Abstract
The basic “simple rules” thesis holds that most legal relationships can be reduced to questions of autonomy, property acquisition, contract and tort on the private law side, and eminent domain and taxation on the public law side. This paper extends that analysis in three directions. First, it explains how a single-owner model drives this basic set of entitlements under conditions of universal consent, which are not matched in a state of nature. It then explains how when property rights derive from occupation instead of common ownership, a simplified set of entitlements offers the best path for incorporating the basic insights of the single-owner model. When, however, one or more parties deviate from these entitlements, the needed remedial adjustments typically must overcome uncertainty in trying to choose the proper mix of damages and specific relief in varying contexts. Once that private law framework is settled, the paper then identifies the central rule that governs the switch from private to public law: efficient entitlements should never be altered, but that new remedial design should improve the private law model by reducing the transactions costs needed to operate the overall system.
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Notes
See infra at Part III.
See, generally, Susan F. French, Servitudes Reform and the New Restatement of Property: Creation Doctrines and Structural Simplification, 73 Cornell L. Rev. 928 (1988). NEW.
Richard A. Epstein, Covenants and Constitutions, 73 Cornell L. Rev. 906 (1988). New.
Neponsit Property Owners Ass’n, Inc., v. Emigrant Industrial Sav. Bank, 15 N.E. 2d 793 (N.Y. 1938). NEW.
See Justinian’s Institutes, Book II, Title I.
See generally, Easterbrook & Daniel Fischel, The Economic Structure of Corporate Law 92 (1991). NEW.
Richard A. Epstein, The Public Trust Doctrine, 7 Cato J. 411 (1987).
The relevant constraints are these:
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High administrative costs for claim resolution;
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High transaction costs for voluntary reassignment of rights;
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Low value to the interested parties of the ownership rights whose rearrangement is mandated by the public rule; and.
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Presence of implicit in-kind compensation from all to all that precludes any systematic redistribution of wealth among the interested parties.
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For a more complete discussion of the applicable principles, see Epstein (1989).
“Except where the defendant has the last clear chance, the plaintiff's contributory negligence bars recovery against a defendant whose negligent conduct would otherwise make him liable to the plaintiff for the harm sustained by him.” Restatement (Second) of Torts § 467 (1965).
See United States v. Reliable Transfer Co., 421 U.S. 397 (1975).
Last clear chance presupposes either knowledge that the plaintiff is in peril or “negligence so reckless as to betoken indifference to knowledge.” Woloszynowski v. New York Central R.R., 172 N.E. 471, 472 (N.Y. 1930). See, generally, Steven Shavell (1983).
“The true rule governing cases of this character may be stated as follows: That if a defendant, by negligence, puts the plaintiff under a reasonable apprehension of personal physical injury, and plaintiff, in a reasonable effort to escape, sustains physical injury, a right of action arises to recover for the physical injury and the mental disorder naturally incident to its occurrence.” Tuttle v. Atlantic City R.R., 49 A. 450, 451 (N.J. 1901) (Vroom, J.).
An example of this rejection in a comparative negligence case can be found in Li v. Yellow Cab, Co. of California, 532 P.2d 1226 (Cal. 1975).
For criticism on this trend, see Epstein (1987).
The Supreme Court upheld the use of these early zoning acts in Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
For an overview of these proposed rules, see Council on Environmental Quality, Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Federal Register No. 7, 1684, (Jan. 10, 2020), https://www.govinfo.gov/content/pkg/FR-2020-01-10/pdf/2019-28106.pdf.
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Epstein, R.A. Rules and reasons, public and private on the use and limits of simple rules 25 years later. Eur J Law Econ 52, 363–380 (2021). https://doi.org/10.1007/s10657-020-09681-3
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DOI: https://doi.org/10.1007/s10657-020-09681-3