Self-Help and the Rules of Engagement

Adam Badawi | 29 Yale Journal on Regulation 1 (2012)

Self-help is a ubiquitous, yet understudied, concept. To the degree it has been examined, both courts and commentators have cited the prospect of violence as the central motivation for the law’s limitations on the ability to exercise self-help rights. But the literature lacks a theoretical framework for self-help that can evaluate this motivation to curb violence in concert with the other variables that matter in debates over self-help. This Article fills this gap and, in so doing, shows that the common citation to the potential for violence does not play the central role that courts and commentators have assigned to it. Rather, the rules and their structure reflect the goal of funneling mistake-prone cases to state authorities for resolution. Where legal rights are clear, the law often permits self-help even at the expense of some violence. If the use of self-help can lead to these undesirable effects, the law will often seek to minimize this harm by calibrating appropriate rules of engagement instead of prohibiting the use of self-help altogether. This central claim—that forcing investments in accuracy drives much of the law of self-help—harmonizes the theory of self-help with the different ways it has been implemented and restricted. By so doing, this Article helps to clarify the dynamics of the law of self-help, while also suggesting that one of the most important roles that mandatory process plays in private law is to facilitate coordination and prevent the waste of resources in close cases.
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