Prohibition and preemption

Legal Theory

Volumn 5, Issue 3, 1999, Pages 235-263

  Ripstein, Arthur ^a  

^a UNIVERSITY OF TORONTO   (Canada)

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EID: 84923496697     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S135232529905301X     Document Type: Article

References (21)

1. I defend this approach in detail in EQUALITY, RESPONSIBILITY, AND THE LAW (1999). My interpretation of reasonableness follows John Rawls, POLITICAL LIBERALISM 54 (1993).
2. Robert Nozick, ANARCHY, STATE, AND UTOPIA 81 (1974).
3. See, e.g., Krehl v. Burrell (1878), 7 Ch. D. 551 at 554, per Jessel M.R.: “It would never have meant to invest the Court of Chancery with a new statutory power… to compel people to sell their property without their consent at a valuation.” Quoted in Sharpe, INJUNCTIONS AND SPECIFIC PERFORMANCE 10 (1983).
4. A third problem is doctrinal: Any invasion counts as a trespass, whereas only an injurious invasion counts as a nuisance. For an example of confusion on this point, see Epstein, Corrective Justice and its Utilitarian Constraints, 8 J. LEGAL STUD. 49 (1979).
5. Coase's discussion of how parties can bargain around whatever rights are given is seminal. See Coase, The Problem of Social Cost, 1 J. L. & ECON. 1-44 (1960).
6. Isenberg v. East India House Estate Co. Ltd. (1863) 46 E.R. 637 per Westbury L.C. In the less colorful language of the Restatement of Torts 2d, an injunction will not be granted if it will “make the court a party to extortion” Rst. 2d (Tort) s. 941. In the still less colorful language of economic analysis, we might say that injunctions create transaction costs and provide opportunities for strategic behavior.
7. Nozick, the less colorful language of the Restatement of Torts 2d, an injunction will not be granted if it will “make the court a party to extortion” Rst. note 5, at 82.
8. Rodgers v. Elliot, 15 N.E. 768 (Mass. 1888).
9. Salmond, TORTS 228-31 (10th ed., 1945).
10. P.2d 700 (Ariz. 1972).
11. For discussion of this point, see Jethro K. Lieberman, The Relativity of Injury 7 PHIL.&PUB. AFF. 68 (1977). Lieberman argues that it is impossible to define property in a way that includes the right to do everything that people have been accustomed to doing without state interference.
12. Why does the order of arrival matter in the law of property, in the form of the doctrine of first possession, but not in nuisance? The brief answer is that first possession is the way in which an object enters into the stream of property rights. What the rights of ownership are is a separate matter, set by the equal freedom of the property owners. That is, prior possession can limit the holdings of latecomers. But it cannot define their rights over such property as they own. The difficulty is that the effects of the use of land are essentially without limit. If the first occupant of a piece of land thereby gained rights over the full area in which his occupancy had effects (so that, for example, a feedlot owner became owner of all of the air to which his operation spread its odors) those who were first in time would be able to unilaterally dictate the ways in which others could use their property. The solution is a regime of reciprocal freedom, which cannot be explicated purely in causal terms. For a more general statement of this point, see Stephen R. Perry, Libertarianism, Entitlement, and Responsibility, 26 PHIL. & PUB. AFF. 351-96 (Fall 1997).
13. Lawrence Becker, Criminal Attempt and the Theory of the Law of Crimes, 3 PHIL. & PUB. AFF. 262-94 (1974).
14. Antony Duff & Sandra Marshall, Criminalization and Sharing Wrongs, 11 CAN. J. LAW & JURISPRUDENCE 7-22 (1998).
15. Robert Nozick once argued that the state can have no rights that would not be possessed by individuals in the state of nature. See Nozick, Criminalization and Sharing Wrongs note 5, at 102. A court's power of contempt is just such a power, as is its more general right to punish wrongdoing.
16. I am aware that courts sometimes vacate contempt decrees in response to compliance. See, e.g., New Jersey Zinc Co. v. Local 890 of International Union of Mine, Mill and Smelter Workers 261 P.2d 648 (N.M. 1953). The court in Local 890 left open the possibility of criminal contempt proceedings, however. It is also worth noticing that the court appears to have understood its powers of contempt in purely instrumental terms, as one reason it gave for waiving those powers in the instant case was that its dignity would remain intact if it chose to forgive a particular response to them. But the point of powers of contempt does not depend on their ability to deter disrespect any more than they depend on the ability to exact compliance in a particular case. Instead, their basis is in the need to address a denial of the court's authority to announce the law.
17. Conversely, a court can only grant an injunction against those who have had their day in court. See Alemite Mfg. Corporation v. Staff, 42 F.2d 832 (2d Cir 1930) (Hand J).
18. See Douglas Husak, Is Drunk Driving a Serious Offense? 23 PHIL. & PUB. AFF. 52-74 (Winter 1994) and Reasonable Risk Creation and Overinclusive Legislation BUFF. CRIM. L. REV. (1998).
19. There are those who suppose that negligence law should penalize on the basis of carelessness rather than injury. See, e.g., Christopher Schroeder, Corrective Justice, Liability for Risks, and Tort Law, 38 U.C.L.A. L. REV. 143 (1990). I criticize Schroeder's view in detail in a piece jointly authored with Benjamin Zipursky, Corrective Justice in an Age of Mass Torts, in PHILOSOPHY AND TORT LAW (Gerald Postema ed., forthcoming 1999). Schroeder's proposal is concerned with accident costs and does not consider the role of injunctive prohibitions.
20. I explain why a punitive response must take the form of hard treatment in chap. 5 of EQUALITY, RESPONSIBILITY, AND THE LAW (1998). The basic point is that contempt for the law involves rational pursuit of one's ends in the face of standards of reasonableness. As such, the only way it can be answered is by addressing itself to the putative rationality of the deed, making the wrong a failure from the point of view of rationality, as it is already a failure from the point of view of reasonableness.
21. H.L.A. Hart, THE CONCEPT OF LAW 6 (1962).