Mitcherson : BRIEF : RADIUM ISSUE ( Substantive Part ): Did the magistrate err in awarding possession of the canary to the original owner because an OO loses property rights to an escaping animal where [facts].

Manning v. Mitcherson : BRIEF : RADIUM ISSUE  NARROW HOLDING Did the magistrate err in awarding possession of the canary to the original owner because an OO loses property rights to an escaping animal where [facts].  The magistrate didn’t err in awarding possession of the canary to the original owner because an OO retains property rights to an escaping animal where [facts].

Manning v. Mitcherson : FACTS & HOLDING : RADIUM The original owner retains property rights in an escaped [canary] … [that had distinctive crest] [that responded to its name] [that had escaped and returned once before] [that had been owned for two years] [that had been missing for only five days] [that OO located day after it was found]

NARROWING/BROADENING HOLDINGS Narrowest Version of Holding Essentially Includes All Facts of Present Case Broader Versions Address More Future Cases

NARROWING/BROADENING HOLDINGS Narrowest Version of Holding Essentially Includes All Facts of Present Case Broader Versions Address More Future Cases Broaden Holding by (either or both of): – Making References to Some Facts More General – Eliminating Some Facts

NARROWING/BROADENING HOLDINGS Narrowest Version Essentially Includes All Facts of Case Broad Versions Address More Future Cases Different Versions of Broad Holdings –Play With to See What Case Might Stand For Going Forward –Remember Must be Consistent with Result & Language of Case

Manning v. Mitcherson : FACTS & HOLDING : RADIUM The original owner retains property rights in an escaped [canary]  [animal ferae naturae] [that had distinctive crest] [that responded to its name] [that had escaped and returned once before] [that had been owned for two years] [that had been missing for only five days] [that OO located day after it was found]

Manning v. Mitcherson : FACTS & HOLDING : RADIUM  We’ll go through each fact & discuss why it might be relevant to whether OO retains rights to escaped animal.  Trying to identify relevant factors (DQ43)  Trying to consider what might be part of broader versions of holding

Manning v. Mitcherson : FACTS & HOLDING : RADIUM The original owner retains property rights in an escaped animal ferae naturae … Possible Significance of … that had distinctive crest

Manning v. Mitcherson : FACTS & HOLDING : RADIUM Possible Significance of … that had distinctive crest  marked May help identify animal May provide notice to F of prior claim How well does crest do these things here?

Manning v. Mitcherson : FACTS & HOLDING : RADIUM The original owner retains property rights in an escaped [canary]  [animal ferae naturae] [that had distinctive crest]  [that was marked] [that responded to its name] [that had escaped and returned once before] [that had been owned for two years] [that had been missing for only five days] [that OO located day after it was found]

Manning v. Mitcherson : FACTS & HOLDING : RADIUM The original owner retains property rights in an escaped animal ferae naturae … Possible Significance of … that responded to its name that had escaped and returned once before

Manning v. Mitcherson : FACTS & HOLDING : RADIUM Possible Significance of … responded to name + Prior escape/return  tamed or bonded Shows labor by OO May want to protect emotional connection How well does responding to name do these things here?

Manning v. Mitcherson : FACTS & HOLDING : RADIUM Possible Significance of … responded to name + Prior escape/return  tamed or bonded Shows labor by OO May want to protect emotional connection How well does prior escape/return do these things here?

Manning v. Mitcherson : FACTS & HOLDING : RADIUM The original owner retains property rights in an escaped [canary]  [animal ferae naturae] [that had distinctive crest]  [that was marked] [that had escaped and returned once before] + [that responded to its name]  [that was tamed] [that had been owned for two years] [that had been missing for only five days] [that OO located day after it was found]

Manning v. Mitcherson : FACTS & HOLDING : RADIUM The original owner retains property rights in an escaped animal ferae naturae … Note Three Different Measures of Time [that had been owned for two years] [that had been missing for only five days] [that OO located day after it was found]

Manning v. Mitcherson : FACTS & HOLDING : RADIUM Possible Significance of … that had been owned for two years  again taming/bonding Shows labor by OO (2 years maintenance) Emotional connection probably strong

Manning v. Mitcherson : FACTS & HOLDING : RADIUM The original owner retains property rights in an escaped [canary]  [animal ferae naturae] [that had distinctive crest]  [that was marked] [that had escaped and returned once before] + [that responded to its name] + [that had been owned for two years]  [that was tamed & emotionally bonded to OO] [that had been missing for only five days] [that OO located day after it was found]

Manning v. Mitcherson : FACTS & HOLDING : RADIUM The original owner retains property rights in an escaped animal ferae naturae … Possible Significance of … that had been missing for only five days that OO located day after it was found

Manning v. Mitcherson : FACTS & HOLDING : RADIUM Possible Significance of … missing only five days/OO located day after found  Gone very short time Shows pursuit/interest by OO Little time for F to invest or bond How well does time here show these things?

Manning v. Mitcherson : FACTS & HOLDING : RADIUM The original owner retains property rights in an escaped [canary]  [animal ferae naturae] [that had distinctive crest]  [that was marked] [prior escape/return] + [responded to name] + [owned for two years]  [that was tamed & emotionally bonded to OO] [that had been missing for only five days] + [that OO located day after it was found]  [that had been gone for a short time]

Manning v. Mitcherson : VERSIONS OF HOLDING (1 ) The original owner retains property rights in an escaped bird that had escaped and returned before, is distinctively marked, had been found only a short time after it escaped, and was located by the owner a short time after being found.

Manning v. Mitcherson : VERSIONS OF HOLDING (2 ) The original owner retains property rights in an escaped animal ferae naturae that is tamed and distinctively marked.

Manning v. Mitcherson : VERSIONS OF HOLDING (3 ) The original owner retains property rights in an escaped animal ferae naturae where the OO is emotionally bonded to the animal and locates the animal after it only is gone for a short time.

Manning v. Mitcherson : MANY VERSIONS OF HOLDING Exact scope of Manning holding necessarily unclear until Ga. Supreme Court clarifies Use other language from case to help determine best alternatives (DQ42 & 44) Use squirrel hypothetical to see how different versions might accomplish different results (DQ45)

MINING the MEANING of MANNING

Mining Manning ‘ s Meaning : DQ 42: RADIUM The law of Georgia is, that to have property in animals, birds and fishes which are wild by nature, one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them. (Top p.38) SIGNIFICANCE?

Mining Manning ‘ s Meaning : DQ 42: RADIUM The law of Georgia is, that to have property in animals, birds and fishes which are wild by nature, one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them. Could simply go to 1 st possession and mean that Mitcherson owned bird prior to escape. Could mean, “Once tamed, yours forever”, BUT…

Mining Manning ‘ s Meaning : Taming Enough ? (p.38 2d para): …the bird in controversy was shown to have been tamed. It was also testified that …

Mining Manning ‘ s Meaning : Taming Enough ? …the bird … was … tamed. It was also testified that it had been in the possession of the plaintiff in the warrant about two years; that it knew its name, and when called by its owner, would answer the call; that it had left its cage on one occasion, and after having been gone a day or two returned; that on the 27th day of December, before the preceding new year's day, it was missing from its cage, and on the latter day it was received and taken possession of by the defendant …

Mining Manning ‘ s Meaning : Taming Enough ? …the bird … was … tamed. It was also testified that in the possession of the plaintiff about two years; knew & would answer to its name; prior escape & return; Caught and given to defendant 5 days after escape ¶ Under this evidence, there does not seem to be any question of sufficient possession and dominion over this bird, to create a property right in the plaintiff.

Mining Manning ‘ s Meaning : DQ 42: RADIUM The law of Georgia is, that to have property in animals, birds and fishes which are wild by nature, one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them. Could mean, “Once tamed, yours forever”, BUT if holding is that simple, court probably would just say so and NOT list all the other evidence.

Common Sense When Reading Shaw: “[T]he defendant, John Thomas, said that ‘they lifted two pound nets west of the pier and got the fish.’” Did they take the nets?

Common Sense When Reading Shaw: Did Ds take the nets? Logistically Unlikely – Net is 28’ x 28’ x 35’ – They’re in a Sailboat

Common Sense When Reading Shaw: Did Ds take the nets? Logistically Unlikely Inconsistent w Opinion – No Discussion of Value of Net – Whole Opinion About Fish – Easy Larceny Case if they Took Nets