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filters to keep the e-mails out. This means that the owner has a legally recognized right to exclude but no legal remedy to enforce that right. This is anomalous, given the usual assumption that every legal right has some legal remedy. Perhaps in the case of ordinary chattels such as bowling balls the law should not waste its time with providing legal redress for unwanted touchings. But whether self-help is always more efficacious than legal intervention with respect to unwanted invasions of electrons remains to be seen.
• Self-Help
Self-help is not just a feature of the Internet; it is everywhere. Locking your apartment or car is self-help, as is putting a fence around your yard. Many of these measures are uncontroversial.
Some types of self-help are normally covered in criminal law. People have a limited right to defend themselves and their dwellings. The force used must be reasonable. Methods once used to protect property such a spring guns are generally not allowed any more. Again, the criminal law is a blend of protection of persons and property, and life and limb take priority over defense of property. The right in some jurisdictions to shoot intruders in an occupied dwelling does not extend to the right to use deadly force to protect unoccupied buildings (hence no spring guns even in those jurisdictions).
Property law focuses on less dramatic self-help measures that owners can take to enforce their property rights. Owners can use reasonable force (not deadly force) to eject trespassers. Closer cases involve landlord-tenant relations. In the 1970s a trend developed in which courts disallowed landlords from physically evicting tenants or locking them out. Under this approach the rule is mandatory in the sense that landlords and tenants cannot contract into a regime under which landlords would have a right to do a self-help eviction. As we will see later (see Chapter 6), the move away from self-help here can be seen as part of the wave of tenant-friendly decisions and legislation in the 1960s. Whether such mandatory rules protect
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tenants who are at an informational or economic disadvantage, or whether such rules hurt tenants in the long run by raising rents and making landlords choosier about tenants is a complex question, which turns in part on how competitive rental housing markets are.
In part, courts justified the move away from self-help as being compensated, in that landlords have been given expedited actions— often termed a “forcible entry and detainer” (FED)—to regain the premises. In practice, these procedures have typically not been as quick or efficient as originally envisioned. (Partly, this has been caused by the recognition of new tenant defenses to eviction, based on the condition of the premises.) Perhaps for that reason the trend toward disallowing any self-help in residential landlord-tenant law has run out of steam, leaving a mixed landscape.
Similar issues arise with personal property. Under the criminal law, one is not allowed to use deadly force to protect personal property (but one would under certain circumstances be allowed to use deadly force to prevent a physical attack on one’s person, which might also involve property). A person is allowed to use reasonable force to protect personal property, so it is all right to snatch a purse back from a purse snatcher. As with real property, self-help in the law of personal property tends to come up in specialized contexts.
One such area is repossession of personal property subject to security interests. In contrast to mortgages of real estate, which have elaborate procedures for foreclosure, the holder of a security interest in personal property can use self-help to take possession of the property in question if the debt is in default. This is most familiar (in life as in the movies) in the context of auto repossession, because cars, unlike other consumer goods, are often left out in the open. Jurisdictions differ on how much self-help can be used, but where it is allowed, the “repo man” (even if thriving on confrontation6) must not do anything that tends to a breach of
6. Repo Man (Universal Pictures 1984).
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the peace. This usually means that if the owner objects strenuously enough, the repossession must stop. As in the case of landlordtenant, the question involves balancing the possibility of overbearing behavior against the lower interest rates made possible by quick and cheap repossession. Nevertheless the current state of the law abounds in ironies. For one thing, in those jurisdictions where self-help repos are all right unless the owner firmly objects, people who are less physically threatening to the repo man are at a disadvantage.7 Moreover, the process for gaining possession from a wrongful possessor in contexts other than security interests is much more elaborate and, being state action, subject to dueprocess constraints.8 (Likewise, because of the high stakes, and in the case of homes because of their often personal nature, foreclosing on a mortgage on real property is a long and difficult road for the mortgage holder.)
At the beginning of this section we mentioned the uncontroversial nature of using locks as a measure of self-help. Other measures generate more controversy. Fences and walls have aesthetic implications, and in the case of gated communities, some find them troubling because they look too exclusionary. In the context of intellectual property (IP) and digital files, open access advocates often decry the exclusion of others through digital rights management (DRM). Some such situations shade off into contracts, but the question then becomes what one should think about an effort to contract for limited access with all possible users. Related to this is the fact that we do not usually hold owners responsible for failing to take cost-effective self-help measures to protect their property– there is no defense of contributory negligence analogous to what we find in the law of tort with respect to personal injuries. If you leave your front door or your car unlocked, you can still sue a
7.See, e.g., Williams v. Ford Motor Credit Co., 674 F.2d 717 (8th Cir. 1982).
8.See, e.g., Fuentes v. Shevin, 407 U.S. 67 (1972) (common-law action for replevin subject to due-process hearing).