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

• Published in: Review of Law & Economics 2007, Vol.3 (2), p.1-195
• Main Author: Fischel, William A
• Format: Article
• Language: English
• ISSN: 1555-5879; 1555-5879
• DOI: 10.2202/1555-5879.1096

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. Erratum This article as originally published on February 13th, 2007 was incorrectly numbered 1 – 62. The correct pagination is 133 – 195 as published on July 16th, 2007. Submitted: April 7, 2006 · Accepted: July 28, 2006 · Published: February 13, 2007 Recommended 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: Vol. 3 : Iss. 2, Article 1. DOI: 10.2202/1555-5879.1096 Available at: http://www.bepress.com/rle/vol3/iss2/art1