Law Language and Ethics Outline

1. When do we have an interpretive problem?

When reasonable lawyers could disagree

2. Statutory Interpretation
A. statutory interpretation includes:
i. a persuasive reason
the reason for deciding this way or that…
ii. an authorizing reason (in support of)
you can look at that source for reasons…
iii. an excluding reason (for setting aside)
you canNOT look at that source…
iv. evidence backing the persuasive reason

B. Textualism
stick to the actual TEXT of the statute

1.the most restrictive form of interpretation

2. statutory meaning/language
i. is the term defined elsewhere in the statute
ii. OR: can it be read “in context” with the rest of the statutory language?

3. dictionary meaning
i. to “step back from your own judgment,” and check your opinion
ii. BUT: do you use the secondary or tertiary meanings??
a. how do you know which meaning to use?
and isn’t this then a normative judgment?

4. ordinary use / “plain meaning”

i. what is the way WE use this word??
ii. Scalia in Smith v. United States, how would normal laymen interpret the phrase “use a gun”? --> to SHOOT someone
iii. related to the rule of lenity: if the rule or law is ambiguous, then you should hold for the defendant!
a. you shouldn’t be punished for something you didn’t know was a crime
iv. people RELY on the text of statutes, not some abstract “intent” or “purpose”…

5. consistent with a restrained judicial role

i. the Courts aren’t supposed to introduce normative judgments
a. there’s a procedure, and Congress proceeds to make LAW
b. linked to Positivism & Formalism
ii. there is an implicit assumption that Purposivism is corrupted & untrustworthy
iii. other approaches allows the Ct. to substitute its own judgments…

6. there is NO ambiguity in the language, can’t read one in if it doesn’t exist

i. Rehnquist in United Steelworkers, discrimination on basis of race is clearly outlawed, doesn’t matter if you’re helping
African-Americans
ii. criticism of Intentionalism – the text is actually enacted, the intent is NOT

7. Wood’s reverse-textualist argument in Ulane (Appellate Ct.)

i. in the Civil Rights Act, Congress enacted the specific, traditional gender identity roles
ii. never considered homosexuals or transsexuals
iii. this can be proven because... Congress had chances to amend it, but never used them,

8. criticisms of Textualism
i. interest groups influence legislation, and not transparently…
ii. the legislature’ job is to make GENERALY rules
and then the judicial interprets them…

C. Intentionalism
use evidence of legislature’s decision-making process & considerations

1. use Intentionalism to fill in ambiguities in the text…

i. it’s the Constitutional role & responsibility of the Judicial branch to interpret statutes
ii. Judges should give effect to what the legislature was trying to do…
iii. look for legislative statements to resolve issues

2.legislative Intent, can be pieced together from:

i. advisory committee notes, committee reports, documents, etc.
ii. in some instances, the legislature simply has never thought of or discussed a matter; E.G. transsexuals & the Civil
Rights Act

3. the problem of legislative silence

i. the legislature CAN be silent on issues…
ii. in which case, you can argue intent either way
a. perhaps to justify your own personal views/wishes
b. “the legislature didn’t speak on this, because obviously…”
United Steelworkers:
i. Rehnquist - it doesn’t say race discrimination is permissible
ii. Brennan – it does not PROHIBIT affirmative action

4.Criticism:
i. which level of generality do you use? how should it be read?

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ii. was there a MAJORITY that passed the bill?

what if vote turned on 1 person, do we use THAT person’s opinion??
iii. interest groups influence legislation,
AND there are many different groups & opinions,
no single ‘legislative mind
iv. Intentionalism is irrelevant anyway,
E.G. Scalia: just read the PLAIN text of the statute,
THAT shows the intent of the legislature…

D. Purposivism / all-things-considered value judgment

read in the PURPOSE of the legislators

1.the most EXPANSIVE form of statutory interpretation

2. use if… some of the statute’s language IS abstract, needs interpretation
i. indeterminacy is a permanent feature of law
ii. the language IS highly general, and we need it to be more concrete
iii. therefore, a Court’s job is to delve deeper, this is NOT a deviation of its proper role…

iv. E.G. Breyer in Zuni, the statute’s literal language can cover any of these meanings, so let’s give it the purpose
intended by Congress, …leaving out above 95th and below 5th is against the meaning

v. purposivists would argue that textualists make the same arguments that we do, they just do them covertly

3. why would the legislature want to do this?

i. what do you understand to be the point or sense of the rule??
E.G. no spilling blood in the streets, obviously not directed towards life-saving surgery…
ii. what social goal was the Congress trying to further?
iii. what mischief was the statute directed against
O’Connor in Smith v. United States, it heightens the danger level when you bring a GUN into a drug deal, period.
(a Natural Law view of the law)

4.there are SUPPOSED to be moral/normative judgments in law…

E.G. the Civil Rights Act was meant to rectify centuries of hurtful discrimination, stood for the principles of treating people
as equals

5. Grady in Ulane; whether drawing a distinction against a transsexual goes against the (implied) purpose of the
Civil Rights Act
--> which is to NOT allow distinctions that treat people as inferior

3. Theories of Adjudication / how to apply law to facts

A. Legal Formalism / legal syllogisms
“our formalist conscience”

i. theoretical underpinnings
a. the Rule of LAW, not of Men
b. an objective, systematic way for rules to be made
c. “a conclusion necessarily follows from a set of premises”
d. judges are NOT allowed to make value judgments…
Formalism shelters the law from moral & political arguments
the “moral principle” behind Title VII is AGAINST Formalism

ii. the three-step model of deductive reasoning, a syllogism

a. legal rule + question of law + findings of fact/evidence = decision

b. Question of Law:
i. Major premise – the statute
Title VII of Civil Rights Act, no discrimination w/ sex
ii. + Minor premise – application/interpretation of the statute
transsexual is within the meaning of “sex”
iii. = Holding– cannot fire based on transsexuality

c. Question of Fact:
i. Major premise – the decision of law (the holding)
unlawful employment practice to fire for transsexuality
ii. + Minor premise – finding of fact
Ulane was fired b/c she’s a transsexual
iii. = Disposition – Eastern Airlines did an unlawful firing

d. judges should apply law to facts,

e. impartial, reasoned & based on law
f. *distinguish adjudication from policymaking

iii. Legal Formalism is about RULES within a system

a. it is linked to Positivism
where the law comes from & how it’s enacted gives it authority…
b. *distinguish from instrumental means-end reasoning
(I want to achieve Y, so I do X)
c. *also distinguish from substantive reasoning
(no man should profit from his own wrong)

iv. Criticisms

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a. Formalism is excessively logical & unrealistic

b. there is an interpretive problem, HOW to classify things, ‘
invites value judgments; CA’s snack tax, are bagel crisps a “snack”??

B. Legal Realism
“our realist doubts”

i. theoretical underpinnings
a. Realism is skeptical of the conceit of legal formalism,
b. judges can’t be objective,
ALL judgments are (in a sense) value judgments
c. and all relevant reasons should be considered…
d. the ideological or political orientation of judges
judges decide issues in a way that is consistent with their ideology
(but may even be aware of their own biases)

ii. Legal Realism is also Future-Oriented

a. how will this holding or category affect future interactions?
b. what are the consequences? how will this be INTERPRETED?

iii. Realism’s Critique of Formalism & Positivism

a. Cohen – they are fraudulent, appeal to meaningless terms from a “heaven of concepts”
b. the term “wrong” is just a placeholder for something, doesn’t exist…
c. you ALWAYS sit down and make normative judgments

c. Natural Law
“our natural law imagination”

i. theoretical underpinnings
a. principles are different from rules:
E.G. “no man should profit from his own wrong”
is a guiding principle…
b. they have an added dimension of weight, or importance
i. E.G. fairness, or justice
make sense of the underlying convictions
ii. E.G.2. common law is the truth about
our rights and duties vis-à-vis one another
c. Natural Law looks backward
i. what was the point & sense of the rule, then classify it

ii. Natural Law is linked to Purposivism

a. the “latent purpose” behind the statute

D. *theories of adjudication CAN be used for statutory interpretation…

4. Theories of Law
A. Legal Positivism
i. the authority that law derives from…
a. Congress & The President, The Constitution, etc.
b. Locke’s state of nature, people making civilized rules in order to govern themselves
c. the authoritative norm that laws are based on
(marks off LAW from non-law…)

ii. the legal system IS the authority

a. such law is what an identifiable law-source (the sovereign) articulated or said at an identifiable time
b. *theoretical foundation for Formalism!
a system put in place by legal authority…

iii. differences between Legislative & Judicial reasoning

a. Legislative Reasoning – to think about VALUES, not categories

i. is this the kind of behavior we want to address?
ii. should be forward-thinking, NOT focusing on the words
(citizens should be able to understand the language)

b. Judicial Reasoning – reference the pre-existing rules

i. the Court will determine the words the legislature tried to say
consult the dictionary & ordinary usage, etc.
ii. but this is rational, NOT subjective, not just people’s opinions
iii. *shelter legal reasoning from people’s value judgments

B. Rules, Standards, and Principles

a. Rules – the speed limit is 55mph

i. Rules are more precise
ii. they have “either-or” force, either you satisfy it or you DON’T
*unless you fall under an exception
iii. they are NOT transparent as to their underlying reasons
you don’t question the rule, just apply it or don’t…

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iv. Advantages
1. can be formulated & applied effectively (in recurring circumstances)
2. easy to apply, clear as to what they require
3. coordinate behavior more effectively

v. Disadvantages
1. they can be under-inclusive AND over-inclusive
2. may become out of sync with reasons/greater good
E.G. should “no vehicles in the park” include strollers??
E.G.2. tax rules allow tax lawyers to get around them
3. circumstances may be hard to anticipate in advance…

vi. *Rules bind PEOPLE, to coordinate peoples’ behavior

b. Standards – drive at a “reasonable speed”

i. Standards are relatively abstract & also context-sensitive
ii. must make an evaluative judgment to apply it,
what constitutes “reasonable” or “safe”?
iii. they are TRANSPARENT as to their underlying purposes
similar to “rules of thumb”
iv. they are more inclusive than Rules,
use in lieu of full information…
v. “reasonable person” is the quintessential Legal Standard…

vi. *Standards bind PEOPLE

c. Principles - “no man may profit from his own wrong”

i. even more vague than standards, requires evaluative judgment
ii. a Principle has “weight” & varies from context to context
does NOT have “all or nothing” force
iii. they can be used to OVERRIDE otherwise valid Rules
E.G. π kills his parents & then tries to recover on their will, NO! b/c ppl shouldn’t profit from their
wrongs
E.G.2. adverse possession defeats no man can profit…
b/c people should take care of their land & not horde it

iv. *Principles bind COURTS & not necessarily people…

(similar to purposes & policies)

C. Common Law Reasoning / Rule Extraction

common law legal rules are written by the COURTS that apply them

A. the basics
a. they are all rules of thumb, not usually hard-and-fast rules
b. are NOT constitutive rules,
but rather they are transparent as to their justifications
c. there is NO canonical text,
i. previous holdings are binding, but they are contestable
ii. and you formulate the rules from reading them
d. previous holdings can be read in ways, and claimed to stand for different principles…
i. and you can extract a rule from a progression of cases, that turns out to be a totally different rule
e. *sometimes Courts are confident in their decision, and THEN go back to rules/reasons and formulate an opinion

B. Rule of Privity cases

the problems of retroactive lawmaking…

1. Burkett
a. the basic rule is, manufacturer is NOT liable to third parties who buys goods from an intermediate dealer
b. only liable if the manufacturer knew it was “imminently dangerous to human life or health”
c. there is no privity of contract, no direct contractual relations

2. Boyd – Coke w/ cigar stub

EXPANDS the “imminently dangerous” standard

a. something is imminently dangerous when it’s negligently made

i. (as opposed to inherently dangerous meaning a poison, etc.
a product that is, in some ways, meant to be dangerous)
b. and people HAVE to consume foods, which includes Coke
i. (and you cannot expect the middleman/retailer to inspect the bottles, they aren’t consuming it)
c. therefore, Coke IS on the hook for failing to inspect the bottles

3. Ligget & Myers – a bug found in chewing tobacco

distinguishes Boyd, doesn’t apply to vices…

a. interprets Boyd to only apply to foodstuffs

b. but considers tobacco to be a VICE, and not essential or important for human life/health
c. food, on the other hand, is nourishment for the body

d. *however, Thomas v. Winchester said inherently dangerous products should have privity of contracts, but Ligget
didn’t use it as precedent… so the judge decided to “pick and choose”

4. Crigger – Coke w/ partially decomposed mouse

expands the exception with TORT norms

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a. Due Care – you, as the manufacturer, create certain expectations in the consumer, AND benefit from those
expectations
i. people trust a brand, and trust that you will exercise due care…
b. Warranty – it is impliedly stated that all Cokes are fit for human consumption, and NO Cokes will have
decomposed mouses
c. liability is based on an omission of duty or an act of negligence
d. and proper inspection would have stopped the mouse from being in the bottle, therefore it is due to negligence
e. Coke is liable…

5. Pillars v. R.J. Reynolds – a decomposed human toe in tobacco

overrules the tobacco exception, Yes liable!

a. consider the way in which tobacco is used…

b. “a step forward for the health and life of the public”
c. he who prepares food or drink should exercise great care, and tobacco is just as likely to hurt someone, therefore
the tobacco company is NOT off the hook…

6. Macpherson v. Buick – automobile with wooden wheels

the exception (finally) swallows the rule, use Torts!

Cardozo – this is what all the other cases stood for…

a. there is ALWAYS an obligation to exercise Due Care
b. “reasonable foreseeability of harm is the basis for Due Care”
the question is of degree, how MUCH care is required?
c. if the nature of a thing makes it reasonably certain to place life and limb in peril when negligent made, it is a thing
of danger
> and it thus require more care…
d. the demise of privity of contract

Bartlett/DISSENT - NO, Cardozo used Buick to change the law!

e. “I do not see how we can uphold the judgment in the present case w/out overruling what has already been said by
courts…”
f. there is a difference between inherently & imminently dangerous
g. a car CAN create a risk, but a poison is essentially… meant to be dangerous, imminently dangerous!
h. this holding gives too much responsibility for Buick…

5. Law & Economics / The Coase Theorem

circumstances where one person’s behavior imposes a cost on another

A. general Economic theory

1. basic ideas/assumptions
i. we live in a rational choice in a world with limited resources (relative to human wants)
ii. people to rationally satisfy their wants, to maximize their satisfaction
iii. and people are rational & respond to incentives
iv. competitive markets – a special circumstances where self-interested action maximizes value

2. law of demand
i. when the demand for a good/service goes up, the price also goes up --> more people chasing fewer resources
ii. and when the price goes up, people try to avoid paying it
(E.G. stealing someone’s car may come with criminal sanctions, which you will want to try and avoid)

3. costs & benefits

i. opportunity cost - if you diverted money/resources to one thing, as opposed to something else
ii. transfer payment – money is transferred from one party to another, a redistribution of wealth
(such as a judgment in a lawsuit, does NOT increase total value…)
iii. sunk costs – people should be forward-looking, towards the future, whatever is already spent is gone…
iv. social costs/benefits – can either increase the total amount of value in the world, or shrink it
i. law should seek to maximize social value, & minimize disvalue
E.G. a loud candymaker’s office should NOT be next to a surgeon’s office, put the candymakers together!
E.G.2. a polio vaccine should be given to as many people as possible…

4. Pareto efficiency
i. Pareto superior - if it makes at least one person BETTER off, and no person WORSE off
(this works when different ppl put different values on things…)
ii. Pareto optimal – no change can make ANYONE better off, without making someone worse off

iii. Problems – very few changes make no one worse off

also, if I have all the money in the world, that is Pareto optimal..

5. Kaldor-Hicks
i. measure changes in people’s welfare, based on how much they would value that change
ii. Kaldor-Hicks efficiency - those who are better off COMPENSATE those who are worse off
1. Don’t have to actually pay, just have to potentially be able to pay.
iii. what would people be willing to pay for something that hurts others, in order to compensate them?
E.G. the Learned Hand formula, cost-benefit analysis
E.G.2. forcing companies to pay to pollute
iv. is the risk or activity worth it?
v. Sort of a form of trickle-down economics

6. Externalities
i. spillovers; some effects of human conduct are not captured in present prices, both positive AND negative effects
i. Positive Externality – when Disney builds Disneyland in CA, increases property values around it, E.G.

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hotels/motels, food
ii. Negative Externality – a concrete plant spews cement dust onto its neighbors’ property, makes them sick, etc.
ii. the party that creates the externality does not necessarily pay for the cost or capture the benefit; this is inefficient
i. Disneyland buys the land around the theme park
ii. the concrete plant pays off the neighbors

7. Game Theory / Collective Action Problems

i. sometimes when actors’ rational pursuit of their self-interests does NOT lead to a good outcome
i. E.G. the Prisoner’s Dilemna, each prisoner will have incentive to rat out the other, and they both wind up serving
more time
ii. no player can improve his/her position with COOPERATION of the other player, but there is no communication or
organization
iii. Collective Action Problem – it is prohibitively expensive for all the parties to get together to tackle a problem
i. therefore, benefits are not properly incentivized
ii. and costs are not properly avoided or compensated
iv. the solution to a Collective Action problem is coercion,
which is where the LAW comes in…

B. The Coase Theorem

Assuming there are no transaction costs, resources will be allocated efficiently among parties
regardless of the initial assignment of entitlements.
C. Nuisance Law Issues
1. Hypothetical – Factory
i. the factory spews smoke that damages laundry hung by 5 neighbors, each suffers $75 in damages - $375 total
ii. neighbors can prevent by installing electric dryers, which are $60 each and $300 total
iii. OR the factory can install a smokescreen for $150

iv. therefore, the neighbors should offer to PAY the factory to get a smokescreen, rather than getting dryers
v. the parties will probably settle on a price between $150 and $300

2. Problems:
i. Transaction Costs – the cost of everyone getting together and making a deal costs too much
(E.G. information, negotiation, time, strategic behavior, etc.)
ii. Strategic Behavior – all parties, including the neighbors will want to capture the surpluses
iii. Information Hazard – how do you value damages or benefits?
a resident might attach sentimental value to property
& may not have incentive to disclose true information,
to try and drive the price up, etc.

iv. Information Problems

i. can’t get efficient solutions without good information
ii. it costs money to educate the public about something
1. E.G a safety ad campaign run by Mercedes for its cars
2. if Mercedes does this, BMW’s best move is to sit back and see if consumers respond
3. then it will profit off of Mercedes’ labor, which will disincentivize Mercedes…
iii. E.G.2. – Market for Lemons
1. if you have a sub-average shitty car, the last one built on a Friday night, etc.
2. you have an incentive to sell it and NOT disclose that it sucks
3. (solutions would be for a buyer to take it to a mechanic, CarFax, if the dealer provides a warranty, etc.)
iv. *information asymmetry is common

v. Moral Hazard Problem

1. the seller didn’t price the initial transaction correctly…
2. the problem arises AFTER a contract is formed
when incentives work against the other party & not you
you may then behave differently…
3. E.G. insuring your home with fire protection
then don’t care about being careful so it won’t burn down…
4. *the company solves this by requiring co-payments, monitoring you, putting no arson clauses, etc.

5. Principal Agent Problem

a. how to align the incentives between principal & agent??
b. E.G. lawyers, it is difficult for clients to monitor them
because, if they are paid…
i. a fee for services
(then they’ll give you more lawyering than you need)
ii. contingency
(then the least lawyering time for largest reward)
iii. fixed rate
(they’ll give you LESS lawyering than you need)

c. Gilson – Do Lawyers Add Value?

i. (transactional) lawyers diminish OTHER transaction costs by solving asymmetry problems
ii. E.G. a large corporation is selling to another
seller wants to drive up the price based on the company’s “projected” performance
iii. the lawyers can structure special deals
E.G. contingency fee deal, the seller gets paid half now, and half upon the company’s expected
performance…

3. Possible Entitlements/Protections:
i. Right to Clean Air / Property Rule
an injunction against the spewing factory…

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ii. Right to Clean Air / Liability Rule

the factory owes $1k for every unit of damages, efficient!
iii. Right to Clean Air / Property Rule, Partial Injunction
the Court does not allow production of more than one unit…
this is Kaldor-Hicks efficient, but not necessarily Pareto

D. Problems/Criticisms of Law and Economics

1. Kennedy / economic analysis is indeterminative
i. there is NO way for economic analysis to get all the information needed
(therefore, it is covertly evaluative & susceptible to manipulation)
ii. you never know how much value people put on things
iii. so, you wind up making normative/policy judgments

iv. E.G. 1 – The Killswitch

assume cars are prone to sudden acceleration…
i. there IS a solution, a killswitch
ii. although it may be worth it,
people don’t know how common the acceleration incidents are
and it costs $$$ to educate the public
1. Free-rider Problem – all manufacturers will want to sit back and let other manufacturers spend $$$ to educate
2. Competitive pathology – because consumers aren’t educated, manufacturers will want to reap profits by
taking away the killswitch, and everyone follows suit…
3. False competitive pathology – consumers don’t value kill switches enough to pay for them

v. E.G. 2 – Above-Ground Pools

i. people diving into them was a problem, caused quadriplegia
ii. the law said pool manufacturers are liable for every instance
this would drive them out of business…
iii. Problem – you can’t eliminate the risk without eliminating the product altogether, but some ppl want above-
ground pools…
iv. (or simply can’t afford below-ground pools)

2. Dworkin / wealth maximization does NOT equal social value

i. putting resources in the hands of the people most able to pay for it, does NOT necessarily represent value…
ii. it is NOT clear that we should always identify Pareto increases with increases in wealth or well-being
iii. tension between liberty & wealth maximization
iv. *criticizes Posner

v. Derek & Amartya 1

Derek has a book, he is really poor and values at $2
Amartya is super rich and values the book at $3
the Tyrant forces Derek to give the book to Amartya
> what is better about this world?

vi. Derek & Amartya 2

Derek LOVES the book,
but he is super poor & super sick, needs to sell the book for $$$
Amartya is still rich & content,
buys the book in the off-chance that she will someday read it
> this is NOT an improvement in well-being
Amartya is a little better off, Derek is seriously worse off

vii. Agatha & Sir George

Agatha writes detective stories, but George owns her labor
he will work her to the point of exhaustion to maximize $$$
if Agatha wants to buy her freedom, must work even harder
> this defeats the point of being free,
if she can’t enjoy the fruits of her labor

6. Institutional Rights / overriding considerations

do people have inherent “rights” that outweigh economics/rational decisions?
A. General Rights Theory
1. Trolley Problem
i. is there a difference between actually killing someone and simply “letting them die”
ii. distinguish with the doctor cutting up a healthy patient so he can give his organs to 5 patients
i. this may not be acceptable even if it is rationally/economically efficient, and fits the goals of utilitarianism
(greatest good for the greatest number)
2. Lifeboat hypothetical
i. 5 people on a lifeboat in the middle of nowhere, is it ok for them to draw straws and start eating each other?
i. (this would be economically rational for each actor since they probably won’t draw)
b. is there some inherent dignity/value in retaining your humanity and not resorting to cannibalism?
3. Institutional Theories of rights
i. if you are participating in something and consent to it, your rights are bound by the rules of the game…
ii. so what is a fair interpretation of the rules?
i. Bobby Fisher & Chess, is “enigmatically smiling” at Fisher breaking the rules of Chess?
ii. must determine what kind of game Chess is… a game of intellect, of strategy?
iii. *similar to implied consent

B. Hart’s Theories of Rights:

1. Zones of Sovereignty
i. the right to dress yourself

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ii. to have dominion over your own property

iii. freedom of Religion, Association, Speech, etc.
i. E.G. the Trespass cases

2. Benefit Theory of Rights

i. the party who benefits from the performance has an obligation to compensate for that performance
ii. E.G. Vincent v. Lake Erie, allocative justice

3. Interest Theory of Rights

i. protect IMPORTANT interests in which people have huge stakes,
ii. must consider all parties that are affected
i. E.G. national security
ii. E.G.2. vaccinations, we coerce people into getting them because it is necessary for public health

C. Property Rights / Trespass cases

1. Silver King / Utah case
i. a piece of barren, worthless land
ii. the defendant needed to run a pipe through it, for an economically valuable enterprise (water company)
iii. plaintiff refused, so the ∆ brought his private army & laid down some pipe
iv. there were no actual, monetary damages to the plaintiff, so the Court awarded nominal damages of $1
2. Massachusetts case / septic system
i. the plaintiff’s house is uninhabitable unless the septic system is installed
3. Jacques / the mobile home
i. defendant wanted to tow a mobile home across the plaintiff’s property during the winter, when snow was covered
ii. plaintiff refused
iii. defendant did it anyway and was fined $100k, essentially making it unprofitable to have towed the mobile home..
4. Distinguish the right to exclusive control of your property
i. the right to exclude people/things from property
ii. the power to transfer property

5. the Trespass Cases are discomforting because:

i. efficiency – money damages do not seem to work; property owners either won’t accept money or ask for too much
ii. fairness – NOT about better or worse off, but about reconciling claims of some kind

Q’s for Keating

Right to Clean Air / Property Rule, partial injunction pros & cons?
Kennedy, a realist critique of Law & Economics?