Property Rights and Welfare Economics: Miller et al. v. Schoene Revisited
The authors of the present comments have directed their attention to several points in our analysis of the case of Miller et al. v. Schoene. The purpose of our attempt at a diagrammatic exposition of the case was to ultimately illuminate the nature of choices open to society in utility space. While both have valid criticisms, it is unfortunate that neither attempted to fully explore and demonstrate the implications of their recommendations and suggestions on the grand utility frontiers. Following their lead we will specificially respond to their several comments sequentially:
The Law and Economics of Cedar-Apple Rust: State Action and Just Compensation in Miller v. Schoene
Miller v. Schoene approved the uncompensated destruction of cedar trees that were alternate hosts to a fungus that damaged apples but not cedars. Supreme Court Justice Harlan F. Stones opinion noted that deciding for either cedar or apple growers would amount to action by the state. Scholars have claimed that Miller marked the demise of the public/private distinction in constitutional law. This article presents historical evidence to the contrary. A widely-accepted standardhigher commercial valuecommonly decided whose interests should prevail in such controversies. The analysis also shows that moral hazard explains why cedar owners were denied just compensation, which orchardists had originally been willing to tax themselves to pay. Cedar owners whose land actually gained in value when their trees were cut down nonetheless availed themselves of damages.
In Defense of a Positive Approach to Government as an Economic Variable
J AMES Buchanan offers what he calls an alternative approach to the interpretation of Miller et al. v. Schoene. I agree that there is a conflict of approaches but suggest that we are not trying to do the same thing. The two approaches are not analytic alternatives. Whereas mine is an attempt to describe what did happen, his is an evaluation of the case in terms of his normative model and a statement of what might have, would have, indeed should have happened if his normative model were followed. His is evaluation and mine is descriptive, positive analysis. Whereas I did not try to reach normative conclusions but only to describe what happened so as to generate some positive conclusions applicable to the interrelation of legal and economic processes generally (that is, public choice broadly conceived), he started with his normative approach and model (the Pareto-Wicksell analysis) and interpreted and evaluated the case in its light. We are doing epistemologically different things. Neither is more important than or superior to the other-nor are they mutually exclusive; but they are epistemologically different. The fact that I share some of Buchanan's concerns and values in normative matters is irrelevant here; so is the fact that I disagree with him in some normative matters. What is important is that his normative analysis provides not one whit of positivist refutation of my positivist conclusions. Nor does he intend to, for his approach is self-admittedly normative. I still insist on the conclusions generated by my analysis of the case. Without repeating those conclusions, I will only say that they involve fundamental problems of legaleconomic interrelations and policy, ultimately the reconciliation of continuity and change, freedom and control, and related questions which have been posed and treated both normatively and positively in economic and legal philosophy but which are identified in my article as positive problems necessarily confronting any society. Buchanan's model, on the other hand, involves a particular normative solution to those problems or to a particular formulation of them. I do not challenge either in my article or here his normative approach as such (though I do have reservations about it, which are discussed at