31st January 2020
Law and Economics: Seminar 1.
The Role of Considerations of Economic Efficiency in the Common Law.
Focusing on law and economics in the context of common law, will relate to contract and
tort law.
How efficiency may be relevant when it comes to developing legal norms found in the
common law.
Regulating Conflicting Land Use in Early Modern Law.
Jones v Powell (1629): Jones was the registrar for the bishop of Glosctuer. He complained
that a brewhouse had been set up next door brewing beer, and this burning fuel which
generated noxious smoke that bothered him, and causing his papers for the church to
discolour. Here, there is a claim for nuisance as by Powell operating the brewhouse, he is
causing a nuisance.
What considerations do we take into account to decide whether Jones should succeed in
this dispute?
- The degree of damage caused to Jones
- The social benefit of Powells activity. How important is the activity of the
brewhouse? Have to balance C’s loss against D’s economic interests but more
broadly societies interest. On face value may not be an obvious case about social
benefits. However, at the time the brewhouse was making ‘small beer’ (beer with a
low alcohol percentage) as water was not safe. Court took the view that this product
was not socially beneficially.
“What is necessary for the commonwealth can never be called a nuisance to any private
person” per Whitelock J. stating the importance of the brewhouse in society if something is
beneficial in society will not be considered a nuisance even if it interferes with C’s right and
enjoyment of his properties.
“In these matters the law is like clothing, which alters with the time” per Dodderidge j. what
is considered as beneficial or a nuisance depends on the needs in a particular time of
society, what was beneficial then may not be beneficial now, or may be beneficial for
different reasons.
Aldred’s Case (1610): C had an alleged that D had created a nuisance by a school being
created next door, and was distracted due to the “jabbering” schoolboys. This claim failed.
“it is lawful to keep a school anywhere” per Coke J. A school is a useful institution in society
therefore could never be categorised as a nuisance.
The benefit it has to society is given considerable weight by the court.
The Rise of Formalism in the Nineteenth Century.
St Helens v Tipping (1865): The alleged nuisance was smoke coming from a factory, which
was very acidic and affecting C;s enjoyment of his property. It was also causing physical
property to C’s land. Court stated that once you can show physical damage then the claim
succeeds, no balancing social utility about the harm suffered by C. If there was no physical
damage could be social balancing.
, 31st January 2020
Court also has to consider the remedies available to C.
Attorney General v Birmingham BC (1859): Birmingham was being sued due to its sewage
system, realising it into the local river. An action is public nuisance was taken which was
accepted, but what was the appropriate remedy. Birmingham said damages as if an
injunction was granted the sewage would have nowhere to go. Court said that he couldn’t
listen to the appeals of a public nature. The court suspended the operation of the injunction
for 6 months to give them time to sort out new disposal methods. Determined that there
was a right to an injunction once a nuisance was shown.
Sturges v Bridgman (1879): S brought a house next to a well-established confectionary
factory. S decided to build an extension next to house which was right next to the factory
and created vibrations throughout his house. His aim was to use the added room as a
doctors room but was unable to do so, so he brought a claim in nuisance. The factory
argued that they were first and there was no nuisance until he added the extension. The
court said that there is no defence of coming to the nuisance. The right to succeed in
nuisance was absolute.
Shelfer v City of London Electric Lighting Co (1895): The right to an injunction was absolute,
the court was unable to take away this right. Only parliament is able to take away C’s right
to a remedy. Distinction between what the courts can do and what the legislature can.
The Rise and Fall of Formalism in American law.
In the 19th century the English though that American law was more formalistic.
Swift v Tyson (1842): A common law question arose about negotiable instruments. Problems
arise in the USA that we don’t face in the UK as they have 50 different states, all of which
are responsible for determining the common law in that state. USA supreme court
determines federal cases. there is a possibility of fragmentation where different states take
different approaches. In this court a federal court decided whether C could bring a common
law case to a federal court rather than a state court. However, what common law principles
would they apply, state courts have their own principles. Held that the case could be held in
the federal court, not by applying principles of a state court, but by applying general
principles of the common law.
Lochner v New York (1905): The case concerned a maximum working day and week
legislation, which limited working hours in people in the banking industry in the state of
New York. The employers challenged this law saying it was unconstitutional and breach the
14th amendment, which says that you can only take life, liberty or property with due
process. Suggestion in Lochner was that the state was doing with this working restriction
was infringing the employer’s ability to contract on whatever terms they wish. Notion of
“substantive due process” protecting freedom of contract. OW Holmes dissented criticising
the case as “decided upon an economic theory which a large part of the country does not
entertain”.
Law and Economics: Seminar 1.
The Role of Considerations of Economic Efficiency in the Common Law.
Focusing on law and economics in the context of common law, will relate to contract and
tort law.
How efficiency may be relevant when it comes to developing legal norms found in the
common law.
Regulating Conflicting Land Use in Early Modern Law.
Jones v Powell (1629): Jones was the registrar for the bishop of Glosctuer. He complained
that a brewhouse had been set up next door brewing beer, and this burning fuel which
generated noxious smoke that bothered him, and causing his papers for the church to
discolour. Here, there is a claim for nuisance as by Powell operating the brewhouse, he is
causing a nuisance.
What considerations do we take into account to decide whether Jones should succeed in
this dispute?
- The degree of damage caused to Jones
- The social benefit of Powells activity. How important is the activity of the
brewhouse? Have to balance C’s loss against D’s economic interests but more
broadly societies interest. On face value may not be an obvious case about social
benefits. However, at the time the brewhouse was making ‘small beer’ (beer with a
low alcohol percentage) as water was not safe. Court took the view that this product
was not socially beneficially.
“What is necessary for the commonwealth can never be called a nuisance to any private
person” per Whitelock J. stating the importance of the brewhouse in society if something is
beneficial in society will not be considered a nuisance even if it interferes with C’s right and
enjoyment of his properties.
“In these matters the law is like clothing, which alters with the time” per Dodderidge j. what
is considered as beneficial or a nuisance depends on the needs in a particular time of
society, what was beneficial then may not be beneficial now, or may be beneficial for
different reasons.
Aldred’s Case (1610): C had an alleged that D had created a nuisance by a school being
created next door, and was distracted due to the “jabbering” schoolboys. This claim failed.
“it is lawful to keep a school anywhere” per Coke J. A school is a useful institution in society
therefore could never be categorised as a nuisance.
The benefit it has to society is given considerable weight by the court.
The Rise of Formalism in the Nineteenth Century.
St Helens v Tipping (1865): The alleged nuisance was smoke coming from a factory, which
was very acidic and affecting C;s enjoyment of his property. It was also causing physical
property to C’s land. Court stated that once you can show physical damage then the claim
succeeds, no balancing social utility about the harm suffered by C. If there was no physical
damage could be social balancing.
, 31st January 2020
Court also has to consider the remedies available to C.
Attorney General v Birmingham BC (1859): Birmingham was being sued due to its sewage
system, realising it into the local river. An action is public nuisance was taken which was
accepted, but what was the appropriate remedy. Birmingham said damages as if an
injunction was granted the sewage would have nowhere to go. Court said that he couldn’t
listen to the appeals of a public nature. The court suspended the operation of the injunction
for 6 months to give them time to sort out new disposal methods. Determined that there
was a right to an injunction once a nuisance was shown.
Sturges v Bridgman (1879): S brought a house next to a well-established confectionary
factory. S decided to build an extension next to house which was right next to the factory
and created vibrations throughout his house. His aim was to use the added room as a
doctors room but was unable to do so, so he brought a claim in nuisance. The factory
argued that they were first and there was no nuisance until he added the extension. The
court said that there is no defence of coming to the nuisance. The right to succeed in
nuisance was absolute.
Shelfer v City of London Electric Lighting Co (1895): The right to an injunction was absolute,
the court was unable to take away this right. Only parliament is able to take away C’s right
to a remedy. Distinction between what the courts can do and what the legislature can.
The Rise and Fall of Formalism in American law.
In the 19th century the English though that American law was more formalistic.
Swift v Tyson (1842): A common law question arose about negotiable instruments. Problems
arise in the USA that we don’t face in the UK as they have 50 different states, all of which
are responsible for determining the common law in that state. USA supreme court
determines federal cases. there is a possibility of fragmentation where different states take
different approaches. In this court a federal court decided whether C could bring a common
law case to a federal court rather than a state court. However, what common law principles
would they apply, state courts have their own principles. Held that the case could be held in
the federal court, not by applying principles of a state court, but by applying general
principles of the common law.
Lochner v New York (1905): The case concerned a maximum working day and week
legislation, which limited working hours in people in the banking industry in the state of
New York. The employers challenged this law saying it was unconstitutional and breach the
14th amendment, which says that you can only take life, liberty or property with due
process. Suggestion in Lochner was that the state was doing with this working restriction
was infringing the employer’s ability to contract on whatever terms they wish. Notion of
“substantive due process” protecting freedom of contract. OW Holmes dissented criticising
the case as “decided upon an economic theory which a large part of the country does not
entertain”.
