Property along the Tort Spectrum: Trespass to Chattels and the Anglo-American Doctrinal Divergence

In attempting to apply the tort of trespass to chattels to the virtual world of the Internet, courts in the United States encountered a seemingly odd, yet significant doctrinal issue. While the traditional English action allowed for a claim without any showing of harm or damage (like it did for trespass to land), American (state) common law appeared to insist upon a showing of ‘actual damage to the chattel’ before the tort became actionable. This article undertakes a conceptual analysis of the tort of trespass to chattels, focusing on the difference between English and American common law on the requirement of actual damage. It then attempts to construct a theoretical argument for this doctrinal divergence, based on the vindicatory and corrective functions that the tort is presumed to perform and employs a transaction costs model from law and economics to rationalize the variance between the English and American versions of the tort. It concludes by noting that while there may indeed be efficiency gains to be had from the American version of the tort, the realization of the same may require greater certainty in the law's understanding of ‘damage’ and ‘harm’ than has been seen in the recent past.