395.Midterm.Study.Hints.Fall.2008 - Law and Economics...

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Law and Economics Economics 395: Fall 2008 Martin K. Perry Study Hints for the Midterm October 23, 2008 Case Questions Private Nuisance Cases (1) Bove v. Donner-Hanna Coke Corp. (1932) This case concerns the legal criterion for a private nuisance. The two dimensions of establishing a private nuisance are discussed in paragraph 5 of the Appellate Division decision. Thus, the case involves whether the coke plant is or is not a private nuisance. Since there is no discussion of the remedy, we assume that the court would order an injunction if the plant was a private nuisance. So the interesting part of this case is what facts are important or determinative for finding or not finding a private nuisance. For example, ask yourself what really mattered for the decision of the Appellate Court. Who moved to the area first? Who benefits from being located next to whom? Is the plant using the best abatement technology? How annoying is the dust and odor, and to whom? What are the other neighboring uses? Why are these neighboring uses located here? How valuable is the plant versus the residences? What is the zoning for the area? The trial court opinion is useful for providing more detail about the facts, but the Appellate Court opinion provides the final decision. (2) Boomer v. Atlantic Cement Co. (1968) This case concerns the remedy for a private nuisance. All the courts agree that the cement plant is a private nuisance, so the question is whether to award the plaintiffs the traditional remedy for a private nuisance. The traditional remedy is an injunction to end the dust emissions, which typically means closing the plant. Since we are reading the case, the New York Court of Appeals probably does not order the traditional remedy. First, you need to identify what remedy the Court does order. There are several alternatives to the traditional remedy. The Court could order a damage remedy. So you need to understand the difference between temporary and permanent damages paid by Atlantic Cement to the plaintiffs. The Court could order a delayed injunction that would not take effect until some future date. And, the Court could order a combination of a damage and injunctive remedy designed to solve the dispute. Since the dissenting judge advocates a different remedy than the majority of the Court, you need to understand his proposed remedy and how it differs from the majority decision. Finally, if the Court ordered one of these non-traditional remedies, you should know how the Court justifies this new remedy.
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(3) Spur Industries v. Del E. Webb Development Co. ((1972) This case concerns the remedy for a private nuisance. The Supreme Court of Arizona takes it for granted that Spur’s feedlot is a private (and public) nuisance to the neighboring residents because of the flies and odors. So the issue is what remedy and for whom. Note that the case is complicated by the presence of Webb as the developer of the retirement communities near Spur’s feedlots. You need to ask whether or not the Court
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395.Midterm.Study.Hints.Fall.2008 - Law and Economics...

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