Modernizing Public Nuisance: Solving the Paradox of the Special Injury Rule

Abstract

Introduction 757 I. Public Nuisance and the Special Injury Rule: Three Illustrations of the Paradox 765 A. The Doctrinal Landscape: Public Nuisance and the Special Injury Rule 765 1. A Brief History of Nuisance Law 767 2. Unique Aspects of the Three Types of Nuisance Actions 771 3. The Uniqueness of the Public Nuisance Cause of Action 774 B. The High Barrier Posed by the Special Injury Rule: Three Illustrations 776 1. The Exxon-Valdez Oil Spill: Differential Treatment of Recreational, Cultural, and Commercial Fishing Claims 776 2. Public Beach Access: Contrasting Results in Florida and Hawai’i 781 3. Community Welfare: Economic Losses and Threats to the Social Fabric 786 II. Examining the “Ancient” Special Injury Rule: The Twisted History of the Different-in-Kind and Differentin-Degree Tests 790