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

2. 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

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

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

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

6. 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 …

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

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

9. 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

10. 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”

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

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

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

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

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

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

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

18. FALL 2001

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

20. The Rhythm of the First Year & Elements
Analogy to Calisthenics

21. 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

22. 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

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

24. The Rhythm of the First Year
Staying
Motivated

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

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

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

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

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

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

31. 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

32. Back to Work!!

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

34. 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 …

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

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

37. 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.

38. 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?

39. 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?

40. 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

41. 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?

42. 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?

43. 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”

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

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

46. 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]

47. 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]?

48. 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!!)

49. 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)

50. 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].

51. 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?

52. 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?

53. 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.

54. 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?

55. DEMSETZ FIRST THESIS (Descriptive)

56. 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)

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

58. 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)

59. 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.

60. 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

61. 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.

62. 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)

63. 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

64. 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.

65. 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

66. 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

67. 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

68. 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

69. 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

70. 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

71. 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

72. 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?

73. 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]

74. 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

75. 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?

76. 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)

77. 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