The essential nuance of a private “nope.”

ARCHER: "Lana Kane" as voiced by Aisha Tyler

This is my two cents on the ongoing talk about no.” Particularly whether a “no” from a property owner is any different than a “no” from a government official (what Adam cites as the Bruenig objection).

First, there’s no “no” (or “noooope”) that is absolute (aside from technological/physical/biological impossibility), so what we are looking for is a difference of degree between private and public “no”s (not differences of kind). A government “no,” when it comes without due process or the rule of law, is a nasty, unpredictable thing, capable of running the gamut of degree from minor but insidious—“no you may not go 16 miles per hour over the speed limit, only 10, and only 5 if a police officer thinks you look suspicious because of the color of your skin”—to borderline genocidal—“no you may not utilize the civil justice system to defend your property, because you are Jewish”—and beyond—“no you may not live here; if you can’t leave, you may not live.”

Second, the private “no” is significantly less absolute than it may appear when judged without knowledge of the common law that has, in Anglo Saxon nations, organically defined the boundaries of all private “no”s.

Any refusal to obey a “no” might be damaging to the “no-er,” as much as any “no-ee” may be damaged by their obedience. This complex relationship—whether it involves strangers (as in tort law) or business partners (as in contract law)—has been negotiated, defined, and redefined in tribunals since at least the Romans (Sic utere tuo ut alienum non laedas, i.e. so use your own as not to injure another’s property). This is also Coase’s problem of reciprocal harm, and it’s become the backbone of nuisance law in this country today. The dentist and the the baker share a wall. Can the baker use loud mixers, thus denying the Dentist’s protestations and pleas for peace (his “no” noise) or can the Dentist enjoy his peace denying the Baker’s bread making?

Perhaps the most relevant common law “no-hedging” for this discussion is the very fascinating (can you tell I’m in the middle of Bar review?) Public vs. Private Necessity doctrine (in the tort law of trespass). The default rules of trespass are a resounding and strong “no!” No you may not enter another’s property without authorization. It don’t matter if you didn’t know you were trespassing; it don’t matter if you didn’t do any economic damage. Hey you kids! Get off my yard. This “no,” however, has a materially pronounced posterior; i.e. it’s got a big but.

One of the affirmative defenses to trespass (meaning the defendant must raise and prove her defense) is necessity. A school bus driver escaping a forest fire and a blocked-off mountain road can drive her bus right over my land and I cannot legally say “no.” The necessity (an emergency) negates the legal harm, and the property owner’s damages are what we snooty Epsteinian types like to call damnum absque injuria, or“a loss without a legally compensable injury.”

But the nuance of the common law’s “no” doesn’t stop there; it’s two pronged: (1) If the necessity is deemed “public” then it’s a full defense to trespass claims and subsequent damages. So if the bus is full of children and the driver is trespassing to save them, then there is no legal trespass, no damages nominal or pecuniary. (2) If, however, the necessity is deemed “private” then it will only excuse the trespasser from nominal damages. So if the escaping Partridge Family bus drives through a beautiful and rare shrubbery, the property owner can still claim economic damages and get compensation. This is what I mean by the nuance of a private “no.” The validity of any such “no” is subject to flexible standards and equitable defenses in common law.

Another added wrinkle: if the property owner tried a stronger “no,” if she tried to forcibly eject the sheltering trespassers (either the proverbial school bus of kids or the Partridges) she would be, in fact, liable, herself, under the law of torts for actively causing the trespasser’s peril to mature into harm. The famous case here is the delightfully-named Ploof v Putnam. Ploof and his family were boating when a storm struck. Unable to navigate to the lake-shore the Ploofs happened upon an island; they tied up on a stranger’s dock (Putnam’s dock) and huddled in the boat as the maelstrom bore down upon them. At this point, Putnam’s servant (who I like to think looked like Woodhouse from Archer) braved the violent winds and waves, walking down the pier to unceremoniously untie the sheltering Ploof vessel, sending the family careening into the crashing waves and the rocky cliffs beyond.

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The Ploofs were injured and their boat destroyed. Later, in court, Putnam was found liable for damages caused by his servant’s “no” (all via the similarly interesting doctrine of respondeat superior, i.e. “let the master answer,” but that doctrine is some private “no” nuance we should leave for another day).

The larger philosophical lesson to take from all this legal ephemera is that private “no”s are non-monolithic, nuanced, and organically grown standards (unlike a dictator’s unpredictable whims). To borrow and extend a metaphor from Epstein, economists and political scientists tend to narrowly focus on steering the ship of state policy exactly where they think it should go (a utopic vision of one sort or another). What’s perhaps equally if not more important is that there are essential individuals inside that ship, shoveling coal, watching regulators and pressure valves, carefully maintaining the complicated mechanisms that keep the ship going, i.e. the valves that keep private “no”s equitable, just, efficient, and fair. In private law there are always lawyers, judges, juries, and relevant parties to be heard. I submit that public “no”s are of greater concern than private “no”s because while we may have plenty of daring ship captains barking orders and commands in the public sphere (aiming us at verdant shores of distributional justice or administrative safety) there are fewer public mechanics carefully watching the valves. The problem with public “no”s is process (administrative law is non-emergent, non-organic) not substance.

One thought on “The essential nuance of a private “nope.”

  1. Pingback: Joint Determination and the Line between Public and Private | Sweet Talk

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