Public Nuisance and a Theory of State Action

Pepperdine University Legal Studies Research Paper No. 2021/27

17 Journal of Law, Economics & Policy Forthcoming

36 Pages Posted: 8 Dec 2021 Last revised: 4 Aug 2022

See all articles by Shelley Ross Saxer

Shelley Ross Saxer

Pepperdine University - Rick J. Caruso School of Law

Date Written: 2022


Traditional public nuisance law provided government officials with the authority to enjoin or abate unreasonable conduct that interferes with the public’s health, safety, and welfare. Public nuisance law has expanded over time to address social harms, such as global warming and the spread of infectious diseases; however, the state action doctrine potentially affects the use of public nuisance law to address community harms. The doctrine protects individual liberties against the abuse of government power but allows private interference with constitutional rights. This article reimages the state action doctrine to bar the constitutional sword against private actors, while allowing the constitutional shield against state law claims between private actors, in order to bring clarity to the 'conceptual disaster area' of the doctrine.

In the Civil Rights Cases, the Supreme Court deemed that state laws could not discriminate based on race, but that private entities could – private invasion of individual rights is not the subject matter of the Fourteenth Amendment. In accordance with the state action doctrine, common law claims brought under tort, contract, or property law are not generally subject to constitutional restriction unless the private action is attributed to state action under a recognized exception. However, in New York Times Co. v. Sullivan, the Supreme Court held that the Constitution protected against speech tort liability. This article seeks to reconcile the Supreme Court’s allowance of the First Amendment as a shield against private tort claims while refusing to allow defendants in contract and property lawsuits to use constitutional defenses under the guise of the state action doctrine. Rejecting some of the confusing idiosyncrasies employed by the Court, this article offers a framework to help litigants and courts predict when constitutional rights will be appropriately considered in suits between private actors applying state law.

Part I. reviews the basic contours of public nuisance from its early beginnings, when nuisance was a tool to address criminal and social harms, to some of its more current uses as a means to address large social problems. Part II. focuses on the state action doctrine and describes its purpose, application, and its exceptions when private action is subject to constitutional limitations. Part III. explores judicial approaches to nuisance claims to determine the extent to which these state law actions have been subject to constitutional restrictions. Part IV. examines how a reimagined state action framework, based on its use as a sword or as a shield, could bring clarity to the doctrine. It also addresses what changes will be needed in existing state action doctrine jurisprudence to normalize its application across multiple fields. Private actors will be protected against claims of constitutional violation and will also be able to use constitutional defenses against tort, contract, and property law claims brought by other private actors. The state action doctrine will remain to prevent private individuals from being held liable for constitutional violations, but it should no longer keep private individuals from using constitutional defenses against private law claims.

Keywords: constitutional law, private action, public nuisance, state action

Suggested Citation

Saxer, Shelley Ross, Public Nuisance and a Theory of State Action (2022). Pepperdine University Legal Studies Research Paper No. 2021/27, 17 Journal of Law, Economics & Policy Forthcoming, Available at SSRN: or

Shelley Ross Saxer (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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