January 13, 2009
Environmentalism Through Breach of Contact
Over at Concurring Opinions, fellow contracts prof and fellow Sidley & Austin alum, Nate Oman (pictured) [at this point we exchange the secret S&A signal of recognition across cyberspace], has an interesting commentary on a Washington Post news story about an environmentalist who bid on land contracts in Utah in order to postpone their exploitation by the oil and gas industries. University of Utah economics student, Tim DeChristopher ended up buying leaseholds on 22,000 acres. Unfortunately, he has no means of paying the $1.8 million he bid on the 13 properties he won at auction.
De Christopher is represented by Pat Shea, who headed the Bureau of Land Management under President Clinton. Shea describes DeChristopher as virtuous and the legal system as Kafkaesque. This explains the fate of Joseph K during the 1990s. Professor Oman has some sympathy for the DeChristopher, but ultimately, I think DeChristopher is better off with his current attorney, Professor Oman thinks DeChrisopher ought to pay for what he bid on, and since he lacks capital, his only means of doing so is with"moderate" jail time, just enough to deter other potential DeChristophers out there from pulling the same stunt. By the way, Professor has no problem with environmentalists with means who enter into good faith agreements to purchase land in order to prevent them from being used for oil and gas exploration.
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[After making secret Sidley alum sign; Obama, another Sidley alum, does it all the time during speechs]: I don't necessarily even want to deter him. I just want him to internalize costs. There is a sense in which moderate punishment can create the same incentives as a liability rule, albeit a non-compensatory one. As Jeremy Bentham long ago observed, every fine is a licence in disguise.
Posted by: Nate Oman | Jan 13, 2009 12:52:19 PM
Is this the secret gesture that Obama makes?
I don't think it relates only to Sidley.
Posted by: Jeremy Telman | Jan 13, 2009 4:47:49 PM