Lawsuits are expensive and unwieldy. They take a lot of time – years, even. They are emotionally draining, sometimes devastating – even for winners. And a court and its enforcement mechanisms may not be available in an exigently-unfolding situation. In light of this, the law might contemplate that private actors faced with perceived wrongdoing might be given license to take matters into their own hands. Recognizing the defense of self-defense in battery is one way that the law understands that it can be better, or at least acceptable, for people to help themselves. What about less dire situations than defense of life or bodily integrity? Is it OK to chase after someone who has stolen something? To set a trap on one’s own property to deter or incapacitate wrongdoers, especially if the trap is only sprung against people who are manifestly in a place where they have no permission to be? How much should barriers to effective legal enforcement grant license to individual action, even vigilantism?
This section’s cases look at these questions through some classic formulations – a spring-gun, for example – and through some more recent ones: the problems arising from spam. In the latter case, we look both at how this new and vexing phenomenon might be worked into the canon of tort, in particular, trespass to chattel, and also how the law should view acts of self-help taken against spammers.
To what extent should the law protect an owner from minimal interference with his or her property?
Notes: Plaintiff—a four-year-old—encountered a dog belonging to the defendant. While playing with the dog, the plaintiff climbed on the dog and pulled its years. The dog then bit the plaintiff's nose. A state statute allowed for recovery from injury by a dog, unless the injured party was engaged in the commission of a trespass or another tort while injured.
Should an individual be allowed to use force to protect his or her real property? Should it matter if the property is uninhabited?
Notes: Defendants inherited an extra house in which they did not live. After a series of trespasses onto the uninhabited property, defendants posted ‘no trespass' signs, boarded up the doors and windows, and set a spring-gun trap that would shoot trespassers who opened the bedroom door. No warning of the trap's presence was posted. Plaintiff—who had previously trespassed on the property and taken old bottles and fruit jars as antiques—returned to the property in hopes of further scavenging the premises. When the plaintiff opened the bedroom door, the shotgun blew off much of his leg.
Should tort law recognize spamming as trespass against an individual's property? If so, should there be some limits on who may sue spam senders?
Notes: Defendants were in the business of sending spam to Internet users, many of whom were subscribers to plaintiff's network and Internet service. Despite efforts by the plaintiff to stop the spam and the defendant's awareness that the plaintiff did not want spam to be sent to its subscribers, defendant continued spamming activities. The plaintiff claimed that the large amounts of spam burdened plaintiff's mail processing computer equipment and damaged the plaintiff's business reputation and goodwill with its customers.
Should tort law protect against a company's loss of productivity due to unsolicited emails?
Notes: Defendant—a former employee of the plaintiff company—helped form an organization to disseminate information and views critical of plaintiff's employment and personnel policies and practices. As the spokesperson for this organization, the defendant sent six mass emails to as many as 35,000 employees of the plaintiff. There was no evidence that the defendant breached plaintiff's security, nor any evidence that the distribution or receipt of the emails impaired the functioning of plaintiff's computer systems. However, plaintiff argued that its interest in employee productivity had been harmed due to the content of the emails.
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