Defn of property; Justifications

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Nuisance vs. trespass – trespass easier to prove; sometimes they overlap (some places think noise and air pollution are physical trespass)
Per se – unreasonable if anyone is harmed

  • ultrahazardous

  • or deeply offensive

OR active conduct that seems physically intrusive
Coase: Say how parties are injuring each other

  1. Joint cost theory

  1. eliminates idea of fault

  2. all uses conflict with others & imposes costs on them

  1. Entitlement given by the ct. doesn’t matter

  1. WHEN there are no transaction costs

  2. Parties will bargain so that the outcome is the one with the greatest social utility (based on who was willing to pay what)

  1. Good to give an injunction not damages – so the parties can bargain it out


  1. bargaining won’t happen b/c of transaction costs

  2. So – should put duty on the person best able to avoid the injury (technologically or wealth) – efficiency argument

  3. Coase acts like social utility is maximized b/c people pay as much as it’s worth to them to eliminate/continue the activity – but people don’t have enough $ to get what they want (or have so much, no one can pay them enough) Wealth effect

  4. Endowment effect affects bargaining (if you have something, you want more $ to give it up that someone would pay to stop it) – so the entitlement matters

  5. Ignores outside parties –who aren’t a part of the bargaining

Threshold test

  1. if P has been harmed over a certain amount – D is liable for

nuisance (then damages are decided)

  • Includes a normative decision as to what constitutes an injury

  • Ex. Morgan v. High Penn Oil – Ct. looks at injury to P; finds it’s over a certain amt; finds for P Normative right = to be free of smelly gases

  • Ex. Estancias Dallas Corp. v. Schultz – Ct says – injury to P so D is liable Normative right = right to be free of loud AC noise

Modern tendency – balancing test

  1. uses comparative test to decide nuisance liability

  2. P’s costs from keeping (and benefits from finding nuisance) vs. D’s costs of eliminating (and benefits from staying)

  3. OR Restatement test harm vs. utility of D’s conduct

  4. D’s costs – should be measured in a way that will cause better behavior (cost of not having created the problem to start with)


  1. injunction v. damages – use balancing test (Boomer) costs of injunction v. costs of just granting damages

  1. includes – does the “nuisance” have some social value?

  2. Is the harm very great?

  3. Maybe even so great that ct. should not let the parties bargain out of it

Maybe paternalistic – but overcomes wealth effect (where P would sell out for much less than it’s worth); and there’s more social value in actually stopping the activity

  1. Liability (damages) – D pays for cost to P of the nuisance but doesn’t have to stop; OR D doesn’t have to pay to eliminate the nuisance (if they’re not liable)

  2. rare remedy – to find no liability for D but make P pay them to move

Directory: sites -> default -> files -> upload documents
upload documents -> Always put things in threes (eskridge has ocd) I. Procedural Due Process and Reading a Case
upload documents -> Federalism – The Structure of Government
upload documents -> General Info About Property law
upload documents -> Con law professor Larry Sager Fall 1995 I. U. S. Term limits V. Thornton
upload documents -> Property with Professor Vicki Been
upload documents -> Property Outline – Professor Upham, Spring 2000
upload documents -> Constitutional law outline part I: structure of government judicial review and constitutional interpretation
upload documents -> Complex federal investigations
upload documents -> Foundations: Agency Law Introduction to law of enterprise organizations
upload documents -> Pricing v. Sanctions

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