Public Nuisance as Risk Regulation

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.