Public Nuisance Research Articles

LAWYERS, GUNS, AND MONEY: WHY THE TIAHRT AMENDMENT’S BAN ON THE ADMISSIBILITY OF ATF TRACE DATA IN STATE COURT ACTIONS VIOLATES THE COMMERCE CLAUSE AND THE TENTH AMENDMENT

The Tiahrt Amendment provides in relevant part that ATF trace data be inadmissible in evidence, and shall not be used, relied on, or disclosed in any manner, nor shall testimony or other evidence be permitted based on the data, in a civil action in any State (including the District of Columbia) or Federal court... This Amendment has hamstrung cities and localities which, in an effort to combat crime with civil litigation, have brought actions against the gun industry sounding in public nuisance, with trace data being crucial to the success of such actions. Because this Amendment regulates state as well as federal court proceedings, it is defensible, if at all, under Congress’ Commerce Clause power.President Obama backed away from a campaign promise to repeal the Amendment, but the Amendment appears vulnerable to constitutional attack. In United States v. Lopez, the Supreme Court found that the Gun-Free School Zones Act (GFSZA) of 1990 exceeded Congress' Commerce Clause power because it was directed at criminal conduct, not commerce, and in Printz v. United States, it found that interim provisions in the Brady Handgun Violence Prevention Act violated the Tenth Amendment because they purported to direct state executive officers to participate in the administration of a federally enacted regulatory scheme. This article argues that the state court evidentiary provisions on the Tiahrt Amendment are not meaningfully different from the GFSZA and the interim Brady provisions, rendering them similarly indefensible under the Commerce Clause and the Tenth Amendment.

The Public Nuisance Paradigm: Changes in Mass Media Coverage of Political Protest since the 1960s

This study examined coverage of protests in five major newspapers in the United States between 1967 and 2007, and found that during that time period, protests were depicted as a nuisance. Such depictions are attributed to the rise of a “public nuisance” paradigm in coverage of protests, theorized to be linked to an increased conservatism in America, and driven by the notion that protests are a bothersome interruption of everyday activities, as well as ineffective and unpatriotic. Discussion of protests as nuisances increased substantially across time, and ideologically liberal protests were treated as nuisances more often than were conservative ones.

Expansion of Liability under Public Nuisance

1 * Executive Director, Searle Center on Law, Regulation, and Economic Growth, Northwestern University. Phone: (312) 503-0290; Email: hbutler@law.northwestern .edu. ** Foundation Professor of Law, George Mason University School of Law. 3301 N. Fairfax Dr. Arlington, VA 22201Phone: 703-993-9484; Fax: 703-993-8088; Email: Tzywick2@gmu .edu; Web: http:// mason.gmu .edu/ ~tzywick2/ . Searle Center Public Nuisance Roundtable

Market Share Liability in Personal Injury and Public Nuisance Litigation: An Economic Analysis

This paper analyzes the legal doctrine of market share liability from an economic perspective. It explains the underlying economic, or quasi-economic, basis for the doctrine: to obtain appropriate cost internalization of harm-causing behavior where it is not possible to identify which of many producers of identical harm-causing products harmed any single victim. The paper discusses the recent extension of the concept in the lead paint litigation in the U.S. in both products liability and public nuisance cases. The article discusses the very particular requirements necessary for the doctrine to appropriately internalize costs. It also discusses the implications of the passage of time as between manufacture and harm for the application of the doctrine and addresses the view that market share liability can effectively provide a form of insurance for loss. The article shows that application of the doctrine of market share liability serves in many contexts—including with respect to lead paint—chiefly as a form of taxation, which cannot generally be defended on social welfare grounds.

The Economics of Public Nuisance Law and the New Enforcement Actions

In contrast to the traditional legal commentary, I find nuisance law to be a coherent body of rules that serves an explainable function. Nuisance optimally regulates activity levels. Nuisance law induces actors to choose socially optimal activity levels by imposing liability when externalized costs are far in excess of externalized benefits or far in excess of background external costs. The new enforcement actions for lead paint abatement or gun control purposes have an arguable theoretical basis in nuisance law. However, as currently framed, the lawsuits are inconsistent with significant parts of the doctrine and the theory.

The Mismatch Between Public Nuisance Law And Global Warming

This article makes three principal points regarding the recent efforts to use public nuisance litigation to address the problem of climate change. First, the courts should not invoke the political question doctrine to dismiss such cases but instead focus on lack of private party standing and the impossibility of proving causation as grounds for dismissal. Second, the courts and commentators would better understand the disadvantages of common law litigation as a means of addressing climate change if they conceptualized climate change as not a traditional pollution problem with a polluter and victim of pollution but rather as a large-scale commons resource management problem. Finally, state legislative action to address climate change is likely to be more effective and less overreaching than regulation via public nuisance litigation, and may be needed to prompt responsible action by the federal political branches. The courts can facilitate responsible state legislative action by following approaches to fede...

Sound System Nation: Jamaica

Several years ago, I started gathering interest in mobile initiatives committed to social and political causes in Australia called “sound systems”. The likes of Labrats and other vehicles for the performance of postcolonial desires had been rallying the disaffected to wild and weird frontlines, pursuing, as techno-activist mover and shaker Pete Strong (aka Mashy P) once said, “a sound system for all”. Back then, I’d become excited by these proactive and convivial mobilisations. Responding to local ecological and humanitarian issues, and fed by developments in electronic music culture, a groovement was afoot. Becoming interested in the roots of these developments, one path took me in the direction of the original spinners, the UK’s Spiral Tribe, whose anarchist antics ap-pealed to thousands of tekno-travelers and sonic squatters, attracting the law in the form of a four month and £4 million trial in 1994 that eventually saw Spiral Tribe participants acquitted of the charge of “conspiracy to cause a public nuisance”. The Spirals then kicked off the European and worldwide freetekno movement – whose chief cultural expression is the teknival.

Evaluation of a Field-Scale Surface Aeration System in an Anaerobic Poultry Lagoon

Odor from animal feeding operations (AFOs) is a leading public nuisance that livestock and poultry producers face frequently. The objective of this study was to evaluate a field-scale surface aeration system to minimize odor from an anaerobic poultry lagoon in Texas. The aeration module consisted of three aerators, each aerator contained two venturi air injectors arranged in parallel and connected to a perforated PVC pipe network that aerated a site of 23 m 23 m. The pipe network in the aeration system was placed 0.30 m below the liquid surface for aerating the lagoon. To compare the effect of aeration on lagoon odors and other parameters, a non-aerated (control) site was established about 30 m away from the aerated site to minimize treatment interference. Automatic samplers were used to collect effluent samples from each site at a depth of 0.30 m below the liquid surface once a week for 14 weeks. The samples were analyzed for changes in biochemical oxygen demand (BOD5), volatile fatty acids (VFAs), solids, and nutrients concentrations. Real-time dissolved oxygen and water temperature were also monitored by deploying sensors at the same depth. Six air samples (three each from aerated and non-aerated sites) were collected once a week in 10-L Tedlar bags and were analyzed for odors (dilution to threshold, DT), ammonia (NH3), and hydrogen sulfide (H2S) concentrations. Average DO and NH3 concentrations from aerated liquid were significantly (p<0.05) higher (62% and 27%, respectively) than the non-aerated liquid. On the other hand, DT value in the aerated site was significantly lower (50%) than the non-aerated site. Average H2S and BOD5 concentrations in the aerated site were about 16% and 13% lower, respectively, than the non-aerated site for the liquid and air samples collected three days after flushing, although these concentrations between the two sites were not significantly different (p>0.05). There were no significant differences in solids and nutrient concentrations between aerated and non-aerated site. These results demonstrated that surface aeration is effectively reducing odor and H2S concentrations and increasing NH3 concentrations in the aerated site as compared to the non-aerated. Struvite build-up in the lagoon liquid circulation pump, venturi injectors and the PVC pipe network, and clogging of strainers and PVC pipe aeration holes with lagoon surface scum and egg-shells required frequent cleaning and maintenance of the aeration system.

Anti-Social Powers and the Regulation of Street Sex Work

This article focuses on the use of anti-social behavior powers in relation to a group of vulnerable women – street sex workers. It illustrates how the use of legal tools – anti-social behavior orders and public nuisance injunctions – against sex workers has been both misplaced and ineffective. The article also considers the use of anti-social powers in light of the government's leaning towards the coercive (or some might argue the compulsory) rehabilitation of sex workers. In doing so, it draws attention to the lack of research on the impact of both exclusion orders and rehabilitation orders for sex workers. Whilst it is important to fill this knowledge gap, it is argued that future investigations in this area would benefit from social network research approaches.

Testimony on Ohio H.B. 323 - Foreclosure and Public Nuisance Reform

This brief testimony discusses Ohio's need for policy tools to address lienholder walkaways and certain vacant and abandoned properties

Opposing striptopia: The embattled spaces of adult entertainment

While adult entertainment venues offering striptease have proliferated in the UK, recent reforms have subjected them to more onerous and restrictive forms of licensing control. This article examines the justification for this re-regulation, noting that debates around the desirability of such venues have become increasingly framed in terms of gendered exploitation rather than sexual liberation and ‘play’. Noting that such debates often conflate questions of public morality, criminality, nuisance and exploitation in unhelpful ways, this article argues that the reform of the licensing law was underpinned by possibly flawed assumptions about the gendered and sexed nature of adult entertainment. The article accordingly emphasizes the ability of the naked body to excite both desire and disgust, and challenges the assumption that commercial sex is always exploitative.

Corridors, local food resources, and climatic conditions affect the utilization of the urban environment by the Black‐headed Gull Larus ridibundus in winter

AbstractBlack‐headed Gulls Larus ridibundus (BHGs) in urban areas are a public nuisance. The aim of this study is to investigate the factors affecting the occurrence and abundance of the BHG foraging in urban areas in winter. The study was conducted in the city of Krakow (southern Poland) in four easily identifiable urban habitats: (1) areas with blocks of flats, (2) areas with congested housing, (3) detached single‐family housing and (4) green areas. In each of these four habitats, 60 small (1‐ha) plots were randomly chosen, and the bird's presence and abundance were noted. Results revealed that birds occurred most frequently and in the largest numbers in plots with blocks of flats and green areas as well as plots located close to rivers and water reservoirs. This highlights the importance of ecological corridors and stepping‐stones for the presence of this species in the city. Food resources had no effect on the presence of the gulls but the abundance of the species was positively correlated with the number of litter‐bins. This indicates that local food resources could be more important than large landfills for this species in urban habitats during winter. No human disturbance indices had an effect on the occurrence and abundance of the BHG. Higher temperature and lack of snow cover positively affected utilization of the urban habitats by the species that indicates that global warming may speed up synurbanization of the BHG. To control the number of BHGs in urban areas, we suggest preventing access to local food resources by placing litter bins with waste baskets that are inaccessible to animals. Also, the public should behave appropriately towards gulls and refrain from feeding them intentionally.

Ecological Destruction vis-à-vis Environmental Jurisprudence in India: A Survey

Judicial awakening and activism for protection of the environment in India began formally after the 1972 Stockholm Conference on Human Environment. The term judicial activism denotes a process where at one end there are the logically principled rules in the hands of court and at other end there are demands, desires for expectations of society pressing it to accommodate with the framework of law. This process of accommodation by court is called the civilization of law and in term is known as activism. Environmental provisions are introduced in the Constitution of India by its 42 amendment in 1974 under Article 48 (A) and 51 (A) (g) as a “fundamental duty” for every state and citizen of India to protect and improve the natural environment. Several laws pertaining to the protection of the environment were enacted in India prior to it. There were a number of public laws existed which had environmental overtones. The Indian Penal Code, 1860 and the Code of Criminal Procedure, 1898 (amended in 1973) dealing with “public nuisance” assume special significance in this regard. The Environmental Protection Act, (EPA) of 1986 against industrial pollution and the Conservation of Forest and Natural Ecosystems Act of 1994 to stop deforestation and habitat destruction are, among others, good pieces of legislation for the protection of the environment in India. Public Interest Litigation (PIL) to prevent environmental degradation has been increasing in India and the judiciary has come to rescue the people on a number of occasions. There are several historic judicial decisions serving both man and environment in India.

U.S. Legal Responses to Climate Change (French)

In this paper presented at the University of Paris March 13, 2009 Symposium, Climate Change and its Legal Challenges, Professor Bach reflects on the U.S. experience of climate change litigation in the last five years. Facing legislative inaction at the federal level, a number of nongovernmental organizations, states and municipalities, and individuals have argued that existing federal law like the Clean Air Act and National Environmental Policy Act, and state law like public nuisance can be used to remedy specific climate change harms. Bach describes how these suits, along with state climate change statutes, have provided the Obama administration tested legal tools for crafting federal climate change law.

Swine Flu: Public Health has become a Public Nuisance

The combination of speculative scaremongering by national health authorities and increasingly absurd directives to GP surgeries in response to the current flu outbreak confirm that public health has become a public nuisance. In July this year health minister Andy Burnham announced that the swine flu pandemic could no longer be contained and there could be 100 000 cases a day by the end of August.1 In response to the suggestion from a TV interviewer that this could mean 40 deaths a day, Chief Medical Officer Liam Donaldson agreed that this was possible, and that it could be higher.2 Burnham conceded that his figure was ‘a projection’ not a fact — he meant that it was a speculation based largely on ignorance, similar to previous (unfulfilled) predictions of catastrophic mortality from AIDS, ‘mad cow’ disease and bird …

Judicial Activism in Curbing the Problem of Public Nuisance to Environment in India

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 jurisprudence in India through the recognition of the principle of Sustainable Development. However, the actions of the judiciary has 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 jurisprudence in India and to find out whether judicial activism can actually lead to sustainable development.

Personal Injury, Public Nuisance, and Environmental Regulation

(2009). Personal Injury, Public Nuisance, and Environmental Regulation. King's Law Journal: Vol. 20, No. 1, pp. 129-136.

FIGHT BLIGHT: CITIES SUE TO HOLD LENDERS RESPONSIBLE FOR THE RISE IN FORECLOSURES AND ABANDONED PROPERTIES

Part II of this Article will describe the problems associated with abandonment, including the blight on surrounding neighborhoods, and the difficulty cities experience in trying to hold lenders accountable for abandoned properties. Lenders apparently did not do anything to prepare for the mortgage foreclosure meltdown. Some lenders instead place responsibility upon others, complain about the damage to their property, and let neighborhoods and cities suffer the consequences. Part III of the Article analyzes the civil and criminal nuisance abatement proceedings available to city officials to make lenders responsible for their abandoned properties. This part explains why these proceedings, which usually handle only one property at a time, are insufficient to remedy the effects of foreclosure and abandonment given the current volume of abandoned properties. Part III also analyzes mass litigation cases filed by Baltimore, Buffalo, and Cleveland. Those cases aim to hold multiple lenders accountable on the grounds that the lenders violated either federal housing discrimination laws or state public nuisance statutes. For cities coping with a substantial spike in foreclosed and abandoned properties, Part III recommends that these cities pursue mass nuisance litigation against lenders with a substantial jurisdictional presence, either through the number of foreclosure proceedings filed or the number of mortgages held on abandoned properties within the cities’ jurisdictions. Part IV describes the incorrect assumptions that homeowners, lenders, and other stakeholders have held about municipal governance and the housing and lending markets and explains how these assumptions have exacerbated the foreclosure and abandonment problem. Part IV analyzes how these assumptions can be changed through legislative action to cause stakeholders to act in ways that protect communities from destabilization during the foreclosure crisis. To combat the spread of abandoned properties, Part IV proposes comprehensive legislative measures designed to motivate lenders to implement plans to keep borrowers in possession of their homes either as mortgagors or as tenants and to incentivize lenders to maintain their collateral as any responsible corporate citizen would do.

Lead Paint is Not a Public Nuisance

This article summarizes the Rhode Island lead paint case decision at both the trial and supreme court levels. At trial the jury held that certain manufacturers of lead paint were liable for abatement of the lead paint in Rhode Island. The trial court refused to dismiss the case. On appeal the Rhode Island Supreme Court dismissed the case because no public right had been harmed and the lead paint manufacturers did not have control over the lead paint at the time the injuries occurred.

Deciphering the Chemical Soup: Using Public Nuisance to Compel Chemical Testing

The problem of toxic ignorance plagues modern society. On a daily basis, each of us is exposed to hundreds of chemicals, the vast majority of which have been subject to little or no testing to determine whether they are toxic to humans or the environment. Many of these chemicals may turn out to be harmless. Some, however, may cause cancer, reproductive defects, and other harms. In toto, chemicals are believed to be responsible for tens of thousands of deaths per year. The problem of toxic ignorance is the rational response of chemical manufacturers to marketplace incentives, tort liability rules, and chemical regulatory mechanisms. To address the systematic failure of manufacturers and distributors to test chemical substances, this Article proposes the recognition of a new type of public nuisance to compel chemical testing. In contrast to conventional toxic tort litigation, which requires a showing of physical injury, the failure to test itself would constitute a public nuisance. Inadequate testing puts the public health at risk, and the resultant lack of information undermines the ability of governments and individuals to protect public health. In addition to explaining the basis for applying public nuisance doctrine to the failure to test, the Article also examines practical considerations relating to how courts would enforce the duty to conduct testing.