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The Law and Economics of Cedar-Apple Rust: State Action and Just Compensation in Miller v. Schoene
1Department of Economics, Dartmouth College
Citation Information: Review of Law & Economics. Volume 3, Issue 2, Pages 133–195, ISSN (Online) 1555-5879, DOI: 10.2202/1555-5879.1096, February 2007
- Published Online:
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.