Nuisance Law Research Articles

The (unprivileged) polluter pays: Conflict of Rights in Delhi’s stormwater drain-adjacent ‘informal’ settlements

ABSTRACT The juridical construction of India’s Right to Life has recognized right to water and sanitation in ‘informal’ settlements but not right to clean environments, the latter instead applied to label them as polluters. Given past evictions based on nuisance law in Delhi, and the emerging juridical construction of Rights of Nature for River Yamuna – polluted by waste disposal – the biophysical impact of ‘formal’ vs. ‘informal’ settlements needs clarification. Water quality and land use analyses at stormwater drain-adjacent settlements in Delhi show pollution occurs upstream but becomes visible here, lending settlement residents environmental agency in an emerging Conflict of Rights scenario.

Indian Constitutional Perspective of Environmental Justice: an Analytical Study with Reference to PIL and Precedents

The problem of environmental pollution has assumed massive and grave proportions over the decades. It has been left to the courts in India to go behind the letter of the law into the spirit of the law to find out the plausible solutions for the problem though evolution of the law of public nuisance into environmental law. Though the implementation of statutory provisions, as also by embracing various international doctrines, the Supreme Court of India as well as various High Courts have tried time and again to develop environment-friendly justice in India through the recognition of the principle of Sustainable Development. However, the actions of the judiciary had been under attacks from other organs of the State alleging that the judiciary is transgressing its boundaries and stepping into the realms of the executive and the legislature. This paper is an effort to trace the environmental justice in India and to find out whether judicial activism can actually lead to sustainable development.

Limitations on Ownership Rights: From Traditional Approach to Modern Trends

Theories of limitations on ownership rights are one of the foremost issues of property law. However, there is a lack of systematic and comprehensive studies on theoretical issues regarding the limitations of ownership rights in Vietnam, especially the issue of the social function of property law. This article aims to fill in this gap by systematically identifying and analyzing several prominent theoretical issues in limitations on ownership rights. Specifically, the article focuses on discussing: i) the new ideas of the qualitative duty/ qualitative obligation; ii) the principle of prohibiting the abuse of rights and the law of nuisance; iii) the need for external limitations on the right to exclude to balance the need for protection of other human rights; iv) the need to reform the traditional rule of limitations on ownership rights to meet the millennium goals of sustainable development.
 
 

A room with a view: The Supreme Court and the law of nuisance

The Supreme Court has provided a landmark judgment in the law of private nuisance, overturning the decisions of the High Court and Court of Appeal, and being decided by a narrow 3:2 majority to create one of the most captivating judgments handed down in recent times for property litigation. This case concerned the appeal to the Supreme Court from the residents of luxury flats overlooked by the Tate Modern Gallery viewing platform. The viewing platform was once considered one of London’s best free viewpoints; indeed, the Supreme Court Justices describe it as a ‘striking view of London’. It has, however, caused a great deal of controversy with its neighbours over the last six years and their story has generated a remarkable amount of publicity. While it had previously been acknowledged that nuisance need not amount to physical interference, the question of whether there was, or should be, a right to prevent public overlooking had never been considered within the scope of private nuisance before.

Nuisance, Planning and the Common Law in Late Eighteenth-Century Bombay

ABSTRACT The literature on the legal transfer of English property law to colonial South Asia has long focused on the agrarian context. Urban property and the built environment remain understudied. This article explores how the common law of nuisance found its way into the workings of a Committee of Buildings in late eighteenth-century Bombay. An analysis of the internal files of the Committee of Buildings shows that the Committee focused on public and private nuisance mitigation. Residents filed private party nuisance complaints, taking up nuisance law in their own disputes with neighbours. The Committee’s attempts to deal with public nuisances highlights the resistance of local residents. The conclusion considers the broader question of how we can conceptualize the actors, vectors and mechanisms involved in legal transfer, and its reception. Alternative explanations such as influences from pre-English colonial regimes, the impact of local custom, and the balance between common law and statute are evaluated. Rather than a seamless legal transfer, nuisance in early colonial Bombay demonstrates dialogue, resistance and appropriation.

Natural Property Rights: An Introduction

This Article introduces a symposium hosted by the Texas A&M University Journal of Property Law. The symposium is on a forthcoming book, and in that book the author introduces and defends a theory of property relying on labor, natural rights, and mine-run principles of natural law. Parts I and II of the Article preview the main claims of the book, summarizing part by part and chapter by chapter.
 The rest of the Article illustrates how the theory introduced in the book applies to a contemporary resource dispute. The Article studies an ongoing lawsuit styled Campo v. United States, now pending in federal court. In Campo, oyster producers are suing the United States for inverse condemnation. The class plaintiffs seek $1.6 billion in just compensation for the U.S. Army Corps of Engineers having (allegedly) killed oysters they were raising when it diverted water from the Mississippi River through a spillway into the Gulf Coast.
 The Campo case repays study for two reasons. Labor and natural rights are already at play in the Campo litigation. The U.S. government moved to dismiss the plaintiffs’ claims to property in oysters, and when the presiding judge denied that motion he relied in part on natural rights and the labor theory John Locke introduced in his Second Treatise of Government. Separately, the underlying dispute fairly tests any general theory of property. The dispute raises questions about: whether oysters should be private property; whether people should be allowed to claim private property in coastal water bottoms; how property in oysters and water bottoms should be reconciled with public interests in shoreline protection; why have an institution like eminent domain; and how nuisance law should apply to a government-sponsored water diversion into coastal areas. If a theory of property can shed helpful light on all of those issues, it applies broadly enough to constitute a general theory of property, and the theory introduced in this Article satisfies that standard. Along the way, this Article also shows how a labor- and rights-based property theory differs from justifications for property and regulation influential in contemporary law, policy, and scholarship.

Natural Property Rights: A Reply

This Reply concludes the symposium hosted by the Texas A&M University Journal of Property Law on the author’s forthcoming book Natural Property Rights. The Reply shows how natural law and rights apply to a wide range of doctrinal examples raised in this symposium—including business associations, correlative oil rights, timber extraction, sinking coastlands, water law, nuisance law, property rights in subsurface minerals, and the issues about sovereignty and property disposition associated with Johnson v. M’Intosh (1823). The Reply also addresses a wide range of skeptical objections to natural law—especially the arguments that it relies too much on intuitions and not enough on hard empirical data. The Reply responds to objections to natural rights familiar from law and economic scholarship—and rehearses important but often-neglected reasons why economic analysis of law needs support from moral and political theory. And the Reply responds to criticisms of rights theories typical from Progressive property scholarship—and argues that a Lockean theory of rights is more sober and tougher-minded than Progressive theories are about whether and how much law can secure justice in practice.

Comparing & Contrasting Economic and Natural Law Approaches to Policymaking

Eric Claeys’s monograph, Natural Property Rights, offers a comprehensive and thoughtful articulation of a general theory of property rights rooted in the natural law tradition. This detailed review compares Claeys’s work with the consequentialist law and economics perspective on property. After contrasting their objectives, assumptions, and methodologies this article concludes that, unlike more absolutist approaches, Claeys’s flavor of natural property rights places a modicum of weight on the welfare effects central to economic analysis. This restrained nod in the direction of practicality, however, does not eliminate some of the long-known weaknesses of natural law. Perhaps the most glaring gap in Claeys’s book is its failure to acknowledge and analyze the modern law of nuisance with its enriched set of remedies capable of making everyone a winner. At a macro level, Claeys (like most other natural law theorists) offers no substantive case against redistribution as an optimal method for addressing the fact that charity is a public good. The book, again in keeping with the natural law tradition, eschews any serious empiricism—indeed not a single argument it makes contains any empirical support. This is a fatal flaw for anyone with the ambition to offer practical advice on tougher property law issues for which the right answers depend on myriad social parameters whose values lie beyond the reach of deduction.

Law, justice and the role of courts in changing the social superstructure narrative in climate litigation

Law, justice and the role of courts in changing the social superstructure narrative in climate litigation

ADDRESSING AIR POLLUTION THROUGH PROPERTY RIGHTS AND NUISANCE LAW

Our thesis is that the best way to deal with the challenge of air pollution is based on private property rights and nuisance law. In this perspective, pollution of the air is akin to trespass, not a negative externality or external diseconomy. Thus, pollution of the air is not an instance of a market failure. Rather, the opposite is the case: it constitutes government failure. The government has taken on the role of protecting the environment by quelling air pollution. It has done so by implementing a plethora of regulations, requirements, and prohibitions. These have been deemed necessary since the government first began its efforts in this regard by eliminating the legal possibility of suing those who emitted pollution into the air and were thus guilty of trespass. In other words, the government first disallowed the free enterprise way of solving the problem; when pollution continued, they blamed the very institution they had prohibited from operating in the first place for the problem. Then, they instituted a “solution” that would not have been needed had they not proscribed the free enterprise resolution. What should now occur? We should “turn back the clock” to what would have naturally occurred did the state not become involved: allow the victims of pollution trespass to sue for damages.

In Case You Haven't Heard…

Seattle Public Schools filed a lawsuit on Jan. 6 against a number of social media companies, claiming their content has contributed to a mental health crisis among students, Cascadia Daily News reported on Jan. 7. The district's lawsuit claims that social media companies have purposely and successfully exploited the vulnerable brains of millions of young students throughout the country, and done so for their own profitable gain. Among the social media companies being sued are TikTok, YouTube, and Meta, which owns both Facebook and Instagram. Seattle Public Schools said the companies’ for‐profit business model aims to keep consumers using their products, despite risks to their health. The 92‐page lawsuit filed in U.S. District Court in Seattle details how each accused social media company purposely creates an algorithm to capitalize on vulnerable youth. With an abundance of content throughout social media, Seattle Public Schools claims misinformation continues to be amplified for students to consume. Cited within the lawsuit, the Integrity Institute found that TikTok boosted misinformation 29 times more than other content, based on view counts of videos. Seattle Public Schools seeks “the maximum statutory and civil penalties permitted by law,” alleging that the companies have violated Washington's public nuisance law.

Chemical Pollution and Regulatory Choices at the Start of Industrialization: Comparing France and Great Britain

Abstract In both Britain and France, pollution from emergent chemical manufacturing during the early industrial era presented a choice between two regulatory approaches. One option, consistent with longstanding restrictions in both countries on the location of malodorous trades, insisted on the separation of chemical plants from (upper-class) residences. The alternative approach allowed polluting firms to operate near residences, subject to incremental technology-based mitigation. By 1810, France issued a decree that conferred on most chemical manufacturers the right to operate inside cities, subject to permitting requirements. For residents of working-class industrial neighborhoods, who never stood a realistic chance of removing polluters, a regulatory regime geared at incremental mitigation held the potential for modest environmental improvement. For wealthy landowners, however, partial technological mitigation was far inferior to the complete relief obtainable through the removal of pollution sources. France’s example loomed large over chemical pollution debates in nineteenth-century Britain. Manufacturers hoped the courts would remove locational restrictions on chemical plants, while the near absence of pollution mitigation within working-class areas alarmed liberal reformers. The road to a compromise solution patterned after France’s was impeded in Britain, however, by a deep-seated aversion to uniform, centralized pollution control. This reticence was rooted in common-law-inspired understandings of nuisance law as the sole and inviolable constitutional means for the regulation of land use. By the 1860s, through the combined impact of St. Helens v. Tipping (1865) and the Alkali Act of 1863, Britain moved towards the French approach. Nevertheless, compared with France, British law remained more protective of landowners, more reactive in its implementation, and more willing to vary required mitigation based on sociodemographic factors. Beyond its contribution to comparative environmental history, in revealing the legal-ideological underpinnings of the Franco-British divide over the regulation of early chemical pollution, this Article also seeks to shine a light on the lingering role of legal ideology within contemporary cross-national divisions over the efficacy and legitimacy of centralized technology-based regulatory instruments

Air Pollution as Public Nuisance: Comparing Modern-Day Greenhouse Gas Abatement with Nineteenth-Century Smoke Abatement

Public nuisance allows plaintiffs to sue actors in tort for causing environmental harm that disrupts the public’s use and enjoyment of the land. In recent years, state and local governments have filed public nuisance actions against oil companies, hoping to hold them responsible for the harm of climate change. Since no plaintiff has prevailed on the merits so far, whether these lawsuits are worth bringing, given the other legal avenues available, remains an open question. This Comment situates these actions in their appropriate historical context to show that these lawsuits are neither unprecedented nor futile. In particular, it examines the use of nuisance actions in the successful abatement of “the smoke evil” in the nineteenth and early twentieth centuries to illustrate how nuisance law develops over time, interacts with other forms of environmental regulation, and encourages the development of new technology. This Comment concludes that plaintiffs can in fact succeed on the merits, and, regardless of their success, climate nuisance suits can promote stricter federal regulation, serve an expressive function, and incentivize the development of air pollution abatement technology.

Oklahoma Supreme Court overturns opioid verdict against J&J

Last week, the Oklahoma Supreme Court overturned a $465 million verdict against drug maker Johnson & Johnson for its alleged role in the opioid epidemic. “We hold the opioid manufacturer's actions did not create a public nuisance,” according to the opinion. “The district court erred in extending the public nuisance statute to the manufacturing, marketing, and selling of prescription drugs.” Former Oklahoma Attorney General Mike Hunter filed the lawsuit in 2017. “Applying the nuisance statutes to lawful products as the State requests would create unlimited and unprincipled liability for product manufacturers; this is why our Court has never applied public nuisance law to the manufacturing, marketing, and selling of lawful products,” according to the opinion. In a statement, Johnson and Johnson said its “actions relating to the marketing and promotion of these important prescription pain medications were appropriate and responsible,” but also said “the opioid crisis is a tremendously complex public health issue, and we have deep sympathy for everyone affected.”

Property, Personhood, and Police: The Making of Race and Space through Nuisance Law

AbstractThis essay is concerned with public nuisance law as a space‐making project, decisively shaping property relations through speculative policing. With a focus on the Citywide Nuisance Abatement Program (CNAP) in Los Angeles, we show how the transformation of “gang‐controlled” neighbourhoods anticipates capital investment through the reformation of property. We situate the contemporary reanimation of public nuisance law in the socio‐spatial histories of racial capitalism, including colonial dispossession, the control of free and fugitive Black people, and formations of counter‐insurgency such as community policing. In doing so, we draw attention to the lawlessness of the law, which in the case of CNAP is apparent not only in its legal hybridity but also in its preemptive logics of surveillance, criminalisation and banishment that target racial others.

The Public Right and Wrongs: Tort Theory and the Problem of Public Nuisance

Abstract Tort theory over the past two decades has been characterized by a fruitful dialectic between two models. Instrumentalism, especially, in its deterrence mode, has been promoted by a wide coalition of scholars and jurists. In response, various critics of instrumentalism have argued for the autonomy of tort law, first under the umbrella of corrective justice and later under civil recourse. The success of civil recourse depends in part on its ability to explain emerging areas of focus in tort law. One such area is public nuisance, which, despite some setbacks, is viewed by the plaintiffs bar, state actors, and some members of the academy as an effective tool to address significant social problems, such as the opioid crisis. This article asks whether, and how, civil recourse theory can accommodate modern public nuisance law.

Living Together as Neighbours: Rethinking the Reasonableness Standard in Nuisance Law Under the Constitution

The Covid-19 pandemic, with its concomitant "stay at home" catchphrase, has certainly made living together as neighbours in a constitutional dispensation more tangible. Conflicts between neighbours will inevitably increase, especially in a time when citizens from different social, cultural, customary or religious backgrounds and with different rights and interests are restricted to the boundaries of their properties as a result of the Covid-19 pandemic. The pandemic has provided us with the impetus to reflect upon the notion of "reasonableness" in neighbour law, particularly nuisance law in the narrow sense. In this context the role of neighbour law is ordinarily to regulate the relationship between neighbours. Therefore, neighbour law is crucial in that it resolves conflicts that arise between neighbours due to their everyday use of their properties. Whether the nuisance is objectively reasonable or goes beyond that which can be reasonably tolerable under the circumstances requires weighing up various factors dependant on the prevailing circumstances, rights, interests, values and obligations of the neighbours and the community. In the constitutional dispensation, based on the values of human dignity, equality, and freedom, this may inadvertently require courts to balance out and reconcile often opposing constitutional rights. To this end the underlying principle of nuisance law encapsulated in the phrases "give and take" and "live and let live" arguably already encapsulates the notion of balancing respective rights (constitutional or otherwise) and interests given the context of each case. However, courts do not always correctly apply the reasonableness test in a principled and coherent fashion, as illustrated in Ellaurie v Madrasah Taleemuddeen Islamic Institute 2021 2 SA 163 (KZD). This may lead to the conclusion that constitutional rights are ignored when the reasonableness test for nuisance law is applied. It is necessary to reconceptualise the reasonableness test in order to ensure that the common law is infused with constitutional values. There are numerous ways in which the ideals and values of the Constitution of the Republic of South Africa, 1996 (and even specific constitutional rights other than property rights) could be advanced if courts were more willing (not being held back by conservatism) and able (equipped with the necessary vocabulary) to apply the common law in line with the Constitution. It is pivotal that courts apply the reasonableness test correctly, considering all the relevant circumstances of the case, including the broader constitutional values and ideals such as ubuntu. It is arguable that if this were done, nuisance law would have a greater potential to incorporate a wider range of rights, interests and values so that the outcomes would be fairer and more equitable, which is, after all, the goal of the reasonableness standard in neighbour law.

Fearn v Tate Galleries: Privacy and the law of nuisance

This note considers the decision of the Court of Appeal in Fearn v Tate Galleries. It considers the Court’s decision specifically with regards to whether the law of private nuisance discloses an action in pure overlooking cases. It argues that as a matter of historical precedent, the Court of Appeal is correct in assessing that the weight of authority argues against such an action. It then analyses how the Court of Appeal’s reasoning can be viewed from the lens of understandings of property and ownership, and as part of the discussion of the interaction between planning and private law.

Liability for Climate Damage under the German Law of Torts

With the case of Lliuya v. RWE, climate change litigation has come to Germany. The article explores the German law of torts or delict, asking whether it has something to offer to victims of climate change. The essential elements of negligence liability, i.e. scope of protection, duty of care, breach of duty, regulatory compliance defense, are examined. Another important category is the law of nuisance. As it turns out, the German of delict attaches many strings to a successful damages claim.

Public Nuisance Law When Politics Fails

Public nuisance lawsuits provide a vehicle for litigants to address public problems that legislatures and agencies have sidestepped. The courts have generally rejected such suits, directing litigants back to the very legislatures and agencies that allowed the problems to fester in the first place. This article proposes a normative framework for judges to evaluate public nuisance claims, balancing democratic legitimacy, technical competency, and the magnitude of the harm. This approach has several important implications, including that courts should stop avoiding reaching the merits of nuisance claims by relying on preemption and abstention doctrines, as they have done with recent claims involving Covid-19, interstate air pollution, and climate change. Another implication is that, contrary to leading commentators and some courts, public nuisance liability sometimes should encompass the manufacturing and distribution of products that result in health crises, such as the opioid addiction crisis. Public nuisance law is not a panacea, but it can play a constructive role in dealing with public harm when politics fails.