re law and economics procedural note ted directed followups to misc legal only while i respect his right to do so my own opinions are that followup to fields are mere suggestions not mandatory commands and this issue is of sufficient a general political relevance and b civil liberties interest to warrant keeping it active in t p m and a s c l as well at least for this round in article apr midway uchicago edu thf midway uchicago edu said uh no that s not what happened in boomer what happened in boomer was that the judge didn t allow the plaintiffs to blackmail the cement plant by demanding a multi million dollar plant to be shut down over in damages and required the plant to pay the plaintiffs the to make them whole the plant would never have been shut down the plaintiff s lawyers would have just negotiated a windfall settlement because the plaintiffs would prefer an amount greater than k to having the plant shut down while the plant would prefer any amount less than the value of the plant to have the plant continue in operation everyone s property rights were protected the plaintiffs were made whole unnecessary settlement costs were avoided okay now here s my interpretation of boomer based on the facts as presented in the new york court of appeals holding boomer v note the new york court of appeals is the highest court in new york state while the united states and of the fifty states call their highest court supreme court supreme judicial court or supreme court of appeals maryland and new york call theirs simply the court of appeals to make matters worse new york also calls its second highest court the supreme court appellate division atlantic cement co n y d n e d oscar h boomer et al owned land near the atlantic cement company s plant near albany n y the fact pattern gives no information as to which came first the plaintiff s acquisition of the land or he defendant s start of production at their cement plant in the course of its regular operations the cement plant did injury to the plaintiffs property via dirt smoke and vibrations emanating from the plant the plaintiffs sought injunctive relief that is they asked the court to order atlantic cement to stop damaging their property commentary this seems entirely reasonable to me boomer at al owned their property and presumably a right to quiet enjoyment of it atlantic cement s actions were depriving boomer et al of that right instead of granting the plaintiffs request for an injunction the court ordered them to accept the damage being done to their property provided that atlantic cement paid them in compensatory damages in other words the court granted atlantic cement co a private party the power and authority to take the plaintiffs rights to quiet enjoyment of their property by eminent domain a taking by eminent domain is always problematical even when it s done by the state allowing a private firm to do it is in my opinion totally wrong yes i know the boomer court didn t call it eminent domain but if it walks like eminent domain and swims like eminent domain and quacks like eminent domain let me take issue with the way you ve presented the case you say that what happened in boomer was that the judge didn t allow the plaintiffs to blackmail the cement plant by demanding a multi million dollar plant to be shut down over in damages blackmail pulls out black s law dictionary abridged th edition blackmail unlawful demand of money or property under threat to do bodily harm to injure property to accuse of crime or to expose disgraceful defects this crime is commonly included under extortion statutes how do you define as blackmail one party s act of demanding the right to set its own sale price for a unique piece of property which it owns and which another party has expressed an interest in buying or of demanding the right not to sell that property at any price as i see it boomer et al having found themselves in the fortunate position of owning something which atlantic cement had to purchase if it wanted to stay in business had every right in the world to set whatever price they wanted there isn t or at least shouldn t be any law that says that you have to be a nice guy in your private business dealings you go on to say the plant would never have been shut down the plaintiff s lawyers would have just negotiated a windfall settlement because the plaintiffs would prefer an amount greater than k to having the plant shut down while the plant would prefer any amount less than the value of the plant to have the plant continue in operation if so so what since when are the courts supposed to be in the business of preventing parties from reaping windfall settlements from other parties when those settlements arise from wrongful acts by those other parties if atlantic cement didn t want to have to face a choice between paying a windfall settlement or going out of business well shouldn t atlantic cement have thought of that before going into business i note that as far as the facts show boomer et al were not the parties responsible for bringing about this situation that was atlantic cement s own fault for choosing to build and operate the type of plant they did where and when they did and then you say everyone s property rights were protected the plaintiffs were made whole unnecessary settlement costs were avoided as above i dispute your claim that the plaintiffs were made whole they were in fact by court action deprived of their rights as owners of property to choose to sell or not sell that property at a price acceptable to them and for that deprivation they were not made whole and again i ask since when are the courts supposed to be in the business of ensuring that unnecessary settlement costs are avoided if so i ve been miseducated i always thought that the courts were supposed to be in the business of ensuring that justice is done is boomer really being taught as infamous that s really sad if it is because i fail to see how it s less than completely sensible you should read the law and economics stuff first hand instead of filtered through teachers who clearly don t like it for whatever inexplicable reasons boomer is not being taught as infamous at least not at my school aside northeastern law usually does a very good job of hiring for their first year mandatory classes such as torts where i first encountered boomer instructors who regardless of their personal opinions can and do teach the law neutrally when the students get into their second and third years in which the students a can pick and choose which courses to take except for the mandatory professional responsibility of course and b are presumed to be a bit more worldly and self confident less likely to be consciously or sub consciously intimidated by law school professors and able to learn from openly biased instructors rather than be indoctrinated by them the instructors tend to be more open in expressing their own opinions this is especially true of part time instructors who in real life are practicing attorneys or sitting judges this can be very educational sometimes far more so than being taught by a somewhat cloistered scholar end of aside i called it infamous because that s my opinion of it for the reasons i ve stated above i believe it to be a triumph of something that i can only call economic correctness over justice it is completely sensible only if you believe that the alleged right of the owners of atlantic cement to stay in business and avoid losing a lot of their own money due to their own wrongful act and the alleged right of several hundred atlantic cement employees to not have their jobs disappear should trump the rights of people who own property which was damaged by atlantic cement s wrongful acts and if you believe that it is correct for the courts or any other branch of government to grant to private parties the right to take other people s property by eminent domain you d like posner bill he s a libertarian really i didn t know that what if anything has he had to say about cases like boomer of course he has too much of a paper trail to ever be nominated by a president democrat won t like his antitrust stance or republican won t like his support of gay marriage and if bright law students shiver at what they don t understand it s easy to imagine how the press will play it up as baby selling i ve seen mike godwin claim that posner asserts that law and economics is applicable to everything and is the end all and be all when posner says precisely the opposite so it goes i ve admitted that my understanding of the field generally referred to as law and economics is weak if it advocates the use of economical analysis as one of many tie breaker factors which courts may use to help them reach decisions in cases in which the dispute as measured by the scale of justice is evenly balanced fine but as illustrated by boomer it is not fine when the courts start viewing the economics of a case as being more important than the justice of a case william december starr wdstarr athena mit edu
