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Jefferson Meets Coase: Land-Use Torts, Law and Economics, and Natural Property Rights

65 Pages Posted: 9 Apr 2008 Last revised: 24 Mar 2010

Eric R. Claeys

George Mason University

Date Written: April 1, 2008

Abstract

This Article questions how well standard economic analysis justifies the land-use torts that Ronald Coase popularized in The Problem of Social Cost. The Article compares standard economic analyses of these torts against an interpretation that follows from the natural-rights morality that informed the content of these torts in their formative years. The “Jeffersonian” natural-rights morality predicts the contours of tort doctrine more determinately and accurately than “Coasian” economic analysis.

The comparison teaches at least three important lessons. First, a significant swath of doctrine, Jeffersonian natural-rights morality explains and justifies important tort doctrine quite determinately. Second, this natural-rights morality complements corrective justice theory by the substantive rights that tort’s corrective-justice features seek to rectify when wronged. Finally, standard economic tort analysis cannot prescribe determinate results without making simplifying assumptions more characteristic of moral philosophy than of social science.

Keywords: Blackstone, cattle trespass, Coase, corrective justice, Hayek, Jefferson, land use, Locke, natural law, natural rights, nuisance, philosophical analysis, productive efficiency, property, right to exclude, Rylands v. Fletcher, Social Cost, social science, tort law, train sparks, transaction costs

JEL Classification: A13, D23, K11, K13

Suggested Citation

Claeys, Eric R., Jefferson Meets Coase: Land-Use Torts, Law and Economics, and Natural Property Rights (April 1, 2008). George Mason Law & Economics Research Paper No. 08-20; Notre Dame Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1117999 or http://dx.doi.org/10.2139/ssrn.1117999

Eric R. Claeys (Contact Author)

George Mason University ( email )

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Arlington, VA 22201
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