Topics in Tort Theory Seminar LAW-814

In the 1990’s, after decades of pursuing and losing product liability suits against the tobacco companies, institutional plaintiffs— state and local governments— achieved stunning success by suing them in public nuisance. That litigation led to a mass settlement of $250 million and put the tobacco companies into permanent decline. Public nuisance has since been the organizing legal concept for the major mass torts of our times— opioids, guns, lead paint, vaping, social media, and climate change among them. This seminar will explore the history, theory, and contemporary practice of public nuisance. It will do so to put students in a position to write a paper exploring a contemporary application of— or issue with— the tort.

The wrong of “public nuisance” is ancient. The English legal cases in which our modern cause of action originates are centuries older than the American Republic itself. The gravamen of the wrong was (and still is) “interference with a right common to the public.” The original instance of such interference was obstructing a public road. Next came obstructing passage on, or use of, a public waterway. Over time, the tort evolved into a jack-off-all trades wrong which could be used to mop up idiosyncratic offensive conditions and interferences that did not fall within the purview of more standard causes of action. William Sheperd, a 17^th Century English treatise-writer, listed “affecting public highways and waterways; polluting the air with houses of office, laying of garbage, carrion or the like, if it be near the common highway; victuallers, butchers, bakers, cooks, brewers, maltsters and apothecaries who sell products unfit for human consumption; running lewd ale-houses; and subdividing houses in good neighbourhoods “that become hurtful to the place by overpestering it with poor.” William Blackstone, writing a century later, had an even longer list.

Over time, public nuisance went into retreat. In the United States, it became unimportant enough to be excluded from the First Restatement of Torts and included in the Second Restatement of Torts only toward the very end of both the process and the document. But just as the Second Restatement was painting public nuisance into a corner of tort law, the modern environmental movement emerged. It saw in public nuisance the promise of a tort action capable of reining in pollution and other environmental degradations. Twenty-five years later, the tobacco litigation turned public nuisance into the preferred tort for litigating mass harms. Public nuisance is now centrally important and controversial. For example, some critics think the wrong simply violates basic canons of legality.

This seminar will begin by exploring the origins of public nuisance and its relation to private nuisance and will progress to studying its controversial modern incarnations. Readings will be drawn from primary legal materials (cases and statutes) and from contemporary legal scholars analyzing the wrong.

Requirements:  This will be a two-credit course, meeting once a week for two hours.  A 15-20 page term paper will be expected. In addition, students will be required to present one of the readings in class. Attendance and participation is required but it will not be graded.  The course may be taken CR/D/F only with the written permission of the instructor.

Writing Requirement: If the course is taken to satisfy the writing requirement, it may be taken for three credits, and a longer paper will be required.

Enrollment will be capped at 20 students.