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The Law and Economics of Cedar-Apple Rust: State Action and Just Compensation in Miller v. Schoene

Author

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  • Fischel William A.

    (Department of Economics, Dartmouth College)

Abstract

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. Stone's 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 standard-higher commercial value-commonly 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.

Suggested Citation

  • Fischel William A., 2007. "The Law and Economics of Cedar-Apple Rust: State Action and Just Compensation in Miller v. Schoene," Review of Law & Economics, De Gruyter, vol. 3(2), pages 133-195, February.
    • Handle: RePEc:bpj:rlecon:v:3:y:2007:i:2:n:1
    DOI: 10.2202/1555-5879.1096
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    References listed on IDEAS

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    1. Nicholas Mercuro & Timothy P. Ryan, 1980. "Property Rights and Welfare Economics: Miller et al. v. Schoene Revisited," Land Economics, University of Wisconsin Press, vol. 56(2), pages 203-212.
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    3. James M. Buchanan, 1997. "Politics, Property, and the Law: An Alternative Interpretation of Miller et al. v. Schoene," Chapters, in: Svetozar Pejovich (ed.), The Economic Foundations of Property Rights, chapter 5, pages 66-80, Edward Elgar Publishing.
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    6. Lawrence Blume & Daniel L. Rubinfeld & Perry Shapiro, 1984. "The Taking of Land: When Should Compensation Be Paid?," The Quarterly Journal of Economics, President and Fellows of Harvard College, vol. 99(1), pages 71-92.
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    Cited by:

    1. Thomas W. Merrill & Henry E. Smith, 2011. "Making Coasean Property More Coasean," Journal of Law and Economics, University of Chicago Press, vol. 54(S4), pages 77-104.

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