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

Publication Date

10-2021

Journal

Journal of Tort Law

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.

Volume

14

Issue

2

First Page

531

Last Page

550

Publisher

De Gruyter Brill

DOI

10.1515/jtl-2021-0032

Keywords

civil recourse, public nuisance, tort theory

Disciplines

Jurisprudence | Law | Torts

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