Private Law Theory

Abstract:
Rights-based approaches to tort law have been prominent in recent years in theoretical discussions of tort law. Much of this work has been either highly abstract or focused on a small number of torts like negligence or trespass. Allan Beever’s The Law of Private Nuisance attempts to extend this approach to the tort of private nuisance. Central to his account is the view that the law of nuisance is concerned with prioritising law uses, and that what the law calls ‘nuisance’ is really a case of one land use conflicting with another, higher-ranked one. This essay argues that despite claims to being internal to the law, this approach does not match the law. Furthermore, assessed on its own, it suffers from serious problems that make it difficult to implement in addressing the kind of real-world problems that nuisance law is meant to solve.

Dan Priel, ‘Review Essay: Land Use Priorities and the Law of Nuisance’. (2015) 39(1) Melbourne University Law Review.

First posted 2015-08-06 06:41:30