The Right to Exclude in the Shadow of the Cathedral: A Response to Parchomovsky and Stein

Reconceptualizing Trespass, by Professors Gideon Parchomovsky and Alex Stein, falls in the genre of law and economics scholarship inspired by Guido Calabresi and A. Douglas Melamed’s classic article, One View of the Cathedral (“the Cathedral”). Reconceptualizing Trespass argues that, in property torts, scholarship under the Cathedral has focused too much on damage awards with the features of Cathedral liability rules, and too little on damage awards that have the features of Cathedral property rules. Ideally, the authors argue, property rule damages should award owners approximations of their subjective values over their property; as a second-best substitute, such damages should award owners restitution. In this Response, I am significantly disadvantaged by the limitation that I sympathize strongly with Parchomovsky and Stein’s prescriptions. Nevertheless, I am confident that I can offer an enlightening perspective on their essay, because I prefer to reach their prescriptions by a different method: the conceptual and moral philosophy behind property law. From the perspective of those fields, Reconceptualizing Trespass presents a mixed but extremely interesting picture. If we focus closely on Reconceptualizing Trespass’s doctrinal proposals about trespass damages, the Essay is right: it uncovers important evidence corroborating existing philosophical scholarship on damage remedies for property torts, and it highlights an important gap in that scholarship. From a broader perspective, however, Reconceptualizing Trespass confirms criticisms that legal philosophers have lodged against the Cathedral’s property/liability rule scheme. Many legal scholars regard the Cathedral as a landmark, and it seems to frame clearly the policy questions latent in remedies disputes without settling them in any particular way. Yet legal philosophers have raised serious questions about whether the property/liability scheme remains faithful to basic legal concepts—especially the “wrong” that damage awards are supposed to remedy in torts to victims’ autonomy interests, or the “exclusivity” that property guarantees owners in relation to their assets. Although Reconceptualizing Trespass makes several significant contributions, legal philosophers may fairly wonder whether its greatest contributions confirm their criticisms of the Cathedral’s approach to remedies