Hedonic Damages

Brendan I. Koerner wrote on What's Your Happiness Worth?

"The accident had clearly stripped Johnson of substantial happiness, and he demanded compensation for that loss—"hedonic damages," in legal parlance. Other noneconomic tort awards, like money doled out for emotional distress, are arbitrary, based on little more than the jury's intuition and the size of past sums. There's no such thing as an expert witness on pain and suffering, since it's acknowledged that there's no way to calculate something so subjective. Hedonic damages, by contrast, are ostensibly rooted in science, based on a statistical formula that purports to translate a lifetime of joie de vivre into cold cash. That means the plaintiff can put an expert witness on the stand to explain the principles of hedonic damages and moisten a few jurors' eyes. Such testimony is often ruled inadmissible because of doubts that forensic economists can compute joy. But when the testimony works, it can inspire jurors to dole out millions." 


"The jury in the Johnson case seemed swayed by that logic. It awarded $3.5 million to Johnson and his wife, far more than they would have recovered had they pressed only for economic damages of lost wages and medical costs. How the jury arrived at that multimillion-dollar figure is a mystery to Smith, as he did not suggest an exact sum—and never does. "I orient them to the concept and give them the statistical values, then leave the final tailoring up to them," he said."

 Read the whole article online at:
http://www.legalaffairs.org/printerfriendly.msp?id=505

Re-defining property

Paul Graham writes on Defining Property

As a child I read a book of stories about a famous judge in eighteenth century Japan called Ooka Tadasuke. One of the cases he decided was brought by the owner of a food shop. A poor student who could afford only rice was eating his rice while enjoying the delicious cooking smells coming from the food shop. The owner wanted the student to pay for the smells he was enjoying. The student was stealing his smells!

This story often comes to mind when I hear the RIAA and MPAA accusing people of stealing music and movies.

[snip]

What counts as property depends on what works to treat as property. And that not only can change, but has changed. Humans may always (for some definition of human and always) have treated small items carried on one's person as property. But hunter gatherers didn't treat land, for example, as property in the way we do.

The reason so many people think of property as having a single unchanging definition is that its definition changes very slowly

Read the whole essay at
http://paulgraham.com/property.html

Value of life

from Saturday Morning Breakfast Cereal

Kidnapped Contract?

Lowering the Bar reports on a kidnapper who sued his victims for breach of contract for escaping.

... Dimmick alleges that, after breaking into the Rowleys' home with a knife and gun, they all then sat down and hashed out a deal under which they would hide him from police (the police who were right outside) for an unspecified amount of money. "Later," he complained, "the Rowleys reneged on said oral contract, resulting in my being shot in the back by authorities." Ergo, breach of contract.

Um, no, wrote the Rowleys' attorney in a motion to dismiss earlier this month. He had multiple arguments, all very good ones, as to why a contract claim would not fly here. First, there was no agreement. Second, if there was an agreement, there was no meeting of the minds on the amount of money (Dimmick admitted the "offer" was for "an unspecified amount"), and so no binding contract. Third, agreements made at knifepoint are, you may be surprised to learn, not enforceable as they are made "under duress." Finally, a contract to do something illegal (e.g. hide a fugitive) is also not enforceable.

Thanks to BoingBoing

Is blowing sand an illegal taking?

From the Kalamazoo Gazette:

“I have a dune that is literally covering my house,” Moravec told the Van Buren County Board of Commissioners on Tuesday.

Moravec lives in the Syndicate Park development north of the North Point Conservation Area, county property that is north of Van Buren State Park along the Lake Michigan shoreline. She said the county’s sand is covering three-quarters of her property.

The sand is coming from a sand dune owned by the county...

When a DNR employee showed up at her home one day, according to Moravec, the employee had to wade through knee-deep sand to get to the door. In winter the sand can be hip-deep, she said, and doors get blocked. “I want to preserve the dune,” Moravec said, but she also wants the sand off her property, which is surrounded by county-owned land.

Afterward the board meeting, Moravec told the Kalamazoo Gazette her next step is to get an attorney. “It’s an illegal taking of my property,” she said of the county allowing sand to migrate onto her property"

http://www.mlive.com/news/kalamazoo/index.ssf/2011/06/sand_dune_is_swallowing_up_wom.html

Fences

Brian Palmer in Slates writes on Good Fences Make Bad Neighbors.

"Fence laws originated with disputes over livestock, which may wander off their owner's land and cause damage. Judges and legislators have developed three different schemes for allocating the costs of restraining animals. Countries or states with "fence-in" systems require ranchers to build and pay for fences to keep their cattle on their land. "Fence-out" regimes allow livestock to go where they please, and impose the cost of fencing on neighbors who don't want animals on their property. Lastly, a few Solomonic legislatures have split the difference, forcing neighbors to share the cost of a fence, even if one of them doesn't want it."

See the whole essay at Slate.

Out West, Catching Raindrops Can Make You an Outlaw

The Wall Stree Journal's Stephanie Simon writes:

Every raincloud that passes over her eastern Colorado ranch tempts state Rep. Marsha Looper to break the law.

A long, hard drought has settled across the land, and on those rare occasions when the sky opens, Ms. Looper longs to set out some rain barrels to collect the bounty for future use. She'd like to use the rain to grow hothouse tomatoes. But she refrains.

"I don't want to get thrown in jail," she explains.

It is, in fact, illegal in Colorado to collect rainwater. State law is vague about the penalties, except to say that violators can be taken to court and ordered to pay damages. The state lacks the resources for vigorous enforcement and fines are extremely rare, officials say. Still, the law is the law -- and so Ms. Looper has set out to change it. This might just be her year.

Colorado, like most Western states, lives by a rigid and byzantine knot of water laws. Vast quantities of river water are made available, free of charge, to a variety of public and private interests, including oil companies, ski resorts, fire districts and breweries. The international food conglomerate Nestlé has applied for a permit to draw water from a Colorado aquifer and sell it in plastic bottles under its Arrowhead brand.

Those appropriations are made under a seniority system based on first-come first-serve claims staked out as far back as the 1850s. Colorado law explicitly states that every drop of moisture suspended in the atmosphere must be divvied up according to those claims. That means each drop must be allowed to hit the ground and seep through the watershed into distant rivers, where it can be doled out to claimants ranging from alfalfa farmers to ExxonMobil.

Ms. Looper, a Republican, thinks that's nuts. "They own every raindrop that falls out of the sky? Just ridiculous," she says.

With drought widespread across the West, many cities outside Colorado are encouraging rain harvesting through tax credits, rain-barrel subsidies, even building codes that require rain-catching cisterns in new developments. The membership of the American Rainwater Catchment Systems Association -- a trade group that represents any company or individual interested in the practice -- has jumped from less than 100 to nearly 600 in just two years.

But in Colorado and Utah, the only other state with a blanket ban on rain harvest, powerful forces are determined to continue limiting access to precipitation.

Setting a barrel on the lawn to recycle rain "sounds nice and efficient, but in my opinion, under Colorado law, that is theft," says Glenn Porzak, a lawyer who specializes in water-rights claims. "That rainwater is spoken for."

A link to the article [probably behind the subscription paywall]