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

By Claeys, Eric R. | Notre Dame Law Review, June 2010 | Go to article overview

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


Claeys, Eric R., Notre Dame Law Review


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.