February 10, 2010
Sharkey on Trespass Torts and Self-Help
Catherine Sharkey (NYU) has posted to SSRN Trespass Torts and Self-Help for an Electronic Age. The abstract provides:
Liability for trespass to chattels (or personal property) ensnares one who intentionally takes or inter-meddles with chattel in the possession of another. The past decade or so has witnessed the re-emergence of the tort in a new guise, as a sword against electronic intrusions over the Internet. Trespass to chattels is distinct from trespass to land in that it requires proof of actual damage. Self-help is an adequate remedy for protection against “harmless” inter-meddlings with personal property, but not in the case of land.
The significance of the self-help remedy in trepass to chattels sheds light on an inherent limitation of the classic Calabresi-Melamed framework of entitlements protected by legal rules. Self-help is the “missing” third remedy. Self-help is conventionally understood as either a privilege to do something that would otherwise be legally actionable in order to prevent or cure a legal wrong or else a variety of prophylactic measures that one might take to protect one’s property that do not infringe upon anyone else’s legal rights.
In this article, written for a symposium celebrating the work of Richard Epstein, I invoke self-help as a prerequisite to invoke legal process. While not uncommon in real property law, conditioning one’s entitlement to legal remedies on the exercise of self-help is exceedingly rare in tort law but is justified on different grounds. First, the victim might be the “cheapest cost avoider” of the injury, such that it is efficient to place the burden upon the victim to take self-help measures that could, in some cases, mitigate or avoid the injury altogether. Second, a “live and let live” philosophy may govern minor injuries and inconveniences; self-help serves as a “sincerity index” for establishing the weightiness of the legally protected interest. Third, and especially relevant in cyberspace, the boundaries between public and private property are contestible. Self-help can serve as a way in which someone can “mark” his property as private - or exclude it from the public commons. The Internet trespass to chattels cases provide an opportunity to explore this conception of conditional self-help.
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