Uncommon Law: Ruminations on Public Nuisance


The ancient common tort of public nuisance is one of the most

highly visible issues in modern tort jurisprudence. Its growth is

particularly notable in climate change and environmental litigation, where it seems to be the “tort of choice” for plaintiffs seeking breathtakingly broad relief from global warming and trans-border pollution. Traditionally limited to local concerns, the tort now aspires to global dimensions, and its expanding scope has now attracted the attention of the US Supreme Court in American Electric Power v. Connecticut. If its advocates succeed, the “monster that will devour in one gulp the entire law of torts” may be afforded a prime seat at the banquet. This article, based on arguments the author has made in briefs to the Supreme Court, explains why common law courts should reject these expansive arguments.

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