Flogging a few dead horses, and one or two still twitching after this morning...

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Here's a few things that have been bothering me as I review:

1) Hochman v. Zigler -- I think one reason Zigler's behavior was so offensive is because his behavior violated not just how we feel about promises but also the way in which he should be compensated. He provides capital (land) to Hochman, and is compensated at the market rate by rent. After a time, Hochman's efforts lead to some unique value being attached to the location. Zigler did nothing to create this, and has been and is being compensated for the use of his land. So his extorionary efforts are an attempt to use monopoly power to extract money from Hochman.

2) Today in class we once again got into issues of subjective value, and left the issue with the idea that the party better be able to prove that they have some reason for their odd valuations. Why? Why not ask why the construction company didn't argue about the terms? Andrea's usage of trade point seems to mostly answer this, but then isn't this basically a wasteful exercise in formalism, intended to create a big paper trail to deceive the court? And if the court sees through it, why bother? The end result is a wasteful formalism that undermines the parties ability to clearly K about their subjective value. (Leading to Andy's point about how similar this looks to liquidated damages, where again we were judging the ability of parties to specify their subjective value.)

3) Interpretation and class -- Lessig says he doesn't want to guess what's in the judge's head, but isn't that what he did in guessing that Cardozo had made a judgment that the only way to explain Kent's behavior was as opportunism? The only way I can see to reconcile Lessig's statements is if what he wants is to disallow any extra-legal sources of the court's decision. Then guessing about Cardozo's mental state is okay, if we only use legal argumentation and the facts internal to the case. Does anyone else have this impression?

(if you have anything better to do, like sleep, skip this one) 4) Adhesion contracts and ProCD -- Easterbrook is attributing to the market too much flexibility. Obviously when we talk about the market we always have to keep in mind the dissonance between reality and the models we think about, but in this case it seems particularly glaring. In most of these products, it seems like there are not many products to choose from, and those that do exist don't compete on the basis of all contracts terms. (actually, I'm wrong in the ProCD case, as ProCD was expressly using K terms to differentiate products, presumably against competitors.) But generally, people only care about a few key features of any product, and don't waste their time with the rest. So people will consistently ignore the terms when buying the product, and if the courts take Easterbrook's position large amounts of time will now have to be wasted ex ante in analyzing and negotiating (if possible) about the K.

Shoot, if you made it this far, you deserve a smile. Hope this makes you laugh (and sorry Tim): Two Iowa boys are playing football when one of the boys is attacked by a rabid rottweiler. Thinking quickly, the other boy rips a board off the nearby fence, wedges it down the dog's collar, twists, and breaks the dog's neck.

A Des Moines Register reporter hears about the incident and rushes over to interview the boy. "Young Hawkeye Fan Saves a Friend from Vicious Animal," he starts writing in his notebook.

"But I am not a Hawkeye fan," the little hero replies.

"Sorry, since we are in Iowa, I just assumed you were" says the reporter. He starts again. "Iowa State Cyclone Fan Rescues Friend from Horrific Attack," he jots in his notebook.

"I am not an Iowa State fan either," the boy responds.

"I assumed everyone in the state of Iowa was either for the Hawkeyes or for the Cyclones. What team do you root for?" The reporter asks.

"I am a Nebraska Cornhusker fan," the boy says. The reporter starts a new sheet in his notebook and writes:

"Little Redneck Bastard Kills Beloved Family Pet."

-- Anonymous, December 09, 1998

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