Download This PaperPublic Nuisance as Risk Regulation
Journal of Law, Economics & Policy 17, no. 2 (2022): 347-370
Columbia Law and Economics Working Paper No. 655
Columbia Public Law Research Paper No. 14-696
Law & Economics Center at George Mason University Scalia Law School Research Paper Series No. 22-020
24 Pages Posted: 15 Nov 2021 Last revised: 13 Dec 2022
Date Written: November 9, 2021
Abstract
Although public nuisance is characterized as protecting rights common to the public, it can also be regarded, in functional terms, as a strategy for protecting against the risk of future harm – something the common law courts could not provide through ordinary actions of breach of contract and tort. Public nuisance made sense at a time when the relevant risks were local and largely defined by custom, and government was a skeletal affair. With the emergence of an alternative mode of risk regulation in the form of the administrative model, the role of public nuisance as a type of risk regulation became obsolete. Today, no one would think of responding to a new type of risk by urging the legislature to label the risk a public nuisance and entrust prosecutors and judges to use litigation to eliminate the risk.
The primary remaining function of public nuisance is as a prop in litigation campaigns launched by public officials to shift large amounts of monies from corporate defendants to state treasuries and plaintiff’s law firms. The only plausible public-interest justification for dusting off public nuisance for this task is that the litigation may serve as a catalyst for better administrative regulation. But it is inappropriate for a judge to invoke a legal doctrine in order to stimulate political reform the judge regards as desirable. Public nuisance should be limited to existing statutes authorizing such actions, interpreted in a non-dynamic fashion to be limited to their assumed applications at the time they were adopted.
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Thomas W. Merrill (Contact Author)
Columbia University - Law School ( email )
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