Have a drink and relax. It's going to take more than five minutes to go through this one.
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.
"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?"
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.
"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."
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.
"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."
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]
"For libertarians, the test of guilt must not be
tied to the degree of punishment…. Defendants deserve as much protection in
civil torts as in criminal cases."
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.
"In reality, a 'corporation' does not act; only
individuals act, and each must be responsible for his own actions and those
alone."
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 Kerlinv. 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 seand 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 aggressionper 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.
"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 theRestatement
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.
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:
"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."
1. the
polluter has not previously established a homestead easement;
2. while
visible pollutants or noxious odors are per seaggression, 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 linkbetween 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.
"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."
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]
"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."
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 becameknown 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 ifno 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.
Murray N. Rothbard (1926-1995)
was dean of the Austrian School. This essay was originally published in
the Cato Journal 2, No. 1 (Spring 1982): pp. 55-99, and is
available in PDF. Comment on
the blog.
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.l0l-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," inUtilitarianism, 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.
[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 Hand book 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.
[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 isKramer 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 Review38
(Fall 1969): 620.
[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.
[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.
[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.
[59] "Note, Deposit of Wastes," pp. 880-81.
Also see Clover, "Torts: Trespass, Nuisance and E=mc2," p.
119.
[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.
[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.
[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.
[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.
[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.
[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.
[93] In this situation, joinder is compulsory upon
the defendants, even though the plaintiffs may choose between joinder and
separate actions.
[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 ofCity 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).
[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.
[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.
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