Thursday, February 5, 2015

Kochan on the Right to Exclude

Kochan_DDonald Kochan (Chapman) has posted Bubbles (Or, Some Reflections on the Laws of Human Relations) (Fordham Environmental Law Review) on SSRN.  Here's the abstract:

Very few of us want to live in the absolute isolation of a “bubble.” Most humans cherish the capacity to interact with their external environment even when we know that, at times, such exposure makes us susceptible to all sorts of negative effects ranging from mere annoyance to the contraction of deadly illnesses. Yet, because there are so many positive elements and benefits from that interaction and exposure, we often are willing to take the bitter with the sweet. We tolerate much external exposure to bad things in order to take advantage of the collisions with the good things that our outer environment offers. Yet, at the same time, to one extent or another, we all live with, and choose to cherish at times, some metaphorical, protective bubble around us, and it is the law that helps to define that bubble’s contours and provide its relative strength against those forces that might intrude upon it.

This Essay understands the right to exclude and the control of externalities as far more than a real property issue, the area of law where it is normally discussed. Most laws regarding human relations involve these same concepts. Individuals have the right to exercise dominion by doing what they wish with their property in the self and in things, while keeping people and things out (the right to exclude) or letting people and things in (the right to include, consent). The law struggles to formulate rules, including those related to the boundaries of property or the integrity of the body, to protect these bubbles and to define unacceptable externalities and remediable wrongs. This Essay seeks to identify the difficult choices we must make in deciding which intrusions we must accept as normal, inconvenient incidents of life and which we decide to deem externalities against which we should institute enforceable legal rules and protections.

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