From opioids to firearms, and from lead paint to global warming, reform advocates have increasingly turned to courts to tackle major policy problems. Frustrated by the slow pace of legislative and regulatory change, advocates have seized on the common law doctrine of public nuisance to address widespread public policy issues.
Most such lawsuits have been unsuccessful. But some courts are beginning to side with plaintiffs on the grounds that public nuisance is intended to be a “gap filling” measure that provides remedies for problems outside the reach of legislative and executive authority. Other courts, and litigation critics, claim the novel legal theory stretches the common law far beyond its intended boundaries, intrudes into areas better left to elected branches of government, and penalizes defendants for past behavior they had no reason to believe was wrong or unlawful.
Is public nuisance the right approach for addressing these major policy matters? Thank you to our panel of experts who discussed and debated the issue:
Stuart Nincehelser, Director, Congressional Civil Justice Academy, George Mason University Law & Economics Center
See below for photos and recording of the event!