Volume 4, Issue 1

The moral prohibition against theft, and legal causes of action against trespass and like activities, are usually stated in absolutist terms that admit few exceptions. But application of the theft prohibition to creative goods is incomplete and unstable across industries, regions and periods. Existing economic explanations for the theft prohibition either overestimate its scope of application in creative environments or fail to specify a mechanism by which adjustments in its scope are implemented. A “power” approach that ties changes in the moral and legal treatment of “creative theft” to the distribution of formal and informal “influence capacities” across affected populations may have greater explanatory force. This broadly applied political-economic approach derives changes in the tolerance of creative theft from the full range of formal and informal actions that may be taken by net users and net producers to facilitate or constrain the unconsented use of creative goods. Unlike conventional political-economic accounts in the copyright literature, this approach anticipates the substantial influence that dispersed net users (and allied corporate interests) have exerted historically over the development of copyright law and the especially powerful influence that net users (and allied corporate interests) currently exert over the partial demise of copyright law and associated norms in leading content markets.

This Essay studies the relationship between rights and remedies and celebrates the multiplicity of our private law rights in general and of our property institutions more particularly.Remedies obviously serve as instruments of rights enforcement, but they also participate in the constitution of the rights they help enforce. Although institutional reasons bring about certain gaps between the content of rights and the judicial response to their infringement, the constitutive role of remedies introduces significant subtlety into the domain of rights. Thus, the choice of different remedies, as well as the possibility of incorporating qualifications, limitations, and even obligations, allows private law to accommodate qualitative (and normatively attractive) distinctions between different types of rights.This phenomenon of the multiplicity of rights manifests itself in property law as well. Property law is composed of a distinct, though not infinite, number of property institutions, each reflecting a particular balance of values that is attached to a specific category of social contexts and a specific category of resources.This variety and the contingent facts on which it partly relies should not be embarrassing. Quite the contrary: a truly liberal law must resist uniformity and endorse multiplicity, which is both freedom-enhancing and individuality-enhancing. By appreciating private law’s multiplicity and understanding the normative value of the (at times contingent) choices on which it relies, as well as their potential critical bite, private law theory can provide a better understanding of the order embedded in this complex legal mosaic and, possibly, even fruitfully contribute to its improvement.

Legal scholars have extensively analyzed legal entitlements in terms of more fundamental component parts, most notably with the remedial structures entailed by property and liability rules. Contrary to the claim made by some scholars, I argue that the negligence entitlement is not fully constituted by a property rule, liability rule, or any combination thereof. The entitlement that generates the negligence rule, though partially constituted by both property and liability rules, is best described as a behavioral rule that obligates duty-holders to exercise reasonable care. The breach of this primary duty creates a second-order duty to pay compensation for the proximately caused physical harms, but the payment of compensatory damages does not fully exhaust or satisfy the underlying entitlement. This component of the entitlement explains why duty-holders are subject to punitive damages and perhaps even criminal negligence liability if they choose to act unreasonably in exchange for the payment of compensatory damages. The entitlement takes this form due to the inherent inadequacy of the compensatory damages remedy, an inadequacy that is most pronounced in cases of wrongful death but applies more generally to many instances of physical harm. The article concludes by identifying the distinctive features of the negligence entitlement that must be accounted for by any normative theory seeking to adequately explain tort liability, a condition that is not satisfied by prominent interpretations of tort law, including leading accounts based on the fault principle, pluralism, allocative efficiency, and corrective justice. The underlying rationale for tort liability cannot be derived from a structural (non-normative) analysis of entitlements, but the entitlement structure of the negligence rule still has important implications for the normative theory of tort law.

What role does defensive conduct play in a utilitarian theory of tort law? Why are rational (as opposed to instinctive) defensive actions permitted by tort doctrine? To address these questions I will build on the property and liability rules framework. I argue that defensive conduct plays an important role in establishing the justification for and understanding the function of property rules, such as trespass doctrine. I show that when defensive actions are taken into account, property rules are socially preferable to liability rules in low transaction cost settings, because they obviate costly defensive actions. I extend the framework to provide a positive theory of defense-related doctrines in tort law.