The Perils and Promise of Public Nuisance.

• Author: Kendrick, Leslie

ARTICLE CONTENTS INTRODUCTION 705 I. ORIGINS 711 A. Public Nuisance: A Brief History 713 1. Public Nuisance at Common Law 713 2. Public Nuisance in the United States 718 3. Contemporary American Public Nuisance 721 B. The Opioid Crisis: A Brief History 728 C. The Opioid Public-Nuisance Litigation 731 II. THE TRADITIONALIST CRITIQUE 736 III. THE FORMALIST CRITIQUE 741 A. Public Nuisance and the Nature of Tort 743 1. Public Nuisance, Common Law, and Criminal Law 745 2. Public Nuisance, Torts, and Remedies 747 3. Public Enforcement and Public Rights 749 4. Public Nuisance and Torts as "Relational" Wrongs 752 B. Public Nuisance and Tort Doctrine 755 1. Conduct, Conditions, and Tortiousness 755 2. Public Nuisance and Strict Liability 758 C. Refraining Public Nuisance 762 IV. THE INSTITUTIONAL CRITIQUE 767 A. The Perils of Public Nuisance 769 1. Delegation and Separation of Powers 769 2. Federalism and the Administrative State 771 3. Agency Costs 774 B. The Perils Without Public Nuisance 778 1. Regulatory Failures 779 2. Fraud and Noncompliance by Regulated Entities 781 3. Absence of Redress from Conventional Tort 782 C. An Institutional Role 785 V. THE PROMISE OF PUBLIC NUISANCE 787 CONCLUSION 790 Why is making obscene telephone calls like laying manure in the street? Answer: in the same way as importing Irish cattle is like building a thatched house in the borough of Blandford Forum; and as digging up the wall of a church is like helping a homicidal maniac to escape from Broadmoor; and as operating a joint-stock company without a royal charter is like being a common [s]cold; and as keeping a tiger in a pen adjoining the highway is like depositing a mutilated corpse on a doorstep; and as selling unsound meat is like embezzling public funds; and as garaging a lorry in the street is like an inn-keeper refusing to feed a traveller; and as keeping treasure-trove is like subdividing houses which so "become hurtful to the place by overpestering it with poor." All are, or at some time have been said to be, a common (alias public) nuisance. (1) INTRODUCTION

Public nuisance has lived many lives. A centuries-old doctrine generally defined as "an unreasonable interference with a right common to the general public," (2) it has recently served as the backbone for more than three thousand opioid lawsuits across the country, as well as hundreds more seeking to hold producers of greenhouse gases accountable for climate change. (3) Twenty-five years ago, it provided the architecture for the lawsuits that impelled the tobacco industry to historic settlements of $246 billion with all fifty states. (4) It has also spurred hundreds of mostly unsuccessful actions across the nation involving, among other things, handguns, (5) lead contamination, (6) water pollution, (7) and predatory lending. (8) Decades earlier, at the turn of the last century, officials used it to abate sewage discharge into rivers, (9) to "repress the nuisance of bawdyhouses," (10) and to shut down a high-profile labor strike. (11)

All of this and more stems from a single cause of action developed in medieval England to allow the Crown to remove impediments from public roads and waterways. (12) In the past decades, this common-law oddity has generated thousands of lawsuits in which state officials have sued private companies for the negative impact of their products or activities on public health and welfare. Through these actions, public nuisance has influenced American tort litigation and exerted an undeniable regulatory impact.

The opioid lawsuits highlight the two ways in which public nuisance is central to modern mass-tort litigation. First, the opioid lawsuits invariably contain public-nuisance claims. The plaintiff state, local, and tribal governments claim that the opioid products made or distributed by the defendants are a public nuisance under relevant state law--that is, that they constitute an unreasonable interference with a right held by the general public, in this case by jeopardizing public health and welfare. The plaintiffs make other claims too, such as state-law claims for fraud, deceptive marketing, corrupt practices, and unjust enrichment. (13) Nevertheless, public-nuisance claims are a central feature of the litigation and a key to its momentum.

Second, no matter what the specific claims, public nuisance provides the template for the structure of opioid litigation and other suits like it. One striking feature of public nuisance is that it permits state officials to sue parens patriae--literally as "parent of the nation," on behalf of the people of a jurisdiction--for an infringement on public rights by a private actor. (14) Other types of parens patriae claims exist, but public nuisance was an early example (and an inspiration to other types of suits), which provides public actors with a ready and familiar template. (13) In modern instances, such as tobacco, opioid, and climate-change litigation, the litigation adopts the architecture of a public-nuisance suit, with an official (such as a state's attorney general or a locality's district attorney) suing on behalf of the public. That these suits involve a variety of other claims should not lead us to assume that they would exist in the same manner absent the public-nuisance template. To the extent that such suits are now common, the structure of public nuisance has made a lasting imprint on American tort law. (16)

Although its substance and structure are embedded in modern American tort law, public nuisance occupies an uncertain, somewhat liminal position. It is virtually unknown to the general public, little discussed outside of litigation circles, and often ignored even in torts class. When it is discussed, it raises fraught questions. Is it even a tort? If not, what is it? Does its very existence threaten tort law? The regulatory state? Separation of powers as we know it? (17) All in all, public nuisance exerts potentially powerful, but highly variable, real-world force, while provoking equally variable reactions from courts and commentators.

Here, too, the opioid litigation is illustrative. Every single state in the Union has sued opioid manufacturers or distributors, as have thousands of localities and some tribes. (18) These suits have generated billions of dollars in settlements. (19) At the same time, however, those proceeding to trial have met with mixed results. For example, in the first opioid case to go to trial in the country, an Oklahoma judge applying state public-nuisance law found Johnson & Johnson liable to the State of Oklahoma for $465 million. (20) This trial judgment came after Oklahoma had settled identical claims with Purdue Pharma for $270 million (21) and with Teva Pharmaceuticals for $85 million. (22) But on cross appeal, in which the Oklahoma Attorney General claimed that the rightful amount owed by Johnson & Johnson was twenty times the trial judgment, (23) the Oklahoma Supreme Court overturned the judgment and concluded that Johnson & Johnson could not be held liable under Oklahoma public-nuisance law at all. (24)

Notwithstanding mixed trial results, opioid litigation has imposed billion-dollar obligations, generated what some have called "the largest civil action in U.S. history," (25) and emerged as perhaps one of the few issues in these fractious times on which all fifty state attorneys general have agreed. (26) Whatever else the opioid litigation will ultimately accomplish, it has underscored that public nuisance's role in the tobacco litigation was not a fluke and that we should not expect the opioid litigation to mark its last appearance. Whenever regulatory and legislative processes are perceived to have failed to address a public-health or welfare issue with catastrophic effects, public nuisance will remain an attractive option to executive-branch actors, a possible avenue for courts, and a potential liability for defendants.

Yet, the current suits and their resolutions encapsulate all of the conflicting attitudes toward public nuisance within the law. Public nuisance has driven massive and historic settlements but has, at best, a checkered record in the courtroom. It is a powerful tool, but one toward which many express ambivalence. The Restatement (Third) of Tons: Liability for Economic Harm, for instance, dismisses public-nuisance liability for products (such as tobacco or opioids) in a single comment. (27) Some say that public nuisance is neither fish nor fowl, neither crime nor tort, and should be cast off into the box of antique legal trinkets with no modern use. Some say that to do otherwise is to ignore, and ultimately to undermine, the progress of the contemporary administrative state. (28)

This Article uses the opioid litigation to explore the three most common forms of objection to public nuisance. These are (1) traditionalist, (2) formalist, and (3) institutionalist. Traditionalist objections hold that public nuisance should cover only the situations for which it was originally designed--for example, blockage of public roadways or waterways. I show that, to the contrary, public nuisance has for centuries addressed problems such as harmful products and services, and its modern usage can find firm roots in tradition. I explore why courts and commentators in this context feel compelled to reject both centuries of doctrinal development and the law's generally applauded ability to evolve. I conclude that traditionalist objections often go hand in hand with, and are generally driven by, formalist and institutionalist objections.

Formalist objections take many shapes but focus on the alleged problems of public nuisance as a tort doctrine. Some contend that public nuisance has never been a tort, or that it fails to address wrongdoing between parties and should therefore no longer be classified as a tort. Others accept public nuisance as a tort, but believe that it must maintain very narrow boundaries to avoid overturning or undermining...