Cutting Down Damages Awards in Timber Trespass Cases

The Alaska Supreme Court recently heard two cases addressing damages awards for timber trespass claims. Both cases, Wiersum v. Harder and Chung v. Park , emphasized the difficulty of obtaining restoration damages and the close scrutiny given to the size of the damages award itself. This Note explores the history of timber trespass and the current method by which courts determine the appropriate damages award. The Note also proposes a possible alternative to the current reticence toward restoration damages in which the plaintiff may elect to receive restoration damages but would be required to use those damages to restore their trees

Trespass-copyright parallels and the harm-benefit distinction

Responding to Shyamkrishna Balganesh, Foreseeability and Copyright Incentives, 122 Harv. L. Rev. 1569 (2009)Currently, the elements of a plaintiff’s cause of action for copyright largely follow the tort of trespass to land in that volitional entry (for land) or volitional copying (for copyright) gives rise to liability regardless of proof of harm and without any need for the plaintiff to prove the defendant acted unreasonably. Many scholars have criticized copyright law for following the strict liability model of real property trespass, and have suggested alternatives that would more resemble conditional causes of action such as unfair competition, nuisance, or negligence. In Foreseeability and Copyright Incentives, Professor Shyamkrishna Balganesh argues that copyright plaintiffs should be required to prove foreseeability in order to make out a copyright claim. In this response, Professor Wendy Gordon suggests some new reasons why the tort of copyright infringement should be reformulated to abandon the trespass-to-land model, and explores some of the merits and shortcomings of Balganesh’s own version of the revised tort

A Comment on Restatement Third of Torts’ Proposed Treatment of the Liability of Possessors of Land

In §§ 51 and 52 of the forthcoming second volume of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm, the reporters have sought to accommodate the trend to extend the liability of possessors of land to trespassers. The courts that have led the way in this legal transformation of the traditional common law have largely focused on the foreseeability of the trespasser and of the likelihood of injury from the disrepair of the premises. The Restatement (Third) takes a different approach by focusing on the flagrancy of the trespass, a concept with significant moral connotations. I argue that this approach has severe problems. The notion of flagrancy conjures up at least two overlapping visions. One is the purpose of the trespasser in committing the trespass, such as whether to commit a crime. The other is the frequency of the trespass; the more frequent the trespass the more foreseeable it is to the possessor of the premises. But since frequency, after a point, shows a total disregard of the rights of the possessor, it can lead to the conclusion that, what would have been an actionable injury, is now without a remedy because of the flagrant disregard of the rights of the possessor. Moreover, by focusing on the moral culpability of the injured trespasser, it requires juries and courts to make moral judgments with large subjective components. This possibility is recognized by the reporters in their explicit recognition and expectation that different jurisdictions might have different notions of what is \u27flagrant.\u27 Whether a restatement of the law that accepts that different states will look at things differently is actually a \u27restatement\u27 is a matter that deserves serious consideration

Weaponisation of trespass to land and its implications for land justice and enjoyment of property rights in neoliberal Uganda

Protection of the right toproperty is among the central concerns of Uganda’s Constitution and laws. The law on civil and criminal trespass aims at facilitating enjoyment of property by prescribing damages for civil trespass and penalty for criminal trespass. Despite this, criminal and civil trespass have been used as weapons by some actors in land conflicts to undermine property rights of weaker parties and escalate land conflicts. The relationship among property, land conflicts and trespass is a theme of empirical significance in Uganda. Yet, weaponisation of trespass and its repercussions on property rights and resolution of land conflicts in Uganda is not significantly studied. This paper fills this gap. It conceptualizes criminal and civil trespass as embedded in the law, and how they have been weaponised. Using qualitative methods (analysis of literature, court decisions, and web based material) the paper finds that criminal trespass has been weaponized to target weaker parties to land conflicts hence impacting on their property rights and delivery of land justice. Using the criminal justice system, they are charged with criminal trespass, incarcerated, and are unable to pursue  civil remedies from courts of law, hence protracting the underlying civil/land dispute. Civil trespass has also been misused within Uganda’s escalating land dispute terrain; in pursuit of selfish objectives rather than of justice. Uganda’s neoliberal context is an enabler of all the above.  Recalibration of the civil justice system for efficience and amendment to section 302 to offer clarity  on the boundaries of its application are recommended

\u3cem\u3eBoynton v. Virginia\u3c/em\u3e and the Anxieties of the Modern African-American Customer

In 1958, Bruce Boynton was arrested for ordering food in a Whites-Only diner and charged with criminal trespass. Sixty years later, African Americans continue to face arrest and threat of arrest in commercial establishments based on discriminatory trespass claims. When store owners or employees decide to exclude would-be patrons from their establishment for discriminatory reasons, both overt and implicit, they rely on the police to enforce this form of discrimination. This article considers the legacy of Boynton v. Virginia, particularly the resonance of Boynton’s unaddressed claim, that the state enforcement of discriminatory trespass allegations is an Equal Protection violation. African-American consumers continually experience the threat of police intervention or actual arrest as they shop in stores and sit in coffee shops. The Article argues that state enforcement of discriminatory trespass claims against African Americans results in unequal access to commercial establishments open to the public. Trespass allegations can result in lifelong concerns – legal and psychological consequences. The continued enforcement of discriminatory trespass claims cause significant harms, including demonstrative public health effects on African Americans. In recounting Boynton, the Article draws from its legacy forms of action to address discriminatory trespass enforcement

Fair Trespass

Trespass law is commonly presented as a relatively straightforward doctrine that protects landowners against intrusions by opportunistic trespassers. Though widely supported in academic commentary and scholarship, this conventional viewpoint of trespass law lacks empirical and analytical grounding In fact, the interests involved in trespass disputes often extend beyond the interests of a private landowner, affecting broad societal interests such as the free flow of information, public safety and health, and similar considerations. This Essay attempts to align these observations with a doctrine more attuned to reality. To that end, it develops a new doctrinal framework for determining the limits of a property owner's right to exclude. Adopting the doctrine of fair use from copyright law, the Essay introduces the concept of "fair trespass" to property law doctrine. When deciding trespass disputes, courts should evaluate the following factors: (1) the nature and character of the trespass; (2) the nature of the protected property; (3) the amount and substantiality of the trespass; and (4) the impact of the trespass on the owner's property interest. The main advantages of this proposal are twofold. First, this novel doctrine more carefully weighs the interests of society in access against the interests of property owners in exclusion. Second, by replacing the existing patchwork of ad hoc situations where courts excuse trespassory acts, this proposal provides a more coherent and consistent context in which to adjudicate trespass conflicts. By developing a balancing test to assess trespass claims, the proposed doctrine seeks to protect the rights of property owners on the basis of a more explicit and predictable framework, while at the same time safeguarding the societal interests in access

Boynton v. Virginia and the Anxieties of the Modern African-American Customer

In 1958, Bruce Boynton was arrested for ordering food in a Whites-Only diner and charged with criminal trespass. Sixty years later, African Americans continue to face arrest and threat of arrest in commercial establishments based on discriminatory trespass claims. When store owners or employees decide to exclude would-be patrons from their establishment for discriminatory reasons, both overt and implicit, they rely on the police to enforce this form of discrimination. This article considers the legacy of Boynton v. Virginia, particularly the resonance of Boynton’s unaddressed claim, that the state enforcement of discriminatory trespass allegations is an Equal Protection violation. African-American consumers continually experience the threat of police intervention or actual arrest as they shop in stores and sit in coffee shops. The Article argues that state enforcement of discriminatory trespass claims against African Americans results in unequal access to commercial establishments open to the public. Trespass allegations can result in lifelong concerns—legal and psychological consequences. The continued enforcement of discriminatory trespass claims cause significant harms, including demonstrative public health effects on African Americans. In recounting Boynton, the Article draws from its legacy forms of action to address discriminatory trespass enforcement

Teenage trespass on the railways – a systems approach

Rail trespass and risk-taking behaviours are particularly high among 16–25 year olds. The aim of the research described in this paper is to understand how the communication of safety information to these groups can be improved. The study involves focus groups with 117 young people and 43 interviews with stakeholders drawn from the rail industry alongside professionals involved in working with young people. Participants in the focus groups are shown a set of four safety videos which describe the dangers of trespass. The findings demonstrate a number of misconceptions about the dangers and legality of trespass among young people (e.g. lack of awareness of electrocution dangers). Material which includes emotional, ‘real-life’ information in the form of safety narratives is judged to be the most effective in communicating trespass risks. The study also underlines the importance of combining and integrating technical, educational and community-based efforts to reduce trespass

These Walls Can Talk! Securing Digital Privacy in the Smart Home Under the Fourth Amendment

Privacy law in the United States has not kept pace with the realities of technological development, nor the growing reliance on the Internet of Things (IoT). As of now, the law has not adequately secured the “smart” home from intrusion by the state, and the Supreme Court further eroded digital privacy by conflating the common law concepts of trespass and exclusion in United States v. Jones. This article argues that the Court must correct this misstep by explicitly recognizing the method by which the Founding Fathers sought to “secure” houses and effects under the Fourth Amendment. Namely, the Court must reject its overly narrow trespass approach in lieu of the more appropriate right to exclude. This will better account for twenty-first century surveillance capabilities and properly constrain the state. Moreover, an exclusion framework will bolster the reasonable expectation of digital privacy by presuming an objective unreasonableness in any warrantless penetration by the state into the smart home

Cognitive Economy and the Trespass Fallacy: A Response to Professor Mossoff

In his recent essay The Trespass Fallacy in Patent Law, Professor Adam Mossoff argues cogently that the metaphor of trespass has become a misused basis for patent indeterminacy critiques that it cannot conceptually or empirically support. While sharing his caution that metaphors are not to be trifled with, this reply suggests that trespass has both a smaller role and a larger potential benefit in the debate on patent indeterminacy, and advances an opposite solution