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V. Trespass to Chattels: The Limits of Self-Help

Lawsuits are expensive and unwieldy. They take a lot of time — years or even decades. 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 contemplates that private actors faced with wrongdoing might be given license to take matters into their own hands. Vindicating 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 — expressed as defenses to otherwise-valid tort claims — grant license to individual action, even vigilantism?

This section’s cases look at these questions through some classic formulations, such as a spring-gun, and through some more recent ones, including the problems arising from spam. In the latter cases, we look both at how new and vexing phenomena 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.