The New Public Nuisance: Illegitimate and Dysfunctional
A Response To
abstract. Leslie Kendrick’s defense of the new public nuisance fails to come to terms with legitimacy objections to such actions based on the rule of law and norms of democratic accountability. Nor is the new public nuisance a “second best” solution to widespread social problems. These actions rest on joint ventures between prosecutors and personal-injury lawyers that are likely to generate over- and under-deterrence and risk runaway liability.
Public nuisance, as Leslie Kendrick notes in her recent Article, The Perils and Promise of Public Nuisance,1 has a long history. In its earliest manifestations, it served as a way of enforcing customary norms in local sheriff courts.2 Ordering a defendant to remove a highway obstruction was the paradigmatic case. Later, it evolved into a signaling device used by legislatures to direct prosecutors to abate (i.e., shut down) objectionable enterprises, such as storing gunpowder in cities or maintaining a house of prostitution. Today, it has morphed into a third phenomenon, which I will call the “new public nuisance.”
The new public nuisance is characterized by the following four features:
- The definition of the relevant wrong is extraordinarily broad: “an unreasonable interference with a right common to the general public.”3
- Prosecutors and courts are assumed to have inherent authority to determine what is and is not a “right common to the general public” without further direction from the legislature.
- Prosecutors seek large damages for alleged interferences with public rights rather than orders abating or enjoining the offending activities or conditions.
- Because damages are the preferred form of relief, prosecutors can retain private law firms under contingent-fee contracts who perform much, if not all, of the legal work necessary to secure a judgment or settlement. These joint ventures also nearly always target deep-pocketed defendants.4
As Kendrick describes, the new public nuisance began with lawsuits filed by state attorneys general (AGs) in the 1990s against the major tobacco companies, which netted a settlement of some $246 billion in present-value terms.5 This bounty stimulated follow-on efforts seeking large damages against legacy producers of lead paint, gun manufacturers, and oil and gas companies, among others. These projects yielded mixed results at best.6 The most recent wave of new-public-nuisance suits, now joined by the AGs of all fifty states, targets large corporate manufacturers and distributors of opioid pain medications, on the grounds that their misuse can lead to addiction, addiction can lead to the use of black-market substitutes like fentanyl, and that this, in turn, can lead to overdose and death.
Kendrick devotes most of her Article to rebutting criticisms of the new public nuisance, which she groups under the headings of “traditionalist,” “formalist,” and “institutionalist” objections. She spends less time offering an affirmative case for the new public nuisance, which she characterizes as a second-best response to regulatory failure.7 Rather than following her outline, I broadly divide this Response into two parts: legitimacy objections to the new public nuisance (Part I); and a functional critique of the new public nuisance as a “second-best” regulatory strategy for our time (Part II).
I. legitimacy objections to the new public nuisance
In previous writing, I have raised questions about the legitimacy of the new public nuisance.8 On reflection, these critiques have circled around the objections rather than getting to the heart of the matter. The nub of the problem is twofold: the new public nuisance (1) violates the rule of law; and (2) is inconsistent with basic norms of democratic government. These shortcomings correspond to the first two features of the new public nuisance set forth above: the extreme vagueness generates the rule-of-law objection, and the assumption that prosecutors and courts have inherent authority to define the “rights common to the general public” is inconsistent with norms of democratic government.
A. The New Public Nuisance Violates the Rule of Law
The rule of law is a basic norm of all liberal constitutional democracies.9 Although the complete definition of the rule of law is contested, at its core, it means that the government will exercise coercive authority against persons only when consistent with settled law.10 Thus, Friedrich Hayek defined the rule of law as a system of rules “which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge.”11 Joseph Raz identified the “basic intuition” behind the rule of law as the idea that the law “must be capable of guiding the behavior of its subjects.”12 Lon Fuller, in an influential account, specified that the law must be general, clear, publicly promulgated, stable over time, congruent as between official rules and the conduct of legal actors, apply prospectively, avoid contradiction, and not require the impossible of those subject to the law.13
The new public nuisance violates the most elemental aspect of the rule of law: that legal duties must be sufficiently predictable to guide those to whom they apply. Public nuisance has always referred to a grab bag of activities that were deemed to be contrary to the general welfare. But the cases tended to fall into certain conventional categories, like blocking a highway or waterway, or engaging in conduct that offends prevailing moral norms, like operating an illegal gambling operation. The concept of public nuisance was also used as a signaling device by legislatures: by declaring certain activities like growing black currant bushes or selling spirituous liquors a “public nuisance,” the legislature could instruct prosecutors and courts that these activities should be shut down.14
The new-public-nuisance cases do not rest on any conventional understanding of what constitutes a public nuisance or on any legislative determination that a particular activity is deemed to be a public nuisance. Instead, they rest on the idea that courts have inherent authority to determine that something is a public nuisance based on the court’s understanding of the public interest. The American Law Institute (ALI) led the way in advancing this conception of public nuisance. When the ALI added a new section on public nuisance to the Restatement (Second) of Torts in 1979, it defined public nuisance to be “an unreasonable interference with a right common to the general public.”15 “Unreasonable,” in turn, was said to be any conduct that “involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience.”16
As a statement of the requirements of the law, this definition communicates no information that would allow a potential defendant to predict what constitutes a public nuisance. It is basically a Rorschach blot. Indeed, as the Second Restatement acknowledged in the comments to the new section, “If a defendant’s conduct in interfering with a public right does not come within one of the traditional categories of the common law crime of public nuisance or is not prohibited by a legislative act, the court is acting without an established and recognized standard.”17
State laws that prohibit public nuisances often do no better. Some define public nuisance as something which “tends to annoy the community, injure the health of the citizens in general, or corrupt the public morals.”18 Others proscribe anything “which injures or endangers the public health, safety, or welfare.”19 Still others are moderately more instructive. California, for example, specifically lists the obstruction of highways or waterways but then adds a catchall comprising “[a]nything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses.”20
If public nuisance is regarded as a type of criminal liability—which was the historical understanding but has faded from view with the Restatement’s revisionism—these formulations of prohibited conduct would be deemed void for vagueness.21 Whether or not they violate due process, these nebulous descriptions of duty fail to provide any effective guidance about what is and is not permitted, and they therefore violate the most basic principle of the rule of law. Are convenience stores a public nuisance because they sell sugary soft drinks that contribute to juvenile obesity? Do the distributors of water in plastic bottles commit a public nuisance because the bottles end up in the ocean? Are the makers of cell phones subject to public-nuisance liability because they lead to distracted driving and higher rates of auto accidents?22 The list of possibilities is endless. How could any attorney, looking at these definitions of public nuisance, confidently advise a client that their activity is not a public nuisance? If the client has heard rumblings that a prosecutor is thinking of bringing a public-nuisance suit challenging its activity, what light do these formulations shed on the answer?
The Restatement appeared to recognize the vagueness problem in its formulation of public nuisance and sought to mitigate it by grafting onto public nuisance the elements associated with the tort of private nuisance.23 It did this notwithstanding its acknowledgement that public and private nuisance have “little or nothing” in common and are “quite unrelated.”24 The Restatement’s strategy was to add a series of comments to the various elements thought to comprise the tort of private nuisance, indicating whether those elements would also apply to public nuisance. But an examination of these comments reveals that they provide virtually no guidance in identifying something as a public nuisance.
For example, Section 821F stated that an action for private nuisance will lie only if the defendant’s conduct causes “significant harm.”25 Comment (a) said this element also applies to public nuisance. But then there was this qualification: “A public nuisance may be prosecuted criminally although it has not yet resulted in any significant harm, or indeed any harm to anyone.”26 Similarly, Sections 822 and 826 said that liability for private nuisance will lie when the conduct is “intentional” and “unreasonable.”27 Comment (a) said this requirement “may, and commonly does, apply to conduct that results in a public nuisance.”28 But again, there was a qualification: “A particular statute may, however, expressly provide or be construed to mean that the interference with the public right is a criminal public nuisance without regard to the reasonableness of the conduct that has caused it. In this case, the rule stated here has no application.”29 The only conclusion that can be drawn from these equivocations is that there is no such thing as a general law of public nuisance that can be distilled into something called a Restatement.
Following in the steps of the Second Restatement, some state courts have also grafted one or more elements of tort law onto the new public nuisance,30 presumably to make it seem more law-like. But it does not appear that the new public nuisance has settled on any consistent understanding of the elements needed to establish liability. Even if this should happen, it would not overcome the completely open-ended description of the relevant duty (i.e., not to interfere unreasonably with a right common to the general public), which conveys little to no information at all.
The rule-of-law objection would be overcome if the state legislature were to enact a statute declaring that the production and distribution of cigarettes is a public nuisance, or that the production and distribution of fossils fuels is a public nuisance, or that the manufacture and distribution of opioid medicines is a public nuisance. But no reasonable legislature would enact any such statute.31 That being the case, it violates the rule of law for courts, at the urging of prosecutors, to award hundreds of millions of dollars in damages on the grounds that the conduct in question is an “unreasonable interference with a right common to the general public.”
B. The New Public Nuisance Violates Norms of Democratic Government
A second basic norm of modern constitutional government is that contested issues of social policy should be resolved by democratically accountable institutions. Like the rule of law, the norm of democratic accountability is not embodied in an express constitutional provision. Yet as John Hart Ely famously argued, democratic accountability is implicit in a number of constitutional provisions and has grown more powerful over time.32 The tension between the norm of democracy and the new public nuisance exists whether public nuisance is regarded as a branch of the common law or as a delegation of discretionary authority to the judiciary by the legislature.
1. Public Nuisance as Common Law
There is no question that the common law comprises a significant form of legal authority in the United States. For present purposes, we can define common law as the rules and standards that derive from prior judicial decisions.33 When a dispute is governed by common law, it is understood that courts have inherent authority to articulate the rules of decision used to resolve the matter. In practice, the authority of courts to proceed in this fashion is largely a function of their adherence to decisional rules previously advanced. Modifications in the rules and standards occur over time, but overrulings and sharp course corrections must be limited in order to assure compliance with judicial precedents.34
In England, where public nuisance started, public nuisance is still regarded as a type of common-law criminal liability. In the United States, this understanding became problematic when the idea of common-law crimes fell out of favor. This shift was based in significant part on principles of separation of powers and the understanding that only the legislature has the authority to make conduct a crime.35 As a result, all states now have statutes authorizing prosecutors to bring public-nuisance suits.36 All this was well understood by William Prosser, who served as the initial Reporter for the Restatement (Second) of Torts. His draft, presented to the ALI, defined public nuisance as a “criminal interference” with a right common to the general public. When some members of the ALI challenged this definition as too narrow, Prosser offered extensive research showing that no action could be brought for a public nuisance unless the conduct in question was regarded as a crime.37
As I have described in previous writing, Prosser’s definition was rejected by the membership of the ALI; he resigned his position as Reporter, and the new Reporter changed the definition from a “criminal interference” to an “unreasonable interference.” The clear objective was to make public nuisance, in addition to its role as a type of criminal offense, a “common law tort.”38 By declaring public nuisance a tort, the Second Restatement clearly intended that courts should enjoy the same degree of discretion to refine and extrapolate the meaning of public nuisance that they enjoy under the common law more generally. In effect, the Second Restatement sought to confer inherent authority on courts to declare what is a “right common to the general public.”39
The relevance of this expansion of judicial authority to the issue of democratic accountability should be obvious. By long tradition, courts in the United States have significant common-law authority to refine and extrapolate the decisional rules applicable to fields of law like contracts, torts, and property. But these domains of judicial lawmaking are discrete and fairly well settled. There is no similar tradition of judicial lawmaking in defining what constitutes an “unreasonable interference with a right common to the general public.” Through its revisionism, the Second Restatement sought to empower courts to exercise broad discretionary authority over a potentially vast range of contested social policy issues.40
Kendrick also seeks to rehabilitate the idea that public nuisance can be regarded as a legitimate species of tort liability by citing examples from contemporary tort law that entail the imposition of affirmative duties to protect the public from foreseeable harms. But these examples do not entail the open-ended articulation of social duties in the manner of the new public nuisance. Kendrick’s primary example involves a vehicle that breaks down on the highway, through no fault of the operator, which causes injury to other vehicles when the operator fails to take reasonable step to warn others of the obstruction.41 Here, the failure to warn violates a highly consensual social norm that should be obvious to all drivers on public roads. The relevant duty has long been recognized by case law and by the Restatement of Torts.42 Moreover, liability is hedged by other elements common to tort law: namely, the need to show not only a recognized duty but also intentional or negligent breach of that duty, causation, and actual harm to the plaintiff.
It is true, of course, that contested issues of social policy are sometimes resolved by courts as matters of constitutional or statutory interpretation. But when this happens, the ultimate authority for judicial action is that it is required by a good-faith interpretation of the constitutional or statutory provision in question. So the ultimate source of authority for these forms of judicial action is the enactment of a controlling text by a majority or supermajority of persons elected by the people. It is also true that contested policy issues are sometimes resolved by administrative agencies. But when this happens, the agency’s action must be traced to a delegation of authority from the elected legislature. Agencies have no inherent authority to act with the force of law,43 nor does the chief executive, except perhaps temporarily in an emergency.44 The new public nuisance violates this basic norm of democratic governance insofar as the authority of the court to declare something a public nuisance is based on a claim of inherent common-law authority.
What is wrong with the idea of inherent judicial authority to declare the rights of the general public? Two things. First, under the norm of democratic governance, the public interest must be determined through a process of deliberation and compromise by public institutions that are accountable, through elections, to the people. This includes the promulgation and revision of constitutions, the enactment of statutes, and action by administrative agencies taken pursuant to delegated authority by legislatures. The norm of democratic governance rests on the premise that the identification of the public interest is inherently contestable. Some people (or factions or interest groups) will prefer X, while others will prefer not-X. In a democratic system, the way to resolve such disagreements is by voting and, after the votes are counted, by deliberation and compromise in politically accountable venues.45
Other than their role in interpreting enactments by politically accountable actors, courts have no authority to declare what is and is not in the public interest. One reason is that courts are understood to have an unwavering duty to resolve disputes in accordance with settled law.46 This applies without regard to whether judges are appointed by other public officials or must stand for election or reappointment. Courts are duty bound “to say what the law is,” not to make it up.47 Another is that courts, by design, do not have the capacity to sift through conflicting ideas about what constitutes the public interest with the objective of reaching a compromise. They are designed to resolve discrete disputes between adverse parties, which entails determining the relevant facts and applicable law.48 The historical model of A v. B has been stretched with the emergence of class actions, multidistrict litigation, and amicus curiae briefs. But courts still fall far short of the mechanisms available to the political branches, including legislative hearings and notice-and-comment rulemaking by agencies, which can be used to identify the public interest through democratically accountable processes.49
All of this was clear to the California Supreme Court in the era before the new public nuisance arrived. Overturning an attempt by the state AG to enjoin a gambling operation in Monterey as a public nuisance, the Court wrote:
‘It is also competent for the Legislature, within the constitutional limits of its powers, to declare any act criminal and make the repetition or continuance thereof a public nuisance . . . or to vest in courts of equity the power to abate them by injunction; but it is not the province of the courts to ordain such jurisdiction for themselves. . . .’ In a field where the meaning of terms is so vague and uncertain it is a proper function of the legislature to define those breaches of public policy which are to be considered public nuisances within the control of equity. Activity which in one period constitutes a public nuisance, such as the sale of liquor or the holding of prize fights, might not be objectionable in another. Such declarations of policy should be left for the legislature.50
2. Public Nuisance as Delegated Lawmaking
Given that every state has enacted one or more public-nuisance statutes, another possible justification for the new public nuisance is that these statutes have delegated authority to courts to exercise broad authority to determine the rights common to the general public. These statutes unquestionably delegate authority to prosecutors and courts to bring and enforce public-nuisance actions. But exactly what sort of authority did the legislatures intend to delegate? Conceivably, these statutes could be interpreted as delegating authority to courts to develop the scope of public nuisance law in the common-law fashion. An analogy might be the federal antitrust statutes, which have been interpreted as delegating authority to courts to determine what constitutes an “unreasonable restraint of trade” in interstate commerce.51 But delegation of such common-law authority to courts is rare.52 Far more plausible is the supposition that the legislatures enacted public-nuisance statutes because they intended to preserve public authority to bring actions to abate the kinds of conditions that had long been understood to be public nuisances (e.g., blocking highways) and to indict activities added to the conventional list by the legislature (e.g., storing gunpowder in cities).
The question of how to interpret these delegations links up with the theme of democratic governance. Both federal and state courts have long worried about broad delegations of authority by legislatures, primarily to executive actors and administrative agencies. The Supreme Court has reaffirmed many times that the Constitution gives Congress—the most democratic of the branches—the exclusive power to legislate.53 This means that Congress cannot transfer its legislative power to another branch.54 The Court has interpreted these propositions to mean that Congress may not delegate too much discretion to another branch.55 The standard formula for determining whether Congress has conferred too much discretion is to ask whether the legislation in question includes an “intelligible principle” for guiding the actions of the delegatee.56 Several Justices, led by Justice Gorsuch, have argued that this approach is too lax and have recently argued that the doctrine should be reformulated to limit permissible delegations to those that require an agency to “fill up the details” in a statutory scheme, or to other limited circumstances.57 Perhaps in response to concerns about excessive delegation of discretion to entities outside the legislative branch, the Court has even more recently held that “major questions” of economic and political significance may not be delegated to agencies absent clear authority by Congress.58 Many state courts interpret the nondelegation doctrine under their state constitutions more strictly than does the Supreme Court with respect to the federal Constitution.59
Given the longstanding unease about legislation that delegates too much discretion to administrative agencies, how likely is it that state legislatures, when they passed statutes authorizing prosecutors and courts to prosecute public nuisances, imagined they were conferring open-ended authority on courts to determine what conduct constitutes “an unreasonable interference with a right common to the general public”? If Congress enacted such a statute conferring this power on an agency, the current Court would likely hold it unconstitutional.60 There is no reason to suppose state courts, which have always been stricter about delegations, would have any different response to a delegation of such authority to state courts.61 There is no need, of course, for state courts to declare statutes conferring authority on prosecutors to bring public nuisance suits unconstitutional on nondelegation grounds; it is perfectly plausible to interpret these laws as authorizing suits to abate activity traditionally regarded as a public nuisance, plus conduct specifically identified by the legislature as being a public nuisance.62
II. the misplaced functional justification
When Kendrick turns from rebutting objections to offering justifications for the new public nuisance, she essentially argues that public nuisance is better than nothing. The argument is familiar and has been advanced by others.63 Our society faces a number of serious social problems, like smoking-related illnesses, climate change, and opioid addiction. The traditional institutions we expect to do something about such serious social problems—legislatures and administrative agencies—have failed to take effective action. Hence, there is a need for the new public nuisance to fill the gap.64
Given that new-public-nuisance actions typically proceed by seeking damages rather than abatement, the argument is essentially based on the deterrent effect of significant ex post damages awards. I have no doubt that large damages awards can have a deterrent effect.65 But the question is whether damages will effectively deter conduct that we want to deter. In order to explore that question, we need to look more closely at the nature of the social problems at issue in the new-public-nuisance cases and the institutional incentives for seeking damages for harms arising out of those problems. Here I will follow Kendrick in focusing primarily on the opioid crisis, although analogous points can be made about cigarettes, guns, climate change, and the other targets of the new public nuisance.
A. The Complexity of the Opioid Crisis
The incidence of addiction and deaths from opioids is a public-health problem of the first magnitude. But Kendrick either ignores or underplays several aspects of the crisis.66
One such aspect is that opioids are an indispensable pharmaceutical product. They are used by millions of Americans and others worldwide suffering from excruciating pain, whether from cancer, severe burns, or medical procedures.67 There are currently no good substitutes.68 So we do not want to ban opioids. Instead, we want better oversight of their distribution and use. This is not a public bad like the classic public nuisances of blocking a highway or contaminating the local water supply. Rather, it is a complex problem of how best to regulate the risks associated with distributing an indispensable product.
A second aspect downplayed by Kendrick is that a very large number of actors bear significant blame for the opioid crisis. Yes, Purdue Pharma and the Sackler family engaged in excessively aggressive marketing to doctors and wrongly believed that their initial slow-release pill would reduce the risk of addiction.69 But the Federal Drug Administration (FDA) and the Drug Enforcement Agency (DEA) were also derelict in their oversight of the marketing and distribution of OxyContin (as Kendrick acknowledges).70 So-called “pill-mill doctors” willing to prescribe opioids to virtually anyone sprang up in many parts of the country, and the states, which are primarily responsible for regulating the practice of medicine, were derelict in not revoking their licenses.71 Some pharmacies failed to adopt adequate systems for detecting improper prescriptions generated by pill-mill doctors.72 Many of the addicted themselves are responsible, at least in part, for their plight, especially if they stole opioids from medicine cabinets or other sources in order to experiment with getting high.73 The federal government failed to secure the southern border, which has allowed criminal cartels easy access in transporting illegal fentanyl into the country.74 The list goes on. This is a polycentric problem, to use Lon Fuller’s phrase,75 not a case in which one actor or industry is responsible for creating a condition that they alone have the capacity to control—which again characterizes the classic public nuisance.
Third, in contrast to the problem of gun violence and the threat of climate change, the regulatory failure underlying the opioid crisis cannot be attributed to political deadlock or a lack of public consensus. There is universal outcry about the addiction epidemic and growing evidence that federal agencies, state regulators, and medical societies are moving to correct their past failings.76 Nor is the opioid crisis like the tobacco litigation. Large diversified pharmaceutical companies and pharmacy chains will not fight tooth and nail to preserve the profits they make from selling opioids. The greater danger is that they will exit the market altogether because of litigation risk, as nearly happened some time ago with the production of childhood vaccines.77
The foregoing factors—that opioids are an indispensable form of pain relief, culpability is widespread, and there is now widespread public demand for solutions to the addiction crisis—suggest that what is needed is a carefully calibrated set of reforms that would establish a better system of controls on the distribution of opioid medications going forward. Transferring large sums of money from deep-pocketed pharmaceutical companies and pharmacy chains to state and local jurisdictions may gratify an impulse to punish someone for the present calamity. But it is unlikely to generate the type of improved system of controls needed to do better. Legislative action to establish a better system of oversight, supplemented by giving administrative agencies adequate resources to enforce the legislative mandate, is a far more promising course of action.78
B. The Political Economy of the New Public Nuisance
Kendrick also fails to adequately consider what I call the political economy of the new-public-nuisance litigation.79 She discusses aspects of this political economy toward the end of her Article as a cautionary consideration under the heading of “agency costs.”80 But the political economy of public nuisance is its most important feature and dates back to the tobacco litigation. It also flows directly from the third and fourth characteristics listed at the beginning of this Response:81 the turn to damages as opposed to mandatory relief and the creation of joint ventures between public prosecutors and private law firms to pursue new-public-nuisance cases.
The most startling feature of the new-public-nuisance litigation is that its objective is to obtain damages. This is a clear departure from the history of public-nuisance litigation. Until the tobacco litigation, public-nuisance suits, insofar as they were brought by public prosecutors (as roughly ninety percent were), always sought mandatory relief—that is, orders for defendants to stop whatever they were doing.82 The tobacco litigation broke new ground by seeking massive damages on behalf of states. The theory was that smoking had increased costs under Medicaid and similar public-health programs and that states were entitled to recover these excess costs.83
When money was put on the table, a new set of actors entered the picture: the plaintiffs’ personal-injury bar. Plaintiffs’ personal-injury lawyers generally operate on contingency fees.84 They only get paid if there is a money judgment from which their fees can be deducted. Hence, they are generally uninterested in cases that seek only injunctions or other types of mandatory relief.
The new-public-nuisance litigation rests on what are effectively joint ventures between public prosecutors and personal-injury firms, in which the prosecutor sues on behalf of the government as the named plaintiff, but most of the work (e.g., discovery, motions practice, briefing) is performed by the personal-injury firms. These joint ventures are made possible by the innovation of seeking large amounts of damages rather than mandatory relief. To be sure, the prosecutors—the nominal plaintiffs in these cases—want to claim credit for “doing something” about a perceived public harm. But they also want to create a new funding stream for the government, either to augment their own budgets or to enhance their prestige as a provider of public revenues.85 The personal-injury firms hope to achieve enough success to score a large settlement and, hence, a big payout under their contingent-fee contracts.
This novel form of joint venture has seen several failures: the lead-paint and gun litigation largely went nowhere,86 and climate litigation may be headed in the same direction.87 But the new public nuisance has achieved enough success—the tobacco and opioid settlements—to keep the business model going as it moves from one cause to the next. There are several reasons to be concerned with the emergence of this phenomenon.
One is effective deterrence of the most culpable actors. The new-public-nuisance model is based on who can pay the most money, not on who is the most in need of being deterred. This is an increasing problem with tort litigation in general,88 especially with the advent of comparative fault combined with either joint-and-several or several liability, which puts a premium on bringing cases based on the prospect of large damage awards from particular asset-rich or well-insured defendants rather than who is most at fault.89 With respect to the new-public-nuisance cases, the only defendants that get sued are corporations with fat balance sheets.90 Some undoubtedly deserve to be deterred. But the response is likely to be either that they declare bankruptcy (as Purdue did),91 abandon the market to avoid further liability,92 or simply settle and pass the costs on to their stockholders and consumers. Meanwhile, other bad actors—like pill-mill doctors and drug smugglers—do not get sued because they do not have enough assets or because it would be too hard to collect a judgment if one were obtained.93 As a result, smaller, less-visible bad actors do not get deterred.
A related problem is that many bad actors are immune from liability. Quite arguably, the FDA, DEA, and AG offices themselves that are responsible for policing the medical profession are more at fault than the big pharmaceutical companies (other than Purdue) and pharmacy chains, many of whom acted in compliance with the law.94 But the government actors are generally immune from liability under principles of sovereign immunity.95
Another problem, again from a deterrence perspective, is the extreme vagueness of the new public nuisance in terms of the clarification of social duties.96 Tort law seeks, with varying degrees of success, to clarify social duties by using doctrines like negligence per se and custom, and through the gradual accretion of precedents about what constitutes negligence in different circumstances. But beyond certain clear-cut cases like obstructing a highway or contaminating the water supply, public nuisance in its most recent incarnation provides little information about what is or is not a “right common to the general public.”
These problems of inadequate notice are compounded by the ex post nature of public-nuisance judgments. After the fact, it is clear that Purdue’s slow-release OxyContin pills did not reduce the risk of addiction. But this was not clear to the FDA when it reviewed the application for pre-market approval.97 This problem is pervasive in matters that involve predictive judgments about untested products or ideas. The FDA in particular has been roiled in controversy for years over whether its demand for controlled studies establishing the safety and efficacy of new drugs and medical devices has been too strict, thereby depriving critically ill persons of potentially valuable therapeutics, or not strict enough, thereby failing to detect potentially serious side effects.98
Another serious problem is the potential for overdeterrence. Imposing damages liability on the oil-and-gas industry for every ill plausibly connected to climate change would function like a massive excise tax, driving up the costs of gasoline and home heating for ordinary consumers. With respect to opioids, the concern is that large diversified pharmaceutical firms and pharmacy chains may simply stop selling opioids because of the liability risk. But opioids are indispensable forms of pain relief for persons suffering from cancer, serious accidents, or major surgery.99 It is a tricky problem to figure out how to regulate their distribution to reduce the risk of addiction without harming those who desperately need them for relief from severe pain.
A final source of concern is distorted incentives that exist for public prosecutors such as state AGs. When the only remedy for a successful public-nuisance action was mandatory relief, AGs weighed the costs of devoting in-house-lawyering resources to the problem against the prospective benefit to the public of a successful effort. But once the prospect of large monetary recoveries is added to the picture, public-nuisance law may come to be regarded as a significant source of revenue for the government. Some of this revenue is likely to devolve, directly or indirectly, to the prosecutor’s office itself.100 At the very least, public-nuisance revenue will magnify the prestige, and hence the influence, of prosecutors within the state government. So prosecutors will be tempted to give undue emphasis to pursuing these actions. Moreover, the joint-venture model requires that decisions about who to sue (and for what) are made with the concurrence of one or more personal-injury law firms. This may require prosecutors to modify their priorities from what they would be without the need to secure the cooperation of private firms.101
C. The Danger of Runaway Liability
The great danger of the new public nuisance should now be apparent. State AGs are elected politicians. Their prescribed task is to enforce the law as written. But they are also anxious to get reelected or, as is often the case, to move on to a higher office such as governor, U.S. senator, or even President. The new public nuisance presents a tempting way to score points with the electorate—that is, by blaming large corporations for major social problems and then taking them to task. It also provides a way to reward a key donor group—personal-injury lawyers—who contribute heavily to state AG election campaigns and stand to reap huge fee awards if public-nuisance suits yield major monetary settlements.102 It is telling that once the liability ball starts rolling downhill, as it did in the tobacco cases and, more recently, in the opioid cases, every state AG (and many local elected prosecutors) joined the effort.103 This does not suggest that the social problems that triggered these cases are too divisive to sustain ordinary regulatory responses. Instead, it suggests that the political costs of being left out of a prospective bonanza for the state treasury and personal-injury lawyers are too great to stay on the sidelines.
The insidious nature of this exercise in rent-seeking is magnified by what passes for the legal justification for these actions. The legal duty asserted in these cases is so broad it can be made to describe virtually any widespread social problem. And if the legitimacy of such a “super tort” is challenged, select aspects of the long history of public nuisance can be invoked as giving it a patina of respectability. Thus, authorities as remote as Bracton, Britton, and Blackstone can be cited in support of a vague and open-ended conception of the relevant action,104 ignoring the emergence of separation-of-powers and democratic-accountability precepts in the intervening centuries that render their accounts inapt. Kendrick adds to the effort of selective justification by suggesting that the new public nuisance is analogous to the established tort duty to put out warning flares when a truck stalls on the highway.105
We live in a world in which many rights common to the general public are inadequately addressed. Impatience on the part of those who have no doubt about the correct answer to these problems is understandable. But I have argued that this impatience does not justify asking courts to award hundreds of millions of dollars in damages against corporations that have some connection to these problems in the name of public nuisance. This new public nuisance is illegitimate, whether viewed from the perspective of the rule of law or democratic accountability. It is also doubtful that the new public nuisance is a “second-best” response to these problems. These cases rest on a joint-venture model between government prosecutors and personal-injury law firms that raises dangers of under- and overdeterrence and distorted incentives for public prosecutors. Consequently, it is far from clear that this form of liability is functional as a type of regulatory policy (as “second best” implies), as opposed to being dysfunctional. The hard work of convincing the public to demand change is, as always, the only approach that promises stable and well-calibrated solutions to these sorts of problems.
Charles Evans Hughes Professor, Columbia Law School. Many thanks to Anna Tripp Scheibmeir for excellent research assistance.