Indiana Law Journal

Document Type


Publication Date

Fall 2020

Publication Citation

95 Indiana Law Journal 1399 (2020)


Recognizing that tort law is a unique area of law that was judicially created by rational human beings with an innate sense of economic justice, this Note seeks to apply positive economic theory—derived from ex post analyses of tort cases—to an ex ante analysis to predict how and to what extent the existing and proposed aerial trespass rules will further economic efficiency in the context of drones and airspace rights. Part I will provide (1) an overview of the Federal Aviation Administration’s (FAA) current regulatory framework and the development of the common law aerial trespass doctrine and (2) an overview of the debate surrounding landowners’ property rights and drones by discussing the ULC’s proposed per se aerial trespass rule and the reactions of various stakeholders that led to the proposal of the two alternative rules mentioned above. Part II will attempt to clarify the property rights of landowners to the airspace above their land and argue that the ULC’s proposal is premised on a flawed assumption that aerial trespass should be treated as trespass to land. Part III will compare the economic efficiency of these proposed rules with the existing doctrine in place by applying an ex ante positive economic analysis to show that the common law doctrine of aerial trespass is economically superior to the ULC’s per se and alternative aerial trespass rules.