The Uncompensated Takings of Nuisance Law

Abstract

This article argues that nuisance law transformed in significant and largely unnoticed ways during the mid-to-late twentieth century. This transformation of nuisance law generates uncompensated takings by depriving plaintiffs of access to compensatory damages for nuisance claims for the sole reason that the nuisance generates external public and private benefits. Remarkably, modern courts adopted these changes without reflecting on the takings problem, and without acknowledging the many precedents that warned of the dangers of takings if the doctrine shifted in favor of public benefits. In the future, courts should reconstruct their historical doctrines of nuisance, protecting the compensatory damages remedy and thereby removing the danger of uncompensated takings. Once courts used nuisance law to strictly protect private property. Within the late nineteenth century, early courts began ease the strict liability approach by balancing the social utility of a defendant’s actions. While courts deviated from the strict liability approach, no grand transformation of the law emerged here. The change simply meant that injunctions were not granted as a matter of right; money damages remained available as a matter of right and without considering social utility. Early courts tightly curtailed the balancing or social utility analysis by a long list of limitations that courts embraced specifically to make sure that property protections remained strong. Courts embraced these limits enthusiastically, specifically citing the problem of unconstitutional takings. The real transformation of nuisance law occurred in the mid-to-late twentieth century. Revisionist courts dropped these limits. The new law of nuisance includes balancing of not only the public interests, but often the defendant’s private ones, within the prima facie case for nuisance. This shift denies plaintiffs any remedy for interferences with their properties and creates regulatory takings. Remarkably, this transformation occurred without courts acknowledging that they had abandoned their previous concerns about takings. The future of nuisance law should be a return to the early doctrines that curtailed balancing to the injunctive remedy analysis, thereby ensuring that plaintiffs who can otherwise prove a case of nuisance at least have access to their compensatory damages. Such changes are all the more critical because so many fields of law — from patents to products liability — borrow doctrines from nuisance.