Property and Half-Torts

Abstract

The idea that a tort can be split analytically into two parts - risk and harm - underlies a great deal of torts scholarship. Yet the notion has been all but ignored by property scholars employing Calabresi and Melamed's famous entitlement framework. Thus, in discussing an entitlement to pollute, scholars rarely distinguish inputs to pollution (a factory's emission of fumes from a smokestack) from outcomes of pollution (a neighbor's grimy linens or respiratory distress). Instead, pollution is viewed as a single unified event that one party or the other receives an entitlement to control. This failure to conceptually separate risky inputs from harmful outcomes has led to imprecise and inaccurate ways of thinking and talking about entitlements. Property theory has suffered as a result, as has our understanding of how property and torts relate to each other. In this paper, I make a start at bringing the concept of the divided tort - here termed half-torts - into the property picture. Doing so generates a reformulated entitlement framework that fits more comfortably with moral intuitions, highlights the potential roles of luck and self-help in producing outcomes, and clarifies the available menu of alternatives for addressing property conflicts. The approach taken here advances a functional view of property as a container designed to collect inputs and outcomes with some regularity.