Working Paper No. 09-67:
The Right to Exclude in the Shadow of the Cathedral: A Response to Parchomovsky and Stein
Date Posted: December 2009
Abstract (below) | Full text (most recent) on SSRN
This response comments on “Reconceptualizing Trespass,” by Gideon Parchomovsky and Alex Stein. Using economic analysis associated with Calabresi and Melamed’s property/liability rule scheme, Parchomovsky and Stein propose a new measure of damages, called “propertized compensation.” Propertized compensation makes ex post damage awards in trespass cases approximate the property-rule incentives the law imposes on trespassers ex ante when their trespasses are ongoing and may be remedied by injunction.
This comment is strongly sympathetic to Parchomovsky and Stein’s prescriptions for propertized compensation, but skeptical about the law and economic methodology by which Parchomovsky and Stein arrive at those prescriptions. The comment recounts, at a level aimed toward readers without specialized interest or training in legal philosophy, three areas of relevant scholarship by corrective justice theorists and conceptual property philosophers. These philosophical authorities explain propertized compensation at least as well as economic analysis, using conceptual and practical moral reasoning already internal to the law. Several of these authorities also suggest that the problems “Reconceptualizing Trespass” criticizes in previous economic scholarship are symptoms of a more fundamental incoherence in the concepts of a “liability rule” over a “right to exclude.”
“Reconceptualizing Trespass” deserves credit for explaining the conceptual problems inherent in the property/liability rule scheme to law and economists in terms law and economists can follow. But this contribution would not have been necessary if law and economists took conceptual philosophy more seriously.