ABSTRACT
Public nuisance has always been defined in term of the object of protection – the community, the public, or perhaps even the state as a whole. Public nuisance in this regard has been juxtaposed to private nuisance, which protects individual persons and their use and enjoyment of land. Commentary on public nuisance has thus long been concerned with defining (without notable success) what it means to advance a public as opposed to a private right.
In this paper, I offer a different take on the function of public nuisance. The common law is designed to provide redress for actual harm, whether it be the breach of a contractual promise or an injury to person or property caused by the defendant’s tortious act. The requirement of actual harm, in turn, may be related to the standard form of relief at common law, which is money damages. Damages are easier to calculate when actual harms can be identified and measured.
The limitation to actual harm, however, leaves a major lacunae in the common law: How can the system protect persons against the risk of harm? My contention is that a central function of public nuisance was to supply – however imperfectly – a form of regulation of risks that had not yet resulted in actual harm.
Merrill, Thomas W, Public Nuisance as Risk Regulation (November 9, 2021). Columbia Law and Economics Working Paper No 655, Columbia Public Law Research Paper No 14-696.
First posted 2021-11-16 09:00:55
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