Jefferson Meets Coase: Land-Use Torts, Law and Economics, and Natural Property Rights

Article excerpt

This Article questions how well standard economic analysis justifies the land-use torts that Ronald Coase popularized in The Problem of Social Cost. The Article compares standard economic analyses of these torts against an interpretation that follows from the natural-rights morality that informed the content of these torts in their formative years. The "Jeffersonian" natural-rights morality predicts the contours of tort doctrine more determinately and accurately than "Coasian" economic analysis.

The comparison teaches at least three important lessons. First, a significant swath of doctrine, Jeffersonian natural-rights morality explains and justifies important tort doctrine quite determinately. Second, this natural-rights morality complements corrective justice theory by the substantive rights that tort's corrective-justice features seek to rectify when wronged. Finally, standard economic tort analysis cannot prescribe determinate results without making simplifying assumptions more characteristic of moral philosophy than of social science.

INTRODUCTION

  I. THE RIVALRY BETWEEN ECONOMICS AND JUSTICE IN TORT
     A. The Economic Indictment
     B. Explanatory Doubts
 II. AMERICAN NATURAL-RIGHTS MORALITY IN LAND-USE TORTS .
     A. American Natural-Rights Morality
     B. Political Morality and Corrective Justice
     C. The Argument
III. LAND-USE TORTS AND NATURAL-RIGHTS REGULATION
     A. The Natural Right to Labor
     B. The Plaintiffs Possessory Interest and the Defendant's
        Harmful Act
        1. Boundary Rules and the Rights to Use and Enjoy.
        2. Trespass
        3. Nuisance
        4. Non-Nuisances
     C. Causation
     D. Scienter
     E. Affirmative Defenses
     F. Rights-Securing Qualifications
        1. Qualifications and the Interest in Labor
        2. Nuisance
        3. Trespass
        4. The Philosophical Bases for Reordering Civil
           Property Rights
 IV. ACCIDENT LAWS AND ECONOMICS RECONSIDERED
    A. The Tension Between Private Ordering and Expert
       Supervision
    B. The Historical Pedigree of Accident Law and Economics
    C. Conceptual Property Theory
    D. Normative Assumptions About Social Control
    E. A Simpler Alternative?

CONCLUSION

INTRODUCTION

Economic analysis has taken over tort law and scholarship. Before economic analysis came on to the scene, lawyers assumed that tort law secured personal rights grounded in moral interests. Philosophical tort scholarship still tries to defend this commonsense view. Yet over the last generation, tort's moral pretensions have taken the academic equivalent of a drubbing. Even leading tort philosophers concede, "frankly, ... that the legal community has found various economic approaches more persuasive or compelling than those based on corrective justice," the main philosophical approach to tort. (1)

This perception seems convincing because economic analysis claims it can explain the law more determinately than philosophical analysis. When tort cases appeal to moral terms, economists say, their arguments seem "mush--lacking in clear or persuasive guidelines for determining what conduct counts as 'wrongful.'" (2) Only economic analysis, it seems, can claim an "impressive level of fit with case outcomes" and a "comparatively high degree of determinacy." (3) As a result, "philosophers have marveled in contemptuous amazement as the apparently dead body of economic [legal] analysis took its seat at the head of the legal academic table and reigned unchallenged as the predominant theoretical mode of analysis in private law scholarship and pedagogy." (4)

From a longer time horizon, however, this debate is surprising. People often assume that American tort law used to have content focused enough to be described as "individualistic"--that is, organized "to specify and protect individuals' rights to bodily integrity, freedom of movement, reputation, and property ownership. …