I'm going to be mixing together here stuff from two of Ted Frank's
articles, <1993Apr15.143623.25813@midway.uchicago.edu> (which was a
response to me) and <1993Apr16.011455.20518@midway.uchicago.edu> (a
response to Tim Smith)...


Eminent domain is a state-mandated transaction in which one party is
required to sell a piece of property which it owns to another party,
regardless of whether the first party wishes to sell at all, at a price
which is set by the state.  I fail to see how this doctrine can be found
in tort, bankruptcy or contract cases in general.  Well, okay, sort of
in bankruptcy...

*  *  *  *  *


Bang.  Here's one of the places where we widely diverge.  You believe
that the courts, in deciding a civil dispute between two parties, should
consider as a factor -- perhaps as an overriding factor -- issues which
I believe the court should ignore as being irrelevant to the dispute.
_Boomer v.  Atlantic Cement Co._ was an action brought by one party,
Boomer, whose property rights were being violated on an ongoing basis by
another party, the Atlantic Cement Company.  The facts supported
Boomer's contention that Atlantic Cement was wrongfully damaging his
property, and Boomer asked the court to order Atlantic Cement to stop
doing so.  End of story.  There was no reason for the court to consider
such issues as what a capitalistic society would want Atlantic Cement to
do or whether the cost of compliance was disproportionate to the damage
faced by the plaintiffs.  Those issues had nothing to do with the case
before the court.


I'd be up in arms?  Why do you assume that?  Quite the contrary, I'd
probably support the action, since it would be based on the same general
doctrine as the decision that I believe would have been correct in
_Boomer_: the idea that people's property rights should not be violated
for reasons of economic efficiency.  In _Boomer_ it was Boomer's
property rights which I believe the court should have protected; in the
hypothetical EPA ruling you've presented, it's the American people's
collective property rights in a healthy physical environment.  What
good is cost-benefit ratio of 15+:1 if you wind up with cement dust in
your air?

*  *  *  *  *


Yes.  So what?  The courts are supposed to protect the specific rights
of individuals, not the general interests of some nebulous society.  If
society can have its cement plant without violating anyone's rights,
fine.  Otherwise society will somehow have to limp along with one less
cement plant.  (See, Ted, I really _am_ a libertarian after all! :-)


"One wants the legal regime to approximate the end result to begin with,
in order to minimize the transactions costs."???  Which "one" are you
speaking of?  _I_ want the legal regime to protect people's rights.
Besides, Coase's Theorem only has real application in the never-never
land of perfectly rational actors.  In the real world (1) some people
are going to be stubborn, ornery, spiteful or otherwise "irrational"
from a economic point of view and (2) the purpose of the courts is to
protect their right to be so.  I don't care if you can show me logically
that your cattle are only doing $100 of damage to my property per head,
so I should rationally sell you grazing rights to my land for, say, $150
per head -- I still retain the right to tell you that I just plain don't
want any damned cattle on my property, not at any price.

*   *   *   *   *


Last question first: For the same reason as in contract law -- because
to do so would come dangerously close to treading on the Thirteenth
Amendment.

As to your "Then, by your argument, no tort plaintiff is ever made
whole, because the award of damages in involuntary" claim, you're at
least partially right.  Faced with situations in which the wrong has
already been done and the damage to the victim has already taken place
and cannot be reversed or undone, courts will try to set an equitable
price tag on the loss suffered by the victim and require the wrongdoer
to pay this price (rather than an inflated price which the victim might
prefer).  In these cases, the "sale" has already taken place and is
irreversible, and the court simply tries to ensure that a fair price is
paid, under the doctrines that (a) only in certain circumstances should
even a civil wrongdoer be forced to pay punitive or excessive prices and
(b) even a genuine victim should not profit in an unjustified or
inequitable manner from his victimhood.  Both of these doctrines may be
worth discussing or debating elsewhere, but neither is relevant to cases
like _Boomer_ in which the wrongful act and the loss stemming from it
are still in the future and _can_ be reversed/undone (i.e., prevented
from happening at all) by order of the court.

In these types of cases, all the court has to do is require that the
potential victim's property rights are protected until and unless he
agrees to sell them at a mutually-acceptable price.  There is no need
for the court to guess at the equitable value of the loss and force both
sides to accept its finding.  It can leave that operation up to the
parties themselves.


In cases like _Boomer_, they're simply a cost of doing business.  The
fact that the proprietors of the Atlantic Cement Co. got themselves into
a position in which they found themselves over this barrel is simply a
result of their own poor business decision to start up a cement plant
without _first_ trying to negotiate with Boomer and everyone else whose
property rights they'd be violating via the operation of their plant.
There's nothing punitive or unjust about it.


Anybody who wants to commit a wrongful act in the future should be
required to buy the right to do so from the victim, in advance.  And the
seller should be allowed to set his or her price for the privilege.  No
injustice, no punitive damages.

*   *   *   *   *


Doesn't sound very much like a libertarian to me.  Libertarians tend to
believe in the rights of individual people, not societies.

*   *   *   *   *


As stated above, the tort was _ongoing_.  Atlantic Cement wanted to be
able to _continue_ to violate Boomer's rights.  While the court may have
been justified in setting an equitable price tag on the damage already
committed, it had no reason and no need to set a price tag on the
_future_ violations of Boomer's rights and to then force Boomer to sell
at that price.