Public Nuisance as Risk Regulation

24 Pages Posted: 15 Nov 2021 Last revised: 2 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.

Suggested Citation

Merrill, Thomas W., Public Nuisance as Risk Regulation (November 9, 2021). Thomas W. Merrill, "Public Nuisance as Risk Regulation," Journal of Law, Economics & Policy 17, no. 2 (2022): 347-370; Columbia Law and Economics Working Paper No. 655, Thomas W. Merrill, "Public Nuisance as Risk Regulation," Journal of Law, Economics & Policy 17, no. 2 (2022): 347-370; Columbia Public Law Research Paper No. 14-696, Journal of Law, Economics and Policy, Vol. 17.2, Thomas W. Merrill, "Public Nuisance as Risk Regulation," Journal of Law, Economics & Policy 17, no. 2 (2022): 347-370; Law & Economics Center at George Mason University Scalia Law School Research Paper Series No. 22-020, Available at SSRN: https://ssrn.com/abstract=3964155

Thomas W. Merrill (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States
212-854-7946 (Phone)

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