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Leslie Kendrick, The Perils and Promise of Public Nuisance, _ Yale L. J. _ (forthcoming 2023), available at SSRN.

On its face, there is a certain hypocrisy to the fact that governments permitted private parties to distribute massive amounts of opioids, stood on the sidelines as overuse and misuse created a deadly toll, and, only after the fact, sued for damages through torts like public nuisance. Why is it that after state legislatures fail to prevent public harms, state attorneys general can swoop in and collect big dollars on legal claims for harms done to the public?  And why do companies, through settlements, accede to attorneys generals’ demands?

In her thoughtful article, The Perils and Promise of Public Nuisance, Professor Leslie Kendrick explores public nuisance claims—claims for unreasonable interference with a right common to the general public. Kendrick pays particular attention to public nuisance actions in the opioid litigation. Kendrick identifies three main critiques of the public nuisance doctrine and then proceeds to dismantle each one. To traditionalists, who suggest that the public nuisance tort has extremely narrow contours, Kendrick outlines the robust history and scope of the tort, invoking no less than Blackstone, to show that the ancient tort was not so limited. Kendrick is undoubtedly right in this critique, as is evident from even a quick perusal of early torts treatises in the United States as well.

To formalists, who argue that public nuisance is not a tort or that the tort undermines other forms of tort liability and regulation, (Tom Merrill’s Is Public Nuisance a Tort?, is in the crosshairs here) Kendrick highlights a number of counterpoints. Specifically, Kendrick compares public rights, in which the community’s interests are infringed, to private rights, in which individuals vindicate their own interests. Kendrick also highlights state statutes that specifically authorize a broad array of nuisance claims. To Merrill’s admonition that a public nuisance should always be based on a crime, as defined by statute, Kendrick articulates the broader historical frame in which criminal law was once a matter of common law too. “To say that public nuisance today must be defined by statute is to take a historical view of public nuisance—focusing on its criminal-law origins—but an ahistorical view of criminal law—disregarding the common-law flexibility it used to possess.” (P. 50.) Apparently, across the pond, public nuisance is still a common-law crime today. (Id.)

To Merrill’s claim that public nuisance is problematic as a tort because it focuses on a condition (the defendant’s interference with a public right) rather than on the defendant’s unreasonable conduct, Kendrick’s response is multifaceted. First, Kendrick shows that wrongful conduct plays an important role in contemporary nuisance doctrines and litigation. “Whether it is tobacco, opioids, lead paint, etc., generally it has come to light that manufacturers had a very good idea of the risks they posed and often went to great lengths to conceal the level of risk from regulators, intermediaries, the public, or all of the above.” (P. 55.) In addition, Kendrick notes that even when there are pockets of strict liability in the public nuisance tort, those pockets fit comfortably alongside other tort and regulatory doctrines—for example, abnormally dangerous activities and CERCLA liability.  Finally, Kendrick frames the public nuisance tort as akin to other tort doctrines such as affirmative duties to reduce the risks created by conduct that was originally non-tortious. The example here is abandoning a trailer in the road for good reason, but then failing to come back and retrieve it. (P. 64.)

To institutionalists, who argue that the public nuisance tort is unnecessary, or worse, a usurpation of criminal, regulatory, and better-defined tort law, Kendrick is somewhat sympathetic.  She ultimately is persuaded by the other side to the story, however, looking at “what damage might occur, or go unaddressed, in [public nuisance’s] absence.” (P. 80.) Here she outlines regulatory failures in the opioid context in particular. Contemporary environments of regulatory inaction and failure may not be so different from the regulatory absence of earlier times (when public nuisance claims were robustly recognized). (P. 82.) Kendrick also highlights fraud on regulators as a key element of the regulatory inadequacy. To Kendrick, public nuisance actions are a tool for causing nuisance creators to “internalize their massive externalities.” (P. 87.) Moreover, public-health litigation may complement regulation—hastening safety-related solutions in the public interest.

In the final analysis, Kendrick views the public nuisance tort in a salutary way—“as a way of enforcing duties we all owe to each other in our status as members of the public.” (P. 89.) More particularly, those who “create a condition that gives rise to [an interference with public right] have a duty of care to mitigate it through reasonable steps.” (Id.) With an eye toward the tort’s promise, Kendrick outlines some institutional safeguards to be applied on a case-by-case basis. For example, preemption can attend to separation of powers concerns in some cases. Moreover, transparency rules can ensure that private attorneys’ fees are disclosed and that governmental officials retain ultimate decision-making authority about court cases. In terms of financial compensation, settlements and monetary awards should be earmarked to serve the public purpose for which the government ostensibly sued, not simply left to fill state coffers.

Through her articulation of and response to public nuisance critiques, Kendrick ably catalogues many of the tensions inherent in contemporary public nuisance litigation. Her examination of past and present doctrine is a must-read for those who wish to fashion the tort’s future. Courts and advocates on both sides of the public nuisance debate must confront the traditional doctrines and formal understandings of the tort, as well as arguments about appropriate institutional reach.

While Kendrick endorses the promise of the public-nuisance tort, she does not see tort actions as “a first-best solution.” (P. 93.) Rather, she sees public nuisance as a tool to alleviate risks or harms through monetary measures only when prevention has failed.

But as Kendrick bolsters the legitimacy of the tort action, her fine article leads a reader to wonder whether permitting and pricing risks is not merely the second-best function of public nuisance doctrine, but the doctrine’s very goal. Public nuisance damage claims permit actors to risk harm to others, cause harm, and pay.  Could it be that the tort is not a stop-gap measure designed to address regulatory failure to prevent harm, but instead an instantiation of the liability rule itself, in which risks are deliberately permitted and priced? Public nuisance creators can pose risks of harm to the public welfare, but when those risks are realized, compensation will be required. Seen through such a lens, the paradox of permitting states to ignore risks and then sue for damages may not be a conflict at all. Instead, it may be the usual goal of tort liability rules.

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Cite as: Ellen Bublick, When Regulation Fails?: Public Nuisance Liability as Fallback Option or Policy Plan, JOTWELL (August 12, 2022) (reviewing Leslie Kendrick, The Perils and Promise of Public Nuisance, _ Yale L. J. _ (forthcoming 2023), available at SSRN), https://torts.jotwell.com/when-regulation-fails-public-nuisance-liability-as-fallback-option-or-policy-plan/.