Reacting to a $26 billion settlement with pharmaceutical companies over opioid overdoses, Josh Hammer argues that those responsible for the opioid crisis should be held responsible, but not via public-nuisance litigation.
“Every first-year law student learns about private nuisance, one of the oldest private causes of action at common law. Traditionally, a private nuisance is defined as a situation where a third-party actor interferes with a property holder’s right of quiet enjoyment to his land to such an extent that tortious interference is found. Common examples include odious smells, noxious noises, or rubbish or pollution. Public nuisance, by contrast, developed in the common law as a cause of action to protect not private-property interests but the general public’s right to property access, health, and communal safety. Private and public nuisance are distinct causes of action under tort law; the first has historically been more common in American civil litigation.”
“The Oklahoma case could theoretically make public-nuisance litigation more mainstream, especially now that others appear to be following the Sooner State’s lead. But the resuscitation of this old doctrine might not be so salutary for the public. Indeed, many progressive lawyers have already tried, over recent decades, to launch similar lawsuits attempting to hold energy and oil and gas companies liable for climate change and to hold gun manufacturers liable for violent crime. Those lawsuits have had mixed success to date, but any West Virginia and Washington State actions that follow a similar public-nuisance legal logic could open up the floodgates if they succeed—and it’s hard to imagine the doctrine being put to use to advance anything other than progressive causes.”
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