Welcome to The Libertarian. I am Charles C.W. Cook, the host, and I'm here as always with Richard Epstein. This is a production of the Civitas Institute at the University of Texas at Austin.

Richard, welcome to your own show.

Oh, it's always nice to be there.

I usually try not to miss it.

I wouldn't work without you.

All right, this week's topic is of great interest to me as a Floridian and a Floridian who lives on the beach. We're going to discuss

a piece that you wrote earlier this month, the title of which was, will beachfront homes

be condemned into the sea? I certainly hope they won't, or at least I hope that mine won't. But actually,

this is a very complicated legal question. And I know this thrills you, Richard, it goes all the

way back to Roman law. So before we dig into the legal issues, why don't you tell me what this is

about as a big picture?

Okay, well, the first thing to mention is the topic came to my attention because one of

my Roman law students, a woman named Danielle York, read it and she says, this is right up

your alley and you have to talk about.

And so what really goes on is the question of how it is you demarcate domains. And as I mentioned in the

opening sentence of that article, the rules for water are completely different than the rules for land.

And everybody, but everybody understands that. With land, the basic rule is one of exclusion.

I can keep you out and therefore I can choose who comes in, and therefore we can create complicated structures by contract, not only licenses, but mortgages, leases, and so forth. With water, if you allow this thing to become an exclusive property, there'd be some enterprising person at the

top of the river who would put a blockade there, put all the water into a barrel, and the river

would disappear. There would be no transportation. There would be no recreation. There would no

water for nourishment. There'd be no fish, no nothing. So it doesn't take a deep empirical study

to realize that the basic presumption of private property is exclusion and the basic presumption

...