Tuesday, May 11, 2021
Cathy Sharkey has posted to SSRN Public Nuisance as Modern Business Tort: A New Unified Framework for Liability for Economic Harms. The abstract provides:
This Article focuses on public nuisance’s innovative use as a means of recovering purely financial losses between non-contracting parties (i.e., “strangers”), in particular where the economic loss rule potentially bars recovery. The Article proposes a new approach to reconciling the torts of negligence and public nuisance, centered on the “channeling” or enforcement rationale: namely, deputizing a class of significantly impacted individuals or entities who can sue to force the tortfeasor to internalize the social costs of its activities. Where the prospect of physical bodily injuries and property damage is attenuated, this cost-internalization function is especially important to deter excessively risky conduct likely to lead to significant financial losses. Moreover, the calculus may be shifting in an age of global financial crises, escalation of digital and informational harms, and growing sense that the societal harms of the 21st century involve risky conduct leading to purely financial harms. Where there are diffuse, widespread harms raising concomitant concerns of under- and over-deterrence, a new “channeling” paradigm is necessary to guide courts in fashioning the metes and bounds of public nuisance as the quintessentially modern business tort of the 21st century.