TY - JOUR
T1 - PUBLIC NUISANCE FOR PRIVATE PERSONS
AU - Dagan, Hanoch
AU - Dorfman, Avihay
N1 - Publisher Copyright:
© 2024 University of Toronto Press. All rights reserved.
PY - 2024/4
Y1 - 2024/4
N2 - The public nuisance tort is now in a critical stage of development, mostly in the United States but also in other jurisdictions, including civil law systems. It is becoming ever more consequential in practice and, at the same time, widely misunderstood by courts and scholars. Our ambition is to defend a private law theory of public nuisance. Contrary to the view that the underlying rights protected by this tort contrast with private rights (say, to bodily integrity), we argue that these public rights are private rights like any other right in the law of torts since they protect private persons taken severally. And, yet, these private rights are also distinctively public in the sense that they protect the interests of private persons to use and enjoy the public sphere. In that, public nuisance imposes not merely ex post liability for undermining these interests but also, first and foremost, constructs a liberal public sphere. Our case for public nuisance shows that private law extends beyond the private sphere to capture entitlements and responsibilities that do not arise from, or attach to, ownership of land; it also resists the reduction of private law to rights of action and ex post determination of liabilities. More concretely, our reconstruction of public nuisance solves two key doctrinal challenges that the tort struggles with - concerning the standing to sue in public nuisance and the economic loss rule - and it also refines the potentially significant role of this tort in addressing the urgent threat posed by climate change.
AB - The public nuisance tort is now in a critical stage of development, mostly in the United States but also in other jurisdictions, including civil law systems. It is becoming ever more consequential in practice and, at the same time, widely misunderstood by courts and scholars. Our ambition is to defend a private law theory of public nuisance. Contrary to the view that the underlying rights protected by this tort contrast with private rights (say, to bodily integrity), we argue that these public rights are private rights like any other right in the law of torts since they protect private persons taken severally. And, yet, these private rights are also distinctively public in the sense that they protect the interests of private persons to use and enjoy the public sphere. In that, public nuisance imposes not merely ex post liability for undermining these interests but also, first and foremost, constructs a liberal public sphere. Our case for public nuisance shows that private law extends beyond the private sphere to capture entitlements and responsibilities that do not arise from, or attach to, ownership of land; it also resists the reduction of private law to rights of action and ex post determination of liabilities. More concretely, our reconstruction of public nuisance solves two key doctrinal challenges that the tort struggles with - concerning the standing to sue in public nuisance and the economic loss rule - and it also refines the potentially significant role of this tort in addressing the urgent threat posed by climate change.
KW - global warming
KW - public nuisance
KW - public sphere
KW - relational justice
KW - tort law
UR - http://www.scopus.com/inward/record.url?scp=85188925442&partnerID=8YFLogxK
U2 - 10.3138/utlj-2022-0112
DO - 10.3138/utlj-2022-0112
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AN - SCOPUS:85188925442
SN - 0042-0220
VL - 74
SP - 198
EP - 228
JO - University of Toronto Law Journal
JF - University of Toronto Law Journal
IS - 2
ER -