Is the Common Law the Free Market Solution to Pollution?

Critical Review, Vol. 24, No. 1, 2012

Case Legal Studies Research Paper No. 2012-9

42 Pages Posted: 23 Mar 2012  

Jonathan H. Adler

Case Western Reserve University School of Law; PERC - Property and Environment Research Center

Date Written: March 21, 2012

Abstract

Free market environmentalism (FME) analyzes environmental problems as property rights problems. Whereas conventional analyses characterize environmental problems as examples of 'market failure,' FME diagnoses point to the lack of markets, and in particular a lack of enforceable and exchangeable property rights. This approach works well with many, if not most natural resources. The case for FME approaches to pollution problems is much weaker, however. Most FME proponents suggest that common law tort suits can adequately protect private property and ecological resources from environmental harm. Yet such claims have not been substantiated. The case for the common law as an effective substitute for pollution control regulation has yet to be made. Much work needs to be done before the common law, or regulatory reforms grounded on common law principles, can be seen as a viable alternative to traditional environmental regulation.

Keywords: environmental law, free market environmentalism, property rights, pollution, tort law, common law, nuisance, administrative regulations

JEL Classification: K23, K32

Suggested Citation

Adler, Jonathan H., Is the Common Law the Free Market Solution to Pollution? (March 21, 2012). Critical Review, Vol. 24, No. 1, 2012; Case Legal Studies Research Paper No. 2012-9. Available at SSRN: https://ssrn.com/abstract=2027134

Jonathan H. Adler (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-2535 (Phone)
216-368-2086 (Fax)

HOME PAGE: http://www.jhadler.net

PERC - Property and Environment Research Center

2048 Analysis Drive
Suite A
Bozeman, MT 59718
United States

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