Public Nuisance: Public Rights, Private Rights and the Common Good

29 Pages Posted: 24 Nov 2021 Last revised: 10 Oct 2022

Date Written: October 5, 2021


State and federal courts face a rising number of common law public nuisance claims brought by environmental and climate advocates. This paper examines those claims in the context of traditional common law nuisance doctrine with a particular focus on the separation of powers and the role of courts in constitutional democracy. In brief, the paper concludes that public nuisance is an artifact of a time when common law courts performed a police power function that is no longer appropriate given the police power responsibilities of the modern legislative and administrative branches of government.

Keywords: public nuisance, public rights, separation of powers, common law

JEL Classification: K

Suggested Citation

Huffman, James L., Public Nuisance: Public Rights, Private Rights and the Common Good (October 5, 2021). Journal of Law, Economics and Policy, Vol. 17.2, Law & Economics Center at George Mason University Scalia Law School Research Paper Series No. 22-019, Available at SSRN: or

James L. Huffman (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States

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