shlep: the Self-Help Law ExPress

  For lawyers, law students, and their professors, the “law of self-help” is a different concept than shlep‘s notion of “self-help law.”  Rather than our focus on individuals using “self-help law” materials and activity to solve legal problems or engage in litigation without involving lawyers, the traditional legal doctrine of self-help refers to:

“obtaining relief or enforcing one’s rights without resorting to legal action, such as repossessing a car when payments have not been made, retrieving borrowed or stolen goods, demanding and receiving payment or abating a nuisance (such as digging a ditch to divert flooding from another’s property). Self-help is legal as long as it does not “break the public peace” or violate some other law (although brief trespass is common) . . .” (Law.com Dictionary)

The “law of self-help” is, therefore, concerned with understanding whether, when, or how a person can engage in direct self-help activity without violating the law.  It is usually accepted that using violence or otherwise “breaking the public peace” is not permitted under the law of self-help.  

A farmer might engage lawfully in self-help, for instance, if one of his cows meanders into a neighbor’s field — by entering the pasture and fetching his cow, despite a technical trespass.   On the other hand, the North Dakotan who recently “helped himself to a 600-pound, black-and-white-faced steer” belonging to someone else, butchering it right there on the spot (Bismark Tribune, Nov. 7, 2006), was certainly acting outside the doctrine. More problematic, would be the behavior of the new Nicaraguan president-elect Daniel Ortega, who we are told “helped himself to a prime slice of expropriated real estate” before being voted out of office in 1990

 Many Baby Boomers and GenXers got their introduction to the law of self-help in the 1984 cult classic movie Repo Man, starring Emilio Estevez.  Those studying Contracts Law or the Uniform Commercial Code might, indeed, enjoy arguing over which instances of self-help in that film were within the law.  The “recovery experts” listed in RepoMan.com‘s Repossession Directory should be familiar with the particulars of the law of self-help, too.  For a very good introduction to the theory, history, and current state of the self-help doctirne, see “Self-Help in Contract Law: An Exploration and Proposal,” 33 Wake Forest Law Review (839 – 907 (1988), by U. Denver Law Professor Celia R. Taylor. 

Prof. Taylor notes: “The situations in which self-help may be invoked and the actions which may be taken are as varied as human imagination and ingenuity. A few common examples of self-help include the withholding of rent by a tenant when the leased premises are not suitably maintained and repossession of goods when payment for them is not timely rendered.”  She stresses that “Although self-help is non-judicial, it is not extra-legal and does not lie outside the “shadow of the law.”  Rather, “it is part of a seamless web of the law.”

 Since starting this weblog, I have wanted to write this post, explaining that our “self-help law” concept is not that “law of self-help.”  However, I’m having second thoughts about the supposed dichotomy.  Solving your own legal disputes by using self-help educational materials, to learn about and then directly assert your rights — without involving a third party — is different by degree, but not by nature, from the traditional self-help doctrine.  (Examples might be a dispute with a landlord, mechanic, or shopowner.)   Both aspects of legal “self-help” involve an attempt to solve a dispute as expeditiously and inexpensively as possible, without yielding control to others in the process of finding a solution.

In that context, I leave you with the introductory paragraph in Prof. Taylor’s Self-Help article (footnotes omitted): 

Americans are too litigious. Every small spat seems to end up in the courthouse where it drains judicial resources, takes far too long to resolve, and leaves all involved unhappy. So goes the common refrain, and there is probably some truth to it.  What this view ignores, however, is that many disputes never reach the courthouse. In a wide spectrum of controversies, a typical reaction to trouble is to attempt to remedy the situation privately through the exercise of “self-help.” The term “self-help” refers to private actions taken by those interested in the controversy to prevent or resolve disputes without official assistance of a governmental official or disinterested third party. The misperception of the unduly litigious nature of Americans could be minimized if more explicit recognition were given to self-help, a practice already prevalent in our law.