ABSTRACT
Individuals regularly take steps to protect themselves, their property, and their broader legal interests. They carry pepper spray, have guard dogs, and install fences. Such measures are colloquially deemed methods of self-help. Yet, despite its ubiquity, self-help as a legal concept has been chronically understudied. Consequently, American private law is missing a doctrinally coherent and prescriptively useful framework for self-help. As matter of legal theory, this conceptual void is problematic in and of itself. The doctrinal incoherence stemming from this analytical gap decreases the law’s stability and undermines its predictability.
But the concern is not merely theoretical. The magnitude of intentional and collateral damage incurred due to this conceptual void has grown intolerable. Corporate-scale and technologically automated unilateral actions have only heightened the need for a theory of self-help. By contextualizing self-help within the civil recourse system, this article provides the much-needed conceptual framework for a private law of self-help. It relies on the New Private Law research framework and on Civil Recourse Theory to delineate the bounds, purposes, and requirements of self-help in modern society.
This Article provides individuals with an intensional framework of self-help that may be used in ex ante decision-making. In so doing, it displaces the descriptively- and prescriptively-lacking extensional ex post method of determining the lawfulness of particular self-help measures. The Article also provides judges with the ability to rely on self-help as a substantive body of law with its own prescriptive judgements even in cases of first impression. Thus, the Article provides a normatively useful and prescriptively necessary alternative to the status quo in which self-help is commonly seen as a vacuous or meaningless concept.
Marinotti, João, The Private Law of Self-Help (February 4, 2024), 58(2) UC Davis Law Review (Forthcoming 2024); Indiana Legal Studies Research Paper No 515.
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