Law, Property Rights, and Air Pollution

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Law
as a Normative Discipline

Law is a
set of commands; the principles of tort or criminal law, which
we shall be dealing with, are negative commands or prohibitions,
on the order of “thou shalt not” do actions X, Y, or Z.[1] In short, certain actions are considered wrong
to such a degree that it is considered appropriate to use the
sanctions of violence (since law is the social embodiment of violence)
to combat, defend against, and punish the transgressors.

There are
many actions against which it is not considered appropriate to
use violence, individual or organized. Mere lying (that is, where
contracts to transfer property titles are not broken), treachery,
base ingratitude, being nasty to one’s friends or associates,
or not showing up for appointments, are generally considered wrong,
but few think of using violence to enjoin or combat them. Other
sanctions, such as refusing to see the person or have dealings
with him, putting him in Coventry, and so on, may be used by individuals
or groups, but using the violence of the law to prohibit such
actions is considered excessive and inappropriate.

If ethics
is a normative discipline that identifies and classifies certain
sets of actions as good or evil, right or wrong, then tort or
criminal law is a subset of ethics identifying certain actions
as appropriate for using violence against them. The law says that
action X should be illegal, and therefore should be combated
by the violence of the law. The law is a set of “ought” or normative
propositions.

Many writers
and jurists have claimed the law is a value-free, “positive” discipline.
Of course it is possible simply to list, classify and analyze
existing law without going further into saying what the law should
or should not be.[2] But that sort of jurist is not
fulfilling his essential task. Since the law is ultimately a set
of normative commands, the true jurist or legal philosopher has
not completed his task until he sets forth what the law should
be, difficult though that might be. If he does not, then he necessarily
abdicates his task in favor of individuals or groups untrained
in legal principles, who may lay down their commands by sheer
fiat and arbitrary caprice.

Thus, the
Austinian jurists proclaim that the king, or sovereign, is supposed
to lay down the law, and the law is purely a set of commands emanating
from his will. But then the question arises: On what principles
does or should the king operate?[3] Is it ever possible to say that
the king is issuing a “bad” or “improper” decree? Once the jurist
admits that, he is going beyond arbitrary will to begin to frame
a set of normative principles that should be guiding the sovereign.
And then he is back to normative law.

Modern variants
of positive legal theory state that the law should be what the
legislators say it is. But what principles are to guide the legislators?
And if we say that the legislators should be the spokesmen for
their constituents, then we simply push the problem one step back,
and ask: What principles are supposed to guide the voters? Or
is the law, and therefore everyone’s freedom of action, to be
ruled by arbitrary caprice of millions rather than of one man
or a few?[4]

Even the
older concept that the law should be determined by tribal or common-law
judges, who are merely interpreting the custom of the tribe or
society, cannot escape normative judgments basic to the theory.
Why must the rules of custom be obeyed? If tribal custom
requires the murder of all people over six feet tall, must this
custom be obeyed regardless? Why cannot reason lay down a set
of principles to challenge and overthrow mere custom and tradition?
Similarly, why may it not be used to overthrow mere arbitrary
caprice by king or public?

As we shall
see, tort or criminal law is a set of prohibitions against the
invasion of, or aggression against, private property rights; that
is, spheres of freedom of action by each individual. But if that
is the case, then the implication of the command, “Thou shall
not interfere with A’s property right,” is that A’s property right
is just and therefore should not be invaded. Legal prohibitions,
therefore, far from being in some sense value-free, actually imply
a set of theories about justice, in particular the just allocation
of property rights and property titles. “Justice” is nothing if
not a normative concept.

In recent
years, however, jurists and “Chicago school” economists have attempted
to develop theories of value-free property rights, rights defined
and protected not on the basis of ethical norms such as justice
but of some form of “social efficiency.” In one such variant,
Ronald Coase and Harold Demsetz have asserted that “it doesn’t
make any difference” how property rights are allocated in cases
of conflicting interests, provided that some property rights are
assigned to someone and then defended. In his famous example,
Coase discusses a railroad locomotive’s blighting of nearby farms
and orchards. To Coase and Demsetz, this damage of a farmer’s
crops by the railroad is an “externality” which should, according
to the tenets of social efficiency, be internalized. But to these
economists, it doesn’t make any difference which of two possible
courses of action one adopts. Either one says that the farmer
has a property right in his orchard; therefore the railroad should
have to pay damages for his loss, and the farmer should be able
to enjoin the railroad’s invasive actions. Or the railroad has
the right to spew forth smoke wherever it wishes, and if the farmer
wishes to stop the smoke, he must pay the railroad to install
a smoke abatement device. It does not matter, from the point of
view of expenditure of productive resources, which route is taken.

For example,
suppose the railroad commits $100,000 worth of damage, and in
Case 1, this action is held to invade the farmer’s property. In
that case, the railroad must pay $100,000 to the farmer or else
invest in a smoke abatement device, whichever is cheaper. But
in Case 2, where the railroad has the property right to emit the
smoke, the farmer would have to pay the railroad up to $100,000
to stop damaging his farm. If the smoke device costs less than
$100,000, say $80,000, then the device will be installed regardless
of who was assigned the property right. In Case 1, the railroad
will spend $80,000 on the device rather than have to pay $100,000
to the farmer; in Case 2 the farmer will be willing to pay the
railroad $80,000 and up to $100,000 to install the device. If,
on the other hand, the smoke device costs more than $100,000,
say $120,000, then the device will not be installed anyway, regardless
of which route is taken. In Case 1, the railroad will keep pouring
out smoke and keep paying the farmer damages of $100,000 rather
than spend $120,000 on the device; in Case 2, it will not pay
the farmer to bribe the railroad $120,000 for the device, since
this is more of a loss to him than the $100,000 damage. Therefore,
regardless of how property rights are assigned – according to
Coase and Demsetz – the allocation of resources will be the
same. The difference between the two is only a matter of “distribution,”
that is, of income or wealth.[5]

There are
many problems with this theory. First, income and wealth are important
to the parties involved, although they might not be to
uninvolved economists. It makes a great deal of difference to
both of them who has to pay whom. Second, this thesis works only
if we deliberately ignore psychological factors. Costs are not
only monetary. The farmer might well have an attachment to the
orchard far beyond the monetary damage. Therefore, the orchard
might be worth far more to him than the $100,000 in damages, so
that it might take $1 million to compensate him for the full loss.
But then the supposed indifference totally breaks down. In Case
1, the farmer will not be content to accept a mere $100,000 in
damages. He will take out an injunction against any further aggression
against his property, and even if the law allows bargaining between
the parties themselves to remove the injunction, he will insist
on over $1 million from the railroad, which the railroad will
not be willing to pay.[6] Conversely, in Case 2, there is not likely to
be a way for the farmer to raise the $1 million needed to stop
the smoke invasion of the orchard.

The love
of the farmer for his orchard is part of a larger difficulty for
the Coase-Demsetz doctrine: Costs are purely subjective and not
measurable in monetary terms. Coase and Demsetz have a proviso
in their indifference thesis that all “transaction costs” be zero.
If they are not, then they advocate allocating the property rights
to whichever route entails minimum social transaction costs. But
once we understand that costs are subjective to each individual
and therefore unmeasurable, we see that costs cannot be added
up. But if all costs, including transaction costs, cannot be added,
then there is no such thing as “social transaction costs,” and
they cannot be compared in Cases 1 or 2, or indeed, in any other
situation.[7]

Another serious
problem with the Coase-Demsetz approach is that pretending to
be value-free, they in reality import the ethical norm of “efficiency,”
and assert that property rights should be assigned on the basis
of such efficiency. But even if the concept of social efficiency
were meaningful, they don’t answer the questions of why efficiency
should be the overriding consideration in establishing legal principles
or why externalities should be internalized above all other considerations.
We are now out of Wertfreiheit and back to unexamined ethical
questions.[8][9]

Another attempt
by Chicago school economists to make legal public policy recommendations
under the guise of Wertfreiheit is the contention that
over the years common-law judges will always arrive at the socially
efficient allocation of property rights and tort liabilities.
Demsetz stresses rights that will minimize social transaction
costs; Richard Posner stresses maximization of “social wealth.”
All this adds an unwarranted historical determinism, functioning
as a kind of invisible hand guiding judges to the current Chicago
school path, to the other fallacies examined above.[10]

If the law
is a set of normative principles, it follows that whatever positive
or customary law has emerged cannot simply be recorded and blindly
followed. All such law must be subject to a thorough critique
grounded on such principles. Then, if there are discrepancies
between actual law and just principles, as there almost always
are, steps must be taken to make the law conform with correct
legal principles.

Physical
Invasion

The normative
principle I am suggesting for the law is simply this: No action
should be considered illicit or illegal unless it invades, or
aggresses against, the person or just property of another. Only
invasive actions should be declared illegal, and combated with
the full power of the law. The invasion must be concrete and physical.
There are degrees of seriousness of such invasion, and hence,
different proper degrees of restitution or punishment. “Burglary,”
simple invasion of property for purposes of theft, is less serious
than “robbery,” where armed force is likely to be used against
the victim. Here, however, we are not concerned with the questions
of degrees of invasion or punishment, but simply with invasion
per se.

If no man
may invade another person’s “just” property, what is our criterion
of justice to be?[11] There is no space here to elaborate on a theory
of justice in property titles. Suffice it to say that the basic
axiom of libertarian political theory holds that every man is
a selfowner, having absolute jurisdiction over his own body. In
effect, this means that no one else may justly invade, or aggress
against, another’s person. It follows then that each person justly
owns whatever previously unowned resources he appropriates or
“mixes his labor with.” From these twin axioms – self-ownership
and “homesteading” – stem the justification for the entire system
of property rights titles in a free-market society. This system
establishes the right of every man to his own person, the right
of donation, of bequest (and, concomitantly, the right to receive
the bequest or inheritance), and the right of contractual exchange
of property titles.[12]

Legal and
political theory have committed much mischief by failing to pinpoint
physical invasion as the only human action that should be illegal
and that justifies the use of physical violence to combat it.
The vague concept of “harm” is substituted for the precise one
of physical violence.[13] Consider the following two examples. Jim is
courting Susan and is just about to win her hand in marriage,
when suddenly Bob appears on the scene and wins her away. Surely
Bob has done great “harm” to Jim. Once a nonphysical-invasion
sense of harm is adopted, almost any outlaw act might be justified.
Should Jim be able to “enjoin” Bob’s very existence?[14]

Similarly,
A is a successful seller of razor blades. But then B comes along
and sells a better blade, teflon-coated to prevent shaving cuts.
The value of A’s property is greatly affected. Should he be able
to collect damages from B, or, better yet, to enjoin B’s sale
of a better blade? The correct answer is not that consumers would
be hurt if they were forced to buy the inferior blade, although
that is surely the case. Rather, no one has the right to legally
prevent or retaliate against “harms” to his property unless it
is an act of physical invasion. Everyone has the right to have
the physical integrity of his property inviolate; no one has the
right to protect the value of his property, for that value is
purely the reflection of what people are willing to pay for it.
That willingness solely depends on how they decide to use
their money. No one can have a right to someone else’s money,
unless that other person had previously contracted to transfer
it to him.

In the law
of torts, “harm” is generally treated as physical invasion of
person or property. The outlawing of defamation (libel and slander)
has always been a glaring anomaly in tort law. Words and opinions
are not physical invasions. Analogous to the loss of property
value from a better product or a shift in consumer demand,
no one has a property right in his “reputation.” Reputation is
strictly a function of the subjective opinions of other minds,
and they have the absolute right to their own opinions whatever
they may be. Hence, outlawing defamation is itself a gross invasion
of the defamer’s right of freedom of speech, which is a subset
of his property right in his own person.[15]

An even broader
assault on freedom of speech is the modern Warren-Brandeis-inspired
tort of invasion of the alleged right of “privacy,” which outlaws
free speech and acts using one’s own property that are not even
false or “malicious.”[16]

In the law
of torts, “harm” is generally treated as physical invasion of
person or property and usually requires payment of damages for
“emotional” harm if and only if that harm is a consequence of
physical invasion. Thus, within the standard law of trespass
– an invasion of person or property – “battery” is the
actual invasion of someone else’s body, while “assault” is the
creation by one person in another of a fear, or apprehension,
of battery.[17]

To be a tortious
assault and therefore subject to legal action, tort law wisely
requires the threat to be near and imminent. Mere insults and
violent words, vague future threats, or simple possession of a
weapon cannot constitute an assault[18]; there must be accompanying overt action to
give rise to the apprehension of an imminent physical battery.[19] Or, to put it another way, there must be a
concrete threat of an imminent battery before the prospective
victim may legitimately use force and violence to defend himself.

Physical
invasion or molestation need not be actually “harmful” or inflict
severe damage in order to constitute a tort. The courts properly
have held that such acts as spitting in someone’s face or ripping
off someone’s hat are batteries. Chief Justice Holt’s words in
1704 still seem to apply: “The least touching of another in anger
is a battery.” While the actual damage may not be substantial,
in a profound sense we may conclude that the victim’s person was
molested, was interfered with, by the physical aggression
against him, and that hence these seemingly minor actions have
become legal wrongs.[20]

Initiation
of an Overt Act: Strict Liability

If only a
physical invasion of person or property constitutes an illicit
act or tort, then it becomes important to demarcate when
a person may act as if such a physical invasion is about to take
place. Libertarian legal theory holds that A may not use force
against B except in self-defense, that is, unless B is initiating
force against A. But when is A’s force against B legitimate self-defense,
and when is it itself illegitimate and tortious aggression
against B? To answer this question, we must consider what kind
of tort liability theory we are prepared to adopt.

Suppose,
for example, that Smith sees Jones frowning in his direction across
the street, and that Smith has an abnormal fear of being frowned
at. Convinced that Jones is about to shoot him, he therefore pulls
a gun and shoots Jones in what he is sure is self-defense. Jones
presses a charge of assault and battery against Smith. Was Smith
an aggressor and therefore should he be liable? One theory of
liability – the orthodox “reasonable man” or “reasonable conduct”
or “negligence” theory – says he should, because frowning would
not rouse the apprehension of imminent attack in a “reasonable
man.” A competing theory, once held and now being revived –
that of “strict liability” or “strict causal liability” – agrees
because it should be clear to a judge or jury that Jones was not
an imminent aggressor. And this would hold regardless of how sincere
Smith was in his fear of attack.

Two serious
flaws in the “reasonable man” theory are that the definition of
“reasonable” is vague and subjective, and that guilty aggressors
go unpunished, while their victims remain uncompensated. In this
particular case, the two theories happen to coincide, but in many
other cases they do not. Take, for example, the case of Courvoisier
v. Raymond (1896).[21] In this case, the defendant, a storekeeper,
was threatened by a rioting mob. When a man who happened to be
a plainclothes policeman walked up to the defendant, trying to
help him, the defendant, mistaking him for a rioter, shot the
policeman. Should the storekeeper have been liable?

The trial
court decided the case properly – on the basis of strict liability
– and the jury decided for the policeman. For it is clear that
the defendant committed a battery by shooting the plaintiff. In
strict liability theory, the question is causation: Who initiated
the tort or crime? An overriding defense for the defendant’s action
was if the plaintiff in fact had committed an assault,
threatening an imminent initiation of a battery against him. The
question traditionally then becomes a factual one for juries to
decide: Did the plainclothesman in fact threaten battery against
the storekeeper? The jury decided for the policeman.[22] The appeals court, however, reversed the trial
court’s decision. To the court, the storekeeper acted as a “reasonable
man” when he concluded, though incorrectly, that the plainclothesman
was out to attack him.

When is an
act to be held an assault? Frowning would scarcely qualify. But
if Jones had whipped out a gun and pointed it in Smith’s direction,
though not yet fired, this is clearly a threat of imminent aggression,
and would properly be countered by Smith plugging Jones in self-defense.
(In this case, our view and the “reasonable man” theory would
again coincide.) The proper yardstick for determining whether
the point of assault had been reached is this: Did Jones initiate
an “overt act” threatening battery? As Randy Barnett has pointed
out:

In a case
less than a certainty, the only justifiable use of force is
that used to repel an overt act that is something more than
mere preparation, remote from time and place of the intended
crime. It must be more than “risky”; it must be done with the
specific intent to commit a crime and directly tend in some
substantial degree to accomplish it.[23]

Similar principles
hold in innocent-bystander cases. Jones assaults and attacks Smith;
Smith, in self-defense, shoots. The shot goes wild and accidentally
hits Brown, an innocent bystander. Should Smith be liable? Unfortunately,
the courts, sticking to the traditional “reasonable man” or “negligence”
doctrine, have held that Smith is not liable if indeed he was
reasonably intending self-defense against Jones.[24] But, in libertarian and in strict liability
theory, Smith has indeed aggressed against Brown, albeit unintentionally,
and must pay for this tort. Thus, Brown has a proper legal action
against Smith: Since Jones coerced or attacked Smith, Smith also
has an independent and proper action for assault or battery against
Jones. Presumably, the liability or punishment against Jones would
be considerably more severe than against Smith.

One of the
great flaws in the orthodox negligence approach has been to focus
on one victim’s (Smith’s) right of self-defense in repelling an
attack, or on his good-faith mistake. But orthodox doctrine unfortunately
neglects the other victim – the man frowning across the street,
the plainclothesman trying to save someone, the innocent bystander.
The plaintiff’s right of self-defense is being grievously
neglected. The proper point to focus on in all these cases is:
Would the plaintiff have had the right to plug the defendant in
his self-defense? Would the frowning man, the plainclothesman,
the innocent bystander, if he could have done so in time, have
had the right to shoot the sincere but erring defendants in self-defense?
Surely, whatever our theory of liability, the answer must be “yes”;
hence, the palm must go to the strict liability theory, which
focuses on everyone’s right of self-defense and not just
that of a particular defendant. For it is clear that since these
plaintiffs had the right to plug the defendant in self-defense,
then the defendant must have been the tortious aggressor, regardless
of how sincere or “reasonable” his actions may have been.

From various
illuminating discussions of Professor Epstein, it seems evident
that there are three contrasting theories of tort liability interwoven
in our legal structure. The oldest, strict causal liability, apportioned
blame and burden on the basis of identifiable cause: Who shot
whom? Who assaulted whom? Only defense of person and property
was a proper defense against a charge of using force. This doctrine
was replaced during the nineteenth century by negligence or “reasonable
man” theory, which let many guilty defendants off the hook if
their actions were judged reasonable or did not exhibit undue
negligence. In effect, negligence theory swung the balance excessively
in favor of the defendant and against the plaintiff. In contrast,
modern theory emerging increasingly in the twentieth century,
anxious to help plaintiffs (especially if they are poor), seeks
ways to find against defendants even if strict cause of physical
invasion cannot be proven. If the oldest theory is termed “strict
causal liability,” the modern one might be termed “presumptive
liability,” since the presumption seems to be against the defendant,
in flagrant violation of the Anglo-Saxon criminal law presumption
of innocence on the part of the defendant.[25]

Extending
our discussion from crimes against the person to crimes against
property, we may apply the same conclusion: Anyone has the right
to defend his property against an overt act initiated against
it. He may not move with force against an alleged aggressor –
a trespasser against his land or chattels – until the latter
initiates force by an overt act.

How much
force may a victim use to defend either his person or his property
against invasion? Here we must reject as hopelessly inadequate
the current legal doctrine that he may use only “reasonable” force,
which in most cases has reduced the victim’s right to defend himself
virtually to a nullity.[26] In current law, a victim is only allowed to
use maximal, or “deadly” force, (a) in his own home, and then
only if he is under direct personal attack; or (b) if there is
no way that he can retreat when he is personally under attack.
All this is dangerous nonsense. Any personal attack might
turn out to be a murderous one; the victim has no way of knowing
whether or not the aggressor is going to stop short of inflicting
a grave injury upon him. The victim should be entitled to proceed
on the assumption that any attack is implicitly a deadly
one, and therefore to use deadly force in return.

In current
law, the victim is in even worse straits when it comes to defending
the integrity of his own land or movable property. For there,
he is not even allowed to use deadly force in defending his own
home, much less other land or properties. The reasoning seems
to be that since a victim would not be allowed to kill a thief
who steals his watch, he should therefore not be able to shoot
the thief in the process of stealing the watch or in pursuing
him. But punishment and defense of person or property are not
the same, and must be treated differently. Punishment is an act
of retribution after the crime has been committed and the criminal
apprehended, tried, and convicted. Defense while the crime is
being committed, or until property is recovered and the criminal
apprehended, is a very different story. The victim should be entitled
to use any force, including deadly force, to defend or to recover
his property so long as the crime is in the process of commission
– that is, until the criminal is apprehended and duly tried
by legal process. In other words, he should be able to shoot looters.[27]

The
Proper Burden of Risk

We conclude,
then, that no one may use force to defend himself or his property
until the initiation of an overt act of aggression against him.
But doesn’t this doctrine impose an undue risk upon everyone?

The basic
reply is that life is always risky and uncertain and that there
is no way of getting round this primordial fact. Any shifting
of the burden of risk away from one person simply places it upon
someone else. Thus, if our doctrine makes it more risky to wait
until someone begins to aggress against you, it also makes life
less risky, because as a non-aggressor, one is more assured
that no excited alleged victim will pounce upon you in supposed
“self-defense.” There is no way for the law to reduce risk overall;
it then becomes important to use some other principle to set the
limits of permissible action, and thereby to allocate the burdens
of risk. The libertarian axiom that all actions are permissible
except overt acts of aggression provides such a principled basis
for risk allocation.

There are
deeper reasons why overall risks cannot be reduced or minimized
by overt legal action. Risk is a subjective concept unique to
each individual; therefore, it cannot be placed in measurable
quantitative form. Hence, no one person’s quantitative degree
of risk can be compared to another’s, and no overall measure of
social risk can be obtained. As a quantitative concept, overall
or social risk is fully as meaningless as the economist’s concept
of “social costs” or social benefits.

In a libertarian
world, then, everyone would assume the “proper burden of risk”[28] placed upon him as a free human being responsible
for himself. That would be the risk involved in each man’s person
and property. Of course, individuals could voluntarily pool their
risks, as in various forms of insurance, in which risks are shared
and benefits paid to losers from the pool. Or, speculators could
voluntarily assume risks of future price changes that are sloughed
off by others in hedging operations on the market. Or, one man
could assume another’s risks for payment, as in the case of performance
and other forms of bonding. What would not be permissible is one
group getting together and deciding that another group should
be forced into assuming their risks. If one group, for example,
forces a second group to guarantee the former’s incomes, risks
are greatly increased for the latter, to the detriment of their
individual rights. In the long run, of course, the whole system
might collapse, since the second group can only provide guarantees
out of their own production and incomes, which are bound to fall
as the burden of social parasitism expands and cripples society.

The
Proper Burden of Proof

If every
man’s proper burden of risk is to refrain from coercion unless
an overt act against his person or property has been initiated
against him,[29] then what is the proper burden of proof against
a defendant?

First, there
must be some rational standards of proof for libertarian
principles to operate. Suppose that the basic axiom of libertarianism
– no initiation of force against person or property – is enshrined
in all judicial proceedings. But suppose that the only criterion
of proof is that all persons under six feet tall are considered
guilty while all persons over six feet tall are held to be innocent.
It is clear that these procedural standards of proof would be
in direct and flagrant violation of libertarian principles. So
would tests of proof in which irrelevant or random occurrences
would decide the case, such as the medieval trial by ordeal or
trial by tea leaves or astrological charts.

From a libertarian
point of view, then, proper procedure calls for rational proof
about the guilt or innocence of persons charged with tort or crime.
Evidence must be probative in demonstrating a strict causal chain
of acts of invasion of person or property. Evidence must be constructed
to demonstrate that aggressor A in fact initiated an overt physical
act invading the person or property of victim B.[30]

Who, then,
should bear the burden of proof in any particular case? And what
criterion or standard of proof should be satisfied?

The basic
libertarian principle is that everyone should be allowed to do
whatever he or she is doing unless committing an overt act of
aggression against someone else. But what about situations where
it is unclear whether or not a person is committing aggression?
In those cases, the only procedure consonant with libertarian
principles is to do nothing; to lean over backwards to ensure
that the judicial agency is not coercing an innocent man.[31] If we are unsure, it is far better to let
an aggressive act slip through than to impose coercion and therefore
to commit aggression ourselves.[32] A fundamental tenet of the Hippocratic oath,
“at least, do not harm,” should apply to legal or judicial agencies
as well.

The presumption
of every case, then, must be that every defendant is innocent
until proven guilty, and the burden of proof must be squarely
upon the plaintiff.[33]

If we must
always insist on laissez-faire, then it follows that such
a weak standard of proof as “preponderance of evidence” must not
be allowed to serve as a demonstration of guilt. If the plaintiff
produces evidence adjudged in some sense to weigh a mere 51 percent
on behalf of the guilt of the defendant, this is scarcely better
than random chance as justification for the court’s using force
against the defendant. Presumption of innocence, then, must set
a far higher standard of proof.

At present,
“preponderance of evidence” is used to decide civil cases, whereas
a far tougher standard is used for criminal cases, since penalties
are so much stiffer. But, for libertarians, the test of guilt
must not be tied to the degree of punishment; regardless of punishment,
guilt involves coercion of some sort levied against the convicted
defendant. Defendants deserve as much protection in civil torts
as in criminal cases.[34]

A few judges,
properly shocked by the dominant view that a mere 51 percent of
the evidence may serve to convict, have changed the criterion
to make sure whoever is trying the case – judge or jury –
is convinced of guilt by the preponderance of evidence.
A more satisfactory criterion, however, is that the trier must
be convinced of the defendant’s guilt by “clear, strong, and convincing
proof.”[35] Fortunately, this test has been used increasingly
in civil cases in recent years. Better yet were stronger but generally
rejected formulations of certain judges such as “clear, positive,
and unequivocal” proof, and one judge’s contention that the phrase
means that the plaintiffs “must … satisfy you to a moral certainty.”[36]

But the best
standard for any proof of guilt is the one commonly used in criminal
cases: Proof “beyond a reasonable doubt.” Obviously, some
doubt will almost always persist in gauging people’s actions,
so that such a standard as “beyond a scintilla of doubt” would
be hopelessly unrealistic. But the doubt must remain small enough
that any “reasonable man” will be convinced of the fact of the
defendant’s guilt. Conviction of guilt “beyond a reasonable doubt”
appears to be the standard most consonant with libertarian principle.

The outstanding
nineteenth-century libertarian constitutional lawyer, Lysander
Spooner, was an ardent advocate of the “beyond a reasonable doubt”
standard for all guilt:

the lives,
liberties, and properties of men are too valuable to them, and
the natural presumptions are too strong in their favor to justify
the destruction of them by their fellow men on a mere balancing
of probabilities, or on any ground whatever short of certainty
beyond a reasonable doubt. (Italics Spooner’s)[37]

While the
reasonable doubt criterion generally has not been used in civil
cases, a few precedents do exist for this seemingly bold and shocking
proposal. Thus, in the claim of an orally offered gift in a probate
case, the court ruled that the alleged gift “must be proven by
forceful, clear and conclusive testimony which convinces the court
beyond a reasonable doubt of its truthfulness.” And in a suit
to revise a written contract, the court ruled that the mistake
must be “established by evidence so strong and conclusive as to
place it beyond reasonable doubt.”[38]

Strict
Causality

What the
plaintiff must prove, then, beyond a reasonable doubt is a strict
causal connection between the defendant and his aggression against
the plaintiff. He must prove, in short, that A actually “caused”
an invasion of the person or property of B.

In a brilliant
analysis of causation in the law, Professor Epstein has demonstrated
that his own theory of strict tort liability is intimately connected
to a direct, strict, commonsense view of “cause.” Causal proposition
in a strict liability view of the law takes such form as, “A hit
B,” “A threatened B,” or “A compelled B to hit C.” Orthodox tort
theory, in contrast, by stressing liability for “negligence” rather
than for direct aggression action, is tangled up with vague and
complex theories of “cause,” far removed from the commonsense
“A hit B” variety. Negligence theory postulates a vague, “philosophical”
notion of “cause in fact” that virtually blames everyone and no
one, past, present and future for every act, and then narrows
cause in a vague and unsatisfactory manner to “proximate cause”
in the specific case. The result, as Epstein trenchantly points
out, is to vitiate the concept of cause altogether and to set
the courts free to decide cases arbitrarily and in accordance
with their own views of social policy.[39]

To establish
guilt and liability, strict causality of aggression leading to
harm must meet the rigid test of proof beyond a reasonable doubt.
Hunch, conjecture, plausibility, even mere probability are not
enough. In recent years, statistical correlation has been commonly
used, but it cannot establish causation, certainly not for a rigorous
legal proof of guilt or harm. Thus, if lung cancer rates are higher
among cigarette smokers than noncigarette smokers, this does not
in itself establish proof of causation. The very fact that many
smokers never get lung cancer and that many lung cancer sufferers
have never smoked indicates that there are other complex variables
at work. So that while the correlation is suggestive, it hardly
suffices to establish medical or scientific proof; a fortiori
it can still less establish any sort of legal guilt (if, for example,
a wife who developed lung cancer should sue a husband for smoking
and therefore injuring her lungs).[40]

Milton Katz
points out, in a case where the plaintiff sued for air pollution
damage:

Suppose
the plaintiff should claim serious damage: for emphysema, perhaps,
or for lung cancer, bronchitis or some other comparably serious
injury to his lungs. He would face a problem of proof of causation….
Medical diagnoses appear to have established that sulphur dioxide
and other air pollutants often play a significant role in the
etiology of emphysema and other forms of lung damage. But they
are by no means the only possible causative factors. Emphysema
and lung cancer are complex illnesses which may originate in
a variety of causes, for example, cigarette smoking, to name
one familiar example. If and when the plaintiff should succeed
in establishing that the defendants’ conduct polluted the air
of his home, it would not follow that the pollution caused his
illness. The plaintiff would still have to meet the separate
burden of proving the etiology of his lung damage.[41]

Thus, a strict
causal connection must exist between an aggressor and a victim,
and this connection must be provable beyond a reasonable doubt.
It must be causality in the commonsense concept of strict proof
of the “A hit B” variety, not mere probability or statistical
correlation.

Liability
of the Aggressor Only

Under strict
liability theory, it might be assumed that if “A hit B,” then
A is the aggressor and that therefore A and only A is liable to
B. And yet the legal doctrine has arisen and triumphed, approved
even by Professor Epstein, in which sometimes C, innocent and
not the aggressor, is also held liable. This is the notorious
theory of “vicarious liability.”

Vicarious
liability grew up in medieval law, in which a master was responsible
for the torts committed by his servants, serfs, slaves, and wife.
As individualism and capitalism developed, the common law changed,
and vicarious liability disappeared in the sixteenth and seventeenth
centuries, when it was sensibly concluded that “the master should
not be liable for his servant’s torts unless he had commanded
the particular act.”[42]

Since the
eighteenth and nineteenth centuries, however, the vicarious liability
of masters or employers is back with a vengeance. As long as the
tort is committed by the employee in the course of furthering,
even if only in part, his employer’s business, then the employer
is also liable. The only exception is when the servant goes “on
a frolic of his own” unconnected with the employer’s business.
Prosser writes:

The fact
that the servant’s act is expressly forbidden by the master,
or is done in a manner which he has prohibited, is … usually
not conclusive, and does not in itself prevent an act from being
within the scope of employment [and therefore making the master
liable]. A master cannot escape liability merely by ordering
his servant to act carefully…. Thus instructions to a sales
clerk never to load a gun while exhibiting it will not prevent
liability when the clerk does so, in an effort to sell the gun….
[T]he master cannot escape responsibility no matter how specific,
detailed, and emphatic his orders may have been to the contrary.
This has been clear since the leading English cases (Limpus
v. London General Omnibus Co., [1862] 1H. & C. 526,
158 Eng. Rep. 993) in which an omnibus company was held liable
notwithstanding definite orders to its driver not to obstruct
other vehicles.[43]

Even more
remarkably, the master is now held responsible even for intentional
torts committed by the servant without the master’s consent:

In general,
the master is held liable for any intentional tort committed
by the servant where its purpose, however misguided, is wholly
or in part to further the master’s business.

Thus he
will be held liable where his bus driver crowds a competitor’s
bus into a ditch, or assaults a trespasser to eject him from
the bus, or a salesman makes fraudulent statements about the
products he is selling.[44]

Prosser is
properly scornful of the tortured reasoning by which the courts
have tried to justify a legal concept so at war with libertarianism,
individualism, and capitalism, and suited only to a pre-capitalist
society.

A multitude
of very ingenious reasons have been offered for the vicarious
liability of a master: he has a more or less fictitious “control”
over the behavior of a servant; he has “set the whole thing
in motion,” and is therefore responsible for what has happened;
he has selected the servant and trusted him, and so should suffer
for his wrongs, rather than an innocent stranger who has had
no opportunity to protect himself; it is a great concession
that any man should be permitted to employ another at all, and
there should be a corresponding responsibility as the price
to be paid for it…. Most courts have made little or no effort
to explain the result, and have taken refuge in rather empty
phrases, such as … the endlessly repeated formula of “respondeat
superior,” which in itself means nothing more than “look to
the man higher up.”[45]

In fact,
as Prosser indicates, the only real justification for vicarious
liability is that employers generally have more money than employees,
so that it becomes more convenient (if one is not the employer),
to stick the wealthier class with the liability. In the cynical
words of Thomas Baty: “In hard fact, the reason for the employers’
liability is the damages are taken from a deep pocket.”[46]

In opposition,
too, we have Justice Holmes’s lucid critique: “I assume that common
sense is opposed to making one man pay for another man’s wrong,
unless he has actually brought the wrong to pass…. I therefore
assume that common sense is opposed to the fundamental theory
of agency.”[47]

One would
expect that in a strict causal liability theory, vicarious liability
would be tossed out with little ceremony. It is therefore surprising
to see Professor Epstein violate the spirit of his own theory.
He seems to have two defenses for the doctrine of respondeat
superior and vicarious liability. One is the curious argument
that “just as the employer gets and benefits from the gains for
his worker’s activities, so too should he be required to bear
the losses from these activities.”[48] This statement fails to appreciate the nature
of voluntary exchange: Both employer and employee benefit from
the wage contract. Moreover, the employer does bear the “losses”
in the event his production (and, therefore, his resources) turn
out to be misdirected. Or, suppose the employer makes a mistake
and hires an incompetent person, who is paid $10,000. The employer
may fire this worker, but he and he alone bears the $10,000 loss.
Thus, there appears to be no legitimate reason for forcing the
employer to bear the additional cost of his employee’s
tortious behavior.

Epstein’s
second argument is contained in the sentence: “X corporation hurt
me because its servant did so in the course of his employment.”
Here Epstein commits the error of conceptual realism, since he
supposes that a “corporation” actually exists, and that it committed
an act of aggression. In reality, a “corporation” does not act;
only individuals act, and each must be responsible for his own
actions and those alone. Epstein may deride Holmes’s position
as being based on the “nineteenth-century premise that individual
conduct alone was the basis of individual responsibility,” but
Holmes was right nevertheless.[49]

A
Theory of Just Property: Homesteading

There are
two fundamental principles upon which the libertarian theory of
just property rests:

  1. Everyone
    has absolute property right over his or her own body; and

  2. everyone
    has an absolute property right over previously unowned natural
    resources (land) which he first occupies and brings into use
    (in the Lockean phrase, “Mixing his labor with the land”).

The “first
ownership to first use” principle for natural resources is also
popularly called the “homesteading principle.” If each man owns
the land that he “mixes his labor with,” then he owns the product
of that mixture, and he has the right to exchange property titles
with other, similar producers. This establishes the right of free
contract in the sense of transfer of property titles. It also
establishes the right to give away such titles, either as a gift
or bequest.

Most of us
think of homesteading unused resources in the old-fashioned sense
of clearing a piece of unowned land and farming the soil. There
are, however, more sophisticated and modern forms of homesteading,
which should establish a property right. Suppose, for example,
that an airport is established with a great deal of empty land
around it. The airport exudes a noise level of, say, X decibels,
with the sound waves traveling over the empty land. A housing
development then buys land near the airport. Some time later,
the homeowners sue the airport for excessive noise interfering
with the use and quiet enjoyment of the houses.

Excessive
noise can be considered a form of aggression but in this case
the airport has already homesteaded X decibels worth of noise.
By its prior claim, the airport now “owns the right” to emit X
decibels of noise in the surrounding area. In legal terms, we
can then say that the airport, through homesteading, has earned
an easement right to creating X decibels of noise. This
homesteaded easement is an example of the ancient legal concept
of “prescription,” in which a certain activity earns a prescriptive
property right to the person engaging in the action.

On the other
hand, if the airport starts to increase noise levels, then
the homeowners could sue or enjoin the airport from its noise
aggression for the extra decibels, which had not been homesteaded.
Of course if a new airport is built and begins to send out noise
of X decibels onto the existing surrounding homes, the airport
becomes fully liable for the noise invasion.

It should
be clear that the same theory should apply to air pollution. If
A is causing pollution of B’s air, and this can be proven beyond
a reasonable doubt, then this is aggression and it should be enjoined
and damages paid in accordance with strict liability, unless A
had been there first and had already been polluting the air before
B’s property was developed. For example, if a factory owned by
A polluted originally unused property, up to a certain amount
of pollutant X, then A can be said to have homesteaded a pollution
easement of a certain degree and type.

Given a prescriptive
easement, the courts have generally done well in deciding its
limits. In Kerlin v. Southern Telephone and Telegraph
Co. (1941), a public utility had maintained an easement by
prescription of telephone poles and wires over someone else’s
land (called the “servient estate” in law). The utility wished
to string up two additional wires, and the servient estate challenged
its right to do so. The court decided correctly that the utility
had the right because there was no proposed change in the “outer
limits of space utilized by the owner of the easement.” On the
other hand, an early English case decided that an easement for
moving carts could not later be used for the purpose of driving
cattle.[50]

Unfortunately,
the courts have not honored the concept of homestead in a noise
or pollution easement. The classic case is Sturgis v. Bridgman
(1879) in England. The plaintiff, a physician, had purchased land
in 1865; on the property next to him the defendant, a pharmacist,
used a mortar and pestle, which caused vibrations on the physician’s
property. There was no problem, however, until the physician built
a consultation room 10 years later. He then sued to enjoin the
pharmacist, claiming that his work constituted a nuisance. The
defendant properly argued that the vibrations were going on before
the construction of the consultation room, that they then did
not constitute a nuisance, and that therefore he had a prescriptive
right to keep operating his business. Nevertheless, defendant’s
claim was denied.

Consequently,
we have such injustice as compulsory changes of character in a
business and a failure to provide prescription through first use.
Thus, Prosser notes that “the character of a district may change
with the passage of time, and the industry set up in the open
country may become a nuisance, or be required to modify its activities,
when residences spring up around it. It will acquire no prescriptive
right.”[51] A just law would tell the later arriving residents
that they knew what they were getting into, and that they
must adapt to the industrial ambience rather than vice-versa.

In some cases,
however, the courts have held or at least considered that by the
plaintiff’s “coming to the nuisance,” he has voluntarily entered
a pre-existing situation, and that therefore the defendant is
not guilty. Prosser states that “in the absence of a prescriptive
right the defendant cannot condemn the surrounding premises to
endure the nuisance,” but our whole point here is that the homesteader
of a noise or a pollution easement has indeed earned that right
in cases of “coming to the nuisance.”[52]

Dominant
court opinion, as in the case of Ensign v. Walls
(1948), discards or minimizes “coming to the nuisance” and dismisses
the idea of a homesteaded easement. But minority opinion has strongly
supported it, as in the New York case of Bove v. Donner-Hanna
Coke Co. (1932). Plaintiff had moved into an industrial region,
where defendant was operating a coke oven on the opposite side
of the street. When plaintiff tried to enjoin the coke oven out
of existence, the court rejected the plea with these exemplary
words:

With all
the dirt, smoke and gas which necessarily come from factory
chimneys, trains and boats, and with full knowledge that this
region was especially adapted for industrial rather than residential
purposes, and that factories would increase in the future, plaintiff
selected this locality as the site of her future home. She voluntarily
moved into this district, fully aware of the fact that the atmosphere
would constantly be contaminated by dirt, gas and foul odors;
and that she could not hope to find in this locality the pure
air of a strictly residential zone. She evidently saw certain
advantages in living in this congested center. This is not the
case of an industry, with its attendant noise and dirt, invading
a quiet, residential district. This is just the opposite. Here
a residence is built in an area naturally adapted for industrial
purposes and already dedicated to that use. Plaintiff can hardly
be heard to complain at this late date that her peace and comfort
have been disturbed by a situation which existed, to some extent
at least, at the very time she bought her property.[53]

Nuisances,
Visible and Invisible

An invasion
of someone else’s land can be considered a trespass or
a nuisance, and there is considerable confusion about the
boundaries of each. For our purposes, the classic distinction
between the two is important. Trespass occurs when “there is a
physical entry that is a direct interference with the possession
of land, which usually must be accomplished by a tangible mass.”[54] On the other hand, “contact by minute particles
or intangibles, such as industrial dust, noxious fumes, or light
rays, has heretofore generally been held insufficient to constitute
a trespassory entry, on the ground that there is no interference
with possession, or that the entry is not direct, or that the
invasion failed to qualify as an entry because of its imponderable
or intangible nature.”[55]

These more
intangible invasions qualify as private nuisances and can be prosecuted
as such. A nuisance may be, as Prosser points out:

an interference
with the physical condition of the land itself, as by vibration
or blasting which damages a house, the destruction of crops,
flooding, raising the water table, or the pollution of a stream
or of an underground water supply. It may consist of a disturbance
of the comfort or convenience of the occupant, as by unpleasant
odors, smoke or dust or gas, loud noises, excessive light or
high temperature, or even repeated telephone calls.[56]

Prosser sums
up the difference between trespass and nuisance:

Trespass
is an invasion of the plaintiff’s interest in the exclusive
possession of his land, while nuisance is an interference with
his use and enjoyment of it. The difference is that between
… felling a tree across his boundary line and keeping him
awake at night with the noise of a rolling mill.[57]

But what
precisely does the difference between “exclusive possession” and
“interference with use” mean? Furthermore, the practical difference
between a tort action for trespass and for nuisance is that a
trespass is illegal per se, whereas a nuisance, to be actionable,
has to damage the victim beyond the mere fact of invasion
itself. What, if any, is the justification for treating a trespass
and nuisance so differently? And is the old distinction between
tangible and invisible invasion really now obsolete as Prosser
maintains, “in the light of modern scientific tests?”[58] Or, as a Columbia Law Review note put
it:

The federal
court … suggested that historically the reluctance of courts
to find that invasion by gases and minute particles were trespassory
resulted from the requirement that to find a trespass a court
must be able to see some physical intrusion by tangible matter;
it then found that this difficulty no longer exists because
courts may today rely on scientific detecting methods, which
can make accurate quantitative measurements of gases and minute
solids, to determine the existence of a physical entry of tangible
matter.[59]

The distinction
between visible and invisible, however, is not completely swept
away by modern scientific detection methods. Let us take two opposite
situations. First, a direct trespass: A rolls his car onto B’s
lawn or places a heavy object on B’s grounds. Why is this an invasion
and illegal per se? Partly because, in the words of an
old English case, “the law infers some damage; if nothing more,
the treading down of grass or herbage.”[60] But it is not just treading down; a tangible
invasion of B’s property interferes with his exclusive use of
the property, if only by taking up tangible square feet (or cubic
feet). If A walks on or puts an object on B’s land, then B cannot
use the space A or his object has taken up. An invasion by a tangible
mass is a per se interference with someone else’s property
and therefore illegal.

In contrast,
consider the case of radio waves, which is a crossing of other
people’s boundaries that is invisible and insensible in every
way to the property owner. We are all bombarded by radio waves
that cross our properties without our knowledge or consent. Are
they invasive and should they therefore be illegal, now that we
have scientific devices to detect such waves? Are we then to outlaw
all radio transmission? And if not, why not?

The
reason why not is that these boundary crossings do not interfere
with anyone’s exclusive possession, use or enjoyment of their
property. They are invisible, cannot be detected by man’s senses,
and do no harm. They are therefore not really invasions of property,
for we must refine our concept of invasion to mean not just boundary
crossing, but boundary crossings that in some way interfere with
the owner’s use or enjoyment of this property. What counts is
whether the senses of the property owner are interfered with.

But suppose
it is later discovered that radio waves are harmful, that they
cause cancer or some other illness? Then they would be
interfering with the use of the property in one’s person and should
be illegal and enjoined, provided of course that this proof of
harm and the causal connection between the specific invaders and
specific victims are established beyond a reasonable doubt.

So we see
that the proper distinction between trespass and nuisance, between
strict liability per se and strict liability only on proof
of harm, is not really based on “exclusive possession” as opposed
to “use and enjoyment.” The proper distinction is between visible
and tangible or “sensible” invasion, which interferes with possession
and use of the property, and invisible, “insensible” boundary
crossings that do not and therefore should be outlawed only on
proof of harm.

The same
doctrine applies to low-level radiation, which virtually everyone
and every object in the world emanates, and therefore everyone
receives. Outlawing, or enjoining, low-level radiation, as some
of our environmental fanatics seem to be advocating, would be
tantamount to enjoining the entire human race and all the world
about us. Low-level radiation, precisely because it is undetectable
by man’s senses, interferes with no one’s use or possession of
his property, and therefore may only be acted against upon strict
causal proof of harm beyond a reasonable doubt.

The theory
of homestead easements discussed earlier would require no restriction
upon radio transmissions or on people’s low-level radiation. In
the case of radio transmissions, Smith’s ownership of land and
all of its appurtenances does not entitle him to own all
radio waves passing over and across his land, for Smith has not
homesteaded or transmitted on radio frequencies here. Hence, Jones,
who transmits a wave on, say, 1200 kilohertz, homesteads the ownership
of that wave as far as it travels, even if it travels across Smith’s
property. If Smith tries to interfere with or otherwise disrupt
Jones’s transmissions, he is guilty of interfering with Jones’s
just property.[61]

Only if the
radio transmissions are proven to be harmful to Smith’s person
beyond a reasonable doubt should Jones’s activities be subject
to injunction. The same type of argument, of course, applies to
radiation transmissions.

Between tangible
trespass and radio waves or low-level radiation, there is a range
of intermediate nuisances. How should they be treated?

Air pollution,
consisting of noxious odors, smoke, or other visible matter, definitely
constitutes an invasive interference. These particles can be seen,
smelled, or touched, and should therefore constitute invasion
per se, except in the case of homesteaded air pollution
easements. (Damages beyond the simple invasion would, of course,
call for further liability.) Air pollution, however, of gases
or particles that are invisible or undetectable by the senses
should not constitute aggression per se, because being
insensible they do not interfere with the owner’s possession or
use. They take on the status of invisible radio waves or radiation,
unless they are proven to be harmful, and until this proof
and the causal connection from aggressor to victim can be established
beyond a reasonable doubt.[62]

Excessive
noise is certainly a tort of nuisance; it interferes with a person’s
enjoyment of his property, including his health. However, no one
would maintain that every man has the right to live as if in a
soundproofed room; only excessive noise, however vague
the concept, can be actionable.

In a sense,
life itself homesteads noise easement. Every area has certain
noises, and people moving into an area must anticipate a reasonable
amount of noise. As Terry Yamada ruefully concedes:

An urban
resident must accept the consequences of a noisy environment
situation. Courts generally hold that persons who live or work
in densely populated communities must necessarily endure the
usual annoyances and discomforts of those trades and businesses
located in the neighborhood where they live or work; such annoyances
and discomforts, however, must not be more than those reasonably
expected in the community and lawful to the conduct of the trade
or business.[63]

In short,
he who wants a soundproof room must pay for its installation.

The current
general rule of the civil courts on nuisance suits for noise is
cogent:

A noise
source is not a nuisance per se but only becomes a nuisance
under certain conditions. These conditions depend on a consideration
of the surrounding area, the time of day or night when the noise-producing
activities take place and the manner in which the activity is
conducted. A private nuisance is compensable only when it is
unreasonable or excessive and when it produces actual physical
discomfort or injury to a person of ordinary sensibilities so
as to interfere with the use and enjoyment of the property.[64]

Owning
the Technological Unit: Land and Air

In our discussion
of homesteading, we did not stress the problem of the size of
the area to be homesteaded. If A uses a certain amount of a resource,
how much of that resource is to accrue to his ownership? Our answer
is that he owns the technological unit of the resource. The size
of that unit depends on the type of good or resource in question,
and must be determined by judges, juries, or arbitrators who are
expert in the particular resource or industry in question. If
resource X is owned by A, then A must own enough of it so as to
include necessary appurtenances. For example, in the courts’ determination
of radio frequency ownership in the 1920s, the extent of ownership
depended on the technological unit of the radio wave – its width
on the electromagnetic spectrum so that another wave would not
interfere with the signal, and its length over space. The ownership
of the frequency then was determined by width, length, and location.

American
land settlement is a history of grappling, often unsuccessfully,
with the size of the homestead unit. Thus, the homesteading provision
in the federal land law of 1861 provided a unit of 160 acres,
the clearing and use of which over a certain term would convey
ownership to the homesteader. Unfortunately, in a few years, when
the dry prairie began to be settled, 160 acres was much too low
for any viable land use (generally ranching and grazing). As a
result, very little Western land came into private ownership for
several decades. The resulting overuse of the land caused the
destruction of Western grass cover and much of the timberland.

With the
importance of analyzing the technological unit in mind, let us
examine the ownership of airspace. Can there be private ownership
of the air, and if so, to what extent?

The common-law
principle is that every landowner owns all the airspace above
him upward indefinitely unto the heavens and downward into the
center of the earth. In Lord Coke’s famous dictum: cujus est
solum ejus est usque ad coelum; that is, he who owns the soil
owns upward unto heaven, and, by analogy, downward to Hades. While
this is a time-honored rule, it was, of course, designed before
planes were invented. A literal application of the rule would
in effect outlaw all aviation, as well as rockets and satellites.[65]

But is the
practical problem of aviation the only thing wrong with the ad
coelum rule? Using the homesteading principle, the ad coelum
rule never made any sense, and is therefore overdue in the dustbin
of legal history. If one homesteads and uses the soil, in what
sense is he also using all the sky above him up into heaven? Clearly,
he isn’t.

The ad
coelum rule unfortunately lingered on in the Restatement
of Torts (1939), adopted by the Uniform State Law for Aeronautics
and enacted in 22 states during the 1930s and 1940s. This variant
continued to recognize unlimited ownership of upward space, but
added a superior public privilege to invade the right. Aviators
and satellite owners would still bear the burden of proof that
they possessed this rather vague privilege to invade private property
in airspace. Fortunately, the Uniform Act was withdrawn by the
Commissioners on Uniform State Laws in 1943, and is now on the
way out.

A second
solution, adopted by the Ninth Circuit Federal Court in 1936,
scrapped private property in airspace altogether and even allowed
planes to buzz land close to the surface. Only actual interference
with present enjoyment of land would constitute a tort.[66] The most popular nuisance theory simply outlaws
interference with land use, but is unsatisfactory because it scraps
any discussion whatever of ownership of airspace.

The best
judicial theory is the “zone,” which asserts that only the lower
part of the airspace above one’s land is owned; this zone is the
limit of the owner’s “effective possession.” As Prosser defines
it, “effective possession” is “so much of the space above him
as is essential to the complete use and enjoyment of the land.”[67] The height of the owned airspace will vary
according to the facts of the case and therefore according to
the “technological unit.” Thus, Prosser writes:

This was
the rule applied in the early case of Smith v. New
England Aircraft Co., where flights at the level of one
hundred feet were held to be trespass, since the land was used
for cultivation of trees which reached that height. A few other
cases have adopted the same view.

The height
of the zone of ownership must vary according to the facts of each
case.[68]

On the other
hand, the nuisance theory should be added to the strict zone of
ownership for cases such as where excess aircraft noise injures
people or activities in an adjoining area, not directly underneath
the plane. At first, the federal courts ruled that only low flights
overhead could constitute a tort against private landowners, but
the excessive noise case of Thornburg v. Port of Portland
(1962) corrected that view. The court properly reasoned in Thornburg:

If we accept
… the validity of the propositions that a noise can be a nuisance;
that a nuisance can give rise to an easement; and that a noise
coming straight down from above one’s land can ripen into a
taking if it is persistent enough and aggravated enough, then
logically the same kind and degree of interference with the
use and enjoyment of one’s land can also be a taking even though
the noise vector may come from some direction other than the
perpendicular.[69]

While there
is no reason why the concept of ownership of airspace cannot be
used to combat air pollution torts, this has rarely been done.
Even when ad coelum was riding high, it was used against
airplane overflights but not to combat pollution of one’s air,
which was inconsistently considered as a communal resource. The
law of nuisance could traditionally be used against air pollution,
but until recently it was crippled by “balancing of the equities,”
negligence rules against strict liability, and by declaration
that “reasonable” air pollution was not actionable. In the classic
case of Holman v. Athens Empire Laundry Co. (1919),
the Supreme Court of Georgia declared: “The pollution of the air,
so far as reasonably necessary to the enjoyment of life and indispensable
to the progress of society, is not actionable.”[70] Fortunately, that attitude is now becoming
obsolete.

Although
air pollution should be a tort subject to strict liability, it
should be emphasized that statements like “everyone has the right
to clean air” are senseless. There are air pollutants constantly
emerging from natural processes, and one’s air is whatever one
may happen to possess. The eruption of Mt. St. Helens should have
alerted everyone to the ever-present processes of natural pollution.
It has been the traditional and proper rule of the common-law
courts that no landowner is responsible for the harm caused by
natural forces originating on his property. As Prosser writes,
a landowner

is under
no affirmative duty to remedy conditions of purely natural origin
upon his land, although they may be highly dangerous or inconvenient
to his neighbors…. Thus it has been held that the landowner
is not liable for the existence of a foul swamp, for falling
rocks, for the spread of weeds or thistles growing on his land,
for harm done by indigenous animals, or for the normal, natural
flow of surface water.[71]

In sum, no
one has a right to clean air, but one does have a right to not
have his air invaded by pollutants generated by an aggressor.

Air
Pollution: Law and Regulation

We have established
that everyone may do as he wishes provided he does not initiate
an overt act of aggression against the person or property of anyone
else. Anyone who initiates such aggression must be strictly liable
for damages against the victim, even if the action is “reasonable”
or accidental. Finally, such aggression may take the form of pollution
of someone else’s air, including his owned effective airspace,
injury against his person, or a nuisance interfering with his
possession or use of his land.

This is the
case, provided that:

  1. the polluter
    has not previously established a homestead easement;

  2. while
    visible pollutants or noxious odors are per se aggression,
    in the case of invisible and insensible pollutants the plaintiff
    must prove actual harm;

  3. the burden
    of proof of such aggression rests upon the plaintiff;

  4. the plaintiff
    must prove strict causality from the actions of the defendant
    to the victimization of the plaintiff;

  5. the plaintiff
    must prove such causality and aggression beyond a reasonable
    doubt; and

  6. there
    is no vicarious liability, but only liability for those who
    actually commit the deed.

With these
principles in mind, let us consider the current state of air pollution
law. Even the current shift from negligence and “reasonable” actions
to strict liability has by no means satisfied the chronic special
pleaders for environmental plaintiffs. As Paul Downing says, “Currently,
a party who has been damaged by air pollution must prove in court
that emitter A damaged him. He must establish that he was damaged
and emitter A did it, and not emitter B. This is almost always
an impossible task.”[72] If true, then we must assent uncomplainingly.
After all, proof of causality is a basic principle of civilized
law, let alone of libertarian legal theory.

Similarly,
James Krier concedes that even if requirement to prove intent
or unreasonable conduct or negligence is replaced by strict liability,
there is still the problem of proving the causal link between
the wrongful conduct and the injury. Krier complains that “cause
and effect must still be established.”[73] He wants to “make systematic reallocation
of the burden of proof,” that is, take the burden off the plaintiff,
where it clearly belongs. Are defendants now to be guilty until
they can prove themselves innocent?

The prevalence
of multiple sources of pollution emissions is a problem. How are
we to blame emitter A if there are other emitters or if there
are natural sources of emission? Whatever the answer, it must
not come at the expense of throwing out proper standards of proof,
and conferring unjust special privileges on plaintiffs and special
burdens on defendants.[74]

Similar problems
of proof are faced by plaintiffs in nuclear radiation cases. As
Jeffrey Bodie writes, “In general the courts seem to require a
high degree of causation in radiation cases which frequently is
impossible to satisfy given the limited extent of medical knowledge
in this field.”[75] But as we have seen above, it is precisely
this “limited extent of knowledge” that makes it imperative to
safeguard defendants from lax canons of proof.

There are,
of course, innumerable statutes and regulations that create illegality
besides the torts dealt with in common-law courts.[76] We have not dealt with laws such as the Clean
Air Act of 1970 or regulations for a simple reason: None of them
can be permissible under libertarian legal theory. In libertarian
theory, it is only permissible to proceed coercively against someone
if he is a proven aggressor, and that aggression must be proven
in court (or in arbitration) beyond a reasonable doubt. Any statute
or administrative regulation necessarily makes actions illegal
that are not overt initiations of crimes or torts according to
libertarian theory. Every statute or administrative rule is therefore
illegitimate and itself invasive and a criminal interference with
the property rights of noncriminals.

Suppose,
for example, that A builds a building, sells it to B,
and it promptly collapses. A should be liable for injuring
B’s person and property and the liability should be proven
in court, which can then enforce the proper measures of restitution
and punishment. But if the legislature has imposed building codes
and inspections in the name of “safety,” innocent builders (that
is, those whose buildings have not collapsed) are subjected to
unnecessary and often costly rules, with no necessity by government
to prove crime or damage. They have committed no tort or crime,
but are subject to rules, often only distantly related to safety,
in advance by tyrannical governmental bodies. Yet, a builder
who meets administrative inspection and safety codes and then
has a building of his collapse, is often let off the hook by the
courts. After all, has he not obeyed all the safety rules of the
government, and hasn’t he thereby received the advance imprimatur
of the authorities?[77]

The only
civil or criminal system consonant with libertarian legal principles
is to have judges (and/or juries and arbitrators) pursuing charges
of torts by plaintiffs made against defendants.

It should
be underlined that in libertarian legal theory, only the victim
(or his heirs and assigns) can legitimately press suit against
alleged transgressors against his person or property. District
attorneys or other government officials should not be allowed
to press charges against the wishes of the victim, in the name
of “crimes” against such dubious or nonexistent entities as “society”
or the “state.” If, for example, the victim of an assault or theft
is a pacifist and refuses to press charges against the criminal,
no one else should have the right to do so against his wishes.
For just as a creditor has the right to “forgive” an unpaid debt
voluntarily, so a victim, whether on pacifist grounds or because
the criminal has bought his way out of a suit[78] or any other reason, has the right to “forgive”
the crime so that the crime is thereby annulled.

Critics of
automobile emissions will be disturbed by the absence of government
regulation, in view of the difficulties of proving harm to victims
from individual automobiles.[79] But, as we have stressed, utilitarian considerations
must always be subordinate to the requirements of justice. Those
worried about auto emissions are in even worse shape in the tort
law courts, because libertarian principle also requires a return
to the now much scorned nineteenth-century rule of privity.

The privity
rule, which applies largely to the field of products liability,
states that the buyer of a defective product can only sue the
person with whom he had a contract.[80] If the consumer buys a watch from a retailer,
and the watch does not work, it should only be the retailer whom
he can sue, since it was the retailer who transferred ownership
of the watch in exchange for the consumer’s money. The consumer,
in contrast to modern rulings, should not be able to sue the manufacturer,
with whom he had no dealings. It was the retailer who, by selling
the product, gave an implied warranty that the product would not
be defective. And similarly, the retailer should only be able
to sue the wholesaler for the defective product, the wholesaler
the jobber, and finally the manufacturer.[81]

In the same
way, the privity role should be applied to auto emissions. The
guilty polluter should be each individual car owner and not the
automobile manufacturer, who is not responsible for the actual
tort and the actual emission. (For all the manufacturer knows,
for example, the car might only be used in some unpopulated area
or used mainly for aesthetic contemplation by the car owner.)
As in the product liability cases, the only real justification
for suing the manufacturer rather than the retailer is simply
convenience and deep pockets, with the manufacturer presumably
being wealthier than the retailer.

While the
situation for plaintiffs against auto emissions might seem hopeless
under libertarian law, there is a partial way out. In a libertarian
society, the roads would be privately owned. This means that the
auto emissions would be emanating from the road of the road owner
into the lungs or airspace of other citizens, so that the road
owner would be liable for pollution damage to the surrounding
inhabitants. Suing the road owner is much more feasible than suing
each individual car owner for the minute amount of pollutants
he might be responsible for. In order to protect himself from
these suits, or even from possible injunctions, the road owner
would then have the economic incentive to issue anti-pollution
regulations for all cars that wish to ride on his road. Once again,
as in other cases of the “tragedy of the commons,” private ownership
of the resource can solve many “externality” problems.[82]

Collapsing
Crime Into Tort

But if there
is no such entity as society or the state, or no one except the
victim that should have any standing as a prosecutor or plaintiff,
this means that the entire structure of criminal law must be dispensed
with, and that we are left with tort law, where the victim indeed
presses charges against the aggressor.[83] However, there is no reason why parts of the
law that are now the province of criminal law cannot be grafted
onto an enlarged law of torts. For example, restitution to the
victim is now considered the province of tort law, whereas punishment
is the realm of criminal law.[84] Yet, punitive damages for intentional torts
(as opposed to accidents) now generally are awarded in tort law.
It is therefore conceivable that more severe punishments, such
as imprisonment, forced labor to repay the victim, or transportation,
could be grafted onto tort law as well.[85]

One cogent
argument against any proposal to collapse criminal into tort law
is that, in the reasoning against allowing punitive damages in
tort cases, they are “fixed only by the caprice of the jury and
imposed without the usual safeguards thrown about criminal procedure,
such as proof of guilt beyond a reasonable doubt [and] the privilege
against self-incrimination.”[86] But, as argued above, standards such as proof
beyond a reasonable doubt should be applied to tort law cases
as well.[87]

Professor
Epstein, in attempting to preserve a separate realm for criminal
law as against a proposed collapse into tort law, rests much of
his case on the law of attempts. In criminal law, an attempted
crime that for some reason fails and results in no damage or invasion
of the rights of the victim, is still a crime and can be prosecuted.
And yet, Epstein charges, such an attempted crime would not be
an invasion of rights and therefore could not be a tort and could
not be prosecuted under tort law.[88]

Randy Barnett’s
rebuttal, however, is conclusive. Barnett points out, first, that
most unsuccessful attempts at invasion result nevertheless in
“successful” though lesser invasion of person or property, and
would therefore be prosecutable under tort law. “For example,
attempted murder is usually an aggravated assault and battery,
attempted armed robbery is usually an assault, attempted car theft
or burglary is usually a trespass.”[89] Secondly, even if the attempted crime created
no invasion of property per se, if the attempted battery
or murder became known to the victim, the resulting creation
of fear in the victim would be prosecutable as an assault. So
the attempted criminal (or tortfeasor) could not get away unscathed.

Therefore,
the only attempted invasion that could not be prosecuted under
the law of torts would be one that no one ever knew anything
about. But if no one knows about it, it cannot be prosecuted,
under any law.[90]

Furthermore,
as Barnett concludes, potential victims would not be prevented
under libertarian law from defending themselves from attempts
at crime. As Barnett says, it is justifiable for a victim or his
agents to repel an overt act that has been initiated against him,
and that in fact is what an attempt at crime is all about.[91]

Joint
Torts and Joint Victims

So far in
discussing invasions of person or property, we have confined ourselves
to single aggressors and single victims, of the “A hit B” or “damaged
B” variety. But actual air pollution cases often have multiple
alleged aggressors and multiple victims. On what principles may
they be prosecuted or convicted?

When more
than one aggressor has contributed to a tort, it is generally
more convenient for the plaintiffs to join the defendants together
in one suit (“joinder”). Convenience, however, should not be allowed
to override principle or rights, and in our view the original
common-law rule of joinder was correct: Defendants can be compulsorily
joined only when all the parties acted in concert in a
joint tortious enterprise.

In the case
of truly joint torts, it also makes sense to have each of the
joint aggressors equally liable for the entire amount of the damages.
If it were otherwise, each criminal could dilute his own liability
in advance by simply adding more criminals to their joint enterprise.
Hence, since the action of all the aggressors was in concert,
the tort was truly joint, so that

“all coming
to do an unlawful act and of one part, the act of one is the
act of the same part being present.” Each was therefore liable
for the entire damage done, although one might have battered
the plaintiff, while another imprisoned him, and a third stole
his silver buttons. All might be joined as defendants in the
same action at law. [92]

Unfortunately,
for purposes of convenience, the joinder rule has been weakened,
and the courts in many cases have permitted plaintiffs to compel
joinder of defendants even in cases where torts are committed
separately and not in concert.[93] The confusion in joinder for both joint and
separate torts has caused many courts to apply the full or “entire”
liability rule to each aggressor. In the case of separate torts
impinging upon a victim, this makes little sense. Here the rule
should always be what it has traditionally been in nuisance cases,
that the courts apportion damage in accordance with the separate
causal actions contributed by each defendant.

Air pollution
cases generally are those of separate torts impinging upon victims;
therefore, there should be no compulsory joinder and damages should
be apportioned in accordance with the separate causal factors
involved. As Prosser writes:

Nuisance
cases, in particular, have tended to result in apportionment
of the damages, largely because the interference with the plaintiff’s
use of his land has tended to be severable in terms of quantity,
percentage, or degree. Thus defendants who independently pollute
the same stream or who flood the plaintiff’s land from separate
sources, are liable only severally for the damages individually
caused, and the same is true as to nuisance due to noise, or
pollution of the air.[94]

But because
the injuries are multiple and separate, it is then up to the plaintiffs
to show a rational and provable basis for apportioning the damage
among the various defendants and causative factors. If this rule
is properly and strictly adhered to, and proof is beyond a reasonable
doubt, the plaintiffs in air pollution cases generally will be
able to accomplish very little. To counter this, environmental
lawyers have proposed a weakening of the very basis of our legal
system by shifting the burden of proof for detailed allocation
of damages from the plaintiffs to the various defendants.[95]

Thus, compulsory
joinder of defendants may proceed on the original common-law rule
only when the defendants have allegedly committed a truly joint
tort, in concerted action. Otherwise, defendants may insist on
separate court actions.

What about
joinder of several plaintiffs against one or more defendants?
When may that take place? This problem is highly relevant to air
pollution cases, where there are usually many plaintiffs proceeding
against one or more defendants.

In the early
common law, the rules were rigorous on limiting permissible joinder
of plaintiffs to cases where all causes in action had to affect
all the parties joined. This has now been liberalized to permit
joint action by plaintiffs where the joint action arises out of
the same transaction or series of transactions, and where there
is at least one question of law of fact common to all plaintiffs.
This appears to be a legitimate liberalization of when plaintiffs
shall be allowed voluntary joinder.[96]

While permissive
joinder of plaintiffs in this sense is perfectly legitimate, this
is not the case for “class action” suits, where the outcome of
the suit is binding even upon those members of the alleged class
of victims who did not participate in the suit. It seems the height
of presumption for plaintiffs to join in a common suit and to
press a “class action” suit, in which even those other alleged
victims who never heard of or in some way did not consent to a
suit are bound by the result. The only plaintiffs who should be
affected by a suit are those who voluntarily join. Thus, it would
not be permissible for 50 residents of Los Angeles to file a pollution
suit on behalf of the class of “all citizens of Los Angeles,”
without their knowledge or express consent. On the principle that
only the victim and his heirs and assigns may press suit or use
force on his behalf, class action suits binding on anyone except
voluntary plaintiffs are impermissible.[97]

Unfortunately,
while the 1938 Federal Rule of Civil Procedure 23 provided for
at least one type of nonbinding class action, the “spurious class
action,” the revised 1966 rules make all class action suits binding
upon the class as a whole, or rather on all those members of the
class who do not specifically request exclusion. In an unprecedented
step, voluntary action is now being assumed if no action
is taken. The residents of Los Angeles, who might not even know
about the suit in question, are required to take steps to exclude
themselves from the suit, otherwise the decision will be binding
upon them.[98] Furthermore, most states have followed the
new federal rules for class action suits.

As in the
case of voluntary joinder, the post-1966 class action must involve
questions of law or fact common to their entire class. Fortunately,
the courts have placed further limits on the use of class action.
In most cases, all identifiable members of the class must be given
individual notice of the suit, giving them at least an opportunity
to opt out of the action; also, the class must be definitely identifiable,
ascertainable, and manageable. Under this rule, the federal courts
generally would not allow “all residents of the city of Los Angeles”
to be party to a class action suit.[99] Thus, a suit allegedly on behalf of all residents
of Los Angeles County (over seven million persons) to enjoin 293
companies from polluting the atmosphere was dismissed by the court
“as unmanageable because of the number of parties (plaintiffs
and defendants), the diversity of their interests, and the multiplicity
of issues involved.”[100]

Another sensible
limitation placed on most class action suits is that common class
interests in the suit must predominate over separate individual
interests. Thus, a class suit will not be allowed where separate
individual issues are “numerous and substantial,” and therefore
common issues do not predominate. In the case of City of San
Jose v. Superior Court (1974), the court threw out
a class action suit of landowners near an airport, suing for damages
to their land resulting from airport noise, pollution, traffic,
and so on. Even though the airport affected each of the landowners,
the court properly ruled that “the right of each landowner to
recover for the harm to his land involved too many individual
facts (for example, proximity to flight paths, type of property,
value, use, and so on)” to permit a class suit.[101]

Thus, class
action suits should not be allowed except where every plaintiff
actively and voluntarily joins and where common interests predominate
over separate and individual ones.[102]

How, then,
have the recent class action rules been applied to the question
of air pollution? Krier says with dismay that while the 1966 Federal
Rule 23 is indeed more liberal than its predecessor in allowing
class action, the US Supreme Court has virtually nullified its
impact by ruling that class members may aggregate individual claims
for federal courts only when they share a common undivided
interest.[103] According to Krier, this cogent limitation
rules out most class action suits in air pollution cases. He adds
that while this restriction does not apply to state suits, these
are often even less viable than federal class suits before the
new rules. Krier complains, in an unconsciously humorous note,
that some class action suits don’t attract any plaintiffs
at all.[104]

But the major
problem of class action suits for the plaintiffs, Krier concedes,
is the manageability and ascertainability rules for suits with
a large number of plaintiffs in the class, citing in particular
the Diamond v. General Motors case. But whereas
Krier attributes the problem solely to the lack of competence
and facilities judges possess to balance the various interests,
he fails to realize the still larger problem of lack of identifiability
and lack of clear proof of guilt and causality between defendant
and plaintiff.

Conclusion

We have attempted
to set forth a set of libertarian principles by which to gauge
and reconstruct the law. We have concluded that everyone should
be able to do what he likes, except if he commits an overt act
of aggression against the person and property of another. Only
this act should be illegal, and it should be prosecutable only
in the courts under tort law, with the victim or his heirs and
assigns pressing the case against the alleged aggressor. Therefore,
no statute or administrative ruling creating illegal actions should
be permitted. And since any prosecution on behalf of “society”
or the “state” is impermissible, the criminal law would be collapsed
into a reconstituted tort law, incorporating punishment and part
of the law of attempts.

The tortfeasor
or criminal is to be strictly liable for his aggression, with
no evasion of liability permissible on the basis of “negligence”
or “reasonability” theories. However, the liability must be proven
on the basis of strict causality of the defendant’s action against
the plaintiff, and it must be proven by the plaintiff beyond a
reasonable doubt.

The aggressor
and only the aggressor should be liable, and not the employer
of an aggressor, provided, of course, that the tort was not committed
at the direction of the employer. The current system of vicarious
employer liability is a hangover from pre-capitalist master/serf
relations and is basically an unjust method of finding deep pockets
to plunder.

These principles
should apply to all torts, including air pollution. Air pollution
is a private nuisance generated from one person’s landed property
onto another and is an invasion of the airspace appurtenant to
land and, often, of the person of the landowner. Basic to libertarian
theory of property rights is the concept of homesteading, in which
the first occupier and user of a resource thereby makes it his
property. Therefore, where a “polluter” has come first to the
pollution and has preceded the landowner in emitting air pollution
or excessive noise onto empty land, he has thereby homesteaded
a pollution or excessive noise easement. Such an easement becomes
his legitimate property right rather than that of the later, adjacent
landowner. Air pollution, then, is not a tort but only the ineluctable
right of the polluter if he is simply acting on a homestead
easement. But where there is no easement and air pollution is
evident to the senses, pollution is a tort per se because
it interferes with the possession and use of another’s air. Boundary
crossing – say by radio waves or low-level radiation –
cannot be considered aggression because it does not interfere
with the owner’s use or enjoyment of his person or property. Only
if such a boundary crossing commits provable harm – according
to principles of strict causality and beyond a reasonable doubt
– can it be considered a tort and subject to liability and
injunction.

A joint tort,
in which defendants are compelled to defend themselves jointly,
should apply only if all acted in concert. Where their actions
are separate, the suits must be separate as well, and the liability
apportioned separately. Plaintiffs should be able to join their
suits against a defendant only if their cases have a common element
predominating over the separate and individual interests. Class
action suits are impermissible beyond a voluntary joinder of plaintiffs
because they presume to act for and bind class members who have
not agreed to join in the suit.

Finally,
we must renounce the common practice of writers on environmental
law of acting as special pleaders for air pollution plaintiffs,
lamenting whenever plaintiffs are not allowed to ride roughshod
over defendants. The overriding factor in air pollution law, as
in other parts of the law, should be libertarian and property
rights principles rather than the convenience or special interests
of one set of contestants.

Notes

[1] Legal principles setting down certain prohibited
actions as torts or crimes are to be distinguished from statutes
or administrative edicts that lay down positive demands, such
as “thou shalt pay X amount of taxes” or “thou shalt report for
induction on such and such a date.” In a sense, of course, all
commands can be phrased in such a way as to appear negative, such
as “thou shalt not refuse to pay X amount of taxes,” or “thou
shalt not disobey the order to appear for induction.” Why such
rephrasing would be inappropriate will be discussed below. See
below also for a discussion of “torta” vis-a-vis “crimes.”

[2] Ronald Dworkin, however, has pointed out that even
positive legal analysis necessarily involves moral questions and
moral standards. Dworkin, Taking
Rights Seriously
(Cambridge, Mass.: Harvard University
Press, 1977), chaps. 2, 3, 12, 13. Also see Charles Fried, “The
Law of Change: The Cunning of Reason in Moral and Legal History,”
Journal of Legal Studies (March 1980): 340.

[3] The Austinians, of course, are also smuggling in
a normative axiom into their positive theory: The law should be
what the king says it is. This axiom is unanalyzed and ungrounded
in any set of ethical principles.

[4] Again, these modern, democratic variants of positive
legal theory smuggle in the unsupported normative axiom that statutes
should be laid down by whatever the legislators or the voters
wish to do.

[5] See the article launching this analysis by Ronald
H. Coase, “The Problem of Social Cost,” Journal of Law and
Economics 3 (October 1960): 10. For a critique, see Walter
Block, “Coase and Demsetz on Private Property Rights,” Journal
of Libertarian Studies (Spring 1977): 111–15.

[6] It is now illegal to bargain one’s way out of an
injunction by dealing with the injured party. In that case, of
course, Coase-Demsetz cost internalization totally breaks down.
But even with bargaining allowed, it would probably break down.
Moreover, there may well be farmers so attached to their orchards
that no price would compensate them, in which case the
injunction would be absolute, and no Coase-Demsetz bargaining
could remove it. On allowing bargaining to remove injunctions,
see Barton H. Thompson, Jr., “Injunction Negotiations: An Economic,
Moral and Legal Analysis,” Stanford Law Review 27 (July
1975): 1563–95.

[7] On the impermissibility of the social cost concept
and its application here, see Mario J. Rizzo, “Uncertainty, Subjectivity,
and the Economic Analysis of Law,” and Murray N. Rothbard, “Comment:
the Myth of Efficiency,” in Time,
Uncertainty, and Disequilibrium: Exploration of Austrian Themes
,
Mario Rizzo, ed. (Lexington, Mass.: Lexington Books, 1979), pp.
71–95. Also see John B. Egger, “Comment: Efficiency is not a Substitute
for Ethics,” in ibid., pp. 117–25.

[8] Social efficiency is a meaningless concept because
efficiency is how effectively one employs means to reach given
ends. But with more than one individual, who determines the ends
toward which the means are to be employed? The ends of different
individuals are bound to conflict, making any added or weighted
concept of social efficiency absurd. For more on this, see Rothbard,
“Myth of Efficiency,” p. 90.

[9] Charles Fried has pointed out that efficiency is,
willy-nilly, an attempted moral criterion, albeit unexamined,
wrong, and incoherent. Fried, “The Law of Change,” p. 341.

[10] The concept of social wealth suffers from the
same disabilities as Coase-Demsetz, as well as other problems
of its own. For a devastating critique of Posner, see Ronald M.
Dworkin, “Is Wealth a Value?” and Richard A. Epstein, “The Static
Conception of the Common Law,” in Journal of Legal Studies
(March 1980): 191–226, 253–76. Also see Anthony J. Kronman, “Wealth
Maximization as a Normative Principle”; Mario J. Rizzo, “Law Amid
Flux: The Economics of Negligence and Strict Liability in Tort”;
Fried, “The Law of Change”; and Gerald P. O’Driscoll, Jr., “Justice,
Efficiency, and the Economic Analysis of Law: A Comment on Fried,”
in ibid.: 227–42, 291–318, 335–54, 355–66.

[11] The qualification of property being “just” must
be made. Suppose, for example, that A steals B’s watch and that
several months later, B apprehends A and grabs the watch back.
If A should prosecute B for theft of “his” watch, it would be
an overriding defense on B’s part that the watch was not really
and justly A’s because he had previously stolen it from B.

[12] For more on this libertarian, or “neo-Lockian,”
view, see Murray N. Rothbard, “Justice and Property Rights,” in
Property
in a Humane Economy
, Samuel Blumenfeld, ed. (LaSalle,
ill.: Open Court, 1974), pp.101–22. In a sense, Percy B. Lehning
is right when he comments that rather than being two independent
axioms, the homesteading principle really follows from the single
axiom of self-ownership. Lehning, “Property Rights, Justice and
the Welfare State,” Acta Politica 15 (Rotterdam 1980):
323, 352.

[13] Thus, John Stuart Mill calls for complete freedom
of individual action “without impediment from our fellow-creatures,
so long as what we do does not harm them.” Mill, “On Liberty,”
in Utilitarianism, Liberty, and Representative Government
(New York: E.P. Dutton, 1944), p. 175. Hayek, after properly defining
freedom as the absence of coercion, unfortunately fails to define
coercion as physical invasion and thereby permits and justifies
a wide range of government interference with property rights.
See Murray N. Rothbard, “F.A. Hayek and the Concept of Coercion,”
Ordo 31 (Stuttgart 1980): 43–50.

[14] Robert Nozick appears to justify the outlawry
of all voluntary exchanges that he terms “nonproductive,” which
he essentially defines as a situation where A would be better
off if B did not exist. For a critique of Nozick on this point,
see Murray N. Rothbard, “Robert Nozick and the Immaculate Conception
of the State,” Journal of Libertarian Studies (Winter 1977):
52ff.

[15] We may therefore hail the “absolutist” position
of Mr. Justice Black in calling for the elimination of the law
of defamation. The difference is that Black advocated an absolutist
stand on the First Amendment because it is part of the Constitution,
whereas we advocate it because the First Amendment embodies a
basic part of the libertarian creed. On the significant weakening
of the law of defamation in the last two decades, see Richard
A. Epstein, Charles O. Gregory, and Harry Kalven, Jr., Cases
and Materials on Torts
, 3rd ed. (Boston: Little, Brown,
1977), pp. 977–1129 (hereafter cited as Epstein, Cases on Torts).

[16] There should be no assertion of a right to privacy
that cannot be subsumed under protection of property rights of
guarding against breach of contract. On privacy, see ibid., pp.
1131–90.

[17] “Apprehension” of an imminent battery is a more
appropriate term than “fear,” since it stresses the awareness
of a coming battery and of the action causing that awareness by
the aggressor, rather than the subjective psychological state
of the victim. Thus, Dean Prosser: “Apprehension is not the same
thing as fear, and the plaintiff is not deprived of his action
merely because he is too courageous to be frightened or intimidated.”
William L. Prosser, Handbook of the Law of Torts, 4th ed.
(St Paul, Minn.: West Publishing, 1971), p. 39.

[18] It is unfortunate that starting about 1930, the
courts have succumbed to the creation of a brand new tort, “intentional
infliction of mental disturbance by extreme and outrageous conduct.”
It is clear that freedom of speech and person should allow verbal
insult, verbal insult, outrageous though it may be; furthermore,
there is no cogent criterion to demarcate mere verbal abuse from
the “outrageous” variety. Judge Magruder’s statement is highly
sensible: “Against a large part of the frictions and irritations
and clashing of temperaments incident to participation in community
life, a certain toughening of the mental hide is a better protection
than the law could ever be.” Magruder, “Mental and Emotional Disturbance
in the Law of Torts,” Harvard Law Review 40 (1936): 1033,
1035; cited in Prosser, Law
of Torts
, p. 51. Also see ibid., pp. 49–62; Epstein, Cases
on Torts, pp. 933–52.

In general,
we must look with great suspicion on any creation of new torts
that are not merely application of old tort principles to new
technologies. There is nothing new or modern about verbal abuse.

It seems
that both the infliction-of-harm and the new invasion-of-privacy
tort are part and parcel of the twentieth-century tendency to
dilute the rights of the defendant in favor of excessive cossetting
of the plaintiff – a systematic discrimination that has taken
place in tort rather than criminal proceedings. See Epstein, “Static
Conception of the Common Law,” pp. 253–75. See also below.

[19] Prosser, Law of Torts, pp. 39–40.

[20] Hence, the wisdom of the court’s decision in
South Brilliant Coal Co. v. Williams: “If Gibbs
kicked plaintiff with his foot, it cannot be said as a matter
of law that there was no physical injury to him. In a legal sense,
it was physical injury, though it may have caused no physical
suffering, and though the sensation resulting therefrom may have
lasted but for a moment” South Brilliant Coal Co. v. Williams,
206 Ala. 637,638 (1921). In Prosser, Law of Torts, p.36.
Also see Epstein, Cases on Torts, pp. 903ff.

[21] Courvoisier v. Raymond, 23 Colo. 113,47
Pac.284 (1896), and discussion by Epstein in Cases on Torts,
pp. 21–23; and in Richard A. Epstein, “A Theory of Strict Liability,”
Journal of Legal Studies 2 (January 1973): 173.

[22] As Epstein puts it, “Under a theory of strict
liability, the statement of the prima facie case is evident:
the defendant shot the plaintiff. The only difficult question
concerns the existence of a defense which takes the form, the
plaintiff assaulted the defendant. That question is a question
of fact, and the jury found in effect that the plaintiff did not
frighten the defendant into shooting him,” ibid.

[23] Randy E. Barnett, “Restitution: A New Paradigm
of Criminal Justice,” in Assessing
the Criminal: Restitution, Retribution, and the Legal Process
,
R. Barnett and J. Hagel, eds. (Cambridge, Mass.: Ballinger, 1977),
p. 377. Barnett has since pointed out that his article was in
error in mentioning “specific intent to commit a crime”; the important
emphasis is on action constituting a crime or tort rather
than the intent involved.

[24] See Morris v. Platt, 32 Conn. 75 (1864),
and the discussion by Epstein in Cases on Torts, pp. 22–23

[25] On the relationship between the criminal and
tort law, see the section here entitled “Collapsing Crime Into
Tort.”

[26] While modern law discriminates against the defendant
in economic cases, it discriminates heavily against the victim
in his use of personal force in self-defense. In other words,
the state is allowed to use excessive force through the courts
in economic cases (where corporations or the wealthy are defendants),
but individual victims are scarcely allowed to use force at all.

[27] For the current state of legal doctrine, see
Prosser, Law of Torts. pp. 108–25, 134ff. As Epstein indicates,
basing the proper limits of self-defense on permissible punishment
would imply that in jurisdictions that have abolished capital
punishment, no one may use deadly force even in self-defense against
a deadly attack. So far the courts have not been willing to embrace
this reductio ad absurdum of their own position. Epstein,
Cases on Torts, p. 30.

[28] This is the same concept but a different name
for Williamson Evers’s pioneering phrase, “the proper assumption
of risk.” The current phrase avoids confusion with the concept
of “assumption of risk” in tort law, which refers to risk voluntarily
assumed by a plaintiff and that therefore negates his attempts
at action against a defendant. The “proper burden of risk” is
related to the legal concept but refers to what risk should
be assumed by each person in accordance with the nature of man
and of a free society, rather than what risk had voluntarily been
incurred by a plaintiff. See Rothbard, “Nozick and the Immaculate
Conception of the State,” pp. 49–50.

[29] Or an overt act against someone else. If it is
legitimate for a person to defend himself or his property, it
is then equally legitimate for him to call upon other persons
or agencies to aid him in that defense, or to pay for this defense
service.

[30] Thayer, in his classical treatise on evidence,
wrote: “There is a principle … a presupposition involved in
the very conception of a rational system of evidence which forbids
receiving anything irrelevant, not logically probative,” Thayer,
Preliminary
Treatise on Evidence
(1898), pp. 264ff., cited in McCormick’s
Handbook of the Law of Evidence
, E. W. Cleary, ed., 2nd
ed. (St Paul, Minn.: West Publishing, 1972), p. 433.

[31] Benjamin R. Tucker, the leading individualist-anarchist
thinker of the late nineteenth century, wrote: “No use of force,
except against the invader; and in those cases where it is difficult
to tell whether the alleged offender is an invader or not, still
no use of force except where the necessity of immediate solution
is so imperative that we must use it to save ourselves.” Benjamin
R. Tucker, Instead
of a Book
(New York: B.R. Tucker, 1893), p. 98. Also see
ibid., pp. 74–75.

[32] Cleary puts the point well, though he unfortunately
applies it only to criminal cases: “Society has judged that it
is significantly worse for an innocent man to be found guilty
of a crime than for a guilty man to go free…. Therefore, as
stated by the Supreme Court in recognizing the inevitability of
error in criminal cases … this margin of error is reduced as
to him [the defendant] by the process of placing on the other
party the burden … of persuading the factfinder at the conclusion
of the trial of his guilt beyond a reasonable doubt In so doing,
the courts have … the worthy goal of decreasing the number of
one kind of mistake – conviction of the innocent” McCormick’s
Handbook of Evidence, pp. 798–99.

[33] The burden of proof is also on the plaintiff
in contemporary law. Cleary writes: “The burdens of pleading and
proof with regard to most facts have been and should be assigned
to the plaintiff who generally seeks to change the present state
of affairs and who therefore naturally should be expected to bear
the risk of failure of proof or persuasion.” Ibid., p. 786. Cleary
also speaks of “the natural tendency to place the burdens on the
party desiring change.” Ibid., pp. 788–89.

[34] See section here entitled “Collapsing Crime Into
Tort.”

[35] See McCormick’s Handbook of Evidence,
pp. 794ff.

[36] Ibid., p. 796. Here we must hail the scorned
trial judges in Molyneux v. Twin Falls Canal Co.,
54 Idaho 619, 35 P. 2d 651, 94 A.L.R. 1264 (1934), and Williams
v. Blue Ridge Building & Loan Assn., 207 N.C. 362,177
S.E. 176 (1934).

[37] C. Shiveley, ed., The
Collected Works of Lysander Spooner
(Weston, Mass.: M.
and S. Press, 1971), 2, pp. 208–9. It should be pointed out that
Spooner, too, made no distinction between civil and criminal cases
in this regard. I am indebted to Williamson Evers for this reference.

[38] St. Louis Union Co. v. Busch, 36
Mo. 1237, 145 S.W. 2d426, 430 (1940); Ward v. Lyman,
108 Vt 464,188 A. 892, 893 (1937). McCormick’s Handbook of
Evidence, pp. 797, 802.

[39] According to Epstein: “Once it is decided that
there is no hard content to the term causation, the courts are
free to decide particular lawsuits in accordance with the principles
of ?ocial policy’ under the guise of proximate-cause doctrine.”
Epstein, “A Theory of Strict Liability,” p. 163. Such nebulous
and unworkable concepts as “substantial factor” in a damage or
“reasonably foreseeable” have been of little help in guiding decisions
on “proximate cause.” For an excellent critique of “but for” tests
for “cause in fact” in negligence theory, as well as the Chicago-Posnerite
attempt to scrap the concept of cause altogether in tort law,
see ibid., pp. 160–62, 163–66.

[40] If a long-time smoker who develops lung cancer
should sue a cigarette company, there are even more problems.
Not the least is that the smoker had voluntarily assumed the risk,
so that this situation could hardly be called an aggression or
tort. As Epstein writes, “Suppose plaintiff smoked different brands
of cigarettes during his life? Or always lived in a smog-filled
city? And if plaintiff surmounts the causal hurdle, will he be
able to overcome the defense of assumption of risk?” Epstein,
Cases on Torts, p. 257. Also see Richard A. Wegman, “Cigarettes
and Health: A Legal Analysis,” Cornell Law Quarterly 51
(Summer 1966): 696–724.

A particularly
interesting cancer tort case that is instructive on the question
of strict causality is Kramer Service Inc. v. Wilkins
184 Miss. 483,186 So. 625 (1939), in Epstein, Cases
on Torts, p. 256. The court summed up the proper status of
medical causal evidence in Daly v. Bergstedt (1964),
267 Minn. 244, 126 N. W. 2d 242. In Epstein, Cases on Torts,
p. 257. Also see Epstein’s excellent discussion, ibid., of DeVere
v. Parten (1946), in which the plaintiff was properly slapped
down in an absurd attempt to claim that the defendant was responsible
for a disease she had contracted.

[41] Milton Katz, “The Function of Tort Liability
in Technology Assessment,” Cincinnati Law Review 38 (Fall
1969): 620.

[42] Prosser, Law of Torts, p. 458.

[43] Ibid., p. 461.

[44] Ibid., p. 464.

[45] Ibid., p. 459.

[46] Ibid.

[47] In his Harvard Law Review articles on
“Agency,” 1891. See Epstein, Cases on Torts, p. 705.

[48] Ibid., p. 707.

[49] Ibid., p. 705.

[50] Kerlin v. Southern Telephone &
Telegraph Co. (Ga.), 191 Ga. 663, 13 S.E. 2d 790 (1941);
Ballard v. Dyson (1808) 1 Taunt. 279, 127 Eng. Rep. 841.
In William E. Burby, Handbook
of the Law of Real Property
, 3rd ed. (St Paul, Minn.:
West Publishing, 1965), pp. 84–85.

[51] Prosser, Law of To11s, pp. 600–1. Also
see Burby, Law of Real Property, p. 78. Sturges
v. Bridgman (1879), 11 Ch, Div. 852.

[52] Prosser, Law of Torts, p. 611.

[53] Bove v. Donner-Hanna Coke Corp.,
236 App. Div.37, 258 N. Y.S. 229 (1932), quoted in Epstein, Cases
on Torts, p. 535. Contrary to Epstein, however, the coming-to-nuisance
is not simply an assumption of risk on the part of the plaintiff.
It is a stronger defense, for it rests on an actual assignment
of property right in the “nuisance” creating activity, which is
therefore absolute, overriding, and indefeasible. Cf. Richard
A. Epstein, “Defenses and Subsequent Pleas in a System of Strict
Liability,” Journal of Legal Studies 3 (1974): 197–201.

[54] “Note: Deposit of Gaseous and Invisible Solid
Industrial Wastes Held to Constitute Trespass,” Columbia Law
Review 60 (1960): 879.

[55] Ibid.: 879–80. Also see Glen Edward Clover, “Torts:
Trespass, Nuisance and E=mc2,” Oklahoma Law Review
11 (1966): ll8ff.

[56] Prosser, Law of Torts, pp. 591–92.

[57] Ibid., p. 595. A nuisance generally emanates
from the land of A to the land of B; in short, stems
from outside B’s land itself. Prosser’s attempt to rebut this
point (defendant’s dog howling under plaintiff’s window or defendant’s
cattle roaming over the other’s fields) misses the point. The
offending dog and cattle themselves wandered over the land of
A, the defendant, and since they are domesticated, their deeds
are the responsibility of their owners. On animals, see ibid.,
pp. 496–503.

[58] Ibid., p. 66.

[59] “Note, Deposit of Wastes,” pp. 880–81. Also see
Clover, “Torts: Trespass, Nuisance and E=mc2,” p. 119.

[60] Prosser, Law of Torts, p. 66.

[61] During the 1920s, the courts were working out
precisely such a system of homesteaded private property rights
in airwave frequencies. It is because such a private property
structure was evolving that Secretary of Commerce Hoover pushed
through the Radio Act of 1927, nationalizing ownership of the
airwaves. See Ronald H. Coase, “The Federal Communications Commission,”
Journal of Law and Economics 2 (October 1959): 1–40. For
a modern study of how such frequencies could be allocated, see
A. De Vany, et al., A
Property System Approach to the Electromagnetic Spectrum

(San Francisco: Cato Institute, 1980).

[62] On prescriptive rights, tangibility, and the
concept of “coming to the tort” in relation to air pollution,
see William C. Porter, “The Role of Private Nuisance Law in the
Control of Air Pollution,” Arizona Law Review 10 (1968):
107–19; and Julian C. Juergensmeyer, “Control of Air Pollution
Through the Assertion of Private Rights,” Duke Law Journal
(1967): 1126–55.

[63] Terry James Yamada, “Urban Noise: Abatement,
Not Adaptation,” Environmental Law 6 (Fall 1975): 64. Unfortunately,
like most authors writing on environmental law, Yamada writes
like a fervent special pleader for environmental plaintiffs rather
than as a searcher for objective law.

[64] Ibid.: 63. Note, however, that in our view the
requirement of “reasonable” for actual injury or discomfort is
correct for noise but not, say, for visible smoke or noxious odors,
unless “discomfort” is interpreted broadly so as to include all
interference with use.

[65] See the discussion of various theories of land
and air ownership in Prosser, Law of Torts, pp. 70–73.

[66] In Hinman v. Pacific Air Transport,
9 Cir. (1936), 84 F.2d 755, cert. denied 300 U.S. 654. In ibid.,
p. 71.

[67] Ibid., p. 70.

[68] Ibid., pp. 70–71. See Smith v. New
England Aircraft Co., (193?), 270 Mass. 511,170 N.E. 385.
Also see Prosser, Law of Torts, pp. 514–15.

[69] Thornburg v. Port of Portland (1962),
233 Ore. 178, 376 P.2d 103. Quoted in Clover, “Torts: Trespass,
Nuisance and E=mc2, p. 121. The previous view was based
on United States v. Causby (1946). Also see Prosser,
Law of Torts, pp. 72–73.

[70] Holman v. Athens Empire Laundry Co.,
149 G. 345,350,100 S.E. 207, 210 (1919). Quoted in Jack L. Landau,
“Who Owns the Air? The Emission Offset Concept and Its Implications,”
Environmental Law 9 (1979): 589.

[71] Prosser, Law of Torts, p. 354.

[72] Paul B. Downing, “An Introduction to the Problem
of Air Quality,” in Air
Pollution and the Social Sciences
, Downing, ed. (New York:
Praeger, 1971), p. 13.

[73] James E. Krier, “Air Pollution and Legal Institutions:
An Overview,” in ibid., Air Pollution and the Social Sciences,
pp. 107–8.

[74] See section entitled “Joint Torts and Joint Victims”
for a discussion of joint tortfeasors, multiple torts, and class
actions suits.

[75] Jeffrey C. Bodie, “The Irradiated Plaintiff:
Tory Recovery Outside Price-Anderson,” Environmental Law
6 (Spring 1976): 868.

[76] With respect to air pollution regulations, see
Landau, “Who Owns the Air?” pp. 575–600.

[77] For an excellent discussion of judicial as opposed
to statutory or administrative remedies for adulteration of products,
see Wordsworth Donisthorpe, Law in a Free Society (London:
Macmillan, 1895), pp. 132–58.

[78] Criminals should have the right to buy off a
suit or enforcement by the victim, just as they should have the
right to buy out an injunction from a victim after it has been
issued. For an excellent article on the latter question, see Thompson,
“Injunction Negotiations,” pp. 1563–95.

[79] See section entitled “Joint Torts and Joint Victims.”

[80] For hostile accounts of privity and a discussion
of implied warranty, see Richard A. Epstein, Modern
Products Liability Law
(Westport, Conn.: Quorum Books,
1980), pp. 9–34; and Prosser, Law of Torts, pp. 641ff.

[81] Some of the practical difficulties involved in
such suits could be overcome by joinder of the various plaintiffs.
See section entitled “Joint Torts and Joint Victims.”

[82] On the “tragedy of the commons” and private ownership,
see, for example, Garrett Hardin, “The Tragedy of the Commons,”
Science 162 (1968): 1243–48; Robert J, Smith, “Resolving
the Tragedy of the Commons by Creating Private Property Rights
in Wildlife,” Cato Journal 1 (Fall 1981): 439–68.

[83] Notes Prosser: “A crime is an offense against
the public at large, for which the state, as the representative
of the public, will bring proceedings in the form of a criminal
prosecution. The purpose of such a proceeding is to protect and
vindicate the interests of the public as a whole…. A criminal
prosecution is not concerned in any way with compensation of the
injured individual against whom the crime is committed,” Prosser,
Law of Torts, p. 7.

[84] For an illuminating discussion of the roots of
the modern split between criminal and tort law, with the former
as pursuing crimes against the “king’s peace,” see Barnett, “Restitution:
A New Paradigm of Criminal Justice,” pp. 350–54.

[85] On punitive damages in tort law, see Prosser,
Law of Torts, pp. 9ff. This is not the place to set forth
a theory of punishment. Theories of punishment among libertarian
philosophers and legal theorists range from avoiding any coercive
sanctions whatever to restitution only, restitution plus proportional
punishment, and allowing unlimited punishment for any crime whatever.

For my own
view on proportional punishment, see Murray N. Rothbard, “Punishment
and Proportionality,” in Barnett and Hagel, Assessing the Criminal,
pp. 259–70. On the concept of transporting criminals, see Leonard
P. Liggio, “The Transportation of Criminals: A Brief Politico-Economic
History,” in ibid, pp. 273–94.

[86] Ibid., p. 11. Also see Epstein, Cases on Torts,
p. 906.

[87] As would the privilege against self-incrimination.
In fact, the ban against compulsory testimony should not only
be extended to tort cases, it should be widened to include all
compulsory testimony, against others as well as against oneself.

[88] Richard A. Epstein, “Crime and Tort: Old Wine
in Old Bottles,” in Barnett and Hagel, Assessing the Criminal,
pp. 231–57.

[89] Barnett, “Restitution: A New Paradigm of Criminal
Justice,” p. 376. Barnett adds: “In this way the law of attempt
is actually a form of double counting whose principal function
is to enable the police and prosecutor to overcharge a crime for
purposes of a later plea negotiation. Furthermore, some categories
of attempt, such as conspiracy laws and possessory laws – for
example, possession of burglarious instruments – are short-cuts
for prosecutors unable or unwilling to prove the actual crime
and are a constant source of selective, repressive prosecutions.”Ibid.
We might add that the latter always would be illegitimate under
libertarian law.

[90] According to Barnett: “The only type of unsuccessful
attempt that would escape liability [under tort law] would be
the case of someone who unsuccessfully tried to commit a crime
without otherwise violating anyone’s rights and without anyone
knowing about it.. . . In any case, no system governed by
any principle can prosecute acts that no one knows about.” Ibid.,
pp. 376–77. Professor Ronald Hamowy of the University of Alberta
should also be mentioned as contributing significantly to this
solution to the problem.

[91] One can agree with Barnett here without adopting
his own pure-restitution-without-punishment variant of tort law.
In our own view, elements of criminal law such as punishment could
readily be incorporated into a reconstructed tort law.

[92] Prosser, Law of Torts, p. 291. Also see,
ibid., pp. 293ff.

[93] In this situation, joinder is compulsory upon
the defendants, even though the plaintiffs may choose between
joinder and separate actions.

[94] Prosser, Law of Torts, pp. 317–18.

[95] See Katz, “Function of Tort Liability,” pp. 619–20.

[96] However, a better course would be to require
that common interests predominate over separate individual interests,
as is now being required for class action suits. See the discussion
of City of San Jose v. Superior Court below.

[97] The type of class action suit once known as “spurious
class action,” in which a judgment binds only those members actually
before the court, was not actually a class action suit but a permissive
joinder device. Fed. R. Civ. P. 23 (1938).

98 The 1938
Rules provided that in some cases any class action must be of
the spurious kind mentioned in the previous footnote. The revised
1966 Rules made all class action suits binding by eliminating
the spurious action category. See Fed. R. Civ. P. 23 (1966).

[99] Fed. R Civ. P. 23(a) (1966). On the question
of whether individual notice to class manners is or is not mandatory,
see Fed. R Civ. P23(d)(2), Fed. R. Civ. P. 23(e), Mattern
v. Weinberger, 519F.2d 150 (3d Cir.1975), Eisen
v. Carlisle & Jacquelin, 417 U.S. 156 (1974),
Cooper v. American Savings & Loan Association,
55 Cal. App. 3d 274 (1976).

[100] The case was Diamond v. General Motors
Corp. 20 Cal.App. 2d 374 (1971). On the other hand, some state
court decisions, such as in California, have been highly favorable
toward class action suits. The California court actually allowed
a class action of one man against a defendant taxi company for
alleged overcharges, on behalf of himself and several thousand
unidentifiable customers of the company. Dear v. Yellow
Cab Co., 67 Cal. 2d 695 (1967).

[101] City of San Jose v. Superior Court,
12 Cal.3d 447 (1974).

[102] Epstein provides an interesting note on ways
in which plaintiffs, in a purely libertarian way, were able to
overcome the fact that neither joinder nor class action suit were
permitted because of the extent and diversity of individual interests
involved. The drug MER/29 was taken off the market in 1962, after
which about 1,500 lawsuits were initiated against the drug company
for damage. While the defendant successfully objected to a voluntary
joinder, most of the attorneys voluntarily coordinated their activities
through a central clearinghouse committee with fees for services
assessed upon all lawyers in the group. Epstein reports that the
lawyers who participated in the group were usually more successful
in their respective suits than those who did not. Epstein, Cases
on Torts, p. 274.

[103] In Synder v. Harris, 394 U.S.
332 (1970). Krier, “Air Pollution and Legal Institutions.”

[104] In short, what if they filed a pollution class
action suit and nobody came? Krier cites the case of Riter
v. Keokuk Electro-Metals Co. 248 Iowa 710, 82 N. W. 2d
151 (1957). Krier, “Air Pollution and Legal Institutions,” p.
217. Also see John Esposito, “Air and Water Pollution: What to
Do While Waiting for Washington,” Harvard Civil Rights/Civil
Liberties Law Review (January 1970): 36.

Reprinted
from Mises.org.

Murray
N. Rothbard
(1926–1995) was dean of the Austrian
School, founder of modern libertarianism, and chief academic
officer of the Mises Institute.
He was also editor — with Lew Rockwell — of The
Rothbard-Rockwell Report
, and appointed Lew as his
literary executor. See
his books.

The
Best of Murray Rothbard

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