tchaikovsky, symphony #4 (1880) “capriccio italien” berlin philharmonic (1977) conductor: von...

Tchaikovsky, Symphony #4

(1880)“Capriccio Italien”Berlin Philharmonic

(1977)Conductor: Von Karajan

DEMSETZ SECOND THESIS

Over Time, Process Described in 1st Thesis

Leads to More and Stronger Private Property Rights

Over Time, Process Described in 1st 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/1st-in-Time)3.Can Have Non-Communal State Ownership

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

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

Over Time, Process Described in 1st Thesis Leads to More and

Stronger Private Property Rights

Why? Private Property More Efficient Than

Communal Property

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.

1. Claim: Private Os more likely to manage resource in way to maximize long term benefits

2. 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

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

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?)

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).

•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

•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

Over Time, Process Described in 1st Thesis Leads to More and More

Private PropertyAssuming Private Property

Results in Fewer Externalities …

Private Property• If Externalities High Change in Rule

Private Property• If Externalities High Change in Rule • Rule Changes Unpredictable

– If to Private Property, Low Externalities = Stable

– If to Private Property, Low Externalities = Stable– If not, Higher Externalities More Change

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

•Externalities Important•1st 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

•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)

ALSO (though we didn’t spend time on):

1st para.: Description of What Property Is (useful here & for Schnably)

•Expectations re Rights to Act•Protection from Others’ Interference•Construct of Particular Society/Culture

What Counts as Property = Construct of Particular Society/Culture

LOGISTICS: CLASS #12• OXYGEN: Mullett Brief Due Thu 9/20 @ 9pm• ALL: Assignment #1 Due Mon 9/24 @ 9pm• I’ll only take Qs through end of class Friday

• KRYPTON: Albers Brief Due Thu 9/27 @ 9pm

Questions on Assignments?

Manning v. Mitcherson:

BRIEF: RADIUMSTATEMENT OF THE CASE: •Mitcherson … ?•sued Manning, … •[theory of case]•[remedy requested]

BRIEF: RADIUMSTATEMENT OF THE CASE:

•Mitcherson, original owner (OO) of escaped canary•sued Manning, … ?•[theory of case]•[remedy requested]

BRIEF: RADIUMSTATEMENT OF THE CASE: •Mitcherson, OO of escaped canary

•sued Manning, who was given the bird by its finder,•[theory of case]?•[remedy requested]

BRIEF: RADIUMSTATEMENT 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

BRIEF: RADIUMSTATEMENT 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]?

BRIEF: RADIUMSTATEMENT 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.

BRIEF: RADIUMPROCEDURAL 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].

BRIEF: RADIUMISSUE (Procedural Part): Did the magistrate err in awarding possession

of the canary to the original owner … ORDid the Superior Court err by affirming the

judgment of the magistrate awarding possession of the canary to the original owner

BRIEF: RADIUMISSUE (Substantive Part): Did the magistrate err in awarding possession

of the canary to the original owner …

BRIEF: RADIUMISSUE (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].

BRIEF: RADIUMISSUE NARROW HOLDINGDid 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 :

RADIUMThe 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

• 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

• Narrowest Version Essentially Includes All Facts of Case• Broad Versions Address More Future

• 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

RADIUMThe 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]

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

RADIUMThe original owner retains property rights in an escaped animal ferae naturae …

Possible Significance of …that had distinctive crest

RADIUMPossible 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?

[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]

Possible Significance of …that responded to its namethat had escaped and returned once before

RADIUMPossible 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?

RADIUMPossible 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?

[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]

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]

RADIUMPossible Significance of …that had been owned for two years

again taming/bonding• Shows labor by OO (2 years maintenance)• Emotional connection probably strong

[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]

Possible Significance of …that had been missing for only five daysthat OO located day after it was found

RADIUMPossible 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?

[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.

(2) The original owner retains property rights in an escaped animal ferae naturae that is tamed and distinctively marked.

(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:DQ42: 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?

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 1st 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 …

…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 …

…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.

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?

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

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

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