John Oberdiek (Rutgers Law School) has published "The Trouble with Trespass" on SSRN. Here is the abstract:
According to the tort of trespass, even justified entries onto another's property constitute a trespass and are subject to liability. The justification, in other words, does not negate liability. This stands in contrast to the tort of battery: justified batteries, as with self-defense, are not subject to liability. There is reason, moreover, to think that battery is the more fundamental tort, both conceptually and normatively: things matter, after all, because the people whose things they are matter. And yet tort law seems to protect property more than it protects people, insofar as justified trespasses are subject to liability while justified batteries are not. This paper argues that the positive law of trespass is conceptually and normatively misguided insofar as it seems to privilege the protection of property more than the tort of battery protects people. Following an introduction, in Part II I explicate the tort of trespass and the right to exclude at its heart. In Part III, I focus on the limits of the right to exclude, making special reference to the famous necessity cases of Ploof v. Putnam and Vincent v. Lake Erie. In Part IV, I locate the tort of trespass within the wider firmament of tort law, and make the case that it is conceptually and normatively subordinate to the tort of battery. Part V illustrates the trouble with trespass as presently conceived by contrasting its exceptions, or lack thereof, with the exceptions to the tort of battery. If trespass answers to battery, then things should not enjoy greater protection than persons, and yet that inversion is precisely what we find in the law. I conclude by noting and defending a revisionary implication of my criticism of the tort of trespass, namely, that one who enters another’s property under circumstances of necessity should not be liable to them.
This paper will appear in Volume 5 of Oxford Studies in Philosophy of Law (Oxford 2024), edited by Leslie Green and Brian Leiter.
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