Thursday, October 13, 2022
Richard Epstein has posted to SSRN The Private Law Connections to Public Nuisance Law: Some Realism About Today's Intellectual Nominalism. The abstract provides:
Historically, the law of public nuisance was confined to cases where private parties blocked public roads or polluted public waters, thereby infringing on a right belonging to all citizens. In tandem with the identical provisions under private nuisance law, the appropriate remedies included monetary sanctions, injunctions and various orders. So understood, a consistent regime of public and private enforcement controlled against these wrongs. More recently, however, multiple attempts have been made to remove the limitations of public nuisance law so as to turn it into an all-purpose remedy that pays insufficient attention to the key features of this body of law. In so doing, too many modern cases have taken the position that the term nuisance has no real meaning at all, so that it can be turned to any substantive end of the moment. This position rests on a false if common claim about the necessary indeterminacy of all language.
This philosophical ploy has been invoked repeatedly to expand the conception of public, and indeed private, nuisances beyond their proper connotations. Thus far, this trend has been resisted in cases involving global warming, and, at least for the moment, firearms. But actions of this sort have had undeserved success in dealing with cases involving such important substances as lead paint and opioids. In virtually all these cases, an expanded public nuisance theory is used to sidestep key requirements in relevant areas of law, including reliance in misrepresentation cases and design or manufacturing defects in product liability cases. Stopping these tactics in public nuisance cases is part of a larger battle, for no system of constitutional limitations on government power can survive if language is never clear enough to explain the do’s and don’ts of public life.