Does Rothbard contradict himself re: environmental law?

Miscellaneous General
1

In " Law, Property Rights and Air Pollution" Murray Rothbard argues against the mainstream legal principle of vicarious liability, saying it should be abolished as it’s inconsistent with justice, as only the individuals who committed a wrong should be held responsible - not their employers.

However, he later applies a suspiciously similar principle to explain how road owners should be sued for the wrongs of the individual car owners who use their roads (p. 90):

While the situation for plaintiffs against auto emissions might seem hopeless under libertarian law, there is a partial way out. In a libertarian society, the roads would be privately owned. This means that the auto emissions would be emanating from the road of the road owner into the lungs or airspace of other citizens, so that the road owner would be liable for pollution damage to the surrounding inhabitants. Suing the road owner is much more feasible than suing each individual car owner for the minute amount of pollutants he might be responsible for. In order to protect himself from these suits, or even from possible injunctions, the road owner would then have the economic incentive to issue anti-pollution regulations for all cars that wish to ride on his road. Once again, as in other cases of the “tragedy of the commons,” private ownership of the resource can solve many “externality” problems.

Isn’t this inconsistent?? Or am I not understanding the meaning of “vicarious liability”?

Also, i came across this critique by John Lott regarding Rothbard’s take on the Coase theorem, and was wondering what others thought?

2

A similar question was brought up awhile ago here, which I addressed.

"But I’d generally point you towards Hoppe’s: Property, Causality & Liability

Rothbard has offered the following “strict liability theory” encompassing both criminal and tort law.1 In every criminal or tort case, [e]vidence must be probative in demonstrating a strict causal chain of acts of invasion of person or property. Evidence must be constructed to demonstrate that aggressor A in fact initiated an overt physical act invading the person or property of victim B. (Rothbard 1997, p. 137)

What the plaintiff must prove, then, beyond a reasonable doubt is a strict causal connection between the defendant and his aggression against the plaintiff. He must prove, in short, that A actually “caused” an invasion of the person or property of B. . . . To establish guilt and liability, strict causality of aggression leading to harm must meet the rigid test of proof beyond a reasonable doubt. Hunch, conjecture, plausibility, even mere probability are not enough. . . . Statistical correlation . . . cannot establish causation. (Rothbard 1997, pp. 140–41)"

“However, he later applies a suspiciously similar principle to explain how road owners should be sued for the wrongs of the individual car owners who use their roads (p. 90)”

Rothbard never says “should”. Essentially, it is more of a “could”. He is openly acknowlegding that given what is required it is unlikely for the plaintiffs to prove that, that specific individual car emitted this much pollution etc. They are unlikely to prove it beyond a reasonable doubt. Hence: "While the situation for plaintiffs against auto emissions might seem hopeless under libertarian law there is a partial way out."

He says “would”, but what he means is - say you have a party, people are over, it gets rowdy. Someone throws a bottle at your neighbours window. The neighbours come home, they know you had a party. Who did it, they dunno, you dunno - but it was on your property. So they sue you for damages. They may not succeed in proving it was you that did it, (because you didn’t)… but the reason he mentions “partial way out” is because you then have incentive to try track that person down and pay the damages. If you can’t find the strict causal connection, you then make steps to regulate the situation the next time it happens (you hire a security guard), build a bigger fence etc… or don’t have a party. Hence: “In order to protect himself from these suits, or even from possible injunctions, the road owner would then have the economic incentive to issue anti-pollution regulations for all cars that wish to ride on his road.”

The individual / organisation doesn’t want to continue going to court, paying those costs, or the possibility of a judge ordering an injunction etc.

3

I posted this on a libertarian lawyers google group run by Stephan Kinsella and one of the members wrote:

I see the problem as well.

The idea of vicarious liability at Common Law is underpinned by the concept of respondeat superior wherein a principal is responsible for the actions of his agent as the agent “stands in the shoes” of the principal which acting within the line and scope of his agency. I am not familiar with Rothbard’s problem with vicarious liability as the principal/agent relationship is a mutual and voluntary one.

It seems odd that Rothbard would discount the validity of respondeat superior and then hang his hat on the idea that the road owner is responsible for the actions of the invitees who traverse his land. The owner/invitee relationship does not allow the owner to be in control of the actions of the invitee as does principal/agent relationship. This is troubling. Perhaps Rothbard’s approach is that the rights/liabilities are vested in the land itself and that right to sue or be sued for pollution is limited to the land owners.

4

http://www.stephankinsella.com/2010/02/09/rothbard-on-corporations-and-limited-liability-for-tort/

5

Ok, problem solved. Rothbard was right. Here is the solution:

There are several problems with vicarious liability.

However I don’t see this as incompatible with his view about liability of private roadowner. The private roadowner is not liable vicariously or as an employer. He is liable because he owns the property and is permitting people to use it to pollute. This is more of a case of strict liability than vicarious IMO.

In a typical case of employer vicarious liability the employee is not necessarily using or on the employer’s property when he commits a tort. He is not necessarily directed to perform that tort. He is not even granted permission to perform that tort. He just does it–“while in the scope of his duties” as employee. This is not the same as a road customer using the road in the manner expressly permitted by the road owner.

Phew… for a second there I thought Rothbard made a trivial mistake!! Glad to see he’s still a genius :smiley:

6

Ha, ok… that’s worded better than what I said. >.<