MUSIC: PEGGY LEE (GREAT LADIES OF
SONG): RECORDINGS 1957-64
7:45-7:50: BONUS COVERAGE:
A EULOGY FOR THE SUMMER OF 2010
FINAL EXAM:
THREE OUT OF FOUR Qs
• Question One: Lawyering
– What Legal & Factual Research Would You Do to Advise
Client?
– Tasks:
• Identifying Legal Issues
• Identifying Possible Legal Rules (& Checking For)
– Caselaw, Statutes, Constitutional Provisions, etc.
• Identifying Possibly Relevant Facts & Ways of Finding
(e.g., Assignment 2: Witness Interview)
FINAL EXAM:
THREE OUT OF FOUR Qs
• Question One: Lawyering
• Question Two: Short Problems (3 out of 4)
– Like Most of the Review Problems
– Tasks:
• Applying Rules to Facts
• Finding Strongest Arguments for Each Party
• Using Policy Arguments to Resolve Disputed Qs
FINAL EXAM:
THREE OUT OF FOUR Qs
• Question One: Lawyering
• Question Two: Short Problems (3 out of 4)
• Question Three: Judicial Opinion/Dissent
– Write Draft of Majority & Dissenting Opinions Resolving
One or Two Narrow Legal Questions
– Tasks:
• Finding Strongest Arguments for Each Party
• Using Policy Arguments to Determine Appropriate Rule
FINAL EXAM:
THREE OUT OF FOUR Qs
• Question One: Lawyering
• Question Two: Short Problems (3 out of 4)
• Question Three: Judicial Opinion/Dissent
• Question Four: Traditional Issue-Spotter
– Long Fact-Pattern: Discuss Legal Issues Raised
– Tasks:
•
•
•
•
Identifying Legal Issues
Applying Legal Rules to Facts
Finding Strongest Arguments for Each Party
Using Policy Arguments to Resolve Disputed Questions
FINAL EXAM:
THREE OUT OF FOUR Qs
NO Qs NOW:
SAMPLES OF EACH TYPE OF Q &
MUCH MORE DETAIL ON
EXPECTATIONS LATER IN THE
COURSE!!!!
Maguire: Why Look at in Detail?
• Examples of Possible Rules (Caselaw & Statutory)
to Cover Ranchers v. Farmers and Similar Disputes
• Example of More Limited Role of State Supreme
Court when Legislature has Spoken
• Can Argue: Example of a Situation Where Optimal
Results Require Legislation/Regulation and Thus
(Maybe) Courts Shouldn’t Try to Make New Law
• Good Fact Pattern for Exploring Relevant Policies
McCarty: Why Look at in Detail?
• Example of Early Strict Liability Version of
Nuisance, Where Only Defenses Are:
1. Coming to the Nuisance
2. Oversensitiveness
• Good Fact Pattern for Exploring Relevant Policies
McCARTY: RELEVANCE ANALYSIS
Harm at Issue
• Nature of Harm:
– Discomfort & Annoyance
– Cleaning Rugs
– Loss in Rental Value
•
•
•
Think About Meaning of “Property Value”
Aggregate Opinion of Potential Renters or Buyers
Incorporates Both Rational & Irrational Concerns
McCARTY: RELEVANCE ANALYSIS
Harm at Issue
• Nature of Harm: Discomfort & Annoyance;
Cleaning Rugs; Loss in Rental Value
• Dissent: no tangible permanent harm
(implicitly: therefore oversensitive)
McCARTY: RELEVANCE ANALYSIS
Harm at Issue
•
•
Nature of Harm: Discomfort & Annoyance; Cleaning Rugs;
Loss in Rental Value
Dissent: no tangible permanent harm
• Majority (last sentence): material
interference w “physical comfort” plus
“financial injury” is sufficient (implicitly:
not oversensitive)
McCARTY: RELEVANCE ANALYSIS
• Relevant:
– Coming to the Nuisance
– Extent of Harm v. Oversensitiveness (Considering
Location)
• Not Relevant
– Costs to D of Avoiding Harm
– Utility of D to Society
• Note: Not Mentioned at All
– Harm from D to Non-Parties
– Harm from D to Environment
McCARTY: RELEVANCE ANALYSIS
Qs on McCarty?
NOTES AFTER MAGUIRE:
MORE RELEVANT CONCERNS
• Notes 2-10 after Maguire are not specifically about
the case or specific rules but about how to decide
what the rules should be.
• We’ll look at to help decide what kinds of concerns
ought to be relevant in conflicting land use cases.
• Can use as basis for policy arguments, especially in
opinion/dissent Q
• Go through pretty quickly (slides posted Thurs).
NOTES AFTER MAGUIRE:
FAIRNESS
Fairness = Perception that Result is “Just”
• Important: “Fairness” and “Justice” are Not SelfDefining Concepts
• Always Need to Defend Claim:
– “This result would be fair because …”
– “Rewarding the defendant’s behavior here would be
unjust because …”
NOTES AFTER MAGUIRE:
FAIRNESS
Fairness: Possible Examples
• Fair: Making people pay for harms they “caused” &
not for harms they didn’t
– Maybe unfair to force farmer to spend $$ on fence
even to protect much larger value of own crops if
damage seen as “caused” by rancher’s cattle.
– Maybe shouldn’t reward “Coming to the Nuisance”
because Plaintiff “caused” own harm.
NOTES AFTER MAGUIRE:
FAIRNESS
Fairness: Possible Examples
• Fair: Making people pay for harms they “caused” &
not for harms they didn’t
• BUT: Can be difficult to decide who “caused”
problem (Reese’s; Note on P128-29)
NOTES AFTER MAGUIRE:
FAIRNESS
Fairness: Possible Examples
• Unfair to make punishment disproportionate to
harm caused
– Don’t enjoin defendant for “trivial” harm to P
– Maybe: Don’t lose title to border strip for not knowing
precise property line.
Qs on Fairness Arguments
NOTES AFTER MAGUIRE:
ECONOMIC EFFICIENCY
Economic Efficiency = Maximizing Economic Value.
In Context of Maguire Means:
• Allocation of resources to farming, ranching,
fencing and other preventative measures that
yields best overall economic value to society.
• In other words, best combination of
– Increasing value of resources like cattle & crops
– Minimizing costs like fencing & lost crops
NOTES AFTER MAGUIRE:
ECONOMIC EFFICIENCY
Economic Efficiency = Maximizing Economic Value.
In Context of Maguire Means:
• Allocation of resources to farming, ranching, fencing and other
preventative measures that yields best overall value to society.
• Examples:
– Efficient to put up $10K fence to prevent $2 million
damage to crops
– Not efficient to put up $2M fence to prevent $10K
damage to crops
NOTES AFTER MAGUIRE:
ECONOMIC EFFICIENCY
Economic Efficiency = Maximizing Economic Value.
In Context of Maguire Means:
• Allocation of resources to farming, ranching, fencing and other
preventative measures that yields best overall value to society.
• Maguire & McCarty do not address (Carpenter does)
– Maguire leaves analysis to legislature
– McCarty doesn’t consider relative costs of allowing D to
continue as is v. alternate production method
NOTES AFTER MAGUIRE:
ECONOMIC EFFICIENCY
Efficiency Sometimes Conflicts with Fairness
• E.g., Adverse Possession
– Fairness: Desire for Justice May Favor Good
Intent over Bad Intent
– Efficiency: Expensive to Determine Intent,
Especially for Long Time Period.
• Qs?
NOTES AFTER MAGUIRE:
Externalities (Note 3: P63-64)
• EXTERNALITY = Cost or benefit external to a
decision-making process
– Must be with reference to particular decision
– Helpful to start by identifying decision-maker:
e.g., rancher (R) deciding whether to build fence
or take other steps to keep herd in.
NOTES AFTER MAGUIRE:
Externalities (Note 3: P63-64)
• Cost or benefit external to a decision-making
process (R deciding whether to build fence or
take other steps to keep herd in)
• In pure “fence out” jurisdiction, R not liable
for damage to farmer’s crops, so no reason to
consider = externality
NOTES AFTER MAGUIRE:
Externalities (Note 3: P63-64)
• Cost or benefit external to a decision-making
process (R deciding whether to build fence or take
other steps to keep herd in)
• If decision-maker considers a cost, but
chooses to absorb it, not an externality
– E.g., R presumably will consider cost of cattle
getting killed b/c outside his control, so even if R
chooses no fence, this cost not an externality
NOTES AFTER MAGUIRE:
Externalities (Note 3: P63-64)
“Internalizing” Externalities:
• Forcing Decision-Maker to Consider Costs or
Benefits that Had Been Outside DecisionMaking Process
• Beneficial/Efficient Because Means Price of
Activities Will Reflect Real Cost (e.g.,
pollution costs)
NOTES AFTER MAGUIRE:
Externalities (Note 3: P63-64)
“Internalizing” Externalities:
• Forcing Decision-Maker to Consider Costs or Benefits that
Had Been Outside Decision-Making Process
• Can Internalize Several Ways
– Require Payment of Damages
– Criminalize or Enjoin the Activity
– Private Negotiation (Bribes)
NOTES AFTER MAGUIRE:
Externalities (Note 3: P63-64)
“Internalizing” Externalities: Example
• Initially, when deciding whether to create
Herd Districts, residents did not have to
consider costs (damages or fences) that then
fell on Rs using adjoining land for grazing.
NOTES AFTER MAGUIRE:
Externalities (Note 3: P63-64)
“Internalizing” Externalities: Example
• Initially, when deciding whether to create Herd Districts,
residents did not have to consider costs (damages or
fences) to Rs using adjoining land for grazing.
• Creation of Open Range Districts forced them
to bear these costs (fencing or damages)
themselves if they voted for Herd District.
Qs on Externalities?
NOTES AFTER MAGUIRE:
COASE THEOREM (Note 4 P64-65)
Dispute between one Rancher (R) and 3 Farmers (F):
• Annual Cost in Crop Losses to Each F = $1,000
• Cost of Putting Up & Maintaining “Fence Out”
Fence to Each F = $500 + $100/year
• Cost of R Putting Up “Fence In” Fence = $20,000 +
$1,000/year
What happens if R not liable for crop losses?
NOTES AFTER MAGUIRE:
COASE THEOREM (Note 4 P64-65)
Dispute between one Rancher (R) and 3 Farmers (F):
•
•
•
Annual Cost in Crop Losses to Each F = $1,000
Cost of “Fence Out” Fence = $500 + $100/year
Cost of “Fence In” Fence = $20,000 + $1,000/year
What happens if R not liable for crop losses?
Each F Builds Fence to Save $1000/yr
What happens if R is liable for crop losses?
NOTES AFTER MAGUIRE:
COASE THEOREM (Note 4 P64-65)
Dispute between one Rancher (R) and 3 Farmers (F):
•
•
•
Annual Cost in Crop Losses to Each F = $1,000
Cost of “Fence Out” Fence = $500 + $100/year
Cost of “Fence In” Fence = $20,000 + $1,000/year
What happens if R is liable for crop losses?
• Close call whether it’s worth it for R to build
“Fence In” Fence to save $3000/yr
• Clearly worth it for R to pay 3Fs to build “Fence
Out” Fences even if paying some bonus to Fs
NOTES AFTER MAGUIRE:
COASE THEOREM (Note 4 P64-65)
Coase Theorem: If no transaction costs
(bargaining & information are free), parties
should end up at the same optimum result
(“fence out” fence gets built) regardless of
which rule is put in place. Only difference will
be which party pays for it.
NOTES AFTER MAGUIRE:
CONCERNS RE COASE THEOREM
Transaction Costs
• In real world, obviously bargaining and obtaining
info both cost time & $$$, so parties may not
reach Coase’s optimum result
• Some commentators suggest setting up rules
designed to achieve Coase result
• One version: Put liability on person with best
information/most control over circumstances
NOTES AFTER MAGUIRE:
CONCERNS RE COASE THEOREM
Other Issues with Determining “Optimum” Result
• People Value Things Differently in Different
Circumstances (Especially “Bird in the Hand”)
• Difficulty Identifying & Reaching Outcomes That
Require Compromises/Acts by Both Players (e.g.,
Idaho Statutes) (See Note 6 P66)
NOTES AFTER MAGUIRE:
CONCERNS RE COASE THEOREM
Other Issues with Determining “Optimum” Result
• Doesn’t Account Well for Some Externalities
– Relating to 3d Parties (Hard to Figure Effects of
Negotiation by Meat-Eaters v. Veg.-Eaters)
– Relating to the Environment (See Note 7 P66) (Who
Negotiates for Endangered Species or Water Supply?)
• Note possible legal arguments about taking these
concerns into account in setting rules.
NOTES AFTER MAGUIRE:
CONCERNS RE COASE THEOREM
Qs on Coase Theorem or Concerns?
NOTES AFTER MAGUIRE:
NORMS (Notes 9-10 P67-68)
Ellickson Study: Shasta County Fence In/Fence Out
• County had areas with each rule; study to see if
Coase Theorem was right; that people would
bargain to same result regardless of rule
• Found that rule was largely irrelevant b/c people
dealt with problem informally through
norms/customs & did not rely on legal system
• Well worth reading article (cited in Note 9)
NOTES AFTER MAGUIRE:
NORMS (Notes 9-10 P67-68)
• Norms most likely to be effective/powerful
in relatively small stable community (L.S.
Section). Hard to socialize very large
numbers of people or frequent newcomers.
• Always useful to examine relevant norms or
customs to see what happens when no legal
intervention.
NOTES AFTER MAGUIRE:
NORMS (Notes 9-10 P67-68)
Norms differ from legal rule in some parts of Shasta
County and in area at issue in Maguire. Other
examples of norms differing from law?
• Speed Limits
• Miami: Three Left Turns when Light Turns Red
• Philadelphia: One Left Turn as Light Turns Green
• OTHERS?
NOTES AFTER MAGUIRE:
NORMS (Notes 9-10 P67-68)
Possible Effects if Law Differs from Norms?
• Strict Enforcement or Lot of Publicity can Alter
Norms (Fair Housing Act & Discrimination)
• Other Possible Effects?
NOTES AFTER MAGUIRE:
NORMS (Notes 9-10 P67-68)
Possible Effects if Law Differs from Norms?
•
Strict Enforcement or Lot of Publicity can Alter Norms
• Other Possible Effects Include:
– Loss of Respect for Law (Perceived Unfairness/Error)
– Opportunity for Selective Enforcement
• Downsides of Changing Law to Follow Customs?
NOTES AFTER MAGUIRE:
NORMS (Notes 9-10 P67-68)
Cons of Changing Law to Follow Norms Include
• Some Customs are Bad (sexual harassment)
• Lots of Customs are Imprecise
• Sometimes Law Affects What is Acceptable
Behavior Even if Not Followed Exactly :
– Speed Limit (55  70)
– Drinking Age (21  18)
NOTES AFTER MAGUIRE:
NORMS (Notes 9-10 P67-68)
Qs on Norms?
INTRODUCTION TO CARPENTER:
CHOOSING AMONG FOUR RULES (S60)
States mostly employ one of four rules
for private nuisance
– See Chart on S60 (we’ll go through in
detail as we proceed)
– DQ61 asks which is preferable & why
– We’ll use Carpenter cases to explore
INTRODUCTION TO CARPENTER:
CHOOSING AMONG FOUR RULES (S60)
For Purposes of Property Class, We Only
Care About Intentional Nuisance
–
–
–
Cases where D is deliberately engaging in
activity aware of likely harm to Ps.
These are the cases where there is a land
use policy issue; if accidental, D will stop.
2d Restatement makes clear that intent to
harm P is unnecessary for intentional
nuisance (See S64-65).
INTRODUCTION TO CARPENTER:
CHOOSING AMONG FOUR RULES (S60)
–
–
–
Carpenter I
Very useful even though overruled
Nice layout of four rules, history & policy
Many jurisdictions employ 2d
Restatement and so must agree with
gist of analysis in Carpenter I
INTRODUCTION TO CARPENTER:
CHOOSING AMONG FOUR RULES (S60)
1st Rule (McCarty): Strict Liability with
Two Defenses
– Coming to the Nuisance
– Oversensitive
INTRODUCTION TO CARPENTER:
CHOOSING AMONG FOUR RULES (S60)
1st Rule (McCarty): Strict Liability with
Two Defenses
– Coming to Nuisance (Relevant Everywhere)
• Sometimes Complete Bar to Recovery
• Sometimes Relevant Factor (2d Restmt)
– Oversensitive: True everywhere that harm
has to meet minimum threshold to be
actionable (trivial harm column on chart)
INTRODUCTION TO CARPENTER:
CHOOSING AMONG FOUR RULES (S60)
• All Rules Except 1st (McCarty) Require
Balancing Harm & Utility of Challenged
Activity
• DQ52 (Corn): We’ll Try to Do Balance
for Carpenter Facts Where Challenged
Activity is Expansion of the Feedlot