Gene Callahan doesn’t like my article in which I said that Rothbard had given a prima facie plausible response to critics like Steve Landsburg and David Friedman, who argued that the libertarian approach to property rights would mean that (say) your neighbor could force you to not use any electronic devices. Here’s Gene:
This argument is so bad I doubt Rothbard put it forward thinking it worked: he was merely chucking up whatever he can to rally the troops. First of all, what the hell happened to value subjectivism?! “They are therefore not really invasions of property, for we must refine our concept of invasion to mean not just boundary crossing, but boundary crossings that in some way interfere with the owner’s use or enjoyment of this property.” So, I say I can’t enjoy my property if it is all full of radio waves: How is Rothbard going to prove that is wrong?
This proves way too much. Suppose someone taps my rear bumper at a red light. I get out and say, “You moron! You just caused me $1 billion in psychic damage!” Does this example show that Rothbard has to agree that cars must be banned in a libertarian society, or that he must admit that the 1871 subjective value revolution was wrong? C’mon.
But what’s really bizarre is when Gene writes: “And Rothbard didn’t even attempt a harder case, like smoke from a BBQ, which absolutely is harmful and can definitely alter someone’s enjoyment of their property in a real, tangible way.”
Now if Gene had written “Rothbard DOESN’T even attempt” then we could just interpret that as saying, “In the short quote Bob put in his article about harmless electromagnetic waves, Bob only talked about Rothbard handling harmless magnetic waves–the type of thing Landsburg brought up in his critique.”
But no, Gene said “Rothbard DIDN’T even attempt.” That makes it sound like Gene clicked the link and actually read the discussion to see if Rothbard had the decency to handle other cases.
Well, for what it’s worth, on literally the page before Rothbard talks about radio waves (page 80 here), he brings up the distinction trespass and nuisance. Here’s part of that discussion:
On the other hand, ‘‘contact by minute particles or intangibles, such as industrial
dust, noxious fumes, or light rays, has heretofore generally been
held insufficient to constitute a trespassory entry, on the ground
that there is no interference with possession, or that the entry is not
direct, or that the invasion failed to qualify as an entry because of
its imponderable or intangible nature.”55
These more intangible invasions qualify as private nuisances and
can be prosecuted as such. A nuisance may be, as Prosser points
“an interference with the physical condition of the land itself, as by
vibration or blasting which damages a house, the destruction of
crops, flooding, raising the water table, or the pollution of a
stream or of an underground water supply. It may consist of a
disturbance of the comfort or convenience of the occupant, as by
unpleasant odors, smoke or dust or gas, loud noises, excessive
light or high temperatures, or even repeated telephone calls…”
Prosser sums up the difference between trespass and nuisance:
“Trespass is an invasion of the plaintiff’s interest in the exclusive
possession of his land, while nuisance is an interference with his
use and enjoyment of it. The difference is that between. . . felling
a tree across his boundary line and keeping him awake at night
with the noise of a rolling mill.”57
But what precisely does the difference between “exclusive
possession” and ‘‘interference with use” mean? Furthermore, the
practical difference between a tort action for trespass and for
nuisance is that a trespass is illegal per se, whereas a nuisance, to be
actionable, has to damage the victim beyond the mere fact of invasion
itself. What, if any, is the justification for treating a trespass
and nuisance so differently?
You might say, “Well c’mon Bob, how was Gene supposed to know that Rothbard had placed the specific example of radio waves in a broader discussion of legal theory, especially the distinction between trespass and nuisance?” My answer would be, Because I specifically said that in the original article.
To be clear, I am not saying Rothbard solved all of the problems in this arena. What I’m saying is that it’s frustrating to see people coming up with thought experiments and other objections that (they claim) are crippling blows to the Rothbardian approach, without even bothering to see whether Rothbard talked about these specific things.
For an analogy, I am a critic of the pure time preference theory of interest. But if someone said: “And get this, Rothbard thinks interest is about present goods being preferred to future goods–but what about ice in the winter vs. summer? Idiot.” then that wouldn’t be a great critique.