The Perils and Promise of Public Nuisance
Public nuisance has lived many lives. A centuries-old doctrine defined as an unreasonable interference with a right common to the public, it is currently the backbone of thousands of opioid and climate-change suits across the United States. It was a major force behind the landmark 1998 tobacco settlements and has figured in litigation over issues as diverse as gun sales, lead contamination, water pollution, Confederate monuments, and COVID-19 safety standards. Although this common-law oddity has shaped the face of modern tort law, it is unfamiliar to the public and typically ignored, even in law schools. When discussed, it often provokes anxiety: Is it a tort at all? Whatever it is, will it swallow tort law? The regulatory state? Or separation of powers as we know it?
This Article utilizes the current opioid litigation to explore the three most common sets of objections to public nuisance: traditionalist, formalist, and institutionalist. Public nuisance can seem unusual, even outlandish. At worst, it is a potentially capacious mechanism that allows executive-branch actors to employ the judicial process to address legislative and regulatory problems. Nevertheless, its perils are easily overstated and its promise often overlooked. Historically, public nuisance has long addressed problems such as harmful products. Doctrinally, it accords better with tort law than is commonly recognized. And institutionally, it functions as a response to nonideal conditions—specifically, where regulatory mechanisms underperform.
Drawing on long-standing tort principles of duties generated by risk creation, I propose a conception of public nuisance that highlights its coherence with familiar aspects of tort law and its consistency across past and present. Public nuisance is an object lesson in the common law’s balance of stability and evolution, across time and within varying regulatory contexts.