Jill Fraley, ‘The Property-Tort Divide, Human Flourishing and a New Case Study of Surface Water Liability’

Nuisance provides the quintessential case study for illuminating theoretical issues surrounding the property-tort divide. This Article contributes a new case study based on surface water liability. Surface water liability perches even more awkwardly than nuisance on the divide with parties and judges stringing together doctrines and defenses from both fields. This case study can teach us about the property-tort boundary and the role of human flourishing in making those choices.

First, scholars traditionally identified three potential rules choices. Calabresi and Melamed then introduced a fourth. Surface water liability demonstrates a fifth rule choice.

Second the surface water case study demonstrates that any property versus liability rules decision rests on some understanding of human flourishing. Implicitly or explicitly, this concept of human flourishing will include as a historical context an idealized vision of the human-land relationship. This Article imparts a narrowly tailored history of land drainage philosophy, pairing that history with an account of the evolution of surface water jurisprudence to demonstrate how the contemporaneous understanding of human flourishing encoded an idealized and contingent vision of the human-land relationship. This vision intuitively and organically integrates with land use decision making because it prioritizes and potentially even moralizes decisions about land development. More abstract components of human flourishing integrate less easily because they operate a level removed from the land context. As a result, there is an unseen hierarchy of values without the concept of human flourishing applied.

Fraley, Jill, The Property-Tort Divide, Human Flourishing and a New Case Study of Surface Water Liability (January 30, 2015). Washington and Lee Legal Studies Paper No 2015-23.

First posted 2015-02-02 06:46:08

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